Vacate Default Entered Against Corporation Represented by Non-Attorney

It is well recognized that a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney. Nicholson Supply Co. v. First Federal Savings & Loan Association of Hardee County, 184 So.2d 438 (Fla. 2d DCA 1966). Courts have reflexively applied this common law rule prohibiting the unauthorized practice of law and have offered three primary justifications in support of it.

First, because a corporation is a “hydra-headed entity and its shareholders are insulated from personal responsibility,” there must be one designated spokesperson accountable to the court.

Second, “unlike lay agents of corporations, attorneys are subject to professional rules of conduct and thus amenable to disciplinary action by the court for violations of ethical standards.”

Third, attorneys purportedly have the legal skills necessary to competently participate in litigation and other proceedings.

It is not an uncommon occurrence that a small closely-held corporation (even as small as one officer/shareholder) will attempt to defend a lawsuit by himself, pro se. The officer/sole-shareholder oftentimes will send a crudely prepared letter to the court denying the allegations without the formality of attorney representation, and believe that he is defending his company in the lawsuit and has complied with the law. Technically, however,  such action is the unlicensed practice of law. Usually, the opposing attorney will move to strike such pleading or will otherwise directly move for a default based on the impropriety and voidness of such pleading, as it was not filed by a licensed attorney.

However, the public policy that dictates that, whenever possible, cases “should be determined  on their merits, instead of upon irrelevant technicalities” likewise applies to the situation described here.

That the rule against the unauthorized practice of law must yield to the strong public policy in favor of having cases decided on the merits has likewise been recognized in cases dealing with entry of defaults (or he  setting aside of defaults where the default had already been entered) where a non-attorney appeared on behalf of a corporation rendering defective any defensive pleading

And, as Courts have repeatedly noted, dismissal without leave to amend (or to permit time for the corporation to obtain counsel) contravenes the “welcome policy” of adjudicating cases on the merits rather than on procedural niceties and advances no countervailing public policy. Finally, given the liberal rules of amendment in this state, the filing of a complaint by a non-lawyer will rarely, if ever, permanently harm the plaintiff corporation, since, after being given leave to obtain counsel, such counsel will likely be permitted to amend and correct the original complaint as necessary.

Simply put, when the errant complaint prejudiced the defendant in any way or in the case that the plaintiff corporation acted with knowledge that it was improper for it, without counsel, to prepare and file the initial complaint the analysis maybe require a different result.  On the other hand, with the usual cases, when there is strong indication that the plaintiff corporation acted with diligence in immediately obtaining counsel after being given leave to do so, and when the corporation believed it was appropriately defending the case, a default or striking of the pleadings should not stand.


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