People v. Shell
| Decision Date | 18 December 2006 |
| Docket Number | No. 04SA93.,04SA93. |
| Citation | 148 P.3d 162 |
| Parties | The PEOPLE of the State of Colorado, Petitioner v. Suzanne SHELL, Respondent. |
| Court | Colorado Supreme Court |
Office of Attorney Regulation Counsel, James C. Coyle, Deputy Regulation Counsel, Denver, Colorado, Attorney for Petitioner.
Paul Grant, Centennial, Colorado, Attorney for Respondent.
This opinion considers the Presiding Disciplinary Judge's recommendation that we hold Respondent Suzanne Shell in contempt and fine her $6,000 for engaging in the unauthorized practice of law. We agree with the Presiding Disciplinary Judge and issue the contempt citation.
For the reasons explained below, we find that Shell has practiced law without a license in three separate legal proceedings since 2002, and in so doing, she has violated both Colorado law and a previous order entered by this court enjoining her against the unauthorized practice of law. Despite Shell's claims to the contrary, Colorado's ban on the unauthorized practice of law is constitutional and does not violate her rights under the First Amendment. We also disagree with Shell's assertions that she was entitled to a jury trial and that she has been deprived of due process because she was not provided with a free copy of a transcript of the proceedings below. While we fine Shell $6,000 for her unauthorized practice of law, we do not impose any additional amount for costs and attorneys' fees.
Suzanne Shell is an advocate committed to exposing what she considers to be abuses of process that occur in Colorado dependency and neglect cases. Shell is not a licensed attorney, however, and her advocacy previously has led her to cross the line between permissible activism and the unauthorized practice of law.
In May 2001, the Office of Attorney Regulation Counsel ("OARC") petitioned this court for an injunction and contempt citation against Shell. The OARC alleged that Shell engaged in the unauthorized practice of law by providing legal advice to parents involved in dependency and neglect cases, drafting pleadings for parents' use, and attempting to represent parents in judicial proceedings. Shell denied the OARC's allegations and claimed that she was entitled to provide legal advice and represent the parents because they had executed statutory powers of attorney authorizing her to act as their agent.
Shortly thereafter, Shell and the OARC entered into a "Stipulation" in which Shell agreed to the entry of an injunction preventing her from practicing law without a license in Colorado. Shell made several acknowledgments in the Stipulation, including (1) that she was familiar with Colorado law concerning the unauthorized practice of law, (2) that the "practice of law" includes activities such as offering legal advice and drafting or selecting legal documents for use by another person in a legal proceeding, and (3) that by engaging in such activities without a license, Shell committed the unauthorized practice of law. Shell further acknowledged that she was incorrect in her belief that a statutory power of attorney allowed her to act as the signing party's legal representative. Shell agreed to pay administrative costs but the OARC did not pursue any fine for contempt.
This court entered an Order on October 25, 2001 (the "October 2001 Order"), accepting Shell's Stipulation and enjoining her against practicing law without a license in Colorado. The October 2001 Order incorporated Shell's Stipulation by reference.
Since the October 2001 Order was entered, Shell has been involved in two dependency and neglect proceedings in Colorado state courts and one civil action in the United States District Court for the District of Colorado. The OARC alleges that Shell engaged in the unauthorized practice of law in each of these cases, thereby violating Colorado law and our October 2001 Order.
The K.M. Matter, 02JV97. Shell participated in a Fremont County District Court action involving K.M., the mother of an allegedly dependent and neglected child. The court appointed attorney Daniel Kender to represent K.M. in May 2002.
Several months later, K.M. executed a statutory power of attorney providing Shell with broad powers to handle her affairs, including the power to act "in [her] stead regarding [her] Dependency and Neglect case." Shell contacted Kender in January 2003 and asked him to call her to discuss the K.M. matter. Kender testified to the hearing master below that he did not return Shell's call.
Shell subsequently sent a faxed letter to Kender dated February 21, 2003. In the letter, Shell informed Kender that she was acting as an "agent" for K.M. "based upon the Power of Attorney" executed several weeks before. Shell stated that "[K.M.'s] legal interests may not have been adequately represented" by Kender and that "drastic action is needed immediately to protect her rights to parent her children." Attached to the letter was a discovery request (, a set of requests for admissions) directed to the caseworker assigned to the K.M. matter, the guardian ad litem, and the West Central Mental Health Center. Shell directed Kender to serve the discovery request "no later than next Tuesday," and explained that she "had great success using admissions in the past." Kender testified that he ignored Shell's letter and did not serve the discovery request.
In March 2003, K.M., acting pro se and without Kender's knowledge, served a discovery request on the caseworker, guardian ad litem, and West Central Mental Health Center. With the exception of very minor differences, the requests served by K.M. are identical to the requests attached to Shell's February 2003 letter to Kender. K.M. also filed a "Motion for Clarification of Effective Assistance of Counsel" in which she challenged Kender's representation of her interests in the dependency and neglect action. The district court struck K.M.'s pro se discovery request.
The A.F. Matter, 03JV3. While the K.M. matter was pending, Shell was involved in another dependency and neglect proceeding in Fremont County District Court, this one concerning A.F., a respondent mother. The court appointed Daniel Kender to represent A.F. A.F. subsequently executed a power of attorney authorizing Shell to act as her agent and giving Shell the power to handle her legal affairs.
As in the K.M. matter, Shell sent Kender a letter informing him that she had been engaged as an "expert consultant" by A.F. Shell advised Kender that her association with A.F. was confidential and was not to be revealed. Shell also gave Kender "information and instructions" on the defense of A.F., stating that she would provide Kender with "all the legal arguments and documentation" he might need, but admonished that they "will be useless" if Kender "fail[ed] to make the necessary arguments in court." Shell then instructed Kender to file specific documents and motions, make specific legal arguments and tender specific jury instructions. Shell also informed Kender that he should serve requests for admissions on the Department of Human Services, and directed Kender to her website to obtain a sample. Shell requested the opportunity to review the draft discovery before it was served. Kender testified that he ignored Shell's letter.
As in the K.M. matter, A.F. filed and served pro se pleadings in her dependency and neglect action, each of which reveals a level of sophistication that is nearly impossible to attribute to A.F. given her lack of legal training. Kender was unaware that these pleadings had been filed and served by A.F. The substance and style of A.F.'s pleadings are strikingly similar to the language used in the pleadings filed in K.M.'s action, and with two trivial exceptions, A.F.'s "Motion for Clarification of Effective Assistance of Counsel" is identical to the same motion filed by K.M. in her action.
In April 2003, the Fremont County Department of Human Services requested that the trial court add Shell as a special respondent to the A.F. matter for the purpose of enjoining her against engaging in the unauthorized practice of law. Shell filed suit in federal court seeking an injunction preventing her from being added as a special respondent.
The Federal Action, 03-RB-743. Shell filed an action in the United States District Court for the District of Colorado pursuant to 18 U.S.C. section 1983 alleging that her civil rights—and those of A.F.—had been violated by eight defendants, including the Fremont County District Court and A.F.'s attorney, Daniel Kender (the "Federal Action"). Both Shell and A.F. were named as plaintiffs, with Shell purporting to represent A.F. in the case. The federal magistrate assigned to the case entered an order on May 14, 2003, holding that Shell "cannot represent [A.F.] in this matter, nor may [Shell] sign pleadings, motions, or other documents in this case on [A.F.'s] behalf." The magistrate ordered A.F. to sign the complaint as a pro se plaintiff.
Shell—again acting on behalf of A.F.—filed a motion to reconsider, arguing that the statutory power of attorney executed by A.F. authorized Shell to act as A.F.'s legal representative. The district court denied Shell's motion to reconsider. Subsequently, the court dismissed the Federal Action for lack of subject-matter jurisdiction and failure to state a claim for relief.
The Proceedings Below. In March 2004, the OARC petitioned this court to hold Shell in contempt for violating the October 2001 Order and Colorado law prohibiting the unauthorized practice of law. The OARC cited Shell's activities in the K.M. matter, the A.F. matter, and the Federal Action to support its petition.
The Presiding Disciplinary Judge, acting as a hearing master, held a hearing on the OARC's petition and considered evidence and testimony presented by both sides. Shell videotaped the...
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