State v. Settle

• Decision Date: 06 March 1987
• Docket Number: No. 86-317,86-317
• Citation: 523 A.2d 124,129 N.H. 171
• Parties: The STATE of New Hampshire v. John A. SETTLE, Jr.
• Court: New Hampshire Supreme Court

Page 124

523 A.2d 124

129 N.H. 171

The STATE of New Hampshire v. John A. SETTLE, Jr.

No. 86-317.

Supreme Court of New Hampshire.

March 6, 1987.

Stephen E. Merrill, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief and orally), for State.

John A. Settle, Jr., pro se.

Brown and Nixon P.A., Manchester (Frank E. Kenison, on the brief and orally), for the New Hampshire Bar Ass'n, as amicus curiae.

SOUTER, Justice.

The State appeals an order of the Superior Court (DiClerico, J.) insofar as it would permit the defendant to represent an unincorporated association of which he is an officer, although he has not been admitted to the practice of law. We reverse.

This appeal does not mark the defendant's first appearance as a party in cases decided by this court. See, in chronological order, Settle v. Keene Savings Bank, 120 N.H. 827, 423 A.2d 986 (1980) (affirming summary judgment entered against the present defendant in his quiet title action against mortgagee in possession after foreclosure); Settle v. Settle, 121 N.H. 397, 399, 430 A.2d 172, 173-74 (1981) (affirming order of contempt entered against the present defendant in divorce action, and finding that his legal position was "simply a sham designed to interfere with the orderly process of litigation."); State v. Settle, 122 N.H. 214, 447 A.2d 1284 (1982) (reversing defendant's convictions for receipt of, and conspiracy to receive, stolen property); State v. Settle, 123 N.H. 34, 455 A.2d 1031 (1983) (reversing convictions for theft and conspiracy to receive stolen property); State v. Settle, 124 N.H. 832, 480 A.2d 6 (1984) (affirming order directing defendant to produce documents for examination by attorney general in course of inquiry into defendant's alleged unauthorized practice of law); State v. Settle, 127 N.H. 756, 512 A.2d 1083 (1986) (affirming conviction for shoplifting). In addition to the published opinions in these cases, the court's records include an order in a recent extradition contest, which revealed that a grand jury of the State of Maine has indicted the defendant for theft. See Settle v. State, No. 85-219, (Feb. 3, 1986); see also Settle v. State, No. 86-182 (filed May 5, 1986); Settle v. Supreme Court of New Hampshire, No. C-86-81-D (D.N.H. filed June 19, 1986). (This is not the only criminal action pending against him. In the superior court of this State six indictments currently charge the defendant with welfare fraud. See State v. Settle, Nos. 85-S-657-F through 85-S-662-F (Merrimack Super.Ct. Oct. 17, 1986)).

Nor do these citations exhaust the record of the defendant's frequent contacts with the judicial system or with this court. In State v. Dukette, 127 N.H. 540, 543, 506 A.2d 699, 702 (1986), we noted that the public defender had resisted Dukette's insistence that Settle be allowed to participate in preparation for the trial of the case. The defendant also has filed appearances on behalf of himself and others in a number of cases now pending here. See, e.g., Town of Farmington v. Settle, No. 85-485 (filed Oct. 29, 1985); Town of Nottingham v. Robert A. Bonser and Cedar Water Village, Inc., No. 86-005 (filed Jan. 6, 1986); Town of Nottingham v. Robert A. Bonser and Cedar Water Village, Inc., No. 86-255 (filed June 20, 1986); Town of Nottingham v. Robert A. Bonser and Cedar Water Village, Inc., No. 86-293 (filed July 16, 1986). The defendant has, moreover, candidly admitted his intention to continue to file appearances on behalf of an unincorporated association known as the New Hampshire Civil Rights Association (NHCRA), of which he is ostensibly an officer.

Despite the impression raised by the number of such appearances filed in the past and anticipated in the future, the defendant is not now admitted to the practice of law in this or any other jurisdiction, nor has he ever been. It was in fact the defendant's frequent practice of performing legal services for others that led to the institution of this suit in 1984, when the State petitioned under RSA 311:7-a, I, for an injunction against the defendant's unauthorized practice of law in violation of RSA 311:7. By order of March 12, 1985, the superior court enjoined him

"from rendering, offering to render, or holding himself out as rendering to any other person ... any service requiring the use of legal knowledge or skill, whether in court or out of court, and from representing himself to any other person as a lawyer, attorney, or attorney-in-fact in the practice of law, within the State of New Hampshire [, and] from appearing before any State court or any administrative body within the State of New Hampshire on behalf of another person if he is acting as that person's legal representative, attorney-in-fact, or is in any way providing that person with a service that requires the use of legal knowledge or skill."

Other provisions of the injunction specifically prohibited the preparation of pleadings, notices and briefs on behalf of any other person, and a footnote clarified the scope of the injunction by defining "person" to include "any natural person, corporation, association, whether incorporated or not, and any organization of any kind."

Thereafter, in apparent violation of the injunction, the defendant filed an appearance on behalf of NHCRA in Town of Farmington v. Settle supra. When this court sua sponte struck the appearance in accordance with the terms of the injunction quoted above, the defendant moved for reconsideration based on a stenographic record of remarks by the trial judge. That transcript indicated that the defendant might appear on behalf of a corporation of which he was an officer, if so authorized by that organization. This court thereupon referred the question of the scope of the injunction to the judge who had issued it, for determination after a hearing.

The trial court reported on April 11, 1986, that

"[t]he permanent injunction issued by this Court prohibiting Mr. Settle from the unauthorized practice of law was not intended to prohibit him from representing the interests of an unincorporated association of which he is an officer or director, assuming that he has been properly authorized by said association to act on its behalf."

This court viewed the report as an order amending the terms of the injunction as originally issued, and for convenience we will refer to it hereafter simply as the order of April 11. On May 22, 1986, after the expiration of the period for appealing the order, see Super.Ct.R. 74, we granted the defendant's earlier motion to reconsider filed in Town of Farmington v. Settle supra, and accepted his appearance on behalf of NHCRA.

On June 23, 1986, however, the State sought to enter Farmington as amicus curiae for the purpose of moving for reconsideration of our order of May 22, 1986. The defendant objected. Prior to our ruling on the State's request for amicus curiae status, the defendant filed appearances on behalf of NHCRA or a corporation, Cedar Waters Village, Inc., in the three cases cited above by our docket numbers 86-005, 86-255, and 86-293. The State moved to strike the defendant's appearance in each instance.

Because of the substantial issue about the appropriate scope of the trial court's injunction, we treated the State's request to appear as amicus in Farmington as a motion for late appeal from the superior court's order of April 11, and accepted the appeal. The New Hampshire Bar Association subsequently appeared as amicus curiae by leave of the court, and both the State and the Bar Association filed briefs and presented arguments urging reversal of the trial court's order of April 11. The defendant filed no brief and therefore waived oral argument under Supreme Court Rule 18(1).

We treat the appeal as raising two issues: (1) whether it was error to permit the lay defendant generally to represent an unincorporated association, and by analogy a corporation, solely because he is one of its officers or directors; and (2) whether any purpose would be served at this time by considering the defendant's qualifications to appear in specific cases as the attorney-in-fact of an association or corporation, in reliance on the provision of RSA 311:1 that a party may appear by any citizen of good character. See Super.Ct.R. 14; Sup.Ct.R. 33(2). We hold that the order of April 11 was erroneous in the respect challenged, and that the record demonstrates that the defendant could not now be qualified as an attorney-in-fact for another person or legal entity.

We rule the order of April 11 erroneous because it conflicts with the statutory prohibition against the unauthorized practice of law. See RSA 311:7. Under its terms the defendant may appear with unrestricted frequency on behalf of an association of which he is an officer, so long as the association authorizes him to represent it. The order would thus allow him to appear "commonly," see Bilodeau v. Antal, 123 N.H. 39, 44-45, 455 A.2d 1037, 1040-41 (1983), in violation of the prohibition of RSA 311:7 that "[n]o person shall be permitted commonly to practice as an attorney in court unless he has been admitted by the court and taken the oath prescribed...." The statute provides no exception to this rule when the party to be represented is a corporation or unincorporated association.

The only legislative authority for legal representation by anyone who is not a duly licensed lawyer is RSA 311:1, which provides that "[a] party in any cause or proceeding may appear, plead, prosecute or defend in his proper person or by any citizen of good character." We do not believe, however, that either the "proper person" or the "citizen of good character" provision may be construed as authority for the order permitting the defendant to represent an association of which he is a member.

It is clear from the context of RSA 311:1 that "in his proper person" means "pro se" and refers to the direct personal conduct of litigation by a party on his own behalf. While the statute thus...