A “next friend” can’t act pro se on behalf of the real party in interest – unless the trial court orders such action

In Azmat v. Bauer, http://opinions.kycourts.net/sc/2016-SC-000560-DG.pdf, the Kentucky Supreme Court addressed an unusual but interesting issue concerning the unauthorized practice of law in the “next friend” context. 

The full caption of the case is Sameena Azmat, as Mother and Next Friend of Nausher Azmat v. George W. Bauer, MD et al.  The court explained this type of lawsuit as follows:

The “next friend” device is a procedural one by which a minor’s claim is brought into court, and a person acting as such is only a nominal party with no unilateral statutory or other authority to settle the minor’s claim.  A next friend is the minor’s agent, merely bringing an action on the minor’s behalf.  The minor is the real party in interest in any lawsuit filed on the minor’s behalf by the minor’s next friend.  The attorney has an attorney-client relationship with, and owes professional duties to, the minor.  (Emphasis in original; citations and internal quotation marks omitted.)

Two years after the lawsuit was filed, the trial court granted the plaintiff’s attorney’s motion to withdraw and ordered Sameena to find new counsel within 60 days and to proceed pro se in the meantime.  (On appeal, the supreme court ruled that the granting of counsel’s motion to withdraw was clear error, but that’s a separate issue.)  Thereafter, in compliance with a deadline previously established in a pretrial order, Sameena signed and filed expert witness disclosures, which evidently had been prepared by the attorney before his withdrawal.  

Sameena requested and was granted an extension of time to find a new attorney, but 5 months later she still had not succeeded in doing so.  At that point the defendant moved to strike Sameena’s experts and for summary judgment, arguing that (a) Sameena had engaged in the unauthorized practice of law by filing expert witness disclosures, which therefore were void ab initio, and (b) when a medical malpractice plaintiff is unable to provide expert testimony, the defendant is entitled to judgment as a matter of law.  “The defense argued that Sameena, as ‘next friend,’ had no claims in the case, thus she could not proceed pro se on behalf of [her son] Nausher.”  The trial court agreed and dismissed the case with prejudice.

The supreme court, recognizing the catch-22 created by the trial court’s orders, reversed:

Sameena did not engage in the unauthorized practice of law because she was specifically authorized and ordered to proceed as such according to the circuit court’s order…. Once the Hardin Circuit Court entered its order directing Sameena to find replacement counsel or automatically be deemed to proceed pro se, and after Sameena’s subsequent inability to procure counsel, Sameena was obligated to do as the trial court ordered.  Because the trial court did not extend the deadlines regarding expert disclosures, and because the trial court entered the order days before such disclosures were due, Sameena had to follow the court’s directive, for not doing so would have made her not only non-compliant with a court-ordered obligation but also potentially subject to the court’s contempt power….This holding is necessarily narrow as we find it a rare oddity for trial courts to explicitly direct those unauthorized to practice law to engage in the practice of law.

For future reference, the court made it clear that this was a one-time-only pass for a next friend:

This Court granted discretionary review, in part, to address whether a “next friend” can provide pro se representation to the real party in interest.  Despite our holdings here today, which are specific to the facts and procedural posture of Azmat’s case, we hold that a “next friend” cannot provide pro se representation to the real party in interest.  The reasoning is simple: the interests of the “next friend” and the interests of the real party in interest may not always be aligned…. Because such adverse interests disqualify an otherwise appropriate “next friend,” we also hold that the “next friend” is precluded from providing pro se representation in such capacity.  We do acknowledge that some federal courts have held to the contrary.  In these cases, the courts have focused on the fact that the parent, or “next friend,” was the primary caregiver and would receive the benefits of successful litigation, showing that the parent’s and child’s interests were sufficiently similar to permit representation.  We do not adopt the holdings of these courts at this time.  (Citations omitted.)

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