Artificial People: Why Corporations Cannot Appear in Court Without a Lawyer

JurisdictionKansas,United States
CitationVol. 84 No. 8 Pg. 21
Pages21
Publication year2015
Artificial People: Why Corporations Cannot Appear in Court Without a Lawyer
Vol. 84 J. Kan. Bar Assn 8, 21 (2015)
Kansas Bar Journal
September, 2015

J. Nick Badgerow, J.

I. Background

Kansas courts have consistently prohibited corporations from appearing in court without a lawyer. One may question why this is, and what justifies a rule that allows an individual person to appear in court on his own behalf, but which then denies that right to a corporate body, an "artificial person."[1]

The justification is that, because it is an artificial person, a corporation can only act through its authorized agents. Therefore, the law requires it to appear in court only through a lawyer, duly admitted to the Bar, with the education and abilities which qualify that lawyer to appear for others before our courts.

II. A corporation is an artificial person A corporation is an artificial person; it may acquire knowledge only through real people - its officers, agents, or employees. Anderson's knowledge as president of Louisburg Grain Co. Inc. and K-M Land Co. is imputable to those corporations. See Grounds v. Triple J Constr. Co., 4 Kan.App.2d 325, 333-34, 606 P.2d 484, rev. denied, 227 Kan. 927 (1980).[2]

In State v. Riemers,[3]the North Dakota Supreme Court held that "a corporation is an artificial person and under our past decisions, coinciding with the common law rule, a non-attorney agent may not represent a corporation in legal proceedings."

In Kentucky Bar Association v. Tussey,[4]the Court held that "a corporation is an artificial person, not capable of performing any act except through the agency of others," and as such, a corporation may not draw legal instruments or be represented in court through a nonprofessional officer or employee. Similarly, in Wetzel v. Schlenvogt, the North Dakota Supreme Court held:

A corporation is an artificial person that must act through its agents. United Accounts v. Telad-vantage, 499 N.W.2d 115, 117 n.l (N.D. 1993). This Court has firmly adhered to the common law rule that a corporation may not be represented by a non-attorney agent in a legal proceeding. United Accounts Inc. v. Teladvantage Inc., 524 N.W.2d 605, 606-07 (N.D. 1994) (citing Oahu Plumbing & Sheet Metal Ltd. v. Kona Constr. Inc., 60 Haw. 372, 590 P.2d 570, 572 (1979)). This rule is born out of the necessity to have a court system that functions efficiently. Oahu Plumbing, 590 P.2d at 573 (citing Strong Delivery Ministry Ass'n v. Bd. of Appeals, 543 E2d 32, 33 (7th Cir. 1976)). Attorneys are knowledgeable of the law, the court system, and its rules of procedure, which keep legal matters moving smoothly through the courts. Id. Just as one unlicensed natural person may not act as an attorney for another natural person in his or her cause, an unlicensed natural person cannot attorney for an artificial person, such as a corporation. Id. at 574. [[5] ]

III. Corporations cannot appear in court pro se

While an individual person is allowed to appear pro se, a corporation (although otherwise a "person") is not. The key case on this point in Kansas is Atchison Homeless Shelters Inc. v. Atchison County.[6]There, a corporation sought to appeal an order of the district court without the assistance of an attorney.

Except for out-of-state attorneys, the Supreme Court recognizes only four categories of individuals who may appear in the courts of this state: (1) members of the bar who have licenses to practice law; (2) individuals who have graduated from an accredited law school and have a temporary permit to practice law; (3) legal interns, who are law students supervised by members of the bar responsible for the interns' activities; and (4) nonlawyers, who may represent only themselves and not others. State ex rel. Stephan v. Adam, 243 Kan. 619, 623, 760 P.2d 683 (1988); see State ex rel. Stephan v. Williams, 246 Kan. 681, 690-91, 793 P.2d 234 (1990).

This means, therefore, that corporations can only be represented in Kansas courts by an attorney duly licensed to practice law in Kansas.

Kansas follows the common-law rule that an appearance in court of a corporation by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation. Such a rule helps to maintain a distinction between the corporation and its directors and employees. See 8 A.L.R.5th 653, § 3. This rule was tacitly acknowledged in dicta in U.P. Railway Co. v. McCarty, 8 Kan. 125, 131 (1871), and U.P.RW. Co. v. Homey, 5 Kan. 340, 347(1870).[7]

The Court of Appeals dismissed the appeal in Atchison Homes, based on its reiteration that Kansas follows the common-law rule that a corporation's appearance in court by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation.

Describing the Atchison Homeless Shelters decision, the Kansas Supreme Court later observed:

Because corporations are statutory entities that can act only through directors, officers, employees, or agents, the long-time Kansas rule has been that a corporation may not appear in court by an agent who is not an attorney. U.P. Railway Co. v. McCarty, 8 Kan. 125, 131 (1871); U.P.R.W. Co. v. Homey, 5 Kan. 340, 347-48 (1870).

The Court of Appeals more recently applied this rule in Atchison Homeless Shelters Inc., 24 Kan.App.2d at 455, 946 P.2d 113- There, a corporation sought to appeal an order of the district court without the assistance of an attorney. The Court of Appeals dismissed the case, reasoning that Kansas follows the common-law rule that a corporation's appearance in court by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation.[8]

Later authorities support this conclusion.

It has been the longstanding rule in Kansas that a corporation may not appear in court by an agent who is not an attorney. Atchison Homeless Shelters Inc. v. Atchison County, 24 Kan.App.2d 454, 455, 946 P.2d 113, rev. denied, 263 Kan. 885 (1997). Although we recently modified this rule with respect to matters under the Small Claims Procedure Act in Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 503, 14 P.3d 1149 (2000), we reiterated our approval of the Atchison rule in recognizing that a corporation is an artificial entity without right of self-representation, and further pointed out the administration of justice was efficiently furthered by requiring persons licensed to practice law and familiar with court procedures to represent corporations.[9]

Similarly, in State ex rel. Stephan v. Williams, the Kansas Supreme Court held:

In Clean Air Transport Systems v. San Mateo County Transit Dist., 198 Cal.App.3d 576, 243 Cal.Rptr. 799 (1988), the California court reasoned that "an unincorporated association resembles a corporation more than it does an individual" and thus the rule that a corporation cannot appear in court without a licensed attorney applies to unincorporated associations. 198 Cal.App.3d at 578-79, 243 Cal.Rptr. 799. In State v. Settle, 129 N.H. 171, 523 A2d 124 (1987), the New Hampshire court determined that a statute authorizing a party to appear "in his proper person" refers to self-representation and does not permit an individual to represent an incorporated or unincorporated association. 129 N.H. at 176, 523 A.2d 124. The court also referred to "centuries of historical precedent" and the "overwhelming weight of authority to this day" establishing that a corporation must be represented by an attorney and determined that the same rules...

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