The opinion of the court was delivered by: MARY JOHNSON LOWE
Before this Court is the motion, dated October 28, 1992, of defendant Absentee Shawnee Economic Development Authority ("ASEDA") for withdrawal of its counsel of record, Doyle & Bachman, and its local counsel, Bass & Ullman. According to the motion, "ASEDA desires to proceed pro se in this matter." Def.'s Mot. for Withdrawal and Displacement of Attorneys of Record, at 1.
Plaintiff Fraass Survival Systems, Inc. ("FSS") opposes ASEDA's motion to withdraw for three reasons: first, that a corporation cannot appear pro se; second, that the motion is really an attempt to have a new law firm -- designated in the motion as a recipient of correspondence -- act as ASEDA's counsel although not admitted in this District; and third, that the motion is really an attempt to elicit sympathy from this Court in its evaluation of a pending Report and Recommendation.
FSS's first objection is the most serious. It is well settled, as FSS points out, that a corporation cannot appear pro se. See, e.g., Dow Chem. Pac. Ltd. v. Rascator Maritime, S.A., 782 F.2d 329, 336 (2d Cir. 1986). This rule was extended to partnerships in the Second Circuit's most recent decision on the subject. Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305 (2d Cir. 1991). Moreover, the Eagle court cited with seeming approval decisions of other courts extending the rule still further to cover additional types of unincorporated associations and organizations.
The problem with FSS's argument is that ASEDA is not a corporation, partnership, or unincorporated association, but an agency of the Shawnee tribal government. That presents a novel question: whether an Indian tribal government must be represented by counsel in this Court. There do not appear to be any precedents on point either in this circuit or elsewhere.
An initial concern is whether the judiciary has any business fashioning rules in this area. The Second Circuit observed in the Eagle decision that courts have interpreted 28 U.S.C. § 1654, which ensures that individuals may appear pro se,
"to preclude a corporation from appearing through a lay representative." 926 F.2d at 1308. It is possible, then, that § 1654 not only guarantees pro se representation to individuals, but denies it to others. If that were the case, then the judiciary would lack discretion to permit pro se appearances by non-individuals.
There are, however, reasons to doubt that § 1654 has preclusive force with respect to all non-individuals. First, the Second Circuit's precedents are not absolutely clear. The Second Circuit's discussion in Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20 (2d Cir. 1983), is in keeping with separate treatment of the statute (§ 1654) and the judicial rule (against pro se appearances by corporations): "Although 28 U.S.C. § 1654 (1976) provides that 'in all courts of the United States, the parties may plead and conduct their own cases personally or by counsel,' it is established that a corporation, which is an artificial entity that can only act through agents, cannot proceed pro se." Id. at 22 (citing cases that relied on judicial reasoning, not statutory interpretation). Thus, corporations are prevented from appearing pro se despite § 1654, not because of it.
Similarly, another Second Circuit decision affirmed a district court that found an exception to the rule against pro se corporate appearances. In re Holliday's Tax Services, Inc., 417 F. Supp. 182, 183 (E.D.N.Y. 1976) (sole shareholder of bankrupt corporation permitted to proceed pro se), aff'd mem., 614 F.2d 1287 (2d Cir. 1979). If § 1654 were definitive, then such judicial exceptions could not be created.
The Eagle decision did not overrule these precedents, and is therefore best understood as holding merely that § 1654 does not guarantee partnerships the right to appear pro se, rather than as holding that § 1654 precludes partnerships and all other non-individuals from appearing pro se.
A second reason to doubt that § 1654 precludes all non-individual pro se appearances is that the statute itself states no such thing. Section 1654 is a continuation of longstanding legislation permitting parties to conduct cases "personally,"
and only judicial interpretation has narrowed the statute's benefit to individuals.
It would require an extension of that judicial interpretation to hold that the statute precludes all non-individual pro se appearances. Although a court might reasonably interpret Congress's silence in enacting § 1654 as approval of the settled judicial rule against corporate pro se representation,
see Evans v. United States, 119 L. Ed. 2d 57, 112 S. Ct. 1881, 1890 (1992) (placing significance on "the silence of the body that is empowered to give us a 'contrary direction' if it does not want the common-law rule to survive"), ratification by silence could not extend to unsettled (indeed unbroached) issues like the one before the Court.