Topic: Professions & Institutions

When Enforcement is Unethical

There are times when the ethical thing is to let a violation of the rules go unpunished.

One of those violations occurred several years ago, when a community college adjunct professor named Brian Woods sued the Akron, Ohio school board on behalf of his autistic son Daniel, and handled the case himself. Woods won several concessions regarding his son’s education and about $160,000, but the Ohio Bar Association wasn’t impressed. Or maybe it was very impressed, for it sued Professor Woods in court for practicing law without a license.

Professor Woods indeed practiced law without a license. Any citizen can represent himself or herself in court; this is called representing oneself pro se. Pro se litigants are on the rise, and most states even provide for lawyers to give pro se litigants assistance. It is a Constitutional right. But just as a lawyer from another state cannot simply show up and represent a citizen in a state where the lawyer isn’t licensed, a non-lawyer from that state can’t do it either. Practicing law, like practicing medicine and being an airplane pilot, requires certification to protect the public from unskilled people drawing up bad wills, doing deadly brain surgery, and flying 747s into hilltops. The Ohio Bar, a professional association that along with the courts determines who can practice law in Ohio, has a legitimate principle to protect here, which is that anyone can’t just represent themselves as a lawyer and start representing litigants in court. Competent legal representation requires more than just brains; it requires experience and training, and a glut of non-lawyers in court would not only compromise justice, it would increase appeals, slow down trials, and generally be bad for everyone. In a profession requiring certification, bad lawyers can be punished, suspended, or thrown out of the profession. Without certification, ensuring competent, honest and ethical lawyers becomes more difficult, if not impossible. But the Bar, like all trade associations, has an interest in more than just protecting the public—it also wants to protect its members’ bread and butter. And it appears that it is this motive, and not the first, that provoked the Bar’s law suit against Brian Woods.

Woods made it clear why he represented his son: he felt there was no other choice. His son obviously could not represent himself; autism is a serious handicap in court. Woods was able to find no lawyer whom he could afford, and that left him to play lawyer-for-a-day. The Bar was unmoved, but the Ohio Supreme Court, thinking a bit more clearly, signaled their legal colleagues that the lawsuit was a loser and a public relations disaster in the making. The Ohio Bar apologized and withdrew the suit, but hinted darkly that if the U.S. Supreme Court upholds a judge’s decision in a remarkably similar Ohio case, it may go after Woods again. In that case, the federal appeals court in Cincinnati had ordered Jeff and Sandee Winkelman, representing their autistic son in a suit against the Parma, Ohio school district, 30 days to find a lawyer or have their case dismissed.

“People who are not attorneys cannot represent the interests of another in a court of law,” Christina H. Peer, a lawyer for the Parma district, said in a press interview. This is especially true where disabled minors are involved, Peer argued, and in the interest of the minors courts should be reluctant to let non-lawyers, even parents, speak on the minors’ behalf. “Do they have the skills,” Ms. Peer asked rhetorically, “to adequately represent the rights of their children?”

Good pointÂ…except that Brian Woods won, so he must have had those skills, right, Ms Peer? In fact, Woods has said that he thinks that’s why the Bar came after him. “The issue is,” he said, “to shut me up so that I can’t beat them again.”

Okay, let’s calm down, everybody. There are good policy reasons for lawyers to be certified and licensed, and to enforce the rules against the unauthorized practice of law. But while there is no special “handicapped minor” provision in these rules, the time to waive enforcement has clearly arrived when an autistic child’s father takes up his case and wins. The public has not been harmed. The unlicensed practitioner was a parent, not some fraudulent charlatan. The client didn’t have the option of representing himself. There is no danger that Brian Ross is going to take on other clients and compete with Ohio Bar members. Justice was served, and even if the case created a “parent of an autistic student” exception to the prohibition against the unauthorized practice of law, who cares? The bottom line ethically is that Brian Woods did nothing wrong by helping his son under these circumstances.

The Ohio Bar should have applied the ethical values of compassion, empathy, and fairness, not to mention common sense. Instead, its conduct looked petty and greedy, and sparked a dangerous debate in Ohio and around the country about whether lawyers should have to be licensed at all. They should, but they should also be able to recognize that strictly enforcing rules isn’t the only way to serve the public.

Sometimes the public is better served by ignoring the rules. This was one of those times.

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