Certiorari Denied, No. 31,410, December 30, 2008
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-018
Filing Date: September 16, 2008
Docket No. 28,590
BURR E. LEE, JR. and RUTH C.
LEE SELF-DECLARATION OF
TRUST, by and through itself
and/or by and through RICHARD
A. VAN AUKEN, trustee,
Plaintiffs-Appellants,
v.
CATRON, CATRON & POTTOW, P.A.,
FLETCHER R. CATRON, and
KAREN AUBREY,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge
Richard A. Van Auken
Santa Fe, NM
Pro Se Appellant
Law Office of Jack Brant, P.C.
Jack Brant
Albuquerque, NM
for Appellees Catron, Catron & Pottow, P.A.,
and Fletcher R. Catron
Dixon, Scholl & Bailey, P.A.
Gerald G. Dixon
1
Jennifer M. Rozzoni
Albuquerque, NM
for Appellee Karen Aubrey
OPINION
SUTIN, Chief Judge.
{1} Richard Van Auken, Trustee of the Burr E. Lee, Jr. and Ruth C. Lee Self-Declaration
of Trust (the Trust), appeals pro se from an order of the district court dismissing without
prejudice the complaint filed by the Trust. Defendants moved to dismiss this appeal on the
basis that Van Auken could not represent the Trust on appeal. In our calendar notice, we
proposed to dismiss the appeal. Both parties have responded. We have considered the
arguments made by the parties and dismiss the appeal.
{2} In our calendar notice, we pointed out that we had previously required that the Trust
be represented by counsel. In so doing, we relied on Martinez v. Roscoe, 2001-NMCA-083,
¶¶ 7, 15, 131 N.M. 137, 33 P.3d 887, where we required a limited liability company to be
represented by counsel. The basis of the holding in Martinez was that an artificial entity
could not be represented in court by a person who is not a licensed attorney. Id. ¶¶ 5, 7.
{3} Van Auken argues that there is no basis on which to conclude that a trust is a legal
entity that must be represented by counsel. He quotes treatise language stating that a trust
is not an entity. Loring: A Trustee’s Handbook 13 (2006 ed.). He also quotes out-of-state
authorities supporting the notion that a trust is not a legal entity, but rather a fiduciary
relationship that acts solely through the trustee. It is true that a trust is not a legal entity and
that the trustee is the proper person to sue or be sued on behalf of the trust. See NMSA
1978, § 46A-8-816(X) (2003) (describing trustee’s power to prosecute or defend action to
protect trust property). However, simply because a trust is not a legal entity that can sue or
be sued apart from its trustee does not mean that the trustee can represent the trust pro se.
{4} Whether or not a trust is a legal entity does not answer the question. The answer
turns upon the trustee himself. It is clear that the trustee is to administer the trust “solely in
the interests of the beneficiaries.” NMSA 1978, § 46A-8-802(A) (2003) (amended 2007).
Thus, a trustee is acting on behalf of others who are beneficiaries of the Trust property. Van
Auken argues that the beneficiaries have no title to, power over, or duty to the Trust
property. That is true. However, Van Auken, as trustee, manages the Trust properties for
the benefit of the beneficiaries. When he acts for the Trust, he acts for others than himself.
{5} Our case law is clear that “[t]he practice of law is usually interpreted to entail the
representation of others.” United States v. Martinez, 101 N.M. 423, 423, 684 P.2d 509, 509
(1984). The representation of parties before judicial or administrative bodies constitutes the
practice of law. State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc., 85 N.M. 521,
2
526, 514 P.2d 40, 45 (1973). One who is not a licensed attorney cannot represent others in
court. See Chisholm v. Rueckhaus, 1997-NMCA-112, ¶ 6, 124 N.M. 255, 948 P.2d 707.
Because there are beneficiaries of the Trust other than Van Auken himself, his representation
of the Trust results in him representing the interests of others, which is the unauthorized
practice of law. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697-98 (9th Cir.
1987); Zeigler v. Nickel, 75 Cal. Rptr. 2d 312, 314-15 (Dist. Ct. App. 1998). Where one is
acting as a fiduciary for the benefit of others, he may not present arguments to a court pro
se. See Steele v. McDonald, 202 S.W.3d 926, 928 (Tex App. - Waco 2006). It is only where
a trustee is the sole beneficiary that the trustee may represent a trust or an estate pro se. See
Tradewinds Hotel, Inc. v. Cochran, 799 P.2d 60, 66 (Haw. Ct. App. 1990).
{6} Van Auken argues that in this case an attorney would be unable to properly represent
the Trust. He apparently bases this argument on his past experiences with attempts to retain
counsel. He argues that licensed attorneys as a class in New Mexico refuse to represent him
and the Trust against other attorneys who he alleges permitted Trust property to be
improperly removed from the Trust. He argues that that refusal acts as a defense against his
complaints, preventing him from exercising his duty of loyalty to the Trust. However,
simply because Van Auken has been unable to find counsel to represent him does not allow
him to engage in the unauthorized practice of law.
{7} For the reasons stated herein and in the notice of proposed disposition, the appeal is
dismissed.
{8} IT IS SO ORDERED.
JONATHAN B. SUTIN, Chief Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
CELIA FOY CASTILLO, Judge
Topic Index for Lee v. Catron, No. 28,590
AE Appeal and Error
AE-DA Dismissal on Appeal
AE-PR Pro Se Representation on Appeal
AT Attorneys
3
AT-UP Unauthorized Practice
CP Civil Procedure
CP-PS Pro Se or Self Represented Litigant
WL Wills, Trust and Probate
WL-TG Trusts, General
4