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January 7, 1997

Lawyers on Trial for Lawyering

by David Underhill

When a case goes wrong in court it's usually the client who has to pay a settlement, or pay a fine, or go to jail - not the lawyer. But that's what happened to Larry D. Simpson last month at Mobile Government Plaza.

He was representing a man in a divorce proceeding before judge Rosemary deJuan Chambers. She and the opposing counsel questioned his credentials as a lawyer. Simpson's answers didn't please them. He was arrested, handcuffed, fingerprinted, mug shot, and booked on a charge of practicing law without a license. A few days later Jerry H. Pogue was also arrested.

Simpson's next appearance in court will be as a defendant on January 7; Pogue is docketed for January 14. If convicted, they could be jailed for six months and fined $500.

Their crime, evidently, is that their names are on a document called a power of attorney. It was signed by the man seeking a divorce, Ludie Rowe, and it appoints them "my true and lawful attorneys ... to talk and answer for me, to present information and evidence for me ... to represent me totally and completely ... to do all acts necessary and proper to be done in and about the Divorce Action's judicial process."

A power of attorney is a very common legal instrument. It can authorize someone to act on another's behalf in a specific matter, such as selling a piece of property. Or it can have a broad scope and long duration. But the holder of a power of attorney usually exercises it outside courtrooms. Rarely does anyone go before a judge and attempt, with a power of attorney but without membership in the state bar association, to argue a case. Now Simpson and Pogue know why.

The formal charge against them reads that on or about December 10, the day of Rowe's divorce proceeding, they "did act as regular licensed attorney or did aid or assist another person in unauthorized practice of the law." Pogue denounces this as "a total lie and fabrication." He says he never even entered Government Plaza in December. But his name on the power of attorney, apparently sufficed for arrest.

Simpson vehemently denies ever portraying himself to Rowe or the judge as a regular licensed attorney. He says he and Pogue told Rowe plainly from the start that they were not members of the Alabama Bar Association; nor did they file any documents with the court indicating that they are members.

But they do present themselves as members of the Universal Bar Association, a group founded several years ago by a dean at Miles Law School in Birmingham, Dr. Charles Murry, recently deceased. To become a member, according to Simpson, you must have a law degree, must submit transcripts to verify this, and may or may not have taken the Alabama bar exam. But if you took it and failed, you can redeem yourself by five years of teaching paralegal skills.

Simpson graduated from the University of Alabama and Miles Law School. Pogue graduated from Alabama State and John Marshall Law School in Atlanta. He has done post-graduate legal studies at Harvard, William and Mary, and Washington in St. Louis. For decades he has dealt with all manner of legal hassles brought to the door of his house in Prichard. Lately he and Simpson have continued-this practice as Universal Bar Association members.

Divorce has not been their usual work. More often they take the simple role of the ancient scribe: someone familiar with the obscure marks on a received piece of paper who can respond with equal and effective obscurity. To folks uneducated in the law (and often with little school learning at all), the arrival of an official-looking document rouses alarm and bafflement. Ignoring it is risky, a downtown law firm is costly. Take it to a street lawyer. For cheap he can dash off something to hold trouble at bay awhile.

Sometimes Pogue and Simpson get to perform like lawyers, legitimately. Parallel to the familiar courts is another barely visible system of administrative tribunals that hear appeals about social security eligibility, work place discrimination, disability benefits, and such. Somebody bringing a case to these tribunals can handle it alone or can choose anyone, attorney or not, as a representative. Many people, suspicious of standard lawyers or their fees, have chosen Simpson and Pogue - who have waged full legal battle, orally and on paper, and often have won.

Pogue says that at the beginning of every such case he takes care to say, "I am not a member of the Alabama Bar Association. I have never taken the Alabama bar exam." Yet to the victorious clients, Simpson and Pogue are genuine attorneys. They have proven it in action.

Apparently the judges and clerks of these administrative tribunals also consider them attorneys. They have gotten numerous documents and letters addressing them as such. Many other official bodies, local to national, have done the same.

But the Mobile DA's office seems to be saying: no matter how much legal education you have stuffed into yourself ... no matter how much experience you have gained drafting documents and arguing cases in other matter how successful you have been ... no matter how many people trust your ability and dedication and want you to represent them ... nevertheless, you cannot be a lawyer here.

Why? Because you have not passed the bar exam and joined the Alabama Bar Association. (ignore the various exceptions already in effect and press on with the argument.) And why is this essential? Because without the bar exam and the Bar Association there would be no standards and no enforcement of them. Anybody could claim to be a lawyer, could recruit clients, could draft and submit faulty documents, could present a case in court without knowing proper procedures and botch the proceedings. The pitiful ,duped clients would suffer, perhaps ruinously, and the delivery of justice would bog down in a muck of confusion and incompetence.

Suppose all this is true. Then, by the same reasoning, people should be prohibited from representing themselves (in legalese prose, for self). The right to proceed pro se is recognized at every level; at some, such as small claims courts, self-representation is more frequent than attorneys. By bar exam and Bar Association standards, most of these pro se operators are all thumbs. They probably fumble a lot, especially on their early efforts. But they learn and get better. Justice is served by allowing pro se actions. Nobody advocates abolishing them.

If the judicial system can tolerate the presence of pro se amateurs, it can make room for additions with as much legal training as Pogue and Simpson. Refusing to let such lawyers into court doesn't just deny them the ability to exercise their profession. It also denies citizens the ability to decide who shall represent them in legal affairs.

Their divorce client gave them power of attorney to act for him. Nowhere does the Constitution say that, when exercising the right to assistance of counsel, your choice must betaken solely from the membership roster of the Bar Association.

The Harbinger, Mobile, AL