the first case on the called the docket today tuesday march twentieth two thousand and twelve his agenda number seven case number one one two zero four zero downtown disposal services rule in illinois that the practice of law and by not attorneys is impermissible and that non the pro se acts of labor representation being wholly unauthorized are voided initio these principles are sound and this court should adhere to them here today in fact this court has never recognized an exception to the no new rule in both the sperry case and the apple bomb case the court stressed the fundamental difference between non attorneys and attorneys with merely technical impediments to practice and they held that the rule the no the rule did not apply merely specifically because there was no unauthorized practice to begin with in this case mr vento and when he filed complaints on behalf of his corporation as anon attorney was plainly engaged in the unauthorized practice of law so we submit here today that this court should impose a bright line rule that requires courts to treat all acts of a representation undertaken by lay persons excuse me not attorneys as nobodies because that is the only rule that will achieve consistent and predictable treatment of litigants throughout the state of illinois and more important the only rule that will protect the integrity of the jewish judicial process itself are well we wouldn't go so far as argued that there had been any actual prejudice to that in this case our argument would be that if the court does not impose a bright line rule that recognizes as the court did in sperry that inherent in labor representation is a harm to the judge it to the justice system that it will create a case by case approach that will essentially be very difficult to to be unworkable centrally in the circuit courts and will lead to all sorts of different types of decisions and all sorts of different levels of of the law and sound this case we wouldn't argue that there was any serious severe prejudice to the city we would just argue that that this court should going forward make clear that regardless the fundamental the fact of the practice of law regardless of whether there is prejudice the fundamental defect that that is complaint whether it be a formal complaint any sort of lawsuit the decision is one that should be and must be undertaken by trained attorneys because it's arguably at that point is the most important point for legal action meant to be brought to bear  the idea that someone is going to initiate a case without knowing whether it is justified under the law or under a reasonable argument for the extension of existing law or a change of the law is is seriously to determine that this was not the unauthorized practice of law then i agree that this would not necessarily be a ruling on the case but it would be a sea change where the court to hold that the preparation and filing of a complaint even if it's a formal complaint the filing of a complaint in the circuit court is not the is not the practice of law if that were to be held then that would be a fundamental change and we would argue once again the point i was just making that the decision the very decision to decide whether or not to pursue a complaint or file a notice of appeal or do something that initiate a stage of litigation it is very important that the person making that decision is a trained attorney because it is at that point that you need to understand what the law is what you're asking for what sort of principles are involved in a lay person is simply incapable of appreciating that so justice thomas would argue that conceding that the court to hold that this was not an authorized practice than it would then it would fall under appelbaum this would not be in the only real case but we would urge the court not to take that take that profound step and basically rewrite the of what it means to to practice to practice law and i would also would stress that that is essentially the only way that the court could without condoning the on authorized practice of law fine for a from the appellate court in this case the court would have to conclude essentially that what mr ventolin did here deciding to file a mystery review complaints did not constitute the practice of law so i think it's important to recognize that without it if the court is unwilling to take that step then it is very difficult to understand how the court could find for mr vento on and on time disposal in this case now looking at the purposes of  where i'd like to begin my formal remarks now there are two equally important purposes here first is to protect the litigants from from ignorant law practitioners people who don't know how to be lawyers trying to be lawyers but second i would say more important and more germane to this case is to protect the court itself in the administration of its proceedings from those lacking the requisite skills to quote from sperry and i think that that's a very important point that this court should should hew to here today even where there is not prejudice or minimal prejudice to the opposing party or prejudice to the party who is being represented by a lay representation it evitable e inherent in any act of way of late practice is harm to the system itself and were the court to allow a case by case approach and allow the circuit courts to in some cases forgive condone lay practice of law he would end up in the aggregate with a system of justice that was not sufficiently coherent and fair when looked at overall the the best way to have a coherent and fair and consistent approach across the state is to just have a bright line rule and if this court does announce about late ruling going forward there shouldn't or no justice i don't i don't believe so i mean the only the only aspect of that that makes this that comes into play in this was the fact there's a relatively short statute of limitations essentially but i mean the fact remains that this is a complaint being filed in the circuit court and there's really no prints were basis that we could see and and sometimes bozo has not suggested one to carve out an exception whereby complaints for administrative review are somehow  ell in the sense but i would say that the form here is substantial this is a very important rule the formal rule that only attorneys are allowed to practice law in the courts is important enough that even in a case this court we submit this court should not be moved by a case that seems to be no harm no foul because if you start allowing the courts to make a determination that a case by case basis of whether or not there was harm here inevitably going to lead to earlier in the sense that might be the fundament one of the most fundamental things than attorney learns how to do and is capable and competent of doing and is ethically trained to do in an ethical manner is to decide whether or not to initiate a lawsuit in the first place now i'm not necessarily pushing this argument here that it was that there was something unethical about the call about pursuing an administrative review appeal here or that this case was not well founded in law but conceivably in going forward that could very well become a problem where if you allow non attorneys to decide to file lawsuits you're much more likely to get baseless frivolous lawsuits that just are not that are not  justified and the reason why one of the fundamental reasons why only attorneys are allowed to practice law is just that because attorneys are trained to understand if there is a cause of action if there is a  good claim and so were the court to say the practice of law begins when the more substantial acts of legal practice began meaning briefing arguing et then you would be overlooking respectfully the fact that that the very decision to initiate is a very important decision and it's a decision that needs to be informed by legal training w honest with you justice thomas i think that what this shows is this sort of highlights the fact that it is problematic to have not attorneys attempting to practice law because if you look at these four complaints they are captioned pro se complex for mr view as attorneys we know what pro se means and we also know and it's not really being questioned here that a corporation cannot meet really practice pro se because a corporation is an artificial and state so the very fact that mr bent tried to put the square peg in the round hole here shows that he was not prepared to represents his corporation he attempted to to use a form that as an attorney i would have recognized in any other turn he would have recognized just simply was not a flexible was not appropriate this was not a pro se case this was a case where downtown disposal was appealing the minute administrative bodies finding and they needed to have representation and it needs to be an attorney and so i would argue that the form itself is not really misleading it's just it was in a flexible and it and perhaps it wouldn't make sense as a matter of policy for the circuit court clerk in cook county and in the other circuits around the state of illinois to to take more steps to sort of give in just provide information so that such situations are laid but i think at the end of the day there's no real duty under any law i'm aware of for the circuit courts to give the sort of legal advice that would be necessary to to prevent this from happening and this and so the dude in the spaces on the on the tourney he doesn't know that you cannot as the president of perhaps or stockholder of a corporation filed a pro se complaint th question but shouldn't a trial court have a duty to say you can file this which would take care of the problem space as opposed to letting it go down the line for six months weeks or six months until in a tourney under the parents and then on that basis dismissal this court could conceivably instruct or urge the circuit court clerks in the various circuit courts to to undertake that sort of approach into into vet these sort of complaints to make sure need to get an attorney but that would be a unique rule i would submit i mean and then the other case where somebody files a complaint with the actual pro se complaint or complaint with a represent my attorney that has a flaw and it has for some  some reason has had has a problem the court is never there's no duty imposed on the court to sue a sponte say you know you're need to to fix this in order to go forward so it would be a specific exception that the court would be would be imposing and i'm not entirely certain exactly how the court could do that i'm assuming it's within this court's power to to urge the courts to undertake that sort of thing but it would be a special treatment and i think that to be honest with you it may seem harsh but at the end of the day ignorance of the law is no excuse and that is a harsh axiom but it is a generally applicable axiom and i think that in this case it applies it applies well and enterprise fairly because what you have is is a corporation it was a single our understanding was that it was essentially mr ventolin was the corporations or was it was just one person but by choosing to incorporate and by taking the advantages the presumed advantage of incorporation he also on took on himself the recent certain responsibilities and i think it's fair for the court to to assume or to to require a certain i think that's right and i think it's just the nature of the way circuit courts and large circuit courts like the cook county operate inevitably there's going to be a lot of filings every day and a lot of it i mean it's just it's a huge it's a huge operation but i don't think that any of duty should be impose a need be imposed i think that what was said here was sufficient to inform and the form if you look at the record if you look at the actual judgments that mystery of judgments it does inform the party of the right to appeal within thirty five days so the notice is being given and i don't think this court needs to impose on the administrative body presumably not only this it ministry of body but the other m bodies throughout the state that allow lay representation any specific form of instruction they need to give i think that i think that ultimately once again proceeding to the circuit court is a step that th litigant here mr bento needs to needs to realize and be diligent in determining that they're approaching it in their in the correct way and that they're doing the right thing and that they have and that they have counsel if needed so that would be our answer that help  you thank you counsel for the way that cut off subject matter jurisdiction subject matter jurisdiction that was arose out of the administrative review act referred to probably most accurately as special state statutory jurisdiction and followed every instruction in every aspect of the administrative review of law and notwithstanding that he ends up in the circuit court and then from you know rearing its head from out of the common law comes the knowledge the rule and blows this case out of the water he has a lawyer present with him to to fix the case as it goes forward subsequent to the fine of the complaint but the trial judge believing that his hands were tied dismisses the case i disagree with mr norberg about my position being one that advances for a sea change i think the law is  is quite consistent with the decision of the appellate court in this case and i would start with the three you know my supreme court cases starting with the bring them case and then and then of course the epa bomb case all three of those supreme court cases deal with the knowledge the rule in all of them provide circumstances in which the epic ation of the knowledge to rule should not occur because it's too harsh here as mr nordberg said there was no harm there was no prejudice but there was also no date court notwithstanding that the rules purpose was not served here the bring in case was a case in which the  attorney that was involved in bend despair because he had failed to pay his a r d c fee and as a consequence his client decided i think probably to take advantage of the situation that because he had been represented by a disbarred lawyer  the supreme court and as a consequence this court ultimately said that's too harsh an application on the rule and then of course applebaum which is a case that consistent with those other two cases recognized the distinction between registration and licensure and then also paved the way for that the rule should not be applied if its purpose is were not served its purpose or a good apple makes repeated reference to the fact that the attorney in the case before was licensed in contrast in the attorney with an unlicensed individual so it seems at least seems to keep a distinction between licensed and unlicensed individuals with regard to automatic application noting it does there are however other district court cases in which that distinction was not recognized or that was not that where the rules purpose is not served the rule should not be applied but that would really mean we would be looking at the military rule in the context of the particular case i think that that's going to happen inevitably just by if we're going to weigh whether the rules purposes are served which is what apple bomb requires i think we're going to be required to analyze the facts of each case i do not think however that that will open the floodgates to  you know frivolous cases and that the public in the course of them will not be adequately protected the cases in which there are cases in which complaints were filed by nine lawyers and the knowledge the rule was not then also a there is a push the control board case in which the the petition for review was signed by a nine attorney and the pushing pollution control board said not the rule should not be applied  there is also a very recent federal case authored by judge posner in which the bankruptcy petition was filed by the corporate president and in that case both the bankruptcy court the district court of illinois and then ultimately the seventh circuit ruled that the knology rule should not apply here recognizing illinois as a staunch defenders of the knowledge the rule still believe that in that circumstance the need to answer that question to decide this case i do think that complaints are filed that are not the practice of law this court even in its small claims statute two eighty two b permits corporations to file small claim complaints permits their officers nine attorneys to do that now maybe that's still the practice of law but it's an exception for because if the amount is so small perhaps so i don't think the law in illinois is very clear on exactly what constitutes the practice of law as it is in some other  this administrative complaint form came from that we know of record it was at the daily center or sixth sixth floor that isn't so that's not disputed now so wasn't given to him at the time of the here no i think he was directed at the time of the hearing the administrative hearing officer indicated to him that he needed to take action within you need to take action within thirty days and he ended up at the sixth floor of the daily star to collect the form and i think the record shows that the clerk there you know provided him with instructions on completing the form but again he didn't know obviously about the knowledge the rule and followed the administrative procedure that was set out form and then ends up with this harsh result where the jurisdiction of the court is actually cut off by the education of the knowledge the rule in a circumstance where the rules purpose is not served at all you know by the admission of the city  applebum stressed in the decision quote in light of the specific facts in this case we hold that the purposes serve in the specific facts being that there was a licensed attorney and that is we hold  case also is confined by the appellate courts on words are confined to the facts of that particular case so i don't think that apple bottom would need to be opened up further in order to permit point you know if i look at the act itself i'm hard pressed to see that as a practice of law quite honestly it's a form complaint then when the blanks we can look at all kinds of complaints that get filed across the state all of us probably have received traffic tickets that are fill in the blank complaints filled out filled out by a police officer where he is actually selecting the application of the law to the particular situation is that the practice of law there's osha there's d n a or there's housing court there's all kinds of complaints that get filed by nine attorneys that involve the law this complaint when you stack it up against all of those and i make this argument my brief just does not seem like a sophisticated legal endeavor so what does this mean  the question of harm to the public or the court system yes i think that you do although i think in ample bob he was an attorney in active but he was representing the state so we still representing another another person arguably and that was you know deemed to be ok and there are other cases wrongful death cases in which that's the situation to where a nine attorney is involved representing another person so there are already you know openings where individuals are performing illegal acts on behalf of others the key is not to have a bright line absolute rule that drops the door down close hard on the jurisdiction of a court where even in this case for example ventolin had due process arguments of lack of notice to him regarding administrative hearings those claims are swallowed by the efficacious of the naughty role in this case that's just not fair it can't that should not be the case there's a there's other issues in the case also that deal with equal protection and also the practice of law that i'm not sure the court needs to decide whether it it should or wants to or endeavors to is a different issue of course but why a corporation should be treated different than an individual in a circumstance like this involving administrative review i think is a is hope in a good question if the administrative review had been followed by the city to the letter once they got to the circuit court nobody would know if downtown disposal was a corporation or the ventolin was a nine attorney the only way that that came into the record was because the circuit court allowed the record to be opened up to allow additional evidence which is actually against the administrative review a law that you stick with the record that you have so that's why i argued in my brief that the city waves the application of knowledge the rule unless they bring it up at the earliest possible time they should bring it up at the time of the administrative hearing if they want to use that use that weapon in that argument to protect the public good of the court system there's no other way to get it in the record so that it can be addressed by the circuit court at your ministry the s some critical stage where there was a means for that evidence to get into the record and it seems to me it would have to happen at the administrative hearing if not there  then as justice thomas said maybe by the this circuit court indicating this can't be filed if you are if you're a corporation less you have a lawyer then it's at least in the record at that point the earliest possible time to study here months down the road exactly is for exactly how i have to think about that but i'm not sure that i'm advocating a sort of case by case analysis with the state of the existing law and i think that's that's so because the practice of was not clearly defined and so here where i think the practice of law did not occur and then the north the rule gets applied that's one level where this court's holding could could would be instructive if the practice of law was better defined then the application of the knowledge the role would be it could be less on a case by case basis but if we're go to exist with the practice of law relatively undefined then i think that requires us to look at each case and say well is the purpose of the no the rule actually being served here how is the public being protected how is the court system being protected is there is there ignorance of the law is there frivolous litigation and i think a judge would have to examine that you know if i take my marching orders from the trial judge in this case who i think wanted to rule in my favor he raised a certain number of questions that are in the transcript that's attached to the city's brief among those questions is what is the practice of law that is one of his questions that he was puzzling over i think there are cases in other states in which the practice of law is better defined one of them is actually cited in and in the city's brief from pennsylvania the hartness case which actually sets forth factors that ought to be present in the practice of law and i think those are for example the nature of the activity the degree of four military that's involved the minimal amounts that are involved and i think that's consistent with this courts rule rule two eighty two b which actually permits corporation to file claims because it's on his or small long history of not only representation the burden on the public and then what are the rules of evidence and the rules of procedure are involved when i look at those factors and apply yes so you mentioned this before in response to a question are you making somewhat of a lease and they only just want to stop all argument that at this at the service of those complaints the city was put on notice that those complaints were proper yes properly filed in that instance would have some type of obligation to come in and say that these are invalid complaints did i hear you say that i mean i think that's right i didn't use the word stoppel but it certainly fits if you're truly trying to protect the public and the court from you know corporations practicing law without lawyers and that's the point when you see it about to happen that's the point when you want to do something about i think when the administrative compete review complaint is actually served upon you arrest a couple of times whether this is the practice of law and it seems to me you hedged your answer a little bit and i guess i did the impetus for my earlier question if the no to you rule applies to the practice of law then is the real question here was this the practice of law or is the real question the purpose of the military rule it's both but you're right the reason i had just because i want to win the case and if i raise the practice of law it's a big issue just like the equal protection one which i'm not sure you really need to go into those issues so that i can still win the case but you know they are still issues that i think are troubling to the trial judges and the appellate judges as to what is the practice of law and i think that the law in illinois probably not as clear as it could be so yes that's it certainly thank you very much your honors i just have a couple points i'd like to make in rebuttal i'll start at the right of the bent justice card mire i think it's clear that it has always been clear that the filing of any sort of complaint the preparation of complaint is the practice of law in quinlan and  tyson nine hundred sixty six this court made clear that mere simplicity cannot be the guiding light as to whether or not something constitutes the practice of law and i'd like to correct opposing counsel if i may my understanding of this court's rule with regard to small claims practice by corporations is that exactly backwards that actually there is a state statute which i am not sure what that exactly what it is but i believe there's a state statute that provided this court conflicts with a state statute on the issue on the issue of the regulation of the price of law in this court's rules trump the state statutes and my understanding of i'm not a stake in this is that actually this courts rule for beds  practice even in small claims court by corporations and proceeding to justice thomas point that he made about apple bomb i believe that you're absolutely right in reading apple bomb to draw a fundamental distinction between licensed attorneys and not attorneys that were this court to create an exception to the normal the rule in this case it would be the first time the court has ever created such an exception because again spirit after bomb did not create exceptions from the know any rule rather they held that the only rule did not apply because there was no on authorized practice so i think in order for this court to determine that what mr bennett ventolin did is permissible and legally effective it would have to hold that it did not constitute the practice of ra and i think that is the sea change that i was identifying that the court would have to say for the first time that filing preparing a filing a consistent with sperry an apple bomb inherent in the unauthorized practice of law is harm to the system itself and then ordered going forward to create a rule to enshrine a rule that best protects justice as a as an aggregate matter going forward the court should draw a bright line and say there's a fundamental difference between attorneys and non attorneys not attorneys are not authorized to practice law in any act of authorization they undertake it sort of argument here we would we would stress two things first there's no evidence in the record that the city was on notice of the fact that mr ventolin was a not attorney or any of these particulars about this case within the thirty five days following the administrative hearing in this case they filed he filed before complaints about a week before the thirty five days ran approximately twenty eight days after the decision and just once again i have to i have to point out as a practical matter as a practical reality the city is a large operation and we get lots of these type of complaints and it seems backwards to us to put the onus on us in particular and defendants in general to to investigate this and find out whether or not there is this particular problem with a complaint and then put the plaintiff on notice about the problem with the complaint in order to allow them to cure it in a timely fashion it's it's practically unworkable just as i can i can represent as a as a matter of practical reality and also it seems to be backwards we would submit that it the onus is is rightfully on the party bringing the lawsuit to understand the rules and that the ignorance once again comes down to the fundamental axiom that ignorance of the law is not an excuse and should not be excused in this particular instance and would this court to agree with us and issue an opinion that makes clear what we argue is already essentially  clear that the rule applies to every act of of legal representation by not attorney and then going further we don't anticipate that this should be a problem because if because the law will be crystal clear and any mistakes that are made by people going forward it will be it will be our ignorance of the law type situation mr norbert when was it apparent that there was an issue with the filing of the complaint well in few months after the complaint was filed and i don't know so they found out because that is when the complaint actually that is when an attorney for the city actually begins to process the complaint and work and begin to prepare for the hearing because the nature of these type of complaints i don't want to know about the general i want to look at this case when when did you what was it what was discovered when that raised the issue i think the record is is not exactly clear but my understanding is what was discovered was that the complaint was reviewed by an disposal point across a sign by mr bethel and at that point the trial attorneys investigated and determined that he was not an attorney but that's not of record is it it is a record because the would have been subject to administrative review and that is the import of the rules to the point of not looking at anything outside the record is that when you were viewing the history of decision you look at the history of record this was not going to the decision going to something different a threshold question about the complaint oh here's one leading up to mr stroke is made the argument that the record was improperly opened up and that facts were introduced into the record that supported your motion to dismiss right i know that's in the bridge but i just want want to hear since he commented on your comment well our response to that would be that once again the import of the rule that ministers of review is is limited to the record goes to the fact that when you're reviewing the administrative decision the correctness or incorrectness of the administer of decision you're not allowed to look at any evidence that was not presented in the administrative body and not allowed to consider extraneous material in this case the extraneous material which was judicially noticeable but they are the c records had nothing to do and was not brought up in order to support the administrative finding by the city the city did not say you should  h because look he's not an attorney rather what the court said is this complaint should not be entertained because he's not attorney it's a threat was a threshold question so the combination of the judicial judicially notice from nature of the material and the fact that it was not being introduced for the purposes of administrative review but rather for the purposes of determining whether or not the complaint was was was effective is the reason why that argument fails from our perspective when there was at the administered at the administrative you level no we would argue that that the line between the practice of law and the non practice of the law should remain where it is in that sense because where th  court to hold that what occurs in the administrative department ministry of hearings where there are much less formal proceedings there's no rules of evidence rules of procedure and the amounts at stake are often relatively low were the court to require where the court to hold at that concert the practice of law then the next corollary would be the court would have to require attorneys to appear for all parties in this rave review and  what that would do would end up causing ministry of respondents to give up their right to defend themselves because the amount at stake was a row it would make no sense as from prospects if it perspective to have to hire an attorney so this court it has the power to seen as not as not the parts of law and i would also stress that it's not only the dio h that allows a representation in the history of context also that the department employment security does that and i believe a couple other agencies of the state the decision that this sort of activity in the administrative setting concerts of types of law would have a ripple effect far beyond this case your time has expired thank you thank your honour's we'd ask you to reverse the judgment of the  case number one one two zero four zero downtown disposal services versus the city of chicago is taken and revised his agenda number seven