In this case we must decide whether the longstanding, statutory prohibition against the practice of law by persons not admitted to the bar has been abrogated by the more recently adopted Uniform Statutory Form Power of Attorney Act (Power of Attorney Act).
"In a statutory form power of attorney, the language with respect to claims and litigation empowers the agent to do all of the following:
"(a) Assert and prosecute before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, cross-complaint, or offset, and defend against an individual, a legal entity, or government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief.
"(b) Bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae.
"(c) In connection with litigation:
"(1) Procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use any available procedure to effect, enforce, or satisfy a judgment, order, or decree.
"(2) Perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation.
"(d) Submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation.
"(e) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon whom process directed to the principal may be served, execute and file or deliver stipulations on the principal's behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive and execute and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation.
"(f) Act for the principal with respect to bankruptcy or insolvency proceedings, whether voluntary or involuntary, concerning the principal or
"(g) Pay a judgment against the principal or a settlement made in connection with litigation and receive and conserve money or other thing of value paid in settlement of or as proceeds of a claim or litigation."
For the following reasons we conclude, despite the broad language, the Power of Attorney Act does not permit attorneys in fact to engage in legal activities clothed only with a power of attorney.
FACTUAL AND PROCEDURAL BACKGROUND
Tina Posey signed a printed form giving Terry Drake a power of attorney permitting him to act for her in matters relating to judicial claims and litigation as stated in section 2494. Representing himself on the pleading as the attorney in fact for Tina, Drake attempted to obtain a family court stay-away order, order to show cause and temporary restraining order prohibiting Paul Posey from contacting Tina or coming within 100 yards of Tina's home. When he appeared, a court commissioner told him only Tina or her lawyer could appear to obtain the order and refused to let Drake make the appearance.
Susanne Forster also signed a form giving Drake a power of attorney for claims and litigation. Purporting to be attorney in fact for Susanne who was herself "in pro. per." in her dissolution action, Drake filed a document entitled "amicus curiae" brief urging placement of son Jason with Susanne, and attempted to appear at the hearing on Susanne's behalf. Judge Mason refused to let Drake make the appearance, and ordered Drake's document stricken, noting it was more an unverified declaration extolling Susanne's parental virtues than a legal brief.
Drake's petition for writ of mandate asks us to order the lower court to honor his authority under the Power of Attorney Act, accept his amicus curiae brief for filing, and recalendar the child placement hearing. We issued an order to show cause.
Drake's position is rife with problems. As a preliminary matter aside from the procedural irregularities,
Drake suggests, however, that he may practice law on behalf of in propria persona litigants since that portion of the Power of Attorney Act setting forth powers with which a designee may be endowed expressly authorizes him to "[a]ssert and prosecute before a court or administrative agency a claim [or] cause of action" for his principals (§ 2494, subd. (a)), "[b]ring an action to determine adverse claims, intervene in litigation and act as amicus curiae" (§ 2494, subd. (b)), and "appear for [his principals] ... in connection with the prosecution, settlement or defense of a claim or litigation" (§ 2494, subd. (e)).
We should not interpret statutes in a manner that will result in "mischief or absurdity." (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18 [194 Cal.Rptr. 722].) Accepting Drake's construction invites just such a result: his interpretation of the Power of Attorney Act is inconsistent with laws prohibiting the unauthorized practice of law and would sanction criminal conduct. (Bus. & Prof. Code, §§ 6125, 6126.)
Nothing in the Power of Attorney Act changes this rule. As the California Law Revision Commission recognized, the authority of attorneys in fact under section 2494 is restricted — it is "subject to conditions of fact and law that exist outside this chapter." (Recommendation Relating to Uniform Statutory Form Power of Attorney Act (Dec. 1989) 20 Cal. Law Revision Com. Rep. (1990) p. 401.) One such law existing outside the chapter is the State Bar Act's prohibition against the practice of law by nonlawyers.
Moreover, as stated in a recent Attorney General opinion, none of the enumerated powers in section 2494 expressly allows attorneys in fact to practice law. (76 Ops.Cal.Atty.Gen. 208 (1993).) "[N]othing in the language of the statute allows the agent to undertake such functions as preparing legal pleadings and arguing matters before a judge or jury. We note in this regard that section 2494 authorizes the agent to `verify pleadings' and to `contract and pay for the preparation ... of... briefs....' If the agent's powers with regard to the preparation of legal pleadings and briefs were plenary, the Legislature presumably would not have specified the more limited acts of verifying pleadings and paying for briefs." (76 Ops.Cal.Atty.Gen., supra, at p. 212, italics in original.) Similarly, section 2494 authorizes an attorney in fact to "`[p]erform any lawful act'" in connection with litigation but it is unlawful — a misdemeanor under Business and Professions Code section 6126 — for an unlicensed individual to practice law. (76 Ops.Cal.Atty.Gen., supra, at p. 212.)
As a postscript, we note that Drake's new constitutional arguments — raised as they are for the first time in the litigation by way of the reply brief in the writ proceeding — are not properly before the court. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 496, p. 484.) In context, his arguments are (1) a free-ranging claim that his rights are violated by legislative restrictions on his practice of law; and (2) an assertion that in propria persona litigants' First Amendment rights to speak for themselves through nonlawyer attorneys in fact are violated. The first argument has been rejected repeatedly. (In re Admission to Practice Law (1934) 1 Cal.2d 61, 67 [33 P.2d 829]; Brydonjack v. State Bar (1929) 208 Cal. 439, 442-443 [281 P. 1018, 66 A.L.R. 1507].) The second argument is one only the in propria persona litigants have standing to raise. Neither Tina nor Susanne is a party to this proceeding.
The petition is denied.
Froehlich, J., and Nares, J., concurred.