Washington Court of Appeals Clarifies the Pro Se exception for LLC’s

Every litigator has debated this question with his/her partners:  My opponent is acting pro se, and is not an attorney.  Can he represent his LLC against my client?  The arguments went both ways.  In a single member LLC, which in some ways is like a partnership, the member is essentially representing himself.  This is the same as representing oneself in court, which is allowed.  But if a corporate entity is treated as a separate person from its members/shareholders, isn’t that practicing law on behalf of another?

For years, trial judges have gone both ways on this issue, until now.  The Washington Court of Appeals, in Cottinger v. Employment Security Department, 162 Wn. App. 782 (2011), held that a single member LLC needs an attorney; its sole member cannot represent it under Washington State’s pro se exception to the unauthorized practice of law (the pro se exception is what allows non-lawyers to represent themselves in court).   The appellate court reasoned that if one enjoys the benefits of the corporate form, he must also bear the burden, including the requirement of having an attorney in court.  Id. at 790 (“Kirby chose to incorporate and enjoy the benefits of the corporate form.   He must also, however, bear the burdens of that choice.”)

A bright line rule.  We like it.