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24 October 2000

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

In May 1997 defendant, Elvis E. Dunson, was charged with twocounts of disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1996)),a Class C misdemeanor. A jury trial was held on May 6, 1998, inwhich the State was represented by Daniel Salafsky, acting in theprosecutorial role of assistant State's Attorney. There is noevidence in the record that Salafsky was involved in initiatingthe criminal complaint. It is undisputed that Salafsky was notin fact duly licensed to practice law in the State of Illinois,and it also appears that Salafsky was subsequently convicted ofvarious crimes, including felonies. Defendant was unrepresentedby legal counsel at his trial and defended himself pro se. Judge Steven L.Nordquist presided at the trial. Defendant was convicted of thetwo offenses, and, on June 1, 1998, the trial court sentenceddefendant to a term of two years' probation with certainconditions attached, including a remittable jail term of 30 days. Defendant was also required to undergo counseling and to performpublic service.

On April 30, 1999, counsel appeared for defendant and fileda motion to vacate defendant's convictions on the grounds that theprosecution of defendant by a person not licensed to practice law contravened Illinois law and denied defendant due process of lawbecause the trial was tainted and illegal. Defendant requestedthat the convictions be vacated with prejudice.

The State argued that, although Salafsky was not authorizedto practice law, defendant had no due process right to beprosecuted by a licensed attorney and that defendant failed toshow how he was prejudiced by the claimed violation.

The trial court (Judge Nordquist) took judicial notice ofSalafsky's conduct and found that there was a "taint that thedefendant's rights were violated." The court determined thatjustice would be best served if the convictions were vacated, andthe court granted defendant a new trial.

In a memorandum decision and order dated July 27, 1999, thetrial court also denied the State's motion to reconsider. Relyingon Illinois law, the court first noted that a person has noprivilege or authority to represent other persons in a court ofrecord unless such person is admitted to the practice of law inthis state. See 705 ILCS 205/1 (West 1998). The court cited thegeneral rule that, where it appears that one not licensed topractice law has instituted legal proceedings on behalf of anotherin a court of record, such action should be dismissed, and if theaction has proceeded to judgment, the judgment is void and willbe reversed. Leonard v. Walsh, 73 Ill. App. 2d 45 (1966). Thecourt also relied on People v. Munson, 319 Ill. 596 (1925), inwhich our supreme court held that an indictment procured throughthe participation of an unlicensed person acting as a State'sAttorney must be quashed.

In its decision and order, the trial court cited a number ofcases holding that a judgment procured by an unlicensed person onbehalf of another party is void. However, the trial courtconcluded that the strict rule of dismissing the cause withprejudice was too harsh and need not be applied in this case. Thecourt determined that the better view under the circumstanceswould be to vacate the judgment and grant a new trial. SeeJaniczek v. Dover Management Co., 134 Ill. App. 3d 543 (1985)(under unique circumstances, strict rule would not be applied todismiss the cause with prejudice so as to defeat the plaintiff'scause of action where the innocent plaintiff never consciouslyelected to be represented by an attorney who had been disbarredunbeknownst to the plaintiff; dismissal with prejudice reversedand cause remanded for further proceedings). We agree with thetrial court's decision in this case, and we affirm.

The State appeals the trial court's decision. We review itpursuant to jurisdiction under Supreme Court Rule 304(b)(3) (155Ill. 2d R. 304(b)(3)).

On appeal, the State first argues that the trial court didnot have jurisdiction to grant relief from a final judgmentpursuant to section 2--1401 of the Code of Civil Procedure (theCode) (735 ILCS 5/2--1401 (West 1998)). The State argues, inrather conclusory fashion, that defendant failed to establish afactual and justiciable claim under this provision and that he wasnot diligent in presenting his request for relief. We disagree. The trial court had jurisdiction to grant relief from the voidjudgment, and defendant presented sufficient and undisputed factsto warrant consideration of his claim. The State ignores thewell-established principle that this is an equitable proceedingand that the trial court has the discretion to grant relief wherethe judgment should not have been entered under the particularcircumstances. The due diligence prerequisites for obtainingsection 2--1401 relief may be relaxed when equity and justice sorequire. See, e.g., Smith v. Airoom, Inc., 114 Ill. 2d 209, 225(1986); Ostendorf v. International Harvester Co., 89 Ill. 2d 273,285 (1982).

Furthermore, a collateral attack on a void judgment is notsubject to the time constraints or due diligence requirements ofa section 2--1401 petition; even where the petition is mislabeled, the courts should be liberal in recognizing a pleading as acollateral attack upon a void judgment. People v. Reymar ClinicPharmacy, Inc., 246 Ill. App. 3d 835, 841 (1993). Here, it isundisputed that Salafsky engaged in the unauthorized practice oflaw in representing the People of the State of Illinois at thetrial, and he thereby deceived the court. A court has theinherent power to vacate a judgment at any time when it wasobtained through a fraud committed upon the court, deception, orcollusion. See Hustana v. Hustana, 22 Ill. App. 2d 59, 64, 67(1959) (stating that the court has inherent power to expunge voidacts from its records).

The State next argues that the trial court erred in vacatingthe convictions based on its misapprehension of the law and that defendant was required to show prejudice in claiming a violationof due process of law to have the judgment vacated. The Stateasserts that, excepting Munson, the cases relied on by the trialcourt involved civil proceedings where the policy of protectingthe lay public from unqualified representation was the centralissue. The State further argues that Munson, a criminal case, isinapplicable because no documents appear to have been signed byDaniel Salafsky, and Paul A. Logli, a licensed attorney and theState's Attorney of Winnebago County, was the source of lawfulauthority for the prosecution and trial of defendant.

In a criminal prosecution, are the People of the State ofIllinois less worthy of protection from incompetent legalrepresentation and charlatans than private persons engaged incivil litigation? We think not. The State appears to ignore theclear import of Munson and grossly misapprehends the common lawof this State in attempting to minimize the deception practicedupon the court and upon the public. The criminal prosecution ofan accused by the State through a representative who isunauthorized to practice law can be neither ignored nor condoned. As we will explain, the unlawful participation of Salafsky taintedthe original trial so that it must be declared a nullity and theresulting judgment void.

The well-settled rule in Illinois is that, where one notlicensed to practice law has instituted legal proceedings onbehalf of another in a court of record, such action should bedismissed, and if the action has proceeded to judgment, thejudgment is void and will be reversed. Janiczek, 134 Ill. App.3d at 545. The rule is applicable not only when corporations arerepresented by nonattorney agents, but it also applies to naturalpersons. Janiczek, 134 Ill. App. 3d at 545 (citing cases);Leonard, 73 Ill. App. 2d 45 (action instituted on behalf ofindividual by a nonattorney agent required vacatur of judgment anddismissal of the suit); Marken Real Estate & Management Corp. v.Adams, 56 Ill. App. 3d 426 (1977) (proceedings were a nullity andjudgment was void where complaint was signed by layperson onbehalf of corporation).

The prohibition against the unauthorized practice of law doesnot differentiate between pretrial and trial practice. Marken,56 Ill. App. 3d 426. This strict rule preventing a layperson fromrepresenting another party operates to void the judgment evenwhere the lay agent merely files the complaint under his or hersignature and all subsequent appearances are made by a dulylicensed attorney. Housing Authority v. Tonsul, 115 Ill. App. 3d739, 740 (1983); see Fruin v. Northwestern Medical FacultyFoundation, Inc., 194 Ill. App. 3d 1061 (1990) (medicalmalpractice complaint signed by Wisconsin lawyer not licensed inIllinois was not unique circumstance justifying deviation fromstrict rule). In Tonsul, the complaint of the plaintiff housingauthority was prepared, signed, and filed by a nonattorney agent. These acts amounted to the unauthorized practice of law. Theproceeding was declared a nullity, and the judgment was declaredvoid despite the subsequent appearance in the cause by theplaintiff's attorney. Tonsul, 115 Ill. App. 3d at 740-41.

In Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731(1997), the reviewing court held that a count in a complaint filedby a layperson on behalf of a corporation was null and void abinitio. This rule applied even where all subsequent appearanceswere made by a duly licensed attorney. The Berg court explainedthat the purpose of the rule is to protect the litigants againstthe mistakes of those ignorant of the law and the schemes of theunscrupulous and to protect the court itself in the administrationof its proceedings from those lacking the requisite legal skills. Berg, 293 Ill. App. 3d at 737; see City of Chicago v. Witvoet, 12Ill. App. 3d 654, 655-56 (1973) (the law requires that all whorepresent others in courts of law be attorneys-at-law; a laypersonmay appear only in his or her own behalf).

Numerous jurisdictions appear to subscribe generally to thenullity or voidness rule or some variation of it. See, e.g.,McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973) (it iswidely held that proceedings in suit instituted or conducted byone not entitled to practice law are a nullity, and if appropriatesteps are timely taken, suit may be dismissed, a judgment may bereversed, or steps of the unauthorized practitioner disregarded); Russell v. Dopp, 36 Cal. App. 4th 765, 42 Cal. Rptr. 2d 768 (1995) (general American rule is that unlicensed person cannot appear incourt for another, and the resulting judgment is a nullity;however, client's failure to discover earlier that her attorneywas unlicensed was not fatal to her motion for new trial; clientdid not knowingly participate in fraud; representation byunlicensed person is fraud upon unknowing client and fraud uponthe court; strictures against unlicensed practice of law are toprotect the public and protection of the litigation processitself; however, reversal does not necessarily follow where itdoes not protect the integrity of the judicial system or vindicatethe interests of the party victimized); Turkey Point PropertyOwners' Ass'n v. Anderson, 106 Md. App. 710, 666 A.2d 904 (1995)(nonlawyer's filing of petition and representation of associationat trial rendered petition as well as trial proceedings a nullity;judgment vacated); Gonsior v. Alternative Staffing, Inc., 390N.W.2d 801 (Minn. App. 1986) (under general nullity rule, appealby one not licensed to represent another would be dismissed whereclient consciously chose to be represented by nonattorney; underthe facts, rule would be applied in future); Niklaus v. AbelConstruction Co., 164 Neb. 842, 83 N.W.2d 904 (1957) (action wasbrought on behalf of municipality by disbarred lawyer whoparticipated in trial; proceeding was a nullity, and the suit wasproperly dismissed; although dismissal is a "drastic remedy" andmay not be required in all cases, the extent of the unlawfulpractice required dismissal in this case); Alliance Group, Inc.v. Rosenfield, 115 Ohio App. 3d 380, 685 N.E.2d 570 (1996) (anyfiling by nonattorney agent of corporation is a nullity and maybe stricken; null and void complaint cannot be corrected; defectis corrected by filing new complaint; counterclaim was valid andsurvived dismissal); see also 7 C.J.S. Attorney & Client