Could a nonlawyer office manager represent doctors or their unincorporated association in Texas small claims court?

Texas AG Opinion JM-602: Nonlawyers in Small Claims Court

Plain-English summary

JM-602 concluded that a doctor could represent himself in the Texas small claims court system then in force. The opinion read the statute's statement that a person "may" be represented by an attorney as allowing personal appearance without a lawyer. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

A nonlawyer employee could appear for an unincorporated association of doctors, provided the employee was not employed solely as a collection agent. The opinion reasoned that an association, like a corporation, had to act through an agent or representative. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

The employee could not represent an individual doctor. JM-602 distinguished an association that necessarily acted through agents from a natural person who could appear personally. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected in 1986

Doctors with individual claims: JM-602 said a doctor could appear personally but could not send the association's nonlawyer employee to represent the doctor as an individual. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Unincorporated medical associations: The opinion allowed an employee to appear for the association in small claims court if the employee was not merely a collection agent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Medical office managers and collection staff: Their role mattered. An employee acting for the association could appear under the opinion's reasoning, but a person employed solely to collect claims fell outside that result. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Common questions

Could a doctor represent himself?

Yes. JM-602 concluded that the doctor could appear personally in small claims court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Could the office manager represent the group practice?

Yes, if the practice was the unincorporated association described in the request and the employee was not employed solely as a collection agent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Could the same employee represent one doctor personally?

No. The opinion said the nonlawyer employee was not authorized to represent an individual doctor who belonged to the association. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Why did the opinion treat the association differently from a doctor?

JM-602 reasoned that a natural person could act and appear personally, while an association always had to act through an agent or representative. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Background and statutory framework

The request concerned doctors who had formed an unincorporated association and hired an employee to manage their offices. The employee prepared sworn claim statements and appeared at small claims hearings for the doctors or the association. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Government Code section 28.003 described small claims jurisdiction and said a person could be represented by an attorney, while section 28.012(a) allowed a claimant or personal representative to appear and file a sworn statement. The opinion read those provisions against the State Bar Act's general restriction on nonlawyers practicing law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

JM-602 emphasized the informal purpose of the small claims forum and prior opinions allowing corporations to appear through nonlawyer employees. It extended that reasoning to an unincorporated association, subject to the collection-agent restriction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Key source language

JM-602 stated:

"A natural person can act and appear for himself, but a corporation and an association must always act through its agents or representatives."

"An employee of an unincorporated association may not appear on behalf of an individual doctor."

"The provision also authorizes an employee of an unincorporated association to represent the association in the small claims court so long as the employee is not employed as a collection agent."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Citations and references

Statutory provisions:

• Government Code sections 28.003 and 28.012(a)
• V.T.C.S. article 320a-1, including section 10(a) (State Bar Act)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0602
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0602.pdf

Original opinion text

December 30, 1986

Eonorable Mike Driscoll
Earris County Attorney
1001 Preston, Suite 634
Bouston, Texas 77002

Opinion No. JM-602
Re: Whether a physician may be
represented by his authorized
agent in small claims court

Dear Mr. Driscoll:
You have informed us that a group of doctors has formed an unincorporated association, and they have hired an employee to manage their offices. One of the duties of the employee is to make a sworn statement as to each claim and appear in small claims court at a hearing to present the case on behalf of the individual doctor or the association. You argue that this use of the employee to appear in small claims court on behalf of the association or the individual doctor is contrary to the general rule that representation of others before a court constitutes the practice of law; and, it may only be done by attorneys licensed by the State Bar of Texas. V.T.C.S. art. 320a-1 (State Bar Act). In that regard you ask the- following questions:

1. Whether a doctor’may represent himself in
   small claims court?
2. Whether a doctor may be represented by an
   authorized agent in small claims court?
   Section 28.003 of the Government Code which governs jurisdiction of the small claims court provides as follows: (A) The small claims court has concurrent jurisdiction with the justice court in actions by any person for the recovery of money in which the amount involved, exclusive of costs, does not exceed $1,000. (b) An action may claims court by:

not be

brought

in

small

(1) an assignee of the claim or other
person seeking to bring an action on an
assigned claim;

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the

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person primarily or secondarily
(2) a
engaged in the business of lending money at interest; or (3) a agent.

collection

agency

or

collection

(c) A person may be represented by an attorney in small claims court. (d) This section does not prevent a legal heir from bringing an action on a claim or account otherwise within the jurisdiction of the court. (Emphasis added). In response to your first question, a doctor is authorized under. subsection (c) to represent himself in small claims court. The legislature's use of the term "may" in subsection (c) implies that the use of an attorney in small claims court is not mandatory; and, therefore au individual may a&so represent himself. Also relevant 'to these issues is subsection (a) of section 28.012 of the Government Code which provides: To institute an action in small claims court, the claimant or a personal representative of the claimant must appear before the judge and file a statement of the claim under oath. (Emphasis added). Consequently, we believe that the implications to be drawn from subsection (c) of section 28.003 and subsection (a) of section 28.012 mean that a non-lawyer may represent himself in small claims court. Prior to 1985, the law governing small claims court was codified in article 2460a. V.T.C.S., which is now codified in sections 28.003 and 28.002 of the Government Code as quoted above. See Acts 1985, 69th Leg., ch. 480, 926(l), at 4085, eff. Sept. 1, 1985rThe Government Code was enacted as a part of the state's continuing statutory revision program in which the legislature did not contemplate any See Gov't. Code 51.001. Therefore, former substantive change. and the above quoted provisions of the article 2460a. section7 Government Code explicitly provide that all persons, firms, partnerships, associations or corporations engaged, either primarily or secondarily, in the business of lending money at interest, assignees of actions, and collection agencies and agents are precluded from maintaining actions on behalf of their clients in small claims courts. The purpose for the small claims court was to provide a forum to place justice within the reach of litigants, who were previously

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denied such relief because litigation expense and delay overshadowed their small claims. See generally Kosmin, Leslie G., The Small Claims Dilemma, 13 Eous. L. Rev. 934 (1976); see also Note, The Small Claims Court, 1 S. Tex. L. J. 80 (1954). Its purpose was not to provide a form whereby collection agents and agencies could circumvent the requirement of the State Bar. The brief facts you have submitted suggest that the employee may be acting as a collection agent for the individual doctors or the unincorporated association. It is clear that the only non-licensed individual who way represent another individual in small claims court See Gov't. Code is a "personal representative" of a claimant. 928.012(a). For the reasons discussed below, we believe that the employee may represent an association in small claims courts0 long as the employee is not employed merely as a "collection agent." We are.unable to find any judicial decision which considers the question of whether an unincorporated association may be represented by a non-lawyer employee in small claims court. However, the purpose of the small claims court and the policy which justify the representation of corporations by laymen in small claims kourt are applicable to unincorporated associations. Attorney General Opinions H-538 (1975);
.C-82 (1963). The Texas Constitution authorizes the legislature to establish inferior courts, such as the small claims court, and "prescribe the jurisdiction and organization thereof." Tex. Const. art. V, 111; Earris County v. Stewart, 41 S.W. 650 (Tex. 1897); See also E, Texas Courts of Exceptional Jurisdiction and Organization Constitutionality - Small Claims Courts, 9 Tex. L. Rev. 388 (1930). On the other hand, the legislature has enacted section 10(a) of article 320a-1, V.T.C;S., the Staie Bar Act, which prohibits "[a]11 persons not members of the State Bar . . . from practicing law. . . .ll V.T.C.S. art. 320a-1, 510(a). Although there appears to be an apparent conflict between allowing the non-lawyer employee to represent an association in small claims court and the State Bar Act, we believe that the purpose of the small claims court and the policy which justify the representation of corporations by laymen justifies this exception to the State Bar Act. The legislature intended the small claims court to be a “laymen’s” court; Kosmin. Leslie G., The Small Claims Dilemma, 13 Eous. L. Rev. 934 (1976). It is to function as a tribunal wherein the judge has the duty to develop the case. Gov't. Code 528.034. The hearings are informal and its sole objective is to "dispense speedy justice between the parties." Gov't. Code 128.033(d). This office has previously held that these are legitimate reasons to allow a corporation to be represented by a non-lawyer employee in these proceedings. Attorney General Opinions H-538 (1975); C-82 (1963). Although the rule is different when it comes to allowing individuals to represent other individuals in the court, a corporation and an association are essentially different from a natural person. A natural person can act

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and appear for himself, but a corporation and an association must always act through its agents or representatives. Accordingly, we believe that because of the nature of the small claims court, the legislature intended to allow an employee of an unincorporated association of doctors to appear in small claims court on behalf of the association, so long as the employee is not employed solely as a collection agent. An employee of an unincorporated association may not appear on behalf of an individual doctor. SUMMARY Subsection (c) of section 28.003 of the Government Code authorizes a doctor to represent himself in small claims court& The provision also-authorizes an employee of an unincorporated association to represent the association in the small claims court so long as the employee is not employed as a collection agent. However, the non-lawyer employee of the unincorporated association is not authorized to represent the individual doctor, who is a member of an association, in small claims court.

Attorney General of Texas
JACK EIGRTOWRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Tony Guillory
Assistant Attorney General

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