A Limited Liability Company Must Be Represented By An Attorney

CPLR 321(a) provides in relevant part:

A party, other than one specified in section 1201 of this chapter, may  prosecute or defend  a  civil  action  in  person  or  by attorney, except that a corporation or voluntary association shall appear by attorney . . .

What about a Limited Liability Company, which is not specifically mentioned by the statute? Does it have to be represented by an attorney in civil litigation? A brief decision from the Second Department on May 1 decided this issue apparently for the first time in the State - Michael Reilly Design, Inc. v Houraney, 2007 NY Slip Op 03890. In that case, an appeal was pending before the Second Department in which the LLC and one of its members were appellants. The member appeared pro se purportedly on behalf of the LLC. However, this member was not an attorney admitted to practice in the State of New York. On a motion by the member to waive certification of the record on appeal (22 NYCRR 670.10.2[f]), the Court took the somewhat unusual step of ordering the LLC to retain an attorney to represent it on the appeal within a certain time, or otherwise it would dismiss the appeal. The Court cited CPLR 321, and stated:

An LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members (see Tierra West Apts., LLC v Bobadilla, NYLJ, Apr. 21, 1999, at 27 [Civ Ct, New York County]; Monte Carlo, LLC, v Yorro, NYLJ, May 7, 2003 at 25 [Dist Ct, Nassau County]). Accordingly, like a corporation or a voluntary association, the LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the State of New York (id.; see also Limited Liability Companies: Tax and Business Law, Chapter 5, Paragraph 5.05[1][e]; Ribstein and Keatinge on Limited Liability Companies, Chapter 3).

So, if you are an LLC out there with litigation pending, make sure you are represented by an attorney. We will have to see if the other Departments reach this issue. [Note: the Second Department also dismissed the appeal by the member as he was not aggrieved by the judgment appealed from].

Comments

[Lonnie Pace]

What's the Courts' position of sole members representing the LLC in Indiana?

[pinbalwyz]

And what of 'S' corporations which pass through profits and losses directly to the owner(s)/sole principal? Certain types of liabilities can pierce the 'corporate veil'. I believe there is some case law supporting the notion that a closely held family corporation or that of a sole principal can represent itself. The 'logic' to requiring an attorney for an LLC or corporation is to avoid having a non-attorney representing the interests (effectively) of OTHERS (e.g. other principals). When there are NO other principals, the prohibition becomes moot and counter-productive and should yield to the fundamental right to represent one's own interests pro se.