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Byers-Watts v. Parker3/1/2001
se Rule 17(g), Arizona Rules of Civil Procedure ("A.R.C.P."), explicitly authorizes her to represent Larry without the services of a licensed attorney. She further raises issues concerning discovery disputes and the merits of her claim. Because our resolution of the representation issue is dispositive, we do not address these issues.
Rule 17(g) provides, in relevant part, as follows:
Whenever an infant or incompetent person has a representative, such as a general guardian, or similar fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative the infant or incompetent may sue by a next friend or by a guardian ad litem.
Byers-Watts seizes upon the language permitting her to "sue or defend on behalf of infant" as authorizing her to provide legal representation to Larry in the lawsuit. Appellees counter that Rule 17(g) only allows Byers-Watts to serve as Larry's non-legal representative in the lawsuit and does not give her a license to practice law.
In interpreting Rule 17(g), we apply the same principles of construction as are used in construing statutes. State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App. 1996). Thus, to determine the supreme court's intent in adopting Rule 17(g), we look first to its language, Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 193, 859 P.2d 1323, 1326 (1993), and will ascribe plain meaning to its terms unless they are ambiguous. Rineer v. Leonardo, 194 Ariz. 45, 46, 7, 977 P.2d 767, 768 (1999). If the rule is ambiguous, we will employ principles of construction, such as interpreting it in conjunction with other rules relating to the same subject matter. See Goulder v. Arizona Dep't of Transp., Motor Vehicle Div., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App. 1993). Because Rule 17(g) is patterned after Rule 17(c) of the Federal Rules of Civil Procedure ("F.R.C.P."), we are also guided by federal case law interpreting that rule. See Nesbitt v. Nesbitt, 1 Ariz. App. 293, 295, 402 P.2d 228, 230 (1965) (construction of Rule 17(c) by federal courts is pertinent in interpreting Arizona Rule 17(g)).
Byers-Watts contends that the phrase "sue or defend" in Rule 17(g) "plainly" refers to legal representation. We disagree. Our society commonly refers to both lawyers and parties as "suing" others and "defending" against lawsuits. Indeed, our rules of civil procedure recognize "the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity." A.R.C.P. 9(a). Consequently, we reject Byers-Watts' argument that the term "sue or defend" in Rule 17(g) necessarily refers to the legal prosecution or defense of lawsuits on behalf of others. Because the plain language of Rule 17(g) does not yield a certain meaning, we turn to sources outside the rule.
In deciding what our supreme court intended by the phrase "sue or defend" in Rule 17(g), we are guided by that court's rules identifying who may engage in the practice of law. See Hunt v. Maricopa County Employees' Merit Sys. Comm'n, 127 Ariz. 259, 261-62, 619 P.2d 1036, 1038-39 (1980) (Under article III of the Arizona Constitution, "the practice of law is a matter exclusively within the authority of the Judiciary. The determination of who shall practice law in Arizona and under what condition is a function placed by the state constitution in this court.").
Rule 31(a)(3), Rules of the Arizona Supreme Court, states that "no person shall practice law in this state . . . unless he is an active member of the state bar." Without question, representation of another in court proceedings c
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