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Byers-Watts v. Parker3/1/2001
merely recognize a guardian's right to sue a party on behalf of a child. None of these authorities discusses a guardian's ability to provide legal representation for a child. See, e.g., Pintek v. Superior Court, 78 Ariz. 179, 184, 277 P.2d 265, 268 (1954) (" n infant cannot bring or defend a legal proceeding in person, but must sue or be sued by a legally appointed general guardian or next friend or a guardian ad litem."); Pearson & Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 364-65, 137 P.2d 381, 385 (1943) (parents' right to recover medical expenses can be assigned to child in lawsuit brought by parents "in the name of the infant and as his guardians ad litem"). We therefore find them unpersuasive. We hold that a non-attorney parent or like fiduciary must be represented by an attorney to maintain a lawsuit on behalf of a child or incompetent person.
Byers-Watts finally argues that Appellees waived their right to contest her representation of Larry by failing to raise an earlier objection to her role. We disagree. The right to legal counsel belongs exclusively to Larry and therefore cannot be waived by Appellees. See Osei-Afriyie, 937 F.2d at 883 ("Since no competent party here had the incentive to draw the district court's attention to the fact that the children should have been represented by a qualified attorney, we do not view this issue as waived."); Wenger, 146 F.3d at 125 (child's right to justice is so important that court has sua sponte duty to ensure the child's interests are represented by a lawyer).
We acknowledge Byers-Watts' sincere belief that she is the best person to legally advocate Larry's lawsuit. But as the court in Devine recognized, "we are compelled to follow the usual rule--that parents who are not attorneys may not bring a pro se action on their child's behalf--because it helps ensure that children rightfully entitled to legal relief are not deprived of their day in court by unskilled, if caring, parents." 121 F.3d at 582. When Larry reaches adulthood, he may indeed decide to pursue his case against Appellees without legal counsel. But the right to proceed with or without counsel belongs exclusively to Larry, and Byers-Watts cannot choose to waive counsel on his behalf. Osei-Afriyie, 937 F.2d at 883.
CONCLUSION
For the foregoing reasons, we affirm.
CONCURRING:
Edward C. Voss, Judge
Jon W. Thompson, Judge
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