Attorney At Law (Public Jurisdiction)
- Definition: A licensed member of a state bar authorized to practice law within a specific jurisdiction.
- Public Role: Functions as an officer of the court, bound by statutory rules and professional ethics.
- Representation: Authorized to represent individuals, entities, and trusts in legal proceedings.
- Court Standing: Granted formal authority to file appearances and argue cases in court.
Attorney In Fact (Private Jurisdiction)
- Definition: A person granted authority through a contractual Affidavit: Power of Attorney In Fact to act on behalf of another, including trusts.
- Private Role: Not required to be a licensed attorney; authority derives solely from the Affidavit’s terms.
- Scope of Authority: Can be broad (general authority) or limited to specific actions (special authority).
- Court Representation: May represent a trust in legal actions if the Affidavit explicitly authorizes such representation.
Pro Se vs. Pro Per: Jurisdictional and Expectational Differences
- Pro Se (On One’s Own Behalf): Typically implies voluntary entry into the court’s jurisdiction without challenging presumptions. A pro se litigant essentially consents to the jurisdiction and procedures of the court by choosing to represent themselves.
- Pro Per (In Propria Persona): Asserts the litigant’s direct personal status, avoiding representation as a legal fiction and often invoking sovereignty over jurisdictional matters. Pro per litigants may retain their sovereign status and challenge the court’s jurisdiction over them. They are not voluntarily submitting to jurisdiction in the same way as a pro se litigant.
How an Attorney In Fact Can Represent a Trust in Legal Matters
Affidavit: Power of Attorney In Fact
To establish legal “standing” in a Court, an Attorney In Fact should present on the record:
- A Sworn Affidavit: Attesting to their authority under the Affidavit: Power of Attorney In Fact.
- Proof of Authority: The original or certified copy of the notarized and properly executed Affidavit.
Representation “In Propria Persona“
Traditionally, trusts and corporations are considered artificial persons and must appear through an “Attorney At Law” (Osborn v. Bank of U.S., 22 U.S. 738 (1824)).
However, courts must recognize an “Attorney In Fact” representing a trust “In Propria Persona” (in one’s own person) if constitutional and contractual rights are asserted.
How the Affidavit of Power of Attorney In Fact Functions in Trust Representation
An Affidavit of Power of Attorney In Fact grants authority to an Attorney In Fact to act on behalf of the trust in legal matters. This document:
- Grants Representation: It authorizes the Attorney In Fact to represent the trust and make decisions within the scope defined in the affidavit.
- Establishes Legal Standing: The affidavit provides proof of the Attorney In Fact’s authority to act on behalf of the trust, allowing them to engage in legal actions, such as signing documents or appearing in court.
- Defines Scope of Authority: The affidavit clearly outlines the powers granted to the Attorney In Fact, ensuring that they act within their authorized capacity and do not overstep their authority.
In court, the affidavit is used to demonstrate that the Attorney In Fact has the legal authority to represent the trust
Some Key Legal Precedent:
- Article I, Section 10 of the U.S. Constitution: Prohibits states from impairing the obligation of contracts, including a properly created contract and Affidavit: Power of Attorney In Fact.
“No State shall… pass any Law impairing the Obligation of Contracts.” – Article I, Section 10 of the Constitution
- Hale v. Henkel, 201 U.S. 43 (1906): Establishes that the right to contract is unlimited except as restricted by law.
“The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.” (Hale v. Henkel, 201 U.S. 43, 47 [1905])
- Affidavit of Authority: When submitted alongside court filings, it compels Courts to recognize the contract (Affidavit of Power of Attorney In Fact) and the Attorney In Fact as the trust’s lawful representative.
- “The claim and exercise of a constitutional right cannot be converted into a crime.”—Miller v. U.S., 230 F 2d 486, 489.
- “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” —Miranda v. Arizona, 384 U.S.
- “There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.” —Sherar v. Cullen, 481 F. 945.
- “A law repugnant to the Constitution is void.” — Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
- “It is not the duty of the citizen to surrender his rights, liberties, and immunities under the guise of police power or any other governmental power.”— Miranda v. Arizona, 384 U.S. 436, 491 (1966).
- “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”— Norton v. Shelby County, 118 U.S. 425, 442 (1886).
- “No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.”— 16 Am. Jur. 2d, Sec. 177, Late Am. Jur. 2d, Sec. 256.
- “Sovereignty itself remains with the people, by whom and for whom all government exists and acts.”— Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
Overcoming Barriers to Court Recognition
Courts historically resist allowing what they arrogantly and ignorantly call “not real attorneys” to represent trusts or entities. However, an Attorney In Fact can assert their standing based on the documents presented.
Practical Thoughts for Trust Representation
- Draft a Comprehensive Affidavit: Clearly authorize litigation and legal representation on behalf of the trust.
- Document Affidavits: File a notarized affidavit attesting to the Affidavit: Power of Attorney In Fact’s validity and scope.
- Assert Constitutional Rights: Cite Article I, Section 10 and Hale v. Henkel as some legal precedents.
- Invoke Jurisdictional Clauses: Reserve all rights under UCC 1-308 to protect against procedural dismissals.
