Ziegler v. Nickel

Opinion

ALDRICH, J.

Introduction

Plaintiff, Mighty Oak Trust, appeals from the order of the trial court directing Jimmy Dean Ziegler, trustee, to withdraw as attorney for the trust and engage a licensed attorney to represent the Trust in its lawsuit against defendants Earl and Thelia Nickel. After analyzing a novel issue in California, we hold the trial court’s order was proper.

[547]

Factual and Procedural Background

This action was commenced by Ziegler as trustee of the Mighty Oak Trust (Trust) alleging, as sellers of a certain mobilehome to the Trust, defendants had intentionally failed to disclose certain material defects. Defendants demurred to the complaint.

Concurrently, defendants noticed and filed a motion for an order compelling Ziegler to withdraw as attorney for the Trust. The motion was brought on the ground that Ziegler was not an attorney and so his representation of the Trust in the lawsuit constituted an unauthorized practice of law in violation of Business and Professions Code section 6125.

1

Defendants requested the court order that Ziegler may no longer represent the Trust, and direct the Trust to hire a member of the bar to prosecute this lawsuit. Ziegler opposed the motion.

Finding Ziegler was not licensed to practice law, the court ordered him to withdraw as attorney for the Trust and gave him 30 days to retain an attorney to represent the Trust.

2

The court warned Ziegler his failure to retain an attorney at law within the time specified could result in the dismissal of the complaint. A formal order directing Ziegler to withdraw as attorney for the Trust was entered on January 11, 1996. Ziegler appealed.

Discussion

Ziegler contends the trial court erred in ordering him to withdraw from representing the Trust because as trustee, he is not a “person” as defined in section 6125, and as the Trust contains no assets or equity with which to pay an attorney, applying section 6125 in this case would effectively deny the Trust access to the court to seek a remedy for its injury.