Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP
131 A.3d 733
| Vt. | 2015Background
- Michael Bandler (nonlawyer) is sole shareholder and president of MB&Co., Ltd.; he and the corporation sued law firm Cohen Rosenthal & Kramer (CRK) for claims arising from a retainer and alleged malpractice/consumer-law violations.
- CRK moved to dismiss (or to require corporate representation by counsel), arguing Vermont law prohibits nonattorney representation of a corporation unless statutory criteria are met and that Bandler’s pro se history shows he would unduly burden the court and opposing party.
- Bandler opposed and cross-moved to appear for the corporation, submitted his own motion papers and prior filings to demonstrate competence, and did not request oral argument or an evidentiary hearing.
- The trial court applied 11A V.S.A. § 3.02(1) and denied Bandler leave to represent the corporation, finding serious concerns about his ability to keep corporate and individual claims separate and that his participation would unduly burden the court and CRK; the court allowed the corporation 30 days to obtain counsel and invited amendment of the complaint after counsel appeared.
- Bandler appealed interlocutorily, asserting the trial court denied due process by issuing its ruling without first notifying him of its concerns or giving an opportunity to respond; the Supreme Court granted review limited to that procedural/due-process question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process required the trial court to disclose its analysis and give plaintiffs an opportunity to respond before ruling on nonattorney representation | Bandler: court should have given advance notice of its concerns and opportunity to respond by papers or argument so plaintiffs could amend or rebut before ruling | CRK: no statutory or rule-based right to pre-decision disclosure; parties had notice and filed papers; court may decide motions without argument | Court: No. Due process satisfied by existing notice and opportunity to be heard via filings; court acted within discretion to rule without further notice or argument |
| Whether plaintiffs were entitled to an evidentiary hearing on the representation issue | Plaintiffs imply they should have chance to present further material | CRK: plaintiffs never requested an evidentiary hearing and failed to comply with V.R.C.P. 7(b)(4) if they sought to present evidence | Court: Plaintiffs were not entitled; they did not request hearing and did not comply with the rule; no requirement to hold one |
| Whether trial court abused discretion by deciding the representation issue on the papers | Plaintiffs contend ruling deprived them of fair process to address court’s specific concerns | CRK argues trial court properly considered pleadings and prior filings showing burden | Court: No abuse shown; court reasonably relied on the submitted papers (including Bandler’s own filings) in concluding he would unduly burden the process |
| Whether interlocutory review was proper (concurring view) | N/A (plaintiffs sought interlocutory review) | CRK implied that interlocutory review was not appropriate for such orders | Concurrence: would not have permitted interlocutory appeal; disallowing nonattorney corporate representation is like counsel-disqualification and not a collateral-final order qualifying for immediate review |
Key Cases Cited
- Brock v. Roadway Express, Inc., 481 U.S. 252 (1987) (due process requires opportunity to be heard at a meaningful time and in a meaningful manner)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (procedural due process is flexible; protections depend on context)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process standards for probationary-style proceedings and opportunity to be heard)
- Stone v. Town of Irasburg, 196 Vt. 356 (2014) (procedural due-process analysis varies with interests at stake)
- Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (orders disqualifying counsel are not collateral-final for immediate appeal)
- Vt. Agency of Nat. Res. v. Upper Valley Reg’l Landfill Corp., 159 Vt. 454 (1992) (discussing Rule 5.1 collateral-final interlocutory review)