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January 9, 2003


The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge



Ellen Sturdza ("Sturdza") is an architect who has battled in this lawsuit to establish that the design for the United Arab Emirates' new embassy was stolen from her. See generally Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002). After she lost in this Court and her appeal was pending, her lawyer, Nathan Lewin ("Lewin"), took an extraordinary step. He asked the Court of Appeals to appoint a guardian ad litem for his client, indicating that her behavior had become unreasonable and irrational. Lewin claims that, according to Sturdza's husband, "his wife's conduct and attitude had undergone substantial change during the course of this lawsuit, which in her [sic] view, had ruined her life." Motion for Appointment of Guardian Ad Litem at 3. According to Lewin, Sturdza's irrationality has taken many forms: incendiary allegations against her own lawyers, opposing counsel and the court, insisting that these unsupported allegations be included in pleadings filed in the Court of Appeals, submitting pro se pleadings despite the Court of Appeals's directive not to do so, and forbidding settlement discussions after the Court of Appeals had ruled in her favor. Id.

The most maddening examples of Sturdza's irrationality are, according to Lewin, her refusal to consent to the transfer of her files from the firm with which Lewin used to be associated to his new firm and to permit him to file a brief in the D.C. Court of Appeals even though the Court of Appeals for this Circuit certified a question to that court. Unfortunately for Lewin, Sturdza sees him as part of a conspiracy whose participants included the defendants, Judge Kollar-Kotelly, who once presided over this case, and even Sturdza's own husband. Lewin reports that Sturdza's husband told Lewin that "Sturdza has become completely consumed by these proceedings and has been unable to focus on anything else." Id. at 8. The Court of Appeals referred Lewin's motion to this Court and the now presiding judge has referred it to me for a Report and Recommendation.

The behavior that Lewin reports is hardly news to me. I presided over certain aspects of this case when the matter was pending before Judge Kollar-Kotelly. We would frequently receive phone calls from Sturdza demanding that she be permitted to file pleadings even though Lewin represented her. My experience taught me that any judge who presides over this case will presides over two "lawsuits," the one between Sturdza and her opponents and the one between Sturdza and Lewin if Lewin remains Sturdza's counsel.

I held a hearing in this matter recently and I saw once again the behavior that Lewin reported. Sturdza is convinced that Lewin is opposing her and is in league with her opponents. She, therefore, believes that she must be permitted to proceed pro se. To that end, she has announced that she has fired Lewin. She is angry and certain that, by herself, she can undo and even avenge the wrongs done her by the defendants and Lewin.

Sturdza's Firing Lewin

The question of granting Lewin's motion is first complicated by Sturdza's firing of Lewin. A purely technical approach suggests that the firing of Lewin deprives him of "standing" since his relationship to this lawsuit is derivative of his relationship with Sturdza and she has exercised her unquestioned right to fire him. That ignores, however, that his motion for the appointment of the guardian ad litem antedates his firing and Lewin can say, with obvious justification, that Sturdza's firing of him is another irrational act that the guardian has to be permitted to set aside if Sturdza's case is not to self destruct. Lewin's firing is too hypertechnical a basis upon which to Premise a refusal to confront the issues Lewin's motion presents. Indeed, if Sturdza is acting irrationally, and did so in firing Lewin, her behavior is all the more reason to confront the question Lewin presents rather than to run away from it.

Dimensions of the Motion

Rule 17(c) of the Federal Rules of Civil Procedure expressly grants the federal courts power to appoint a guardian ad litem for an "incompetent person." But, the rule must be read in conjunction with the statute that grants American citizens the right to "conduct their own cases personally or by counsel." 28 U.S.C.A. § 1654 (1994). In United States v. Dougherty, 473 F.2d 1113, 1122-23 (D.C. Cir. 1972), the Court of Appeals spoke of the ancient lineage of this statute and how it protects a fundamental right:

The right of pro se representation was enacted by our very first Congress. The language declaring the pro se right is not qualified, see 28 U.S.C. § 1654. The statute was passed in a context of colonial tribunals largely manned by laymen, and of pioneer modes of thought emphasizing the virtues of common sense and self-reliance. Its constitutional aura is underscored by the proposal the very next day of the Sixth Amendment. In sum, whether or not the right of pro se representation has a constitutional foundation it is patently a statutory right, see § 1654; this right was not only conferred by Congress in 1789 but has wide reverberation in organic state law and was recognized by Congress as a fundamental right. We conclude that this right must be recognized if it is timely asserted, and accompanied by a valid waiver of counsel, and if it is not itself waived, either expressly, or constructively, as by disruptive behavior during trial.
Id. at 1122-23. Accord: O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir. 1982).

As the Daugherty case itself indicates, however, the statutory right to proceed pro se is not absolute but defeasible upon the showing of some other competing consideration. An expansive definition of the word "incompetent" threatens, however, to vitiate the statutory right to prosecute a case pro se, for it may deprive a person of a fundamental right without adequate justification. To prevent that result, a principled analysis of the meaning of the word "incompetent" requires a careful analysis of the deprivation the appointment of a guardian ad litem will cause against the interests advanced in support of that deprivation. In my view, that analysis requires a much greater showing than has been made by Lewin that Sturdza is "incompetent" as that word in Rule 17(c) is defined.

The Intended Deprivation

The analysis has to be begin with an honest appraisal of how complete the deprivation would be if Lewin's motion is granted. If a guardian is appointed and undoes Lewin's firing, the attorney client relationship that will then come into existence will be between Lewin and the guardian, subject, as the Court of Appeals reminded us,*fn1 to Judge Kennedy's supervision. From that point on, Lewin will answer to the guardian on all the fundamental issues in the lawsuit, including whether to settle it or prosecute. Moreover, given Sturdza's proclivities to file pleadings despite her representation by Lewin, Judge Kennedy may preclude her from doing so. Indeed, it is hard to understand how Judge Kennedy could not if the guardian was truly to be in control of the lawsuit and fulfill his responsibilities. ...

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