Tenancies Uncommon: Limits on Representing Cotenants Pro Se

By Robert L. Bentlyewski

An adversary proceeding that was part of the Bernie Madoff bankruptcy litigation involved a fraud victim making a motion to represent pro se the interests of all tenants in common who co-owned an account with Madoff. This Essay analyzes and expands upon the bankruptcy court’s holding, which addressed this novel issue by finding that a tenant in common cannot represent his cotenants pro se for two reasons. First, a tenancy in common is not a legal entity that can speak with one voice. Second, one tenant in common cannot represent one or more other cotenants’ interests in litigation without joining the cotenants in the action. Although the court did not discuss it, a third reason the motion was ill-fated was that the right to pro se representation is strictly personal, so a non-lawyer can never extend that right to justify their representation of another person or legal entity. Cotenants have a great deal in common, but not enough to justify one using their right to self-representation to speak for others.