Pro se legal representation in the United States


Pro se legal representation in the United States

"Pro se" legal representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. "Pro se" is a Latin phrase meaning "for himself". This status is sometimes known as "propria persona" or "pro per". In England and Wales the comparable status is "Litigant in Person". In the United States, many state court systems and the federal courts are experiencing an increasing proportion of pro se litigants. [citeweb |url=http://www.ncsconline.org/wc/publications/memos/prosestatsmemo.htm |title=Self-Representation: Pro Se Statistics |publisher=National Center for State Courts |date=September 25, 2006 |author=Madelynn Herman]

History

The opportunity for a party to a legal action to represent his or her own cause has had a longstanding presence in the United States. In "Faretta v. California", ["Faretta v. California", 422 U.S. 806 (1975).] the United States Supreme Court relates that " [i] n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel'. ["Faretta v. California", 422 U.S. 806, 813 (1975).] This statute and the Bill of Rights were considered necessary in order to get support for the new Constitution.Fact|date=September 2008 The Right of Self-Representation was one of the first laws passed after the War of Independence because it was of concern to the people. ["The Documentary History of the Supreme Court of the United States, 1789-1800", By Maeva Marcus & James R. Perry, United States Supreme Court; Columbia University Press, 1985.] In fact, while today the right enjoys a constitutional status, it pre-existed the ratification of the constitution; self-representation emerged as both a right, and a necessity, in early Colonial times. There are also some biblical references which may lend support to the significance of the right tolegally represent onesself.

Legal Rules Governing Self-Represented Status

Most U.S. states have a constitutional provision that either expressly or by interpretation allows individuals to represent their own causes in the courts of that state.Fact|date=September 2008 In many instances, state constitutional provisions regarding the right to petition the government for redress of grievances have been so interpreted.disputed-inline Most U.S. states have a constitutional provision that either expressly or by interpretation allows individuals to represent their own causes in the courts of that state. States that explicitly recognize a right to self-representation (without an attorney) in their constitution or statutes include Alabama, Alaska, Georgia, Maine, Michigan, Mississippi, New Mexico, New York, Tennessee, Utah and the District of Columbia. States that use the words “every person” or “every subject” include Arkansas, Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Missouri, Montana, Nebraska, New Hampshire, North Carolina, Rhode Island, South Carolina, Texas, Vermont, West Virginia, and Wyoming. States that use the words “every man” include Delaware, Maryland, North Dakota, Oklahoma, Pennsylvania, and South Dakota. See List of U.S. State constitutional provisions allowing self-representation in state courts.

The U.S. Judiciary Act, the Code of Conduct for United States Judges, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence and the Federal Rules of Appellate Procedure address the rights of the self-represented litigant in several places.

Section 1654 of U.S.C. Title 28 of the United States Code provides: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

Section 452 of U.S.C. Title 28 provides: "All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders."

Judicial codes of conduct

The federal government and most or all states have a judicial code of conduct that judges are sworn to uphold. The U.S. Judicial code of conduct includes "A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law" [Canon III a 4 http://www.uscourts.gov/guide/vol2/ch1.html#3]

The same or similar wording is used in many state codes including New Jersey, [Canon III a 6 http://www.judiciary.state.nj.us/rules/appendices/app1_jud.htm#P29_2525] Washington State, [Canon III a 4 http://www.cjc.state.wa.us/Gov_provision/code_canons.htm'] Utah, [ Canon III b 8 http://www.law.uh.edu/Libraries/ethics/Judicial/judiccanons/canon3.html] , Indiana, [ Canon III b 8http://www.in.gov/judiciary/rules/jud_conduct/index.html ] Kentucky, [ Canon III a 7 SCR 4.300 http://www.sunethics.com/kycodejudconduct.htm] West Virginia [ ] Idaho, [ Canon III a 7 http://www.judicialcouncil.idaho.gov/code.pdf] Nevada [Canon III b 7 http://www.leg.state.nv.us/CourtRules/SCR_CJC.html] Wisconsin [ SCR 60.4 g http://www.wicourts.gov/sc/rules/chap60.pdf. ] Pennyslvania, [ Canon III a (4) http://www.pacode.com/secure/data/207/chapter33/chap33toc.html] Virgina, [ Canon III a 7 http://www.courts.state.va.us/jirc/canons_112398.html#canon3 ] Rhode Island, [ Canon III a 7 http://www.courts.state.ri.us/supreme/jtd/code.pdf ] and Alabama. [ Canon III a 4 http://www.alalinc.net/jic/docs/cans2006.pdf ]

Public concerns related to self-representation

Pro se representation presents unique but not insurmountable challenges for claimants and the legal system. In Louisiana, for instance, the Louisiana Court of Appeals tracks the results of pro se appeals versus represented appeals. In 2000, 7% of writs in civil litigation submitted to the court pro se were granted, compared to 46% of writs submitted by counsel. In criminal cases the ratio is closer - 34% of pro se writs were granted versus 45% of writs submitted by counsel. [Statistical Overview P. 5. http://www.lasc.org/press_room/annual_reports/reports/2000stats.pdf] According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law,:

“After conducting an empirical study of pro se felony defendants, I conclude that these defendants are not necessarily either ill-served by the decision to represent themselves or mentally ill….In state court, pro se defendants charged with felonies fared as well as, and arguably significantly better than, their represented counterparts…of the 234 pro se defendants for whom an outcome was provided, just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge…. Only 26 percent of the pro se defendants ended up with felony convictions, while 63 percent of their represented counterparts were convicted of felonies…in federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants. ” [ “Defending the Right to Self-Representation: An Empirical Look at the Pro Se Felony Defendant by Erica J. Hashimoto, University of Georgia School of Law 2006 http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1000&context=fac_artchop”]

elf-representation by attorneys

The United States Supreme Court has taken the position that it is bad practice for attorneys to represent themselves.Fact|date=September 2008 An attorney who represents himself or herself in a matter is still considered a "pro se" litigant.

The Supreme Court has held that where a statute permits attorney's fees to be awarded to the prevailing party, the attorney who prevails in a case brought under a federal statute as a "pro se" litigant is not entitled to an award of attorneys fees. ["Kay v. Ehrler", 499 U.S. 432 (1991).] This ruling was based on the Court's determination that such statutes contemplate an attorney-client relationship between the party and the attorney prosecuting or defending the case, and that Congress intends to encourage litigants to seek the advise of a competent and detached third party. As the Court noted, the various Circuit Courts had previously agreed in various rulings "that a "pro se" litigant who is "not" a lawyer is "not" entitled to attorney's fees". ["Kay v. Ehrler", 499 U.S. 432, 435 (1991), "citing" "Gonzalez v. Kangas", 814 F. 2d 1411 (9th Cir. 1987); "Smith v. DeBartoli", 769 F. 2d 451, 453 (7th Cir. 1985), "cert. denied", 475 U.S. 1067 (1986); "Turman v. Tuttle", 711 F. 2d 148 (10th Cir. 1983) (per curiam); "Owens-El v. Robinson", 694 F. 2d 941 (3d Cir. 1982); "Wright v. Crowell", 674 F. 2d 521 (6th Cir. 1982) (per curiam); "Cofield v. Atlanta", 648 F. 2d 986, 987-988 (5th Cir. 1981); "Lovell v. Snow", 637 F. 2d 170 (1st Cir. 1981); "Davis v. Parratt", 608 F. 2d 717 (8th Cir. 1979) (per curiam).]

The Supreme Court of Canada in contrast allowed $25,000 in fees to a self-represented party who successfully sued the Bar Association of Quebec for delayed and inadequate supervision of a lawyer who had harassed her. [Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 http://csc.lexum.umontreal.ca/en/2004/2004scc36/2004scc36.html ]

Narrow exceptions to this principle have also been suggested by other courts in the United States. For example, according to one district court a "pro se" attorney may collect attorney's fees when he represents a class (of which he is a member) in a class action lawsuit, ["Krislov v. Rednour", 97 F. Supp. 2d 862, 867 (N.D. Ill. 2000)] or according to another court represents a law firm of which he is a member. ["Bond v. Blum", 317 F.3d 385, (4th Cir. 2003).] In each of those instances, a non-attorney would be barred from conducting the representation altogether. One district court found that this policy does not prevent a "pro se" attorney from recovering fees paid for consultations with outside counsel. ["Blazy v. Tenet", 338 U.S. App. D.C. 300 (D.C. Cir. 1999).]

Limits on self-representation

In some situations, self-represented appearances are not allowed. Generally, an owner can represent a solely owned business or partnership, but only a licensed attorney can represent a corporation. The ability of a party to proceed without an attorney in prosecuting or defending a civil action is largely a matter of state law, and may vary depending on the court and the positions of the parties. A longstanding and widely practiced rule prohibits corporations and similar business entities from being represented by non-attorneys, on the theory that a business entity is legally distinct from the person representing it. [Jonathan R. Macey, "Macey on Corporation Laws" (2000 supplement), §4.02 [D] (b), "Appearance "pro se".]

"A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. Requiring a lawyer to represent a corporation in filing the notice does not violate the guarantee that any suitor may prosecute or defend a suit personally. A corporation is not a natural person and does not fall with in the term “any suitor.” ["Jadair Inc. v. United States Fire Insurance Co." 209 Wis. 2d 187, 561 N.W.2d 718 (Wis. 1997)] [Rights of suitors. § 21(2) [As amended April 1977] ] [Wisconsin Annotated Constitution]

Another situation in which appearance through counsel is often required is in a case involving the executor or personal administrator of a probate estate. Unless the executor or administrator is himself an attorney, he is not allowed to represent himself in matters other than the probate. [ 2 Weil & Brown s. 130 (California law)]

Few federal court of appeals allow unrepresented litigants to argue, and in all courts the percentage of cases in which argument occurs is higher for counseled cases. [Case Management Procedures in the Federal Court of Appeals, p. 10, http://www.fjc.gov/public/pdf.nsf/lookup/caseman1.pdf/$file/caseman1.pdf']

Frequency of self-represented litigation

In 2007, in the federal court system, approximately 27% of actions filed were self-represented. Over 92% of prisoner petitions were self-represented. Over 10% of non prisoner petitions were self-represented. [ Table S-23. Civil Pro Se And Non-Pro Se Filings, by District, During the 12-Month Period Ending September 30, 2007 /http://www.uscourts.gov/judbus2007/tables/S23Sep07.pdf]

Notable "pro se" litigants

William Penn represented himself successfully following his 1670 arrest with William Meade. Penn was accused of preaching before a gathering in the street, which Penn had deliberately provoked in order to test the validity of the new law against assembly. Penn pleaded for his right to see a copy of the charges laid against him and the laws he had supposedly broken, but the judge (the Lord Mayor of London) refused — even though this right was guaranteed by the law. The judge directed the jury to come to a verdict without hearing the defense. [Hans Fantel, "William Penn: Apostle of Dissent," William Morrow & Co., New York, 1974, p.6, ISBN 0-688-00310-9 pp. 117-120.] When invited by the judge to reconsider their verdict and to select a new foreman, the members of the jury refused, and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, "You shall go together and bring in another verdict, or you shall starve". The judge had Penn sent to Newgate prison (on a charge of contempt of court). The full jury followed him, and the jury members were fined the equivalent of a year's wages each. [Fantel, p. 124] [Bonamy Dobrée, "William Penn: Quaker and Pioneer," Houghton Mifflin Co., 1932, New York, p. 71.] The members of the jury, fighting their case from prison, managed to win the right for all English juries to be free from the control of judges. This case was one of the more important trials that shaped the future concept of American freedom (see Jury nullification) and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained.

William Marbury was appointed as a judge before there were any U.S. law schools or licensing of lawyers. His appointment was cancelled so he successfully sued President Madison. "Marbury v. Madison" solidified the United States' system of checks and balances and gave the judicial branch equal power with the executive and legislative branches. ["The Thomas Jefferson Administrations". Presidential Administration Profiles for Students. Online Edition. Gale Group, 2002. Page 3.]

Thomas Van Orden, a lawyer with a suspended license to practice law who was living homeless in Austin, Texas, managed to challenge a religious display on the state capitol grounds, and successfully navigated his case all the way to the Supreme Court. While he was ultimately unsuccessful at getting the display removed, he was extremely successful at litigating the case. See "Van Orden v. Perry." [" [http://www.washingtonpost.com/wp-dyn/articles/A40461-2005Feb20.html Supreme Court on a Shoestring] ", The Washington Post, February 21, 2005] [" [http://www.godlesshouston.com/news/041018_van_orden.php From the streets to the Supreme Court] ", The Houston Chronicle Oct. 17, 2004 (article mirrored at www.godlesshouston.com)] [ [http://www.supremecourtus.gov/docket/03-1500.htm U.S. Supreme Court docket for 03-1500 "Van Orden v. Perry"] ]

Edward C. Lawson is an African American civil rights activist, who was the pro se defendant in the case of Kolender v. Lawson (461 U.S. 352, 1983) in which the United States Supreme Court ruled that a police officer could not arrest a citizen merely for refusing to present identification. [ [http://edwardlawson.com/ Edward C. Lawson -- official website] ] [ [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=461&invol=352 "Kolender v. Lawson," 461 U.S. 352 (1983)] ] [ [http://www.cnn.com/US/9908/03/tulsa.riots.probe/ 1921 Tulsa Race Riot -- CNN] ] [ [http://www.library.okstate.edu/hss/chaney/tulsa-race-riots.htm 1921 Tulsa Race Riot -- OSU Library] ]

Jim Traficant, a former Congressman from Ohio, represented himself in a RICO case in 1983, and was acquitted of all charges, becoming the only person to ever win a RICO case while representing himself. Traficant would represent himself again in 2002, this time unsuccessfully, and was sentenced to prison for 8 years for taking bribes, filing false tax returns, and racketeering. [ [http://archives.cnn.com/2002/LAW/04/11/traficant.trial/ Traficant guilty of bribery, racketeering] , CNN, April 12, 2002.] [http://www.tnr.com/blog/theplank?pid=5782] [ [http://www.thesmokinggun.com/archive/traficant1.html The Smoking Gun: Archive] ]

Barbara Schwarz, of Salt Lake City, Utah, has filed a large number of Freedom of Information Act (FOIA) requests. When the responses failed to verify her claims, she responded with litigation, which she has done "pro se". According to the "Salt Lake Tribune", "at least one of Schwarz's lawsuits has been considered by a U.S. District or U.S. Circuit Court of Appeals somewhere in the nation every year since 1993." [ Smith, Christopher. [http://www.cs.cmu.edu/~dst/Secrets/barbara_schwarz.html S.L. Woman's Quest Strains Public Records System] , "The Salt Lake Tribune", May 11, 2003.]

Christina McCullock-Finney won Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 against the Quebec Bar Association before the Supreme Court of Canada. [Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 ] Michael Ray "a former paralegal who is nearing the end of a six-year sentence for real-estate fraud, has no college or law school education. Yet he drafted an appeal for pro-se litigant Keith Lavon Burgess, who is in prison for crack posession. Ray argued that a 20-year mandatory minimum sentence was inappropriate for Burgess because his prior drug conviction was a misdemeanor, not a felony. Against all odds, the U.S. Supreme Court agreed to hear the case, which will be argued by Stanford Law School Professor Jeff Fisher. A successful appeal could reportedly cut Burgess’s sentence in half...Ray... conducts his own CLE by reading legal journals and joining legal associations, including the ABA." [Law Blog Jailhouse Lawyer of the Day: Michael Ray Wall Street Journal article 2/2/2008] Verify credibility|date=September 2008Verify source|date=September 2008

Anthony Pellicano, a Los Angeles-based Private Investigator known for working with high-profile entertainment industry attorneys, who was indicted on numerous counts of criminal conspiracy and wiretapping charges in Federal court, fired his attorneys prior to trial and represented himself. He was convicted on all but one count. He also faced a second trial along with co-defendant Terry Christiansen in which he represented himself, and again was convicted on numerous counts.

Resources available to self-represented litigants

Self-represented litigants may turn to "self-help" assistance. These tend to come from three sources: local courts, which may offer limited self-help assistance ["See, e.g." Superior Court of California - County of Los Angeles" [http://www.lasuperiorcourt.org/] with various self-help links. ] ; public interest groups, such as the American Bar Association, which sponsors reform and promotes resources for self-help, and commerical services, which sell pre-made forms allowing self-represented parties to have formally correct documents. For example, SelfHelpSupport.org is an organization with a web site "dedicated to issues related to self-represented litigation". The organization provides no assistance with particular complaints.http://www.selfhelpsupport.org/] . "Self-help" legal service providers must take care not to cross the line into giving advice, in order to avoid "unauthorized practice of law," which in the U.S. is the unlawful act of a non lawyer practicing law. "See" [ [http://www.illinoislawyerfinder.com/publicinfo/unauthorizedpractice.shtml] ] .

The American Bar Association (ABA) has also been involved with issues related to self-representation.Patricia A. Garcia, "Litigants without Lawyers" "Organizations Involved in pro se issues" Resources, American Bar Association, 2002, ISBN 1-59031-061-6, p. 26] The ABA has awarded a grant in 2008 to the Chicago-Kent College of Law Center for Access to Justice & Technology for making justice more accessible to the public through the use of the Internet in teaching, legal practice and public access to the law. Their A2J Author Project is a software tool that empowers those from the courts, legal services programs and educational institutions to create guided interviews resulting in document assembly, electronic filing and data collection. Viewers using A2J to go through a guided interview are led down a virtual pathway to the courthouse. As they answer simply questions about their legal issue, the technology then “translates” the answers to create, or assemble, the documents that are needed for filing with the court. [http://www.abanet.org/legalservices/delivery/brown.html#kent]

An ABA publication lists "organizations involved in pro se issues" as including (in addition to the ABA itself) the American Judicature Society, the National Center for State Courts, and the State Justice Institute.

States have organizations dedicated to delivering services to pro se litigants. For instance, the Minnesota Bar Association has a "pro se implementation committee". [http://www2.mnbar.org/committees/pro-se/minutes.htm]

Pro Se Status and Unbundled Attorney Services

A self-represented party may consult an attorney, without being represented in court. Traditionally, Attorney services for litigation were available only as a "whole package" whereby an Attorney would come in at the beginning of a case, and be responsible for all aspects thereof, with no in between. [http://www.skynewswire.com/modules/news/article.php?storyid=5559] verify credibility|date=September 2008. This did not leave a middle ground for someone to retain an attorney for only part of a case, but not all aspects. Thus, people that did not have much money were out of luck. ["Ibid."] Further, many Attorneys do not want the risk associated with being responsible for a case when they cannot control all aspects thereof. However, at the same time, freedom of contract permitted attorneys to exclude certain services from a contract and is widely used by attorneys to require separate agreements with the same client for different aspects of the same case.Fact|date=October 2008. An increasing awareness of this option has led to a new trend of "unbundled services." A common arrangement is for a prospective client to pay an attorney only for individual tasks. Thus, a litigant who has purchased unbundled services may be "pro se," officially, yet still be receiving advice of counsel. Generally, all involvement of any and all attorneys must be disclosed. Fact|date=October 2008 Unbundled services allow individuals who cannot afford the full package of legal services to obtain better counseling. [Forrest Mosten and Lee Borden Unbundled Legal Services,http://www.zorza.net/resources/Ethics/mosten-borden.htm ] . Unbundled attorney contracts often amount to attorney ghostwriting.

However, unbundled services may create problems. In most jurisdictions, an attorney is not permitted to speak to an opposing party represented by counsel without consent of counsel. When a party who is, in the eyes of the court, officially self-represented, is receiving advice of counsel as an unbundle service, is the opposing attorney ethically obligated to seek the consent of the non-record counsel? A recent decision by the California Court of the Appeal answered the question in the negative.

In some jurisdictions, including some U.S. Federal courts, a different standard applies, which, in the view of some Judges, makes these arrangements illegal for attorneys, when the unbundling practitioner merely writes documents without disclosing his or her involvement. Fact|date=October 2008 A recent decision sanctioned an attorney for violating Fed R. Civ. P. 11 (which requires attorney certification of any pleading) because he ghosted a pleading for a pro se party. This court's position is echoed in other opinions critical of the practice. Courts have expressed displeasure with the potential for unbundling to allow an attorney to pull end-runs around the court, or to give a pro se litigant an unfair advantage from claiming to be pro se, when in fact he has legal advice.

The American Bar Association web site includes advertisements for legal ghost writing by both attorneys and non attorneys. [http://www.abajournal.com/experts] [http://www.lawghost.com/]

References


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