Pro se.html



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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 oneself". This status is sometimes known as propria persona (abbreviated to "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.¹ In the United States federal court system for the year 2007 approximately 27% of actions filed, 92% of prisoner petitions and 10% of non-prisoner petitions were filed by pro se litigants.²

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,³ 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'.⁴ This statute and the Bill of Rights were considered necessary in order to get support for the new Constitution. (Faretta v. California http://supreme.justia.com/us/422/806/case.html.) 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.⁵ 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 to represent oneself.

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.^{citation needed} In many instances, state constitutional provisions regarding the right to petition the government for redress of grievances have been so interpreted.^{dubious – discuss} 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 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 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."

Laws and organizations charged with regulating judicial conduct may also impact pro se litigants. For example, The State of California Judicial Counsel has, through published materials addressed the need of the Judiciary to act in the interests of fairness to self-represented litigants. ⁶ The California rules express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertance by a pro se litigant that would otherwise result in a dismissal. While this rule creates a double standard, The Judicial Counsel justifies this position based on the idea that "Judges are charged with ascertaining the truth, not just playing referree... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits."⁷ It suggests "the court should take whatever measures may be reasonable and necessary to insure a fair trial" and says "There is only one reported case in the U.S. finding a judge's specific accommodations have gone too far".

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. ⁸ 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. ” ⁹

Self-representation by attorneys

The United States Supreme Court has taken the position that it is bad practice for attorneys to represent themselves.^{citation needed} 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.¹⁰ 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".¹¹

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,¹² or according to another court represents a law firm of which he is a member.¹³ 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.¹⁴

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.¹⁵

"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.”¹⁶¹⁷¹⁸

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.¹⁹

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. ²⁰

Notable pro se litigants

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.^21222324

Robert Kearns was the inventor of the intermittent windshield wipers. He acted as his own lawyer in parts of his long legal battles for patent infringement against Ford and Chrysler.²⁵. His legal battles are the subject of the 2008 movie Flash of Genius.

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. ²⁶

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.²⁷

Clarence Earl Gideon was too poor to afford an attorney and thus proceeded pro se in his criminal trial in Florida in 1961. He was found guilty and subesquently appealed. He was appointed counsel when the case reached the Supreme Court of the United States of America. The opinion of Gideon v. Wainwright ruled that states were required to provide counsel free of charge to indigent criminal defendants and that Florida's failure to appoint such counsel in Gideon's case constituted a violation of that right. On remand, Gideon was represented in the new trial, and acquitted.

Brandon Moon spent 17 years in jail for a rape that he did not commit. He was convicted after being picked from a lineup 18 months after the rape in which he was the only blue eyed white man. He was a sophomore in college and a veteran of four years in the air force when he was accused. He was released due to DNA evidence after help from the Innocence Project. He spent his prison years learning about blood tests, eye witness identification and law. Before the Innocence Project became involved, Moon represented himself and repeatedly applied for relief but, according to his lawyer he was "bounced around the courts like a Ping-Pong ball" because "The courts are so hostile to pro se litigants. The instinct is to deny, deny, deny."²⁸

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.^{29 30 31}

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.

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.³² 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. ³³³⁴The 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.

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 possession. 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."^{35unreliable source?verification needed}

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."³⁶

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.^{37 38 39}

Joe Gamsky, also known as Joe Hunt, successfully represented himself in a kidnapping-murder trial. He had been accused of murdering a businessman in order to use his fortunes to pay off debts Gamsky had accumulated in a Ponzi scheme. The jury hung 8 to 4 in favor of acquittal. Although he wasn't convicted of that murder, he was previously convicted in the murder of a con artist and is serving life imprisonment without parole.

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 ⁴⁰; 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.⁴¹. "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 ⁴².

The American Bar Association (ABA) has also been involved with issues related to self-representation.⁴³ 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. ⁴⁴

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. ⁴³

States have organizations dedicated to delivering services to pro se litigants. For instance, the Minnesota Bar Association has a "pro se implementation committee". ⁴⁵

Many courts have fill in the blank forms which self-represented litigants have the option of using. Self-represented litigants have available to them many of the resources that lawyers have. Most courts have web site with on line forms and procedures. Many law libraries are government subsidized and offer free library cards. These libraries include summary books. The U.S. code and the federal civil and criminal procedures are available on line. The Federal Judicial Center has a web site which includes civil litigation, complex litigation, civil rights, prisoner litigation and appellate procedure manuals. Many of those publications are on-line and free printed copies are offered of some of them. Most state laws including civil and criminal procedures are available on line through the state legislature or state attorney web site. Law school textbooks can be purchased from on-line book publishers. Book stores usually have sections devoted to law. Some services answer legal questions over the telephone and charge by the minute. Legal publishers such as West, BNA, Nexis-Lexus, Moore's, and Wrights have web sites and West offers a service of answering questions. Anyone can set up a Pacer account with the U.S. Courts and download any unsealed document filed in any U.S. Court in the last few years for 8 cents a page or $2.40 per document max. This allows someone to download documents from other people's cases. In a few places, there are free Pacer accounts available. There are also special web sites targeting pro se litigants offering books and forms. Some pro se litigants have informal mutual help arrangements. The Wall Street Journal Law Blog and the ABA Law Blog are free online and both have links to legal documents. The Cornell Legal Institute includes congressional notes. The Library of Congress has free publications on subjects such as the insanity defense. Federal circuit courts have on-line opinions with a word search.

One resource that lawyers have available that pro ses generally cannot use is legal writing and legal research performed by non lawyers. The non lawyers advertise their services to lawyers on the ABA web site.

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. ^{46unreliable source?}. 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. ⁴⁷ 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.^{citation needed}. 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.^{citation needed} Unbundled services allow individuals who cannot afford the full package of legal services to obtain better counseling. ⁴⁸. 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.^{citation needed} 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.⁴⁹⁵⁰

Role of judges

The ABA 2007 and previous Model Codes of Judicial Conduct include Rule 2.6(A) which requires a judge to “accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law.” Rule 2.2 requires a judge to “perform all duties of judicial office fairly and impartially.⁵¹ This model code was cited in the presentation published by the California judiciary and is cited in other discussions of pro se litigation because many people consider pro se litigants to be a subset of "every person". However, some people think that the words "every person" in a discussion of law do not apply to self-represented litigants.^{citation needed}

References

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