The Non-Traditional Advocate and the Pro Se Litigant

THE BIG PICTURE Pro se’s access to justice is more difficult because they don’t know the law. Pro se’s access to justice is more difficult because they don’t know the law. Recommendation that attorneys and judges give advice and/or help in the courtroom go too far. Recommendation that attorneys and judges give advice and/or help in the courtroom go too far. Except in the “enforcement agency” arena. Except in the “enforcement agency” arena. –The type of proceeding makes a difference as to how much “advice” a pro se should get.

The Pro Se Litigant Does not always mean poor Does not always mean poor –Distinguished from the “Low-Income Litigant” –Can be MANY reasons you appear without a lawyer! Does not always mean uneducated Does not always mean uneducated –89% had high school education –59% had some college or a degree –5% had post graduate degrees

Generally, why pro se’s should not be given assistance Pro se’s Pro se’s –Legal clinics, etc. –Are not necessarily “fools” –Not necessarily an unfair process –Most/some are shrewd and know how to play the system –Pro se’s are given much leeway in court (with filings and just because they are pro se). –Monetary advantages.

(continued)  Attorneys  Ethical barriers prevent attorneys from giving unrepresented individuals advice. 4.3 Model Code of Professional Conduct Judges Judges –Would violate judicial canons of impartiality. –Could make impartiality impossible. –“Litigant who chooses himself as legal representative should be treated no differently”

The Exception Pro se’s should be given assistance/advice by the adverse party where they are being prosecuted by enforcement agencies. Pro se’s should be given assistance/advice by the adverse party where they are being prosecuted by enforcement agencies. The reason this is an issue is because ethical rules prohibit giving advice to an unrepresented litigant. The reason this is an issue is because ethical rules prohibit giving advice to an unrepresented litigant. –Rule 4.3: Model Rules of Professional Conduct

But what constitutes advice? –Substantive? –Procedural? –Strategies? –Making the pro se’s argument for them? –Assisting them to comply with the rules?

Enforcement Agencies Examples are: Examples are: –City of Chicago Department of Buildings/Health –Illinois Environmental Protection Agency Protect the health, safety & welfare of the general public. Protect the health, safety & welfare of the general public.

Agency enforcement proceedings Akin to prosecutor. Akin to prosecutor. Often many pro se litigants Often many pro se litigants Goal of any litigation, generally, is to protect the greater good. Goal of any litigation, generally, is to protect the greater good. Primary goal is not to extract money judgment from the defendant. Primary goal is not to extract money judgment from the defendant. Proceedings are to get the person to comply, and not purely to punish for past wrongs. Proceedings are to get the person to comply, and not purely to punish for past wrongs. Violations are ongoing. Violations are ongoing.

“Non-Traditional” Advocates: City of Chicago Building Dept. One area of law where there are a lot of pro se litigants. One area of law where there are a lot of pro se litigants. Goal of the prosecuting attorney is to get compliance. Goal of the prosecuting attorney is to get compliance. Achieving what the client wants-- Department of Buildings wants to get the building fixed. Achieving what the client wants-- Department of Buildings wants to get the building fixed.

(continued) For injuries that have already occurred, counseling a pro se will do nothing! For injuries that have already occurred, counseling a pro se will do nothing! Advising a pro se in Housing court to address the “injury” directly, and stop it. Advising a pro se in Housing court to address the “injury” directly, and stop it. –Means looking for a path for compliance. »Talking to people in the hallway, »Not objecting to a continuance, »Giving them a second chance, »Giving them “advice”

The Solution “Advice” given on a case-by-case basis. “Advice” given on a case-by-case basis. –Home owner A is an 85 year-old woman from Guatemala who owns a single-family home. – Home owner B is a 30 year-old man who owns a commercial building and comes into court covered in dry-wall dust. No set of guidelines currently exist. No set of guidelines currently exist.