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Pro se legal representation in the United States

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"pro per" redirects here. For the abbreviation indicating a document is signed on someone else's behalf, see procuration.

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.[1]

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,[2] 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'.[3] This statute and the Bill of Rights were considered necessary in order to get support for the new Constitution.[citation needed] 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.[4]

Status

The Federal Rules of Appellate Procedure specifically allow court mediation services to be provided to self-represented litigants: "Rule 33. Appeal Conferences The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement.” [5]

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.[disputed – discuss] See List of U.S. State constitutional provisions allowing self-representation in state courts.

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. [6] 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. ” [7]

Private organizations involved with issues related to self-represented litigation

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. It reports having over 2000 materials in its virtual library, several groups or listservs, a monthly newsletter, and "webinars".[8]

The American Bar Association (ABA) has also been involved with issues related to self-representation.[9] 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. [10]

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. [9]

Constitutional and statutory citations to self-represented litigants

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."

The Code of Conduct for United States Judges provides:

This Code applies to United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the "Compliance" section. In addition, the Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code...Canon III A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY A. Adjudicative Responsibilities....(2) A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings. (3) A judge should be patient, dignified, respectful, and courteous to litigants...(4) 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...(5) A judge should dispose promptly of the business of the court.... B. Administrative Responsibilities....(2) A judge should require court officials, staff, and others subject to the judge's direction and control, to observe the same standards of fidelity and diligence applicable to the judge....Canon 3A(5). In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay..."[11]

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.[12] 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".[13]

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. [14]

Narrow exceptions to this principle have also been suggested by other courts in the United States. For example, 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,[15] or represents a law firm of which he is a member.[16] In each of those instances, a non-attorney would be barred from conducting the representation altogether. Courts have also found that this policy does not prevent a pro se attorney from recovering fees paid for consultations with outside counsel.[17]

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.[18]

"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.”[19][20][21]

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.[22]

ABA Model Rules of Professional Conduct

§1.16(a)(3) of the American Bar Association’s Model Rules of Professional Responsibility, which exists in each of the Service’s rules of professional responsibility, “recognizes the long-established principle that a client has a nearly absolute right to discharge a lawyer.” [23][24][25]

Military Treaties referring to self-representation

The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) both allow for self-representation before the tribunal. Statute of the ICTY, Article 21(4)(d); Statute of the ICTR, Article 20(4)(d). The rules of procedure governing the Nuremberg military tribunals provided that “a defendant shall have the right to conduct his own defense.”The 1695 [Treason Act] . . . provided for court appointment of counsel, but only if the accused so desired. Thus, as new rights developed, the accused retained his established right ‘to make what statements he liked.’ The right to counsel was viewed as guaranteeing a choice between representation by counsel and the traditional practice of self- representation. . . . At no point in this process of reform in England was counsel ever forced upon the defendant. The common-law rule . . . has evidently always been that ‘no person charged with a criminal offence can have counsel forced upon him against his will.’ [26]Additional Protocol I to the Geneva Conventions provides that a court trying an accused for law of war violations “shall afford the accused before and during his trial all necessary rights and means of defence.” Geneva Conventions (1949), Additional Protocol I, Article 75, para. 4(a). The United States considers Article 75 of Additional Protocol I to be applicable customary international law. William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 322 (Summer 2003)(“[the United States] regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.”) [27]

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.[28] 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. [29][30]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. [31]

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. [32] [33] [34]

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.[35] [36] [37] [38]

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.[39] [40] [41]

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."[42]

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. [43]

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." [44][unreliable source?][verification needed]

References

  1. ^ Madelynn Herman (September 25, 2006). "Self-Representation: Pro Se Statistics". National Center for State Courts.
  2. ^ Faretta v. California, 422 U.S. 806 (1975).
  3. ^ Faretta v. California, 422 U.S. 806, 813 (1975).
  4. ^ 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.
  5. ^ Rule 33, Federal Rules of Appellate Procedure.
  6. ^ Statistical Overview P. 5. http://www.lasc.org/press_room/annual_reports/reports/2000stats.pdf
  7. ^ “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”
  8. ^ http://www.selfhelpsupport.org/
  9. ^ a b Patricia A. Garcia, "Litigants without Lawyers" "Organizations Involved in pro se issues" Resources, American Bar Association, 2002, ISBN 1-59031-061-6, p. 26
  10. ^ http://www.abanet.org/legalservices/delivery/brown.html#kent
  11. ^ http://www.uscourts.gov/guide/vol2/ch1.html
  12. ^ Kay v. Ehrler, 499 U.S. 432 (1991).
  13. ^ 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).
  14. ^ Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36 http://csc.lexum.umontreal.ca/en/2004/2004scc36/2004scc36.html
  15. ^ Krislov v. Rednour, 97 F. Supp. 2d 862, 867 (N.D. Ill. 2000)
  16. ^ Bond v. Blum, 317 F.3d 385, (4th Cir. 2003).
  17. ^ Blazy v. Tenet, 338 U.S. App. D.C. 300 (D.C. Cir. 1999).
  18. ^ Jonathan R. Macey, Macey on Corporation Laws (2000 supplement), §4.02[D] (b), "Appearance pro se.
  19. ^ Jadair Inc. v. United States Fire Insurance Co. 209 Wis. 2d 187, 561 N.W.2d 718 (Wis. 1997)
  20. ^ Rights of suitors. § 21(2) [As amended April 1977]
  21. ^ Wisconsin Annotated Constitution
  22. ^ 2 Weil & Brown s. 130 (California law)
  23. ^ The Law of Lawyering, Hazard & Hodes, Aspen Law & Business 2003 (3d ed.), 20-9.
  24. ^ Philip Sundel and Bridges,Mark A., Memorandum of Law Right to Self Representation: Right to Choice of Counsel United States of America v ALI HAMZA AHMAD SULAYMAN AL BAHLUL September 2, 2004 http://www.defenselink.mil/news/Sep2004/d20040917selfrep.pdf
  25. ^ http://www.abanet.org/cpr/mrpc/rule_1_16.html
  26. ^ Faretta v. California
  27. ^ Philip Sundel and Bridges,Mark A., Memorandum of Law Right to Self Representation: Right to Choice of Counsel United States of America v ALI HAMZA AHMAD SULAYMAN AL BAHLUL September 2, 2004 http://www.defenselink.mil/news/Sep2004/d20040917selfrep.pdf
  28. ^ Hans Fantel, "William Penn: Apostle of Dissent," William Morrow & Co., New York, 1974, p.6, ISBN 0-688-00310-9 pp. 117-120.
  29. ^ Fantel, p. 124
  30. ^ Bonamy Dobrée, "William Penn: Quaker and Pioneer," Houghton Mifflin Co., 1932, New York, p. 71.
  31. ^ "The Thomas Jefferson Administrations". Presidential Administration Profiles for Students. Online Edition. Gale Group, 2002. Page 3.
  32. ^ Supreme Court on a Shoestring, The Washington Post, February 21, 2005
  33. ^ From the streets to the Supreme Court, The Houston Chronicle Oct. 17, 2004 (article mirrored at www.godlesshouston.com)
  34. ^ U.S. Supreme Court docket for 03-1500 Van Orden v. Perry
  35. ^ Edward C. Lawson -- official website
  36. ^ Kolender v. Lawson, 461 U.S. 352 (1983)
  37. ^ 1921 Tulsa Race Riot -- CNN
  38. ^ 1921 Tulsa Race Riot -- OSU Library
  39. ^ Traficant guilty of bribery, racketeering, CNN, April 12, 2002.
  40. ^ http://www.tnr.com/blog/theplank?pid=5782
  41. ^ The Smoking Gun: Archive
  42. ^ Smith, Christopher. S.L. Woman's Quest Strains Public Records System, The Salt Lake Tribune, May 11, 2003.
  43. ^ Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36
  44. ^ Law Blog Jailhouse Lawyer of the Day: Michael Ray Wall Street Journal article 2/2/2008
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