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Bar News - March 5, 2004 Morning Mail Court's Pro Se Recommendations are Troubling I am appalled that the court is making every attempt to give assistance to litigants who choose to represent themselves. (See www.nhbar.org home page for link to the report by the Supreme Court’s Task Force on Self-Represented Litigants or refer to the Feb. 6 Bar News issue for article). Every person has the right to self-representation. When that is one’s choice, then he/she has to accept the consequences of that choice. I realize some pro se litigants are poor and cannot afford attorneys; however, I doubt that many fall into that category. Often, people’s priorities are such that they do not want to pay for a lawyer’s services, rather than not being able to afford them. I know that financial affidavits are filed with the court in criminal cases and that no one investigates the truth of those affidavits. I am aware of a case in which a defendant had private counsel until such time as he placed the real estate and assets in his wife’s and daughter’s names and then claimed to be indigent and obtained appointed counsel. I know the Bar accepts financial affidavits for pro bono work and the facts in those affidavits are not investigated. I will be the first to say I have no right to tell people how to spend their money and I will not make judgments as to their purchases; however, people do not become truly indigent because they choose to spend their money on something other than legal services. In reading the suggestions in Bar News, I was particularly concerned about two of them. The first involves the case managers who are to meet with the pro se litigants to prepare the parties and the cases for court. Such preparation is legal representation. Also, when my client, who is paying for my services, sees the court assisting the opposition, my client thinks the other party is getting the court on his/her side and has an advantage. This may lead my client to feel at a disadvantage for being represented by a lawyer. Clients wonder what chance they have when the court is helping the opposing side. The appearance of impropriety cannot be avoided. The giving of legal advice [by case managers] cannot be avoided. When parties realize they can obtain free legal services through the court, they will not retain counsel, which will result in a slowing down and overcrowding of the docket. More of the court staff’s time will be taken up with pro se litigants instead of doing the job of getting out orders, scheduling, etc. In Carroll County, we have two people handling our marital docket. We cannot get a contested divorce scheduled before June. The approach advocated by the task force will make a bad situation worse. Furthermore, if the caseworkers are individuals hired specifically for this purpose, that drains needed money from the judicial budget, which the courts can hardly absorb. I am also concerned about the simplified rules. If pro se litigants are allowed to follow simplified rules but counsel has to abide by the rules of court as written, that is a distinct disadvantage to parties who retain counsel. It gives an appearance of impropriety and could be unconstitutional under the equal protection clause. The rules for pro se litigants should be the same as for defendants that want to represent themselves in criminal cases. The judge should ask at each hearing whether the party realizes the risks he/she is taking, explain that rules are expected to be followed, state that the judge will not act as counsel at any point, and that it is in the party’s best interest to have counsel, since important property and/or individual rights are at stake. If that warning is good enough in a criminal case where the stakes are high and the constitutional right to counsel must be adhered to unless waived, that standard should be good enough in all other cases before the court. Diana G. Bolander
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