Bar Journal - Winter 2008
ETHICS IN TRANSITION: Unrepresented Litigants and the
Changing Judicial Role
By: Attorney Russell Engler1
The flood of unrepresented litigants in civil cases over the past decade has caused a fundamental reexamination of the operation of many of our courts.2 The discussions occur amidst the backdrop of reports demonstrating the high incidence of unmet legal needs among the poor and working poor, as well as a desperate shortage of lawyers available to represent the poor. The focus on unrepresented litigants has forced a reexamination of the roles of the players in the legal system, who encounter large numbers of unrepresented litigants each day. Nowhere are the issues more challenging than for judges presiding over their cases involving unrepresented litigants. It is the judges, ultimately, who are responsible for the fairness of the proceedings before them and the court orders that emerge from their courtrooms. Judges preside over trials involving unrepresented litigants, a scenario that has received the most attention in the literature, but involves a smaller percentage of the dispositions. A more common disposition is a settlement negotiated by the parties, often in an unmonitored, hallway setting and subsequently given the court’s imprimatur.
This article analyzes the shift over the past decade in attitudes toward the proper role of judges in handling cases involving unrepresented litigants. It briefly examines both the traditional role of the judges on paper, but also evidence indicating that the actual practice of some judges has varied far more than the texts of the decisions might reveal, and changed considerably in recent years. Reflecting the shift, the ABA House of Delegates in 2007 added a new comment to Rule 2.2, regarding Impartiality and Fairness:
It is not a violation of this Rule, however, for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.3
Given the fluidity of the judicial role, and the need for the courts to respond to the crisis they face with unrepresented litigants, the article ends with a discussion of why the active role is both necessary and permissible in certain contexts.
I. The Traditional Role of the Judge--On Paper
The guidance in the Canons of Judicial Conduct comes from general language applicable to judges in all cases. Judges are required to "Uphold the Integrity and Independence of the Judiciary" and "Avoid Impropriety and the Appearance of Impropriety."4 The concepts are intertwined with the obligation that judges act at all times in a manner that promotes public confidence in the "independence, integrity and impartiality" of the judiciary.5 Judges must perform their duties "impartially, competently and diligently"6, concepts requiring judges to perform their duties "fairly and impartially" and "without bias or prejudice," while remaining "patient, dignified and courteous."7
The text of the Canons and Commentary provides little direct guidance as to how active or passive a judge should be in handling cases involving unrepresented litigants. In the words of one set of authors trying to provide guidance as to appropriate judicial techniques:
In sum, the Canons of Judicial Ethics require judges to remain fair and impartial and to maintain the appearance of fairness and impartiality, but give no further guidance about the meaning of those terms when unrepresented persons appear in court.8
Cases interpreting the judicial role where unrepresented litigants are involved draw from the basic principles in the Canons, requiring that judges remain impartial and neutral, while being fair and providing justice. Some cases emphasize that unrepresented litigants must play by the same rules as represented parties and can expect no special treatment. Some caution that the judge may not play the role of advocate or attorney for the unrepresented litigant. Others suggest that judges must provide some measure of assistance to the unrepresented litigant to avoid a miscarriage of justice, and must do so in construing pro se pleadings.
An effort to draw lessons from the cases is complicated by two problems in the analysis. First, although most cases settle, the published decisions tend to focus on the judge’s role in either construing pleadings or conducting trials, providing very little guidance to daily tasks that occupy the attention of judges in many civil cases. Second, the cases tend to recycle general language, without regard to the context of the case. As a result, language uttered in the context of a criminal proceeding, where there is a constitutional right to appointed counsel, or cases involving vexatious plaintiffs, is applied to other fact patterns without any analysis as to whether it is appropriate to do so.
II. The Transition over the Past Decade
The ease with which the general principles may be recited belies the complexities facing judges attempting to apply those principles to cases involving unrepresented litigants. The New Hampshire Supreme Court, speaking in 1979, concluded that "[t]he proper scope of the court’s responsibility to a pro se litigant is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by specific formula."9 As the problems related to cases involving unrepresented litigants gained increased attention, the 1998 publication of Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Managers, by the American Judicature Society (AJS) and State Justice Institute (SJI), was instrumental in exposing the reality that judges employed a range of techniques.10
As the century drew to a close, judicial bias against unrepresented litigants was increasingly attacked. Proposed protocols from Minnesota and Iowa urged judges to accommodate unrepresented litigants and facilitate their efforts to present their cases. In 1999, the California Commission on Judicial Performance publicly censured a judge for failing to respect the rights of pro se litigants, concluding that the judge’s behavior violated the canons related to impartiality and integrity. In 2000, a Colorado Commission on Judicial Performance issued a recommendation of "do not retain" for a Judge in part based on a survey noting the judge’s "demeaning and harsh treatment of individuals appearing in her court without legal counsel."
Also in 2000, the Conference of State Court Administrators (COSCA) addressed the general question of the obligation to assist unrepresented litigants as follows:
The threshold question in determining how to respond is whether the courts have an obligation to address the needs of self-represented litigants at all. The answer should be yes.11
The following year, the Conference of Chief Justices (CCJ) promulgated Resolution 23, titled "Leadership to Promote Equal Justice," which resolved in part to "[r]emove impediments to access to the justice system, including physical, economic, psychological and language barriers...."12 In 2002, the CCJ and COSCA jointly issued Resolution 31, resolving that "courts have an affirmative obligation to ensure that all litigants have meaningful access to the courts, regardless of representation status."13
Important articles and guidebooks began to reflect a range of techniques available to judges, and illustrate the manner in which judges could perform their duties ethically, but in an active way that assisted litigants.14 The 2005 AJS/SJI publication Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants concludes:
Without raising reasonable questions about impartiality, judges should exercise discretion:
–To make equitable, procedural accommodations
–To provide self-represented litigants reasonable opportunity to have cases fully heard.
In 2006, Massachusetts promulgated its Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, applying all phases of the court’s operation, including pre-hearing procedures, settlement and trial.15 In 2007, California promulgated a comprehensive Benchguide for Judicial Officers, titled Handing Cases Involving Self-Represented Litigants, including Chapter 3 covering California law "applicable to a Judge’s Ethical Duties in Dealing with Self-Represented Litigants. 16
III. Core Principles for Understanding the Proper Judicial Role
It is imperative that we understand the full extent of the problems facing courts flooded with unrepresented litigants, envision the full range of solutions permissible under existing rules, and adjust our attitudes to allow judicial ethics to be part of the solution, rather than part of the problem. Many discussions framing the problem recognize that the flood of unrepresented litigants creates challenges for judges, court-connected mediators, court clerks, other court personnel, and opposing counsel. A proper definition of the problem, however, also recognizes that on a daily basis, in courts across the country, unrepresented litigants are forfeiting important rights and denied meaningful access to justice not due to the governing law and facts of their cases, but due to the absence of counsel.
This reality underscores the need to recognize general principles that must guide the discussion of the proper role not only for the judge, but also for other court personnel. First, the stated goal of our system of justice is to provide fairness and justice. Our traditional understanding of the proper roles of the players in the system was developed under rules in our adversary system that imply that unrepresented litigants are the exception, not the rule. Given the realities of many of our courts in the early 21st century, our traditional understanding of the roles is frustrating, rather than furthering, the goal of fairness and justice. As between abandoning the goal, or changing the roles, we should not abandon goal.
Second, we must revise our notion of impartiality. We can no longer accept the idea that impartiality equals passivity. To the contrary, a system that favors those with lawyers over those without lawyers, without regard to the applicable law and the facts of a case, is a partial, rather than impartial system. To avoid having a system that penalizes those without lawyers, the courts in general, and judges specifically, must be prepared to play an active role to maintain the system’s impartiality. This concept is easier to accept where all sides are unrepresented, and more challenging where one side is represented. Yet, that is the scenario in which the active role of the judge is most important. As long as the judge is equally prepared to help all sides, as needed, the problem is not one of impartiality, but the appearance of impartiality.
Third, we must revisit our notions of voluntariness where unrepresented litigants are involved. The operation of many of our courts still depends on an assumption that those without counsel are "choosing" to "self-represent." It also assumes that their choices along the way, such as whether to settle or go to trial, what witnesses and evidence to produce or on what terms to settle, are "voluntary" if they are understood and not the product of coercion. Yet, in a world with a widely documented shortage of lawyers for the poor in civil cases, courts must recognize that a litigant’s appearance without counsel is most often compelled, not voluntary. Regarding the individual decisions made by litigants, we should be using a standard akin to "informed consent," accepting as voluntary only the choices made by litigants aware of their options and advantages and disadvantages of those options.
Fourth, we should remember that the roles of the players are inter-connected, and that context matters. How active a judge must be depends in part on how much assistance the litigant receives before appearing before the judge. The more that clerks and other personnel are permitted to provide extensive assistance, and the more that assistance is supplemented by creative and effective assistance programs, the less the judge must do, while, nonetheless, retaining overall responsibility for the fairness of the proceeding. Similarly, what is necessary and proper for a judge in the context of a high-volume court flooded with unrepresented litigants may be different from what seems proper in a different setting. The range of judicial actions is not only appropriate, but consistent with the Canons of Judicial Conduct.
The court decision in Oko v. Rogers remains instructive:
The heavy responsibility of ensuring a fair trial in ... a situation [involving a pro se litigant] rest[s] directly on the trial judge. The buck stops there....17
The buck does stop with the judge, and the judge is responsible for ensuring the fairness of its judgment and orders, and procedures that produce them.
These principles articulated above are at odds with the narrow view equating the requirement of impartiality with the need for judges to perform their roles in a passive way. As we struggle to understand the proper role of judges, it is important to remember that the needs of unrepresented litigants vary from context to context, and that effective responses must be tailored to particular contexts. The help needed in courts handling evictions may be different from what is needed in courts handling family law matters, and both may be different from courts handling other civil matters.
If the need to tailor responses to particular contexts is not new, neither is the image of an active judge directed both to maintain impartiality and provide substantive justice is not foreign to our legal system. Small-claims court judges are bound by the duty of impartiality, but still are typically required to discover relevant facts and provide justice. Administrative law judges must remain impartial, but also have a duty to develop the record and provide extensive assistance. Similarly, judges in problem-solving and community courts go beyond the traditional role of judges developed in the adversarial setting.
Critics will continue to argue that providing further judicial assistance is going too far, at times requiring the judge to become the advocate for the unrepresented litigant, or give legal advice. Even were judges permitted to be more active, critics, including many judges, would argue it is impractical to expect them to do so given the crushing volume of cases before them and the amount of time that would be required for each case. The dockets would grind to a halt.
The practical arguments relating to the time involved do not stem from concerns of judicial ethics regarding the proper role of the judges. They may well implicate other aspects of the judicial canons, such as disposing of all judicial matters promptly; even there, however, the duty carries with it the obligation to dispose of matters fairly, a requirement that necessarily tempers the pressure for speed. Nor are the solutions to the docket issue to be found solely in our understanding of judicial ethics; changes in the entire court system, not just the behavior of judges, hold the keys to the solution.
The objections not based on practical issues stem from notions of the "proper" role of judges. While framed in terms of judicial ethics, the concerns are not grounded in specific prohibitions that appear in the canons of judicial ethics. Rather, they arise from interpretations of the general notions articulated in the canons and caselaw regarding impartiality, neutrality and partisanship. As explained above, however, it is not the formal ethics rules governing judges that compel our adherence to those notions. The existing rules permit the judicial behavior urged in this article. It is our attitudes, and the related interpretations of general principles and ethical guidelines, that must be changed.
The past decade has seen a dramatic trend toward supporting the more active role of judges in trying to insure that litigants appearing without counsel in civil cases obtain access to justice despite the absent of counsel. Yet, at each turn, innovations and initiatives to justify and effectuate the more active role face traditional objections that equate impartiality to passivity, regardless of the context of the inquiry. The governing principles, critique of the passive role, and intractable, high-volume courts illustrate the dangers of accepting the limits on the judicial role urged by some commentators. Until and unless a Civil Gideon is implemented in a manner that provides counsel for vulnerable litigants in court, judges must be permitted to provide litigants with the help they need. The buck stops with the judges. When no one else is the court system can provide the necessary assistance, judges must be permitted to perform their duties in a manner that achieves justice. Nothing in the rules of judicial ethics prohibits this course of action, and it is only our attitudes, reflected in our interpretations of ethical rules, guidelines and protocols, that require changing.
1. Professor of Law and Director of Clinical Programs, New England School of Law. This article is a condensed version of an article forthcoming in the Notre Dame Journal on Law, Ethics and Public Policy.
2. See, e.g. Russell Engler, And Justice for All-Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks, 67 Fordham L. Rev. 1987 (1999).
3. See, http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf (Visited March 5, 2007).
4. See, American Bar Association, Model Code of Judicial Conduct, Canon1 (2007)(formerly Canons 1 and 2), available online at: http://www.abanet.org/cpr/mcjc/toc.html.
5. Id., Rule 1.2, (formerly Canon 2A).
6. Id., Canon 2, (formerly Canon 3)
7. Id, Rules 2.2, 2.3(A) and 2.8(B), respectively. These phrases previously were codified in various clauses of Canon 3.
8. Rebecca A. Albrecht, John M. Greacen, Bonnie Rose Hough and Richard Zorza Judicial Techniques for Cases Involving Self-Represented Litigants, 42 Judges’ Journal 16 (Winter 2003)(hereinafter "Judicial Techniques").
9. Austin v. Ellis, 408 A.2d 784, 785 (N.H. 1979).
10. Jona Goldschmidt et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers 121 (1998).
11. Position Paper on Self-Represented Litigation, Conference of State Court Administrators (August 2000), Available at: http://cosca.ncsc.dni.us/WhitePapers/selfreplitigation.pdf (visited July 17, 2006).
12. Resolution 23. The resolution is available online at: http://ccj.ncsc.dni.us/AccessToJusticeResolutions/resol23Leadership.html (visited July 17, 2006).
13. Resolution 31. The joint resolution also endorsed COSCA’s Position Paper on Self-Represented Litigation. Id. Available at: http://cosca.ncsc.dni.us/Resolutions/CourtAdmin/resolutionSelfRepresentedLitigants.html (visited July 17, 2006).
14. Judicial Techniques, supra note ___ at 16; Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants, American Judicature Society and State Justice Institute (2005)(available at http://www.ajs.org/prose/pro_resources.asp, visited July 25, 2006).
15. Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants (April 28, 2006)(hereinafter "MA Guidelines") available at: http://www.mass.gov/courts/judguidelinescivhearingstoc.html (visited October 27, 2006).
16. See, State Justice Institute and Judicial Council of California, Administrative Office of the Courts, Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers (January 2007)(available at: http://www.courtinfo.ca.gov/programs/equalaccess/2007Materials.html (visited December 3, 2007).
17. Oko v. Rogers, 446 N.E.2d 658, 661 (Ill. App. 3d 1984).