Chief Judge Richard Young is confident the new mandatory pro bono rule adopted by the U.S. District Court for the Southern District of Indiana will solve problems caused by pro se litigants trying to navigate the federal judiciary.
The Southern District has adopted the Local Rule 87, which allows judges to assign pro bono cases to attorneys who practice frequently in the federal jurisdiction. Set to take effect Sept. 1, the new rule was enacted in response to the many pro se cases coming into the court and a series of remands coming from the 7th Circuit Court of Appeals for not appointing counsel.
Asked if this rule will solve the problem of litigants having to go without legal assistance, Young responded emphatically, “Yes, absolutely.”
However, the new rule is in opposition to the Indiana State Bar Association’s stance against any mandate on attorneys to provide free legal services. That opposition was reiterated in the House of Delegates while the Indiana Supreme Court considered and ultimately implemented a pro bono reporting rule in 2015.
The rule in the Southern District comes as attorneys are working harder to keep their practices afloat. ISBA President Carol Adinamis explained the state bar wants litigants to get the help they need but a mandate could place another burden on lawyers who are getting squeezed in the market, particularly by online legal service providers.
From its perspective, the District Court saw little alternative.
The court has an exceptionally high caseload from pro se litigants, about half of whom are prisoners. According to the Administrative Office of the U.S. Courts, the Southern District handled 2,877 civil cases during the year that ended Sept. 30, 2015. More than half of the civil cases, 1,463, were filed by unrepresented individuals. Of those, 740 were filed by state and federal prisoners.
In addition, the 7th Circuit Court of Appeals started sending sent cases back to the Southern District because the plaintiffs were not provided with pro bono counsel. Young said the remands came not so much because the District Court denied the pro se litigant request for help as an attorney was not available to provide assistance.
The new rule is expected to remedy that by creating two pools of attorneys: A volunteer panel of lawyers who offer their services to the court, and an obligatory panel of lawyers who may be assigned a case. For cases not picked by the volunteer attorneys, judges can turn to the obligatory group.
Young noted the 7th Circuit has changed its position on pro se litigants. Now the Chicago panels want the District Courts to err on the side of appointing counsel and even providing expert witnesses.
After the proposed rule was submitted for public comment May 13, ISBA met with the District Court. A delegation from the association that included Adinamis and counsel to the president, Karl Mulvaney, met with Young, Clerk Laura Briggs and other court staff to discuss the rule. Adinamis said the District Court was very gracious in listening to the State Bar Association’s concerns and answering its questions.
In particular, the ISBA was relieved by the low number of cases expected to go to the obligatory panel. The District Court only looks for counsel for meritorious cases and estimates about 70 civil cases a year will need representation. Young said he would be surprised if more than 10 cases will be assigned to the obligatory attorneys.
Mulvaney said the new rule could place more of a burden on some attorneys than others. Lawyers who work in small practices may not have the resources to undertake one of these cases. Lawyers who already offer their services pro bono, whether helping other clients or serving on charitable boards, would find more of their time taken.
“It’s hard to mandate a one-size-fits-all (approach), but I think the Southern District was in a bit of a bind in terms of the number of cases coming through,” Mulvaney said.
From discussions with the Indiana State Bar Association, the court did give the recruited attorneys a seven-day window to file a motion to withdraw from representation. Under the proposed version, the appointed lawyer was given no period of time to request relief.
The ISBA wanted the window in order to give the attorneys time to check for conflicts. State bar officials worried that drafted counsel could be given a pro bono case that posed a conflict with another client the lawyer was representing and thus put the lawyer in danger of violating Rule 1.7 of the Indiana Professional Code of Conduct.
Under the proposed rule, counsel was always allowed to withdraw from representing an assigned litigant. Attorneys could file a motion to be relieved of the appointment for a handful of reasons including a conflict of interest, lack of time to properly litigate the case, and concerns of not being competent to provide legal assistance in a particular action.
The state bar association was pleased with the support the District Court is providing as part of this new rule. In addition to giving attorneys a resource to call for advice and guidance on legal matters related to these pro bono cases, the court also will be appropriating money from the Library Fund to reimburse attorneys for any expenses related to representing pro se litigants.
“That’s huge,” Adinamis said, noting effective representation of these clients will likely involve paying for depositions and expert witness.
Young said the court crafted the rule to remove as much of the burden from the pro bono attorneys as possible. The objective was to put forth the least onerous mandate.
“We are certainly committed to providing lawyers with all the resources they need to represent these folks in a professional and competent manner,” Young said.
Although the U.S. District Court for the Northern District of Indiana has had cases remanded from the 7th Circuit for not having provided the pro se litigant with counsel, it not crafting or proposing any pro bono rule.
“At this point, we have not taken that action,” said Chief Judge Philip Simon. “We’re just kind of in a wait-and-see mode to see what happens in Indianapolis.”
The flow of pro se cases is not quite as acute as in the Southern District of Indiana. During the year ending Sept. 30, 2015, the court logged 1,666 civil cases, of which 490 were filed by pro se litigants. Prisoners filed 339 of those cases.
Judges in the Northern District rely on Valparaiso Law School students helping to conduct settlement conferences. When he finds a viable case that needs representation, Simon said he goes “hat in hand” to local attorneys and asks for their help.
Simon said he and his colleagues have talked about the need for a supply of pro bono counsel but they are concerned about size of the federal bar that practices in the Northern District.
Federal courts in Chicago and Indianapolis are different because they have many more attorneys to draw upon whereas in northern Indiana the number of lawyers practicing in the District Court is much smaller. Assigning pro bono cases could put significantly more stress on these practitioners, he said.•