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Federal Bar Update: Southern District’s local rule on indigent appointments

July 27, 2016

FedBarMaley-sigAs most federal practitioners are aware, the Southern District’s new Local Rule 87 on representation of indigent litigants will take effect Sept. 1. Although referred to by some as the “mandatory pro bono rule,” in fact the rule is entitled “Representation of Indigent Litigants,” and is multi-faceted. In this author’s view, the new local rule is necessary, fair and will not work hardship on the potential few whom it might ultimately affect.

Voluntary service. First, Local Rule 87 creates a voluntary panel of attorneys willing to represent litigants who are unable to afford representation. The voluntary panel consists of attorneys who have applied for membership and who are willing to volunteer to represent indigent litigants. Any attorney who is a member of the court’s bar may join the voluntary panel.

Many attorneys have served the court and indigent litigants for decades through the prior Local Rule 4-6’s Civil Trial Assistance Panel, as well as through the court’s Mediation Assistance Panel. New Local Rule 87 supplants the prior Local Rule 4-6, but the same type of voluntary assistance in mediation and as advocated in litigation and trial will continue.

To apply for membership in the voluntary panel, go to http://www.insd.uscourts.gov/pro-bono-opportunities.

Limited obligatory service for high-volume counsel. Second, Local Rule 87 creates an obligatory panel of attorneys from which mandatory appointments could be made. Although some have been concerned that all members of the court’s bar would be part of the obligatory panel, in fact very few will be.

Indeed, the Local Rule provides, “The Obligatory Panel consists of attorneys who are members of this court’s bar and have appeared in a threshold number of civil cases in this district during the previous calendar year. The threshold number will be set forth in a General Order. All attorneys who are in good standing and meet this threshold are eligible for selection to the Obligatory Panel unless exempted under Local Rule 87(a)(2)(B). Attorneys will be notified by the clerk’s office if they are selected for the Obligatory Panel.”

The court’s recently issued General Order provides that the number of appearances in civil cases in 2015 for an attorney to be in the 2016 obligatory panel is 10, and then five appearances per year for subsequent years. The intent behind the threshold concept is that such attorneys are likely to be very knowledgeable in federal practice and procedure, and are meanwhile benefitting economically from being in the court’s bar.

Exemptions. The local rule then lists four automatic exemptions (e.g., full-time employment by government), and provides a limitation on the frequency of appointments, stating, “No attorney will be obligated to represent an indigent litigant more than once during a calendar year, except as provided in Local Rule 87(d), nor will an attorney be recruited to represent an indigent litigant sooner than twelve months after the conclusion of the attorney’s most recent service as recruited counsel. Any recruited counsel who spends more than 100 hours in the course of representation under this rule may move for an exemption from the Obligatory Panel for an additional period of time.”

Withdrawal. Additionally, the local rule provides multiple possible bases for withdrawal from an appointment, including “such other grounds as the assigned judge finds adequate for good cause shown” as well as: (1) a conflict of interest; (2) competency; (3) temporary burden of other professional commitments; (4) personal incompatibility or a substantial disagreement on litigation strategy exists between counsel and the litigant; (5) in counsel’s opinion the litigant is proceeding for purpose of harassment, or the litigant’s claims or defenses are not warranted under existing law and cannot be supported by good faith argument for extension, modification or reversal of existing law; or (6) relief from recruitment is warranted due to recent substantial prior assistance to the court as recruited counsel.

Explanatory notes. The notes to Local Rule 87 summarize the necessity for this change, and the collaborative effort that has taken place over the last year to craft an informative and fair rule. The initial paragraph of those notes provides: “The Southern District of Indiana has an especially high volume of pro se and prisoner litigants. Over half of the district’s civil case load is initiated pro se, and over half of the pro se cases are brought by prisoners. This requires the court to frequently recruit counsel to represent pro se litigants pursuant to 28 U.S.C. § 1915(e)(1).”

The notes continue: “In recent years, the Seventh Circuit has increasingly emphasized that § 1915(e)(1) requires district courts to recruit counsel for pro se litigants in a significant proportion of pro se cases, especially in complex cases brought by prisoners. Moreover, the Seventh Circuit has stated that ‘courts should strive to implement programs to help locate pro bono assistance for indigent litigants,’ Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015), and noted that the ‘mandatory nature’ of the Northern District of Illinois’s program makes it superior to strictly voluntary programs, Dewitt v. Corizon, Inc., 760 F.3d 654, 659 (7th Cir. 2014).”

The notes further provide: “The court estimates recruited counsel will be necessary in approximately 70 civil cases per year – many involving prisoner litigants. … [I]t is the court’s goal to provide representation to indigent litigants, when needed, by way of volunteer counsel, as happens now. The court will rely on the Obligatory Panel only when efforts to find volunteer counsel fall short.”•

John Maleyjmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. He serves as chair of the Southern District of Indiana’s Local Rules Advisory Committee and is a member of the Northern District of Indiana’s Local Rules Advisory Committee. The opinions expressed are those of the author.

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