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Letter to Joint Committee on Judicial Administration

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October 28, 2011

Mr. Valentine M. Cawood
General Counsel
District of Columbia Courts
500 Indiana Avenue, NW
Room 6715
Washington, DC 20001

Re: Proposed Code of Judicial Conduct

Dear Mr. Cawood:

The Washington Council of Lawyers urges the Joint Committee on Judicial Administration in the District of Columbia to adopt Rules 2.2 and 2.6 of the Proposed District of Columbia Code of Judicial Conduct, including Comments, with the minor revisions proposed herein. We applaud the work of the Advisory Committee on Judicial Conduct and wholeheartedly agree with the proposal to include comments specifically addressing the judiciary’s obligation to affirmatively facilitate the right of unrepresented persons in judicial proceedings to be fairly heard.

The Washington Council of Lawyers (WCL or the Council) is a non-profit organization of lawyers and legal workers committed to the spirit and practice of law in the public interest. Founded in 1971, WCL is the Washington area’s only voluntary bar association dedicated exclusively to promoting pro bono and public interest law. WCL has been making a difference in the Washington legal community for three decades – from lobbying to create the Legal Services Corporation in the 1970’s, to reporting on federal Equal Employment Opportunity procedures in the 1980’s, to surveying large D.C. firm pro bono programs in 1990, to establishing a death row representation project in the 1990’s, and to participating in a study of federal agency pro bono programs in 2000.

Council members represent every sector of the Washington legal community – lawyers and pro bono coordinators from large and small law firms and law schools, lawyers from public interest groups, government agencies and congressional offices, as well as law students and members of law-related professions. We are united in our conviction that the legal system must be made to serve the needs of the poor and the powerless as well as the affluent, and share a common concern for the well-being of our community and the integrity of our civil and constitutional rights. Sadly, the substantial efforts of nonprofit legal services agencies, and the commendable commitment of Washington law firms, government agencies, corporate legal offices and individual lawyers to pro bono service, have reached only a fraction of the individuals in our community who need a lawyer and cannot afford one. The number of pro se litigants in our courts is staggering. In 2008, the District of Columbia Access to Justice Commission reported that self-represented parties constituted:

  • more than 43 percent of guardianships before the Probate Division;
  • almost 98 percent of both petitioners and respondents in the Domestic Violence Unit;
  • more than 77 percent of plaintiffs and more than 37 percent of defendants in divorce/custody/miscellaneous cases in Family Court;
  • more than 98 percent of defendants in paternity and child support actions in Family Court; and
  • more than 97 percent of defendants in Landlord/Tenant Court.[1]
[1] Justice For All? An Examination of the Civil Legal Needs of the District of Columbia’s Low-Income Community (2008), Appendix H, Pro Se Statistics, pp. 131ff.

The number of pro se litigants is likely to increase, as the continuing economic downturn continues to drain family incomes, financial support for nonprofit legal services providers shrink, and law firms face ongoing economic challenges. Persons appearing in court unrepresented often are understandably intimidated, ill-informed and ill-prepared for civil litigation. Those with valid claims need help to present them. Those defending bear added burdens of anxiety.

Judges struggle with how to balance the imperative of impartiality against the patent unfairness of a proceeding in which a party has no lawyer and no understanding of the law and judicial procedure. The proposed Rule 2.2, Comment [4], and Rule 2.6, Comment [1A], clarify the judge’s affirmative obligation to ensure that an unrepresented party understands the rules of the forum and has a genuine, fair opportunity to present his or her case. We respectfully submit that the Comments would be further clarified, and fairness to pro se litigants further ensured, by adopting the following minor revisions:

Rule 2.2 – Comment [4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure litigants who do not have the assistance of counsel the opportunity to have their matters fairly heard. See Comment [1A] to Rule 2.6 which describes the judge’s affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard.

Rule 2.6 – Comment [1A] The judge has an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard. Pursuant to Rule 2.2, the judge should not give self-represented litigants an unfair advantage or create an appearance of partiality to the reasonable person; however, in the interest of ensuring fairness and access to justice, judges should make reasonable accommodations that help litigants who are not represented by counsel to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law. In some circumstances, particular accommodations for self-represented litigants may be required by decisional or other law. [delete]The judge should be careful that accommodations do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality Among the[delete] Steps judges may consider in facilitating the right of self-represented litigants to be heard include, but are not limited to, are (1) providing brief information about the proceeding and evidentiary and foundational requirements, (2) asking neutral questions to elicit or clarify information, (3) modifying the traditional order of taking evidence, (4) refraining from using legal jargon, (5) explaining the basis for a ruling, and (6) making referrals to any resources available to assist the litigant in the preparation of the case.

Thank you for this opportunity to submit comments on this important matter.

Respectfully,

Jarrod Shirk
President, Washington Council of Lawyers