The Non-Traditional Advocate and the Pro Se Litigant

1. The Non-Traditional Advocate and the Pro Se Litigant

2. THE BIG PICTURE • Pro se’s access to justice is more difficult because they don’t know the law. • Recommendation that attorneys and judges give advice and/or help in the courtroom go too far. • Except in the “enforcement agency” arena. • The type of proceeding makes a difference as to how much “advice” a pro se should get.

3. The Pro Se Litigant • Does not always mean poor • Distinguished from the “Low-Income Litigant” • Can be MANY reasons you appear without a lawyer! • Does not always mean uneducated • 89% had high school education • 59% had some college or a degree • 5% had post graduate degrees

4. Generally, why pro se’s should not be given assistance • Pro se’s • Legal clinics, etc. • Are not necessarily “fools” • Not necessarily an unfair process • Most/some are shrewd and know how to play the system • Pro se’s are given much leeway in court (with filings and just because they are pro se). • Monetary advantages.

5. (continued) • Attorneys • Ethical barriers prevent attorneys from giving unrepresented individuals advice. 4.3 Model Code of Professional Conduct • Judges • Would violate judicial canons of impartiality. • Could make impartiality impossible. • “Litigant who chooses himself as legal representative should be treated no differently”

6. The Exception • Pro se’s should be given assistance/advice by the adverse party where they are being prosecuted by enforcement agencies. • The reason this is an issue is because ethical rules prohibit giving advice to an unrepresented litigant. • Rule 4.3: Model Rules of Professional Conduct

7. But what constitutes advice? • Substantive? • Procedural? • Strategies? • Making the pro se’s argument for them? • Assisting them to comply with the rules?

8. Enforcement Agencies • Examples are: • City of Chicago Department of Buildings/Health • Illinois Environmental Protection Agency • Protect the health, safety & welfare of the general public.

9. Agency enforcement proceedings • Akin to prosecutor. • Often many pro se litigants • Goal of any litigation, generally, is to protect the greater good. • Primary goal is not to extract money judgment from the defendant. • Proceedings are to get the person to comply, and not purely to punish for past wrongs. • Violations are ongoing.

10. “Non-Traditional” Advocates:City of Chicago Building Dept. • One area of law where there are a lot of pro se litigants. • Goal of the prosecuting attorney is to get compliance. • Achieving what the client wants--Department of Buildings wants to get the building fixed.

11. (continued) • For injuries that have already occurred, counseling a pro se will do nothing! • Advising a pro se in Housing court to address the “injury” directly, and stop it. • Means looking for a path for compliance. • Talking to people in the hallway, • Not objecting to a continuance, • Giving them a second chance, • Giving them “advice”

12. The Solution • “Advice” given on a case-by-case basis. • Home owner A is an 85 year-old woman from Guatemala who owns a single-family home. • Home owner B is a 30 year-old man who owns a commercial building and comes into court covered in dry-wall dust. • No set of guidelines currently exist.