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Harvard’s Instruction to Judges: Dealing with pro se litigants.

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MEETING THE CHALLENGE OF PRO SE LITIGATION: GUIDELINES FOR JUDGES

Lisa Green

February 27, 2003

ii

TABLE OF CONTENTS

I. Introduction...................................................................................................................... 1

II. Question Presented ........................................................................................................... 1

III. Discussion .......................................................................................................................... 1

A. Case Law....................................................................................................................... 2

1. Civil Litigants Have Right to Self-Representation ................................................. 2

2. Judges Must Ensure That Parties Receive A Fair Trial .......................................... 2

a. Some Judicial Leniency May Be Appropriate.................................................. 3

b. Judges May, or May Be Required to, Question Witnesses............................... 3

c. Judges May, or May Be Required to, Otherwise Intervene in Trial

Proceedings....................................................................................................... 6

3. Judges Must Hold Pro Se Litigant to Same Standards As Represented Parties ..... 8

B. Ethical Considerations ................................................................................................ 10

1. Massachusetts Code of Judicial Conduct.............................................................. 11

2. Enforcement of Codes of Judicial Conduct in Context of Pro Se Litigants ......... 13

C. Proposed Guidelines ................................................................................................... 21

IV. Conclusion ....................................................................................................................... 30

APPENDIX A – Comparisons of Relevant Portions of Codes of Judicial Conduct ............. 31

APPENDIX B – Summary List of Proposed Guidelines ......................................................... 38

 

I. Introduction The number of litigants who face navigating the court system without representation has increased dramatically in recent years. Pro se litigation is not a temporary trend; it must not be regarded as a problem, but rather as an ongoing challenge to the court's ability to provide equal access to all citizens. See, e.g., PRO SE LITIGANTS: THE CHALLENGE OF THE FUTURE, COMMONWEALTH OF MASSACHUSETTS TRIAL COURT PROBATE AND FAMILY COURT DEPARTMENT PRO SE COMMITTEE REPORT 2 (1999). A major component of meeting this challenge will lie in the hands of judges, but in order to ensure that judicial response is effective and widespread, it would be beneficial to provide judges with guidelines to steer and standardize their efforts.

 II. Question Presented Within the bounds of law and ethics, what can judges do to help meet the challenge of pro se litigation in the context of civil litigation?1 III. Discussion In order to answer this question, this paper will first outline case law that is germane to the issue of self-represented civil litigants and will then discuss relevant ethical requirements of and constraints on judicial conduct in the context of pro se litigants. Finally, based on the case law and ethical considerations, the paper will suggest general guidelines for judges to help them meet the challenge of pro se litigation.

1 The rare occurrence of a criminal defendant insisting on self-representation is beyond the scope of this paper; this revised-for-committee-discussion version will address the issue of self-represented litigants in the civil context only. A version of this paper which includes addressing criminal self-represented litigants is available upon request from the Bellow-Sacks Program.

2 A. Case Law2

1. Civil Litigants Have Right to Self-Representation Individuals may prosecute or defend their own civil actions. MASS. GEN. LAWS ANN. ch. 221, § 48 (2003). See also LoCicero v. Hartford Ins. Group, 25 Mass. App. Ct. 339, 344 (1988) (citing In Re Opinion of the Justices, 289 Mass. 607, 615 (1935) and stating that individuals may manage, prosecute, or defend their own actions, suits, and proceedings, and may defend prosecutions against themselves).

2. Judges Must Ensure That Parties Receive A Fair Trial There are no strict guidelines as to what is permitted or required of judges with regard to taking part in court proceedings; in a very basic sense, a judge must ensure that the parties receive a fair trial. Limits on and requirements of judicial conduct might become particularly difficult to discern with regard to self-represented litigants, towards whom some judicial leniency may be appropriate. Judicial questioning of witnesses and intervention otherwise in trial proceedings is generally within the discretion of the judge in each particular case; although it is not always easy for a judge to see his duty clearly, "a first-rate trial judge will find and tread the narrow path that lies between meddlesomeness on the one hand and ineffectiveness and impotence on the other." Commonwealth v. Haley, 363 Mass. 513, 519 (1973). 2

Although some of the cases cited in this discussion are criminal cases, the principles espoused by them likely apply in the civil context as well. See Crowe v. Di Manno, 225 F.2d 652, 656 (1st Cir. 1955) (citing N.Y. Central R.R. Co. v. Johnson, 279 U.S. 310, 318 (1929) for the proposition that criminal cases regarding the overstepping of bounds that restrict judicial comment on evidence (and subsequent limiting instruction to the jury that it is the ultimate fact finder) apply to civil cases as well. As grounds for the extension of criminal cases to the civil context, this court stated that "no trial in court is ever a purely private controversy in which the public has no interest. ‘The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence.'"). See also Calling and Interrogation of Witnesses by Court, 19 MASS. PRAC. EVIDENCE § 614.1 (2d ed. 2002) (providing that examination of witnesses by a trial judge is proper in both civil actions and criminal proceedings).

3 a. Some Judicial Leniency May Be Appropriate

Some leniency may be appropriate in the context of self-represented litigants, because a judge must ensure that the parties receive a fair trial. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (providing that some leniency is appropriate in determining whether a pro se complaint meets the requirements of the Rules of Civil Procedure). Massachusetts courts endorse such judicial leniency and provide that there are some circumstances in which a judge should intervene in order to guarantee this fair trial when one of the parties is self-represented. Mmoe v. Commonwealth, 393 Mass. 617 (1985). See also Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241, 241 n. 4 (1990) (holding that although the trial judge's intention in allowing evidence concerning the pro se defendant's prior arrest "because there was no objection from the defendant" was clearly to follow the principle that a pro se defendant must comply with the rules of procedure and substantive law, cited in cases such as Int'l Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983), the judge interpreted those cases too broadly and as a result abdicated his proper role as a judge); discussion infra Part III.A.2.b-c (explaining that there are certain circumstances in which the judge should engage in the questioning of witnesses, or in which the judge should intervene otherwise in trial proceedings); McGowan v. Dir. of the Div. of Employment Security, 388 Mass. 1003, 1003 (1983) (affirming lower court holding that an employee's failure to comply with procedure for appeals from decisions in employment security cases was fatal, and, importantly, not taking issue with the fact that the judge explained to the self-represented plaintiff, in an attempt to assist him, the applicable rules of civil procedure). b. Judges May, or May Be Required to, Question Witnesses Examination of witnesses by a trial judge is proper in both civil actions and criminal proceedings. Calling and Interrogation of Witnesses by Court, 19 MASS. PRAC. EVIDENCE 4 § 614.1 (2d ed. 2002). However, a judge should carefully exercise this right. Id. Examination of a witness by a judge creates the risk that the jury may attach undue weight to the line of inquiry pursued by the judge; to ameliorate this risk, many judges give a cautionary instruction. Id. See also Commonwealth v. Grogan, 11 Mass. App. Ct. 684, 686 (1981) (finding that there was no miscarriage of justice where judge actively questioned a defense witness, but gave the jury a limiting instruction not to draw any inferences from the fact that he had asked questions and not to give the answers elicited any special weight); Commonwealth v. Festa, 369 Mass. 419, 423 (1976) (holding that even though judge's questioning of witness might have been overzealous, it was harmless error since he specifically instructed the jury that nothing he had done during the trial should be taken by them as an indication of the facts they should find). Judges' right to question witnesses is not without bounds. There exists, however, no quantitative test for determining whether a judge has gone beyond the bounds that the law imposes; "‘much depends on the nature of the proceeding.'" Commonwealth v. Dias, 373 Mass. 412, 416 (1977) (stating further that a judge should utilize a rule of reason in determining his witness-questioning behavior). Generally, a trial judge may ask questions to clarify the evidence, eradicate inconsistencies, avert perjury, or develop trustworthy testimony, even if some of the answers reinforce the Commonwealth's case. Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 292-93 (1986) (internal citations omitted); Festa, 369 Mass. at 422-23. See also Dias, 373 Mass. at 417 (noting that "‘the most conscientious judge is one who is not content to leave vital questions unasked'") (internal citation omitted). The judge, however, may not take his questioning of witnesses too far. See Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 806- 07 (1996) (finding that the judge exceeded the limits on judicial questioning of witnesses when he went beyond clarification or correcting errant testimony, his questioning was too partisan on 5 the side of the prosecution, the foundation required for such evidence had not been established, and the judge did not neutralize the damage done by his questions with a limiting instruction to the jury). A judge may ask questions in order to expedite the proceedings, but he should not assume the role of an advocate despite his right to interrogate witnesses; he must exercise caution with regard to his manner, his attitude, and the form of his questions to ensure that he does not demonstrate bias or partisanship or create the impression that they exist. See Charles L. Hazelton & Son, Inc. v. Teel, 349 Mass. 617, 621 (1965) (holding that the petitioners were not denied their right to a fair and impartial trial where the judge asked questions, which were designed to clarify testimony or to aid in making a ruling on a matter of law, in response to unnecessary cross-examinations and violations of his rulings; the court further noted that it is the role of the judge to strive for order and efficiency in a trial, while upholding the dignity and authority of the court). For a case in which the judge exceeded this limit on his right to question witnesses, see Commonwealth v. Sneed, 376 Mass. 867, 869 (1978) (concluding that the defendant must have a new trial because the judge appeared impartial when he admonished a witness as to perjury and severely eroded her credibility by making clear to the jury that he did not believe the witness). Although a judge's right to examine witnesses is generally discretionary, some circumstances exist in which the judge has a duty to participate in the examination of a witness. Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990) (citing Festa, 369 Mass. at 422 for its proposition that "‘perhaps' there is a duty" of a judge to intervene in the examination of witnesses; in Festa, because there were discrepancies between certain testimony of witnesses and earlier testimony of the same witness, the judge needed to take "‘a hand in indicating to… each witness the extent of the inconsistencies'" in order to protect the witnesses from perjury and 6 obtain the most trustworthy testimony). See also Porter v. Metrowest Auto. Res., Inc., No. 9630, 2000 WL 562482, at *2 (Mass. App. Div. May 5, 2000) (providing that where a judge asks limited questions that clarify a point, question, or answer, focus the examination of witnesses, narrow the issues, develop reliable testimony, or simply move the proceedings along, the judge's questioning of witnesses is merely the fulfillment of his duty to direct the course of trial). c. Judges May, or May Be Required to, Otherwise Intervene in Trial Proceedings A judge's function at any trial is to be "‘not a mere functionary to preserve order and lend ceremonial dignity to the proceedings' but rather ‘the directing and controlling mind at the trial.'" Adoption of Seth, 29 Mass. App. Ct. at 349 (internal citations omitted). "A judge is expected to be more than a referee." Id. at 349, 351 (explaining that since judges are expected to be docket managers, the interests of efficiency often require them to become directly involved in avoiding unnecessary prolongation and retrial of their cases and holding that judge did not abuse his discretion by intervening because "his suggestions, orders, and comments were based on impressions formed from participation in the case and not from prejudicial information gleaned from an extrajudicial source"). See also Haley, 363 Mass. at 518 (providing that a judge may exclude proffered evidence without waiting for an objection from counsel); Griffith v. Griffith, 24 Mass. App. Ct. 943, 945 (1987) (holding that the judge was warranted in attempting to narrow the issues, asking questions, and directing the course of the trial). Consequently, in addition to the right to question witnesses, judges have the right to otherwise intervene in trial proceedings. Although a judge may exercise his discretion to intervene in trial proceedings, this discretion is not without limits. See Chandler v. FMC Corp., 35 Mass. App. Ct. 332, 338 (1993) (holding that although a judge has discretion to impose reasonable time limits on the length of the direct and cross-examination of witnesses, the judge abused his discretion in imposing such 7 time limits, because they prevented the parties from presenting their entire case to the fact finder). See also Furtado v. Furtado, 380 Mass. 137, 151 (1980) (holding that conviction must be reversed, because even though the judge did not appear to act vengefully, where there was no prosecutor and the judge developed the evidence against the defendant by asking questions to a probation officer, the judge's involvement in the presentation of the case gives the appearance that the defendant did not receive a fair trial); Slaughter v. McVey, 20 Mass. App. Ct. 768, 770 (1985) (finding that where a probate judge required the parties to reach a definitive settlement before they left the courthouse, he over-exercised his privilege of intervention by placing excessive pressure on the parties to settle). Similar to judicial questioning of witnesses, in the context of which there are certain circumstances that require judges to examine a particular witness, there are some instances, other than the questioning of witnesses, in trial proceedings that require judicial intervention. The Sapoznik court elaborated that during a trial, regardless of whether a party is represented by counsel, it may become necessary for a judge to intervene even though there has been no objection to the admissibility of certain evidence; although discretion and flexibility must be given to a litigant to pursue his trial strategy, a judge "is not required to sit idly by while counsel for either side questions a witness in an effort to obtain an answer which could be the basis of either a motion for mistrial or a claim on appeal that prejudicial matters were brought to the attention of the jurors." Sapoznik, 28 Mass. App. Ct. at 241 (citing Commonwealth v. Wilson, 381 Mass. 90, 118 (1980)). Dissimilar to the holding in Sapoznik that the judge should have stricken evidence concerning the pro se defendant's prior arrest regardless of the fact that there was no objection from the pro se defendant, however, a judge is not required to strike hearsay evidence to which there was no objection, even where the defendant is self-represented. 8 Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 330 (2002) (citing Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 743 (1986)).3 This seeming discrepancy can be resolved by the fact that in both Pimental and Stovall, the prosecutor did not frame the questions to elicit hearsay testimony from the witness; this is unlike Sapoznik, in which the prosecutor used improper tactics in an effort to take advantage of the fact that the defendant was self-represented. See id. at 331 n. 6; Sapoznik, 28 Mass. App. Ct. at 241. Consequently, whether a judge should take it upon himself to exclude certain evidence when a litigant is unrepresented, and thus does not know to object to allowance of the evidence, depends in part on whether the opposing party elicits the evidence in an attempt to take advantage of the litigant's pro se status. Id. 3. Judges Must Hold Pro Se Litigant to Same Standards As Represented Parties Although a judge must ensure that the parties receive a fair trial, there are limits on how lenient he or she may be towards a pro se party. Mmoe, 393 Mass. at 620. Referencing Haines v. Kerner, 404 U.S. at 520, the Mmoe court noted that although some leniency is appropriate in determining whether a pro se complaint meets the requirements of the Rules of Civil Procedure, those rules "bind a pro se litigant as they bind other litigants"; consequently, a pro se plaintiff's pleadings must stand or fall on their own. Id. at 619-20 (finding that a trial judge committed reversible error, despite being motivated by a desire to be sensitive to the difficulties of a selfrepresented plaintiff, when he considered oral statements and other written materials from the plaintiff that were not part of her complaint; "nothing in the [Rules of Civil Procedure] authorizes a judge to recast a complaint in a form that corresponds to the judge's view of what claims the plaintiff intended but failed adequately to set forth"). 3 Absent objection, jurors are entitled to give hearsay such probative effect as they deem appropriate. Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 331 n. 5 (2002) (citing Abraham v. Woburn, 383 Mass. 724, 726-27 n. 1 (1981)). 9 There is a plethora of case law in support of the proposition that a self-represented litigant is to be held to the same standards as represented parties. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (holding that procedural rules in ordinary civil litigation should not be interpreted so as to excuse mistakes by unrepresented parties; the court justified its holding by stating "in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law") (internal citations omitted); Int'l Fid. Ins. Co., 387 Mass. at 841 (noting that the right of self-representation is not "a license not to comply with relevant rules of procedural and substantive law").4 For the proposition that pro se litigants are to be held to the same standards as litigants who are represented by counsel, see also Burnham v. Super. Ct. of Peabody County, 432 Mass. 1014 (2000) (citing Hicks v. Comm'r of Corr., 425 Mass. 1014, 1014-1015 (1997)); Boat Maint. & Repair Co. v. Lawson, 50 Mass. App. Ct. 329, 330 (2000) (internal citations omitted); Davis v. Tabachnick, 425 Mass. 1010 (1997); Brossard v. West Roxbury Div. of the Dist. Ct. Dep't, 417 Mass. 183, 184 (1994); Kellerman v. Kellerman, 390 Mass. 1007, 1008 (1984) (internal citation omitted); Solimine v. Davidian, 422 Mass. 1002 (1996); McGowan, 388 Mass. at 1004 (internal citation omitted); Pandey v. Roulston, 419 Mass. 1010 (1995) (citing McGowan, 388 Mass. at 1004 for the proposition that the fact that a plaintiff is pro se does not excuse him from compliance with relevant rules of substantive and procedural law).5 4 The court explained that it did not see any reason to make an exception to the rule that pro se litigants are to be held to the same standards as represented parties where the defendant failed to comply with procedural rules, noting in a footnote, however, that the court had determined the pro se litigant's claim was without merit. Although not explicitly stated, the fact that the court made it a point to note that it had determined that the defendant's claim was without merit may suggest that had the court not made this determination, there might have been a possibility of making an exception to the rule. See Int'l Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 n. 7 (1983). 5 It may seem difficult to mesh the requirement that judges ensure a fair trial for the parties, which includes the discretion to be lenient in the context of self-represented litigants and the right, or a duty in certain circumstances, to question witnesses or intervene in trial proceedings, with the requirement that self-represented litigants be held to the same standards of compliance with substantive and procedural law as represented litigants. In order to 10 B. Ethical Considerations In the context of pro se litigants, a judge is presented with the "‘thorny dilemma' to balance the duty of impartiality in appearance and in fact with the duty to provide a fair and meaningful hearing." Joseph J. Bell, Ethics and Fairness in Family Court Pro Per Litigation, Association of Certified Family Law Specialists Website, at http://www.acfls.org/proper_ ethics.htm (last visited Dec. 29, 2002). A persistent problem for judges dealing with pro se parties is that if the unrepresented party is to receive a fair trial, the person will likely need assistance. Barrie Althoff, Ethics and the Law: Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons, WASHINGTON STATE BAR NEWS, January 2000, at http://www.wsba.org/barnews/2000/01/ethics.htm (last visited Dec. 22, 2002). The judge's role is not to assist the unrepresented party in order to level the resources of the parties, but is also not to oversee a "travesty of justice"; it is difficult for a judge to know where to draw the line between seeking a level playing field and "presiding over a litigation massacre." 6 Id. appreciate that these principles are not contradictory, I propose that one think of the requirement that judges ensure that the parties receive a fair trial as just that – a requirement of judges – and that one think of the requirement that self-represented litigants be held to the same standards as represented parties more as a requirement of selfrepresented litigants. Of course the latter requirement does compel judges to act in a certain way (e.g., it prevents them from considering oral statements from a plaintiff that are not part of her complaint, as in Mmoe v. Commonwealth, 393 Mass. 617 (1985)), but it does not prohibit them from engaging in the activities discussed in the context of ensuring that the parties receive a fair trial and, I would argue, does not prohibit them from employing the guidelines proposed by this paper (e.g., holding self-represented litigants to compliance with the Rules of Civil Procedure does not prohibit a judge from first explaining to the litigants what compliance with those rules entails). See discussion supra Part III.A.2; discussion infra Part III.C. 6 The issue for judges is particularly complicated when the self-proclaimed pro se party is actually receiving undisclosed legal assistance. When the undisclosed party is an attorney and writes briefs or other filings for the pro se litigant, the process is called ghostwriting; although Massachusetts courts have not opined on the issue of ghostwriting, the process is generally condemned. See JONA GOLDSCHMIDT, ET. AL., MEETING THE CHALLENGE OF PRO SE LITIGATION – A REPORT AND GUIDEBOOK FOR JUDGES AND COURT MANAGERS 26 (1998) (referencing Johnson v. Bd. of County Comm'rs, 868 F. Supp. 1226, 1231 (D. Colo. 1994)). See also, e.g., Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (refusing to allow ghostwriting). Despite the fact that ghostwriting is generally condemned, courts have been reluctant to discipline attorneys and pro se parties for engaging in the practice. See, e.g., Ricotta v. State of California, 4 F. Supp. 2d 961, 986 (S.D. Cal. 1998) (holding that the attorney's actions were not egregious enough to hold the attorney and the litigant in contempt of court for giving and receiving assistance in 11 1. Massachusetts Code of Judicial Conduct In Massachusetts, a judge has a duty to be impartial. MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 1 (2002) (providing that "a judge shall uphold the integrity and independence of the judiciary"); MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 2(A) (2002) (providing that "a judge should avoid impropriety and the appearance of impropriety in all his activities" and should act so as to "promote public confidence in the integrity and impartiality of the judiciary"); 7 MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 3 (2002) (entitled "A Judge Should Perform the Duties of His Office Impartially and Diligently").8 A judge should also be patient, dignified, and drafting documents). Colorado, on the other hand, has adopted several rules that require attorneys who draft for pro se litigants to include their name and other information, such as address and phone number, on the document. See Nancy Biro & Kerry Hill, Meeting the Challenge of Pro Se Litigation An Update of Legal and Ethical Issues, American Judicature Society Website (2000), at http://www.ajs.org/prose/pro_legal_ethical.asp (last visited Dec. 24, 2002) (referencing, among other things, COLO. R. CIV. P. Rules 11, 121 § 1.1, 311 (1999)). Even in Colorado, however, assisting a pro se litigant in filling out pre-printed and electronically published forms issued by the court does not constitute ghostwriting, so an attorney is not required to disclose such assistance. Id. For a discussion of the argument that ghostwriting should be allowed to help meet the challenge of pro se litigation, see Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URB. L.J. 1145 (2002). While Haines v. Kerner, 404 U.S. 519 (1972) provides that a self-represented litigant's complaint must be held to a less stringent standard than pleadings drafted by an attorney, it is not clear whether the lower standard should also apply to pleadings prepared by an undisclosed attorney. Barrie Althoff, Ethics and the Law: Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons, WASHINGTON STATE BAR NEWS, January 2000, at http://www.wsba.org/barnews/2000/01/ethics.htm (last visited Dec. 22, 2002). It is also not clear whether judges have an obligation to inquire of a pro se party whether he or she received assistance. With regard to assistance by a non-disclosed non-lawyer (not ghostwriting), authority in Tennessee and Florida provides that pleadings drafted with such assistance may not be disregarded or expunged and may not be prohibited by courts. See id. 7 Commentary to both the current and proposed Massachusetts Codes of Judicial Conduct provides a test for the imposition of sanctions for violation of Canon 2. "The test for imposition of sanction for violation of this Canon is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 2 (2002). See also Jona Goldschmidt, The Pro Se Litigant's Struggle for Access to Justice Meeting the Challenge of Bench and Bar Resistance, 40 FAM. CT. REV. 36, 43 (2002) (discussing ABA MODEL RULES OF PROF'L RESPONSIBILITY Canon 2(A) (1990), which provides the same test for the "appearance of impropriety"). 8 Please see Appendix A for a comparison of relevant portions of the current Massachusetts Code of Judicial Conduct with the proposed Massachusetts Code of Judicial Conduct. To summarize, the most noteworthy difference 12 courteous; should accord to every person a full right to be heard according to law; and should perform judicial duties without bias or prejudice. MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canons 3(A)(3),(4),(5),(B)(5) (2002). Despite the fact that it is often the type of assistance an unrepresented party needs in order to get a fair hearing, a judge may not provide the unrepresented party with legal advice or advice on courtroom tactics. MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 5(F) (2002) (providing that a judge should not practice law). Further, a judge has a duty to dispose promptly of the business of the court.9 MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 3(A)(5) (2002). A judge may find it difficult to dispose promptly of the court's business when there are unrepresented parties due to the pro se party's lack of knowledge of court procedures; it is not clear whether a judge should allow delays in a pro se case, which will then delay justice for other cases on the judge's docket.10 See Barrie Althoff, Ethics and the Law: Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons, between the current and proposed codes is the substitution of the word ‘should' with the word ‘shall' in many of the canons that are relevant in the context of pro se litigants; the substitution of the word ‘shall' in the proposed code imposes a mandatory standard for judges, as opposed to the current code, which imposes an aspirational standard. See Vivi Dilweg et. al., MODERN JUDICIAL ETHICS (BASED ON THE MODEL CODE OF JUDICIAL CONDUCT (1990)) 7 (1992). Consequently, the proposed code imposes more stringent requirements on the conduct of judges; as stated in the preamble, the proposed code "is intended to impose binding obligations the violation of which can result in disciplinary action." Appendix A also provides a comparison of relevant portions of the current ABA Code of Judicial Conduct with 1972 ABA Code of Judicial Conduct, on which the current Massachusetts Code is based, and a comparison of the current ABA Code with the proposed Massachusetts Code. 9 Commentary to the proposed Massachusetts Code of Judicial Conduct Canon 3(B)(8) points out, however, that when a judge seeks to dispose of a matter promptly by encouraging and seeking to facilitate settlement, the judge should not coerce parties into surrendering the right to a hearing by the courts. 10 Commentary to the proposed Massachusetts Code of Judicial Conduct Canon 3(B)(4) provides that "the duty to conduct proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court[; j]udges can be efficient and businesslike while being patient and deliberate." Commentary to Massachusetts Code of Judicial Conduct Canon 3(B)(4), at http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/codejudicialconductmemo.htm (last visited Jan. 2, 2003). 13 WASHINGTON STATE BAR NEWS, January 2000, at http://www.wsba.org/barnews/2000/01/ethics.htm (last visited Dec. 22, 2002). Thus far, few opinions have been issued to answer such questions and provide the guidance needed. 2. Enforcement of Codes of Judicial Conduct in Context of Pro Se Litigants The Massachusetts Committee on Judicial Ethics has not issued an opinion relating to judicial conduct in the arena of self-represented litigants. Several states have, however, issued such opinions. The California Commission on Judicial Performance has issued several opinions related to judicial conduct in the context of pro se litigants. Most recently, the Commission publicly censured a judge for his violations of several canons of the code of judicial conduct with regard to his failure to respect the rights of pro se litigants. Nancy Biro & Kerry Hill, Meeting the Challenge of Pro Se Litigation An Update of Legal and Ethical Issues, American Judicature Society Website (2000), at http://www.ajs.org/prose/pro_legal_ethical.asp (last visited Dec. 24, 2002) (referencing The Inquiry Concerning Judge Fred L. Heene, Jr., No. 153, California Commission on Judicial Performance (Oct. 13, 1999)). The California Commission found that by engaging in behavior such as denying a pro se defendant the right to cross-examine a police officer; ordering that a pro se defendant sell his car in order to pay a fine; ordering that a pro se defendant be taken into custody for not doing community service regardless of the fact that the defendant was pregnant and on bed rest; sentencing a pro se defendant, in the absence of a plea of guilty, no contest, or conviction at trial, to jail time for failing to pay a traffic fine; denying a defendant's request for counsel on grounds that the defendant was "able-bodied" and could get a job; and failing to advise a pro se defendant of her constitutional rights regarding revocation of probation (the right to an attorney, a hearing, and to subpoena and examine witnesses), the judge 14 violated his duties to "uphold the integrity and independence of the judiciary [which is likewise required by MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 1 (2002)], respect and comply with the law and… act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary [which is likewise required by MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 2(A) (2002)]," and "perform the duties of judicial office impartially and diligently [which is likewise required by MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 3 (2002)]." Id. Prior to this most recent opinion, the California Commission on Judicial Performance had issued several additional opinions relating to judicial conduct in the context of self-represented litigants. One such opinion was a recommendation, which was adopted by the California Supreme Court, to remove a judge for willful misconduct and prejudicial conduct towards unrepresented litigants. Kathleen Cuerdon-Kahn, California Judge Removed for Abuse of Contempt Power, 9 NOS. 3/4 JUD. CONDUCT REP. 1 (Fall 1987/Winter 1988) (referencing Furey v. Comm'n on Judicial Performance, 743 P.2d 919 (Cal. 1987), in which Judge Furey was discharged for various violations, such as imposing fines, sentencing, and immediately remanding to custody three pro se defendants). The judge further prevented another pro se defendant from fully presenting his defense, from cross-examining a police officer witness, and from making his closing statement. Id. at 9. With regard to this defendant, the Commission found that the judge's actions constituted willful misconduct in that the judge failed to conduct himself in a manner that promotes public confidence in the impartiality of the judiciary and in that the judge denied the defendant his right to be heard [which requirements of judicial conduct are likewise required by MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canons 2(A), 3(A)(4) (2002)]. Id. at 9-10. The California Commission on Judicial Performance 15 also found that another judge committed willful misconduct, prejudicial conduct, and conduct that brings the judiciary into disrepute, and found that the judge denied a pro se litigant's rights when he ignored a copy of the docket sheet presented by a pro se defendant, which showed that the DUI charge against the defendant had been dismissed because the defendant was not the driver of the car, decided to hear the case, accepted hearsay evidence that the defendant had been the driver, denied the defendant's repeated requests for counsel, found the defendant guilty, remanded him to custody, and sentenced him to six months in jail. Id. The Commission found that there was no merit to the judge's claim that the defendant's initial appearance without representation reasonably led the judge to believe that the defendant had waived his right to counsel. Kloepfer v. Comm'n on Judicial Performance, 782 P.2d 239 (Cal. 1989). Further, in Ryan v. Comm'n on Judicial Performance, 754 P.2d 724 (Cal. 1988), the court found an improper use of judicial authority and conduct prejudicial to the administration of justice where a judge neglected on three occasions to inform self-represented criminal defendants that they had a right to a verbatim record of proceedings and neglected to provide a court reporter. Id. (commenting that the judge's "stubborn and obstructionist attitude effectively deprived the defendants of their constitutional right to have a court reporter present"). The Colorado Tenth Judicial District Commission on Judicial Performance recently issued a "do not retain" recommendation for a judge, based, in part, on a survey that showed the judge's "‘demeaning and harsh treatment of individuals appearing in her court without legal counsel.'" Nancy Biro & Kerry Hill, Meeting the Challenge of Pro Se Litigation An Update of Legal and Ethical Issues, American Judicature Society Website (2000), at http://www.ajs.org/prose/pro_legal_ethical.asp (last visited Dec. 24, 2002) (citing the Colorado 16 Commission's recommendation, at http://www.cobar.org/static/judges/nov2000/10CNTYaanderson.htm). The Supreme Court of Connecticut privately admonished a judge for failing to treat a pro se guardian with patience and courtesy; however, the court found that the judge did not violate the Code of Judicial Conduct Canon 3(A)(3), which, like MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 3(A)(3), provides that a judge should be patient and courteous to litigants. In Re Judge Anonymous, Supreme Court of Connecticut (Apr. 19, 1988) (declining to find that the judge violated the Code of Judicial Conduct when the judge refused to allow a mother, who appeared pro se on behalf her son, to speak in court and held her in contempt and ordered her to be confined when she objected; the court did note, however, that the judge's conduct constituted "an unfavorable judicial practice"). The court further explained that parties, especially parties who are unrepresented and "who are unfamiliar with the court system, should be treated with patience and courtesy and should be afforded a reasonable opportunity to speak." Id. The Florida Committee on Standards of Conduct Governing Judges of the Florida Sixth Circuit concluded that a judge could provide unrepresented litigants with appropriate forms; although initially divided as to whether the provision by a judge of a brochure that contained an explanation of forms and procedures constituted the prohibited practice of law by a judge, the Committee subsequently created a self-help center to be operated with the aid of the court to provide such information. Barrie Althoff, Ethics and the Law: Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons, WASHINGTON STATE BAR NEWS, January 2000, at http://www.wsba.org/barnews/2000/01/ethics.htm (last visited Dec. 22, 2002) (internal citations omitted). Although the New Mexico Advisory Committee on the Code 17 of Judicial Conduct concluded, similar to the earlier Florida opinion, that judges could not ethically develop forms for litigants since doing so would be the forbidden practice of law by a judge and would create doubts about the judge's impartiality, Althoff believes that the nationwide trend will follow the later Florida opinion so that courts, possibly through administrators, will provide more forms and assistance to unrepresented parties. Id. Indiana's Commission on Judicial Qualifications addressed a judge's duties under the Code of Judicial Conduct with regard to pro se litigants in non-adversarial cases and opined that a judge's ethical duty to treat all litigants fairly obligates the judge to "ensure that a pro se litigant in a non-adversarial setting is not denied the relief sought only on the basis of a minor or easily established deficiency in the litigant's presentation or findings." 41-AUG RES GESTAE 14 (1997) (referencing Indiana Advisory Opinion 1-97 and noting that the Indiana Commission considered the Code of Judicial Conduct's requirement that judges remain neutral, impartial, fair, courteous, and efficient). See also Judges Receive Guidance on Handling Pro Se Cases, 19 No. 1 JUD. CONDUCT REP. 3 (Spring 1997) (discussing the Indiana Commission's opinion). The Committee advised that if a pro se litigant inadvertently or for lack of experience does not state an element that the judge requires, the judge should make an inquiry of the litigant, rather than denying the petition on that basis alone. Id. The Supreme Court of Maine found that a judge violated the Judicial Code of Conduct Canons 2(A) and 3(A)(1), which, like MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canons 2(A), 3(A)(1) (2002), provide that a judge should conduct himself so as to promote "public confidence in the integrity and impartiality of the judiciary," that "a judge should be faithful to the law and maintain professional competence in it," and that a judge should be "unswayed by partisan interests, public clamor, or fear of criticism," when he treated an 18 unrepresented juvenile differently than a juvenile who was represented by an attorney. Matter of Benoit, 487 A.2d 1158 (Maine 1985) (sanctioning the judge for detaining the unrepresented juvenile defendant in an institution far from his home, while allowing the juvenile defendant who was represented by counsel to stay in the custody of his parents). The Benoit court provided that the test for whether conduct violates Canon 3(A)(1) is objectively whether a "reasonably prudent and competent judge would consider [the] conduct obviously and seriously wrong in all the circumstances." Id. The New York State Commission on Judicial Conduct recently censured a judge for abusing his judicial power towards a pro se litigant; the judge's behavior, the court found, suggested that the judge was biased against the unrepresented litigant. In Re Joseph Teresi, New York State Commission on Judicial Conduct (2001), at http://www.scjc.state.ny.us/teresi.htm (last visited Dec. 30, 2002) (finding bias and abuse of power where a judge granted a default judgment against a pro se party despite the fact that the litigant was not in fact in default, ordered the defendant to sign a corrective deed before any finding had been made as to the defendant's liability, and held the defendant in contempt and sentenced him to jail for refusing to sign the deed without any provision of his release if he purged himself of the contempt). Further, in In Re Joseph Jutkofsky, Jr., New York Commission on Judicial Conduct (Dec. 24, 1985), the New York Commission on Judicial Conduct found that a judge violated the Rules Governing Judicial Conduct and Canons 1, 2, 3(A)(1), 3(A)(4), 3A(5), 3B(1) and 3B(2) of the Code of Judicial Conduct11 where the judge accepted guilty pleas from three unrepresented and intoxicated defendants, despite knowing that proper procedure required him to arraign them at a later time, 11 The canons of the New York Code of Judicial Conduct cited by this opinion provide substantially the same requirements of judicial conduct as the like-numbered canons of both the 1972 ABA Code of Judicial Conduct and 19 and again where the judge induced thirty-four unrepresented defendants to plead guilty after their initial arraignments and sentenced them to jail in violation of both the Sixth and Fourteenth Amendments of the Federal and the New York State Constitutions. Id. The New York Commission on Judicial Conduct has further opined that a judge violated Canons 1, 2, 3(A), and 3(C)(1) of the New York Code of Judicial Conduct12 when he did not assign counsel to defendants whom he should have known were not able to afford counsel, despite the fact that many of them were inexperienced or otherwise incapable of protecting their rights; accepted pleas of guilty from them; and often sent them to jail without setting bail or a date for a return appearance. Matter of Anthony Ellis, New York Commission on Judicial Conduct (July 14, 1982) (noting that the judge's treatment of the pro se defendants was based on his own prejudices rather than the merits of their cases; consequently, "the judge abused the power of his office in a manner that brought discredit to the judiciary and irredeemably damaged public confidence in the integrity of his court"). The Washington Supreme Court censured a judge, suspended him for six months without pay, adopted the recommendation of the Commission on Judicial Conduct to monitor him for two years, and required him to meet with a mentor and complete courses in ethics, criminal procedure, and diversity for threatening pro se defendants who had not paid their fines with indefinite imprisonment, using a guilty plea form that denied the defendants their right to due process, holding trials in absentia, engaging in disrespectful conduct towards the unrepresented parties, and inquiring of Hispanic defendants whether they were ‘legal'. Judge Sanctioned for Bullying, Failure to Protect Rights, 21 No. 3 JUD. CONDUCT REP. 4 (Fall 1999) (referencing In the current Massachusetts Code of Judicial Conduct. See discussion, supra Part B.1. for a discussion of those canons that are relevant to the context of pro se litigation. 20 Re Hammermaster, 985 P.2d 924 (1999) and noting that "the defendants in the cases at issue were not represented by counsel[, and stating] that ‘[p]eople appearing pro se and without legal training are the ones least able to defend themselves against rude, intimidating, or incompetent judges'"). The Washington Supreme Court determined that this judge's conduct "denigrate[d] the public view of… courts as places of justice." Id. Finally, the Wisconsin Judicial Commission found that a judge violated several of the standards embodied in the Wisconsin Code of Judicial Ethics when he found ten litigants, nine of whom were not represented by counsel, in contempt of court for making noise or comments, without warning them that their conduct was impermissible, and ordered them into custody until they fully paid their fines, without asking if they would be able to pay or needed more time. In Re Nicholas F. Lucas, Jr., Wisconsin Judicial Commission (Apr. 13, 1989) (holding that the judge "failed to maintain appropriate temperament and exercised his contempt power in an excessive, unnecessary, and abusive manner"). Although there has been a recent increase in the number of opinions on the issue of judicial conduct in the context of pro se litigants, until general guidelines for judges are established, when one or more parties are self-represented, judges will remain torn between adherence to procedures instituted to ensure due process and fairness for all parties, and the reality of achieving such fairness.13 12 See supra note 10. 13 It is important to note that, as suggested by the Conference of State Court Administrators ("COSCA"), ethical concerns can be somewhat ameliorated by the implementation of assistance for unrepresented litigants – "[l]itigants who are better prepared for what will transpire in the courtroom will require less intervention or assistance on the part of the court." Position Paper on Self-Represented Litigation, Conference of State Court Administrators, at http://cosca.ncsc.dni.us/position.html (last visited Dec. 29, 2002). In order to ameliorate some of the judicial ethical concerns surrounding pro se litigants, COSCA suggests the provision of written information on trial procedures, with videos and technology-based assistance as an alternative, and alternative dispute resolution programs that can move cases from the courtroom to less formal settings. Id. It is interesting to note that some court systems have instituted other creative approaches to address the issue of pro se litigation. See, e.g., Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and the Pro Se Plaintiff, 16 NOTRE DAME J.L. ETHICS & PUB. POL'Y 21 C. Proposed Guidelines With regard to pro se litigants, judges must be concerned about what they can and cannot do and what they should and should not do; some judges even express concern that pro se litigants may use the judicial leniency that results from their unrepresented status to gain an unfair advantage over represented parties. See, e.g., Haines v. Kerner, 404 U.S. at 520; Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 1988 (1999). Judges must face the issue of unrepresented parties in the context of approving settlements and litigation, and, as addressed in the discussion of case law, must consider the interests of not only the pro se party, but also the interests of the court in efficiency and "docket control" and the interests of opposing parties. See id. at 1989. The primary issue for judges when one party is self-represented is remaining impartial. JONA GOLDSCHMIDT, ET. AL., MEETING THE CHALLENGE OF PRO SE LITIGATION – A REPORT AND GUIDEBOOK FOR JUDGES AND COURT MANAGERS 52 (1998). Other issues include: the perception of bias by both pro se litigants and represented parties when the court controls the questioning of parties and witnesses; convincing the pro se litigant that he or she will get a fair hearing and that the court is not partial to the state; convincing the attorneys that educating the self-represented party about the trial process is not the same thing as being partial to the pro se litigant; preventing attorneys from taking advantage of the unrepresented party's inexperience and lack of knowledge of courtroom rules and process; handling prolonged proceedings that "place a burden on the court and hamper opposing counsel's presentation of his or her case due to lack of experience and inability to understand elementary proceedings"; 475, 495 (2002) (discussing the Eastern District of New York, which appointed a magistrate judge to oversee the court's pro se docket in an attempt to achieve greater efficiency for the court overall and provide high-quality 22 balancing the goals of arriving at the truth while holding pro se litigants to the same procedural standards as represented parties; and, where both parties are self-represented, trying to be a referee and maintain control in the courtroom. Id. at 52-54. Also at issue in the context of unrepresented litigants is the "analysis barrier," which represents the fact that many selfrepresented litigants need more than simply to be told the law; they need help in all aspects of the trial process, such as analyzing the law and applying it to the facts of their case; the "situation and options evaluation barrier," which represents the fact that self-represented litigants often have difficulty evaluating their options with regard to whether to go to trial, settle, or pursue some form of alternate dispute resolution; the "preparation and presentation barrier," which represents the fact that many pro se litigants are not good at presenting their claim even if they do understand it; the "remedy barrier," which represents the difficulty that many self-represented litigants have with identifying the most appropriate relief for their problem; and the "enforcement barrier," which represents pro se litigants' difficulty in enforcing relief once it has been ordered. RICHARD ZORZA, THE SELF HELP FRIENDLY COURT, BELLOW-SACKS ACCESS TO CIVIL LEGAL SERVICES PROJECT PRO SE AND CLIENT SELF-HELP SEMINAR 34-35 (May 2002), at <http://www.zorza.net/Res_ProSe_SelfHelpCtPub.pdf>. Despite the existence of these issues and the availability of relevant case law and ethical considerations, most courts have "‘no general policy addressing the manner in which pro se litigants should be handled in the courtroom or in the litigation process generally.'" Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 2013 (1999) (citing Jona Goldschmidt, How Are Judges and Courts Coping With Pro Se Litigants?: Results from a hearings for pro se litigants). 23 Survey of Judges and Court Managers (May 1997) (unpublished manuscript)). To facilitate the creation of such a general policy, the remainder of this paper will suggest guidelines, based on the previously discussed case law and ethical considerations, to be used by Massachusetts judges14 in their attempt to address some of the aforementioned issues.15 A JUDGE SHOULD 1. Set the tone for an affirmative response to self-represented litigants. Although suggested by the Conference of Chief Justices ("CCJ") and COSCA (see supra note 12) Joint Task Force on Pro Se Litigation as a guideline for chief justices and state supreme courts, it would be beneficial for all judges to follow this recommendation; other judges, court staff, and the greater legal community look not only to chief justices and state supreme courts, but to all judges, for direction about how to address to the needs of pro se litigants. Task Force Report July 2002, Conference of Chief Justices Website, at http://ccj.ncsc.dni.us/TaskForceReportJuly2002.pdf (last visited Dec. 29, 2002). 2. Provide self-represented litigants with information and services to better enable them to use the court. Revised Pro Se Policy Recommendations, American Judicature Society Website (2002), at http://www.ajs.org/prose/pro_resources.asp (last visited Dec. 30, 2002). See also Barrie Althoff, Ethics and the Law: Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons, WASHINGTON STATE BAR NEWS, January 2000, at 14 Cf. ABA Standards, Comm. on Standards of Judicial Administration, § 2.23, at 45-47 (1976) (stating that "the 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 a specific formula"). JONA GOLDSCHMIDT, ET AL., MEETING THE CHALLENGE OF PRO SE LITIGATION – A REPORT AND GUIDEBOOK FOR JUDGES AND COURT MANAGERS 31 (1998). The guidelines provided in this paper are not intended to provide a specific formula to replace judicial discretion, but rather to serve as general guidelines to which judges can refer when exercising their discretion. 15 With regard to the ethical considerations faced by Massachusetts judges in the context of pro se litigants, these guidelines are suggested under the assumption that the Massachusetts Committee on Judicial Ethics would generally be in agreement with opinions issued by similar committees in other states, which have been discussed supra. 24 http://www.wsba.org/barnews/2000/01/ethics.htm (last visited Dec. 22, 2002) (discussing the Florida Committee on Standards of Conduct Governing Judges of the Florida Sixth Circuit's finding that judges could provide unrepresented litigants with appropriate forms). But see id. (noting the New Mexico Advisory Committee on the Code of Judicial Conduct's opposite conclusion that judges could not ethically develop such forms). 3. Confirm that the unrepresented party is not an attorney, understands that he or she is entitled to be represented, and chooses to proceed without an attorney. Proposed Protocol To Be Used by Judicial Officers During Hearings Involving Pro Se Litigants, Minnesota Conference of Chief Judges, Pro Se Implementation Committee, at http://www.ajs.org/prose/pro_resources.asp (last visited Dec. 30, 2002) [hereinafter Proposed Protocol]. See also Jennifer Elizabeth Parker, Constitutional Law - United States v. Goldberg: The Third Circuit's Nontraditional Approach to Waiver of the Sixth Amendment Right to Counsel, 41 VILL. L. REV. 1173, 1190-91 (1996) (suggesting that a judge should warn an unrepresented litigant that he or she will be expected to follow technical rules that govern the trial process; that the litigant will likely be opposed by counsel who has experience and training in trial procedure; and that the litigant, due to his or her lack of experience, will likely make technical and tactical mistakes that would not be made by an attorney). Further, the judge should determine whether the litigant comprehends the nature of the charges against him or her and the punishment he or she might receive and should ensure that the litigant knows that proceeding pro se bars an appeal about the competency of representation. Id. 4. If the defendant still chooses to represent him or herself, inquire into factors relevant to the defendant's subjective understanding of his decision to proceed pro se and its 25 consequences. Commonwealth v. Barnes, 399 Mass. 385, 390-91 (1987) (internal citations omitted). Such factors include the defendant's background, prior experience or familiarity with trials, and any consultations with counsel prior to trial. Id. 5. Explain the process and ground rules. Proposed Protocol (suggesting that judges explain, for example, that the judge will hear both sides, with the petitioner presenting first, that everything said will be recorded by the court reporter, etc.). 6. Explain the elements that a petitioner must show in order to prevail on his or her claim. Proposed Protocol. See also RICHARD ZORZA, THE SELF HELP FRIENDLY COURT, BELLOWSACKS ACCESS TO CIVIL LEGAL SERVICES PROJECT PRO SE AND CLIENT SELF-HELP SEMINAR 34-35 (May 2002) at <http://www.zorza.net/Res_ProSe_SelfHelpCtPub.pdf>. (suggesting that a judge should begin a case by outlining the decision-making steps that he or she will take and providing that discussion of such steps should include the elements of the case and defenses). Zorza further encourages judges to walk through the decisionmaking process step-by-step, discussing each step with both sides, making a decision on a step before proceeding to the next step, and explaining the effect that the decision on a step will have on the rest of the proceeding. Id. This process should make it easier for unrepresented litigants to present focused and relevant evidence and arguments and should enable the litigants to better understand the reasons for the judge's decision. Id. If the judge does not adhere to Zorza's recommendation to walk through the decision-making process step-by-step, if a pro se party in a non-adversarial case inadvertently or for lack of experience does not state an element that the judge requires, the judge should make an inquiry of the litigant, rather than denying the petition on that basis alone. Judges Receive Guidance on Handling Pro Se Cases, 19 No. 1 JUD. CONDUCT REP. 3 (Spring 1997). 26 6. Explain that the party bringing the action has the burden to present evidence in support of his or her claim. Proposed Protocol. 7. Explain the type of evidence that may be presented. Id. (providing that judges should instruct the pro se litigant that evidence may be in the form of testimony from parties, testimony from witnesses, or exhibits). 8. Explain that there are limits on the kind of evidence that may be considered, so that unrepresented litigants will understand if the judge refuses to consider certain evidence presented. Id. A judge should explain that his decisions regarding what evidence may be considered must be based upon the Rules of Evidence and that if one party tries to offer inadmissible evidence, either the judge or the opposing party may object. See Haley, 363 Mass. at 518 (holding that a judge may exclude proffered evidence without waiting for an objection). See also Proposed Protocol To Be Used By Idaho Judges During Hearings Involving Self-Represented Litigants, Idaho Committee to Increase Access to the Courts (Apr. 23, 2002) (suggesting further that a judge should provide examples of evidence, such as hearsay, that would be inadmissible) (on file with author).16 9. Ask both parties whether they understand the process and procedure. Id. 10. Limit judicial questioning to inquiries aimed at eliciting general information so as to avoid the appearance of advocacy or impartiality. Id. See also discussion, supra Part III.A.2.b. 11. Assure that pro se litigants have the opportunity to meaningfully present their case and ensure that procedural and evidentiary rules are not used to impede the legal interests of unrepresented parties. Revised Pro Se Policy Recommendations, American Judicature 16 Idaho's proposed protocol is modeled after Proposed Protocol To Be Used by Judicial Officers During Hearings Involving Pro Se Litigants, Minnesota Conference of Chief Judges, Pro Se Implementation Committee, at 27 Society Website (2002), at http://www.ajs.org/prose/pro_resources.asp (last visited Dec. 30, 2002). In order to do this, a judge may need to directly question witnesses for unrepresented parties and may need to be more lenient with opening and closing statements. Id. See also Haines v. Kerner, 404 U.S. at 520 (providing that some leniency is appropriate on the part of judges with regard to pro se litigants). Although not required, when one party is self-represented, a judge should consider sua sponte whether to limit extensive hearsay narratives from witnesses, even when there is no objection. Massachusetts Continuing Legal Education, Inc., JURY TRIAL MANUAL FOR CRIMINAL OFFENSES TRIED IN THE DISTRICT COURT, MAIN HANDBOOK §1.08 (Oct. 1987) (citing Stovall, 22 Mass. App. Ct. at 739-43). See also discussion, supra Part III.A.2.c. 12. Inform the jury that the pro se litigant has exercised his right to represent himself, so that he or she will be acting as his or her own attorney. Id. at 814 (stating that such an instruction will assist jurors in reaching a fair verdict, which, as a result, will increase the legitimacy of the legal system). Such an instruction would inform the jury that the defendant's actions in representing him or herself were legitimate legal proceedings and that his choice to represent him or herself was the exercise of a legal right, and it would help the jury determine what constitutes evidence - although the jury will be instructed that nothing a lawyer says is evidence, it may become confusing with a self-represented litigant, who is a party and a potential witness and is acting as a lawyer. 13. Where applicable (e.g., with regard to small claims civil cases, Social Security cases, welfare and unemployment benefits cases, etc.), use precedent from small claims courts http://www.ajs.org/prose/pro_resources.asp (last visited Dec. 30, 2002), which is referenced as Proposed Protocol in the text of the paper. 28 and administrative agencies17 rather than precedent from federal or higher state courts, or from criminal cases, in which the court's objective seems to be to deter litigants from selfrepresentation. 18 See Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 2016-17 (1999). 14. Examine the papers and talk to unrepresented parties about negotiations with opposing parties, particularly when the opposing party has counsel, in the settlement context to ensure that the compromise or waiver of any claims is knowing, intelligent, and voluntary before approving the settlement.19 Id. at 2029. 15. Where an unrepresented party to a settlement agreement appears to have a language barrier, have the settlement agreement translated or explained in the party's primary language. Recommendations from Boston Bar Association Task Force on Unrepresented Litigants, Boston Bar Association Task Force On Unrepresented Litigants Report on Pro Se 17 Such precedent requires judges to remain impartial, but provides for judges to actively assist unrepresented litigants without compromising their impartiality. Welfare hearings, for example, are conducted by "an impartial referee." Russell Engler, And Justice for All – Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 FORDHAM L. REV. 1987, 2018 (1999); MASS. REGS. CODE tit. 106 § 343.110 (2002). 18 The Uniform Small Claims Rules of the Massachusetts Trial Courts provide that "[t]he court shall conduct the trial in such order and form and with such methods of proof as it deems best suited to discover the facts and do justice in the case." MASS. SMALL CLAIMS R. OF TRIAL CTS. Rule 7(e) (2002). 19 A judge might ask questions such as why the unrepresented litigant signed the settlement agreement and whether the litigant thinks the agreement is fair in order to determine whether the settlement agreement resulted from "misinformation or coercion." Engler, supra note 16, at 2029. In response to the argument that such involvement by judges would compromise their impartiality, Engler responds that as long as the judge is equally willing to help each party, impartiality is not compromised; Engler further argues that failure to engage in such an active role is "more likely to constitute partiality, since the court's current operation, particularly where only one party appears without counsel, favors one party for reasons unrelated to the merits of the claims." Id. at 2030-31. In response to the problem of over-burdened judges, which would only be exacerbated by the suggestion that judges should be more actively involved in settlements when at least one of the parties is unrepresented, Engler suggests that other court personnel such as mediators and clerks should be involved in the negotiation process to provide assistance to unrepresented parties in order to reduce the burden on the judge. Id. at 2031. 29 Litigation (August 1999), at http://www.unbundledlaw.org/recommendations/sourcematerials/bostonbar.htm (last visited Dec. 30, 2002). 16. Whenever possible, decide the matter and prepare the order immediately upon the conclusion of the hearing so it may be served on the parties. Proposed Protocol. A JUDGE SHOULD NOT 1. Take sides in a case or proceeding pending before the court. John M. Greacen, "No Legal Advice from Court Personnel" What Does That Mean?, 34 JUDGES' J. 15 (Winter 1995) (suggesting guidelines for court personnel). See generally MASS. GEN. LAWS ANN. Sup. Jud. Ct. Rule 3.09, CODE JUD. CONDUCT Canon 2(A) (2002) (requiring judges to conduct themselves in a manner that promotes public confidence in the impartiality of the judiciary). 2. Provide information to one party that he or she would be unwilling or unable to provide to all other parties. Id. See, e.g., Mmoe, 393 Mass. at 619-20 (providing that although a judge must ensure that the parties receive a fair trial, there are limits as to how lenient he or she may be towards the pro se party). 3. Treat pro se litigants more harshly than litigants who are represented by counsel. See, e.g., Matter of Benoit, 487 A.2d 1158 (Maine 1985). 4. Hold a self-represented litigant in contempt without first warning the litigant that his or her conduct is objectionable. In Re Nicholas F. Lucas, Jr., Wisconsin Judicial Commission (Apr. 13, 1989). 5. Coerce parties into surrendering the right to a hearing by the courts in an attempt to dispose of the matter promptly. Commentary to the proposed Massachusetts Code of Judicial 30 Conduct Canon 3(B)(8), at http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicialcourt/codejudicialco nductmemo.htm (last visited Jan. 2, 2003). IV. Conclusion With a greatly increasing number of litigants proceeding through the civil court system without representation, it is more important now than ever for the legal community to examine existing process and procedure in search of ways to make the system more amenable to selfrepresented litigants. Perhaps the guidelines proposed here can serve as a platform for discussion that will lead to a standardized set of guidelines for the judges of Massachusetts to steer their efforts, within the framework of law and ethics, towards effectively meeting the challenge of pro se litigation. 31 APPENDIX A COMPARISONS OF RELEVANT PORTIONS OF CODES OF JUDICIAL CONDUCT Differences between Current ABA Code and 1972 ABA Code20 • Canon 1 changed from "a judge should uphold the integrity and independence of the judiciary" to "a judge shall uphold the integrity and independence of the judiciary." • Canon 2 changed from "a judge should avoid impropriety and the appearance of impropriety in all his activities" to "a judge shall avoid impropriety and the appearance of impropriety an all of the judge's activities." • Canon 3 changed from "a judge should perform the duties of his office impartially and diligently" to "a judge shall perform the duties of his office impartially and diligently." • Canon 5(F) in the 1972 Code provided that "a judge should not practice law." Canon 4(G) in the current ABA Code provides that "a judge shall not practice law." • These changes distinguish between aspirational (should) and mandatory (shall) standards. Vivi Dilweg et. al., MODERN JUDICIAL ETHICS (BASED ON THE MODEL CODE OF JUDICIAL CONDUCT (1990)) 7 (1992). As stated in the preamble to the current ABA code, the use of ‘shall' "is intended to impose binding obligations the violation of which can result in disciplinary action." In the context of pro se litigation, these changes will require judges, rather than simply encouraging them, to uphold the standards promulgated; consequently, the current code imposes more stringent standards upon the conduct of judges. • The requirement that "a judge shall perform judicial duties without bias or prejudice" was a new provision added to Canon 3 (as Canon 3(B)(5)) in the 1990 version of the ABA Code. The effect of this addition to the requirements for judicial conduct in the context of pro se 32 litigation is not likely to be monumental, because cases on judicial bias or prejudice have been decided under Canon 1 (which stated that a judge should establish, maintain and enforce high standards of conduct), Canon 2(A) (which stated that a judge should act in a manner that promotes public confidence in the "integrity and impartiality of the judiciary"), Canon 3(A)(3) (which stated that a judge should be "patient, dignified, and courteous to litigants, …"), and Canon 3(B)(5),(6) (which specified the requirements of impartial decision-making and the appearance of fairness in the courtroom) of the 1972 ABA Code. Vivi Dilweg et. al., MODERN JUDICIAL ETHICS (BASED ON THE MODEL CODE OF JUDICIAL CONDUCT (1990)) 38 (1992). However, the addition of this requirement does add one more provision that a judge could be found to have violated with regard to his conduct in the context of unrepresented litigants. Differences between Current Massachusetts Code and Proposed Massachusetts Code • Canon 1 in the current code provides that "a judge should uphold the integrity and independence of the judiciary" and that the judge "should himself observe" high standards of conduct; the proposed code provides that "a judge shall uphold the integrity and independence of the judiciary" and "shall personally observe" high standards. • Canon 2 in the current code provides that "a judge should avoid impropriety and the appearance of impropriety in all his activities," and in the proposed code, provides that "a judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." Canon 2(A) in the current code provides that "a judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," whereas Canon 2(A) in the 20 The current Massachusetts Code is based on the 1972 ABA Code. 33 proposed code provides that "a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." • Canon 3 in the current code provides that "a judge should perform the duties of his office impartially and diligently"; the proposed code provides that "a judge shall perform the duties of the judicial office impartially and diligently." Canon 3(A)(3) of the current code further provides that "a judge should be patient, dignified, and courteous to litigants…," whereas Canon 3(B)(4) in the proposed code provides "a judge shall be patient and courteous to litigants…." While Canon 3(A)(4) of the current code provides that "a judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law," Canon 3(B)(7) of the proposed code provides that "a judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law." Canon 3(A)(5) in the current code provides that "a judge should dispose promptly of the business of the court"; Canon 3(B)(8) of the proposed code provides that "a judge shall dispose of all judicial matters promptly, efficiently, and fairly." 21 • Canon 5(F) of the current code provides that "a judge should not practice law." Canon 4(G) of the proposed code provides that "a judge shall not practice law." • As with the wording changes from the 1972 ABA code to the current ABA code discussed above, the replacement of the word ‘should' in the current code with the word ‘shall' in the proposed code distinguishes between aspirational (should) and mandatory (shall) standards. Vivi Dilweg et. al., MODERN JUDICIAL ETHICS (BASED ON THE MODEL CODE OF JUDICIAL 21 While Canon 3(B)(5) of the current ABA code, which provides that "a judge shall perform judicial duties without bias or prejudice," was a new addition to the ABA code and so was not found in the 1972 ABA code, the same 34 CONDUCT (1990)) 7 (1992). These changes place a greater degree of limitation on judges' ability to use discretion in determining their approach to and conduct towards pro se litigants. • Canon 1 in the current code provides for no limitation "upon the Supreme Judicial Court in the exercise of its power of general superintendence, whether statutory or inherent, in areas not delineated in the Code." The proposed code omits the provision that there will be no limitation on the Supreme Judicial Court. Like the substitution of the word ‘shall' for the word ‘should' in many of the code provisions, this change also seems to represent a general move towards less lenience with regard to the conduct of judges; the proposed code no longer prohibits a limitation upon the Supreme Judicial Court in the exercise of its power of general superintendence. • In addition to replacement of the word ‘should' in Canon 3(A)(5) of the current code with the word ‘shall' in Canon 3(B)(8) of the proposed code, the proposed Canon 3(B)(8) requires judicial disposition of matters to be not only prompt as under Canon 3(A)(5) of the current code, but also to be efficient and fair. In a similar vein to the should/shall wording changes and the exclusion of the prohibition on limiting the Supreme Judicial Court's exercise of its power of general superintendence, the addition to the proposed code of a requirement that judges dispose of matters fairly and efficiently further communicates an attitude of diminishing lenience with regard to judicial conduct. Differences between Current ABA Code and Proposed Massachusetts Code • Unlike the ABA code, the preamble to the proposed Massachusetts code explicitly provides that judicial conduct that might literally violate a provision of the code may be permissible if Canon 3(B)(5) is found in both the current and proposed Massachusetts codes and so is not a new addition for 35 it does not violate the policy behind the provision. Due to this difference between the current ABA code and the proposed Massachusetts code, in contrast to the effect of the should/shall wording changes discussed supra and infra, the proposed Massachusetts code appears to give judges more discretion in that it suggests that it might be acceptable to violate a literal reading of the provisions of the code, so long as the policy behind the provisions is preserved. • Canon 1(A) of the current ABA code provides that "a judge should participate in establishing, maintaining and enforcing high standards of conduct…," whereas the proposed Massachusetts code provides that "a judge shall participate in establishing, maintaining, and enforcing high standards of conduct…." With regard to Canon 1(A), the proposed Massachusetts code imposes a more stringent requirement on judicial conduct; according to its preamble, because it uses the word ‘shall' rather than the word ‘should,' the proposed Massachusetts code intends the text of the provision to be authoritative and to impose a binding obligation the violation of which can result in disciplinary action. In contrast, according to its preamble, the current ABA code intends the text of the provision to be "hortatory" and "a statement of what is appropriate conduct," but does not intend it to be "a binding rule under which a judge may be disciplined." However, unlike the ABA code, commentary to the proposed Massachusetts code provides that "a judicial decision or action determined by an appellate court to be incorrect either as a matter of law or as an abuse of discretion is not a violation of this Code unless the decision or action is committed knowingly and in bad faith." This commentary lessens the effect of the authoritative Massachusetts. 36 language; only conduct that is committed knowingly and in bad faith will be subject to disciplinary action. • With regard to Canon 2, the ABA code provides that "actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code" and provides that "the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." The proposed Massachusetts code provides only that "the test for imposition of sanction for violation of this Canon is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." Similar to the differences in the codes' preambles discussed above, the differences between Canon 2 in each code suggest that the proposed Massachusetts code allows judges more discretion; while the current ABA code automatically defines as an actual impropriety, and thus a violation of the canon, a violation of law, court rules, or specific provisions of the code, the proposed Massachusetts code does not provide that such violations will automatically qualify as violations of this canon. As a result, it is conceivable that a violation of a court rule, for example, might not constitute a violation of Canon 2 under the proposed Massachusetts code, so long as the policy behind Canon 2 has not been violated. In contrast, any violation of a court rule would automatically qualify as a violation of Canon 2 under the current ABA code. • While the commentary for Canon 3(B) in the ABA code provides that "a judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment…," the commentary for this canon in the proposed Massachusetts code provides that "a judge must refrain from speech, gestures, or other conduct that could reasonably be 37 perceived as evidencing bias or prejudice…." Consequently, the proposed Massachusetts code appears to be broader in terms of the specific speech, gestures, and conduct that it prohibits; while the current ABA code lists only such conduct that can be perceived as sexual harassment, the proposed Massachusetts code includes any biased or prejudicial conduct.

APPENDIX B SUMMARY LIST OF SUGGESTED

A JUDGE SHOULD

1. Set the tone for an affirmative response to self-represented litigants.

 2. Provide self-represented litigants with information and services to better enable them to use the court.

 3. Confirm that the unrepresented party is not an attorney, understands that he or she is entitled to be represented, and chooses to proceed without an attorney.

4. Inquire into factors relevant to the defendant's subjective understanding of his decision to proceed pro se and its consequences. 5. Explain the process and ground rules (that the judge will hear both sides, with the petitioner presenting first, and that everything said will be recorded by the court reporter, etc.).

6. Explain the elements that a petitioner must show in order to prevail on his or her claim.

7. Explain that the party bringing the action has the burden to present evidence in support of his or her claim.

8. Explain the type of evidence that may be presented.

9. Explain that there are limits on the kind of evidence that may be considered.

10. Ask both parties whether they understand the process and procedure.

11. Limit judicial questioning to inquiries aimed at eliciting general information.

12. Assure that pro se litigants have the opportunity to meaningfully present their case and ensure that procedural and evidentiary rules are not used to impede the legal interests of unrepresented parties.

13. Inform the jury that the pro se litigant has exercised his constitutional right to represent himself, so that he or she will be acting as his or her own attorney.

14. Where applicable, use precedent from small claims courts and administrative agencies rather than precedent from federal or higher state courts, or from criminal cases, in which the court's objective seems to be to deter litigants from self-representation. 15. Examine the papers and talk to unrepresented parties about negotiations with opposing parties, particularly when the opposing party has counsel, in the settlement context.

 16. Where an unrepresented party to a settlement agreement appears to have a language barrier, have the settlement agreement translated or explained in the party's primary language.

17. Whenever possible, decide the matter and prepare the order immediately upon the conclusion of the hearing so it may be served on the parties.

 A JUDGE SHOULD NOT

1. Take sides in a case or proceeding pending before the court.

 2. Provide information to one party that he or she would be unwilling or unable to provide to all other parties.

3. Treat pro se litigants more harshly than litigants who are represented by counsel.

4. Hold a self-represented litigant in contempt without first warning the litigant that his or her conduct is objectionable.

5. Coerce parties into surrendering the right to a hearing by the courts in an attempt to dispose of the matter promptly.


 

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