Local Rule LCvR 83.11: CIVIL PRO BONO PANEL

LCvR 83.11 CIVIL PRO BONO PANEL

(a) Attorneys who are members in good standing of the Bar of this Court are required to assist or represent the needy in civil matters before this Court whenever requested by the Court, and, if necessary, without compensation. As one way to assist attorneys in meeting this requirement, and in light of the need for attorneys to represent indigent pro se litigants in civil matters before this Court, the Court hereby establishes a Civil Pro Bono Panel ("Panel") of attorneys who are members in good standing of the Bar of this Court and who have agreed to accept pro bono appointments to represent indigent pro se litigants in civil cases before this Court. Members of the Bar of this Court are urged to volunteer to serve on this Panel.

(b) The following procedures shall govern the appointment of attorneys from the Civil Pro Bono Panel to represent pro se parties who are proceeding in forma pauperis in civil actions and cannot obtain counsel by any other means.

(1) COMMITTEE ON PRO SE LITIGATION.

The Chief Judge shall appoint a Committee on Pro Se Litigation, which shall include private practitioners and of government attorneys who are members of the District of Columbia Bar and who practice in this Court, to oversee the Civil Pro Bono Panel established herein and annually report to the Court on the operation of the Panel.

(2) CIVIL PRO BONO PANEL.

(i) Attorneys, law firms, and clinical legal education programs ("Clinics") at law schools accredited by the American Bar Association that are willing to accept appointment to represent indigent pro se parties in civil actions may apply to join the Panel. Appropriate forms shall be available from the Clerk of Court ("Clerk"). Each application shall set forth, among other things:

(aa) in the case of a law firm, the name of a member of the firm designated as the Panel Liaison, to whom orders of appointment may be directed; and (bb) that the individual attorney, Panel Liaison, or supervisor of the Clinic is a member in good standing of the Bar of this Court or is in compliance with Rule 83.10(b) of the Rules of this Court;

(cc) the attorney's prior civil trial experience or trial advocacy training;

(dd) whether the attorney, law firm or Clinic has the ability to consult and advise in languages other than English;

(ee) the number of cases per calendar year the applicant is willing to accept;

(ff) any particular experience or interest in specific types of civil cases to which attorneys from the Panel are most often appointed (e.g., FOIA cases, habeas corpus petitions, social security claims, Section 1983 actions, and employment discrimination cases) and any types of civil cases to which the applicant desires not to be assigned.

(ii) Information on an application may be amended at any time by letter to the Clerk. An attorney, law firm or Clinic may by letter withdraw from the Panel at any time.

(3) APPOINTMENT OF COUNSEL.

When leave has been granted pursuant to 28 U.S.C. § 1915 for a pro se litigant to proceed in forma pauperis, the judge to whom the case is assigned may, on application by the pro se party or otherwise, appoint an attorney from the Panel to represent such party. The appointment should be made taking into account:

(i) Nature and complexity of the action;

(ii) Potential merit of the pro se party's claims;

(iii) Demonstrated inability of the pro se party to retain counsel by other means; and

(iv) Degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel.

(4) APPOINTMENT PROCEDURE.

(i) The judge shall not direct the appointment of a specific attorney from the Panel but may advise the Clerk to attempt to select an attorney with particular expertise. If service of the summons and complaint has not yet been made, the judge may direct that service be made by the Marshal or by other appropriate method.

(ii) Upon receiving the Appointment Order, the Clerk shall select a member of the Panel. In making the selection, the Clerk shall take into consideration the experience and preferences of Panel members regarding specific types of cases and the equitable distribution of cases among Panel members.

(iii) Before selecting any attorney, the Clerk shall determine whether the litigant has any other case pending before the Court and whether an attorney has been retained or appointed in such case. If so, such retained or appointed counsel shall be contacted by the Clerk and encouraged, but not required, to accept appointment to represent the litigant in the new action. If such counsel declines, the Clerk shall select another attorney in accordance with this Rule.

(iv) The Clerk shall send a copy of the Appointment Order, this Rule, any pleadings, and any relevant correspondence or other documents to the appointed attorney.

(5) RESPONSIBILITIES OF THE APPOINTED ATTORNEY.

(i) Upon receiving the Appointment Order, and unless a conflict of interest is apparent from the materials sent by the Clerk under subparagraph (b)(4) above, the appointed attorney shall promptly communicate with the pro se party regarding the action. Such communication shall include exploration of any actual or potential conflicts of interest and whether the dispute could be resolved more appropriately in other forums or by other means.

(ii) After any such consultation with the pro se party, the appointed attorney shall, within 30 days of receiving notice of the appointment or within such additional time permitted by the assigned judge for good cause show, file either:

(aa) a notice of appearance pursuant to LCvR 83.6(a); or (bb) a notice of withdrawal or a motion for withdrawal from the appointment pursuant to paragraph (b)(6) of this Rule.

(iii) If a notice of appearance is filed by the appointed attorney, the appointed attorney shall represent the party in the action from the date he or she files an appearance until (1) he or she has been relieved of the appointment by the Court according to the provisions of this Rule, (2) the case has been dismissed, (3) the case has been transferred to another Court, or (4) a final judgment has been entered in the action by this Court.

(iv) The appointed attorney accepting the appointment shall not be required to represent the client in any other matter.

(v) If an order of appointment has been directed to a participating law firm or Clinic, the action shall remain the responsibility of the firm or of the Clinic, notwithstanding the firm's or the program's assignment of the case to one of its attorneys.

(vi) An attorney appointed under this Rule may, but is not required to, represent the pro se party.

(aa) in any appeal taken either by the pro se party or an opposing party from a final judgment entered by this Court, provided, however, that if the appointed attorney elects not to represent the pro se party on such appeal, he or she shall advise the party of the requirements for filing a notice of appeal or cross-appeal within sufficient time for the party to file such a notice pro se.

(bb) in any proceeding, in any forum, that is related or collateral to the action in this Court or that may ensue upon an order of dismissal or remand of the action in this Court.

(6) RELIEF FROM APPOINTMENT.

(i) An appointed attorney may be relieved of an order of appointment only on the following grounds:

(aa) a conflict of interest precludes the attorney from representing the party in the action; or (bb) a substantial disagreement exists between the attorney and the party on litigation strategy; or (cc) in the attorney's opinion, formed after reasonable inquiry, the claim or defense is not well grounded in fact; or is not warranted under existing law and cannot be supported by good faith argument for extension, modification, or reversal of existing law; or the party is proceeding for purposes of harassment or other improper purpose; or (dd) because of the temporary burden of other professional commitments, the attorney lacks the time necessary to represent the party; or (ee) the client has refused to enter into a reasonable fee agreement pursuant to subparagraphs (b)(9)(i)(aa) or (bb); or (ff) on such other grounds acceptable to the Court for good cause shown.

(ii) An attorney seeking to be relieved from appointment for the reasons set forth in subparagraph (b)(6)(i)(aa), (bb), or (cc) above shall file a notice of withdrawal with the Court, with proof of service on the pro se litigant, stating without identification of reasons, that "grounds for relief from appointment under subparagraph (b)(6)(i)(aa), (bb), or (cc) exist." Such notice will affect withdrawal without any Court action.

(iii) An attorney wishing to be relieved for the reasons set forth in subparagraph (b)(6)(i)(dd) or (ff) shall file a motion for withdrawal setting forth the circumstances constituting cause for withdrawal, with proof of service on the litigant pro se. A motion citing (b)(6)(i)(ee) shall include the fee agreement that the pro se litigant would not accept. This motion shall be filed under seal and shall not be served upon or otherwise made available to the opposing party. A withdrawal on motion will require Court approval, distribution of which shall be given to all parties if the withdrawing attorney had filed a notice of appearance.

(iv) An attorney wishing to be relieved for the reasons set forth in subparagraph (b)(6)(i)(ee) shall file a motion for withdrawal prior to entering an appearance, and shall submit with the motion a copy of the proposed fee agreement which the client has refused to sign.

(v) If an appointed attorney is relieved from an order of appointment, the judge may issue an order directing appointment of another attorney to represent the party, or may issue such other orders as may be deemed appropriate.

(7) DISCHARGE.

(i) A party for whom an attorney has been appointed shall be permitted to request the judge to discharge the attorney from the representation and either to appoint another attorney or let the party proceed pro se.

(ii) When such a request is made, the judge shall forthwith issue an order discharging the appointed attorney from further representation of the party in the action and may, in his or her discretion, order appointment of another attorney to undertake the representation pursuant to paragraph (b4). Where a party requests discharge of a second appointed attorney, no additional appointments shall ordinarily be made.

(8) EXPENSES.

(i) The Indigent Civil Litigation Fund, Inc. ("Fund") is a private, non-profit organization established to defray some reasonable expenses incurred in the course of representations pursuant to appointments under this Rule. A description of this Fund, its requirements, and application forms for reimbursement are available from the Clerk's Office. Because the Fund's assets are limited, and because no public funds are available to defray expenses, the appointed attorney or the law firm or Clinic with which he or she is affiliated should be prepared to advance the reasonable expenses of the litigation but may seek reimbursement from the Fund.

(ii) The appointed attorney shall not condition the representation upon the client's advancing the cost of the litigation expenses. The appointed attorney may enter into an agreement with the client wherein the client agrees:

(aa) to reimburse the attorney for reasonable litigation expenses from any monetary recovery that may be obtained through the representation, and/or (bb) to assign to the attorney any amounts awarded to the client as reasonable litigation expenses pursuant to law, including case law, authorizing the award of such expenses.

(iii) For purpose of this Rule, reasonable litigation expenses shall include but not be limited to, filing fees, witness fees (including consultant and expert witness fees), travel expenses, reproduction and printing costs, computerized legal research, long distance telephone charges and the cost of deposition and trial transcripts. Reasonable litigation expenses shall not include the attorney's normal office and overhead expenses, such as secretarial services and local telephone charges.

(iv) The appointed attorney may waive, at any time, his or her entitlement to reimbursement for expenses under this Rule; such waiver must be in writing.

(9) ATTORNEY FEES.

(i) The appointed attorney shall represent the client without receiving a fee, except that in cases where the client may be entitled to recover attorney fees or a monetary award or monetary settlement, the appointed attorney shall advise the client of the possibility of such recovery and may:

(aa) condition the representation on the client's entering into a written agreement assigning to the attorney any amounts recovered by the client as attorney fees pursuant to laws, including case law, authorizing the award of attorney fees; and/or (bb) propose to the client a contingent fee arrangement providing for the payment of a reasonable fee out of any funds recovered by the client as a result of the representation. A contingent fee arrangement shall provide that the amount of any payment received by the attorney pursuant to an assignment agreement under subparagraph (i) above shall be credited against the client's fee obligations under such a contingent fee arrangement. Any such contingent fee arrangement shall be in writing, executed by both the attorney and the client, and submitted to the Court ex parte for its approval; or (cc) seek to assist the client in retaining other counsel on a compensated basis, subject to the client's consent to such a change in representation and to the Court's approval of a request for relief from appointment under subparagraph (6)(i)(ff) on the ground that the party no longer requires appointed counsel for the purpose of pursuing claim, but, if the appointed attorney is unable to obtain such the counsel for the client, he or she shall then continue the representation to its conclusion unless relieved by the Court, either without receiving a fee, or pursuant to an assignment or contingent fee arrangement as provided in subparagraphs (i) and (ii) above.

(ii) Any attorney fee agreement permitted under subparagraphs (i)(aa) and (ii) shall be entered into prior to the entry of the attorney's notice of appearance pursuant to paragraph 5(ii).

(iii) In cases in which the applicable statute authorizes the award of attorneys' fees to be paid out of the amounts awarded to the plaintiff, the appointed attorney shall advise the client of the possibility of such an award.

(10) TRAINING SESSIONS.

The Committee on Pro Se Litigation shall, in cooperation with the District of Columbia Bar, organize and conduct educational programs to train and advise attorneys on the Panel in the preparation and trial of the most common types of civil actions involving pro se parties brought before this Court.

(11) APPOINTMENT OF NON-PANEL ATTORNEYS OR LEGAL ORGANIZATIONS.

Nothing in this Rule shall be interpreted as preventing a judge from requesting an attorney, law firm or legal organization that is not on the Panel to represent a litigant who is otherwise proceeding pro se in this Court. In addition, nothing in this Rule shall be interpreted as preventing an attorney who is not a member of the Bar of this Court, but who qualifies under LCvR 83.2(g) to practice before this Court, from representing an indigent litigant under LCvR 83.10 subject to the conditions of LCvR 83.2(g)

COMMENT TO LCvR 83.11: This Rule, promulgated in 1991, created the Court's Civil Pro Bono Panel and an Advisory Committee on Pro Se Litigation to oversee the operation of the Panel. The Rule was amended in 2001 to reflect the Court's experience with appointments from the Panel. Because the Rule applies to cases filed by both prisoners and non-prisoners, no amendments expressly address changes made by the Prison Litigation Reform Act. The Court notes, however, that the calculation of any contingent fee agreement with a prisoner-plaintiff under subparagraph (b)(9)(i)(bb) should be reduced by the amount of any judgment that has been used to pay a portion of attorney fees under 42 U.S.C. § 1997e(d)(2).

The 2001 amendments to LCvR 83.11 were published with the following comments.

LCvR 83.11 (a): This amendment moves material previously in Paragraph (2) reminding lawyers of their obligation to provide representation to the needy in civil matters are requested by the Court and recites the establishment and purposes of the Civil Pro Bono Panel.

LCvR 83.11(b)(1): This amendment alters the criteria for membership on the Committee on Pro Se Litigation from D.C. Bar members "who practice primarily in federal courts" to members "practicing in this Court."

LCvR 83.11(b)(2): This amendment consolidates the requirements for membership on the Panel, but the requirements are not substantively changed. Applicants for participation in the Panel will be invited to identify types of cases they do not want, in addition to types of cases they do want.

LCvR 83.11(b)(3): The amendment consolidates three subsections into one to improve readability. The section retains the requirement that the party be granted leave to proceed in forma pauperis before being appointed counsel from the Panel. In (ii), the provision limiting the Court to only the pleadings in deciding the "merit" of a pro se litigant's case was removed and in (iii) added "demonstrated" to the "inability to pay" criterion.

LCvR 83.11(b)(4): This amendment changes paragraph (i) to allow a judge to ask the Clerk for the appointment of an attorney with particular expertise, but still does not allow a judge to request a Panel member by name. In addition, the requirement that Panel members be selected randomly was removed from Paragraph (ii) in favor of a more considered approach by the Clerk to allow for a Panel member's preferences and the equitable distribution of cases among Panel members.

LCvR 83.11(b)(5): This paragraph was rewritten to include in one place all of the responsibilities of appointed counsel, including material that was listed in former paragraphs (5)(v), (5)(vi) and (11). In addition, the amendment clarifies that the responsibility of an attorney to represent the litigant commences when a notice of appearance is filed and continues until the matter is concluded at the District Court or until the attorney is otherwise relieved. The amendment also clarifies that the appointed attorney has no obligation to represent the client in any other case or in an appeal or in any collateral action following a dismissal or remand.

LCvR 83.11(b)(6): This amendment clarifies the procedures for filing a notice of withdrawal and a motion for withdrawal and adds a provision (i)(ee) permitting withdrawal on motion in the event the appointed attorney and the litigant are unable to come to terms on an a contingent fee agreement, pursuant to paragraph (b)(9).

LCvR 83.11(b)(7): This amendment makes no substantive changes.

LCvR 83.11(b)(8): This amendment reminds Panel members of the potential for recovery of some expenses under the Indigent Civil Litigation Fund. It also limits reimbursement to reasonable litigation expenses and clarifies what constitutes reasonable litigation expenses.

LCvR 83.11(b)(9): This amendment allows a Panel member to condition their entry of an appearance upon the client entering into a contingent fee agreement approved by the Court. Because the Rule applies to case filed by both prisoners and non-prisoners, no amendment expressly addresses changes made by the Prison Litigation Reform Act. However, the calculation of any contingent fee agreement with a prisoner-plaintiff under subparagraph (b)(9)(i)(aa) should be reduced by the amount of any judgment that has been used to pay a portion of attorney fees under 42 U.S.C. § 1997e(d)(2).

LCVR 83.11(b)(11): This amendment makes no substantive changes, but clarifies that attorney who are not members of the Bar of this Court may be members of the Panel if they comply with the conditions of LCvR 83.2(g), involving attorneys representing indigents.