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Frequently Asked Questions -- Recruited Counsel
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Do the Obligatory Panel and Voluntary Panel replace the Mediation Assistance Program and Civil Trial Assistance Panel?
Yes. Local Rule 87 will replace Local Rule 4-6 (the rule creating the Civil Trial Assistance Panel) and the Mediation Assistance Program. Attorneys who participated in the Civil Trial Assistance Panel or the Mediation Assistance Program will now form the Voluntary Panel. Attorneys will have the same opportunities to provide voluntary pro bono service as they did under the prior programs. For example, attorneys will still have the opportunity to represent otherwise pro se litigants for the purpose of settlement only. These types of appointments will be considered Limited Appointments under Local Rule 87. All attorneys admitted to practice in this district are invited and encouraged to join the Voluntary Panel.
Is this a mandatory pro bono rule?
Any member of the bar of this Court who appeared in at least the threshold number of cases in the prior calendar year is obligated under Local Rule 87 to accept the Court’s request to represent a particular pro se litigant in a specific case. The cases for which counsel is recruited will have at least two things in common: the pro se litigant will be indigent, and that litigant will have shown that he or she has been unable to identify counsel willing to represent him or her. Given these two circumstances, it is likely that the representation provided pursuant to Local Rule 87 will be pro bono.
Attorneys not admitted to the bar of the Southern District of Indiana are not affected by this rule. Attorneys admitted to the bar of the Southern District of Indiana, but who did not actively practice in this district during the prior calendar year (as determined by whether they appeared in the threshold number of cases) are also not affected.
The Court’s preference would be to fill the need for representation of indigent pro se civil litigants by using the Voluntary Panel. However, to the extent that the need in a given year exceeds the number of attorneys willing and able to voluntarily take cases, the Court will call on the members of the Obligatory Panel to fill the remaining need.
Why does the U.S. District Court for the Southern District of Indiana need an Obligatory Panel? Aren’t the current volunteer attorney programs meeting the need for pro bono representation in civil cases?
The Southern District of Indiana’s bar has been very generous in donating time to represent pro se litigants. To date, however, the bar has been unable to meet the Court’s needs in all cases.
This is due in part to the sheer volume of pro se litigation in this district— approximately 50% of the civil cases filed in the Southern District of Indiana are filed pro se. Because a large percentage of those cases are filed by prisoners, it is also important to understand the economic and statutory barriers facing federal prisoner civil rights litigation. Prisoners are not eligible for assistance from legal aid programs (such as Indiana Legal Services) that receive even a portion of their funds from the Legal Services Corporation. See 45 CFR § 1610, et seq. The federal regulations that govern these funds were specifically drafted to “ensure that recipients may not participate in any civil litigation on behalf of persons incarcerated in Federal, State or local prisons.” 45 C.F.R. § 1637.1.
In addition, in many prisoner civil rights cases the potential monetary recovery is limited, making these cases unattractive to attorneys who reasonably want to get paid for their work. For example, where there is no physical injury at issue, the monetary damages a prisoner can obtain likely are minimal. See 42 U.S.C. § 1997e (“No Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.”).
These barriers, however, do not mean that these cases are unimportant. To the contrary, the cases most in need of assistance are based on the alleged violation of an individual’s constitutional rights. This is important, if not lucrative, work. “Laws, however, are inanimate. Even the broadest and best-intentioned do not protect the weak unless they can be enforced—and laws cannot enforce themselves. Lawyers are uniquely positioned to step in to assist the intended beneficiaries of laws in receiving what they are due.” Robert M. Dow, Jr. & Elizabeth Hoskins Dow, Reflections on the Importance of Legal Aid in Recognition of the 50th Anniversary of the LAF, Circuit Rider, Apr. 2016, at 13.
In recognition of the important interests at stake, the Seventh Circuit in recent years has repeatedly reversed district courts for denying motions for appointment of counsel in cases in which the difficulty of the case exceeded the pro se litigant’s ability to litigate it, particularly in lawsuits involving complex medical evidence or a defendant’s state of mind. See Goodvine v. Monese, 622 Fed. Appx. 579, 581 (7th Cir. 2015) (district court went beyond the bounds of its discretion when it refused to recruit counsel); Henderson v. Ghosh, 755 F.3d 559, 564-68 (7th Cir. 2014) (remanding action upon finding district court abused its discretion in failing to recruit counsel soon enough) (per curiam); Jackson v. Hepp, 558 Fed. Appx. 689, 693-94 (7th Cir. 2014) (abuse of discretion to refuse to recruit counsel); Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010) (same); Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc) (same; noting “[t]he lawyers who accept cases pro bono publico are performing a valuable service for the court as well as the client”). In other words, the Seventh Circuit requires district courts to recruit counsel in certain situations.
The Seventh Circuit has provided this guidance:
We are aware that the appointment of counsel in civil cases can pose challenges for judges, who ask lawyers to volunteer their time to take these assignments, and the attorneys who are asked by the judges and who ultimately take the assignments. As a way to combat those issues, we again highlight the work done by the Pro Bono Program for the United States District Court for the Northern District of Illinois Trial Bar, which mandates that members of the Trial Bar serve as an appointed attorney in pro se civil or appellate matters. . . . While other districts in this circuit have similar procedures, . . . the mandatory nature of the Northern District of Illinois’s program ensures that judges are not put in the position of repeatedly asking the same counsel to take on appointments, and attorneys are not put in the position of being asked time and again to take cases by the judges in front of whom they appear on a regular basis.
Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014). Local Rule 87 will allow the Southern District of Indiana to fulfill its obligation to recruit counsel when necessary.
That said, the Southern District of Indiana through Local Rule 87 will continue to provide opportunities for attorneys to voluntarily participate in meaningful pro bono work. If this Court can recruit enough volunteers to meet its needs, no attorney will need to be enlisted from the Obligatory Panel.
What is the authority for this rule?
Rule 83 of the Federal Rules of Civil Procedure provides authority for the Court to enact Local Rule 87. Cf. Brown v. McGarr, 774 F.2d 777, 781-82 (7th Cir. 1985) (holding that Rule 83 provided authority for the local rules of the Northern District of Illinois that established requirements for admission to the trial bar, and noting that every federal court that has construed 28 U.S.C. §§ 1654, 2071 and Rule 83 “has held that they permit a federal district court to regulate the admission of attorneys who practice before it”). Additionally, the Seventh Circuit has commended the “mandatory nature” of the Pro Bono Program for the United States District Court for the Northern District of Illinois, and in doing so, stated that this attribute makes it superior to purely voluntary programs established in other district courts. Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014).
Constitutional challenges to uncompensated pro bono appointments have been consistently rejected. See, e.g., Scheehle v. Justices of the Supreme Court of Ariz., 508 F.3d 887 (9th Cir. 2007) (Takings Clause); United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965) (Takings Clause); Family Div. Trial Lawyers of Superior Court-D.C., Inc. v. Moultrie, 725 F.2d 695, 704 (D.C. Cir. 1984) (Thirteenth Amendment).
Do other U.S. district courts have mandatory pro bono appointments?
There are 94 federal judicial districts. Each district has its own program, and there is significant variance among those programs.
Within the Seventh Circuit, the Northern District of Illinois and Southern District of Illinois each require members of its bar (in certain circumstances) to accept appointments to represent pro se litigants.
The Northern District of Indiana, Eastern District of Wisconsin, and Western District of Wisconsin have voluntary pro bono programs. Given the increased pressure from the Seventh Circuit to recruit counsel in prisoner civil rights cases, these districts may revise their programs in the future.
What are the income guidelines for determining if a litigant is unable to afford representation?
This determination will be made on a case by case basis by the assigned judge. There is no specific income formula or bright-light rule set forth by statute or case law.
Usually, it is apparent from the litigant’s motion to proceed in forma pauperis whether the litigant is indigent. If, however, recruited counsel discovers information which he or she believes reflects that the litigant has sufficient income or assets to hire an attorney at market rates, counsel may bring this information to the Court’s attention by filing a motion ex parte. The Southern District of Indiana will not use 125% of the Federal Poverty Level formula that the federal Legal Services Corporation uses.
What is the anticipated need for free legal representation of indigent litigants in the Southern District of Indiana, i.e., how many cases does the Court anticipate referring to the Obligatory Panel and Voluntary Panel?
Counsel will be sought for approximately 70 cases each year. It is anticipated that the vast majority of these cases will be filled by volunteers.
There is a lot of frivolous prisoner litigation. How will the Court determine which indigent litigants have meritorious claims and viable cases in order to recruit counsel under this rule?
The Court will screen every case before recruiting counsel. Pursuant to 28 U.S.C. § 1915A, the Court is required to screen complaints filed in any civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” § 1915A(b).
Similarly, 28 U.S.C. § 1915(e)(2)(B) applies when the plaintiff is proceeding in forma pauperis. Under this statute, the Court shall dismiss a case at any time if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Given these screening standards, cases that are frivolous or fail to state a claim on the face of the complaint will be dismissed without the appointment of counsel. However, there inevitably will be cases in which counsel is recruited that are not meritorious. The district courts have been specifically directed not to consider the merits when recruiting counsel. Lumpkin v. Cook Cty. Pub. Def.’s Office, 640 Fed. Appx. 509, 2016 WL 684009, at *3 (7th Cir. Feb. 19, 2016) (“The district judge erred by denying Lumpkin’s request for counsel on grounds of futility.”).
If I am selected for the Obligatory Panel and I determine that the suit is frivolous or without merit, how do I withdraw? Will this brief representation for determination of merit count as fulfilling my obligations for the year under this rule?
Local Rule 87 discusses in some detail the circumstances under which such a motion is permitted. If in the course of your representation under Local Rule 87 you determine that pursuing the action would violate Rule 11(b) of the Federal Rules of Civil Procedure, you should file a motion to withdraw. Such a motion should be made ex parte. Filing a motion to withdraw will allow the judge to develop an ex parte record of the recruited counsel’s concerns and the client’s response.
Some attorneys may be familiar with the term “Anders brief.” Counsel recruited pursuant to Local Rule 87, will not be required to comply with Anders procedures in moving to withdraw. See United States v. Lee, 504 F. App'x 505, 506 (7th Cir. 2013) (Anders does not apply to civil cases); Emerson v. United States, 191 F.3d 455 (7th Cir. 1999)(“appointed counsel who wishes to withdraw need not file a motion comporting with Anders.”).
Local Rule 87 provides that representation that results in a withdrawal based on these circumstances satisfies your obligation for the year.
Will all of the indigent litigants referred to the Obligatory Panel and Voluntary Panel be prisoners? What are the most common types of cases that will be referred to the Obligatory Panel and Voluntary Panel?
Most of the cases referred to the Obligatory and Voluntary Panels will be brought by prisoners. This is because in determining whether counsel must be recruited, the district court considers whether a plaintiff made reasonable efforts to retain counsel and whether, given the difficulty of the case, he or she is competent to litigate it on his or her own. Prisoners have restrictions on their access to legal materials and resources that non-prisoners do not face. These additional restrictions make it less likely that they will be competent to litigate on their own and more likely that they will require the assistance of counsel.
The most common types of cases that will be referred are prisoner civil rights cases and non-prisoner employment actions.
What is the anticipated threshold number of appearances that will be used to determine the attorneys eligible for the Obligatory Panel?
The threshold number of appearances is subject to change. Initially, the threshold number is at least five appearances during the preceding calendar year. The most recent threshold numbers appears in General Order Re: Local Rule 87 Threshold Numbers.
Will the type of appearance factor into the determination of the threshold number of appearances?
If you appear in a civil action, the case will count. This is true even if you file your appearance as local counsel or for the sole purpose of filing a motion to dismiss. If you appear as recruited counsel in a case under Local Rule 87, that appearance will not count toward the threshold number of appearances.
When will I know I am on the Panel? How do I know if I am exempt?
On or before January of each year, the Court will send an email notification to attorneys who have been selected for the Obligatory Panel. The Obligatory Panel will be divided into four groups, and the email notification will inform attorneys of their group assignment. Attorneys in each group will be eligible for an obligatory appointment during the three-month period associated with their group. The group eligible for an obligatory appointment in January through March will receive an email notifying them of this in November or December of the previous calendar year.
Local Rule 87(a)(2)(B) sets forth which attorneys are exempt from selection to the Obligatory Panel. The Court's yearly email notification will also inform attorneys of the number of civil case appearances the Court used to create that year's Obligatory Panel. If an attorney believes she is exempt from service on the Obligatory Panel and receives an email notification that she has been selected, she should promptly contact the Court by responding to the email and explain why she believes she was selected in error.
For purposes of exemption from selection to the Obligatory Panel, how is employment as a full-time attorney by a not-for-profit legal aid organization defined?
A full-time attorney for a non-profit legal aid organization includes any attorney who is (1) employed in a full-time capacity (i.e., expected to work at least forty hours a week); (2) as an attorney (i.e., her primary job duties require a law degree); (3) for a non-profit organization (i.e., any organization that is recognized as a tax exempt non-profit by the government). If, for example, a staff attorney for an environmental organization meets these criteria, she would be exempt from the Obligatory Panel.
The purpose of this rule is to exempt those attorneys that already regularly practice in the Court exclusively on behalf of clients who may not otherwise have the financial means to afford an attorney. Although this exemption might be over- and under-inclusive in some respects, it will substantially further this purpose.
If I receive an Order of Recruitment, may I invite other attorneys at my law firm to join the litigation team and enter appearances? If so, will this fulfill their obligation for the year, under this rule?
Yes, you are permitted to invite other attorneys to join the litigation team. If you want to add an attorney as recruited counsel you should file a motion at any time indicating that the joining attorney would like to use the opportunity to fulfill his obligation for year. While the motion has a gatekeeping component to it, the primary purpose for the motion is to insure that the Court’s records and docket are properly updated.
What is the obligation, if any, of recruited counsel for filing or responding to post-judgment motions or appeals?
Local Rule 87, in conjunction with the Order of Recruitment, will set forth the scope of the appointment and when the appointment ends. Unless ordered otherwise, a recruited attorney has no obligation to assist with any post-judgment motions or appeals. “The appointment stops at the door of the district court.” Johnson v. Chandler, 487 F.3d 1037 (7th Cir. 2007). To avoid any confusion, you should notify your client that you will not be assisting them further.
What are the circumstances in which recruited counsel may negotiate a fee arrangement?
The goal of Local Rule 87 is to ensure that pro se litigants who require the assistance of counsel are able to obtain that assistance. The goal is not to require attorneys to work for free when statutory or contingency fees may be available.
Given these goals, recruited counsel may negotiate a fee arrangement unless specifically prohibited from doing so in the appointment order. For example, the Court’s Mediation Assistance Program never allowed an attorney to collect fees for the work undertaken for the purposes of settlement only. If you volunteer or are appointed to represent a litigant for the limited purpose of attempting to settle the case, you will not be permitted to seek attorney’s fees or enter into a fee arrangement.
What types of fee arrangements are permissible? Are contingency fee arrangements permissible?
Nothing in the Local Rule prohibits someone from entering into a contingency fee arrangement. The type of fee arrangement and the terms of that arrangement that are permissible in a given case will likely depend on the applicable statutes.
Recovery pursuant to 42 U.S.C. § 1983
If a plaintiff prevails in a suit brought pursuant to § 1983, the district court may order the defendant to pay the plaintiff’s attorney’s fees. See 42 U.S.C. § 1988, which provides:
(b) Attorney’s fees
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c) Expert fees
In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.
42 U.S.C. § 1988 authorizes “attorney fees in civil rights cases [and thus] encourage[s] private attorney generals to come forth and challenge governmental abuses. . . .” Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 936 n.7 (Fed. Cir. 2000). “Congress observed that citizens with meritorious civil rights claims sometimes could not afford a competent attorney. Fee shifting statutes seem to recognize the reality that defending the underdog is fine, but it’s usually the upper dog who can pay the big fees.” Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1251 n. 1 (11th Cir. 1996) (quotations and citations omitted).
“[T]he district court has discretion in determining the amount of a fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “This is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Id. “It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award.” Id.
Prison Litigation Reform Act
Even if fee shifting is available under § 1988, the Prison Litigation Reform Act, codified at 42 U.S.C. § 1997e(d), sets both absolute and relative limits on attorney’s fee shifting.
(d) Attorney’s fees
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded, except to the extent that—
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.
(4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney’s fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to section 1988 of this title.
For more information read, Johnson v. Daley, 339 F.3d 582, 583 (7th Cir. 2003) (en banc) (interpreting § 1997e(d)).
Recovery in a Bivens Action.
42 U.S.C. § 1988 does not authorize an award of attorney’s fees in a Bivens action. See e.g., Unus v. Kane, 565 F.3d 103, 126 (4th Cir. 2009), Kreines v. U.S., 33 F.3d 1105, 1106 (9th Cir. 1994) (finding plaintiff who prevailed on Bivens claims against federal employees in their individual capacities could not recover from United States attorney fees and costs under Equal Access to Justice Act, notwithstanding that government had defended its employees in plaintiff’s action and had paid adverse judgment against them. 28 U.S.C.A. § 2412(d)); cf. Couden v. Duffey, 826 F. Supp. 2d 711, 717 (D. Del. 2011) (finding that attorney fees and costs were not recoverable against drug task force agent under Equal Access to Justice Act in action alleging excessive force, since plaintiff’s Bivens claim against agent was claim against him in his individual, rather than official, capacity. 28 U.S.C.A. § 2412(a)(1), (d)).
Recovery in a Federal Tort Claims Act Action.
The Federal Tort Claims Act forbids punitive damages. 28 U.S.C. § 2674. It caps attorneys’ fees at 25% of any judgment (20% if the case is settled). 28 U.S.C. § 2678.
The plaintiff is forbidden to supplement these fees by private contract with his lawyer. See Westfall Act, 28 U.S.C. § 2679(d).
What are the limited appointments referenced in the attorney’s fees section of the rule?
The terms of any limited appointment in a case would be determined by the judge and set forth in the Order of Recruitment. The most common types of limited appointments would be an appointment for the limited purpose of 1) settlement, 2) filing an amended complaint, 3) conducting discovery, 4) responding to a dispositive motion, or 5) participating in a hearing to resolve the defendant’s affirmative defense of failure to exhaust his or her administrative remedies.
The goal of issuing limited appointments is to reduce the burden on recruited counsel. If you volunteer or are recruited for a limited purpose in a case, you may choose, but are not required to, stay on the case after you have fulfilled your initial obligation.
What types of expenses are reimbursable under the rule?
The guidelines regarding what costs and expenses are reimbursable appear in General Order Re: Local Rule 87.
When would it be reasonably feasible for the litigant to bear the cost of any expenses of litigation, if the litigant has been determined to be indigent for purposes of this rule?
Generally, that would not be feasible, unless the litigant has support from family or friends who are willing to contribute to cover the costs of litigation.
In addition, 28 U.S.C. § 1915(f)(2) provides:
(2)(A) If the judgment against a prisoner includes the payment of costs under this subsection, the prisoner shall be required to pay the full amount of the costs ordered.
(B) The prisoner shall be required to make payments for costs under this subsection in the same manner as is provided for filing fees under subsection (a)(2).
The effect of this statute is that the prisoner (not their counsel) is responsible for any costs assessed against them in the judgment. These costs may be collected from the prisoner’s inmate trust account.
Are there any reporting requirements for recruited counsel under the Local Rule?
Will my hours spent on a case as recruited counsel count for purposes of the new Indiana pro bono reporting rule (Rule 6.7 of the Indiana Rules of Professional Conduct)?
Does Local Rule 87 conflict with Rule 6.2 of the Indiana Rules of Professional Conduct, which covers accepting appointments by a tribunal and exceptions for good cause?
No. The comment to Rule 6.2 states “[a] lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.” In addition, Local Rule 87 provides that the recruited attorney may seek to withdraw for good cause.
Will recruited counsel ever be appointed to represent an indigent litigant who does not want representation?
It would be unusual for counsel to be appointed in a case where the litigant has not asked for representation. If counsel is appointed and the client states the he does not want representation and wants to proceed pro se, counsel should notify the Court and may seek to withdraw on this basis.
I have never represented a prisoner before. What are the best ways to communicate with my client?
The Court’s Recruited Counsel’s Handbook for Prisoner Litigation covers this topic in detail. Recruited counsel may also contact the Staff Attorney Office at (317) 229-3950 for this information.
I have never litigated a prisoner civil rights case before. Does this mean that I may withdraw from the representation since I am not competent to represent the litigant in the particular type of action assigned?
The rule specifically provides that an attorney may seek to withdraw on the basis that he or she is not competent to represent the litigant in the particular type of action assigned.
The attorney should keep in mind, however, that there are very few private attorneys who practice in the area of prisoner civil rights litigation. One of the reasons the Court decided to limit the obligatory panel to attorneys who regularly practice in this Court (as opposed to any attorney who is admitted to practice here) is that by appearing in multiple cases a year you have demonstrated your familiarity with this Court and its processes.
It is hoped that any attorney regularly practicing in this Court will have the ability to learn a new area of law and the Court has worked (and will continue to work) to create resources to assist in this regard.
Does the Court provide any resources for recruited counsel on the Obligatory Panel? If so, what are those resources and where do I find them?
Does the Court maintain a list of translators or experts who will take reduced fees for cases involving indigent litigants?
Not at this time. You may, however, seek preapproval to cover the expense of hiring an interpreter. If this motion is granted, court staff will work with you to find an appropriate interpreter.
How can I join the voluntary panel?
You may apply online.
What do I do if my malpractice insurance does not cover the type of case on which I am appointed under this rule?
The Court has a relationship with Heartland Pro Bono Counsel and the Indiana Bar Foundation to provide coverage under certain circumstances. If malpractice insurance concerns are a barrier to providing representation as recruited counsel in a particular case please notify the Staff Attorney Office at (317) 229-3950.
This is not the area of law in which I ordinarily practice. How do I know if my malpractice insurance covers these claims?
Attorneys should contact their malpractice insurance carrier or agent and ask if their policy makes any specific exclusions for a) pro bono matters; b) matters in areas of law in which the attorney ordinarily does not practice and has not before reported practicing in that area to the insurer or agent; and c) the area of law that is the subject of the case or cases to which they have been assigned.
It is unlikely the attorney’s malpractice insurance policy makes coverage distinctions based on whether the client pays the attorney. Indeed, most insurers do not track claims data for pro bono vs. non-pro bono clients. But attorneys should be sure that their coverage is not limited to certain areas of law. Even if an attorney’s coverage did not cover the area of law of their assigned pro bono case, it likely would not be difficult (or costly) to add such coverage to their policy (for reasons set forth in the next two questions).
Am I likely to be sued by taking on pro-bono cases involving prisoners?
There is very little malpractice claims data available for pro bono cases. Insurance carriers do not tracks claims data by paying and non-paying clients. The relevant data that does exist, however, suggests that malpractice suits for pro-bono cases are very rare. Statistical research indicates that malpractice claims are more prevalent in areas of law where clients are likely to pay for legal services than in areas where pro bono representation is the norm. Steven K. Berenson, A Cloak for the Bare: In Support of Allowing Prospective Malpractice Liability Waivers in Certain Pro Bono Cases, 29 J. Leg. Prof. 1, 28 (2004/2005).
Another researcher reached the same conclusion. He noted that the Houston Volunteer Lawyers Program, which referred more than 1,000 cases to volunteer attorneys in 2006 alone, had not had one matter referred to its malpractice carrier in the previous 16 years. He further reported that one industry insider stated he had been involved in just one pro bono malpractice claim in nearly 20 years of work. James W. Paulsen, Does No Good Deed Really Go Unpunished?: Malpractice Myths & Realities in Pro Bono Representation, The Houston Lawyer, 10 (May/June 2007). Because pro bono clients are less likely than average clients to sue for malpractice, Paulsen concluded that taking a pro bono case probably reduces an attorney’s likelihood of career damage from malpractice. Id.
Finally, the Southern District through its Pro Se Committee contacted an experienced Indiana insurance agent in its research on the potential effects of the proposed rule and he reported similar experiences: he could not recall a single malpractice claim against a volunteer attorney, while there have been many malpractice claims by paying clients against attorneys practicing in their areas of expertise. It short, it is highly unlikely a pro-bono client will sue his or her attorney for malpractice.
Even in the unlikely event a pro-bono client does sue his or her attorney for malpractice, the attorney faces very limited financial exposure because of the general nature of pro bono cases. If the pro bono client could have received a large financial reward “but for” a pro bono attorney’s mistake, the case would have been taken on a non-volunteer basis. There are plenty of attorneys willing to take cases on a contingency-fee basis if there is some amount of money at stake. James W. Paulsen, Does No Good Deed Really Go Unpunished?: Malpractice Myths & Realities in Pro Bono Representation, The Houston Lawyer, 10 (May/June 2007).
Will my insurance rates increase if I’m forced to take one of these cases?
Insurance rates are unlikely to increase. Insurance rates for malpractice insurance are driven by two key factors: 1) the likelihood of being sued; and 2) the financial harm likely to result from that suit. As discussed above, the likelihood of being sued by pro bono clients is small, and the financial stakes of such a suit would likely be very low. Accordingly, it’s unlikely malpractice insurance rates will increase if an attorney has to make adjustments to his or her policy to account for their taking on pro bono cases.