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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Yes.

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.

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.

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.

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.

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).