Font Size:

Rule Would Allow Judges to Aid the Unrepresented

New York Law Journal

January 29, 2013

Comments (2)

With judges statewide uncertain how far they can and should go to accommodate unrepresented litigants, court administrators are proposing an amendment to the Code of Judicial Conduct that would bring New York into line with 25 other states. The proposed amendment would state: "It is not a violation…for a judge to make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard." It largely mirrors a model rule of the American Bar Association, with one significant difference.

The ABA model rule says judges can make a reasonable effort to "ensure" that unrepresented litigants have a fair shake. But the Task Force to Expand Access to Civil Legal Services in New York suggested deleting the word "ensure" to remove "any concern judges may have about the mandatory nature of the language" and any "risk that this language might encourage litigation by unrepresented litigants who believe they have been denied certain accommodations."

"While the proposed Rule honors judicial discretion, the Task Force recommends that the Administrative Board and court administration urge judges to be sensitive to and to make reasonable accommodations for the needs of unrepresented litigants," the Task Force said in a May letter to Chief Judge Jonathan Lippman signed by Helaine Barnett, chairwoman.

Comments on the proposal must be received by March 25 and can be submitted to OCARule100-3-B-12@nycourts.gov or to John McConnell, counsel, Office of Court Administration, 25 Beaver St., 11th floor, New York, N.Y., 10004. For more information, visit www.newyorklawjournal.com/courtNotes.jsp.

Subscribe to New York Law Journal

You must be signed in to comment on an article

Sign In

Email:
Password:
	Remember me

Click here to Subscribe! >>

Reader Comments

MrMosheB

January 29, 2013 11:43 AM

Michael referred to the "unwritten rule that judges [nearly always] give pro se litigants far more leeway and less consequences." This is not entirely accurate. The Federal Rules of Civil Procedure states in more than place that federal judges must provide greater leeway to pro se plaintiffs. Some examples include lenience in drafting pleadings and a higher standard of tolerance before sanctioning a pro se plaintiff. I believe that the new rule is merely intended to ensure that each litigant--represented or not--has the same opportunity to to a fair trial.

This rule will undoubtedly result in certain judges favoring a pro se plaintiff, a consequence which must be seriously considered before making the rule official. However, as mentioned above, the rule is simply meant to give judges the discretion to "guide" the trial so as to avoid the abuse of the pro se litigant by a merciless attorney.

Michael

January 29, 2013 08:16 AM

In my experience, this 'new rule' simply validates the unwritten rule that Judge's give pro se litigants far more leeway and less consequences for mistakes made, simply because they chose not to get an attorney. If this rule ONLY applies to folks who can not AFFORD counsel, then it makes sense. If it applies to ALL PRO SE litigants, then it would certainly behoove me, if I were to end up in Civil or Supreme court, as a defendant, to NOT GET COUNSEL and get the 'soft glove' treatment from the Judge. Of course, I am sure they will have a set of instructions that will somehow magically make jurors think the Judge siding and helping the pro se litigant, should not influence their deliberations, right? This is assinine.