Georgetown Journal of International Law
Spring, 2009

SELF-REPRESENTATION IN THE INTERNATIONAL ARENA: REMOVING A FALSE RIGHT OF SPECTACLE
40 Georgetown Journal of International Law 919 (2009)
Eugene Cerruti

Recent historical scholarship has demonstrated that the practice of self-representation at common law was developed and promoted not to secure a valued right to the accused but rather to compromise the defendant’s ability to present an effective defense–by denying him an effective right to be represented by counsel. The Supreme Court in Faretta v. California stood this history on its head in order to read into the Sixth Amendment an implied right to self-representation equal to the now preeminent right to counsel. The Faretta doctrine was carelessly adopted yet has been resolutely defended by the Supreme Court, to the almost universal chagrin of those most directly affected by its commands. The recent Supreme Court case of Indiana v. Edwards is only a modest retreat from the pointless imposition on the lower courts of a structurally and normatively incompatible right within the context of the contemporary counsel-driven system of criminal justice.

A putative right to self-representation silently entered international law via a back door at Nuremberg as a result of that tribunal’s near-wholesale adoption of the apparent rights and protocols of the common law adversarial system. It was subsequently adopted in the International Covenant on Civil and Political Rights as one of the standard “rights of the accused” but never actually put into effect in international law until the creation of the various war crimes tribunals of the last two decades. The right to self-representation has almost immediately replicated its experience in American law by creating a shameful series of disreputable prosecutions. It has become another example of a feature of the adversarial system, like that of the lay jury, which does not travel well–or at all–to the international arena. The structural and normative groundings of the international system make the right even more inapposite there than it now is in the common law system. This article calls on the International Criminal Court, the new standard-bearer of international criminal justice, to take advantage of the upcoming seven-year review of its rules and procedures to strike from its Articles a practice that has been reduced to little more than a perverse right of spectacle.

Here are the broad recommendations: 

1. Funding from the State of Wisconsin is necessary to help close the Justice Gap and must be adequate to meet the needs of at least those who are currently turned away due to lack of funding.
2. A permanent Wisconsin Access to Justice Commission should be established.
3. Self-help centers for unrepresented litigants should be established in every courthouse in Wisconsin.
4. Expanded use of nonlawyer advocates before Wisconsin courts and agencies must be explored. ["The Wisconsin Supreme Court should modify ethics rules and procedural rules to permit paralegals to advocate in court and before agencies on a limited basis.]”
5. Client contributions to the cost of services may be an appropriate means of expanding access to justice for residents who can afford to do so.
6. Increasing Wisconsin’s already high court filing fees is not an appropriate means of expanding access to justice.
7. The current $50 assessment on attorneys to help pay for civil legal services to the poor should be retained and the exemption for judges should be removed.
8. Expanded efforts to increase the already substantial pro bono contributions of Wisconsin lawyers should be explored.

  In addition, the Report sets forth many tasks for the State Bar, the legislature and the courts.  Lawyers, their firms, and law schools have assignments, too, in the campaign to close the justice gap.  Suggestions for increasing the provision of unbundled legal services and volunteer advice programs are outlined. Below the fold, we provide excerpts that flesh out some of the most important recommendations, including the major role suggested for the State’s two law schools.

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Important recommendations and suggestions from the Report are expanded upon in the following excerpts:
  3. The Legislature should fund self-help centers connected to every courthouse in Wisconsin. Self-help centers, open during all business hours and staffed by a knowledgeable assistant, enable many unrepresented litigants to accomplish uncomplicated legal objectives by themselves and to get basic guidance in legal procedure, particularly in family court and in small claims court. While these services are not a solution for people who are illiterate or those incapable of representing themselves, there are many who have made successful use of such programs. Ideally, every courthouse in Wisconsin would contain a self-help center. However, videoconference and computer technology may permit access from more remote courthouses to self-help centers in regional locations.

 4. The Wisconsin Supreme Court should modify ethics rules and procedural rules to permit paralegals to advocate in court and before agencies on a limited basis. In an ideal justice system, every client would receive the assistance of an experienced, well-trained lawyer. The reality in Wisconsin, however, is that there are not enough lawyers in Wisconsin to meet the needs of all potential clients. Thus, for decades, lawyers and clients have relied on paralegals.

As discussed previously, the state’s benefit specialist programs demonstrate the potential for trained and supervised nonlawyers to help fill the Justice Gap. Programs such as these will make an even more effective solution if specialists are permitted to advocate for their clients in proceedings in court and before administrative agencies. Lay advocates are used extensively and successfully in tribal courts located within Wisconsin. The available research shows that trained paralegals under the supervision of a lawyer can be effective, efficient advocates in simple proceedings involving, for example, harassment injunctions, public benefit eligibility, benefit coverage and termination, and small claims.

The Wisconsin Supreme Court should adopt new ethics rules that support expanded voluntary pro bono contributions by lawyers. Although the Supreme Court may turn to other matters before revisiting the Code of Professional Conduct again soon, the code deserves amendment in order to encourage and expand pro bono practice. Lawyers who reside in Wisconsin but are licensed and in good standing elsewhere should be permitted to represent pro bono clients in Wisconsin even before being admitted to practice here, and inactive bar members should be permitted to engage in a limited amount of pro bono work without incurring dues. Practice rules like these have been adopted in New York, Colorado, Washington, and elsewhere.

 Lawyers should take advantage of new rules permitting lawyers to provide short-term limited legal services without creating imputed conflicts.

• The Report notes that the new SCR 20:6.5 will be effective July 1, 2007.  “SCR 20:6.5 permits lawyers, under the auspices of a program sponsored by, for example,a legal service provider, the bar, a law school, or a court, to provide short-termlegal services without continuing representation, and permits such services incircumstances that might otherwise give rise to a conflict of interest. This rule wasdesigned to make the personal and professional rewards of pro bono work availableto a much wider pool of lawyers. Legal service providers, the law schools, other nonprofit organizations, and circuit courts should review their practices to create more of these opportunities.

8. State and federal agencies should permit qualified nonlawyers to appear and advocate on behalf of low-income clients. Many, but not all, government agencies already permit nonlawyers to appear on behalf of applicants and advocate for them. To attain maximum benefit from the legal services that might be provided by paralegals, administrative agencies should revise their rules and processes to permit these nontraditional methods of practice.

9 Lawyers, with the support of their law firms and in-house legal departments, should expand their pro bono contributions of time and money.

a. Lawyers should take advantage of new rules permitting lawyers to provide short-term limited legal services without creating imputed conflicts.. Lawyers, with the support of their law firms and in-house legal departments, should expand their pro bono contributions of time and money.

b. Law firms and in-house legal departments should study and adopt the sophisticated pro bono practices found in other communities around the nation.

10. The State Bar of Wisconsin:

a. The State Bar of Wisconsin should endorse this report and approve its dissemination to the Wisconsin Supreme Court and the Wisconsin Legislature.
b. The State Bar of Wisconsin should support a permanent moderate mandatory assessment upon lawyers and judges to fund civil legal services.
c. The State Bar of Wisconsin should help the Supreme Court establish a permanent Access to Justice Commission under the auspices of the Supreme Court to supervise the long-term, coordinated effort needed to accomplish these recommendations.
d. The State Bar of Wisconsin should expand the Lawyer Referral & Information Service to include a panel of attorneys willing to offer limited scope representation and/or reduced fees to clients who qualify based on income.
e. The State Bar of Wisconsin should foster a market for affordable limited legal services by organizing CLE programs on unbundling and by promoting unbundling as a viable means of practice and meeting currently unmet legal needs. Amendments to the Rules of Professional Conduct that explicitly permit lawyers to provide “limited representation” legal services go into effect on July 1, 2007. Lawyers currently provide such services, but the changes to the ethics rules, including SCR 20:1.2, might make limited representation more commonplace. Limited representation is a key aspect of an efficient program of improving access to justice for the poor by enabling clients with some ability to pay to purchase only those services they need or can afford.
f. The State Bar of Wisconsin should fund projects that demonstrate the gains to be achieved by these recommendations.

 12. The University of Wisconsin Law School and Marquette Law School should support efforts to close the Justice Gap.   . . . As the two institutions responsible for preparation of lawyers, Wisconsin’s two law schools have an extremely important role in expanding access to justice.
a. Wisconsin’s two law schools should set an example of commitment to equal justice. There are any number of ways that law school administrators and law school faculty members can demonstrate to students – to future lawyers upon whom the profession confers the responsibility to ensure access to justice for all – that access to justice is vital. For example, they can:

• Join students in performing pro bono services and providing legal information;
• Testify before legislative committees in support of access-to-justice initiatives;
• Appear as friends of the court in proceedings affecting legal services to the poor;
• Teach legal service providers and pro bono practitioners the fine points of the law governing transactions that routinely involve the poor, such as consumer law or administrative law;
• Give special recognition to students who perform pro bono service hours;
• Revise tenure criteria to recognize pro bono service; and
• Integrate into course work presentations by practicing attorneys about how lawyers meet their ethical obligation to provide pro bono services.

b. Wisconsin’s two law schools should expand clinical programs to provide more civil legal services.. . .

c. Wisconsin’s two law schools should encourage students to perform pro bono services upon graduation.

 d. Wisconsin’s two law schools should study and teach how the law ensures equal access to justice. The best contribution law schools can make is by doing what law schools do best: studying, reporting, and teaching. The law schools should convene public interest entities and support their work, as Marquette University’s Coalition for Access to Legal Resources initiative has demonstrated. Likewise, the professional responsibilities curriculum should be bolstered to emphasize a lawyer’s ethical duty to perform pro bono services and suggest the many practical ways these duties can be discharged.

 The Arizona Supreme Court decided last year to do something about the problem. Noting that “With the increase of self-represented litigants in Arizona, the issue of how to provide assistance and information to court customers without giving legal advice is becoming more critical and urgent,” it established a Task Force on Legal Advice-Legal Information.  Earlier this month, the Task Force issued:

• its Final Report (March 2007, 6 pp pdf), which notes in fn. 1 that “Although Arizona Rules of Court define ‘practice of law’ and ‘unauthorized practice of law,’ the Rules do not define ‘legal advice.’”
• a GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel (March 2007, 67-pp pdf; with a 40-page Glossary of Terms)
• a Question and Response Handbook (March 2007, 59-pp pdf).
• Signage [Ed. Note: This is a one-page Welcome / We Can / We Cannot sign, made difficult to read by having the Seal of the Supreme Court appear behind the message.  As I do whenever I see such lists, I wonder if the Task Force argued over "We May" and We Can".]

The Task Force documents will surely be helpful for court personnel who worry about crossing the info/advise line (and about being sued for UPL).  I am, nonetheless, a bit concerned that the tone is too stingy with useful information.  For example: The Handbook says: “When you are uncertain if you are being asked to give legal advice, please suggest that the one asking the question consult an attorney.”  Telling a pro se litigant to consult an attorney to answer one borderline question will seldom be helpful.  I’d say “bend over backward — or stick out your neck — to help them.”

Also worrisome is the following pair of Questions and Answers in the Handbook:

1. Q. I can’t afford an attorney. Can you tell me what to do?
   A. Court personnel are not allowed to give legal advice and cannot guess what might be in a court customer’s best interests. Court personnel must remain neutral; there may be a list of local resources of attorneys who will work for a reduced fee or no fee.
2. Q. Should I get a lawyer?
   A. Parties are not required to have a lawyer to file papers or participate in a court case. Court personnel cannot advise a party whether the party should hire a lawyer, nor may they recommend a specific lawyer. The State Bar of Arizona provides a lawyer referral number at 602-252-4804 or 866-482-9227 and the local County Bar Association may have a referral number. Some courts provide a list of local attorneys and there may be a list of local resources of attorneys who will work for a reduced fee or no fee.

Both answers seem strangely incomplete in a Handbook specifically created to help the unrepresented litigant in Arizona.  As we have said on our Getting Self-Help Help page, Arizona has been a trailblazer in creating online and in-court Self Help Centers, and the State has a network of Self-Help Centers, located in courthouses in at least a dozen counties.  A pro se litigant who complains he or she cannot afford a lawyer or who asks whether a lawyer is needed, ought to — in addition to being told about attorney options — be pointed to the Self-Help Center down the hall (or across the room), which surely has relevant information and assistance.  To respond by only suggesting they seek out a list of lawyers or the Bar Association’s referral program is inexplicable (unless, of course, the Arizona Bar controlled the Task Force).  

• If you are a practitioner/professional interested in this topic, please note that SelfHelpSupport.org’s April Webinar is “on Legal Advice vs. Legal Information.”  Two experts, John Greacen and Judy Meadows will present it on April 30, 2007 from 3-4:30 pm (EST) [I assume they mean EDST]. You need to be an SHS or SRLN member (it’s free and has many other benefits). You can sign up now by emailing anorris [AT] ncsc.dni.us. 

Below the fold, I have reproduced the Task Force definitions of “legal advice” and “legal information.”  
 
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From page of of the “GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel” (March 2007, 67-pp pdf; has a 40-page Glossary of Terms):

IV. What Constitutes Legal Information

Legal information is communication of facts about court procedures, timing and resources. It includes information contained in court records, examples of forms or pleadings, informational pamphlets, copies of statutes and court rules, procedures, practices and due dates.

Legal information involves identifying available procedural options (within the scope of the personnel’s knowledge) and helping customers understand and comply with court procedures.

Legal information is generally about court process (how the court and its judges function), court rules, court records and forms. If that information can be found in a source that the court makes available to the public, you can either:
• Tell the customer yourself, if you know, or
• If you are unsure of the answer, direct the customer to the appropriate court personnel or other publicly available source.

See the Question and Response Handbook for more details and specific examples.
V. What Constitutes Legal Advice    

Legal advice is a written or oral statement that:
• Interprets some aspect of the law, court rules, or court procedures, or recommends a specific course of conduct a person should take in an actual or potential legal proceeding,
• Applies the law to the individual person’s specific factual circumstances, or
• Requires the person giving advice to have knowledge of the law and legal principles beyond familiarity with court requirements and procedures.

Court customers are asking for legal advice when they ask whether or not they should proceed in a certain fashion. Telling a court customer “what to do” rather than “how to do it” may constitute giving legal advice. See the Question and Response Handbook for more details and specific examples.

 

This benchguide covers the following topics, in addition to providing sample scripts to use in many situations:

1. Self-represented litigants: Who are they and what do they face when they come to court? [note: 450,000 people use self-help resources annually in California]
2. Expanding access to the court without compromising neutrality
3. California law applicable to a judge’s ethical duties in dealing with SRLs
4. Solutions for evidentiary Challenges
5. Caseflow management
6. Courtroom and hearing management   
7. Settling cases
8. Special due process considerations
9. Communication tools
10. Avoiding unintended bias
11. Addressing litigant mental health issues in the courtroom
12. Judicial leadership in access to justice

For a document with similar goals, check out How Can Judges Communicate Effectively With Self-Represented Litigants? (compiled by the American Judicature Society, 64 pp. pdf).  Further helpful resources that we have discussed here at shlep include:

• Jona Goldschmidt’s “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience“ (2006, 44-pp, pdf.).  
• Statement of Principles on Self Represented Litigants and Accused Persons (Canadian Judicial Council, 2006, 12 pp. pdf),
• the Supreme Court of Queensland’s Equal Treatment Benchbook,
• The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, approved by the Justices of the Massachusetts Supreme Judicial Court in April, 2006.

Here is Prof. Hashimoto’s abstract of the article:

Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right to self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon of self-representation.This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants – nearly 80% – displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.

Some decisions to appear pro se are based on concerns about court-appointed counsel (often underfunded and overworked and sometimes just incompetent). Often the pro se defendants have requested other counsel.

Other decisions may be based on ideological grounds. For instance, 20% of federal pro se defendants are accused of tax crimes, but only .7% of represented defendants are.Prof. Hashimoto concludes with recommendations for actions courts should take to ensure that the decision to go pro se is knowing and voluntary.Thanks: Michael Heise, Empirical Legal Studies.

$3.9 million to upgrade Information-Technology Systems across District Courts and Courts of Limited Jurisdiction

$1.6 million to address pay-equity issues amongst all court staff

~$400,000 for children’s advocacy programs

$300,000 to improve security in District Courts

$250,000 for additional staff to the Supreme Court

OF the $250,000 for additional staff, a portion would be used towards hiring a pro se law clerk who, along with an appelate mediator, would help “resolve a significant portion of [the Courts'] caseload.” House Bill 60 (HTML document, 2 pages) addresses the proposed Self-Help Law Program to be administered by the Supreme Court, enumerating a number of charges along with the bill’s purpose:

(1) providing all Montanans with user-friendly information about Montana’s civil law, courts, and legal system;

(2) providing state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services; and

(3) facilitating the efficient use of judicial resources in civil court proceedings that involve self-represented litigants.

THE bill details a $1 million appropriations note to provide education and resources for 2 years. Passed with unanimous, bi-partisan support by the 2006 Law and Justice Interim Committee which created the bill by order of 2005 Senate Joint Resolution 6 (HTML document, 2 pages); HB60 is yet to be heard by the House Judiciary Committee of the 60th Legislative Session. SJR6 coincided with the Legal Needs Survey of 2005 (PDF Document, 4 pages) conducted by the State Bar which concluded that approximately 83% of the 207,501 unmet legal needs of low-income Montanan Households receive no attention from an attorney. Chief Justice Gray was singing a very similar tune in her original testimony to the Law and Justice Interim Committee in 2006:

“Right and justice shall be administered without denial or delay. For families and low income people in your district, your constituents, my constituents, the people of the state of Montana, the need is huge. The access to justice community has leveraged every hour, every nickel, about ten times farther than anyone else anywhere in the country trying to address these issues. [Myself] personally, and the courts of this state, have nudged, cajoled, encouraged, and semi-coerced lawyers into meeting their professional obligation of rendering pro bono service and the Legislature can take it to the bank that the court will keep doing that, but the fact is, there are never going to be enough pro bono lawyers to represent every low income person in our great state who has legal problems and needs to get into court.”

SHE has given the people of Montana, and their legislators, time and time again her expert opinion on what the legal needs are for low-income Montanans. Chief Justice Karla Gray’s message of dire need has been championed repeatedly, only time will tell how many people in positions of power have listened; they have until April 27th.

The largest portion of such questions, 40%, were general in nature, e.g. not
related to any specific area of law.  Examples of such questions include how
to generally research a legal issue or use an electronic database.  
Significant question subject areas included family law (10%), real property
(6%), guardianship of minors (6%) and government law (6%).  Interestingly,
the largest specific category was legal procedure (13%).  Typically, the
questions asked in this area were requests for forms or for materials
explaining how to perform a certain procedure, e.g. filing a mechanics lien;
obtaining an emergency court date, statutes of limitations and how to bring
an appeal.

These numbers are not the result of a scientific survey.  They also do not
distinguish between whether or not a questioner was an attorney or pro se.  
(If I had to guess I would say the break down would be 40% attorney and 60%
pro se).  I do think they raise an important point that many people using
the courthouse, and especially pro se’s are in need of instruction in the use of legal resources as well as the courthouse procedures.

A large number of domestic relations cases have at least one party who is not represented by an attorney. Here are some percentages (with the jurisdiction and date of the study in parentheses):

• 49% of petitioners and 81% of respondents (Utah 2006)
• at least one party in almost 70% of cases (New Hampshire 2004)
• 67% of petitioners at time of filing, 80% at time of disposition (California 2004)
• 73% (Florida 2001)
• 70% (Wisconsin 2000)

While people have a right to represent themselves, there are certainly many people who represent themselves only because they don’t have the financial resources to hire someone. A case currently in the Washington Court of Appeals addresses whether a woman should have had court-appointed counsel in a proceeding at which she lost custody of her children. The Washington State Bar Association is considering whether to file an amicus brief in the case, In re Marriage of King. (See Trial Ad Notes post.)

Small claims courts are set up for people to handle their own cases. In fact, in some matters, people may not be represented. So it’s not surprising that a study in Utah (2006) found 99% of the petitioners and 99% of respondents in small claims court were self-represented.

For civil cases overall, a New Hampshire study (2004) found at least one party was self-represented in 85% of cases in district court and 48% of cases in superior court.

A California study (2004) reported 4.3 million self-represented court users.

The court-administered program in Butte simply uses an alphabetical list of attorneys who are members of the local bar organization. Clerks of court and other employees of the judicial system contact the next lawyer on the list when a pro bono need arises, only severely mitigating circumstances (upcoming trial dates or illness) are permitted to excuse an attorney from his/her duty. When local attorneys do not cooperate, the 2nd Judicial District Judges then make the calls which most often results in full cooperation. Essentially, the program is effective due to the top-level support offerred by the Judges and their court staff.

Billings’ successful pro bono program can be attributed to the firm-administered policies by Crowley, Haughey, Hanson, Toole & Dietrich, whose attorneys averaged almost 40 hours of legal advice or representation administered without any expectation of fees. Although Rule 6.1 of Montana’s Rules of Professional Conduct suggests that it is each attorney’s professional responsibility to provide 50 hours of pro bono service, it is neither a requirement nor enforcable by existing State Bar practices. The Crowley firm’s commitment to service is thus highly commendable and should serve as a model for other firms.

What does this report have to do with self-representation? Well, the more attorneys are involved with free legal services, the higher the likelihood that Montana will begin to take the legislative steps necessary to allow for activities like unbundled legal services and lawyer staffed self-help workstations. The more firms and courts are recognized for their commitment to service, the more incentive exists for lawyers to provide pro bono hours any way they can. As of now, only one courthouse workstation (in the state capital of Helena) can be maintained due to a dearth of volunteers. Montana Legal Services Association has made an effort to open a second workstation in the University town of Missoula, where law students can provide the volunteer hours necessary to sustain such an endeavour. But MLSA can only do so much, and because attorneys exist and are encouraged to provide service everywhere in Montana, they are a relatively untapped yet potentially valuable resource for the pro se community.

Because unbundling is yet to take off in Montana, the report also notes that pro bono representation is an effective means of relieving the pro se docket, especially in family law cases for which the Bar offers discounted or free resources in the form of Form Books and a mentoring service through which pro bono lawyers can receive advice from more expereinced attorneys who have dealt with the nuances of specific case types. What kind of resources are offered by your local bar to assist attorneys and how do these relate to the pro se litigant?

  In the Future Trends article, Ericksen and Stove explain Redemption Scams, which are bogus claims on money supposedly owed to individuals by the Government.  The Scams have become widespread, thanks to “self-help materials” being produced or used by jailed militia members in our nation’s prison’s (with “handbooks circulating among inmates, audiotapes and books available for purchase, seminars offered across the country, and information on the Internet”).  Thanks to basic human greed, the Redemption procedures are being tried by “a range of people, many of whom may not have ties to anti-government groups.”  The article also describes in detail a “Particularly troubling and difficult to stem” tide of filings with state corporation commissions. 

Noting that prison inmates pose special challenges (especially those already serving life without parole), the authors suggest coordinated efforts with courts, prosecutors, state agencies, and prison staff working together to identify and stem frivolous filings.  They also discuss concerns that acts of violence may again be use.  The article ends cautioning that “those responsible for court security must keep such groups and tactics on their radar screens, and be aware of these issues when planning security measures.”