Self-represented litigants and the code of judicial conduct

Based on a proposal by its Coalition for Court Access “to improve the availability and quality of access to civil legal services for persons of limited means,” the Indiana Supreme Court recently amended the state’s code of judicial conduct to provide in the text of Rule 2.2:  “A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.”  A new comment 5 explains:

A judge’s responsibility to promote access to justice, especially in cases involving self-represented litigants, may warrant the exercise of discretion by using techniques that enhance the process of reaching a fair determination in the case.  Although the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality.  Reasonable steps that a judge may take, but in no way is required to take, include:

(a) Construe pleadings to facilitate consideration of the issues raised.
(b) Provide information or explanation about the proceedings.
(c) Explain legal concepts in everyday language.
(d) Ask neutral questions to elicit or clarify information.
(e) Modify the traditional order of taking evidence.
(f) Permit narrative testimony.
(g) Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.
(h) Inform litigants what will be happening next in the case and what is expected of them.

Indiana is the 8th state to add language to the text of Rule 2.2 proposed by the Conference of Chief Justices and the Conference of State Court Administrators in a 2012 resolution.  Those states have also, as the resolution suggested, modified the comments “to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.”  All, for example, allow judges to make referrals to resources available to assist pro se litigants prepare their case and to provide information or explanation about the proceedings, and most permit judges to make legal concepts understandable, modify the traditional order of taking evidence, and ask neutral questions to elicit or clarify information.

In addition, 24 states have added a comment to Rule 2.2 from the 2007 American Bar Association Model Code of judicial Conduct:  “It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard,” with 8 of those adding caveats or comments not in the model.  3 states have adopted other comments regarding judges’ treatment of self-represented litigants

For more information, see the document “self-represented litigants and the code of judicial conduct” in the most requested resources on the Center for Judicial Ethics web-site.

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