I. TREATMENT OF PRO SE LITIGANTS IN THE COURTS A. PLEADING STANDARDS

Transcription

1 I. TREATMENT OF PRO SE LITIGANTS IN THE COURTS A. PLEADING STANDARDS It is almst universally recgnized in bth New Yrk State and Federal Curt that pr se pleadings are cnstrued mre liberally than thse prepared by attrneys. 1. New Yrk State Cases a. Pezhman v. City f New Yrk, 29 A.D.3d 164, 168, 812 N.Y.S.2d 14, 18 (1 st Dep t 2006) (a pr se cmplaint shuld be cnstrued liberally in favr f the pleader). b. Rsen v. Baum, 164 A.D.2d 809, 811, 559 N.Y.S.2d 541, 542 (1 st Dep t 1990) (same). c. Planck v. SUNY Bard f Trustees, 18 A.D.3d 988, N.Y.S.2d 147, 149 (3 rd Dep t), lv. dsmsd., 5 N.Y. 3d 844, 805 N.Y.S.2d 595 (2005) (cmplaint dismissed even after applying the liberal and brad interpretatin t the cmplaint as is apprpriate with a pr se litigant). d. Net Cm Data Crp. f New Yrk v. Brunetti, 2010 N.Y. Misc. LEXIS 1436 (Sup. Ct. Nassau C. 2/4/10) (Driscll, J.) (answer stating that defendant des nt waive any right t challenge jurisdictin... at any pint during this prceeding even upn final determinatin is precisely the srt f drafting leniency the law permits fr a pr se litigant ). 2. Federal Cases: a. Ericksn v. Pardus, 551 U.S. 89, 94, 127 S.Ct (2007) ( pr se pleadings hwever inartfully pleaded, must be held t less stringent standards than frmal pleadings drafted by lawyers ). b. Bbal v. Rensselear Plytechnic Institute, 916 F.2d 759, (2 nd Cir. 1990), cert. denied, 499 U.S. 943, 111 S.Ct (1991). (Attached) c. Washingtn v. James, 782 F.2d 1134, 1138 (2 nd Cir. 1986) (cmplaint nt t be dismissed unless frivlus n its face r whlly unsubstantial ). B. LATER STAGES OF THE CASE - While a pr se litigant is t be spared the harsh applicatin f technical rules, he has n greater rights than any ther litigant, and is nt excused frm the prcedural requirements impse n all civil litigants. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct (1993); Edwards v. Immigratin and Naturalizatin Service, 59 F.3d 5, 8 (2 nd Cir. 1995). 1. DISCOVERY - bth in New Yrk State and Federal Curt, the Curts generally are willing t use their discretin in favr f pr se litigants wh fail t cmply with discvery rders, as lng as the failure t cmply was nt dne willfully r in bad faith. Hwever, in Federal Curt, the Curt must give ntice t the pr se litigant that vilatin f a Curt rder regarding discvery will result in a dismissal f the case with prejudice. 1

2 a. Brwn v. Astria Federal Savings, 51 A.D.3d 961, 858 N.Y.S.2d 793 (2 nd Dep t 2008) (pr se plaintiff s cmplaint dismissed where willful and cntumacius nature f cnduct culd be inferred frm refusal t submit t depsitin, t respnd t ther discvery demands, failure t attend preliminary cnference and inadequate explanatins fr failure t cmply). b. Kaplan v. KCK Studis, Inc., 238 A.D.2d 264, 657 N.Y.S2d 26 (1 st Dep t 1997) (n evidence f a pattern f bstructive r dilatry behavir n pr se plaintiff s part where majrity f respnses t discvery demands were satisfactry, and nncmpliance was minimal). c. Agiwal v. Mid Island Mrtgage Crp., 555 F.3d 298 (2 nd Cir. 2009). d. Bbal, supra, 916 F.2d at 764. (Attached) e. Capitl Recrds, Inc. v. Thmas, 2007 WL (E.D.N.Y. 7/16/07) (failure f pr se defendant t cmply with discvery rder nt willful when resulted frm crrespndence being mailed t incrrect address when she mved t Gergia, she indicated willingness t prceed with depsitin and she was never warned f the cnsequences f her actins) 2. SUMMARY JUDGMENT. Althugh pr se litigants are affrded special slicitude and his r her submissins will be read liberally where his claims are subject t a final dismissal, the summary judgment standard is n different fr a pr se litigant than any ther. Evidentiary facts in ppsitin t a mtin fr summary judgment are generally required, and the pr se litigant cannt simply rely upn his r her pleadings. See Melendez v. Haase, 2010 WL , at p. 6 (S.D.N.Y. 12/15/10); but see Executive Nurses Hme Care, Inc. v. Demarc, 2 Misc.3d 226, 767 N.Y.S.2d 199 (Curt wuld cnsider statements in unswrn letter frm defendant frced t act pr se when retained cunsel culd nt be cntacted). Hwever Rule 56.2 f the Jint Lcal Civil Rules fr the Suthern and Eastern Districts f New Yrk (attached) require that any represented party mving fr summary judgment against a pr se party serve and file a separate dcument entitled Ntice t Pr Se Litigant Wh Oppses a Mtin fr Summary Judgment. Failure t give ntice withut a clear understanding by the pr se litigant f the cnsequences f failing t cmply with Rule 56 will make vacatur f any summary judgment granted virtually autmatic. Irby v. New Yrk City Transit Authrity, 262 F.3d 412, 414 (2 nd Cir. 2001). 3. TRIAL. As the First Department stated in 2010, defendant was nt entitled t use his pr se status t vilate rules f evidence and prcedure (Peple v. Cllins, 77 A.D.3d 404, 405, 908 N.Y.S.2d 49). In bth New Yrk State and Federal Curt, pr se litigants must be familiar with and cmply with all rules f evidence, and will be held t the same standards f prf as thse wh are represented by cunsel t supply legally cmpetent evidence. Brwn v. Inescu, 2008 WL (S.D.N.Y. 1/11/08); Duffen v. State, 245 A.D.2d 653, , 665 N.Y.S.2d 978 (3 rd Dep t 1997), lv. den., 91 N.Y.2d 810, 670 N.Y.S.2d 404 (1998) (pr se litigant required t present cmpetent expert evidence that absence f medicatin cntributed t his dizzy cnditin and ultimate fall) (Attached); Slninski v. Westn, 232 A.D.2d 913, 914, 648 2

3 N.Y.S.2d 823, (3 rd Dep t 1996), lv. den., 89 N.Y.2d 809, 655 N.Y.S.2d 889 (1997) (pr se litigant failed t lay a prper fundatin f mst exhibits, including deed and survey); Rundtree v. Singh, 143 A.D.2d 995, 533 N.Y.S.2d 609 (2 nd Dep t 1988) (pr se plaintiff s cause f actin fr lss f use f autmbile dismissed after trial where he failed t intrduce cmpetent prf f damages fr lss f use f vehicle, such as cmpetent expert testimny r dcumentatin f actual rental value f substitute vehicle). 4. REVIEW OF MAGISTRATE S ORDER. Based upn the language f Fed. R. Civ. Prc. 72(a) and (b), the Secnd Circuit has enunciated a rule that failure by a pr se litigant t bject t a Magistrate s rder n a dispsitive matter des nt waive appellate review unless the Magistrate s reprt explicitly warns f the waiver, but that a similar failure t bject n a nndispsitive matter des waive appellate review. Caidr v. Ondaga Cunty, 517 F.3d 601 (2 nd Cir. 2008). C. Other Examples f Curt s Prtectin f Pr Se Defendants 1. Velcity Investments, LLC v. McCaffrey, 2011 WL (Dist. Ct. Nass. C. 2/2/11) (Hirsh, J.) (Attached). Prcess Server had been the subject f an actin in Supreme Curt, Erie Cunty because f false affidavits f service in debt cllectin cases statewide. Part f cnsent rder settling actin prvided that letter was t be sent t defendant upn whm service had been made pursuant t CPLR 308(4) requesting that defendant sign Affidavit and Stipulatin prviding, inter alia, fr vacating f default judgment and allwing plaintiff t reserve. Althugh defendant McCaffrey had signed the Affidavit and Stipulatin, because he was pr se he was nt advised f his rights and prcedures fr vacating the judgment if he did nt sign that dcument and the rights he was waiving by signing it. The Curt refused t sign an rder rubber stamping the Affidavit and Stipulatin, and instead rdered a hearing at which time plaintiff was t prduce an assignment f the pr se defendant s accunt t it, a cpy f the credit card agreement in effect at the time f the alleged default and cpies f the credit card statements establishing the existence f the debt. 2. LR Credit21 LLC v. Paryshkura, Misc.3d, 914 N.Y.S.2d 614 (Dist. Ct. Nass. C. 2010) (Ciaffa, J.) (Attached). Pr se defendant allwed t withdraw frm prpsed stipulatin f payment in cnsumer debt case, where she alleged she had been intimidated int signing the stipulatin. Curt believed that plaintiff btained the settlement by taking undue advantage f pr se defendant. At cnference scheduled t address the prpsed settlement, attrney fr plaintiff was unable t prvide Curt with prf f the alleged assignment f the debt, prf f ntice f the assignment r prf f the underlying debt. Claim wuld prceed n its merits. 3

4 II. ETHICAL CONCERNS IN ASSISTING A PRO SE LITIGANT A. PROS AND CONS OF LIMITED SCOPE REPRESENTATION 1. Psitive Aspects. Allw lawyers t increase the number f clients they can assist Prvides equal access t justice and fills the gap between peple wh qualify fr free legal services and thse unable t affrd cunsel. Makes the judicial system mre efficient as the burden is taken ff the judges and curts t assist pr se litigants. Cnsistent with a lawyer s duty t seek imprvement f the law, the administratin f justice, and the quality f service rendered by the legal prfessin. 2. Negative Aspects. Ptential fr lawyers t be de fact acting as litigatin cunsel withut ever having t appear befre curt r having their identity disclsed, and cnstitutes a misrepresentatin t the Curt. Unfair t ther side fr stensibly pr se litigant t have pleadings interpreted liberally where in fact lawyer has rendered extensive assistance, including ghstwriting the pleading. Evades Federal Rule 11 and 22 NYCRR Part 130-a duties by having attrney avid signing the dcument. B. NY RULES OF PROFESSIONAL CONDUCT 1. RULE 1.2(C) (Attached): SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER A lawyer may limit the scpe f the representatin if the limitatin is reasnable under the circumstances, the client gives infrmed cnsent and where necessary ntice is prvided t the tribunal and/r ppsing cunsel. Cmments: In General: The scpe f services may be limited by agreement with the client r by the terms under which the lawyer s services are made available t the client. In additin, the terms upn which representatin is undertaken may exclude specific means that might therwise be used t 4

5 accmplish the client s bjectives. Such limitatins may exclude actins that the client thinks are t cstly. Disclsure f Limitatins, Cnsequences: The lawyer must adequately disclse the limitatins n the scpe f the engagement and the matters that will be excluded. The lawyer must disclse the reasnably freseeable cnsequences f the limitatin. Reasnability Requirement: The limitatin f representatin must be reasnable under the circumstances. Duty t prvide cmpetent representatin: Althugh an agreement fr a limited representatin des nt exempt a lawyer frm the duty t prvide cmpetent representatin, the limitatin is a factr t be cnsidered when determining the legal knwledge, skill, thrughness and preparatin reasnably necessary fr the representatin. 2. There is n equivalent in the ld Disciplinary Rules. 3. New Yrk Cunty Lawyer s Assciatin: Cmmittee n Prfessinal Ethics Opinin 742. April 16, 2010 (attached) recgnizes limited scpe representatin in light f New Yrk Mdel Rule 1.2 ) and appears t generally allw ghstwriting with disclsure in limited circumstances. Digest f Opinin: Limited scpe representatin is nw ethically permissible fr an attrney, with the infrmed cnsent f his r client, t play a limited rle and prepare pleadings and ther submissins fr a pr se litigant withut disclsing the lawyer s participatin t the tribunal and adverse cunsel. Disclsure f the fact that a pleading r submissin was prepared by cunsel need nly be made where necessary. Interpretatin f where necessary : The cmmittee suggests that disclsure need nly be made based upn: 1. Prcedural rule 2. Curt rule 3. Particular judge s rule 4. Judge s rder in a specific case 5. Where failure t disclse wuld result in misrepresentatin r wuld vilate a law r attrney s ethical bligatins. 6. In light f lder view and lack f clarificatin frm New Yrk Curts since adptin f Mdel Rules (see belw), pinin recmmends, absent a mre specific rule f curt r judge, that lawyer can fulfill any disclsure 5

6 bligatin with the ntatin n any papers Prepared with the assistance f cunsel admitted in New Yrk 4. Older view in New Yrk is that undisclsed representatin impermissibly misleads the Curt. See N.Y. State Bar Ass n Cmm. On Prfessinal Ethics, Op. 613 (1990); N.Y. City Bar Ass n Cmm. On Prfessinal & Judicial Ethics, Frmal Op (1987). 5. New Yrk curts have yet t interpret Rule 1.2 ) and Appellate Divisins have given n clarificatin as t what where necessary means. C. ABA MODEL RULES OF PROFESSIONAL CONDUCT 1. RULE 1.2 ): Scpe Of Representatin And Allcatin Of Authrity Between Client And Lawyer. A lawyer may limit the scpe f the representatin if the limitatin is reasnable under the circumstances and the client gives infrmed cnsent. -Des nt cntain New Yrk Mdel Rule s language and where necessary ntice is prvided t the tribunal and/r ppsing cunsel. 2. American Bar Assciatin Frmal Opinin May 5, 2007 : Undisclsed Legal Assistance t Pr Se Litigants (attached) 446_2007.authcheckdam.pdf Legal Assistance Is Nt Material: The fact that a litigant submitting papers n a pr se basis has received legal assistance behind the scenes is nt material t the merits f the litigatin. N Unfair Advantage: Permitting a litigant t file papers that have been prepared with the assistance f cunsel withut disclsing the nature and extent f such assistance will nt secure unwarranted special treatment fr that litigant r therwise unfairly prejudice ther parties t the prceeding. The tribunal will mst likely discern n its wn whether an attrney assisted. There is n reasnable cncern that a litigant appearing pr se will receive an unfair benefit frm a tribunal as a result f behind-the-scenes legal assistance. D. OTHER JURISDICTIONS: 1. Virtually all Federal Curts, including in New Yrk, have severely criticized ghstwriting and any ther undisclsed substantial assistance t an stensibly pr se litigant fr the reasns discussed in the Negative Aspects f subsectin A abve. E.g., See Dels v. Trustees fr Plan f Merck & C, Inc., 2007 WL (D.N.J. 3/507) 6

7 (attached) (Ghstwriting vilated the New Jersey Rules f Prfessinal Cnduct, ran aful f the attrney s duty f candr t the curt, and cntravened the spirit f Fed. R. Civ. P. 11); Duran v. Carris, 238 F.3d 1268 (10 th Cir. 2001)( participatin by an attrney in drafting an appellate brief is per se substantial, and must be acknwledged by signature ); Laremnt Lpez v. Sutheastern Tidewater Opprtunity Prject, 968 F.Supp.1075 (E.D. Va. 1997); Alca, Inc. v. ATM, Inc., 2008 WL (E.D.N.Y. 12/3/08) (substantial cnduct behind the scenes in prviding legal assistance t a pr se litigant withut filing a ntice f appearance can cnstitute a misrepresentatin t the curt by bth litigant and cunsel ); Raghavendra v. Trustees f Clumbia University, 2008 WL (S.D.N.Y. 7/7/08) Califrnia Rules f Curt 3.35 and 3.37 allw limited scpe representatin withut disclsure within the text f a dcument that attrney was invlved in preparing the dcument. E. SAMPLE LIMITED SCOPE REPRESENTATION AGREEMENTS (frm prgram materials f March 24, 2009 presentatin by M. Sue Talia, ABA Standing Cmmittee n the Delivery f Legal Services and Legal Aid Sciety f Orange Cunty, Califrnia entitled Unbundling Expanding Yur Practice Using Limited Scpe Representatin) - Attached 7