Fed judge laments lack of right to counsel, recuses himself for helping pro se litigant

In Floyd v. Cosi, a litigant brought a pro se case in the Eastern District of New York for employment discrimination, and the federal judge wound up recusing himself after the litigant’s pro se status led the judge to ask the litigant “leading questions” that enabled the litigant to avoid a time bar issue (as the result of the questioning and prior to recusal, the judge denied the defendant’s summary judgment motion, but notably, the defendants did not request such a recusal).

The recusal decision has powerful language about the plight of pro se litigants and the need for a right to counsel (some of which refers to writing by NCCRC participants such as Debra Gardner and Becky Sandefur):

At the present time, there are no satisfactory means, through statute or otherwise, to provide this pro se plaintiff with counsel. The case, on its face, without substantial discovery, would not warrant the appearance of private counsel working for financial gain. Nor would the legal situation justify the court’s asking a member of the bar to volunteer; litigation obligations would probably require a costly outlay for discovery.

If the plaintiff were to continue pro se, the court would probably be forced to intervene and, in effect, advocate on his behalf, possibly prejudicing the defendant’s case.

In many cases, pro se justice is an oxymoron. Without representation by counsel, it is probable, to some degree, that adequate justice cannot be served in this case. See, e.g., Debra Gardner, Justice Delayed Is, Once Again, Justice Denied: The Overdue Right to Counsel in Civil Cases, 37 U. Balt. L.Rev. 59, 70 (2007) (“The presence of lawyers in a civil case makes a substantial difference to the outcome of the proceedings.”); Robert W. Sweet, Civil Gideon and Confidence in A Just Society, 17 Yale L. & Pol’y Rev. 503, 503 (1998) (“Lawyers, and lawyers for all, are essential to the functioning of an effective justice system, whether it be to advise or to represent.”); Rebecca L. Sandefur, The Impact of Counsel: An Analysis of Empirical Evidence, 9 Seattle J. for Soc. Just. 51, 78 (2010) (“greater access to attorneys might lead to more legally accurate decisions on the part of adjudicators.”). See also Amy Myrick et al., Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs, 15 N.Y.U. J. Legis. & Pub. Pol’y 705, 707, 710 (2012) (minority plaintiffs, especially African Americans, are more likely to file employment discrimination actions without a lawyer).

The recusal decision also noted the lack of a federal constitutional right to counsel and referenced the ICCPR shadow report by Columbia’s Human Rights Institute (to which the NCCRC contributed). It also noted there are some efforts to expand the right to counsel, and flagged in particular the pilot projects in NYC, Boston, and California, the pilots manual co-developed by NCCRC and Washington Appleseed, the New York Times story on right to counsel, and the ABA Model Access Act. A New York Law Journal story about the recusal mentions that this particular federal court is starting a pro se legal assistance project as a way to try to address the access to justice crisis.

Richard Zorza has his take on the Floyd v. Cosi decision on his Access to Justice Blog.