The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Appointments In The Federal Court Pro Bono Program
By Terrence J. Benshoof

Experienced litigation attorneys in the Northern District of Illinois, who become members of the federal trial bar, are obligated to be available for appointment to serve as counsel in pro se matters. [1] The appointment process is governed under the pro bono program,[2] which dictates both the criteria for litigants to be eligible for representation by a trial bar member[3] and the duties and responsibilities of appointed counsel.[4]

A party seeking representation under the pro bono program will have initially appeared pro se. If appointment of counsel is sought, the party will complete an application, including an affidavit as to efforts to obtain counsel, and whether the party has previously had pro bono counsel appointed in pending or terminated litigation.[5] A financial status affidavit is also required[6] on forms provided by the Clerk, along with a cover sheet to inform the party of the steps for completing the forms, and information on expenses and fee awards.[7] The trial judge reviews the application, and before making an appointment looks into the potential merit of the claims; the nature and complexity of the case; the presence of conflicting testimony; the pro se party’s own capability to present the case; the inability of the party to retain counsel by other means; the degree to which the interests of justice will be served; and any other factors deemed appropriate.[8] If the judge concludes that counsel should be appointed, an order is entered pursuant to 28 U.S.C. §1915(d).

Appointed Counsel. The trial judge has several options available in making the appointment of counsel under the pro bono program. In addition to appointment from a panel of attorneys, the court may appoint the same counsel who has represented the party in other pending cases.[9] If the case requires specific expertise, and the panel has members with that specific expertise, the court may order the clerk to select from that group, or the court may designate a specific member of that group.[10]  If the court finds that no member of the panel has the necessary expertise, the court may appoint counsel with the required expertise who is not on the panel.[11] If none of these criteria apply, the clerk, on receipt of an appointment order, will select the first available panel member matching the expertise or preference desired,[12] or if no such person is found, the next available panel member.[13] An appointment order is then sent to the selected counsel.[14]

Once counsel receives notice of appointment, an appearance must be filed in the action. Counsel is required, in addition to all of those things which the Illinois Rules of Professional Responsibility require, to handle the matter through final judgment. Counsel must also inform the party of possible use of other fora, and continue the representation to the courts system from administrative fora unless granted leave to withdraw.[15] During the course of representation, counsel may be able to recover expenses related to the representation from the District Court Fund, as provided in the Regulations Governing the Reimbursement of Expenses in Pro Bono Cases.[16] It is also possible, in some cases, for appointed counsel to obtain fees.[17] Fee agreements of a binding nature, or as a condition of representation, are prohibited; although provisional fee agreements, in settlements, may be approved by the court.[18]

The Attorney Panel.  As noted above, the pro bono program is serviced by members of the federal trial bar. Some members of the trial bar take their place on the panels that are created by the office of the clerk by volunteering. If a volunteer is then appointed, on notification of the appointment, the volunteer is given the option of then being moved to the end of the list, or being removed from the list until replacement after a specific time or on the volunteer’s request.[19] With the exception of volunteers, the panels are created by a random selection of names from the trial bar by the clerk. Generally, those selected are not to have been on earlier panels.[20] When panel members are selected, the clerk is charged with obtaining information from each member as to their prior civil trial experience, number of trials, and areas of trial experience; and the member’s foreign language proficiency.[21]

In order to further narrow the panel for selection purposes by the trial courts, the clerk also requests preferences from members as to Social Security appeals, employment discrimination matters, civil rights actions by persons in custody, and other civil rights actions.  The clerk will also inquire whether counsel is willing to serve in other divisions in the Court and whether counsel is willing to serve in other districts in the Seventh Circuit.[22] Members of the trial bar whose principal place of business is outside the District or who are employed as an attorney by a federal or state governmental agency or who are employed full time by a not-for-profit legal aid organization, are exempt. However, although they will be removed from a panel if selected, they will be returned to the pool where they may be called to a subsequent panel.[23]

Appointment to a case from the panels of the pro bono program is not absolute. If there is good cause shown, found adequate by the trial judge, the appointed counsel may be relieved from the duty. Such good cause must be made by application to the judge promptly after counsel becomes aware of the grounds for relief, or in such additional time as permitted by the judge for good cause shown.[24] The grounds for relief are set out in the rule: conflict of interest; counsel’s belief that he is not competent to represent the party in the particular type of action assigned; personal incompatibility or substantial disagreement on litigation strategy between counsel and the party; temporary burden of other professional commitments involved in the practice of law which would cause a lack of time necessary to represent the party; or that counsel believes that the party is proceeding for the purpose of harassment or malicious injury or that the claims are not warranted under existing law and cannot be supported by good faith argument for extension, modification, or reversal of existing law.[25] In the event that relief is granted, the judge may issue an order to appoint another counsel. A new appointment must be made in accordance with local rules. The judge may also decline to issue another appointment order, and instead allow the party to prosecute or defend pro se.[26]

Generally speaking, members of the trial bar need not be concerned over being constantly selected to pro bono panels, nor being regularly appointed to cases. Procedures for the program involve selection from a current panel. Panels are formed annually, with one panel in each of the Eastern and Western divisions. In addition, names are selected such that no member of the trial bar is selected for subsequent panels until all other members are selected. Since there are considerable numbers of trial bar members, not even considering those exempt, serving on the panels is a matter that occurs only seldom in ten or more years.[27] Moreover, the program only applies to civil matters, and does not include appointment under the Criminal Justice Act of 1964, 18 U.S.C. §3006A.[28] 

Service on the pro bono program panels is a part of the privilege of admission to the trial bar, and is a part of the service which an attorney performs as an obligation to the system of justice. The representation of those without the means to retain counsel to protect their rights in federal court is one method of fulfilling this obligation.

[1]  Northern District of Illinois Local Rule 83.11(g).  Citations to “LR” herein are to the Local Rules for the Northern District of Illinois.  See also Rose v. Racine Correctional Inst., 141 F.R.D. 105 (E.D.Wis. 1992) (“If it were not for this district's pro bono panel, very few indigent prisoners would be represented by counsel.”).

[2]  LR 83.35.

[3]  LR 83.36.

[4]  LR 83.37.  See also Synergy Associates, Inc. v. Sun Biotechnologies, Inc. 350 F.3d 681, 683-84 (7th Cir. 2003) (“In an effort to ensure that all deserving litigants, including those without financial means, have access to counsel in the federal court system, the Northern District's pro bono program requires all members of its trial bar to ‘be available for appointment by the court to represent or assist in the representation of those who cannot afford to hire a member of the trial bar....’”); United States ex rel. Green v. Washington, 917 F.Supp. 1238, 1279 (N.D. Ill. 1996) (“It is worth observing that in addition to this District Court's ability to appoint counsel on a compensated basis under the Criminal Justice Act, 18 U.S.C. § 006A, it imposes on members of its trial bar the requirement that they be available for appointment to render services to indigent litigants on a pro bono publico basis-without any payment of fees (General Rules 3.82-3.90), and our Court of Appeals similarly provides counsel for indigent parties in both civil and criminal appeals.”). Similar programs exist throughout the federal court system.  See, e.g. Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978) (“If it is apparent to the district court that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him”).

[5]  LR 83.36(a).

[6]  LR 83.36(a).

[7]  LR 83.36(a)(1-5).

[8]  LR 83.36(c)(1-7).

[9]  LR 83.36(d)(1).

[10] LR 83.36(d)(2).

[11] LR 83.36(d)(3).

[12] The expertise in question is that relevant to the area of practice, not specific knowledge of the facts in a given case.  Thus, in Synergy Associates, Inc. v. Sun Biotechnologies, Inc. 350 F.3d 681 (7th Cir. 2003), the Court found that the District Court erred in requiring an attorney who had withdrawn for non-payment had the “expertise” and therefore should be brought back in when no other attorney with such “expertise” could be found.  See Synergy, 350 F.3d at 684 (“Mr. Adducci's special or specific knowledge of Ms. Cusimano's case, a run-of-the-mill creditor's lawsuit, as opposed to his particular expertise in an area of law, is not the type of expertise for which counsel's appointment is appropriate, and is not justified when the court previously permitted him to withdraw as counsel for his client's failure to pay fees. If we upheld the district court's interpretation, any attorney permitted to withdraw as retained counsel for any reason would immediately be eligible for appointment as pro bono counsel. Appointment under that circumstance would override the legitimate reasons for withdrawal as retained counsel in the first place.”)

[13] LR 83.36(e)(1-2).

[14] LR 83.36(f).

[15] LR 83.37.  Withdrawing from a court appointment once taken requires that counsel demonstrate a hardship or the existence of a conflict which would interfere with his or her ability to complete the assignment.  See, e.g. United States v. Hughes, 333 Fed. Appx. 124, 125 (7th Cir. 2009) (“Court-appointed counsel has moved to withdraw because he is unable to discern any meritorious issues for appeal.”), citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (Discussing the circumstances and procedures attorneys should follow in advising the court of such a conflict in position between attorney and client).  

[16] LR 83.40.

[17] See, e.g. Criminal Justice Act, 18 U.S.C. § 006A

[18] LR 83.41.

[19] LR 83.35(e).

[20] LR 83.35(b).

[21] LR 83.35(c)(1-2).

[22] LR 83.35(c)(3-5).

[23] LR 83.35(d).

[24] LR 83.38(a).

[25] LR 83.38(a)(1-5).

[26] LR 83.38(b).

[27] LR 83.36(Committee Comments).

[28] LR 83.35(a).

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