PRO SE PROJECT OF THE UNITED STATES DISTRICT COURT, DISTRICT OF MINNESOTA AND THE FEDERAL BAR ASSOCIATION, MINNESOTA CHAPTER

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1 PRO SE PROJECT OF THE UNITED STATES DISTRICT COURT, DISTRICT OF MINNESOTA AND THE FEDERAL BAR ASSOCIATION, MINNESOTA CHAPTER

2 Overview Pro se litigants present unique challenges for judges, opposing counsel, and the court system as a whole. The District of Minnesota is no exception. Each year, pro se litigants make appearances in civil cases in the District. The FBA Pro Se Project is collaboration between the United States District Court, District of Minnesota and the Minnesota Chapter of the FBA. The goal of the project is to provide civil pro se litigants with the opportunity to be represented by counsel. Presently, the project includes only civil cases, and does not include cases filed by individuals who are incarcerated or committed. Some pro se litigants have meritorious claims/defenses, and, in those instances, the goal of the project is recruit a lawyer to represent the litigant to pursue the meritorious claim/defense. Other pro se litigants wish to pursue claims/defenses that have no merit and cannot be pursued consistent with Rule 11 of the Minnesota Rules of Civil Procedure. In those instances, the goal of the project is to advise the litigant and attempt to steer the litigant in the right direction. The volunteer lawyer uses his/her judgment in assessing the claims/defenses. If a claim/defense can be pursued consistent with Rule 11, it is the goal of this project to provide representation to the litigant. Project Goals Provide every civil pro se litigant in the District of Minnesota the opportunity to consult with counsel and, where appropriate, to be represented by counsel. Decrease the number of civil pro se litigants in the District. Communicate effectively with the Court regarding the status of cases referred to the project. 2

3 Process for Pro Se Project Cases A. Case Intake And Referral 1. Referral to Project. When a civil case is filed in the District of Minnesota by a pro se Plaintiff or an appearance is made by a pro se Defendant, the Court will write a letter to the pro se party indicating that they should contact the Pro Se Project Directors if they would like to arrange a case consultation with a volunteer lawyer. The Court will copy the Pro Se Project Director/Managing Attorney on that letter. The contact information for each current Director is: Jeffer Ali at jali@ccvl.com; Dan Gustafson at dgustafson@gustafsongluek.com; Lora Friedemann at lfriedemann@fredlaw.com; or Steve Rau at srau@flynngaskins.com 2. Stay of Proceedings. After the Court refers the litigant to the Pro Se Project, the Court will consider whether it is appropriate to enter an Order Staying Proceedings for 30 days. The purpose of the stay is to permit the Directors or Managing Attorney sufficient time to make a referral, and provide the volunteer attorney sufficient time to meet and interview the client, review the case file and conduct any necessary preliminary investigation and legal research. See Attached Proposed Order. 3. Referral to Volunteer Lawyer/Firm. If the pro se litigant contacts the Pro Se Project and wants to have a consultation with a volunteer lawyer, the Directors or Managing Attorney will contact one of the volunteer law firms or lawyers and refer the case. Referrals will be made on a rolling basis until each volunteer law firm or volunteer lawyer has been referred a case, at which time the Project will begin again at the top of the list. Law firms with fewer than 50 lawyers will appear once on the list. Law firms with lawyers will appear twice, and law firms with more than 200 lawyers will appear three times. The order in which participating firms and attorneys appear on the list will be random. 4. Conflict Check. Upon being contacted by the Directors or Managing Attorney, the volunteer lawyer or law firm shall be responsible to conduct a conflicts inquiry. The preliminary conflicts inquiry shall be done immediately after receiving a case referral. The attorney or firm shall report back regarding whether or not a conflict exists. If a conflict exists, the case shall be referred to the next lawyer or law firm on the list. 3

4 5. Assignment of Case for Consultation. If there is no conflict, the volunteer law firm will make a good faith attempt to recruit a volunteer lawyer within the firm to consult with the pro se client. If the law firm is unable to identify a volunteer within five (5) business days after receiving a case referral, the firm shall so report and the case shall be referred to the next law firm or lawyer on the list. If appropriate, the Directors or Managing Attorney may, in the alternative, extend the five (5) day period for the law firm to recruit a volunteer. Sample letter attached. 6. Notification to Court Regarding Consultation. When a case is referred for consultation, the Pro Se Project will send a letter to the Court indicating that the case has been referred for consultation and informing the Court of the name of the volunteer lawyer or law firm. The letter will indicate that the volunteer has not yet decided whether to undertake representation, and that the volunteer lawyer will enter a notice of appearance if the lawyer assumes representation. 7. Notification to Litigant Regarding Consultation. The Pro Se Project will send a letter to the pro se litigant providing the litigant with the name of the volunteer lawyer that has agreed to meet with him/her for a consultation and case evaluation. Attached is the proposed letter. B. Initial Case Analysis and Management; Client Disclosure 1. Case Evaluation. After receiving the case referral, the volunteer lawyer shall meet and interview the pro se client, review the case file and conduct any necessary research to preliminarily analyze the case. 2. No Viable Cause of Action/Defense. If the volunteer attorney finds no viable cause of action or defense after appropriate research and analysis, he or she shall discuss the merits of the claim with the pro se client. If the pro se client wishes to proceed, the volunteer attorney may, but is not required, to seek the assistance of a volunteer mediator. 3. Viable Cause of Action/Defense. If the volunteer attorney finds a viable cause of action or defense, then the project requests that the attorney enter a notice of appearance and pursue the viable claim(s)/defense(s). The volunteer attorney may choose to provide full representation to the pro se client, may enter a special appearance on behalf of the client, or may decline to provide further service to the client. Factors to consider in making this decision include, but are not limited to, 1) whether there are irreconcilable differences in opinion between the attorney and client (i.e. the client does not wish to withdraw unmeritorious claims or defenses); and 2) whether a settlement conference or other ADR mechanism is available and might resolve the case successfully. 4

5 4. Notify Director/Managing Attorney. The volunteer lawyer shall inform the Directors or Managing Attorney whether additional service will be provided to the client following the case evaluation. The Directors or Managing Attorney may refer the case to another volunteer lawyer or law firm if further service is declined. 5. Notice to Court. If the case is referred to a second lawyer/law firm, the Director/Managing Attorney will inform the Court that a second lawyer/firm has agreed to consult with the litigant. To the extent possible without revealing client confidences, the Director/Managing Attorney shall inform the Court why representation was declined. 6. Acknowledgement from Chief Judge. When a lawyer assumes representation of a case through the project, the Director/Managing Attorney shall notify the Chief Judge and prepare a letter to the attorney thanking the attorney for his/her contribution to the project. 7. Acknowledgement in Bar Talk. The lawyers/firms who undertake representation will be listed and acknowledged in Bar Talk. 8. Departure of Volunteer Attorney. When a volunteer attorney handling a pro se case leaves the firm, he or she should work with the firm to (i) locate another attorney within the firm to take over the representation of the pro se client or (ii) take the case with him or her, in which case the volunteer attorney must notify the pro se client in writing that the firm is withdrawing from representation or (iii) contact the Director or Managing Attorney for assistance with obtaining another lawyer for the client. 9. Malpractice Insurance. The FBA Pro Se Project does not provide malpractice insurance. 5

6 Costs, Expenses and Attorneys Fees A. Engagement Letter Following the initial case consultation, if a volunteer lawyer or law firm elects to provide ongoing representation to the pro se client, the volunteer lawyer or firm shall discuss the terms of the representation with the pro se client and execute a written retainer/engagement letter. A sample letter is attached. B. Costs, Expenses and Attorneys Fees 1. Reimbursement of Expenses by Client. The pro se client is required to pay the costs and expenses actually incurred. 2. Limiting Costs. If the pro se client is indigent and unable to cover the outof-pocket expenses, each volunteer attorney should endeavor to limit costs wherever possible by making in forma pauperis applications and by consulting legal services programs regarding existing arrangements for free services from court reporters, process servers and the like. 3. Reimbursement by Project. The FBA will endeavor to pay costs and expenses actually incurred for incidentals that are not reimbursed through any of the above means. The volunteer attorney shall provide a complete and accurate record of the costs and expenses incurred to the Director/Managing Attorney. If costs and disbursements will exceed $1,000, prior approval must be obtained from the Director/Managing Attorney. 4. Attorneys Fees. If there is a claim to recover attorneys fees in the case, the engagement letter should indicate how any award of attorneys fees will be treated. Unless otherwise agreed, any award of attorneys fees shall first compensate the law firm/lawyer for any out of pocket expenses. After out of pocket expenses are reimbursed, any remaining fees recovered in the case shall be split 50/50 between the law firm and the FBA Pro Se Project. 6

7 Notice and Reporting _1.DOC A. Volunteer Attorneys and Firms 1. Time, Costs and Expenses. The project requests that a volunteer lawyer/firm who enters an appearance on behalf of a client maintain a record of the time, costs and expenses incurred. This record should be submitted to the Directors or Managing Attorney when the representation is complete, on the form provided by the Project. (Sample attached.) 2. Closing Report. Immediately upon completion of the case, whether through settlement, dispositive motions, trial etc., the volunteer attorney or firm shall notify the Directors or Managing Attorney that the representation has ended and complete the closing form provided by the Project. 7

8 Sample Letter from Court to Pro Se Litigant In Re: * Dear *: This letter is in response to your request to appear in forma pauperis * and to have the Court appoint a lawyer to assist you* in the above referenced matter. Unlike criminal cases where there is a legal right to counsel, a person filing a civil case such as yours has no legal right to have the court appoint a lawyer to assist him or her. However, the Minnesota Chapter of the Federal Bar Association (FBA) operates a program of volunteer lawyers who donate their time to assist unrepresented individuals. The FBA program is called the FBA Pro Se Project. You may be able to obtain a lawyer at no cost to you through this program. If you would like to have your case reviewed by a volunteer lawyer through the FBA Pro Se Project, you must contact the program coordinator within thirty (30) days from the date of this letter. The FBA Pro Se Coordinator will then put you in contact with a lawyer who will provide you with a general opinion on the merits of your claims and offer advice on how you should proceed. The volunteer lawyer may agree to represent you, but there is no requirement that he or she agree to do so or that any lawyer be appointed to assist you. If you have not made contact with the FBA Pro Se Project Coordinator within 30 days, or if the lawyer does not agree to represent you, the case will proceed and you will continue to appear pro se; that is, on your own behalf. Whether or not a lawyer represents you, every case in Federal Court is governed by the Federal Rules of Civil Procedure and the Local Rules of the United States District Court for the District of Minnesota. Just as a lawyer would, you will need to comply with these rules if you continue to appear pro se. The contact information for the FBA Pro Se Coordinator appears below. Please contact the Coordinator within 30 days from the date of this letter if you would like to participate in the program. Daniel Gustafson, FBA Pro Se Coordinator Gustafson Gluek PLLC 750 Northstar East 608 Second Avenue South Minneapolis, MN (612) cc: FBA Pro Se Coordinator (w/complaint) Clerk of Court 8

9 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Plaintiff(s), Case No. v. ORDER REFERING LITIGANT TO FEDERAL PRO SE PROJECT AND STAYING PROCEEDINGS Defendants(s) The [Plaintiff/Defendant, NAME OF THE PARTY], being in need of counsel to assist him/her in this matter, IT IS HEREBY ORDERED that [Plaintiff/Defendant, NAME OF THE PARTY] shall be referred to the Federal Bar Association, Pro Se Project in the matter set forth below: 1. The Clerk shall forward to the Federal Bar Association, Pro Se Project one copy of the court file with a notice of referral of the case pursuant to the guidelines of the Federal Bar Association, Pro Se Project for referral to a volunteer attorney. 2. Upon being notified by the Federal Bar Association, Pro Se Project that an attorney has been located to represent [Plaintiff/Defendant, NAME OF THE PARTY], that attorney shall be appointed as counsel for [Plaintiff/Defendant, NAME OF THE PARTY] in this matter until further order of the Court. 3. All proceedings in this action are hereby stayed for 30 days in this action. IT IS SO ORDERED. Dated: United States Magistrate Judge 9

10 LETTER FROM PROJECT TO PRO SE LITIGANT [NAME AND ADDRESS OF PRO SE LITIGANT] RE: [NAME OF CASE AND CASE NUMBER] Dear : The above-referenced case was referred to the Minnesota Federal Bar Association s ( FBA ) Pro Se Project by the Federal District Court of Minnesota because it is a case in which you appear without legal counsel. On, you contacted the Pro Se Project and requested representation. Unlike criminal cases where there is a legal right to counsel, a person filing a civil case, such as yours, has no legal right to have the court appoint a lawyer to assist him or her. However, in this district, Minnesota FBA has organized the Pro Se Project, which finds lawyers who donate their time to assist individuals who file or are required to defend law suits and are unrepresented. Attorney has agreed to meet with you and to provide an evaluation of the case. The attorney is not obligated to represent you if he/she does not believe you have a viable claim or defense. If the attorney agrees to represent you, you will receive a written retainer letter that will discuss the scope and terms of that representation. The contact information for this attorney is set forth below: [fill in address] Attorney will contact you within one week of receiving this letter to discuss this matter with you. If you do not hear from him/her by then, you should contact him/her directly. If you have any questions, please let us know. Sincerely, [Name of Director or Managing Attorney] cc: Attorney 10

11 LETTER TO REFERRING JUDGE [NAME AND ADDRESS OF JUDGE THAT REFERRED CASE] RE: [NAME OF CASE AND CASE NUMBER] Dear Judge : The Pro Se Project was contacted by [name of pro se litigant] based on your letter to him/her dated. This litigant does wish to receive free legal representation in the above-referenced matter. The Pro Se Project contacted Attorney, who has agreed to meet with [name of pro se litigant] and provide a consultation. While lawyers are encouraged to provide representation beyond the consultation, the lawyer is not obligated to do so. Counsel s contact information is set forth below: [Name and Address of Volunteer Lawyer] As you know, the Pro Se Project is a new program undertaking by the Federal Bar Association and, as such, we are still working through all the details of the program. Please let me know if there are any problems or concerns that arise so that we can address these issues and try and avoid them in the future. If you have any questions, please call. 11

12 SAMPLE PRO BONO AUTHORIZATION AND RETAINER AGREEMENT In this Agreement, Client means the organization or person whose name appears below, and Firm means. Client s Name: Client s Address: Client s Phone Number: Client s Key Contact Name: AUTHORIZATION Client agrees that Firm shall provide Client with legal representation regarding. RETAINER AGREEMENT A. Firm will represent Client without charge except as otherwise expressly stated in this Agreement. B. Client agrees to bear responsibility for all out-of-pocket costs and disbursements incurred by Firm in representing Client, unless Firm specifically agrees to pay for a cost or disbursement or Firm obtains reimbursement for any costs through the Minnesota Chapter of the Federal Bar Association. Firm will advance costs and disbursements for certain items, such as filing fees, travel expenses and long distance telephone calls, and then bill Client. In some cases, Firm may ask providers, such as court reporters or expert witnesses, to submit certain substantial charges directly to Client. Service charges for such items as facsimile service, photocopying and computerized research will be billed to Client at Firm s cost, whether Firm incurs the cost directly or indirectly. Client shall pay all bills for costs and disbursements promptly upon receipt. C. Any award of attorneys fees obtained shall first compensate the Firm for any out of pocket expenses. After out of pocket expenses are reimbursed, any remaining fees recovered in the case shall be split 50/50 between the Firm and the FBA Pro Se Project. Withdrawal by Firm Firm must withdraw from representing Client, with Court approval, and terminate this Agreement if: A. The representation will cause Firm to violate the Rules of Professional Conduct or other law, or 12

13 B. The physical or mental condition of the attorney at Firm materially impairs his or her ability to represent the Client. Firm may withdraw from representing Client, with Court approval, and terminate this Agreement if: A. Withdrawal can be accomplished without material adverse effect on the interests of Client; B. Client persists in a course of conduct involving Firm s services that Firm reasonably believes is criminal or fraudulent; C. Client has used Firm s services to perpetrate a crime or fraud; D. Client insists upon taking action that Firm considers repugnant or with which Firm has a fundamental disagreement; E. Client fails substantially to fulfill an obligation to Firm regarding Firm s services and has been given reasonable warning that Firm will withdraw unless the obligation is fulfilled; F. The representation will result in an unreasonable financial burden on Firm or has been rendered unreasonably difficult by Client; or G. Other good cause for withdrawal exists. Client File at Conclusion of Representation At the conclusion of the representation, Client may, on written request, have a copy of the Client file, for which Firm will charge a reasonable copying cost. The undersigned authorizes Firm to act on behalf of Client. CLIENT HAS READ AND AGREES TO THE TERMS OF THIS PRO BONO AUTHORIZATION AND RETAINER AGREEMENT. Client has received a copy of this Agreement. Name of Client: By (Signature): Title: Date: Attorney in Charge: 13

14 FBA Pro Se Project CLOSING FORM Case Name: Lawyer Name: Nature of Claim: (employment, Section 1983, etc.) How case resolved (check one): Consultation only Settled Number of Hours Spent: Dismissed on Rule 12 or summary judgment motion Counsel withdrew representation Tried to verdict/judgment Other (please explain below) Total Costs Incurred: * Please attach documentation for unpaid costs for which reimbursement is sought. Thank you for your contribution to the FBA Pro Se Project! _1.DOC 14