Unrepresented Litigants; Pro Bono and Reduced-Fee Legal Services

In response to questions from judges about facilitating or encouraging pro bono or reduced-fee legal services and dealing with unrepresented litigants, the Committee has issued several advisory opinions touching on certain aspects of access to justice for litigants of limited means. 

This page includes a selection of published Advisory Committee opinions involving such issues. (It does not address part-time lawyer judges considering whether to provide legal representation to a client on a pro bono basis.)

Overall Policies and Approaches

Here are some examples where the Committee found that the inquiry involved primarily legal or administrative questions. 

• 17-176 Before seeking ethics advice on how to interact with unrepresented litigants, a New York City Housing Court judge should first consult with his/her supervising or administrative judge concerning applicable policies, procedures, and resources.
• 14-79 May a judge "adopt a policy requiring parties to an action to appear before you for allocution and explanation before entering into a stipulation - even one reached out-of-court - when one of the parties is unrepresented"? 

The Deputy Chief Administrative Judge for Justice Initiatives oversees many programs and policy initiatives in this area. Her office's mission is "To ensure access to justice in all NY State Courts for people of all backgrounds, incomes, and abilities, by using every resource, including pro bono programs, self-help services, and technological tools, and by securing stable and adequate non-profit and government funding for civil and criminal legal services programs." Thus, in some instances, unrepresented litigants may be able to obtain assistance through CourtHelp and/or other official channels of the Unified Court System.

Prohibited Legal Advice or Assistance

Here are some examples where the Committee found a judge's proposed assistance to an unrepresented litigant to be impermissible, relying on rules regarding the appearance of impropriety and partisanship, the provision of legal advice, and/or ex parte communications.

• 88-36 It is inappropriate for the justice who will decide a proceeding to recover possession of real property (RPAPL Art. 7) to assist a party in preparing the petition bringing on the proceeding.
• 90-36 excerpt: "The committee believes that you are correct that judges may not give legal advice to any litigants, including pro se litigants, and that pro se litigants should be advised that they should seek legal advice from an attorney."
• 19-03 A judge may not email governmental agencies to obtain evidence in a disputed litigation.
• 19-21 A judge may not suggest or recommend that an inmate make an application to the governor’s office of clemency nor may the judge take affirmative actions in furtherance of that suggestion or recommendation.

Permissible Legal Information and Forms

Here are some examples where the Committee has found it permissible to provide neutral information about a litigant's options or available resources. After 2015, some opinions in this line rely on 22 NYCRR 100.3(B)(12) ("It is not a violation of this Rule for a judge to make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard.")

• Neutral Form Listing All Options:
  • 99-82 The distribution by the court of a written form to defendants in traffic cases, which informs defendants of all options available, including the contacting of the prosecutor's office for the purpose of negotiating a plea, is not ethically improper, provided that certain safeguards are present.
  • 13-33 Although a court should not simply advise a defendant of a police department’s procedures for seeking a plea reduction, the court may develop a form, without the police department’s or other prosecuting agency’s involvement, listing all of a defendant’s options, including the right to plead not guilty and proceed to trial and distribute the form to defendants or to advise a defendant orally of all his/her options.
  • 09-118 It is ethically permissible for a town justice to add the District Attorney’s website address to the Office of Court Administration-approved information form for defendants charged with Vehicle and Traffic Law violations. However, before doing so the judge should obtain approval from his/her administrative judge.
  • 20-99 The court must not promote or favor mail-in pleas and/or plea bargaining over a defendant motorist’s other options, even if this is intended to mitigate the effects of the COVID-19 outbreak. The court may, however, distribute a court-prepared form (such as UCS DCJA Form 1.0) impartially listing all options for a defendant motorist and include a link to the District Attorney’s website and/or email address as a convenience to defendants.
  • 23-18 (1) On the facts presented, it is necessary to amend the proposed form to make clear that any disposition of the matter by way of a plea is subject to court approval. (2) Once that change is made, there is no ethical impropriety in the proposed simplified form that would neutrally inform defendant motorists who have mailed in “not guilty” pleas on alleged Vehicle and Traffic Law violations of all their options (including the right to retain an attorney; to continue to plead not guilty and have a trial; to plead guilty and waive the right to trial; and the possibility of communicating directly with the prosecutor to negotiate a mutually acceptable disposition subject to the court’s approval). (3) Inviting the defendant to choose an option and return the form to the court is ethically permissible where doing so (a) does not suggest the court is favoring any option, (b) does not create any appearance that the court is serving as the prosecutor’s intermediary, and (c) is expected to help defendants avoid a wasted trip to the courthouse in light of the prosecutor’s decision not to send any representative to court on alleged Vehicle and Traffic Law infractions unless a trial is scheduled. (4) Whether a judicial association or an individual judge has the authority to adopt this form is a legal issue the Committee declines to answer.
• Resource List:
  • 09-02: OK to "make available in your courtroom a list of domestic violence organizations which provide legal services to victims of domestic violence... as long as you explain that the availability of the materials does not constitute an official recommendation by the court and as long as you do not recommend any particular organization."
  • 14-87: OK to "provide criminal defendants, who resolve their cases at arraignment with a disposition that does not include jail time, with information containing resources for various services," specifically "a card containing a list of available resources for help regarding alcohol and drug addiction" and a public library website "detailing various social services and other services available to the formerly incarcerated related to finding a job, education, housing, financial assistance, health counseling family services, legal services, etc." However, a judge may not endorse or promote a particular program or service.
• Other Legal Information:
  • 20-80 A court-attorney referee may set up an email auto-response to provide general legal and ethical information to unrepresented litigants and others, provided the message is consistent with the Rules Governing Judicial Conduct.
  • 22-147 Where a judge has made a statutorily required allocution concerning an unrepresented tenant’s potential claims and defenses, and the tenant says they do not understand them, there is no ethical impropriety in offering the tenant a document prepared and posted by the Unified Court System for public information, entitled “Common Defenses in a Landlord-Tenant Case.” However, the judge should not recommend any particular defense listed. 
  • 19-03: NOT OK to email government agencies to obtain evidence in a matter involving an unrepresented tenant, but OK to "alert the tenant that certain evidence must be obtained by subpoena, or explain the content and form of a valid subpoena, or assist the litigant in determining the address to which the subpoena may be sent." 

Encouraging or Facilitating Pro Bono or Reduced-Fee Legal Services

Here are some opinions addressing specific proposed efforts on the part of a judge or court staff to facilitate or encourage attorneys to provide legal services at reduced fees or pro bono. 

• 23-64 A full-time judge may not participate in a local bar association’s phone bank event where members of the public call in with legal questions. 
• 22-56/22-67 A judge who appoints fiduciaries in a guardianship part (1) may direct court staff to update the Part 36 fiduciary list by contacting the listed individuals to inquire whether they are currently accepting such assignments; (2) may personally inquire whether a prospective appointee is available to accept assignment in a particular case, even if the Alleged Incapacitated Person is indigent, provided the judge avoids undue pressure or coercion; and (3) may also direct court staff to make such inquiry on the judge’s behalf.
• 21-149 A judge may allow their court staff to solicit lawyers for voluntary pro bono representation of defendants in consumer debt cases, provided the judge avoids the appearance of coercing attorneys to participate in such representation. (Modified by 22-56/22-67 with respect to personal solicitation by the judge.)
• 21-149 Allowing volunteer attorneys to appear virtually as lawyer for the day is acceptable. 
• 19-21 May a judge who becomes aware that a particular inmate could be eligible for clemency (a) advise the inmate of specific pro bono organizations that could assist with a clemency application or (b) inform pro bono organizations of the identity of an inmate who might benefit from assistance with a clemency petition?
• 18-114 A court may create and distribute a list of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale, where the list contains a disclaimer that the court and its staff are not recommending any attorney.
• 17-114 A judge presiding over a civil matter involving allegations of sexual abuse committed by a non-party minor should not solicit pro bono representation for the non-party minor and should not direct the parties’ attorneys to solicit such representation. (Distinguished in 22-56/22-67.)
• 17-30 May part-time judges organize a free community “Law Day” event to be held at the local library or historical society “where attorneys from the local area...would volunteer their time to provide to the public free 10 minute private consultations in their respective practice areas”? (Distinguished in 23-64.)
• 09-68 A judge who serves on a court-sponsored pro bono action committee may sign formal or handwritten letters or notes of appreciation on behalf of the committee, using either court letterhead or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges.
• 08-192 An administrative judge may permit a pro bono local action committee to implement a pro bono project in a city court, pursuant to which a city court judge will announce at the beginning of the court’s calendar that volunteer attorneys are available in the courthouse to consult with and to represent tenants involved in pending summary proceedings. The judge must make clear that the volunteer attorneys do not speak for the court, that the judge does not recommend any particular volunteer attorney, and that the court does not, by virtue of the volunteer attorneys’ availability in the courtroom, officially recommend them or their services.
• 93-60 A City Court judge may not inquire of members of the local criminal bar whether any of them would accept as a private client someone who could only pay an “authorized payment” as the interests of justice may dictate as outlined in County Law §722-d.
• 93-51 There is no ethical objection to a town judge accommodating in the courthouse a pro bono panel of local attorneys to consult with unrepresented parties in civil and small claims actions commenced in the town court, provided that it is made clear that the attorneys do not speak for the court, and that the court facilities are furnished solely as a matter of courtesy.
• 90-73 A judge's solicitation of lawyers for voluntary pro bono representation of the poor is permissible, except that the judge should avoid any appearance of coercing attorneys to participate. On the facts presented, "the attorneys should not have to indicate whether they would accept or decline pro bono appointment; rather the forms should be filled out only by those attorneys who agree to accept pro bono assignments. In addition, in cases of acceptance, the forms should be returned not to the judge, but to the clerk." (Distinguished in 22-56/22-67.)

Ghostwriting

The Committee has also addressed a judge’s ethical obligations when the judge learns that a lawyer or other person anonymously prepared papers for a litigant who is formally appearing pro se (i.e., "ghostwriting”).