1. The Non-Traditional Advocate and the Pro Se Litigant

2. THE BIG PICTURE
Pro se’s access to justice is more difficult because they don’t know the law.
Recommendation that attorneys and judges give advice and/or help in the courtroom go too far.
Except in the “enforcement agency” arena.
The type of proceeding makes a difference as to how much “advice” a pro se should get.
This is my roadmap.

3. The Pro Se Litigant Does not always mean poor
Distinguished from the “Low-Income Litigant”
Can be MANY reasons you appear without a lawyer!
Does not always mean uneducated
89% had high school education
59% had some college or a degree
5% had post graduate degrees
Important to remember this distinction because arguably, low-income litigants need more help than one who is simply “without a lawyer.” They potentially face more legal problems, like eviction, custody battles, etc.
According to Will Hornsby, there are four reasons why people choose pro se litigation:
Affordability, value, complexity and consequences.

4. Generally, why pro se’s should not be given assistance
Legal clinics, etc.
Are not necessarily “fools”
Not necessarily an unfair process
Most/some are shrewd and know how to play the system
Pro se’s are given much leeway in court (with filings and just because they are pro se).
Monetary advantages.

5. (continued) Attorneys Judges
Ethical barriers prevent attorneys from giving unrepresented individuals advice.
4.3 Model Code of Professional Conduct
Judges
Would violate judicial canons of impartiality.
Could make impartiality impossible.
“Litigant who chooses himself as legal representative should be treated no differently”

6. The Exception
Pro se’s should be given assistance/advice by the adverse party where they are being prosecuted by enforcement agencies.
The reason this is an issue is because ethical rules prohibit giving advice to an unrepresented litigant.
Rule 4.3: Model Rules of Professional Conduct

7. But what constitutes advice?
Substantive?
Procedural?
Strategies?
Making the pro se’s argument for them?
Assisting them to comply with the rules?

8. Enforcement Agencies Examples are:
City of Chicago Department of Buildings/Health
Illinois Environmental Protection Agency
Protect the health, safety & welfare of the general public.
First have to know this before going any further

9. Agency enforcement proceedings
Akin to prosecutor.
Often many pro se litigants
Goal of any litigation, generally, is to protect the greater good.
Primary goal is not to extract money judgment from the defendant.
Proceedings are to get the person to comply, and not purely to punish for past wrongs.
Violations are ongoing.

10. “Non-Traditional” Advocates: City of Chicago Building Dept.
One area of law where there are a lot of pro se litigants.
Goal of the prosecuting attorney is to get compliance.
Achieving what the client wants--Department of Buildings wants to get the building fixed.
These are the reasons that support my position that agency attorneys should be able to give advice.

11. (continued)
For injuries that have already occurred, counseling a pro se will do nothing!
Advising a pro se in Housing court to address the “injury” directly, and stop it.
Means looking for a path for compliance.
Talking to people in the hallway,
Not objecting to a continuance,
Giving them a second chance,
Giving them “advice”
These are the reasons that support my position that agency attorneys should be able to give advice.

12. The Solution “Advice” given on a case-by-case basis.
Home owner A is an 85 year-old woman from Guatemala who owns a single-family home.
Home owner B is a 30 year-old man who owns a commercial building and comes into court covered in dry-wall dust.
No set of guidelines currently exist.
Saying, “you can’t say this, or you can’t say that.”