Updating the Judicial Code for the Age of Self-Represented Litigants

Margaret Vergeront

Commission member, Margaret Vergeront

A working group convened by the Wisconsin Access to Justice Commission is examining possible changes to the Wisconsin Code of Judicial Conduct that would provide additional guidance to judges to help address one of the challenges raised by the growth in self-represented litigants. The working group, led by retired Court of Appeals Judge Margaret Vergeront, has been preparing proposed changes as well as gathering suggestions from judges and practicing attorneys. The working group is still reviewing the comments that it received and expects to complete its work this summer.

The proposed changes to the Wisconsin Code of Judicial Conduct would provide additional guidance to judges to help address one of the challenges raised by the growth in self-represented litigants.

In some courts, 90% of litigants in paternity cases don’t have lawyers and over 60% of family law cases now involve at least one self-represented party. The increasing number of self-represented litigants is driven by stagnant family incomes, the rising cost of lawyers, increased complexity in the legal system, cutbacks in legal aid funding, the availability of legal information online and a growing do-it-yourself culture. While the Commission can’t alter the course of some of these larger social changes, it is working where it can to push for solutions such as expanded funding for civil legal services programs, increasing pro bono and expanding the use of limited scope representation. Changes to the judicial code are one piece of a larger effort.

The Commission’s working group is guided in part by Comment 4 to Rule 2.2 of the ABA Model Code of Judicial Conduct, adopted in 2007, that states: “It is not a violation of [Rule 2.2, ‘Impartiality and Fairness’] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”  More recently, a 2012 joint resolution from the Conference of Chief Justices and the Conference of State Court Administrators recommended that states adopt ABA Model Rule 2.2 with the inclusion of the following emphasized wording:

(A) A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.

(B) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

The joint resolution also “suggest[s] [that] states modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.” Currently, the Wisconsin Code of Judicial Conduct does not explicitly address ethical standards for judges who are adjudicating cases with self-represented litigants.  Twenty-six states have updated their judicial codes to incorporate language the same as or similar to ABA Comment 4 or the joint resolution.

The Commission’s working group, led by retired Court of Appeals Judge Margaret Vergeront, has been examining this issue and gathering suggestions from judges and practicing attorneys. The members of the working group are: Circuit Court Judges Carl Ashley, Karen Christenson, Mary Triggiano, Mary Kuhnmuench, Scott Horne, Thomas Walsh, Andrew Bissonnette, Michael Rosborough, Maryann Sumi, and Shelley Gaylord; Court Commissioners Dolores Bomrad, Barry Boline, and Gloria Doyle; and Commission members Marsha Mansfield and Margaret Vergeront. The working group’s suggestions have been discussed at meetings with the State Bar’s Section Leaders Council, Legal Assistance Committee and Bench-Bar Committee. Similar meetings have also been held with groups of judges to gather their feedback. The working group is still reviewing the comments and suggestions that it received and expects to complete its work this summer.

UPDATE 9/20/13: Petition 13-14 has now been filed and its progress can be monitored here.

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