Herbert v. Korines
- Nelson Roman
- 7:23-cv-09529
- U.S. District Court · Southern District of New York
- 2
In Herbert v. Korines, Judge Román denied Herbert’s request for appointed volunteer counsel without prejudice because the case was early and its strength remained unclear.
Jeremiah Folsom Herbert’s request for volunteer counsel was denied for now, while the underlying case continues at an early stage.
What happened
In Herbert v. Korines, Jeremiah Folsom Herbert asked the court to appoint a volunteer lawyer to represent him in this civil case. The case was still at an early stage: the parties had not begun exchanging evidence or filed motions asking for a decision without a trial.
The court explained that it may ask lawyers on its volunteer panel to represent a person who cannot afford counsel, but it must first consider whether the person’s position appears likely to succeed. It may also consider the case’s complexity and whether the person can handle the case without help. The court could not yet determine that Herbert was unable to proceed without assistance, that his position had a strong chance of success, or that the legal issues were especially complex.
Judge Nelson S. Román denied Herbert’s motion without prejudice, meaning Herbert may renew the request later as the case develops. The clerk was directed to terminate the motion and mail Herbert a copy of the order.
The detailed version
- Herbert v. Korines · No. 7:23-cv-09529
- Nelson Roman
- Jan. 22, 2025
Background
Jeremiah Folsom Herbert, who was representing himself, applied on January 16, 2025, for appointment of pro bono counsel—an attorney who would represent him without charging him. The motion was filed as ECF No. 38.
Legal standard
The court explained that, unlike in a criminal case, it cannot require an attorney to represent a person in a civil case. Under 28 U.S.C. § 1915(e)(1), however, the court may ask its Pro Se Office to seek a volunteer attorney from the court’s pro bono panel for an indigent litigant. The court must first decide whether the litigant’s position appears likely to have substance or some chance of success. If that threshold is met, the court may also consider whether the person can obtain a lawyer independently and handle the case without assistance, considering issues such as the need for factual investigation, the complexity of the legal issues, and the need for skilled cross-examination.
Court’s analysis
The court found that the proceedings were still in their early stages. The parties had not yet entered discovery or filed summary-judgment motions. At that point, the court could not conclude that Herbert was unable to handle the case without assistance. The court also could not determine that Herbert’s position showed a strong chance of success, and it found that the legal issues were not particularly complex.
Ruling
Judge Nelson S. Román denied Herbert’s motion without prejudice to renewal at a later stage of the proceedings. The clerk was directed to terminate the motion at ECF No. 38, mail Herbert a copy of the order at the address listed in the court’s records, and show service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.