Green v. New York City Transit Authority

Background

Tammy L. Green brought claims under several federal and New York laws, including the New York City Human Rights Law, alleging workplace insults, intimidation, harassment, unwanted touching, sexual propositions, pornographic text messages, and an incident involving an axe. The court previously dismissed most of her claims while allowing gender-based discrimination claims to continue. On September 21, 2020, the court granted the defendants’ motion for summary judgment on most remaining claims but denied it as to Green’s New York City Human Rights Law claim.

Green had been granted permission to proceed without paying court fees. After the court invited her to request volunteer counsel for her surviving claims, she requested that the court “appoint” pro bono counsel. The defendants did not respond directly to that request, although they later reported that they were seeking outside counsel for trial and that Green had requested additional time to find pro bono counsel.

Legal standard

Under the federal statute concerning people who cannot afford litigation costs, a court may request—but cannot require or formally appoint—a lawyer to volunteer in a civil case. The court must first consider whether the person is financially unable to afford counsel and whether the claim appears likely to have substance. It must then consider factors such as the person’s ability to investigate facts and present the case, the need to question witnesses, the complexity of the legal issues, efforts to find counsel, and whether a lawyer would likely lead to a fairer result.

Court’s analysis

The court found that Green was financially unable to afford counsel because she had been granted permission to proceed without paying court fees. It also found that her surviving New York City Human Rights Law claim was likely to have substance. The court concluded that the other factors supported seeking counsel because trial would likely require questioning multiple witnesses, which would be best handled by a lawyer and could lead to a quicker and fairer result.

Order and scope of representation

The court directed the clerk to attempt to locate pro bono counsel for Green’s trial. Volunteer counsel could also participate in settlement discussions. The representation would be limited: counsel would not be required to respond to a dispositive motion, although counsel could request an extension or ask to expand the representation if such a motion were filed. Unless the court expanded the role, the representation would end after trial. It would also end when volunteer counsel filed a notice of completion.

The court warned that no public funds were available to retain counsel in civil cases, that finding a volunteer could take a long time, and that no lawyer was guaranteed to accept the case. The court also certified that an appeal from this order would not be taken in good faith and denied Green permission to proceed without paying fees for an appeal. The clerk was directed to serve the order on Green.

Disposition

The clerk was directed to seek volunteer counsel for the limited purposes stated in the order. This order addressed representation and did not decide the merits of Green’s surviving claim.