Orellana v. Real Innovative Construction, LLC

Background

Defendant Carlos Morales and the plaintiffs submitted a joint status letter asking the court to help secure pro bono counsel for Morales. Pro bono counsel means a volunteer lawyer who represents someone without charging that person a fee. Morales had previously been given deadlines to state whether he wanted the court to try to find counsel, and the court extended the deadline after he did not submit a letter. The parties later jointly renewed the request, and the plaintiffs consented.

The opinion states that Morales had been engaged in bankruptcy proceedings since 2019 and had represented that he could not secure counsel because he could not afford an attorney. Fact discovery concerning the case against Morales ended on May 16, 2022. The case was not to be tried before a jury.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request an attorney to represent a person who cannot afford counsel. In a civil case, the court is not required to provide a lawyer. The court may request that a lawyer volunteer, but it cannot compel an attorney to serve or appoint counsel in the same way counsel may be provided in some criminal cases.

The court explained that requests for volunteer counsel should be made sparingly. The court first considers whether the person is unable to afford counsel and whether the claim appears likely to have substance. If those requirements are met, the court may also consider the person’s ability to investigate facts and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether counsel would likely lead to a fairer result. Each request must be evaluated based on the specific circumstances.

Court’s action

Because the case was at a late stage, the court directed the Clerk of Court to attempt to locate pro bono counsel for Morales for the purpose of completing the litigation and assisting him with the plaintiffs’ anticipated summary-judgment motion. The court also stated that volunteer counsel could participate in settlement discussions.

The court explained that volunteer counsel could seek reimbursement of certain out-of-pocket expenses under the court’s Pro Bono Fund procedures. The representation would end when counsel filed a Notice of Completion, after which counsel would have no further obligations to Morales or the court in this matter.

The court cautioned Morales that there was no guarantee a volunteer lawyer would accept the case, that a lengthy delay was possible because volunteer lawyers were scarce, and that he should be prepared to proceed without an attorney if directed to do so. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied in forma pauperis status—permission to appeal without paying the required fees—for that appeal.

Disposition and classification

The court directed the Clerk of Court to attempt to locate pro bono counsel for Morales. It did not decide the merits of the underlying claims. The order is therefore classified as a procedural order.