Herbert v. Ginty

Background

Jeremiah Herbert filed a letter asking that counsel be assigned. The court construed the letter as a request for pro bono counsel, meaning a lawyer who would volunteer to represent him. Herbert had previously made four requests for pro bono counsel, and the court had denied each one without prejudice. The court had previously found that he had not made the required showing for appointment of counsel.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request—but cannot require—an attorney to represent a person who cannot afford counsel in a civil case. Civil litigants do not have the same right to appointed counsel as criminal defendants. The court must first consider whether the person is indigent and whether the claim appears likely to have substance. If those requirements are met, the court also considers factors such as the person’s ability to investigate facts and present the case, whether cross-examination will be important, the complexity of the legal issues, efforts to obtain counsel, and whether counsel would likely produce a fairer result.

Court’s reasoning

Although Herbert’s case had progressed beyond the motion-to-dismiss stage, the court said it could not determine at that point whether his claim was likely to have substance. The court also found that Herbert had not shown that he was unable to investigate important facts or present his case, or that cross-examination would be the main form of proof. His successful handling of two motions to dismiss on his own also weighed against finding that counsel was necessary to produce a faster or fairer result.

Result

The court denied Herbert’s motion for pro bono counsel without prejudice to a renewed application later in the case. The Clerk was directed to terminate the motion at Doc. 109 and mail Herbert a copy of the order. The court also certified that an appeal would not be taken in good faith and denied Herbert permission to proceed without paying fees for purposes of an appeal.