If the Supreme Court, in its upcoming decision in Turner v. Rogers, addresses the issue highlighted by the Solicitor General’s Brief, and discussed significantly at oral argument — whether due process requires in some cases affirmative steps by judges such as exploratory questioning of a self-represented party (see blog posts on the SG brief and oral argument), there may be far more discussion among the judiciary, the profession and even the media than ever before about the appropriate parameters of the judge’s role when people are self-represented.
As I hope most of you know, back in 2007, when the ABA updated the Model Code of Judicial Conduct, it addressed the issue. specifically in added comment language to the (renumbered) Rule 2.2, which now reads as follows:
Rule 2.2
Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*
Comments
[4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
Reporters Explanation of Changes (which seems to be very rarely discussed)
[4] Throughout the life of the Commission, some witnesses urged the Commission to create special rules enabling judges to assist pro se litigants, while others urged the Commission to disregard calls for such rules. This Comment makes clear that judges do not compromise their impartiality when they make reasonable accommodations to pro se litigants who may be completely unfamiliar with the legal system and the litigation process. To the contrary, by leveling the playing field, such judges ensure that pro se litigants receive the fair hearing to which they are entitled. On the other hand, judges should resist unreasonable demands for assistance that might give an unrepresented party an unfair advantage.
I think it is far to say that these are not regarded as the final word on the matter. Some, for example, think that the issue of engagement with the self-represented should be in the language of the Rules, not just the Comments.
My questions are these:
- How is this working out in practice? As we may be entering a new period of debate it would be useful to know if this language is proving helpful in judicial education and in changing the judicial culture.
- Are there any ways in which this language is proving inadequate in encouraging judicial engagement, and are there any ways in which it might be improved to meet this goal?
- Are problems cropping up about such judicial engagement that need to be addressed in the Model Code, or in training materials (see, e.g. the SRLN Judicial Education Curriculum)
- Is there anything in the language which is making adoption harder than it might be (not all states have completed the process.)
I would very much appreciate reactions to these (or indeed any related) questions. Thoughts can be posted as blog comments (you do not need to be logged in), or you can e-mail them to me, either for my private use, or for posting without attribution — let me know how you want any thoughts treated. My e-mail is richard@zorza.net.
Richard Zorza's Access to Justice Blog 
In Colorado, it was the comment to Rule 2.6 that was controversial, perhaps because our comment spells out some of those reasonable steps that can be taken to promote impartiality and fairness. For me the interesting issue is whether we can now develop rules of procedure that affirmatively promote judicial engagement with these ideas in courtrooms. I’ll give one extant but obscure rule that I think provides a good first step beyond saying what is not unethical, to what could be more widely required of judicial officers.
Rule 2.6
A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.
Colorado Comment:
The steps that are permissible in ensuring a self-represented litigant’s right to be heard according to law include but are not limited to
• liberally construing pleadings;
• providing brief information about the proceeding and evidentiary and foundational requirements;
• modifying the traditional order of taking evidence;
• attempting to make legal concepts understandable;
• explaining the basis for a ruling; and
• making referrals to any resources available to assist the litigant in preparation of the case.
Self-represented litigants are still required to comply with the same substantive law and procedural requirements as represented litigants.
The existing procedural rule that actually mandates the provision of brief information about the proceeding, and also modifies the traditional order of taking evidence, including providing a role for questioning by the judge is:
Colorado Rules for Traffic Infractions, Rule 11, Final Hearing
(a) The hearing of all cases shall be informal, the object being to dispense justice promptly and economically. The referee shall ensure that evidence shall be offered and questioning shall be conducted in an orderly and expeditious manner and according to basic notions of fairness. The referee may call and question any witness consistent with the referee’s obligation to be an impartial fact finder favoring neither the state nor the defense.
(b) The order of proceedings at the hearing shall be as follows:
(1) Before commencement of the hearing, the referee shall briefly describe and explain the purposes and procedures of the hearing.
(2) The officer shall offer sworn testimony and evidence to the facts concerning the alleged infraction. After such testimony, the referee and the defendant or counsel may examine the officer.
(3) Thereafter, the defendant may offer sworn testimony and evidence and shall answer questions, if such testimony is offered, as may be asked by the referee
(4) If the testimony of additional witnesses is offered, the order of testimony and the extent of questioning shall be within the discretion of the referee
(5) Upon the conclusion of such testimony and examination, the referee may further examine or allow examination and rebuttal testimony and evidence as deemed appropriate
(6) At the conclusion of all testimony and examination, the defendant or counsel shall be permitted to make a closing statement.
(c) The Colorado Rules of Evidence do not apply to hearings under these rules.
This is a rule designed for cases where everyone, including the prosecuting police officer, is pro se. Section (b)(1) provides the mandate to the judicial officer that goes beyond the more aspirational section (a). It would not be a hard to imagine a similar rule written for small claims cases, or even as a default for pro se litigants in other civil cases.