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:
Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*
 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)
 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 firstname.lastname@example.org.