July 17, 2013 – A working group convened by the Wisconsin Access to Justice Commission is examining possible changes to the Wisconsin Code of Judicial Conduct that would provide additional guidance to judges to help address one of the challenges raised by the growth in self-represented litigants.

In some courts, 90 percent of litigants in paternity cases don’t have lawyers, and over 60 percent of family law cases now involve at least one self-represented party. The increasing number of self-represented litigants is driven by stagnant family incomes, the rising cost of lawyers, increased complexity in the legal system, cutbacks in legal aid funding, the availability of legal information online, and a growing do-it-yourself culture. While the commission can’t alter the course of some of these larger social changes, it is working where it can to push for solutions such as expanded funding for civil legal services programs, increasing pro bono and expanding the use of limited scope representation. Changes to the judicial code are one piece of a larger effort.

ABA Model Code of Judicial Conduct

The commission’s working group is guided in part by commentary to the ABA Model Code, adopted in 2007, that states: “It is not a violation of [Rule 2.2, ‘Impartiality and Fairness’] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.” Comment 4 to Rule 2.2 of the ABA Model Code. More recently, the 2012 joint resolution on this subject from the Conference of Chief Justices and the Conference of State Court Administrators recommends that states consider adopting ABA Model Rule 2.2 with the inclusion of the following wording:

(A) A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. (B) A judge may make reasonable efforts, consistent with the law and court rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

The joint resolution also “suggest[s] [that] states modify the comments to Rule 2.2 to reflect local rules and practices regarding specific actions judges can take to exercise their discretion in cases involving self-represented litigants.” Twenty-six states have now adopted changes to their judicial codes that incorporate language the same as or similar to ABA Comment 4 or the joint resolution.

Currently, the Wisconsin Code of Judicial Conduct does not explicitly address ethical standards for judges who are adjudicating cases with self-represented litigants. SCR 60.04 states the general rule that “A judge shall perform the duties of judicial office impartially and diligently;’’ and SCR 60.04(1) specifies a judge’s obligations when performing adjudicative responsibilities. Portions of some of the subsections of SCR 60.04(1) provide general guidance that may be relevant to a judge’s role in adjudicating cases with self-represented litigants, but none directly address that circumstance.

The Commission’s working group, led by former Court of Appeals Judge Margaret Vergeront, has been examining this issue and gathering suggestions from judges and practicing attorneys. The members of the working group are: circuit court judges Carl Ashley, Karen Christenson, Mary Triggiano, Mary Kuhnmuench, Scott Horne, Thomas Walsh, Andrew Bissonnette, Michael Rosborough, Maryann Sumi, and Shelley Gaylord; court commissioners Dolores Bomrad, Barry Boline, and Gloria Doyle; and Commission members Marsha Mansfield and Margaret Vergeront. The working group’s suggestions have been discussed with a number of State Bar groups, including the Section Leaders Council, the Legal Assistance Committee, and the Bench & Bar Committee. Similar meetings were held with diverse groups of judges to gather their feedback. The working group is still reviewing the comments and suggestions that it received and expects to complete its work this summer.