Court News
An Opportunity to Litigate & Serve: The Eastern District’s Pro Bono Panel
T
he United States District Court for the Eastern District of California has one of the most robust pro bono attorney panels in the country and provides unique opportunities for attorneys to gain federal litigation experience. Although regarded as a model for other courts today, the panel originated on an ad hoc basis with more humble aspirations. The first pro bono panel in the Eastern District was created in 1996 and was known as the “Bradshaw Panel” after the employment case that prompted its formation. The panel’s existence floundered, in part because the court lacked the resources to maintain it. In 2005, however, the Ninth Circuit Court of Appeals ordered the Eastern District to appoint pro bono counsel in a prisoner’s civil rights case. The need for a functioning pro bono panel became strikingly clear after then-Magistrate Judge Kimberly Mueller contacted numerous law firms and attorneys in Sacramento but was unable to obtain representation in that case and others. In 2005, 2007, and 2010, Chief Judges Levi, Burrell and Ishii, respectively, issued letters encouraging attorneys to serve on the panel. Although the panel began with only thirteen members, by 2009 it had grown to include about one hundred attorneys and now includes 267 attorneys. Not only does the Eastern District have one of the largest pro bono panels in the country, the Eastern District’s location creates a heightened need for pro bono representation in prisoners’ civil rights cases. Compared to other districts, the Eastern District has a disproportionately high number of prisoner cases because nineteen of the thirty-three state prisons in California lie within the Eastern District’s borders. In 2012, prisoners filed 1,238 civil rights cases in the Eastern District, which totaled twentythree percent of the total civil filings in the district. Most of the prisoner civil rights cases challenge conditions of confinement or allege unconstitutional treatment under 42 U.S.C. § 1983. The growth of the panel in recent years is due in part to the Administrative Office of the United States Courts’ creation of a full-time position to administer the panel and assist appointed attorneys. In April 2009, Sujean Park was appointed as the Eastern District’s first ADR and Pro Bono Program Director, and she continues serving in that capacity today. The support Ms. Park provides for panel members includes answering questions related to appointments, facilitating and coordinating client visits, providing forms, assisting with expense reimbursement procedures, and pairing less-experienced attorneys with an experienced civil rights attorney-mentor. In 2011, the Ninth
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Sacramento Lawyer May/June 2013
By Breann Moebius and Sujean Park
Circuit recognized Ms. Park’s contributions with the Robert F. Peckham award for excellence in alternative dispute resolution. The vast majority of the appointments through the pro bono panel are in prisoner civil rights cases, and the number of attorney appointments from the panel has been increasing. Appointment of counsel through the panel occurs only after the judge or magistrate judge assigned to the case determines that the case has merit and that appointment of counsel is justified. The Eastern District appointed attorneys in twenty-four cases in 2010, forty-four cases in 2011, and thirty-five cases in 2012. If the current rate of attorney appointments in 2013 continues through the end of the year, the court will appoint attorneys in approximately sixty cases. In addition to assisting the court in carrying out its duty to ensure that cases are fairly tried and allowing lawyers to provide significant public service, the panel gives attorneys a unique opportunity to gain federal litigation experience with the prospect of a federal jury trial. For many new associates, the pro bono panel provides the only opportunity to serve as lead counsel on a case and obtain significant trial experience. Appointments can also occur for a limited purpose, allowing attorneys to gain experience in a discrete area. These limited purpose appointments include drafting or amending a complaint, attending a settlement conference, or conducting the trial. Limited purpose appointments are also used in cases where the inmate needs assistance in researching and briefing a complicated legal issue. Attorneys joining the panel can specify whether they are seeking full-purpose or limited-purpose appointments. In volunteering to serve on the panel, an attorney can anticipate a request for his or her services in no more than one case every three years. Often times, appointments occur after discovery has closed and the deadline for dispositive motions has expired. The cases generally require counsel to adopt a “lean and mean” approach to quickly and efficiently prepare for trial. Counsel are not, however, expected to bear all the litigation costs in these cases. Through the pro bono program, attorneys can request reimbursement of reasonable out-ofpocket expenses as long as they obtain pre-approval. Attorneys are required to reimburse the fund if they obtain a costs award in the case. Attorneys should take a pro bono case with the expectation that they will not be compensated for their services. If the client