Minnesota's Pro Bono Appellate Program: A Simple Approach That Achieves Important Objectives

The proliferation of pro se litigation strains both the resources and the operation of the nation's state and federal judicial systems. At the same time, the increasing number of unrepresented litigants offers a wealth of opportunities for lawyers to satisfy their professional and ethical obligations to render pro bono legal services. A prime example of this dynamic can be found in the development of pro bono appellate programs that provide needed legal services to pro se appellants, assist the appellate courts, satisfy ethical obligations, and advance professional development. The Appellate Practice Section of the Minnesota State Bar Association ("MSBA") recently developed an appellate pro bono program in cooperation with the Minnesota Court of Appeals. The program is aimed at developing, implementing, and analyzing procedures and materials utilized in providing pro bono appellate legal services to pro se parties in unemployment compensation appeals.(1) While neither perfect nor comprehensive, the program illustrates a fairly simple yet effective method for introducing volunteer lawyers to pro se parties who seek legal representation in their appeals. This Article describes the development and implementation of this appellate pro bono program to provide courts and bar associations a prototype for developing or improving their own appellate pro bono programs. The Article is organized into five sections. First, it outlines the dynamics injected by pro se parties in civil litigation and the manner in which effective pro bono programs can simultaneously assist litigants as well as improve the administration of justice. Second, the Article describes how the MSBA's Appellate Practice Section went about developing a pro bono appellate program to provide representation in pro se appeals filed in the Minnesota Court of Appeals. Third, the Article explains how Minnesota's program was actually implemented and operated. Fourth, it briefly reports on the cases in which pro bono counsel were introduced to, and agreed to appear on behalf of, pro se appellants as part of the pilot program phase of this program. Finally, the Article addresses the future direction and development of this program. I. THE DYNAMICS OF PRO SE LITIGATION AND POTENTIAL FOR PRO BONO OPPORTUNITIES Federal and state courts throughout the country have experienced dramatic increases in pro se litigation (2). The challenge posed by the swelling ranks of self-represented litigants is now recognized as one of the highest priorities for the courts. (3) The increase in pro se litigants in the American justice system shows no signs of subsiding, and appellate courts have not been spared from this growing trend. (4) The increase in pro se litigation offers a complementary increase in opportunities for lawyers to render pro bono legal services. The American Bar Association has formally encouraged lawyers to provide legal services to those who cannot afford it since adopting the original Canons of Ethics nearly a century ago, (5) and it continues to promote pro bono work in the provisions of the Rules of Professional Conduct. (6) In Minnesota, for example, the Supreme Court imposes an aspirational goal for each lawyer "to render at least 50 hours of pro bono publico legal services per year." (7) The substantial increase of pro se litigation, particularly in appellate proceedings, presents a prime opportunity for attorneys to provide significant assistance to parties and courts alike, while meeting their professional and ethical obligations, by providing much needed pro bono legal services. A. Challenges Posed by Pro Se Parties in the Appellate Process Parties engage in pro se litigation for a variety of reasons. Some individuals simply prefer to represent themselves without assistance of counsel. Perhaps they do not like lawyers, or they believe they can represent themselves as well as or better than an attorney could. …