II 118th CONGRESS 2d Session S. 5499 IN THE SENATE OF THE UNITED STATES December 12, 2024 Mr. Van Hollen introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 28, United States Code, with regard to counsel for persons proceeding in forma pauperis.

1. Short title This Act may be cited as the Fair Access to Legal Counsel Act of 2024 . 2. Findings Congress finds the following: (1) The majority of cases filed by pro se litigants in Federal court involve basic human needs such as physical and mental health, safety, employment, and housing. (2) The cases described in paragraph (1) are also a matter of civil rights. (3) Pro se litigants are unable to navigate such complex cases without the assistance of counsel. 3. Counsel in cases where persons are proceeding in forma pauperis Subsection (e) of section 1915 of title 28, United States Code, is amended to read as follows: (e) (1) If a person appears without counsel, including in a proceeding under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq. ) or title VIII of such Act ( 42 U.S.C. 2000f et seq. ), the court shall inform the person of their ability to request counsel if unable to afford counsel. Upon granting such request, the court may appoint counsel for that person. (2) In evaluating whether to grant the request, a court shall consider all of the following on the record to the degree they are known to the court: (A) The person’s ability to articulate claims, investigate facts, respond to dispositive motions, and otherwise participate, including— (i) any barriers to access created by mental health, intellectual, cognitive, or physical disabilities, incarceration or other confinement, language or other communication issues, and education or literacy level; (ii) the person’s education and literacy level; and (iii) any assistance the person has received to date, including the sufficiency of that assistance and whether it will be available in the future. (B) The degree of factual investigation required. (C) The complexity of the legal and factual questions. (D) The degree to which the claims turn on credibility determinations, including the need for cross-examination. (E) Whether the person has asserted any colorable claims. (F) The need for expert testimony. (G) The court’s willingness to aid the person in presenting claims by, for example, explaining how to introduce and move for the admission of evidence. (H) Whether any opposing party is represented by counsel. (I) Any other factors the court considers relevant, other than that pro se pleadings are construed more liberally by the court. (3) The court may not deny a request on the grounds that it has not yet ruled on dispositive motions, such as a motion to dismiss or for summary judgment. (4) The court shall dismiss a case under this subsection if— (A) the court determines that the allegation that the person is unable to afford counsel is untrue; or (B) in a case in which no request for appointment of counsel is made after the person is informed of the right to make such request, the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. (5) The court may require the person to attempt to obtain assistance from private counsel prior to evaluating the factors above. However, upon receiving a request for counsel, the court shall communicate to the person the number of attempts required, if any, and shall not consider the person’s inability to secure private counsel as an indication of a lack of colorable claims. (6) The court should consider whether to provisionally appoint counsel for limited purposes, such as responding to a particular motion, amending the complaint, representing a person at mediation, conducting discovery, or investigating the claims for purposes of providing a recommendation to the court as to whether a full appointment is warranted. (7) Notwithstanding paragraphs (2) through (4), whenever the court determines that the interests of justice so require, representation may be provided for any financially eligible person who is seeking relief under— (A) title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq. ); or (B) title VIII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000f et seq. ). (8) To the extent the consideration of the factors described in paragraph (2)(A) involves personal details not otherwise at issue in the case, the court should take steps to maintain the privacy of the details including, for instance, sealed filings or in camera review. The other party or parties to the action should not have access to these personal details. To the extent the person has already shared personal details by filing a publicly available document, the court should advise him or her of the option to replace the filing with a redacted or sealed copy in accordance with any applicable local or Federal rules. (9) Any challenge to the appointment of counsel made by an opposing party shall be limited to the potential prejudice to that party, such as a delay in proceedings, and shall not concern the personal factors considered by the court under paragraph (2)(A). . 4. Data collection Not later than 2 years after the date of the enactment of this Act, and every 2 years thereafter, the Director of the Administrative Office of the United States Courts. shall submit to Congress and make publicly available a report on the subsection (e) of section 1915 of title 28, United States Code, as amended by section 3 of this Act, which shall include the following: (1) With respect to persons for whom counsel was provided pursuant to a request under section 1915(e)(1) of title 28, United States Code, the types of cases. With respect to a person for whom counsel was provided pursuant to a request under section 1915(e)(1) of title 28, United States Code, the type of case, length of time spent by counsel, and the outcome of the matter for which such counsel was provided and outcomes of the matters for which such counsel was provided. (2) Benefits related to increased access to counsel and any remaining barriers to access to counsel pursuant to requests under such section 1915(e). (3) Any changes in the frequency of requests made by courts under such section 1915(e). (4) Other changes to the functioning of the Federal courts, including increases in efficiency of adjudication of cases and changes in the number of cases resolved in favor of the party for whom counsel was provided pursuant to a request under such section 1915(e). (5) Suggested changes to such section 1915 to ensure greater access to justice for low-income litigants.