Mandating Justice: Naranjo v. Thompson as a Solution for Unequal Access to Representation

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Sarah B. Schnorrenberg is a 2019 graduate of Columbia Law School.


Many Americans today are unable to access legal representation. Like their higher income counterparts, low-income Americans require legal services in many areas.[1] Yet, low income Americans only seek legal help for 20% of legal problems they face,[2] and they likely will be unable to find a lawyer to represent them in the vast majority of cases for which they do seek help.[3] Private attorneys tend to take on far fewer pro bono cases than recommended by the American Bar Association and state bar associations.[4] Legal aid services, like the Legal Services Corporation (“LSC”), face funding restrictions that bar them from providing aid to over half of the Americans that approach them with requests.[5] LSC’s budget has fluctuated since it was incorporated in the 1980s.[6] The restraints on the few methods by which low income Americans access representation mean there is a large justice gap in which the poor simply do not have access to legal aid.[7] This problem is exacerbated for prisoners, who are barred from receiving help from many legal aid services[8] and are often unable to retain private attorneys.[9]

One prisoner in Texas recently found himself in this specific justice gap. While incarcerated at Reeves County Detention Center in Pecos, Texas, Mario Naranjo sued prison management for a host of constitutional violations, for overcrowding the prison, and for failing to keep sanitary conditions.[10] The case turned on prison schematics, which were sealed so Naranjo was unable to access them.[11] The district court judge ruled that, because Naranjo could not access the documents to review them and was unable to properly cross-examine witnesses, he merited assistance from an attorney.[12] However, the court could not find any attorney or legal aid service in the area who was willing and able to take the case, and thus ultimately denied Naranjo’s motion for the appointment of counsel.[13] On appeal, the Fifth Circuit vacated this denial. According to the Fifth Circuit, if a court has found exceptional circumstances meriting appointment of counsel and cannot find a willing lawyer to take the case pro bono, the court has the inherent power to compel counsel to accept an uncompensated appointment.[14]

This Note discusses the potential impact of the Fifth Circuit’s decision in Naranjo and evaluates whether it could be an effective means of reducing the justice gap that low-income Americans face. Part I provides a background to the federal case law on mandated appointments and courts’ inherent authority and details the Fifth Circuit’s decision in Naranjo. Part II weighs potential strengths and weaknesses of using Naranjo to provide lawyers for indigent parties. It also examines recent cases in the Fifth Circuit that cite Naranjo to determine if a trajectory to the case law surrounding Naranjo has emerged. Finally, in Part III, this Note argues that Naranjo could play an important role in addressing gaps to traditional methods of providing counsel to indigent parties. It also argues that Naranjo could be more effective at ensuring justice if the Fifth Circuit slightly revises its approach to granting counsel under 28 U.S.C. § 1915(e).

I. A Background on Compelling Representation

Since 1989, courts have been foreclosed by the Supreme Court from statutorily compelling counsel to represent an indigent plaintiff under 28 U.S.C. § 1915(e), which states that the court “may request” that an attorney represent a party who is unable to afford counsel.[15] Thus, the only viable option for courts to compel representation has been the use of inherent authority. The question of whether courts may use their inherent authority to mandate an attorney represent an indigent party has seldom been raised in federal court, and the courts that have addressed the question have decided differently.[16] In deciding Naranjo, the Fifth Circuit became the first circuit court to find that courts can compel representation. The decision stems, in part, from the peculiar circumstances of Mario Naranjo’s case. The Fifth Circuit limited the holding of Naranjo to extreme cases where both exceptional circumstances and no other option for obtaining counsel exist.[17] This section provides an overview of 28 U.S.C. § 1915(e), the split on inherent authority’s applicability, and the Fifth Circuit’s holding in Naranjo.

A. 28 U.S.C. § 1915(e) and Mallard

In 1892, Congress passed a statute entitled, “An act providing when plaintiff may sue as a poor person and when counsel shall be assigned by the court.”[18] This act was meant to provide poor Americans access to the judiciary, as evidenced in the House Report, which asked, “Will the Government allow its courts to be practically closed to its own citizens, who are conceded to have valid and just rights, because they happen to be without the money to advance pay to the tribunals of justice?”[19] Today, 28 U.S.C. § 1915 provides the federal rules for proceeding in forma pauperis. In particular, § 1915(e) provides that “[t]he court may request an attorney to represent any person unable to afford counsel.”[20]

Until 1989, it was unclear whether § 1915(e) allowed a court to mandate an attorney to represent an indigent party,[21] or it merely permitted courts to ask attorneys to represent the client.[22] In Mallard v. United States District Court for Southern District of Iowa, the Supreme Court found § 1915(e) only allowed the latter.[23] Mallard was a bankruptcy lawyer, newly admitted to the bar in the Southern District of Iowa in January 1987. In June 1987, he was asked to represent two current inmates and one former inmate in a § 1983 suit.[24] Mallard filed a motion to withdraw after reviewing the case, claiming that he had no familiarity with the legal issues and did not have expertise in deposing and cross-examining witnesses—which would be necessary to the case—but the magistrate judge denied his motion.[25] At the district court level, Mallard argued that the court’s decision to force him to work as a litigator would cause Mallard to violate his ethical obligation to only accept cases he could handle competently.[26] The district court judge upheld the magistrate’s decision to deny the motion to withdraw, and the Eighth Circuit denied the petition without an opinion.[27]

The Supreme Court, reviewing this denial, found that courts may not compel attorneys to accept a case, as the language of § 1915(e) clearly says “request.”[28] The Court explained that “request” is generally synonymous with words like “ask” and not words like “require” or “demand.”[29] The Court also pointed to § 1915(d), which specifically states that “court officers shall serve” and “witnesses shall attend,” and stated that Congress could have used stronger language if they intended to compel representation, but chose not to do so.[30] Finally, the Court stated that the existing state statutes that authorized courts to appoint counsel at the time § 1915 was passed specifically used language like “appoint” and “assign,” so the use of “request” in § 1915(e) should be read as a conscious congressional choice.[31] Justice Brennan, writing for the Court, concluded that § 1915(e) “does not authorize coercive appointments of counsel.”[32] Thus, the Supreme Court foreclosed § 1915(e) as an avenue for courts to solve problems faced in cases like Naranjo. Courts would have to turn to other forms of authority in order to address the problem.

B. Inherent Authority to Compel Representation

The Supreme Court explicitly left open the question of whether inherent authority could be used to compel representation.[33] While inherent authority has not been clearly defined, the Third Circuit has provided some guidance, discussed below, regarding the limits of inherent authority in Eash v. Riggins Trucking Inc.[34] At the time the Fifth Circuit decided Naranjo, only two courts had tackled the question of whether inherent authority allowed courts to compel counsel, and, if so, whether it was appropriate for a court to exercise its inherent authority for such a purpose. However, the courts did not agree. While in Colbert v. Rickmon, the Western District of Arkansas found that courts do not have the inherent authority to compel representation,[35] in Bothwell v. Republic Tobacco Co., the District of Nebraska found that courts did in fact have the inherent authority to compel representation.[36]

1. The Scope of a Court’s Inherent Authority

Inherent powers are the powers a “court can call upon to aid in the exercise of its jurisdiction, the administration of justice, and the preservation of its independence and integrity.”[37] Inherent powers are most often used in criminal cases,[38] but these powers may also be used in certain civil contexts, like regulating the bar[39] or subpoenaing witnesses for an indigent civil litigant.[40] Academics have described inherent authority as “nebulous” and “its bounds as ‘shadowy.’”[41] As there is little case law about inherent powers, there are no clear limits. The one limit that courts have generally agreed upon is that inherent powers are only to be used in rare circumstances when courts have no other recourse.[42]

In Eash v. Riggins Trucking Inc.,[43] the Third Circuit described inherent authority in detail and categorized inherent powers into three main categories. The first category is inherent power given to courts by Article III. These constitutional powers allow the court to act against legislative directive and “are grounded in the separation of powers concept, because to deny this power ‘and yet conceive of courts is a self-contradiction.’”[44] An example of this power is the court’s ability to “void legislation that would virtually prohibit functioning of courts.”[45] The boundaries for this type of power are “not possible to locate with exactitude,” so the Eash court recommended exercising the power with caution.[46]

The second—and most commonly used—category of power Eash identifies encompasses the powers that are “necessary to the exercise of all others.”[47] This language comes from one of the earliest Supreme Court cases on inherent powers, United States v. Hudson, which held that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution.”[48] This is the type of inherent power a court uses when it sanctions an individual for contempt.[49] According to the Eash court, this power may be regulated to some extent but it cannot be “abrogated nor rendered practically inoperative.”[50]

The final type of a court’s inherent power stems from the court’s equitable powers. These powers are not necessary for performing the duties of the court but are used by courts to achieve a “just result.”[51] According to the Eash court, this power is only available to courts when Congress has not provided contrary legislation.[52] If courts were to compel attorneys to accept judicial appointments, they would need to use this type of inherent power because appointed counsel is not “necessary” in civil cases.[53] Proponents of the power to mandate representation would have to argue that appointing counsel is necessary to provide a just and fair result for indigent civil plaintiffs.[54]

2. Colbert v. Rickmon: Against the Use of Inherent Authority to Compel Counsel

A year after Mallard, the Western District of Arkansas found that federal courts do not have the inherent authority to compel attorney representation of indigent civil litigants in the case Colbert v. Rickmon.[55] After reviewing the background of compelled representation and the use of inherent powers to compel representation of indigent civil litigants, the court decided that federal courts do not possess this power because if they did, § 1915(e) would be superfluous. According to the court, if Congress believed courts had the power to inherently appoint counsel, Congress would have had no reason to pass a statute allowing courts to “request” counsel.[56] The court also stated that any inherent powers federal courts possess must come from Article III of the Constitution,[57] but declined to find the power to appoint counsel to incarcerated civil litigants within Article III’s reach.[58] Furthermore, even if the court had the inherent authority, the court suggested that the Fifth Amendment’s Due Process, Takings, and Equal Protection Clauses would limit this power.[59] Ultimately, the court found it could do no more than request the services of attorneys.[60]

The Colbert court was very opposed to appointing counsel in this particular case, and censured appointing counsel in general. In part, the court did not want to impose on attorneys by compelling them to represent indigent plaintiffs.[61] However, the court also emphasized the implementation problems that arise from compelling representation. It suggested that courts would have to spend time and resources that they do not have on either “strong arming” attorneys into serving, or calling attorneys until one accepted the position.[62] The court refused to take this route, stating that it was “not equipped with the machinery or the manpower to act as a telephonic lawyer-referral service.”[63] Unsurprisingly, the court opted not to request counsel in Colbert.[64]

3. Bothwell v. Republic Tobacco Co.: Recognizing Court’s Inherent Authority

Bothwell v. Republic Tobacco Co.[65] also addressed the court’s inherent authority to appoint counsel in civil cases. In Bothwell, the court was “convinced that a federal district court does possess the inherent power to compel an unwilling attorney to accept a civil appointment.”[66] Unlike in Colbert, Bothwell addressed all three categories of inherent power and found that this power falls under the penumbra of the third category, a court’s equitable powers.[67] The court explained that the third category of inherent power exists for two purposes: ensuring a “fair and just” process, and maintaining the integrity of the judiciary.[68] The inherent authority to compel representation of indigent civil litigants would further both purposes. First, the court stated that the adversarial system may not be effective when one side cannot access representation, and the inability of a party to get counsel because of their indigency “clearly offends the principle of ‘equality before the law’ underlying our system.”[69] Second, the court suggested that the court’s integrity is eroded when it is not fully accessible by all groups.[70] Because both purposes of the third category of inherent power were at play, the court concluded that federal courts do have the inherent authority to mandate an attorney to represent an indigent civil litigant.

Like Colbert, Bothwell considered the implementation of this inherent power. However, while the court in Colbert did not want to impose on attorneys at all, the court took a more pragmatic perspective, suggesting that courts should take into account attorneys’ ethical obligations and actually enforce bar associations’ “platitudes” about pro bono goals.[71] According to him, “if these aspirational ‘goals’ are to be achieved and to have any meaning in fact, there must be some mechanism for gaining compliance.”[72]

Courts could serve as the mechanism for achieving compliance with bar association goals. However, in Bothwell, the court refrained doing so. The court stated that courts must exercise inherent powers with restraint.[73] The court suggested counsel should be appointed in marketable cases in which a private attorney might consider taking a case but the plaintiff is unable to obtain a lawyer because he is indigent.[74] In this case, since the plaintiff was unable to obtain counsel not because he was an indigent but because his case was unmarketable to attorneys, the court concluded it was not reasonably necessary to the administration of justice to compel an attorney to represent him.[75]

4. Other Jurisdictions on the Question of Compelled Representation

No other courts have explicitly addressed whether inherent authority allows federal courts to compel attorneys to represent indigent civil litigants. However, various circuits have concluded that courts cannot compel attorneys and do not turn to inherent authority. For instance, the Third Circuit has stated that “courts have no authority to compel counsel to represent an indigent civil litigant[,]” but did not discuss inherent authority.[76] Courts in the Second[77] and Sixth[78] Circuits have similarly failed to address their potential inherent authority to appoint counsel when stating that they could not compel counsel. In concluding that they have no authority to compel attorneys, these courts have implicitly suggested they have no inherent authority to compel representation of indigent civil litigants.

Nevertheless, courts may be more open to this use of inherent powers if a circuit court were to explicitly allow such action. A decision from the Middle District of North Carolina found that “[i]n the absence of controlling authority recognizing any . . . inherent authority,” the court could only request attorney services.[79] This may mean that, were an appellate court decision to permit using inherent authority to appoint counsel to indigent litigants, district courts would be willing to use this power. However, with little precedent concerning inherent authority, courts may be reticent to do so.[80]

C. Naranjo v. Thompson[81]

1. Exceptional Circumstances Calling for Appointment of Counsel in the Fifth Circuit

Like many circuits,[82] the Fifth Circuit requires courts to find a litigant’s case presents exceptional circumstances before the court may decide whether to appoint counsel to an indigent civil litigant’s case under § 1915(e).[83] In Branch v. Cole, the Fifth Circuit held that if exceptional circumstances exist, the court must appoint counsel.[84] The court in Branch declined to enumerate factors to be considered in determining whether exceptional circumstances exist because “[n]o comprehensive definition of exceptional circumstances is practical.”[85] Instead, the court stated that the existence of exceptional circumstances would depend on the type and complexity of the case and the abilities of the individual bringing the case.[86]

Less than two months later, the Fifth Circuit held in Ulmer v. Chancellor that if exceptional circumstances are found, a district court abuses its discretion by failing to appoint counsel.[87] In Ulmer, the court elaborated on the factors to be considered when ruling on requests for counsel. [88] These factors included the type and complexity of the case, whether the indigent is capable of adequately presenting his case, whether the indigent is in a position to investigate his case adequately, and whether the evidence will mostly consist of conflicting testimony that will require skill in presenting evidence and cross-examination.[89] By the time Naranjo was decided, the Fifth Circuit further required district courts to consider the “likelihood that appointment will benefit the petitioner, the court, and the defendants by ‘shortening the trial and assisting in just determination.’”[90] Courts can also consider the extent of the plaintiff’s independent efforts to obtain private counsel.[91] Using these factors, the district court in Naranjo found that exceptional circumstances existed, warranting the appointment of counsel to Naranjo’s case.[92]

2. Mario Naranjo’s Case

Naranjo, while incarcerated at Reeves County Detention Center (“Reeves III”) in Pecos, Texas, brought a variety of claims against the company managing the prison and several of its directors and employees.[93] He alleged that prison officials had violated his Fifth Amendment due process rights by responding with indifference to his grievances; that they violated his Eighth Amendment right to be free from cruel and unusual punishment by maintaining the prison at 166% of its capacity; that they did not maintain proper fire safety procedures; that they failed to maintain sufficient sanitary conditions; that they provided insufficient medical care to inmates; that they forced Naranjo to perform labor on their behalf; and that they denied him equal protection by transferring him to Reeves III because he is Hispanic.[94] The case was referred to a magistrate judge, and Naranjo moved for appointment of counsel under § 1915(e)(1). The magistrate judge denied this motion.[95] Naranjo proceeded to file requests for documents relevant to his claims from the defendants, who objected to all three discovery requests on prison security grounds. In response, the magistrate judge ordered that the documents all be filed under seal, so Naranjo could not see them himself.[96]

The magistrate judge recommended that the district court grant summary judgment on all of Naranjo’s claims, but the district court judge denied summary judgment on three of Naranjo’s claims.[97] The magistrate judge proceeded to schedule an evidentiary hearing on the remaining claims. Naranjo moved again for appointment of counsel, writing that he could not “participate because to do so properly would require more legal skills than the Plaintiff has or can develope [sic].”[98] At the evidentiary hearing, Naranjo repeatedly expressed that he was unqualified, as he was not a trained attorney. When the magistrate judge asked if Naranjo had any evidence he wanted to produce, Naranjo responded,

Your Honor, with all due respect, I’m going to be standing by my declaration, the sworn pleadings that I’ve also put in throughout the hearing—proceedings, and that’s as far as I’m going to—I have no other evidence. I have been denied access to any reports, I do not—I’m not a trained attorney, I do not know how to conduct an evidentiary hearing, so I have to stand by my sworn declaration and my verified pleadings.[99]

Similarly, when asked whether he wanted to cross examine the warden, he said, “Your Honor, I have no questions for Warden Thompson. I’m certainly not an attorney; I wouldn’t know where to begin[,]” and when asked if he had objections to a set of exhibits, he replied, “Your Honor, I—I don’t have a clue as to what they mean, to be honest with you.”[100] Finally, when the magistrate judge asked Naranjo if he had any outstanding discovery issues, Naranjo said he did not know, as he was not a professional lawyer, and “these discovery issues are just very confusing to [him].”[101]

The district court, when reviewing Naranjo’s second motion to appoint counsel, found that exceptional circumstances were present. The district court found that Naranjo’s inability to view the documents and participate in discovery impeded his ability to investigate the case and that his claims would likely involve conflicting testimony that would require cross-examination skills that Naranjo did not possess.[102] The district court also “agree[d] that the appointment of counsel w[ould] expedite the lawsuit, promote judicial economy, and [wa]s ultimately justified under the circumstances.”[103]

However, the district court ultimately denied the motion to appoint counsel. The district court stated that it had no funding to compensate an attorney, and it could find “no attorneys in the area willing or able to take the case pro bono.”[104] The Western District of Texas provided no special budget for appointing counsel under 42 U.S.C. § 1983 and the court’s discretionary budget was limited, so the district court could not fund counsel.[105] In addition, the court had reached out to all seven of the licensed attorneys practicing in Pecos and all three of the attorneys admitted in the Western District of Texas who practiced in Reeves County, as well as legal aid organizations including the Texas Civil Rights Project. None of the lawyers or organizations were able to take the case pro bono.[106] Since the court understood Mallard as preventing federal courts from compelling attorneys to take cases pro bono, the district court held that it had no way of appointing counsel for Naranjo.[107] In its holding, the district court urged Naranjo to appeal so that “the Fifth Circuit [could] provide guidance on the appointment of counsel” in this situation.[108]

3. The Fifth Circuit’s Recognition of Inherent Authority

On appeal, the Fifth Circuit found that the district court did not clearly err in finding that the sealed discovery and likelihood of conflicting testimony provided exceptional circumstances weighing in favor of appointing counsel.[109] Since the district court properly found exceptional circumstances, the Fifth Circuit found that the district court had erred in declining to appoint counsel.[110] The Fifth Circuit stated that when the conventional methods of finding counsel fail, courts may use their “inherent power to compel counsel to accept an uncompensated appointment.”[111]

The Fifth Circuit stated that while Mallard refused to answer whether federal courts have the inherent authority to mandate uncompensated representation, “[w]e hold that they do, and that the district court abused its discretion by not considering that option.”[112] The court stated that the inherent authority to compel attorneys stems from necessity and the courts’ duty to maintain a functioning system of civil justice.[113] This power was indispensable because the appointment of counsel in this case was necessary to provide the plaintiff with a meaningful hearing.[114] Furthermore, by exercising this power, the court upheld its duty to maintain a functioning civil justice system because it enforced the ethical obligations attorneys gain when they receive their licenses.[115]

However, this was not a broad ruling. The opinion “emphasize[s] that this is a power of last resort.”[116] The court first pointed to the case law requiring inherent powers to be used with “great restraint and caution.”[117] The Fifth Circuit also predicted district courts would very rarely appoint counsel via inherent powers, as exceptional circumstances “are, by their very definition, exceptional,” and courts should exhaust all other remedies before using such authority.[118] Only in the “rarest of cases” should a district court need to use its inherent powers.[119] Furthermore, the Fifth Circuit allowed district courts to consider additional factors when deciding whether to make a mandatory appointment, beyond those considered when determining whether exceptional circumstances exist.[120] These factors may include the attorney’s assessment of whether the plaintiff’s claims are meritless and whether an attorney has “good cause” to decline an appointment.[121]

II. Naranjo as a Solution to the Justice Gap

As Naranjo has limited applicability, few district court decisions cited the case in the two and a half years following the Fifth Circuit’s decision. Naranjo could help to close the justice gap and provide a new tool for courts to appoint counsel for indigent parties. This section discusses the potential benefits of applying Naranjo and the reasons why courts may not exercise Naranjo to its greatest potential. This section also considers recent district court decisions that discuss Naranjo and the varying manner in which Naranjo is applied in those cases.

A. Potential Strengths to Broad Adoption of Naranjo

The most obvious benefit that Naranjo confers is that it could allow more representation for pro se plaintiffs with potentially meritorious claims and therefore allow for more meaningful court proceedings. The Supreme Court stated in Penson v. Ohio that the adversarial process is key to procedural fairness, as truth is “best discovered by powerful statements on both sides of the question.”[122] The Fifth Circuit emphasized this goal in Naranjo. When an indigent plaintiff lacks access to representation, the court stated a district court “cannot carry out its duties without ordering an attorney to take the case” because “[e]ven the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation.”[123] The option to use inherent powers allows courts to appoint counsel and thereby better serve the interests of justice.

Exercising inherent authority to appoint counsel may provide an option when other methods of providing counsel fail. As legal aid organizations have received decreased funding over the years[124] and lawyers have largely failed to fill that gap via volunteering or donating money,[125] compelling private attorneys to take cases may be one of the few solutions that can match needy parties with legal representation regardless of the limited supply of willing lawyers. Furthermore, inherent authority is a very ambiguous power[126] and therefore may be used to fill interstitial gaps that other legal aid programs may not be able to fill. Legal aid programs with low funding cannot take every potential client, and often must remain selective when taking clients.[127] These internal policies on selecting clients can leave certain pro se parties without any viable option for representation, regardless of their need.

Naranjo provides a perfect example of such a situation—the district court contacted legal aid organizations, like the Texas Civil Rights Project, but none could—or would—accept Naranjo as a client.[128] Exercising the inherent authority of the court to appoint counsel became the only way to provide counsel to Naranjo, a deserving pro se plaintiff. Unlike other external programs for providing counsel to indigent parties, a court’s option to use inherent authority does not depend on the generosity of private lawyers, access to funding, or the political popularity of the case.

Similarly, the use of inherent authority to compel representation may alleviate some supply and demand problems that alternative solutions may face. First, there is not an even distribution of lawyers across the country. While plaintiffs in large cities like New York may find more lawyers to contact, those in rural areas are at a disadvantage. In Naranjo’s case, the court only contacted ten lawyers because there were a total of ten lawyers practicing in either the town of Pecos or in Reeves County.[129] Compounding this, studies have found that somewhere between 15–18% of Texan lawyers participate in voluntary pro bono, potentially leaving less-populated parts of Texas, like Pecos and Reeves, without any lawyers willing to work pro bono.[130] But even if 100% of lawyers met the fifty-hour aspirational pro bono goal set by the Texas Bar,[131] the ten lawyers available in a smaller town would be likely to rapidly hit that limit and may refuse to serve additional pro bono clients.

In addition, private lawyers are often inaccessible for indigent plaintiffs. Most low-income Americans do not think to approach lawyers with many of their legal problems; LSC found that low-income Americans only seek professional help for twenty percent of their civil legal problems.[132] One of the top-cited reasons for not seeking help is not knowing where to look for it.[133] It is no surprise that low-income Americans do not know where to seek help, as most do not interact with lawyers on a regular basis.[134] Most private lawyers work for wealthier individuals and businesses, and fewer than one percent of lawyers represent poor people full-time.[135] Therefore, many indigent plaintiffs may find it hard to find a lawyer who will take their case without help from a court.

If one did find a lawyer willing to work with low-income plaintiffs, this lawyer would likely be more interested in class action suits than individual lawsuits. Individual lawsuits are expensive to bring, but usually recover small amounts relative to their costs.[136] Lawyers typically do not take cases on contingency basis that are likely to recover less than the costs required to bring the case, leaving the plaintiffs in these cases in limbo.[137] Class actions, then, become the major source of legal representation, outside of direct legal services, for low-income Americans.[138] Class action litigation can provide legal aid in situations low-income plaintiffs commonly face, such as predatory lending, excessive student loans, and abusive workplace practices.[139] However, the use of class action litigation to vindicate the rights of low-income Americans has declined in recent years as more consumer financial and employment contracts include arbitration clauses and class action bans.[140] As opportunities for class action suits decrease, so do opportunities for many low-income Americans to obtain representation for some of their more pressing legal issues.

The struggle to access the limited supply of lawyers is only exacerbated for incarcerated plaintiffs. The free market system for indigent plaintiffs, for which Judge Richard Posner advocated, where private attorneys will take meritorious cases on a contingency basis,[141] falls apart when faced with prisoners’ limited abilities to obtain representation. Inmates typically receive low damages due to legislation like the Prison Litigation Reform Act.[142] Even when their claims are successful, they can only recover a limited amount of damages for attorneys’ fees.[143] Ethical limits on contingency fees discourage attorneys from litigating inmates’ cases that will only produce measly rewards.[144]

Even if lawyers were willing to take on cases completely pro bono, the odds that an inmate could contact those lawyers and successfully convince them to take his or her case are low. Inmates often face limits on sending mail, accessing telephones, and the number of lawyers with whom they can keep confidential contact.[145] Realistically, an inmate can only ask a small number of lawyers for assistance. Because such requests cannot be made in person and inmates frequently lack the legal knowledge and literacy skills to fully convey their case, it can often be hard for inmates to convince a lawyer to take their case.[146] Without additional help, many incarcerated pro se plaintiffs with viable cases may be unable to obtain counsel. However, a court does not face the same problems in contacting and obtaining counsel for an incarcerated pro se party with a meritorious case.

B. Potential Obstacles to Naranjo’s Usefulness

1. Precedential and Constitutional Problems

The most immediate obstacle to using inherent authority to appoint counsel is that there is no clear precedent for doing so outside of Naranjo. Since the Supreme Court declined to address the issue of inherent authority in Mallard in 1989,[147] the Court has not elaborated at all on the topic. Only two lower-court decisions have analyzed case law on a court’s inherent authority to determine whether the court could compel representation of an indigent plaintiff.[148] In Colbert v. Rickmon, the district court judge explicitly stated that courts do not have the power to compel counsel—the very power that the Fifth Circuit, in Naranjo, instructed the district court to use.[149] In Bothwell v. Republic Tobacco Co., while the magistrate judge acknowledged courts could use inherent powers to appoint counsel, he declined to do so as it was not reasonably necessary in that case.[150] Thus, apart from Naranjo itself, there is neither clear law guiding courts to compel representation for indigent parties nor guidance for determining which cases merit doing so.

A recent decision from the District of Idaho illustrates how courts may be skeptical of using inherent authority even in light of Naranjo. The court “considered Naranjo and found it unpersuasive,” as the court disagreed with Naranjo’s reasoning, and “concluded that federal courts do not have the inherent authority to compel an attorney to provide pro bono representation in a civil case.”[151] Had more cases beyond Naranjo exercised inherent powers, maybe the District of Idaho court would have been more amenable to the idea. As it stands, however, courts in other circuits are unlikely to produce decisions similar to Naranjo given the dearth of precedent.

In addition, many lawyers will likely claim that mandated pro bono is unconstitutional, similar to the mandated pro bono at issue in Mallard. In the past, lawyers have challenged mandated pro bono on various constitutional grounds. Such mandates are frequently challenged under the Fifth Amendment as a taking of attorneys’ property without compensation.[152] Lawyers have also challenged mandated activity as a violation of the Fifth and Fourteenth Amendments’ requirement of due process[153] and the Thirteenth Amendment’s prohibition of involuntary servitude.[154] If courts were to begin regularly compelling counsel to represent indigent plaintiffs because they could not afford to pay counsel, the courts could face even more expensive lawsuits from compelled attorneys. Both potential constitutional challenges and the lack of precedent could have chilling effects that prevent judges from using their inherent authority as was done in Naranjo.

2. Explicit Narrow Applicability

Even without these considerations, a court will likely be very hesitant to exercise its inherent authority and compel representation. In Naranjo, the Fifth Circuit explicitly stated that inherent authority “must be used with great restraint and caution.”[155] This admonition echoes modern Supreme Court opinions on inherent powers. The Court has advised restraint in using such powers to appoint attorneys to prosecute contempt actions, noting courts should use “only the least possible power adequate to the end proposed.”[156] In 1980, Justice Powell explained the importance of courts using these powers sparingly, stating “[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.”[157] Courts are likely to be especially reluctant to use inherent authority to appoint counsel in civil cases. The Supreme Court set the precedent for this reluctance in Lassiter v. Department of Social Services,[158] finding that counsel would not have made a determinative difference in a hearing to terminate parental rights.[159] Since that case, lower courts have been reluctant to require lawyers in civil cases.[160] Judges exercise a lot of discretion in determining whether to appoint counsel, and some judges may be more likely than others to make such an appointment.[161] Thus, relying on judges to use inherent authority to appoint counsel is likely to result in only a limited number of appointments of counsel and a very haphazard judge-dependent application of Naranjo.

It is likely any future decisions that apply Naranjo will read it narrowly. The opinion itself suggests a narrow reading is suitable. The court first cautioned that any exercise of inherent powers to appoint counsel must “somehow be indispensable to reaching a disposition of the case”[162] and are only to be used as “a power of last resort.”[163] The court explicitly stated that it “expect[s] that occasions for mandatory appointments will be rare indeed.”[164] According to the Fifth Circuit, there should be few of these appointments because they can only happen when exceptional circumstances are present, and exceptional circumstances “are, by their very definition, exceptional.”[165] In addition, even where there are exceptional circumstances, inherent powers should not be invoked unless the district court has explored and exhausted all other options for obtaining counsel.[166] More recent Fifth Circuit decisions have cited Naranjo for the proposition that inherent powers can only be used in very limited circumstances,[167] illustrating the Fifth Circuit’s intent that Naranjo be read narrowly. Thus, courts will only use inherent powers to appoint counsel in cases presenting exceptional circumstances.

3. Difficulty of Proving Exceptional Circumstances in the Fifth Circuit

It can be very hard for plaintiffs to meet this “exceptional circumstances” standard.[168] In order to find exceptional circumstances, a court must, among other factors, find that the pro se party is unable to fully understand the case, cannot properly present the case, or cannot properly investigate the case; or that the case requires cross-examination and the pro se party is unable to properly cross-examine a witness.[169] However, courts in the Fifth Circuit have often found that cases did not meet the standard for exceptional circumstances because the pro se parties have shown some modicum of ability to file motions and therefore must have the ability to adequately investigate and present their case.

For instance, in Margin v. Social Security Administration,[170] the court stated that, while “every litigant benefits by having an attorney[,]” the plaintiff bears the burden of demonstrating that they will have a particular difficulty.[171] The court then proceeded to analyze Margin’s capabilities to represent himself from the limited knowledge it had. The court found:

Margin is 47-years old and has a high school education and one year of college. He is very articulate and had no difficulty presenting the circumstances of his appeal to the undersigned in the context of the telephone hearing. He was capable of filing his complaint and the in forma pauperis application. Moreover, the investigation appears to be complete, given that the appeal must be decided on the administrative record. As noted above, no trial is necessary here, as no presentation of evidence will be required. Plaintiff has thus failed to make the requisite showing that he is entitled to appointed counsel in this suit.[172]

Thus, because Margin managed to file a complaint, the court found he was completely able to present his case and did not require assistance from an actual attorney.[173]

The court’s analysis in Margin is not unusual when courts in the Fifth Circuit determine the presence of exceptional circumstances. In fact, many decisions dismiss the presence of exceptional circumstances with a sentence and far less reasoning than the court provided in Margin. For instance, in Gill v. State of Texas,[174] the court found Gill’s civil rights action was “not complex,” that he was “educated and able to adequately present his case,” and that “he was not incarcerated or unable to adequately investigate his claims.”[175] The court mentioned just paragraphs before that Gill thought criminal statutes 18 U.S.C. §§ 241 and 242 provided a basis for civil liability. [176] However, despite not knowing the crucial distinction between criminal and civil law, the court still found Gill competent enough that a lawyer was not required.[177]

Other decisions have not even paid attention to the inability of pro se parties to adequately investigate or present cases while incarcerated. When dismissing a motion for appointment of counsel in a case involving alleged Eighth Amendment violations in a prison, the court provided no more reasoning than “the record reflects that he is capable of adequately presenting his claims to the court.”[178] No more information was given, so the public is left to guess what skill the plaintiff presented that led the court to find he could adequately present his claims. Presumably the court found him able to present his claim because he had filed a motion, as that is often sufficient for courts in the Fifth Circuit.[179]

Another case explicitly stated that the plaintiff could adequately develop the facts and present his case solely because he managed to file comprehendible motions and support papers with the court.[180] This tendency to simplify the ability to present and investigate a case to filing motions puts pro se parties in the unenviable position of having to choose between trying to represent themselves adequately in order to win their case and refusing to do so in fear that the court will deem them a sophisticated party.[181] Of course, pro se parties will have to consider that, unless they try to represent their case well, a court will likely dismiss the case as frivolous. Thus, proving that there are exceptional circumstances in the Fifth Circuit often becomes a Catch-22.

As it can be hard to prove exceptional circumstances, and only those with exceptional circumstances are eligible for mandated counsel under Naranjo, Naranjo will remain extremely limited in practice. This limitation may be further exacerbated if courts look to Naranjo for guidance regarding when exceptional circumstances exist. The facts in Naranjo are particularly outstanding, because Naranjo could not physically look at or gain access to documents around which the case revolved.[182] Furthermore, the court found that Naranjo “was essentially a spectator at the evidentiary hearing” because he had the foresight to repeatedly state that he had nothing to add because he was not a lawyer and could not participate.[183] Unlike Naranjo, many litigants put in his position may still try to participate out of a desire to try and win their case. If all cases are compared to Naranjo, many may no longer pass muster for exceptional circumstances, as the facts of Naranjo are hard to replicate.

However, Naranjo does not necessitate a higher standard for exceptional circumstances. While the court stated that basic competency can be enough to foreclose the possibility of exceptional circumstances, it noted that the record “also disclose[d] quite a few mishaps and wire-crossings resulting from Naranjo’s inexpert motions practice.”[184] In contrast to courts that found no exceptional circumstances simply because motions were filed, Naranjo suggests that a court may look more into the quality of the motions and whether they were cohesive. This interpretation may mean that plaintiffs could act in their best interest and file motions on their behalf without the risk of being found competent solely for filing a motion. However, it is unclear whether there would have to be some mishap, like a late motion. This would also depend on the depth of a court’s review of potential exceptional circumstances; if a court gives a one-sentence afterthought regarding appointing counsel, this may have no effect.

C. Judicial Interpretation of Naranjo

It is still uncertain how courts in the Fifth Circuit will apply Naranjo and whether Naranjo will increase the number of court-appointed lawyers. As of January 2018, there were only twenty reported cases that cite Naranjo, and few of these discuss at any length appointment of counsel under Naranjo.[185] None of these cases involve the actual appointment of lawyers. The cases that do discuss exceptional circumstances that call for appointment of counsel under Naranjo provide differing results.

Some cases did not find exceptional circumstances, perhaps because the court has set a high bar for exceptionality. For example, in a case arising in the Western District of Texas, Hawbecker v. Hall,[186] Judge Lamberth found that, unlike in Naranjo, there was no evidence the indigent defendant needed representation in order to respond to evidence.[187] Hawbecker had sued Hall for libel and defamation, and Hall moved for appointment of counsel, stating that she was out of state and unable to review evidence in the trial and, therefore, unable to fully participate without a lawyer.[188] Judge Lamberth compared the case to Naranjo, and stated that counsel was found necessary in Naranjo because of “the security sensitive nature” of the sealed documents that Naranjo could not access.[189] Meanwhile, even though Hall could not travel to Texas and participate in trial, Hall could still technically see and respond to the evidence.[190] Judge Lamberth’s interpretation would thus further limit what qualifies as an exceptional circumstance and require “exceptional circumstances” align more directly with the facts of Naranjo. While Hall could not afford to travel to Texas and see the evidence, and thus was practically prevented from seeing the evidence, the court still found she could adequately represent herself enough for a fair hearing.[191]

Other cases have not set as high of a bar for exceptional circumstances, but have still required certain facts, like an inability to represent oneself, before mandating representation. In a Southern District of Texas case, Dunn v. Davidson, Judge Atlas found exceptional circumstances present.[192] She noted that Dunn “ha[d] done an admirable job representing himself” but because the evidence consisted of conflicting testimony, he would need aid from a lawyer who could cross-examine witnesses.[193] This may suggest that courts will not read Naranjo to require especially exceptional facts, and that simply the inability to advocate for oneself as well as a lawyer could may still suffice. However, the need to cross-examine may be viewed as outside the ambit of basic competency and as a more significant indicator of exceptional circumstances. Furthermore, the court took particular notice of the fact that prison officials had confiscated Dunn’s legal materials, limiting his ability to educate and advocate for himself.[194] Thus, even if this case takes a potentially broader view of exceptional circumstances than Hawbecker did, it could still serve to limit Naranjo’s ruling to cases in which indigent parties are disadvantaged in a tangible way, like if legal materials are stolen or there is sealed evidence.

III. Evaluating Naranjo as a Solution

Regardless of whether district courts take the approach applied in Hawbecker or Dunn, Naranjo provides an important option for district courts in the presence of exceptional circumstances, and it allows courts to appoint lawyers in the interstitial cases where other options have failed. Naranjo can supplement other methods of providing counsel for indigent parties, and this section argues that the benefits of using Naranjo far outweigh the potential problems. Naranjo could also potentially benefit more indigent parties, if combined with a more forgiving standard than the Fifth Circuit’s current standard of exceptional circumstances.

A. Naranjo Could Help Bridge the Justice Gap

If adopted in conjunction with, rather than in the place of, other methods of providing legal aid to indigent parties, Naranjo can help ensure counsel is provided in more cases with indigent plaintiffs. Given the Fifth Circuit’s caution to use inherent powers sparingly and the limited applicability of exceptional circumstances, Naranjo will not lead to a sudden surge in court-appointed counsel. Thus, it is still important to encourage private attorneys to volunteer their services and to fund legal aid organizations, like Legal Service Corporation and the Volunteer Lawyers Project. However, while the actual effect may be relatively small, the solution Naranjo presents may help solve problems faced by other solutions to the justice gap—mainly the ability to fill other programs’ gaps in coverage and the inability of prisoners to access legal aid. Several possible ways courts can utilize Naranjo are discussed below.

1. Using Naranjo, Courts Could Supplement Other Programs in Providing Legal Representation

There is a high demand for low-income legal services in this country, and a large number of those seeking legal aid will not be able to receive it from the traditional routes for obtaining free or reduced legal services.[195] Neither private attorneys nor legal organizations can provide aid for all indigent parties. While the American Bar Association and many state bar associations encourage private lawyers to engage in pro bono work or donate money to pro bono services,[196] these are only aspirational goals. Attorneys donate time and money to pro bono services, but not nearly at the rate that these bar associations encourage.[197] In addition, ethical rules requiring lawyers to accept judicial appointments sans judicial compulsion[198] have not been adopted in all states.[199] Those states that have adopted the rule allow an exception for good cause,[200] and good cause often encompasses a situation in which “representing the client is likely to result in an unreasonable financial burden on the lawyer.”[201]

These rules presume a perfect world in which there are enough lawyers to take every case a court finds deserving of counsel. As demonstrated by the circumstances in Naranjo, this is not the case, and there is often a small pool of attorneys who can take a case. Lawyers cannot take an unlimited number of cases, so when the pool of attorneys is small, fewer judicial appointments can be accepted. Naranjo illustrates this problem; the court in Naranjo attempted to appoint counsel, but quickly found appointing a lawyer was impossible “[g]iven the remote location of Pecos, Texas and its dearth of legal representation.”[202] The court had reached out to all seven licensed attorneys practicing in Pecos, as well as the three lawyers admitted in the Western District practicing in the county, but was unable to find counsel without resorting to compelling representation.[203]

Legal aid organizations suffer from similar budgetary problems as well as other restrictions on the subject matter of cases they can take. According to their 2017 report, Legal Services Corporation (LSC) estimated that, in 2017, they would receive requests to help in 1.7 million legal problems, but would not be able to help or would only be able to provide limited help in an estimated 1.1 million of those cases.[204] LSC cited a lack of available resources as an explanation for 85–97% of the cases it turns away.[205] State legal aid organizations face the same problems.[206] A large number of low-income Americans are therefore left with no aid from attorneys.

Furthermore, these gaps in coverage from legal aid services are exacerbated by congressionally or internally imposed rules dictating how such services spend their limited resources. LSC-funded organizations comprise roughly one-quarter of all civil legal aid providers, but can only take clients earning up to 125% of the federal poverty line.[207] This bright line rule on financial eligibility eliminates the access of many people from the only legal aid they may have been able to afford. Organizations may also impose other rules limiting the subject matter of cases they take.[208] LSC prohibits organizations they fund from assisting in a large range of legal services including voter assistance and voter registration, habeas corpus actions, abortion cases, organizing labor or political activities, and proceedings about desegregation.[209] Congress has also banned LSC-funded organizations from aiding non-U.S. citizens, those evicted from public housing because they face criminal drug charges, prisoners, and class actions.[210] Other legal aid groups may assist citizens facing these problems, but if indigent parties cannot find a willing and able legal aid organization, then they rarely have another accessible option for counsel.

Courts could utilize Naranjo to help fill those gaps left by private attorneys and legal aid services. Of course, courts will not appoint counsel for all 1.1 million low-income Americans that were turned away by LSC. As the Fifth Circuit stated, the court’s inherent authority should only be used as a “last resort.”[211] However, in the exceptional cases in which a court determines a pro se party has a case that particularly deserves counsel, as was the case with Naranjo, the court would have a viable option for getting that party counsel, besides just hoping that a private attorney or legal aid organization has spare time. Since Naranjo charges courts with exhausting other options before using inherent powers,[212] this solution works best in tandem with other opportunities for providing representation for indigent parties.

2. Naranjo May be Especially Beneficial for Prisoners

Naranjo may be particularly adept at addressing the gap in legal representation for prisoners. Pro se prison litigants tend to make up a large proportion of the pro se cases filed in federal courts. In part, this is due to the frequency with which prisoners file suits. One study, for instance, found that filings by prison litigants comprised almost 17% of all new civil rights filings in federal courts over the course of a year.[213] In addition, there are often fewer legal resources available to prison plaintiffs. LSC, for example, forbids all organizations it funds from aiding prisoners in civil suits.[214] Other smaller, independent legal aid programs may aid prisoners,[215] but many do not.[216] Even if there are available programs offering aid to prisoners, prisoners may not be aware of these options.[217]

As a consequence, private attorneys are the main source of assistance for prisoners filing civil suits.[218] However, federal limits on the damages prisoners may receive discourage most private attorneys from taking prisoners’ civil suits on a contingency fee basis.[219] There are also a limited number of attorneys willing to take cases on a pro bono basis,[220] and even fewer attorneys who can take pro bono cases in the rural areas where prisons tend to be located.[221] On top of a limited supply of lawyers, prison rules often make it impossible for inmates to contact multiple lawyers in the hopes of finding one lawyer willing and able to take the case.[222] Thus, it remains unlikely that an incarcerated pro se litigant will be able to locate a lawyer willing to take their case on their own.

By providing courts with an option to appoint counsel in cases where no legal assistance could be otherwise found, Naranjo provides special aid to prisoners. Since prisoners are likely to run out of options for legal assistance before the general low-income population, it is more likely that a court will find both exceptional circumstances and that all other options have been exhausted in cases involving a prisoner. The Fifth Circuit in Naranjo stressed the principle of reliable access to attorneys for meritorious cases, and that “[c]ivil rights do not thin out at the city limits.”[223] A prisoner should not be denied assistance solely because no lawyer volunteered to help. Thus, Naranjo could potentially have a large impact on some prisoners’ requests for counsel, even if the impact is not widespread.

B. Naranjo’s Usefulness Outweighs Potential Problems

Naranjo, of course, is not a flawless solution. Lawyers could foreseeably challenge appointments under Naranjo either as illegitimate exercises of inherent authority or as unconstitutional. These challenges would not be frivolous on their face, but the possibility of such challenges should not deter courts from adopting Naranjo. As explained below, the court can defeat these challenges, if any arise. Furthermore, any application of Naranjo depends on the generosity of the particular judge. This, however, is also a benefit to Naranjo, as it is a flexible standard that allows case-by-case determinations of whether a plaintiff requires representation. Finally, regardless of the flaws of this solution, courts should prioritize the provision of counsel in meritorious cases over the fear of legal challenges.

1. Challenges to Inherent Authority

While a party may challenge the use of inherent powers, such a challenge is unlikely to prevail in light of the case law supporting the Fifth Circuit’s holding in Naranjo. A challenging party might cite Colbert v. Rickmon,[224] or a recent case from the District of Idaho, Veenstra v. Idaho State Board of Correction, [225] both of which found that federal courts do not possess such inherent authority to compel attorneys. However, neither of these cases is binding in the Fifth Circuit, or in any other circuit court—regardless of whether that circuit decides to adopt Naranjo. The Supreme Court explicitly left open the question of whether courts can use their inherent authority to compel attorneys to represent indigent parties,[226] and, until the Supreme Court answers this question, there is no binding authority that prevents the Fifth Circuit or any other circuit from enabling courts to use inherent authority to compel representation. In the meantime, there is plenty of case law suggesting that inherent powers extend beyond those granted by Article III[227] and encompass the power to mandate attorneys represent indigent clients.[228]

2. Constitutional Challenges

A court may also be able to dismiss constitutional challenges. For instance, while a lawyer may claim that forced pro bono violates the Thirteenth Amendment because it is involuntary servitude,[229] the Supreme Court has read the amendment narrowly as applying only to circumstances “akin to African slavery.”[230] The Court has stated that the Thirteenth Amendment will apply to situations that “might have been a revival of the institution of slavery under a different and less offensive name.”[231] In the past, the Supreme Court has declared that the Thirteenth Amendment did not protect individuals from the draft,[232] laws requiring every able-bodied man to work on county infrastructure when summoned,[233] or mandated service as a witness.[234] Given that precedent on this amendment has been settled for over a decade, it seems highly unlikely that a court would now invoke the Thirteenth Amendment to protect a lawyer from representing a single client.

Similarly, a court applying Naranjo could overcome challenges asserting a denial of due process.[235] When bringing a claim for denial of substantive due process, a court requires narrow tailoring of the government action when a fundamental right is involved.[236] However, when there is no fundamental right involved, the court uses a rational basis standard, and only looks at whether there is a “reasonable fit” between the governmental purpose and the means of achieving that purpose.[237] It is not clear whether there is a fundamental interest at play here; while the court has generally been cautious to recognize new fundamental interests,[238] a lawyer bringing a claim can assert that mandated representation violates his right to liberty in seeking employment and that the court has generally sought to protect liberty rights via substantive due process.[239]

Regardless of whether there is a fundamental interest at stake, courts’ applications of Naranjo could pass muster when subjected to strict scrutiny. The court’s purpose in mandating counsel is compelling, as the court is guaranteeing the fair administration of justice by ensuring both parties are properly represented.[240] While the lawyer may have a liberty right at stake, her client also has an established right of access to court.[241] A court has a compelling interest in allowing a fair trial for the indigent plaintiff and preventing unfair proceedings with uneven representation. This solution is also narrowly tailored. Naranjo does not call for all lawyers to be conscripted into mandatory pro bono. Instead, the Fifth Circuit cautions great restraint in applying Naranjo and encourages exercising all other options prior to using Naranjo to appoint counsel.[242] As any mandated representation is only a last resort, Naranjo is narrowly tailored to the government interest of ensuring fair proceedings. Thus, any instance of compelled representation could overcome the strict scrutiny standard in a due process challenge.

Finally, a court applying Naranjo could defeat a Fifth Amendment Takings Clause claim.[243] Generally, services have not been considered property protected by the Fifth Amendment; the Supreme Court has found that the “Fifth Amendment does not require that the government pay for the performance of a public duty it is already owed.”[244] According to the Court, the public duties owed to the government included the representation of an indigent plaintiff by a court-appointed attorney.[245] Thus, the very rare mandated appointment under Naranjo will not rise to the level of taking from the attorney. Instead, it is a public duty that the attorney owes the state after receiving the governmental benefit of a license to practice law.[246]

3. Dependence on Judicial Discretion

As can be seen in the different results in Hawbecker and Dunn, Naranjo’s usefulness is constrained by the discretion of the judges applying it. Some judges are more generous than others and may be more likely to use the court’s inherent power to compel representation.[247] This may lead to an uneven application of Naranjo, as judges like Judge Lamberth cabin the applicability of Naranjo, and others apply it more freely. However, this is, in essence, the benefit of Naranjo.

Unlike the LSC,[248] Naranjo does not depend on a congressional statute or the political popularity of funding representation of indigent parties. The benefit to Naranjo is that it is flexible and can be applied to those plaintiffs who are unable to receive aid from other methods of providing counsel. Naranjo relies on a judicial determination that a particular case merits counsel where traditional legislative solutions have failed. By definition, judicial discretion involves varying results because individual judges make varying decisions, but that is an inherent feature of the American judicial system. A court should not decline to adopt or apply Naranjo for that reason; a court should not deny parties with more generous judges access to counsel simply because other indigent parties have less generous judges.

4. The Importance of Ensuring Justice in Applying Naranjo

But, regardless of the obstacles to Naranjo’s usefulness, a court should still apply Naranjo because its focus should be on ensuring truly adversarial proceedings, rather than potential challenges. Courts have a duty to provide the “proper administration of justice” and the Fifth Circuit instructs courts that they may use inherent powers when necessary to provide that proper administration.[249] Administering justice in U.S. courts has long included the adversarial system, in which two relatively evenly matched parties can confront one another and ultimately discover the truth.[250] When a pro se party is so disadvantaged that the proceedings can no longer be called adversarial, a court has a duty to provide counsel so the hearing can be adversarial and justice can be properly administered.[251] A court should not be cowed by the possibility of a lawsuit when it decides how to best guarantee that justice is served. Potential challenges should not deter a court from adopting and applying the holding of Naranjo.

C. Naranjo May be More Effective at Supplying Legal Representation to Indigent Parties if the Fifth Circuit Rejects the Exceptional Circumstances Test

One of the obstacles to Naranjo’s utility could, however, be minimized. Naranjo is, of course, only intended to be applied in a narrow subset of cases,[252] but by easing the standards for exceptional circumstances, this narrow subset of cases could encompass more meritorious cases that deserve representation under Naranjo.

Other circuits have declined to adopt the exceptional circumstances test. The Third Circuit, for instance, refused to limit appointments under § 1915(d) to a certain set of cases.[253] Instead of a rigid test, the Third Circuit outlined considerations a court should make when determining whether to appoint counsel. As a threshold matter, courts must consider the merits of the plaintiff’s claims. If not frivolous, courts should take into account the plaintiff’s ability to present his case, the difficulty of the particular legal issues, whether the case will require skills in cross examination or testimony from experts, and any practical restraints on appointing counsel (like the lack of funding to do so).[254] This standard, while more lenient, still closely mirrors the Fifth Circuit’s “exceptional circumstances” test. Both circuits require courts to consider the complexity of the legal issues.[255] Both circuits require consideration of the plaintiff’s ability to present and investigate the case adequately,[256] as well as a consideration of whether the case will involve cross-examination.[257] The Third Circuit requires consideration of merit as a threshold matter,[258] while the Fifth Circuit allows courts to consider whether a lawyer would decline to take a case because it is meritless.[259] As these factors are substantially similar to those that the Fifth Circuit already uses, it would not be a major upset for the Fifth Circuit to adopt the Third Circuit’s approach.

The key differential impact of the Third Circuit’s approach is that this approach is more forgiving to indigent parties and stresses a more individualized analysis. It does not hinge on the talismanic phrase “exceptional circumstances,” which may persuade a judge that counsel can only be granted on the rarest occasions.[260] Instead, the Third Circuit emphasizes a more holistic appraisal of the pro se party’s situation in Tabron. Unlike the perfunctory findings the Fifth Circuit makes in deeming a plaintiff is competent,[261] the Third Circuit instructs courts evaluating the abilities of a party to “consider the plaintiff’s education, literacy, prior work experience, and prior litigation experience” as well as the plaintiff’s ability to understand English and whether the plaintiff is constrained in any way because of their status as a prisoner.[262]

In practice, it appears that circuits applying the latter test do so in a far more individualized and inquisitive manner than circuits applying the former. Take, for example, the Seventh Circuit’s application of the same test used by the Third Circuit. In various cases, the Seventh Circuit has suggested counsel may be appointed when the court is presented with evidence that the indigent party lacked understanding of the law or procedural matters, even when these matters were not complex.[263] In contrast, the Fifth Circuit has only found exceptional circumstances when the facts and legal issues are complex, regardless of the plaintiff’s level of understanding.[264] Another Seventh Circuit case admonished a district court for confining its discussion of the plaintiff’s competence to a “boilerplate” analysis,[265] which looked like many of the analyses produced by Fifth Circuit courts.[266] According to the Seventh Circuit, courts must analyze the plaintiff’s competence to litigate his claims, and the “failure to undertake this necessary inquiry is an abuse of discretion.”[267] Perfunctory statements are simply not enough, and the Seventh Circuit states that courts must actually engage with the facts of each case before denying counsel.[268]

If the Fifth Circuit also required more individualized analysis, it might allow more indigent plaintiffs to reap the benefits of Naranjo. By requiring courts to consider the facts of a case more holistically, courts may not write off a case as unexceptional based on a few irrelevant facts.[269] The standard of the Third and Seventh Circuits will not suddenly open the floodgates to more appointments of counsel, and it was not intended to do so.[270] The Seventh Circuit, instead, has highlighted the importance of a consistent framework for appointing counsel and the need for individualized inquiry.[271] The Fifth Circuit could only benefit from a more consistent application of the test for exceptional circumstances. Adopting a more lenient standard, like that of the Third and Seventh Circuits, could allow a more even application of the exceptional circumstances test and perhaps allow more indigent parties with meritorious cases to access counsel under Naranjo.


While it is uncertain how future courts will rule, Naranjo will likely remain a very limited tool, as the Fifth Circuit imagined.[272] Courts will likely remain hesitant to appoint counsel in most cases. Furthermore, the facts of Naranjo are very exceptional, given that Naranjo could not access important evidence in the case and Naranjo adamantly repeated his inability to participate because he was not a lawyer.[273] It seems unlikely that a court will extend the cautious holding in a case with such extreme facts to more pedestrian cases. Thus, Naranjo cannot be expected to completely close the justice gap or even provide attorneys in a significant number of cases.

Even if it is a limited tool, Naranjo still remains an important holding because it can act as a safeguard and provide representation in exceptional cases. Due to the restrained services provided by private attorneys and legal services, not all cases can be represented by counsel. There are some particularly dire cases, like Mario Naranjo’s, where, when the conventional options fail, indigent parties have no other resources to fall back on. Naranjo provides an escape route—in serious cases where no help can be found, the court can provide a lawyer and ensure the adversarial system remains intact. Furthermore, Naranjo could potentially provide counsel in more of these cases that fall through the cracks if the Fifth Circuit were to adopt a broader interpretation of exceptional circumstances.

While it has been over two years since the ruling in Naranjo, it has been cited relatively few times—only twenty cases cite it. It will be interesting to see how, if at all, the case law develops and how courts from other jurisdictions treat Naranjo. As of publication, only one other jurisdiction has cited Naranjo—a court in the District of Idaho addressed Naranjo after prisoner pro se plaintiffs cited it as an authority in their motion for appointment of counsel.[274] In Veenstra v. Idaho State Bd. of Corr., the District Court of Idaho decisively rejected Naranjo, disagreeing with the Fifth Circuit’s reasoning that federal courts have the inherent authority to compel counsel.[275] If prisoners and other indigent parties continue to cite Naranjo in their motions to appoint counsel, other courts may agree with the District of Idaho and decline to find the courts possess the inherent authority to compel counsel. At the same time, if Naranjo continues to pop up in various motions to appoint counsel, other courts and circuits may eventually consider accepting Naranjo’s ruling. This may, of course, take more exceptional facts than those in Veenstra. It took a particularly egregious set of circumstances for the Fifth Circuit to rule that courts had the inherent authority to compel representation, and it may require similarly extreme facts to open the door for other circuits to embrace Naranjo.

  1. 71% of low-income households have experienced at least one civil legal problem in the past year. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans Executive Summary, Legal Servs. Corp. 1 (2017), [].
  2. Id. at 2.
  3. See Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 541 (1994).
  4. See Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785, 1809–10 (2001) (discussing national data indicating “most lawyers provide no significant pro bono assistance to the poor”). The ABA recommends attorneys complete at least fifty hours of pro bono work annually. Model Rules of Prof’l Conduct r. 6.1 (Am. Bar Ass’n, 1980).
  5. LSC could not fully aid 1.1 million out of 1.7 million requests for aid in 2017; they cited budget restrictions as the reason for turning away 85–97% of those cases. Legal Servs. Corp., supra note 1.
  6. LSC’s budget has been subject to various congressional cuts over the year, and the amount of funding has varied significantly. LSC’s peak funding was at $771 million in the early 1980s, but it has not received near that much recently. Rachel M. Zahorsky, Everything on the Table: LSC Looks to ABA to Help Meet Legal Needs of the Poor, ABA Journal, Jan. 2012, []. LSC often receives far less than requested—it asked for $502,700,000 for fiscal year 2017, but only received $385,000,000. See Fiscal Year 2017 Budget Request, Legal Servs. Corp. 1, []; Fiscal Year 2018 Budget Request, Legal Servs. Corp. app. at B-1 (May 2017), []. LSC was recently subject to two serious budget cuts in Obama’s second term in office. See House Spending Bill Cuts LSC Budget by 20%, Legal Servs. Corp. (June 3, 2015), []; Funding Cuts Expected to Result in Nearly 750 Fewer Staff Positions at LSC-funded Programs, Legal Servs. Corp. (Aug. 15, 2012), []. It seems that LSC will not fare any better under the Trump administration. Trump has proposed giving LSC only $33 million for the 2018 fiscal year. Deborah L. Rhode, Legal Services Corporation: One of the Worst Cuts in Trump’s Budget, Stanford Law School Blogs (May 31, 2017), []. While Congress has not subscribed to Trump’s proposed cuts, an appropriations bill proposed in spring of 2017 would cut LSC’s budget by 24%. Lee Rawles, Proposed ‘18 budget would cut LSC by 24%, increase funds for law enforcement and immigration court, ABA Journal, (June 30, 2017), [].
  7. See Rebecca Buckwalter-Poza, Making Justice Equal, Ctr. for American Progress (Dec. 8, 2016), [] (last visited Sept. 17, 2018).
  8. LSC, for one, has prohibited any of the organizations it funds from representing prisoners in any matter. LSC Representation of Prisoners, 45 C.F.R. § 1637.1 (1997). LSC funds 25% of all civil legal aid services in the country, so prisoners cannot seek help from a large number of legal aid services. Civil Legal Aid 101, U.S. Dep’t of Justice, [] (last visited Sept. 17, 2018).
  9. See Jennifer Gerarda Brown, Posner, Prisoners, and Pragmatism, 66 Tul. L. Rev. 1117, 1140–45 (1992); Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003); Lynn S Branham, Toothless in Truth? The Ethereal Rational Basis Test and the Prison Litigation Reform Act’s Disparate Restrictions on Attorney’s Fees, 89 Cal. L. Rev. 999 (2001).
  10. Naranjo v. Thompson, 809 F.3d 793, 795–96 (5th Cir. 2015).
  11. Id. at 796–97.
  12. Naranjo v. Thompson, No. PE:11-CV-00105-RAJ, 2013 WL 11299564, at *2 (W.D. Tex. Jun. 5, 2013).
  13. Id. at *2–3.
  14. Naranjo, 809 F.3d at 801–04.
  15. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 301 (1989).
  16. See Colbert v. Rickmon, 747 F. Supp. 518, 527–28 (W.D. Ark. 1990) (denying Colbert’s motion for appointment of counsel because the court found it lacked the authority to mandate representation); Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1229, 1236 (D. Neb. 1995) (finding that courts possess inherent power to mandate representation and granting the attorney’s motion to withdraw because “plaintiff’s failure to obtain private counsel was not the result of his indigency,” but due to a lack of strength of his claims).
  17. Naranjo, 809 F.3d at 804.
  18. James J. Vinch, Mallard v. United States District Court: Section 1915(D) and the Appointment of Counsel in Civil Cases, 51 Ohio St. L.J. 1001, 1003 (1990) (citing 27 Stat. 252, ch. 209 (1892) (codified as amended at 28 U.S.C. § 1915 (1982)).
  19. Stephen M. Feldman, Indigents in the Federal Courts, 54 Fordham L. Rev. 413, 413–14 (1985) (citing H.R. Rep. 1079, 52d Cong. (1st Sess. 1892)).
  20. 28 U.S.C. § 1915 (2012).
  21. The Eighth and Seventh Circuits held that § 1915(e) allowed courts to mandate representation. See Peterson v. Nadler, 452 F.2d 754, 757 (8th Cir. 1971); McKeever v. Israel, 689 F.2d 1315, 1319 (7th Cir. 1982).
  22. The Sixth and Ninth Circuits found courts only had the power to ask counsel to assist an indigent party. See United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986); Reid v. Charney, 235 F.2d 47, 47 (6th Cir. 1956).
  23. Mallard v. U.S. Dist. Court for S. Dist. of Iowa., 490 U.S. 296 (1989).
  24. Id. at 299.
  25. Id.
  26. Id. at 300; see also Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n, 1980) (stating that a lawyer shall not seek to avoid appointment by a tribunal to represent a person, except for good cause). Mallard stated, “I do not like the role of confronting other persons in a litigation setting, accusing them of misdeeds, or questioning their veracity. Because of my reluctance to become involved in these activities, I do not feel confident that I would be effective in litigating a case such as the instant case.” Mallard, 490 U.S. at 300. Mallard still felt confident enough to argue this motion up to the Supreme Court.
  27. Mallard, 490 U.S. at 300.
  28. Id. at 301 (“There is little reason to think that Congress did not intend ‘request’ to bear its most common meaning.”).
  29. Id.
  30. Id. at 301–02 (citing 28 U.S.C. § 1915(d) (1996)).
  31. Id. at 302–03.
  32. Id. at 309.
  33. Mallard, 490 U.S. at 310 (“Nor do we express an opinion on the question whether the federal courts possess inherent authority to require lawyers to serve.”).
  34. Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985).
  35. Colbert v. Rickmon, 747 F. Supp. 518, 528 (W.D. Ark. 1990).
  36. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1239 (D. Neb. 1995).
  37. Vinch, supra note 18, at 1026 n.161.
  38. See United States v. Dillon, 346 F.2d 633, 638 (9th Cir. 1965) (holding that court had power to order an attorney to represent an indigent criminal defendant and that this was not a taking under the Fifth Amendment); David Moore, Invoking the Inherent Powers Doctrine to Compel Representation of Indigent Civil Litigants in Federal Court, 10 Rev. Litig. 769, 782 (1991) (stating courts can use inherent powers to supervise grand juries and dismiss actions for lack of prosecution in criminal cases).
  39. Vinch, supra note 18, at 1026.
  40. Other examples of inherent authority used in a civil context include appointing technical advisors, preventing unethical conduct by attorneys, disqualifying counsel from a case, ordering an employer to continue paying an employee her full salary during a trial, and protecting a trade secret in an ex parte trial. Moore, supra note 38, at 782.
  41. Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985) (citing Robert E. Rodes, Jr. et al., Sanctions Imposable for Violations of the Federal Rules of Civil Procedure 179 n. 466 (July 1981) and Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Colum. L. Rev. 480, 485 (1958)).
  42. See ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1360 n.20 (5th Cir. 1978) (“Although inherent powers are often referred to as ‘incidental’ powers, they are not sources for mere orders of convenience. Action taken by a federal court in reliance on its inherent powers must somehow be indispensable to reach a disposition of the case.”); Soo Line R. Co. v. Escanaba & Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir. 1988) (finding that inherent powers refer to ability of the court to create common law concerning a particular subject area in the absence of statutes and rules). See also Moore, supra note 38, at 780–81 (“Courts have recognized that they should invoke these powers only in the course of performing essential legal matters”).
  43. 757 F.2d 557, 561–64 (3d Cir. 1985).
  44. Id. at 562 (quoting Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1023 (1924)).
  45. Moore, supra note 38, at 781.
  46. Eash, 757 F.2d at 562.
  47. Id. (citation omitted).
  48. 11 U.S. 32, 34 (1812).
  49. Moore, supra note 38, at 781.
  50. Eash, 757 F.2d at 563 (citation omitted).
  51. Id.
  52. Id.
  53. Courts have not found that counsel is necessary in civil cases and there is no right to be represented. See Lassiter v. Dep’t of Soc. Servs. of Durham Cty, N.C., 452 U.S. 18, 25 (1981) (finding that the constitutional right to counsel “has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation”). See also DiAngelo v. Ill. Dep’t of Public Aid, 891 F.2d 1260, 1262 (7th Cir. 1989) (“Indigent civil litigants have no constitutional right to counsel. . . .”); Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (stating that although indigents must have “meaningful access” to the courts, no court has found that meaningful access requires that “indigents must always be supplied with counsel in civil as well as criminal cases”).
  54. Moore, supra note 38, at 782.
  55. Colbert v. Rickmon, 747 F. Supp. 518, 526–27 (W.D. Ark. 1990).
  56. Id. at 520. It should be noted that the court in Mallard suggested that § 1915(d) “may simply codify existing rights or powers.” Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 307 (1989). In Naranjo, the Fifth Circuit relied on this suggestion by the Mallard court when it dismissed respondent’s argument that inherent authority would be duplicative of the authority given to courts by § 1915(e). Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  57. Colbert, 747 F. Supp. at 526 (“This court, after all, may assert no more power than conferred or allowed by Article III.”). Unlike Eash, the Colbert court fails to consider other sources of inherent powers. See Eash v. Riggins Trucking Inc., 757 F.2d 557, 561–65 (3d Cir. 1985).
  58. Colbert, 747 F. Supp. at 527 (“The court, quite simply, does not believe such power is essential to the judicial function or is within its sphere of responsibility.”).
  59. Id.
  60. Id.
  61. Id. (“It is unfair to single out a class defined as including the legal profession and as a sub-class, the relatively few litigation attorneys qualified and able to represent the poor, to bear a burden that belongs to society as a whole. . . .”).
  62. Id.
  63. Colbert, 747 F. Supp. at 527.
  64. Id.
  65. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1225–30 (D. Neb. 1995).
  66. Id. at 1225.
  67. Id. at 1227.
  68. Id.
  69. Id. at 1228.
  70. Bothwell, 912 F. Supp. at 1230.
  71. Id. at 1234.
  72. Id.
  73. Id. at 1235.
  74. Id. at 1236.
  75. Id. at 1239.
  76. Tabron v. Grace, 6 F.3d 147, 157 n.7 (3d Cir. 1993).
  77. Chief Judge Colleen McMahon of the Southern District of New York has stated in numerous cases that “[b]ecause this Court does not have a panel of attorneys who can be compelled to take on civil cases pro bono, and does not have the resources to pay counsel in civil matters, the appointment of counsel is a rare event.” According to a search on Westlaw, this sentence is used in 24 different decisions written by Chief Judge McMahon. See, e.g., Colon-Reyes v. Fegs Health and Human Serv. Sys., No. 12 Civ. 2223, 2012 WL 2353732, at *1 (S.D.N.Y. June 13, 2012); Diggs v. Roberson, 16 Civ. 312, 2016, WL 2856007, at *1 (S.D.N.Y. May 10, 2016); Miranda v. City of New York, 14 Civ. 210, 2016 WL 1317952, at *1 (S.D.N.Y. April 1, 2016); Trahan v. City of New York, No. 15 Civ 4129, WL 4469559, at *1 (S.D.N.Y. July 15, 2015); Paulini v. City of New York, No. 15 Civ. 7059, WL 5946189, at *1 (S.D.N.Y. Oct. 7, 2016).
  78. Jackson v. Stoddard, No. 1:13-cv-1297, 2014 WL 2862614, at *3 (W.D. Mich. June 24, 2014).
  79. United States v. Flores, No. 1:10CR332-2, 2012 WL 1463602, at *7 n.9 (M.D.N.C. April 27, 2012).
  80. The district court in Naranjo recognized its decision was not desirable, but did not try to solve this problem on its own. Instead, the court urged Naranjo to appeal so that the Fifth Circuit could “provide guidance on the appointment of counsel” in this case. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015). Other district courts may be similarly hesitant to claim inherent authority for themselves without a controlling opinion by a circuit court.
  81. Id. at 793.
  82. The First, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits all require that exceptional circumstances exist before a court can appoint counsel for an indigent civil litigant. Kimberly A. Owens, Right to Counsel – The Third Circuit Delivers Indigent Civil Litigants from Exceptional Circumstances, 39 Vill. L. Rev. 1163, 1165 n.9 (1994).
  83. Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982).
  84. Id. (“A trial court is not required to appoint counsel for an indigent plaintiff asserting an action under 42 U.S.C. § 1983 unless the case presents exceptional circumstances.”).
  85. Id. at 266.
  86. Id.
  87. See Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982).
  88. Ulmer, 691 F.2d at 213.
  89. Id.
  90. Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (citing Murphy v. Kellar, 950 F.2d 290 (5th Cir. 1992)).
  91. Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989).
  92. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  93. Id. at 795–96.
  94. Id. at 796.
  95. Id.
  96. Id. at 796–97.
  97. The district court declined to grant summary judgment on the claims regarding Eighth Amendment overcrowding, fire safety, and sanitation. Naranjo, 809 F.3d at 797.
  98. Id.
  99. Id.
  100. Id.
  101. Id. at 797–98.
  102. Naranjo, 809 F.3d at 798.
  103. Id.
  104. Id. at 798, 800 (quoting Naranjo, 2013 WL 11299564, at *2, vacated, 809 F.3d 793 (5th Cir. 2015)).
  105. Id. at 798.
  106. Id.
  107. Naranjo, 809 F.3d at 798 (quoting Naranjo, 2013 WL 11299564, at *3, vacated, 809 F.3d 793 (5th Cir. 2015)).
  108. Id.
  109. Id. at 800–01.
  110. Id. at 801 (“Having identified [a plaintiff demonstrating exceptional circumstances], a district court cannot then send him off on his own consistent with its duty to advance the proper administration of justice.”).
  111. Id.
  112. Naranjo, 809 F.3d at 802.
  113. Id. at 803.
  114. Id.
  115. Id.
  116. Id. at 804.
  117. Naranjo, 809 F.3d at 804 (quoting Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996)).
  118. Id. at 804
  119. Id.
  120. Id. at 805.
  121. Id. at 805–06.
  122. Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975)).
  123. Naranjo, 809 F.3d at 803 (quoting Bounds v. Smith, 430 U.S. 817, 826 (1977)).
  124. See Rhode, supra note 4, at 1793–94; see also Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1229 (D. Neb. 1995) (describing historical cuts in funding for legal aid organizations).
  125. Rhode, supra note 4, at 1809.
  126. Inherent authority has been referred to as “nebulous” with “shadowy” bounds. Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985) (quoting Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Colum. L. Rev. 480, 485 (1958)).
  127. See generally Paul R. Tremblay, Acting “A Very Moral Type of God”: Triage Among Poor Clients, 67 Fordham L. Rev. 2475 (1999) (discussing the ethics of how legal services should prioritize clients when they cannot serve all potential clients); Cramton, supra note 3, at 590–91 (considering ways in which lawyers triage cases when demand for services is too high).
  128. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  129. Id.
  130. Rhode, supra note 4, at 1809.
  131. See State Bar of Texas Board of Directors, Pro Bono Policy, Sept. 22, 2000, [].
  132. Legal Services Corporation, supra note 1.
  133. Id.
  134. See Cramton, supra note 3, at 541.
  135. Id. at 543–44.
  136. Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531, 1535 (2016).
  137. Id. at 1554 & n.119 (discussing the significance of class actions in attracting counsel to represent clients on a contingent basis).
  138. Id. at 1535–36.
  139. Id. at 1540–41, 1545.
  140. Id. at 1553–54, 1555–56.
  141. See Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429–30 (7th Cir. 1991); Merritt v. Faulkner, 823 F.2d 1150, 1155 (7th Cir. 1987) (Posner, J., concurring); McKeever v. Israel, 689 F.2d 1315, 1323–25 (7th Cir. 1982) (Posner, J., dissenting).
  142. Schlanger, supra note 9, at 1622 (explaining how ordinary rules of tort damages limit compensation for inmates because they cannot claim lost wages or medical damage).
  143. Branham, supra note 9, at 1006; Schlanger, supra note 9, at 1654. See also 42 U.S.C. § 1997e(d) (2012) (placing strict limits on attorneys’ fees in lawsuits awarded under the Prison Litigation Reform Act).
  144. Brown, supra note 9, at 1145.
  145. Id. at 1140–41.
  146. Id. at 1143.
  147. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
  148. See Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990); Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995).
  149. Colbert, 747 F. Supp. at 527.
  150. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1235–36 (D. Neb. 1995).
  151. Veenstra v. Idaho State Bd. of Corr., No. 1:15-cv-00270, 2017 WL 4820353, at *2 (D. Idaho, Oct. 24, 2017).
  152. Beth M. Coleman, The Constitutionality of Compulsory Attorney Service: the Void left by Mallard, 68 N.C. L. Rev. 575, 584 (1990); David L. Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev. 735, 771 (1980). See also Bedford v. Salt Lake Cty., 447 P.2d 193 (Utah 1968) (holding that a statute providing court shall appoint counsel to represent an alleged insane person was invalid in absence of compensation); Dillon v. United States, 230 F. Supp. 487 (D. Or. 1964) (stating that an order of the court appointing counsel constituted a taking under the Fifth Amendment and, therefore, warranted just compensation), rev’d, 346 F.2d 633 (9th Cir. 1965); Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973) (denying attorney’s request for fees on the grounds that compelling him to represent indigents did not violate his Fifth Amendment rights).
  153. Shapiro, supra note 146, at 770. See also Lathrop v. Donohue, 367 U.S. 820 (1961); Menin v. Menin, 359 N.Y.S.2d 721 (N.Y. Sup. Ct. 1974) (holding that the policy of appointing uncompensated counsel to litigants violates an attorney’s constitutional rights under the due process clause of the Fourteenth Amendment).
  154. Shapiro, supra note 152, at 767–68; Bedford, 447 P.2d at 195 (explaining that requiring an attorney to provide services without compensation would “impose a form of involuntary servitude on him”). Cf. In re Nine Applications for Appointment of Counsel in Title VII Proceedings, 475 F. Supp. 87 (N.D. Ala. 1979) (stating that the “compulsory rendition of service creates an involuntary servitude”); Davison v. Joseph Horne & Co., 265 F. Supp. 750, 752 (W.D. Pa. 1967) (describing a statute that allows a court to “merely request an attorney to represent indigent persons” but does not “give the court power to compel or coerce and attorney to represent anyone”).
  155. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  156. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (citation omitted).
  157. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
  158. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).
  159. Id.; see also Rhode, supra note 4, at 1798 (explaining that “[i]n Lassiter v. Department of Social Services, the Supreme Court interpreted the due process clause to require appointment of counsel in civil cases if the proceeding would otherwise prove fundamentally unfair.”)
  160. Rhode, supra note 4, at 1798. See also Laurence H. Tribe, American Constitutional Law 1652 (2d ed. 1988) (“The states are required to subsidize the most basic civil litigation costs of indigents only when: the state has a complete monopoly on resolution of the dispute, a fundamental interest is at stake, and the resulting burden on the state treasury would be light. Because these decisions contain so many escape hatches for a judiciary not particularly familiar with the plight of the dispossessed and understandably hesitant to spend the states’ revenues, the [F]ourteenth [A]mendment provides only modest relief for poor people who seek a day in court.”).
  161. Rhode, supra note , at 1805 (noting that less than 10% of courts surveyed had established policies on when to assist unrepresented parties).
  162. Naranjo v. Thompson, 809 F.3d 793, 802 (5th Cir. 2015) (citing ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1362 n.20 (5th Cir. 1978)).
  163. Id. at 804.
  164. Id.
  165. Id.
  166. Id.
  167. See United States v. Zimmerman, 690 F. App’x 215, 216 n.1 (Mem) (5th Cir. 2017) (finding that inherent powers were not indispensable to reaching the disposition of a case where defendant filed for relief under the inherent powers doctrine when the Government did not file an opposition brief).
  168. See supra Part I.C.1.
  169. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
  170. Civ. A. No. 08-4605, 2009 WL 3673025 (E.D. La. Oct. 28, 2009).
  171. Id. at *2.
  172. Id.
  173. Id.
  174. 153 F. App’x 261 (5th Cir. 2005).
  175. Id. at 263.
  176. Id. at 262.
  177. Id. at 263.
  178. Taylor v. Jagers, 115 F. App’x 682, 684 (5th Cir. 2004).
  179. Margin v. Soc. Sec. Admin., Civ. A. No. 08-4605, 2009 WL 3673025 (E.D. La. Oct. 28, 2009).
  180. Jackson v. Dallas Police Dept., 811 F.2d 260, 262 (5th Cir. 1986) (“[T]he record demonstrates that Jackson had done a very credible job in presenting motions and in filing support papers on behalf of his case. Jackson has filed ten different items ranging from his original complaint to the notice of appeal that brought this matter before this court. We are convinced that Jackson can adequately develop the facts and present his case in any further proceedings.”).
  181. Howard B. Eisenberg, Rethinking Prisoner Civil Rights Cases and the Provision of Counsel, 17 S. Ill. U. L.J. 417, 444 (1993) (“Courts commonly assert that because a prisoner is ‘experienced’ or ‘sophisticated’ he should be able to plead his case sufficiently to overcome sua sponte dismissal or dismissal as frivolous. Particularly when dealing with repeat prisoner-plaintiffs courts sometimes seem to conclude that because an inmate has filed several previous law suits that this experience means he is sufficiently knowledgeable to draft a viable complaint or proceed without counsel, even if every one of the prior lawsuits was dismissed as frivolous. The fact that a prisoner has done something poorly ten times does not logically lead to the conclusion that he will perform the task competently on his eleventh try.”).
  182. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  183. Id. at 801.
  184. Id. at 800–01.
  185. See Appendix A for a list of all twenty cases (on file with the Columbia Human Rights Law Review).
  186. Hawbecker v. Hall, No. 5:14-cv-1010-RCL, 2017 WL 384382 (W.D. Tex. Jan. 25, 2017).
  187. Id. at *2.
  188. Id. at *1–2.
  189. Id. at *2.
  190. Id.
  191. Hawbecker, 2017 WL 384382, at *2.
  192. Dunn v. Davidson, No. H–15–3767, 2017 WL 514587, at *5 (S.D. Tex. Feb. 8, 2017).
  193. Id.
  194. Id. at *4–5.
  195. See supra II.A.
  196. See Model Rules of Prof’l Conduct r. 6.1 (Am. Bar Ass’n 2018) (“A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.”); State Bar of Texas Board of Directors, Pro Bono Resolution, Sept. 22, 2000, [] (“[E]ach Texas attorney should aspire to render at least 50 hours to legal services to the poor each year, or make an equivalent financial contribution to an organization that provides legal services to the poor.”).
  197. One study found that only 15–18% of Texas attorneys participated in pro bono work. New York, with the highest rates of pro bono participation, still had rates below 50%. This study also found that private lawyers were not substantially more generous with their money—average donations from lawyers to legal services ranged from $82 per year in New York to $32 per year in Florida. Deborah L. Rhode, supra note 4, at 1809–10.
  198. Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n 2018) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause”); Tex. Bar Disciplinary Rules for Prof’l Conduct r. 6.01 (2018) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause”).
  199. Kentucky, New York, North Carolina, and Oregon, for instance, have not adopted Rule 6.2 of the ABA rules. Variations of the ABA Model Rules of Professional Conduct, Rule 6.2: Accepting Appointments, Am. Bar Ass’n (2017), [].
  200. Id.
  201. Model Rules of Prof’l Conduct r. 6.2(b) (Am. Bar. Ass’n 2018).
  202. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015) (alteration in original) (citation omitted).
  203. Id.
  204. Legal Services Corporation, supra note .
  205. Id.
  206. For example, while 20% of Idahoans are eligible for civil legal aid, funding restrictions mean that there are fewer than twenty legal aid attorneys in the state. Jodi Nafzger, Bridging the Justice Gap: Judicial Promotion of Pro Bono, 59 Advocate 26, 26 (2016).
  207. U.S. Dep’t of Justice, Civil Legal Aid 101, [] (last visited Sept. 17, 2018).
  208. See Tremblay, supra note 122, at 2492.
  209. About Statutory Restrictions on LSC-funded Programs, Legal Servs. Corp., [] (last visited Sept. 17, 2018).
  210. Id.
  211. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  212. Id.
  213. Eisenberg, supra note 175, at 419.
  214. Legal Service Corporation, Representation of Prisoners, 45 C.F.R. § 1637.1 (1997) (“This part is intended to ensure that recipients do not participate in any civil litigation on behalf of persons incarcerated in Federal, State or local prisons.”).
  215. Prisoners’ Rights Project, Legal Aid Soc’y, [] (last visited Jan. 4, 2018); Prisoners’ Legal Services of N.Y., [] (last visited Sept. 27, 2018); Incarcerated Mothers Law Project, Volunteers of Legal Service, [] (last visited Sept. 27, 2018).
  216. If You Need Legal Help, Volunteer Lawyers Project (Mass.), [] (last visited Sept. 27, 2018) (“VLP does not handle criminal cases or represent prisoners on any matter whether related to their incarceration or not.”); Queens Volunteer Lawyers Project, Inc., LawHelpNY, [] (last visited Sept. 27, 2018) (“This program does not serve: prisoners or community groups.”).
  217. See Robert J. Rhudy, Maryland Legal Services Corporation: Promoting Equal Access to Justice, 7 U. Md. L.J. Race, Religion, Gender, & Class 267, 284 (2007) (finding that in Maryland there were over forty separate public and nonprofit federal and state organizations that funded and provided civil legal assistance and that it was not a managed system that was easy for potential clients to understand, access, and use; the many different office locations and phone numbers alone could serve as a barrier to getting in contact with a program that could help).
  218. Eisenberg, supra note 175, at 463.
  219. Branham, supra note 9, at 999; Gerarda Brown, supra note 9, at 1144–45; Schlanger, supra note 9, at 1656.
  220. See supra note 125 and accompanying text.
  221. See Eisenberg, supra note 175, at 459–60, 477. See also Naranjo, 809 F.3d at 798 (stating that the district court had contacted all ten lawyers practicing in the area; there were only three lawyers admitted to the Western District and practicing in Reeves, Texas, where the prison was located).
  222. See supra notes 139–40 and accompanying text.
  223. Naranjo v. Thompson, 809 F.3d 793, 805 (5th Cir. 2015).
  224. 747 F. Supp. at 527 (finding that inherent powers stemmed from Article III, and Article III provides no authority for compelling representation).
  225. No. 1:15-cv-00270, 2017 WL 4820353 at *2 (D. Idaho Oct. 24, 2017).
  226. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
  227. See Eash v. Riggins Trucking Inc., 757 F.2d 557, 561–62 (3d Cir. 1985).
  228. See Eisenberg, supra note 175, at 450 (stating that courts have the inherent power both to set the compensation and terms of employment of court workers as well as determine the needs of their own physical space).
  229. In Pollock v. Williams, 322 U.S. 4, 17 (1944), the Supreme Court held the Thirteenth Amendment was meant “not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.” Some plaintiffs and courts in the 1960s and 1970s used this language to support unsuccessful arguments against mandatory pro bono. See In re Nine Applications for Appointment of Counsel in Title VII Proceedings, 475 F. Supp. 87, 88–89 (N.D. Ala. 1979); Davison v. Joseph Horne & Co., 265 F. Supp. 750, 752–53 (W.D. Pa. 1967); Bedford v. Salt Lake County, 447 P.2d 193, 194–95 (Utah 1968).
  230. See Butler v. Perry 240 U.S. 328, 332 (1916); see also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) (stating that it is “difficult to believe that the [Thirteenth] Amendment was intended to abrogate” the common-law innkeeper rule prohibiting discrimination in public accommodations); Slaughter-House Cases, 83 U.S. 36, 69 (1872) (noting that the “obvious purpose” of the Thirteenth Amendment “was to forbid all shades and conditions of African slavery”).
  231. Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
  232. See Selective Draft Law Cases, 245 U.S. 366, 390 (1918).
  233. Butler, 240 U.S. at 330–32.
  234. See Hurtado v. United States, 410 U.S. 578, 589 n.11 (1973).
  235. See Lathrop v. Donohue, 367 U.S. 820, 844–45 (1961); Menin v. Menin, 359 N.Y.S.2d 721, 723–25 (N.Y. Sup. Ct. 1974).
  236. See Reno v. Flores, 507 U.S. 292, 301–302 (1993).
  237. See id. at 305.
  238. See Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (“As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be members of this Court. That history counsels caution and restraint.”) (footnote omitted).
  239. The right to “pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons” has generally been recognized as one of the privileges and immunities U.S. citizens possess. Slaughter-House Cases, 83 U.S. 36, 39 (1872).
  240. Courts have a duty to ensure the proper administration of justice. See Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015)
  241. See Corfield v. Coryell, 6 F. Cas. 546, 552 (E.D. Pa. 1823); Slaughter-House Cases, 83 U.S. at 39.
  242. Naranjo, 809 F.3d at 804.
  243. See Bedford v. Salt Lake Cty, 447 P.2d 193, 194–95 (Utah 1968); Dillon v. United States, 230 F. Supp. 487, 491–93 (D. Ore. 1964), rev’d, 346 F.2d 633 (9th Cir. 1965); Tyler v. Lark, 472 F.2d 1077, 1080 (8th Cir. 1973).
  244. See Hurtado v. United States, 410 U.S. 578, 588 (1973).
  245. Id. at 589 (citing United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965)).
  246. See Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n 1983) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.”).
  247. See Rhode, supra note , at 1805–06. According to Rhode, less than 10% of judges have established policy on assisting unrepresented parties. Additionally, while some judges are more likely to assist unrepresented parties, others refrain from doing so in order to discourage more individuals from filing suit without representation or due to a fear that assisting these parties would compromise their impartiality.
  248. See Zahorsky, supra note 6, at 197–03, and accompanying text.
  249. Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015).
  250. Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’” (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J., 569, 569 (1975))).
  251. Naranjo, 809 F.3d at 803 (finding that courts have the inherent power to compel attorneys to represent indigent civil rights plaintiffs “when an indigent plaintiff has colorable claims that will not receive a meaningful hearing without counsel (i.e. exceptional circumstances exist) and when all other options for making an appointment have failed.”).
  252. Id. at 804 (“We expect that occasions for mandatory appointments will be rare indeed.”).
  253. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (“Nothing in this clear language [of § 1915(d)] suggests that appointment is permissible only in some limited set of circumstances. Nor have we found any indication in the legislative history of the provision to support such a limitation. Accordingly, we conclude that the magistrate judge erred as a matter of law in stating that he had no discretion to appoint counsel in the absence of ‘exceptional circumstances.’”).
  254. Id. at 155–57.
  255. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1892); Tabron, 6 F.3d at 156.
  256. Ulmer, 691 F.2d at 213; Tabron, 6 F.3d at 156.
  257. Ulmer, 691 F.2d at 213; Tabron, 6 F.3d at 156.
  258. Tabron, 6 F.3d at 155.
  259. See Naranjo v. Thompson, 809 F.3d 793, 805–06 (citing Bradshaw v. U.S. Dist. Court for the S. Dist. of California, 742 F.2d 515, 516–18 (9th Cir. 1984)).
  260. See id. at 804 (“[E]xceptional circumstances warranting appointment of counsel are, by their very definition, exceptional.”).
  261. See Taylor v. Jagers, 115 F. App’x 682, 684 (5th Cir. 2004) (denying motion to appoint counsel “because the record reflects that he is capable of adequately presenting his claims to the court”; the court provided no other reasoning).
  262. Tabron, 6 F.3d .at 156.
  263. See Abdul-Wadood v. Duckworth, 860 F.2d 280, 289 (7th Cir. 1988) (holding that the court should consider appointing counsel, even where the legal and factual issues were not complex, because they “evidently exceeded” the inmate’s abilities and the inmate “seemed not to understand that to obtain damages he must specifically allege in his complaint that he is suing [the defendants] in their individual capacities”), overruled on other grounds by Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429–30 (7th Cir. 1991) (holding that a court could appoint counsel where an inmate was unable to follow the procedures for summary judgment motions).
  264. See, e.g., Moore v. Mabus, 976 F.2d 268, 272 (5th Cir. 1992) (holding that HIV/AIDS management in prison was a factually complex issue and merited counsel); cf. Gill v. Texas, 153 F. App’x 261, 263 (5th Cir. 2005) (holding that plaintiff was competent enough to deal with the issues in the case, despite the plaintiff demonstrably not understanding the process for filing an appeal).
  265. Pruitt v. Mote, 503 F.3d 647, 660 (7th Cir. 2007).
  266. The district court in Pruitt wrote three identical orders stating that “neither the legal issues raised in the complaint nor the evidence that might support the plaintiff’s claims [is] so complex or intricate that a trained attorney is necessary.” Pruitt, 503 F.3d at 660. Cf. Taylor, 115 F. App’x at 684 (stating only that “[t]he district court did not abuse its discretion in denying Taylor’s motion for appointment of counsel because the record reflects that he is capable of adequately presenting his claims to the court.”).
  267. Pruitt, 503 F.3d at 660.
  268. Id.
  269. See Woods v. Stancil, No. 1:17-cv-00800, 2017 WL 4248108 (W.D. La. Sept. 25, 2017) (“While the Court has no specific information regarding Woods’s abilities, he has demonstrated that he is capable of drafting a complaint and a motion.”).
  270. See Pruitt, 503 F.3d at 661 (stating that the court is not trying to cause judges to appoint counsel more often, but rather, wants to ensure that “requests for pro bono counsel are resolved according to a consistent framework. . . .”).
  271. Id.
  272. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  273. Id. at 796–97.
  274. Veenstra v. Idaho State Bd. of Corr., No. 1:15-cv-00270, 2017 WL 4820353, at *2 (D. Idaho Oct. 24, 2017). As of August 2018, an appeal is pending in the Ninth Circuit.
  275. Id.