Thursday, April 24, 2014

Civil self-representation in Kentucky

There appears to be no serious doubt that civil litigants have a right to represent themselves in Kentucky courts without the assistance of an attorney.
" A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law."
Rules of the Supreme Court, SCR 4.300(B)(7), Kentucky Code of Judicial Conduct, Canon 3(B)(7)

"We are unaware of any U.S. Constitutional decision that declares citizens to have a right to self-representation in civil proceedings. Yet, arguing against such a right is nearly frivolous . . . In light of the historically "high standing" accorded to a party's right to plead and conduct one's own case, we agree that the trial judge abused his discretion in ordering Lattanzio to proceed with his litigation only under the supervision of an attorney. Such an extreme remedy was simply not reasonable, especially in light of the fact that no alternative sanctions were attempted prior to the entry of the trial court's February 27, 2009, order that barred Lattanzio from self-representation."
Lattanzio v. Joyce, 308 SW 3d 723 (Ky. App. 2010)

Pro se litigants must follow the Kentucky Rules of Civil Procedure. McBrearty v.Community and Technical College System, 262 S.W.3d 205, 210 (Ky.App.2008)

Encouraged against the sua sponte dismissal of complaints, in part, because such a practice is "particularly prejudicial to pro se plaintiffs, who are generally unskilled in the art of pleading." Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App.1987)

Federal cases

Prisoner's pro se civil complaint was held to a less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)

"We start with the proposition that the right to self-representation in civil cases conferred by § 35 of the Judiciary Act of 1789, although not enjoying the constitutional protection subsequently afforded to the right of self-representation in criminal cases, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case. As the Court said in Faretta, supra, 422 U.S. at 830 n. 39, 95 S.Ct. at 2538 n. 39: 'The Founders believed that self-representation was a basic right of a free people.' "
O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir.1982)  However, the right to self-representation is a qualified right. It must be timely asserted.


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