Why Do Inmates Get Free Attorneys

Why Do Inmates Get Free Attorneys?

By Robert P. Vogt

I was recently defending a nurse in a civil rights case brought by an inmate. The inmate was proceeding, pro se (without an attorney), and was making allegations against the nurse that were, to say the least, unfounded. Both factually and legally, the inmate’s charges were no closer than “far left field.”

I was somewhat surprised, therefore, when I received a court order appointing an attorney to represent the inmate. When the nurse found out, she was very upset. In the nurse’s view, she was forced to retain an attorney to defend her, multiple expenses were being incurred to defend the case, and the nurse was suffering a great deal of stress in connection with a case she felt was meritless. Why, in light of all this, would the court seemingly reward the inmate with a free attorney?

The factors that a court considers in deciding to appoint an attorney to represent pro se inmates are fairly well settled. First, the court should consider the merits of the inmate’s claim. If the court reviews an inmate’s claim and determines that the inmate’s chances of success are extremely slim, the court should refuse the appointment of an attorney because the inmate’s claim is, in fact, meritless, whether an attorney is involved or not.

Second, even if the inmate’s claim does have merit, the court can refuse to appoint an attorney if the factual issues in the case are simple and do not require the assistance of an attorney. Where the inmate has the ability to investigate his case, there may be no reason to have an attorney do what the inmate can himself/herself do. According to one decision, an attorney should not be appointed to represent a pro se inmate “where the factual issues are uncomplicated or insubstantial and thus do not require the aid of experienced trial counsel to sift through a complicated record or to take testimony.” In other words, if the facts are easy to grasp, no attorney is needed.

Third, the litigation experience and capability of the pro se inmate is an important consideration. If the pro se inmate is competent to pursue his own claim and to raise his own arguments, courts will deny the appointment of counsel. The key question here relates to the inmate’s experience in the civil litigation process. Some inmates file dozens of lawsuits and even take cases through the appellate process. Inmates with this degree of experience do not need the assistance of an attorney.

Fourth, the complexity of the legal issues raised also is a factor for the court to consider. Where the law at issue is well settled, the appointment of an attorney will not aid the court because the issues have already been addressed by previous judicial decisions. However, where the law is not clear, or where the inmate raises issues that have not been previously addressed by a court, an attorney can often help both the inmate and the court in addressing the merits of the inmate’s complaint.

Finally, in the court’s view, the appointment of an attorney to represent an inmate may help clarify the issues. An attorney, unlike an inmate, is bound by certain ethical rules of conduct. The attorney is legally obligated not to assert something that the attorney knows to be untrue. If an attorney asserts a false argument, the attorney faces monetary sanctions and, potentially, places his/her license at risk. Inmates, however, are not bound by the same ethical and legal standards. In this respect, the appointment of an attorney can help crystallize the inmate’s allegations as the attorney will not make an allegation simply because the attorney “suspects,” “believes,” or “knows” something to be true. An attorney must have a good faith basis to assert a claim, and if a good faith claim does not exist, the attorney is ethically bound not to make the argument.

In the end, it is important to keep in mind that judges sometimes look at the big picture. While at first blush, giving a free attorney to an inmate might not seem fair, it may help down the road. The court's decision to appoint an attorney to represent the inmate in my case turned out to be a blessing in disguise. The inmate's attorney filed an amended complaint dropping many of the baseless allegations previously made by the inmate. We now have someone to communicate with and the attorney knows the law. While every case is different, in our case, I am confident that the court's order appointing an attorney will result in a swifter disposition of the case because the court will only have to address the law and the facts, rather than the creation of the conspiracy-minded.