Seventh Circuit Confirms No Right to Appointed Counsel for Federal Civil Litigants: Contrary to Some Local Rules
Most lawyers practicing in federal court eventually get the dreaded call from the court clerk: you have been appointed to represent a pro se civil plaintiff – often an inmate. After searching the local rules for an out, lawyers usually surrender, contact their new client, and do their best to achieve a good outcome. MGS is no stranger to the process, having been appointed to represent pro se plaintiffs in numerous civil lawsuits – some extending for years and consuming thousands of hours of professional time.
The Seventh Circuit Court of Appeals may have changed the equation for those lawyers who, for whatever reason, don’t want to take on an appointed case. In Austin v. Hansen, the court held that 28 U.S.C. § 1915(e)(1) – under which a court “may request an attorney to represent any person unable to afford counsel” – authorizes the court to attempt to recruit counsel but does not give the litigant a right to appointed counsel.
The decision highlights the competition between the interests of the courts and bar to ensure that cases – sometimes involving important constitutional issues – are fairly decided regardless of the economic circumstances of a plaintiff, and the interests of lawyers in private practice in being the masters of their valuable time and resources. Austin also raises potential conflicts with local rules in some courts that impose mandatory pro bono obligations and penalize lawyers who decline an appointment.
Background of Austin v. Hanson: Plaintiff’s Eighth Amendment Claim
Plaintiff Lazerek Austin, an IDOC inmate proceeding pro se, filed a § 1983 action in the Central District of Illinois against three medical providers, alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. At Austin’s request, the district court attempted to recruit counsel under the Central District’s voluntary pro bono plan. Despite “extensive efforts,” the court was ultimately unable to secure a volunteer lawyer and required Austin to continue pro se. The district court thereafter entered summary judgment for the defendants and Austin appealed. Austin argued, among other things, that the district court erred by requiring him to proceed pro se instead of appointing counsel.
Key Takeaways from the Seventh Circuit’s Decision
The Seventh Circuit affirmed the summary judgment and the district court’s decision to require Austin to proceed pro se. Its key points include:
No right to appointed counsel in civil cases. The court reiterated that federal courts “lack the power to compel an attorney to represent a civil litigant,” emphasizing that § 1915 only authorizes courts to “request” assistance.
Recruitment efforts need only be reasonable, not limitless. Judges must use their discretion to determine when continued attempts to recruit counsel would be futile. Courts are not required to “search indefinitely.”
District court acted within its discretion. The record showed meaningful efforts to recruit pro bono representation. When no volunteer could be found, the court permissibly allowed the case to proceed pro se after determining that Austin was capable of adequately pursuing his claim.
How District Court Rules on Appointed Counsel Conflict with Austin
Austin arose in the Central District of Illinois, which relies on a volunteer system in which cases are assigned only to lawyers who have enrolled in the program. Lawyers are allowed to decline for limited reasons such as conflicts, lack of expertise, or irreconcilable differences, but no punitive mechanism exists for refusal. The Northern and Southern Districts have more compulsory systems.
The Northern District maintains a trial bar as well as a general bar. Local rules require that a trial bar member be present for most court proceedings, and trial bar members are subject to being appointed to represent a pro se party. Under some circumstances, failure to participate when appointed can lead to a lawyer being dropped from the trial bar.
The Southern District’s rules are even more compulsory. Under local rule 83.11(c), a lawyer who “refuses” an appointment without being excused may be stricken from the roll of attorneys for two years, losing the right to appear—even pro hac vice—and thereafter being required to reapply for admission.
Pro Bono Obligations After Austin: Professional Responsibility and the Role of Law Firms
The Seventh Circuit in Austin did not address the validity of local rules, but its reasoning suggests that pro bono systems must remain fundamentally voluntary – inviting future challenges to a district court’s effort to punish a lawyer for refusing to participate.
Fundamentally, however, and despite the statutory constraints, the legal profession recognizes a strong ethical duty to provide pro bono services. Law firms, including MGS, regularly undertake substantial court‑recruited matters—often complex constitutional, medical, or civil rights cases that demand significant time, discovery, travel, and expert expenses. These commitments can strain resources but play a critical role in ensuring access to justice for indigent litigants.
