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Denial of Disabled Litigant's Unlicensed Advocate Not Misconduct

By William Peacock, Esq. | Last updated on

It ain't easy being a trial judge. Litigants of all shapes, sizes, and abilities appear before you, and for some with special needs, they are entitled to reasonable accommodation. Most of the time, that accommodation is simple, such as having an interpreter in the room.

Other times, it's not.

The anonymous complainant here, who suffers from a communications disability, is a pro se litigant who sought to have his caretaker act as his "authorized representative" and "address the court in his behalf." That, of course, sounds more like the job of an attorney, as the requested accommodation was not mere transmittal of the litigant's statements -- it was full-on representation.

The court’s denial of that request was entirely proper, and it may not have even been necessary. The district court judge ruled that the case, like many other cases, could be handled on the pleadings alone, and as such, no communication with the court was needed. The Court of Appeals affirmed that ruling.

Of course, it’s never that easy.

The complainant also alleges that the denial of accommodation was retaliatory due to a prior request for recusal. He also alleged that the dismissal of his civil suit was done in order to obstruct this misconduct complaint. However, adverse rulings alone aren’t proof of misconduct.

The complainant also had two other issued with the judge’s handling of his request for accommodation. For one, the application was made ex parte with a request for that application to remain under seal. The court denied that request, and the seal, and notified the opposing counsel. This decision was entirely proper as ex parte proceedings are “anathema in our system of justice.”

He also had issues with the clerk’s office. He was understandably miffed after his medical records were posted on PACER. Upon notifying the court, the clerk’s office immediately took action and sent him an apologetic explanation. All signs point to clerical mistake, not judicial malice or misconduct.

And for his final complaint, he pointed to a “pattern and practice” of denying disability accommodations, specifically one incident from more than fifteen years ago when the judge sat on a state court. One denial, appropriate or not, does not amount to a pattern of discriminatory conduct, especially in light of the justified denial in this case. Besides, the Ninth has previously held that it would be improper “to sanction a judge for conduct preceding confirmation” to the federal bench.

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