Opinion
No. 05 Civ. 2665 (BSJ) (HBP).
February 3, 2006
MEMORANDUM OPINION AND ORDER
By motion dated March 16, 2005 (Docket Item 5) plaintiff moves for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice to renewal.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel."Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").
This is a civil RICO action brought as a class action. Class certification has not yet been granted, and a motion to dismiss is pending. The principal problem with the pending application is that plaintiff has made no showing whatsoever concerning the merits of his claim. To the contrary, the facts set forth in plaintiff's application give rise to serious questions concerning the merits of plaintiff's case. Plaintiff's case. Plaintiff states that he has contacted "the pro bono offices of several major law firms in New York City" for representation and has been turned down. Given the fact that attorney's fees in RICO actions and class actions are ordinarily recoverable, most plaintiffs with viable RICO actions or class actions have little difficulty obtaining counsel. Thus, if anything, plaintiff's difficulty in obtaining counsel implies a possible lack of merits in plaintiff's case.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing the merits of plaintiff's claim.