Opinion
00 Civ. 2241 (LAK) (HBP)
August 22, 2002
MEMORANDUM OPINION AND ORDER
By a motion dated February 12, 2002, plaintiff moves for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice.
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 can be 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.").
In this case, the reasons offered by plaintiff for seeking pro bono counsel consist of the following:
I don't have the money, and no one would take my case. [I] called different lawyers and went to lawyers['] offices and they all told me I had no case. They wouldn't listen.
Even if I assume that plaintiff has satisfied the other factors, plaintiff has not shown that is case is sufficiently meritorious to warrant submission to the pro bono panel.
The issues in this case are set forth in my Report and Recommendation dated July 26, 2002 addressing defendant's motion to dismiss, familiarity with which is assumed. If that Report and Recommendation is adopted, all that will remain in this case is plaintiff's claim pursuant to the Americans with Disabilities Act ("ADA"). Although I am not prejudging the matter, plaintiff's ADA claim appears tenuous at this time because there are serious issues as to whether plaintiff was "qualified" within the meaning of the Americans with Disabilities Act. See Friedman v. Consolidated Edison Co., 97 Civ. 2735 (DLC), 1999 WL 511962 at *10 (S.D.N.Y. July 20, 1999) ("The term `qualified individual with a disability' means an individual with a disability, who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."). If plaintiff's claimed disabilities were so serious that they him from working for defendant altogether, the ADA provides no relief for plaintiff. See Daddazio v. Katharine Gibbs Sch., Inc., 98 Civ. 6861 (DC), 1999 WL 228344 at *5 (S.D.N.Y. Apr. 20, 1999), aff'd mem., 205 F.3d 1322 (2d Cir. 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 270 (D. Conn. 2000); Clark v. New York State Elec. Gas Corp., 67 F. Supp.2d 63, 74-75 (N.D.N.Y. 1999). Given this very serious issue concerning the merits of plaintiff's remaining claim, his failure to make any showing in his application for counsel concerning the merits of his case warrants the denial of his application.
Accordingly, plaintiff's application is denied without prejudice to renewal. Any renewed application should be accompanied by an affidavit or declaration that addresses all the factors relevant to an application for pro bono counsel in detail.
SO ORDERED.