Opinion
Case No. 04-1369-WEB.
March 20, 2007
MEMORANDUM AND ORDER
Plaintiff moves for the appointment of counsel after the termination of the services of prior counsel, Michael K. Lehr. In determining whether to grant plaintiff's request, the court is guided by Castner v. Colorado Springs Cablevision, 979 F.2d 1417 (10th Cir. 1992). The Tenth Circuit has identified four factors which are relevant to the court's discretionary decision whether to appoint counsel: (1) plaintiff's financial inability to pay for counsel; (2) plaintiff's diligence in attempting to secure counsel; (3) the existence or nonexistence of meritorious allegations of discrimination and (4) plaintiff's capacity to present the case without counsel. For purposes of the present order, the court will accept the veracity of plaintiff's affidavit of poverty. The court also will accept plaintiff's statement that attorneys have declined to take her case. The court presently does not have sufficient information to fully evaluate factors 3 and 4.
The court provisionally appoints Diane Worth to represent plaintiff. Ms. Worth's initial responsibility will be to confer with plaintiff and make such investigation as may be necessary to determine whether she will recommend to the court that she be permanently appointed to represent plaintiff. If, upon completion of her initial investigation, Ms. Worth does not wish to accept permanent appointment, she shall notify the court, and to the extent consistent with professional responsibility, report her reasons in order to assist the court in making its determination under facts 3 and 4 of the Castner test.
Under certain circumstances appointed counsel may be reimbursed for reasonable out-of-pocket expenses which the client is unable to pay. See D. Kan. Rule 83.5.3(3)(2) (permissible disbursement from bar registry fund). The procedure for seeking reimbursement has been amended and counsel should review D. Kan. Rule 83.5.3(f) if a request for reimbursement of out-of-pocket expenses is contemplated.
IT IS SO ORDERED.