Opinion
A-00-CA-364-SS.
April 5, 2001.
ORDER
Before the Court is Plaintiff's Request for Appointment of Counsel (Clerk's Doc. No. 2). Plaintiff is claiming that she was discriminated against based on her gender and national origin in violation of Title VII of the Civil Rights Act of 1964. The District Court referred the motion to the undersigned magistrate judge for a determination on the merits pursuant to a standing order of the Court and 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C to the Local Rules of the United States District Court for the Western District of Texas.
I. Analysis
Title VII provides that "[u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant. . . ." 42 U.S.C. § 2000e-5(f)(1). Although this section grants the right to request an attorney, it does not guarantee a litigant will have one appointed. The decision to appoint an attorney is within the broad discretion of the trial judge given the particular facts of the case. Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir. 1990). The following three factors are generally balanced by the courts in determining whether to appoint an attorney: The merits of the claim, the plaintiff's own efforts to secure counsel, and the plaintiff's financial ability to retain private counsel. Gonzalez, 907 F.2d at 580; Maxwell v. Kight, 974 F. Supp. 899, 902 n. 2 (E.D.Tex. 1996). Courts have also considered a plaintiff's ability under the circumstances of the case to present the case without the assistance of an attorney. Poindexter v. FBI, 737 F.2d 1173, 1189 (D.C. Cir. 1984); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982); Young v. K-Mart Corp., 911 F. Supp. 210, 211 (E.D.Va. 1996); Maxwell, 974 F. SUPP. at 902 n. 2.
Furthermore, in considering a motion for appointment of counsel in a Title VII action, the court must also remain mindful of the unfairness of imposing involuntary servitude upon a member of the bar when likelihood of success upon claims appears slight. Tatum v. Community Bank, 866 F. SUPP. 988, 995 (E.D.Tex. 1994). Moreover, there are no federal funds allocated to the prosecution of civil lawsuits. For that reason, if the Court were to appoint an attorney, counsel would have to serve entirely without compensation unless the lawsuit is successful and attorney's fees are awarded.
A. Financial Ability to Retain Private Counsel
In demonstrating his or her financial ability to retain private counsel, a plaintiff is not required to establish substantial poverty, as is required to proceed in forma pauperis. Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). Plaintiff does not seek to proceed in forma pauperis in this case and has paid the $150 filing fee. Plaintiff's only argument regarding her ability to pay is that she is unable to pay a retainer fee which the attorneys she contacted require. Plaintiff does not provide the Court with any further information regarding the circumstances which make the attorney's requested fees a hardship. Furthermore, she provides no evidence of her financial inability to retain private counsel under a contingency fee arrangement.
B. Efforts to Secure Counsel
To be eligible for appointed counsel, plaintiff must make "a reasonably diligent effort under the circumstances to obtain counsel." Lee v. United States Postal Service, 882 F. SUPP. 589, 594 (E.D.Tex. 1995) (quoting Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1319 (9th Cir. 1981)). Courts have suggested that a significant inquiry on this issue is whether the complainant has pursued the possibility of a contingent fee arrangement in her efforts to locate an attorney. Lee, 882 F. SUPP. at 594.
In her Request for Appointment of Counsel, Plaintiff relates that she has contacted five attorneys, all of whom required "upfront" retainer fees she states she is unable to pay. She has not contacted any legal aid association or lawyer referral service. There is no information in the Request indicating whether Plaintiff discussed a contingency fee arrangement with any of the attorneys that she contacted. If a plaintiff has made attempts to seek out a contingent fee arrangement, then there would be a stronger argument for finding this factor to favor the appointment of counsel. Reado v. Texas General Land Office, 929 F. SUPP. 1046, 1052 (E.D. Tex. 1996).
C. Merits of the Case
Examination of the merits of the case sua sponte before the defendant has been required to answer is similar to the frivolousness review called for when a party is proceeding in forma pauperis, see 29 U.S.C. § 1915(d), in that it cannot serve as a fact finding process for the resolution of disputed facts. Denton v. Hernandez, 112 S. Ct. 1738 (1992). In response to a motion for appointment of counsel in a race discrimination case, one court stated:
Appointment of counsel is warranted only if Plaintiff's position seems likely to be of substance. . . . A plaintiff who has stated a claim but has stated scant evidence in support of that claim can expect to survive a motion to dismiss and yet fail to obtain appointment of counsel.
Reado, 929 F. SUPP. at 1053, (citing Smith v. City Univ. of N.Y., 1993 WL 106395 at *3 (S.D.N.Y. APR. 7, 1993)).
In her Complaint, Plaintiff makes factual assertions, which, if true, might support a claim for discrimination. At the same time, the EEOC found that "the evidence obtained during [its] investigation does not establish a violation of [Title VII]." When considering the merits issue in determining whether to appoint counsel, the conclusion reached by the EEOC is "highly probative," Caston v. Sears, Roebuck Co., 556 F.2d 1305, 1309 (5th Cir. 1977), though the Court should not give preclusive effect to the EEOC's determination, Lee, 882 F. Supp at 594. In this case, the Plaintiff provides no information which would show that the EEOC's determination was invalid.
D. Plaintiff's Ability to Present His Case
As this case is in the beginning stages, there is limited information to allow this Court to gauge Plaintiff's ability to present her case, but what the Magistrate Court has seen is favorable. It seems evident that Plaintiff has been exposed to at least some of the nuances of Title VII. Plaintiff's writing skills and education are adequate to pursue his case, and thus far, Plaintiff has done a respectable job of handling this case. Moreover, Plaintiff does not assert that the claims in the cause are especially complicated and that he is incapable of litigating these issues herself.
II. Conclusion
Considering all of the above factors the Court declines to appoint an attorney in this case at this time, as there is insufficient information to establish that the Plaintiff is financially unable to retain an attorney, and insufficient information to establish that the Plaintiff has fully explored the possibility of retaining an attorney on a contingent fee basis. Further, the EEOC's negative decision with regard to the Plaintiff's claim counsel's against appointment, and — at least at the present time — it appears that the Plaintiff is capable of presenting her claim pro se. For these reasons, Plaintiff's motion for an appointed attorney is DENIED at this time.