Thursday, October 6, 2022

Pro Se Litigant Not Ordered To Pay Fees And Costs

A pro se litigant is not subject to Rule 38 sanctions notwithstanding a frivolous appeal, per a decision of the District of Columbia Court of Appeals

We question whether it is the best use of MedStar’s counsel’s time to seek attorney’s fees from a litigant who is before this court in forma pauperis and already has an award of attorneys’ fees against her in the Superior Court, which she has indicated she is unable to pay. But the utility of such a request aside, we conclude Ms. Harrington’s conduct before this court does not justify an order directing her to pay MedStar’s fees and costs. Although we acknowledge that Ms. Harrington’s appeal was without legal merit, we are unpersuaded that her conduct has been substantially different from that of the many pro se parties whose appeals we ultimately reject. Indeed, we are unaware of any instance, at least in our published opinions, in which this court has imposed sanctions in the form of costs and fees on a party who is proceeding pro se, let alone in forma pauperis, for filing a frivolous appeal. Notably, our reasoning in support of the imposition of such sanctions on litigants represented by counsel has relied strongly on the professional duties of members of the bar, who are both equipped to know when an appeal is frivolous and obligated to refrain from proceeding in those instances. See Slater, 793 A.2d at 1278-79 (imposing sanctions of costs and fees because no “member of the bar acting as an officer of the court should have continued to prosecute [the] appeal”); Tupling v. Britton, 411 A.2d 349, 352 (D.C. 1980) (“As professionals and officers of this court, members of the District of Columbia Bar have the obligation to exercise their independent professional judgment to determine whether a civil appeal is frivolous before filing one.”). It would be unfair to hold Ms. Harrington to the same standard. Cf. Smith, 454 A.2d at 824 n.4.

Associate Judge Easterly authored the opinion. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/10/pro-se-litigant-not-ordered-to-pay-fees-and-costs.html

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