1.1 Ethical Framework
Judges do not compromise their impartiality by making reasonable accommodations to ensure that self-represented litigants have their matters fairly heard. As set forth in the Massachusetts Code of Judicial Conduct and its comments, judges may exercise their discretion to make reasonable accommodations for self-represented litigants and, in some instances, may be required by law to do so.
Commentary
Effective January 1, 2016, the Supreme Judicial Court approved a new Massachusetts Code of Judicial Conduct (S.J.C. Rule 3:09) that specifically addresses ethical considerations relating to cases with self-represented litigants. Rule 2.2 of the Massachusetts Code of Judicial Conduct requires judges to “perform all duties of judicial office fairly and impartially.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.2 (2016). Comment 4 to Rule 2.2 explicitly states that “[i]t is not a violation of this Rule for a judge to make reasonable accommodations to ensure selfrepresented litigants are provided the opportunity to have their matters fairly heard.”
Rule 2.6 (A) of the Code further provides that “[a] judge may make reasonable efforts, consistent with the law, to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.” Comment 1A to Rule 2.6 explains that “[i]n the interest of ensuring fairness and access to justice, judges may make reasonable accommodations that help self-represented litigants to understand the proceedings and applicable procedural requirements, secure legal assistance, and be heard according to law,” provided that such “accommodations do not give self-represented litigants an unfair advantage or create an appearance of judicial partiality.” “In some circumstances, particular accommodations for self-represented litigants are required by decisional or other law. In other circumstances, potential accommodations are within the judge’s discretion.” Id. Comment 1A to Rule 2.6 also lists examples of accommodations that judges may properly make to ensure that self-represented litigants have the opportunity to be fairly heard. It provides that “a judge may:
- construe pleadings liberally;
- provide brief information about the proceeding and evidentiary and foundational
requirements; - ask neutral questions to elicit or clarify information;
- modify the manner or order of taking evidence or hearing argument;
- attempt to make legal concepts understandable;
- explain the basis for a ruling; and
- make referrals as appropriate to any resources available to assist the litigants.”
1.2 Affording Constitutional Due Process
Judges must provide self-represented litigants with accommodations that are necessary to afford them constitutional due process.
Commentary
The right to due process of law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Articles 10 and 12 of the Declaration of Rights in the Massachusetts Constitution, requires judges to make such accommodations for self-represented litigants as are necessary to ensure a fair proceeding. Depending on the circumstances, such accommodations may include giving self-represented litigants clear notice of critical questions in the case and taking steps to elicit relevant information from them. See Turner v. Rogers, 564 U.S. 431, 435, 449 (2011) (incarceration of indigent self-represented parent on finding of civil contempt for failure to pay child support violated due process, where proceeding lacked adequate procedures to ensure a fair determination of whether the parent was able to comply with the support order; parent did not receive clear notice that his ability to pay would constitute a critical question in his civil contempt proceeding, and he did not receive a form designed to elicit information about his financial circumstances); Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 133-138 (2020) (judge erred in finding self-represented defendant in civil contempt for failure to pay child support, where defendant did not receive adequate procedural due process protections in accord with Turner; among other shortcomings, judge did not inquire into whether defendant had present ability to pay his child support, and did not provide defendant with opportunity to respond to statements and questions about his financial status). See also commentary to Guideline 1.3.
In assessing the accommodations and procedural safeguards necessary to protect the due process rights of self-represented litigants, judges must “consider the private interest that will be affected, the risk of an erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedural safeguards, and the government’s interest involved.” Adoption of Patty, 489 Mass. 630, 638 (2022), citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
1.3 Ensuring the Right to Be Heard
Judges must ensure that self-represented litigants are provided the opportunity to meaningfully present their claims and defenses.
Commentary
“[S]elf-represented litigants must be provided the opportunity to meaningfully present claims and defenses.” Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 132-133 (2018), quoting I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561 (2013). See also Carter v. Lynn Hous. Auth., 450 Mass. 626, 637 n.17 (2008), quoting Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants § 3.2 (2006) (“self-represented litigants must be provided ‘the opportunity to meaningfully present their cases’”).
The right of self-represented litigants to meaningfully present their claims and defenses is rooted in the constitutional right to due process, which “includes ‘the right to be heard at a meaningful time and in a meaningful manner.’” Guardianship of V.V., 470 Mass. 590, 592 (2015), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See Adoption of Patty, 489 Mass. 630, 631-632 (2022) (conduct of virtual trial concerning termination of self-represented mother’s parental rights violated her right to due process under Fourteenth Amendment to United States Constitution and art. 10 of Massachusetts Declaration of Rights, where trial was plagued by technological issues and inadequate safeguards, resulting in self-represented mother’s inability to participate and causing her to miss presentation of evidence against her); Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 484 (2021) (“judges must ensure that all parties, represented and unrepresented alike, receive a fair trial and that principles of due process are followed”; holding that judge abused discretion in denying self-represented tenant’s motion to file late answer in eviction proceeding, where prejudice to tenant, depriving him of statutory right to present affirmative defense, far outweighed any inconvenience to landlord); Glendale Assocs., LP v. Harris, 97 Mass. App. Ct. 454, 455, 464-465 (2020) (judgment in favor of landlord was “not consonant with due process” where judge entered default against pro se tenant even though tenant had denied allegations against him and had been litigating case, thereby denying tenant opportunity to present defense and to confront and cross-examine witnesses against him).
Depending on the context, the right of self-represented litigants to meaningfully present their claims and defenses may also be protected by applicable statutes, regulations, court rules, and standing orders. See Cambridge St. Realty, 481 Mass. at 132-134 (citing both due process cases and Housing Court standing order requiring that “each judge … must, consistent with applicable statutes and the rules of court, exercise sound judgment in a manner that affords the parties a fair opportunity to develop and present their claims to the court,” in holding that self-represented tenant was denied fair opportunity to present her claims where she did not have notice of trial until afternoon when it occurred and court denied her request for a continuance, in violation of another standing order provision, that would have enabled her to receive assistance through a lawyer for the day program); Carter, 450 Mass. at 633-635 (citing Federal regulations that required hearing on decision to terminate Section 8 rental assistance, and that authorized hearing officer to consider all relevant circumstances, in holding that family affected by termination was entitled to opportunity to present evidence and arguments and statement of findings by hearing officer addressing evidence and arguments presented).
To ensure that all litigants, including self-represented litigants, receive due process, judges must play “an affirmative role in facilitating the ability of every person who has a legal interest in a proceeding to be fairly heard.” S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016). The judge’s function is “to provide a self-represented party with a meaningful opportunity to present [his or] her case by guiding the proceedings in a neutral but engaged way.” Morse v. Ortiz-Vasquez, 99 Mass. App. Ct. at 484, quoting CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283 (2017). As discussed in the commentary to Guideline 1.1, comment 1A to Rule 2.6 of the Code of Judicial Conduct provides examples of accommodations that judges may properly make to ensure that self-represented litigants have the opportunity to be fairly heard. At the same time, as with any other litigant or attorney, judges also have the authority to place reasonable limits on self-represented litigants’ presentation of their positions. See Guideline 3.1 and related commentary.
1.4 Exercising Discretion
A judge’s decision to make or decline to make an accommodation for a self-represented litigant ordinarily will be reviewed for abuse of discretion. The standard for “abuse of discretion” is whether the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives. The judge should ensure that the record reflects the factual basis for the judge’s decision. If the record reflects that the judge failed to recognize that the court had discretionary authority and/or failed to exercise it, that itself is an abuse of discretion.
Commentary
The appellate courts have generally applied an abuse of discretion standard of review to lower court decisions to provide or deny accommodations to self-represented litigants. See, e.g., Department of Revenue Child Support Enforcement v. Grullon, 485 Mass. 129, 130 (2020); Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 122 (2018); Morse v. Ortiz-Vasquez, 99 Mass. App. Ct. 474, 484 (2021). A “judge’s discretionary decision constitutes an abuse of discretion where . . . the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (citations and internal quotation marks omitted). L. L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In L. L., the Supreme Judicial Court adopted this new articulation of the abuse of discretion standard of review in place of the prior iteration of the standard, which permitted a reviewing court to reverse a judge’s discretionary decision only where it concluded that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by him [or her].” Id. Although the revised standard is less deferential than the prior standard, it continues to give “great deference to the judge’s exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result.” Id.
A judge’s failure to recognize that the judge has discretionary authority to act in a given instance, or the failure to exercise that discretionary authority, also constitutes an abuse of discretion. Judges should also take care that the record adequately reflects their exercise of discretion when they choose to grant or deny an accommodation. See Carter v. Lynn Hous. Auth., 450 Mass. 626, 635-636 (2008) (where record did not indicate any awareness by the hearing officer of his discretionary authority to take mitigating circumstances into account, and did not contain any factual findings that would demonstrate his awareness, the case was remanded for further proceedings).
1.5 Applying the Law
While the law – including but not limited to the elements of claims and defenses, the allocation of burden of proof, the rules of evidence, and the rules of procedure – applies to all litigants whether or not they are represented by counsel, this principle does not prevent judges from adjusting procedures or technical requirements, so long as the opposing party’s right to have the case fairly decided is not prejudiced.
Commentary
Although “[a] pro se litigant is bound by the same rules of procedure as litigants with counsel,” International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983), some leniency should be accorded to self-represented litigants in determining whether they have met procedural rules and other requirements. See Tynan v. Attorney Gen., 453 Mass. 1005, 1005 (2009) (“some leniency is appropriate in determining whether the papers of a self-represented litigant comply with applicable court rules”); Carter v. Lynn Hous. Auth., 450 Mass. 626, 638 (2008) (“Vulnerable tenants” who are self-represented “must not be deprived of protected interests solely on the basis of their lack of familiarity with the intricacies of regulations that, ironically, were designed to protect those very interests”); Lamoureux v. Superintendent, Mass. Correctional Inst., 390 Mass. 409, 410 n.4 (1983) (“A handwritten pro se document is held to a less stringent standard than pleadings drafted by an attorney and is to be liberally construed”); I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561 (2013) (self-represented defendant father residing in Florida did not waive objection to Massachusetts court’s exercise of personal jurisdiction over him, even though he did not use words “personal jurisdiction,” where it was sufficiently clear from his reluctance to come to Massachusetts, his statements about proceedings in Florida, and his undisputed nonresident status that he was not appearing in Massachusetts voluntarily); Loebel v. Loebel, 77 Mass. App. Ct. 740, 743 n.4 (2010) (self-represented mother’s “inability to articulate in the moment the precise procedural vehicle to obtain . . . a hearing” to provide further support for her argument for custody of her children “should not have ended the matter”; holding that judge abused discretion in denying mother opportunity to present new evidence to address best interests of children); S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016) (judge may construe pleadings liberally and modify manner or order of taking evidence or hearing argument to facilitate ability of self-represented litigants to be fairly heard).
Judges should bear in mind that the rules of evidence may be relaxed in certain types of proceedings where parties are frequently self-represented, including proceedings under G. L. c. 209A and G. L. c. 258E, and small claims. See commentary to Guideline 5.5 for a more in-depth discussion of these exceptions.
Judges should also be wary of “interpreting . . . too broadly” decisions holding that pro se defendants must comply with relevant procedural and substantive rules and “as a consequence abdicating [their] proper role as a judge.” Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 241 n.4 (1990) (holding that judge who failed to intervene in trial or to rule on admissibility of evidence absent any objection by pro se defendant erred in admitting prior bad act evidence against defendant; “the judge should have recognized . . . that the prosecutor was engaging in improper tactics and taking advantage of the defendant’s unrepresented status” and “should have promptly intervened, not to be of assistance to the defendant, but to assert a judge’s traditional role of making sure that all the parties receive a fair trial”). On the other hand, judges cannot go so far as to create new procedures that entirely disregard the requirements of statutes and court rules. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) (“The broad powers of a . . . judge to adopt procedures to promote justice . . . do not include the power to fashion procedures in disregard of the Massachusetts Rules of Civil Procedure”) (holding that judge committed reversible error by considering not only pro se litigant’s complaint, but also her independent oral statements and written materials presented over three days of hearings, in ruling on defendant’s motion to dismiss for failure to comply with Mass. R. Civ. P. 8 and 9). In sum, judges should adopt a balanced approach that provides the accommodations that are necessary to enable self-represented litigants to present their case and ensure a fair proceeding, while respecting the rights of other litigants and the requirements of the law.
1.6 Providing Legal Information
Judges and court staff do not compromise their neutrality by providing self-represented litigants with information about the law and the legal process. On the other hand, judges and court staff may not provide self-represented litigants with legal advice, e.g., guidance about which course of action they should take to further their interests.
Judges should be familiar with court resources that provide information and support to self-represented litigants and should make referrals to those resources as appropriate.
Commentary
Judges and court staff may properly provide legal information as needed to self-represented litigants, including information about how the court system works, what they need to file, how to complete forms, and where they can find further assistance. Judges and court staff should be knowledgeable about resources that are available to help litigants who lack counsel – including Court Service Centers, Trial Court law libraries, court webpages, Lawyer for the Day programs, lawyer referral services, and legal aid programs – and should refer those litigants to these resources as appropriate. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 549 n.8 (2018) (noting that “[n]onattorneys may provide information to self-represented litigants to help them understand their legal rights,” and that “the Massachusetts Trial Court . . . provides walk-in court service centers at certain large courthouses where non-attorneys ‘help people navigate the court system’ by assisting with forms, providing information about court procedures, and answering questions about how the court works”); In re Powers, 465 Mass. 63, 68 (2013), citing Supreme Judicial Court Steering Committee on Self-Represented Litigants, Serving the Self-Represented Litigant: A Guide by and for Massachusetts Court Staff 3-7 (2010) (describing duties of clerk’s office) (“The clerk’s office . . . provides legal information (as opposed to legal advice) to persons seeking restraining orders or other relief from the court as to how the court system works, what they need to file, and how to complete court forms. . . . Further, the clerk’s office provides language assistance to those seeking legal redress who are unable to speak, understand, or read English,” and “court staff [are] permitted to act as ‘scribes’ when litigant[s] [are] unable to complete form[s] due to language barrier[s].” “In addition, the clerk’s office provides self-represented litigants with information about the availability of trial court libraries, and how to contact lawyer referral services or legal aid programs to obtain legal advice”); S.J.C. Rule 3:09, Code of Judicial Conduct, Canon 2, Rule 2.6 comment 1A (2016) (judges may “make referrals as appropriate to any resources available to assist the litigants”).
Within the context of a particular proceeding, judges may also properly “provide brief information about the proceeding and evidentiary and foundational requirements” to enable self-represented litigants to understand what they have to do to present their case. Id.
Unfortunately, however, confusion about the distinction between legal information and legal advice may lead judges and court personnel to be overly cautious and unduly reticent when providing information to self-represented litigants, to avoid any appearance of impropriety. This practice has an adverse effect on self-represented litigants and increases the gap in access to justice. See Lauren Sudeall, The Overreach of Limits on “Legal Advice,” 131 Yale L. J. F. 637 (2021-2022).
The table below, the content of which is derived from a manual previously produced by the Supreme Judicial Court Steering Committee on Self-Represented Litigants, Serving the Self-Represented Litigant: A Guide by and for Massachusetts Court Staff 3 (2010), provides guidance for distinguishing between permissible legal information and impermissible legal advice.
| Legal Information | Legal Advice |
|---|---|
| A written or oral statement that describes and explains court processes, procedures, rules, practices, legal phrases or terms, and options available to court users. | Advising court users whether to bring particular cases or problems before the court. |
| Answering questions about how the court system works. | Suggesting which of several procedures or options court users should follow. |
| Identifying for court users standard court forms and/or sample pleadings that meet the court users’ needs. | Providing advice or information for the purpose of giving one party an advantage over another. |
| Providing general instructions on how to complete court forms. | Assisting court users in developing a strategy regarding their cases. |
| Answering questions containing the words, “Can I?” or “How do I?” | Telling court users what to say in court. |
| Predicting for court users what a judge is likely to do in a case. | |
| Answering questions containing the words, “Should I?” |
See the Massachusetts Court Service Center website for additional examples of information that court employees can provide to self-represented litigants.