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28 N.Y.L. Sch. L. Rev. 691 (1983-1984)
Assisting the Pro Se Litigant: Unauthorized Practice of Law or the Fulfillment of a Public Need

handle is hein.journals/nyls28 and id is 697 raw text is: NOTE ASSISTING THE PRO SE LITIGANT: UNAUTHORIZED PRACTICE OF LAW OR THE FULFILLMENT OF A PUBLIC NEED? INTRODUCTION Pro se1 representation is firmly embedded in American jurispru- dence,2 yet, for a lay person, this conceptual right is but a meaningless truism without the corresponding abilities to see through a legal maze and use the complicated procedural mechanisms necessary to vindicate that right. This dilemma, when accompanied by the spiraling costs of legal services, has created a fertile environment for the emergence of prepublished form packages and services designed to facilitate routine legal matters.3 In many jurisdictions, however, the availability of inex- pensive printed or clerical assistance has been severely limited by bar- initiated litigation brought under statutes proscribing the unauthorized practice of law.4 1. Pro se has been defined as appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself in court. BLAcK's LAW DICTIONARY 1099 (rev. 5th ed. 1979). 2. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court affirmed the con- stitutional right of all persons to represent themselves in court proceedings. The Court held that a defendant in a state criminal trial has a constitutional right to proceed with- out counsel when he voluntarily and intelligently elects to do so. Id. at 807. The Faretta Court, in emphasizing that an attorney is merely an assistant who helps a citizen protect his legal rights and present his case to the courts, stated that [tihe language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaran- teed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself person- ally. Id. at 820. The Court further stated that the right of self-representation is sup- ported by the sixth amendment, as well as by the colonial and English jurisprudence from which the amendment emerged. Id. at 818. See Florida Bar v. Brumbaugh, 355 So. 2d 1186, 1192 (Fla. 1978) (the right of self-representation is constitutionally protected). 3. One can readily find numerous examples of these form packages and services which are available to the public, by glancing through the newspapers. See, e.g., N.Y. Daily News, Oct. 29, 1982, at M15, col. 1-2. 4. See, e.g., Florida Bar v. Furman, 376 So. 2d 378 (Fla. 1979) (on petition of the Florida Bar, the court permanently enjoined Furman, a nonlawyer, from engaging in the unauthorized practice of law by giving legal advice and by rendering legal services in connection with the sale of do-it-yourself divorce kits and adoptions), appeal dis- missed, 444 U.S. 1066 (1980); Florida Bar v. Brumbaugh, 355 So. 2d 1186 (Fla. 1978) (while one may sell sample legal forms and printed material explaining legal practice and procedure to the public, one may not advise clients as to the various remedies available

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