Barton v. Delfgauw et al

Filing 294

ORDER denying Plaintiff's 283 Motion to Allow Advisory Counsel. Signed by U.S. District Judge David G Estudillo. (TE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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NATHEN W. BARTON,

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v.

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Plaintiff,

CASE NO. 3:21-cv-05610-DGE
ORDER DENYING MOTION TO
ALLOW ADVISORY COUNSEL

JOE DELFGAUW et al.,

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Defendants.

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Presently before the Court is a motion by pro se litigant Nathen Barton to allow attorney

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Peter Schneider to act as “advisory counsel” in his case. 1 (Dkt. No. 283.) Barton requests to

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proceed pro se while also allowing Schneider to participate in court proceedings. (Id.)

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Specifically, Barton asks the Court to permit Schneider to sit with him “during any court

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proceedings” and “make legal arguments, question witnesses, or make objections on Barton’s

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Barton has filed identical motions in two other cases presently before the Court. See Barton v.
The Rian Group Inc et al, 3:23-cv-05452-DGE (Dkt. No. 22.); Barton v. Walmart Inc et al, 3:23cv-05063-DGE (Dkt. No. 24.)

ORDER DENYING MOTION TO ALLOW ADVISORY COUNSEL - 1

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behalf as needed.” (Id.) Barton relies on Washington Rule of Professional Conduct 1.2(c) to

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support his request.

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Rule 1.2(c) states, “A lawyer may limit the scope of the representation if the limitation is

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reasonable under the circumstances and the client gives informed consent.” “Although this Rule

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affords the lawyer and client substantial latitude to limit the representation, the limitation must

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be reasonable under the circumstances. Comment 7, Wash. R. Prof. C. 1.2(c).

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The Court finds Barton’s request is not reasonable under the circumstances because it

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fails to limit either the scope or subject matter of Schneider’s representation. Barton's broad

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request leaves the subject matter of the representation open-ended. Barton is not simply asking

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for “general information” about the law or requesting assistance for a “common and typically

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uncomplicated legal problem.” See Comment 7, Wash. R. Prof. C. 1.2(c). Barton’s request

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requires legal skill and knowledge beyond what would typically be expected in a limited

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representation agreement.

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Barton’s request, rather than being limited and specific, seeks to have Schneider perform

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many of the tasks an attorney would typically take on during a trial. The broad nature of his

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request—encapsulated in terms like “any” or “as needed”— implies Barton may seek to expand

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the scope of Schneider's responsibilities. 2 Barton’s request to proceed pro se while

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simultaneously being represented by counsel distorts the intended concept of limited

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representation and renders his request unreasonable.

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In addition, Local Civil Rule 83.2(b)(5) provides that a party can either represent
themselves or be represented by counsel, but not both: “When a party is represented by an

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It also is unclear the extent to which the lawyer might be subject to a legal malpractice claim in
the event Barton is not satisfied with the lawyer’s “limited” representation.

ORDER DENYING MOTION TO ALLOW ADVISORY COUNSEL - 2

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attorney of record in a case, the party cannot appear or act on his or her own behalf in that case.”

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Moreover, if the party seeks to proceed pro se, the rule requires an order of substitution to be

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granted by the court, which would terminate the party’s attorney as counsel and substitute the

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party to proceed pro se. (Id.)

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Case law has also established that a party is not entitled to “hybrid” representation. See

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Brasier v. Jeary, 256 F.2d 474, 477 (8th Cir. 1958) (holding there was no constitutional or other

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right for a litigant to conduct his own case pro se and have the aid of counsel to speak and argue

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for him at the same time); see also Iannaccone v. L., 142 F.3d 553, 558 (2d Cir. 1998) (same).

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There are also ethical and procedural concerns with permitting the type of hybrid representation

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envisioned by Plaintiff. See, e.g., Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977)

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(questioning whether the attorney’s or the party’s opinion would control in a hybrid

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representation when there was disagreement on a tactical matter).

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Accordingly, the Court, DENIES Plaintiff’s motion to allow for advisory counsel. (Dkt.
No. 283.)
Dated this 14th day of July, 2023.

A

David G. Estudillo
United States District Judge

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ORDER DENYING MOTION TO ALLOW ADVISORY COUNSEL - 3