In a criminal case, the 8th and 14th amendment confer the right of a defendant to appear pro se. However, Sec. 35 of the Judiciary Act of 1789 confirms the right of a civil litigant to appear pro se.
From O’Reilly v. NY Times 692 F.2d 863 (C.A.2 (N.Y.), 1982):
We start with the proposition that the right to self-representation in civil cases conferred by Sec. 35 of the Judiciary Act of 1789, although not enjoying the constitutional protection subsequently afforded to the right of self-representation in criminal cases, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case. As the Court said in Faretta, supra, 422 U.S. at 830 n. 39, 95 S.Ct. at 2538 n. 39: “The Founders believed that self-representation was a basic right of a free people.” 5 Section 1654 comes to us freighted with history; it calls back visions of days when much litigation, especially on the “law side”, was carried on by strong self-reliant citizens who preferred to appeal to the sense of justice of “the country” rather than entrust their causes to lawyers trained in the intricacies of the law. In light of all this and with a citation to Faretta, we recognized in Phillips v. Tobin, 548 F.2d 408, 411 (2 Cir.1976), the “long established principle that in the federal courts the parties have the right to plead and conduct their own cases ….”, although holding the principle inapplicable when a layman sought to represent a corporation of which he was a stockholder in a derivative suit.
The few qualifications which this court has put on the clear language of the self-representation clause of Sec. 1654 are consistent with its high purpose. One such qualification, enunciated in criminal cases, see United States v. Bentvena, 319 F.2d 916, 938 (2 Cir.1963); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2 Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), but equally applicable in civil cases, is that the right to self-representation must be timely asserted. The right is “unqualified” if invoked prior to trial but is “sharply curtailed” if first asserted after the trial has begun. Denno, supra, 348 F.2d at 15. An untimely request is committed to the discretion of the trial court, which may consider, among other factors, the reason for the
request, the quality of the counsel representing the moving party, the party’s prior proclivity to substitute counsel, and the potential disruption to the proceedings. See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2 Cir.1976). Rev. O’Reilly asserted his right in timely fashion, well before trial. The fact that his request came swiftly on the heels of defendant’s notice of motion for summary judgment does not make it untimely under Denno or confer discretion on the judge to treat it as such.
A second qualification recognized in our cases is that the rights of self-representation and representation by counsel “cannot be both exercised at the same time.”United States v. Mitchell, 137 F.2d 1006, 1010 (2 Cir.1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944). Although a trial judge may in his discretion permit a party to enjoy both halves of the statutory right, see United States v. Swinton, 400 F.Supp. 805, 806 (S.D.N.Y.1975) and cases cited therein, Section 1654 does not itself confer any right to “hybrid representation”. United States v. Wolfish, 525 F.2d 457, 462-63 (2 Cir.1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976). Accord, United States v. Hill, 526 F.2d 1019 (10 Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Daniels, 572 F.2d 535 (5 Cir.1978). Thus, a party seeking to assert his statutory right of self-representation must clearly and unequivocally discharge any lawyer previously retained. See Wolfish, supra, 525 F.2d at 462. Rev. O’Reilly has done just that. In his initial letter to Judge Broderick of April 29, 1982, he stated that “I have discharged my attorney, William O’Reilly, [and] … shall henceforth plead and conduct my own case on a pro se basis.” He repeated this in his letters to the court of May 3 and May 7, 1982, as well as in the oral argument on his formal motion.
Notwithstanding this, the Times contends here, as it did before Judge Broderick, that what Rev. O’Reilly really seeks, despite his avowals, is “hybrid representation”. In support of this contention it cites our decision in United States v. Private Brands, Inc., 250 F.2d 554 (2 Cir.1957), cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532 (1958). In that case a corporation and Carey, its President and controlling stockholder, had been jointly prosecuted for fraudulently misrepresenting the quality of chloroform sold to Government agencies. On the day trial was to begin, but before a jury was empanelled, Carey sought permission to proceed pro se and to have Driscoll, the attorney who had up to that point represented both him and the corporation, continue to represent the latter. The trial court denied Carey’s request and we affirmed. In a passage on which appellee seizes, we stated:
In the case at bar Mr. Carey in effect wished to be represented by the attorney for the corporation, whose interests were identical with his own, and also act as his own attorney. The trial judge may well have thought this would cause delay and confusion in the trial. We cannot see any abuse of discretion in the way he handled the matter …. (emphasis supplied) 6
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