University of St. Thomas
School of Law
Legal Studies Research Paper Series

Abusing Taxation of Court Costs
by Government Lawyers to Chill
Pro Se Civil Rights Claimants
University of St. Thomas Law Journal (forthcoming 2021)

Gregory C. Sisk (Laghi Distinguished Chair in Law)
Alexandra Liebl (J.D. 2020)

Nicole Zeman (J.D. 2020)

University of St. Thomas School of Law
Legal Studies Research Paper No. 20-17
This paper can be downloaded without charge from
The Social Science Research Network electronic library at:
http://ssrn.com/abstract=3681048

Abusing Taxation of Court Costs
by Government Lawyers to Chill
Pro Se Civil Rights Claimants
Gregory Sisk, Alexandra Liebl & Nicole Zeman*
Abstract: Attorneys in state attorney general offices
regularly employ the threat of court imposition of costs on pro se
plaintiffs to convince them to dismiss or settle federal civil
rights claims against public officials or entities. Persons of
limited means may fear being held liable for hundreds or
thousands of dollars in court costs if they don’t win their civil
rights lawsuits. Pro se litigants especially may be intimidated
by attorneys who exert their authority as public officials to
pressure abandonment of even meritorious civil rights claims.

Awarding court costs, however, is reserved to the discretion
of the federal district court and, while presumed against an
unsuccessful litigant, are not automatic or irreducible. Several
federal appellate courts have articulated public interest factors
for reducing or eliminating court costs against pro se parties for
various reasons, including the poverty of the litigant and the
public importance of a civil rights claim.
Under professional conduct rules requiring lawyer honesty
and regulating communications with an unrepresented party,
reinforced by higher expectations of candor and civility for
attorneys who represent the public, government attorneys are
ethically obliged to inform civil rights litigants that awards of
court costs are a matter of discretion and may be reduced or
excused for public policy reasons.

*
Gregory Sisk holds the Laghi Distinguished Chair in Law at the University of
St. Thomas School of Law (Minnesota). Alexandra Liebl and Nicole Zeman received
their J.D.s from the University of St. Thomas in 2020.

2 COURT COSTS AND PRO SE CIVIL RIGHTS

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Introduction
Ron Pettit was an inmate in the custody of the Arizona
Department of Corrections. On April 16, 2011, preparing to be
escorted back to his cell after a shower, Pettit followed routine
protocol by stepping forward out of the shower.1 A correctional
officer slammed him back into the shower wall face first and
ordered him to exit backward.2
When they arrived at his cell and the door had been closed,
Pettit moved backward toward the door for his handcuffs to be
removed through the food slot.3 The correctional officer yanked
the chain attached to the cuffs, painfully pulling his hands
backward through the slot.4 After the cuffs were removed, Pettit
placed his hands on the tray of the food slot in order to speak to
the other correctional officers and complain about the abuse.5 The
abusive officer used his gloved hands to pound hard down on
Pettit’s hands, delivering what Pettit described as “hammer
punches.”6 After failing to intervene at any prior point, another
correctional officer threw her body into that of the abusive officer
and told him to stop.7 (The videotape of the assault, as well the
report of the incident by a superior officer, were destroyed
afterward, later resulting in a spoliation ruling by the court.8)
Pettit suffered permanent damage to his right hand, leaving
him unable to pull his fingers into a fist and unable to properly
move his pinky.9 Being right-handed, he now has great difficulty
writing.10 For more than a year afterward, he continued to suffer
pain in his neck, shoulders, and upper right arm from being
pulled backward through the food slot.11
During the subsequent civil rights lawsuit for excessive force
in federal district court, Pettit (who was fortunate to have
Reporter’s Partial Transcript of Proceedings: Trial Day 1 at 107 (Sept. 29,
2014), Pettit v. Ryan, No. 2:11-cv-02139-DGC (D. Ariz.).
2
Id.
3
Id. at 111-12.
4
Id.
5
Id. at 117-19.
6
Id. at 120.
7
Id. at 121-22.
8
Id. at 43.
9
Id. at 153-55.
10
Id. at 157-58.,
11
Id. at 164, 184-85.
1

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3

counsel) repeatedly offered to settle.12 In response to an early
settlement offer, the assistant attorney general handling the case
responded that “you would be hard-pressed to find a jury in this
State that would give Mr. Pettit $5.”13 During the trial, when
plaintiff’s counsel offered to settle for about a third of the
eventual verdict,14 the assistant attorney general retorted: “Sorry
to rain on the parade, but there will be no settlement.”15
At the trial, the jury unanimously returned a verdict for the
plaintiff, awarding Pettit $100,000 in compensatory damages and
another $45,000 in punitive damages.16
As an exhibit to the petition for attorney’s fees after the
verdict, a letter from the assistant attorney general to Pettit,
delivered through Pettit’s attorney shortly before trial, came to
light.17 The letter “propose[d] that you walk away from this
lawsuit,” in exchange for the state not pursuing an award of court
costs.18 The assistant attorney general warned Pettit that he had
“something to lose” in the coming trial and asked him to consider
that, after he was released from prison in just a few months
“what if you are not truly free when you get out? What if, just as
you are walking out of ASPC-Eyman, one of the correctional
officers hands you a judgment that indicates that you owe the
State of Arizona $5,000.”19 The assistant attorney general
asserted that “[i]f and when the jury returns a verdict in favor of
the Defendants, the Judge will award us our defense costs.”20 (As
later noted by defense counsel, “[t]he letter nowhere mentioned
that such award of costs was discretionary, not automatic.”21)
The assistant attorney general’s letter explicitly and in some
detail portended economic catastrophe for Pettit in finding
12
Declaration of Daniel C. Barr in Support of Plaintiff’s Motion for Attorneys’
Fees, Exs. 1, 4, 5 (Sept. 29, 2014), Pettit v. Ryan, No. 2:11-cv-02139-DGC (D. Ariz.)
[hereinafter Barr Declaration].
13
Id., Ex. 1.
14
Id., Ex. 4.
15
Id., Ex. 5.
16
Reporter’s Partial Transcript of Proceedings: Trial Day 4 at 144-46 (Oct. 2,
2014), Pettit v. Ryan, No. 2:11-cv-02139-DGC (D. Ariz.).
17
Declaration of Daniel C. Barr in Support of Plaintiff’s Motion for Attorneys’
Fees, Ex. 6 (Sept. 29, 2014), Pettit v. Ryan, No. 2:11-cv-02139-DGC (D. Ariz.).
18
Id. at 2.
19
Id. at 1.
20
Id. at 2.
21
Barr Declaration, supra note 12, at 8-9.

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employment and paying off the heavy debt of court costs after his
release:
Consider that you will be presumably looking for
some sort of productive work once you are released, the
last thing you need is some state collector garnishing
your wages from your job. I probably do not have to tell
you that the State is very effective at collecting its
debts. I saw this happen with an inmate who was
incarcerated for 27 years, and [that inmate] was very
unhappy about it. Although he only owed a few
hundred dollars, the debt made it difficult for him to
move on and find work.
You also probably know that it is hard to find
companies willing to hire guys with multiple felonies in
their past. If you are fortunate to find work for
$10/hour, consider the fact that it would take you 185
hours (more than 4 and a half weeks of 40 hours a
week) to pay back the State . . . . If the post-trial
judgment is for $5,000, it would take you 500 hours (or
3.5 months at $10/hour x 40 hours/week) to pay it off.22
Very shortly after this letter was revealed in the Pettit case,
the defendants through the state attorney general’s officer
informed the court that the parties had settled the case.23
Even when a court has acted on public policy grounds to
reduce the burden of court costs against an unsuccessful civil
rights plaintiff, a state legal official may be reluctant to let loose
of the cudgel. In one federal district court case,24 a state deputy
attorney general vehemently objected to a ruling reducing costs
on public policy grounds. Although holding that desecration by a
correctional officer of a Muslim prisoner’s Quran did not rise to a
constitutional violation, the magistrate judge described these
acts, if proven, as “disrespectful and even repugnant,” said the
case “was by no means easy,” and reduced costs from nearly
$1200 to $500.25 The state deputy attorney general then asked
22
23

Id., Ex. 6 at 2.
Notice of Settlement (Nov. 17, 2014), Pettit v. Ryan, No. 2:11-cv-02139-DGC (D.

Ariz.).
24
As disclosure, the lead author was appointed by the Ninth Circuit as pro bono
counsel for the appellant Darrell Harris in this case.
25
Order Granting in Part Defendant’s Request for Costs at 3 (Aug. 21, 2017),
Harris v. Escamilla, No. 1:13-cv-01354-DAD-MJS (E.D. Cal.).

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5

the district court judge, not merely to impose the full award of
costs, but to sanitize the record by striking passages from the
magistrate judge’s ruling to which state counsel objected.26 The
district judge rejected both requests.27
On appeal in that case, the state’s legal official objected even
to citation of the magistrate judge’s public ruling on court costs,
contended that prison officials were exempt from landmark
Supreme Court decisions upholding free exercise of religion, and
insisted that vandalizing a prisoner’s Quran did not cross a
constitutional line because the state could have barred this
central religious text altogether from California prisons.28 The
court of appeals upheld the constitutional claim for desecration of
the Quran, reversing the district court and remanding the case
for trial on the merits.29 The case subsequently settled.30
Most readers will assume the foregoing are extraordinary but
rare episodes of what Pettit’s attorney aptly called “threats and
scare tactics” involving the imposition of court costs.31
Unfortunately, while the particularity of the shakedown in the
first case and the fervor of the objection to reduction of costs in
the second case are perhaps unusual, the nature of the threat
relayed by a government attorney was far from unusual.
As attorneys appointed on appeal for civil rights plaintiffs who
were pro se at the trial level know all too well, these court cost
threat tactics are “regular fabric” of these cases.32 Attorneys in
state attorney general offices regularly assert the certainty of
court imposition of costs on pro se plaintiffs and use that financial
club to try to convince them to voluntarily dismiss federal civil
26
Request for Reconsideration by the District Court of Magistrate Judge’s Ruling
at 1-2 (Aug. 31, 2017), Harris v. Escamilla, No. 1:13-cv-01354-DAD-MJS (E.D. Cal.).
27
Order Denying Motion for Reconsideration at 1-2 (Oct. 5, 2017), Harris v.
Escamilla, No. 1:13-cv-01354-DAD-MJS (E.D. Cal.).
28
Defendant-Appellee’s Answering Brief at 15-19, 24 (Dec. 8, 2017), Harris v.
Escamilla, No. 17-15230 (9th Cir.).
29
Memorandum at 2-3, Harris v. Escamilla, No. 17-15230 (9th Cir. May 24,
2018).
30
Minute (Jan. 14, 2020), Harris v. Escamilla, No. 1:13-cv-01354-DAD-MJS (E.D.
Cal.); Stipulation for Voluntary Dismissal With Prejudice (Mar. 16, 2020), Harris v.
Escamilla, No. 1:13-cv-01354-DAD-MJS (E.D. Cal.).
31
Barr Declaration, supra note 12, at 9.
32
Cf. Russell Engler, Out of Sight and Out of Line: The Need for Regulation of
Lawyers’ Negotiations with Unrepresented Poor Persons, 85 CAL. L. REV. 79, 83 (1997)
(discussing “frequent and widespread” impermissible advice-giving to unrepresented
persons in New York City housing courts).

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rights claims. And these government legal officers do this
presumably because they’ve seen it work in fending off lawsuits.
Persons of limited means may fear being held liable for hundreds
or thousands of dollars in court costs if they don’t win their civil
rights lawsuits. Pro se litigants especially may be intimidated by
attorneys who exert their authority as public officials to pressure
abandonment of even meritorious civil rights claims.
Awarding court costs, however, is reserved to the discretion of
the federal district court and, while sometimes presumed against
an unsuccessful litigant, are not automatic or irreducible. 33
Several federal appellate courts have articulated public interest
factors for reducing or eliminating court costs against pro se
parties for various reasons, including the poverty of the pro se
litigant and the public importance of a civil rights claim.34
In light of the established case-law, state law officers should
never present a direct and unqualified threat of thousands of
dollars in court costs against a civil rights plaintiff, especially one
that is not represented by counsel. Professional conduct rules
demand honesty by lawyers and restrict communications with an
unrepresented party. The federal courts have higher standards of
candor and civility for attorneys who represent the public.
Government attorneys are ethically obliged to inform civil rights
litigants that awards of court costs are a matter of discretion and
may be reduced or excused for public policy reasons.35

33
34
35

See infra Part I.
Id.
See infra Part II.

25-Aug-20]

I.

Sisk, Liebl & Zeman

7

Taxing Court Costs and the Public Interest
in Federal Court

Obstacles to Pro Se Civil Rights Litigation: To say that
high obstacles loom before an indigent person who seeks a court
remedy for alleged official wrongdoing is an understatement. For
most potential civil rights plaintiffs with limited resources, the
inability to retain a lawyer means the lawsuit fails before it even
gets started. As Professor Deborah Rhode aptly describes it, “[o]ur
justice system is designed by and for lawyers, and anyone who
attempts to navigate without counsel is generally at a
disadvantage. That disadvantage is particularly great among the
poor, who typically lack the skills and information necessary for
effective self-representation.”36
The possibility of shifting attorney’s fees to the defendant
government or official, or the use of a contingency fee should the
plaintiff recover damages, may secure legal representation for
some. But most potential civil rights claimants will be unable
attract a lawyer to their cause, especially if the amount of
potential damages are low and thus the economic upside of the
case for the lawyer is minimal.
Consider for example claims by prisoners of wrongful conduct
by prison officials or unconstitutional prison conditions. “Prisoner
cases are particularly unpopular” and the courts rarely can find
“counsel willing to represent pro se civil rights litigants.”37
Prisoner civil rights cases, even the most meritorious, can be
difficult to initiate and maintain, beginning with time-consuming
and frustrating navigation of the special procedural restrictions
Deborah L. Rhode, Pro Bono in Principle and in Practice, 53 J. LEGAL EDUC.
413, 431 (2003); see also DAVID LUBAN, LAWYERING AND JUSTICE: AN ETHICAL STUDY 244
(Princeton U. Press, 1988) (“It is an obvious fact . . . that all of our legal institutions
(except small claims court) are designed to be operated by lawyers and not by
laypersons. Laws are written in such a way that they can be interpreted only by
lawyers; judicial decisions are crafted so as to be fully intelligible only to the legally
trained. Court regulations, court schedules, even courthouse architecture are designed
around the needs of the legal profession.”); Model R. Prof’l Conduct 6.1 cmt. 2 (ABA
2020) (recognizing “the critical need for legal services that exists among persons of
limited means”).
37
LaPlante v. Pepe, 307 F. Supp. 2d 219, 223 (D. Mass. 2004); see also Kelly v.
Wengler, 822 F.3d 1085, 1104 (9th Cir. 2016) (citing district court finding that, “due to
the inadequacy” of attorney’s fees, attorneys “have been unwilling to accept
appointment in prisoner civil rights cases seeking injunctive and declaratory relief”);
36

8 COURT COSTS AND PRO SE CIVIL RIGHTS

[25-Aug-20

on prisoner complaints through the defense of qualified immunity
to preclude damages unless prior precedent already spoke clearly
to the constitutional wrong.38 And for the lawyer taking on a
prisoner case for other than pro bono purposes, the prospect of
meaningful compensation is slim because “the [Prison Litigation
Reform Act] restricts the hourly rate for attorneys’ fees below
market.”39 Not surprisingly, a report by the U.S. Department of
Justice found that “ninety-six percent of all prisoners proceed pro
se; only four percent have counsel whether court appointed or
otherwise.”40
If a civil rights plaintiff is determined to go forward without
legal representation, court “costs” will be a further deterrent.
Beyond filing fees and the expenses of producing and filing
documents or responding to discovery, not to mention the huge
investment of time in learning legal procedures, the pro se
litigant may be troubled by the prospect of paying courts costs
should the lawsuit fall short. For non-indigent plaintiffs, the
possibility of paying a few hundred or even a few thousand dollars
in court costs should the defendant prevail may be a relatively
minor consideration in whether to proceed. For a poor individual,
or a prisoner who has little means to earn money, even a few
hundred dollars may leave the person in long-term debt or having
to forgo basic living necessities.
Award of Court Costs as Discretionary: In the federal
courts, the ordinary presumption is that court costs will be
awarded to the prevailing party, whether plaintiff or defendant.
Costs in the courts system typically include filing fees, service
fees, witness fees, mediation fees, and sometimes appeal fees.41
Under Federal Rule of Civil Procedure 54, the prevailing party

See Gregory C. Sisk, et al., Reading the Prisoner’s Letter: Attorney-Client
Confidentiality in Inmate Correspondence, 109 J. Crim. L. & Criminology 559, 609-32
(2019).
39
Graves, 633 F. Supp. 2d at 847.
40
Roger A. Hanson & Henry W.K. Daley, U.S. DEPT. OF JUSTICE, Challenging the
Conditions of Prisons and Jails: A Report on Section 1983 Litigation 21 (1994) (for
Section
1983
civil
rights
suits,),
available
at
http://www.bjs.gov/index.cfm?ty=pbdetail&iid=544 [https://perma.cc/65VP-DUHJ.
41
See 10 CHARLES ALAN WRIGHT ET AL, FEDERAL PRACTICE & PROCEDURE §2666 (4d
ed. 2014) (“‘Costs’ refers to those charges that one party has incurred and is permitted
to have reimbursed by the opposing party as part of the judgment in the action.”).
38

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9

generally is to be awarded recovery of these court costs as part of
the judgment.42
Importantly, however, the federal courts of appeals agree that
awarding costs against indigent plaintiffs is a matter of judicial
discretion—and some courts have expressly incorporated
indigency and public interest concerns into the discretionary
analysis. While the circuits vary on what factors should guide the
analysis, the overarching theme remains that the judge gets to
decide. For this reason, the casual assumption that court costs
are invariably a roadblock to individuals who pursue vindication
of their rights, even if their claim ultimately fails, is simply not
correct. To be sure, such costs may indeed be imposed, indeed
may ordinarily be imposed (especially if the lawsuit is entirely
meritless). But, without confessing that the court has discretion
to alleviate that burden, government lawyers are misleading their
pro se adversaries when they threaten the imposition of court
costs to convince them to voluntarily dismiss civil rights claim.
Every circuit to address the issue agrees that the award of
court costs against indigent is a matter of discretion for the
district courts.43 The text of Rule 54(d) may suggest a
presumption by saying that “costs shall be allowed as of course to
the prevailing party.”44 However, the rule is twice qualified, by
referring to an exception “when express provision therefore is
made either in a statute of the United States or in these rules,”
and, more generally, by conferring broad discretion on the judge
Fed. R. Civ. P 54(d).
See, e.g., Whitfield v. Scully, 241 F.3d 264, 273 (2d Cir. 2001) abrogated on
other grounds by Bruce v. Samuels, 136 S. Ct. 627 (U.S. 2016) (“[D]istrict courts retain
discretion to limit or deny costs based on indigency.”); Flint v. Haynes, 651 F.2d 970,
974 (4th Cir. 1981) (“[T]he taxation of costs is a matter left to the sound discretion of the
district court.”); Lay v. Anderson, 837 F.2d 231 (5th Cir. 1988); Singleton v. Smith, 241
F.3d 534, 539 (6th Cir. 2001) (holding Fed. R. Civ. P 54(d) allows district courts
discretion to deny costs); Rivera v. City of Chicago, 469 F.3d 631, 635 (7th Cir. 2006)
(ruling Fed. R. Civ. P 54(d) allows district courts discretion to deny costs); Lampkin v.
Thompson, 337 F.3d 1009, 1017 (8th Cir. 2006); Draper v. Rosario, 836 F.3d 1072, 1087
(9th Cir. 2016) (“Rule 54(d)(1) . . . ‘vests in the district court discretion to refuse to
award costs.’”); Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180 (10th Cir. 2004)
(affirming discretionary power of court to deny court costs); Harris v. Forsyth, 742 F.2d
1277, 1278 (11th Cir. 1984) (“The decision to enter judgment for costs is clearly
discretionary.”).
44
Fed .R. Civ. P. 54(d) (“Except when express provision therefore is made either
in a statute of the United States or in these rules, costs shall be allowed as of course to
the prevailing party unless the court otherwise directs.”).
42
43

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by saying courts are imposed “unless the court otherwise
directs.”45
Factors Guiding Discretion on Court Costs: Many circuits
have provided further guidance on the exercise of this discretion
by setting forth factors to be considered. Among these are such
factors as the party’s ability to pay court costs, good faith or the
closeness of the merits, and the public importance of the
litigation. For the pro se litigant bringing a civil rights action
against public officers or government entities, these factors are
particularly salient.
Indigency: Some circuits have singled out indigency itself as
a factor the district court should consider. In Singleton v. Smith,
the Sixth Circuit focused the discretion analysis on the poverty of
the party.46 The court outlined several equitable factors that
district courts may apply when evaluating the effect of indigency,
such as the “‘purpose of the rule,’ ‘the litigation history’ of the
party, ‘good faith,’ and ‘the actual dollars involved.’”47 The Eighth
Circuit has also identified indigency of a losing party as an
appropriate factor to consider when assessing court costs.48
Similarly, in Rivera v. City of Chicago, the Seventh Circuit
recognized two situations where the prevailing party may not be
denied court costs under Rule 54(d): when the party seeking court
costs has committed misconduct and when the losing party
is indigent.49 The Seventh Circuit explained that the district court
must make a threshold factual finding that the losing party is
“incapable of paying the court-imposed costs at this time or in the
future.”50 In making this determination, the court should look to
the finances of the losing party: the amount of the costs, the good
faith of the losing party, and the closeness and difficulty of the
issues raised by a case when exercising discretion to deny costs.51
To be sure, “[i]ndigency per se does not automatically preclude
an award of costs.”52 And not every circuit is on the same page in
45
46
47
48
49
50
51
52

Id.
241 F.3d 534, 539 (6th Cir. 2001).
Id. at 540.
Lampkin v. Thompson, 337 F.3d 1009, 1017 (8th Cir. 2006).
469 F.3d 631, 634 (7th Cir. 2006).
Id. at 635 (citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994)).
Id.
Whitfield, 241 F.3d at 270.

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evaluating the significance of indigency as a basis for denying
court costs.
In contrast, the Fourth and Fifth Circuits have invoked policy
reasons for holding that indigent prisoners not be regularly
exempt from paying costs. The Fifth Circuit bemoaned the
“significant increase in the number of pro se, usually prisoner,
civil actions,” the majority of which “are without even arguable
legal footing.”53 The court therefore reasoned that “[t]axing costs
against an unsuccessful in forma pauperis litigant at the
conclusion of his appeal is one way to defray the judicial and
social burden imposed by these lawsuits.”54 Likewise, the Fourth
Circuit insisted that the assessment of costs against indigent
plaintiffs merely requires them to do what non-indigent plaintiffs
must do––“decide whether their claim is ‘worth it.’”55 Otherwise,
indigent plaintiffs will have “virtually ‘nothing to lose and
everything to gain.’”56
Neither the Fourth nor the Fifth Circuit addressed the “good
faith” or “closeness” of the merits factor that was set out by the
Sixth and Seventh Circuit, by which an indigent litigant would be
spared the burden of court costs only for non-frivolous claims that
proved to be difficult on the merits.57
One circuit has ruled that indigency is indeed an automatic
factor in a particular context. In Maida v. Callahan, the Second
Circuit held that “when the United States is a party to a
proceeding, no costs can be taxed in favor of or against an in
forma pauperis litigant.”58 The court observed that indigent
plaintiffs who proceed under 28 U.S.C. §1915(f) are prevented
from recovering costs against the United States if they are the
prevailing party.59 Similarly, the Third Circuit in Souder v.
McGuire60 and James v. Quinlan61 held that when the United
States or its officers are involved, costs will not be imposed
53
54
55
56
57
58
59
60
61

Lay, 837 F.2d at 232.
Id. at 232–33.
Flint, 651 F.2d at 974.
Id.
See supra notes 46-51 and accompanying text.
148 F.3d 190, 193 (2d Cir. 1998).
Id. at 193.
516 F.2d 820 (3d Cir. 1975).
886 F.2d 37 (3d Cir. 1989).

12 COURT COSTS AND PRO SE CIVIL RIGHTS

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against in forma pauperis appellants. In affirming the “‘consistent
and longstanding policy’ of not taxing costs in favor of or against
the United States in in forma pauperis appeals,”62 the Third
Circuit explained that since the United States is not entitled to
pay costs if it loses under Rule 39(b), neither is it entitled to
recover costs if it wins.63
Public Interest: Beyond indigency, other circuits have put
public interest concerns in the forefront of court costs analysis. In
Draper v. Rosario, the Ninth Circuit applied its court cost
analysis where a prisoner brought a § 1983 action asserting
Eighth Amendment excessive force claims against correctional
officers.64 The court identified several overlapping and
appropriate reasons for denying court costs: (1) the substantial
public importance of the case, (2) the closeness and difficulty of
the issues in the case, (3) the chilling effect on future similar
actions, (4) the plaintiff's limited financial resources, and (5) the
economic disparity between the parties.65 Importantly, the court
noted that this is not an exhaustive list but a “starting point for
the analysis.”66
The Tenth Circuit followed suit in Rodriguez v. Whiting
Farms, Inc., holding that the presumption of awarding courts
costs to the prevailing party will be awarded may be overcome by
the non-prevailing party.67 In Shapiro v. Rynek, a district court in
the Tenth Circuit considered a suit by a prisoner against two
prison guards, alleging that one of them was responsible for group
strip searches in front of other prisoners in violation of the Fourth
Amendment.68 Applying the rules articulated by the Tenth
Circuit in Rodriguez, the district court found that it would not
exceed its discretion by denying court costs where (1) the
prevailing party was obstructive and acted in bad faith during the
course of litigation; (2) only nominal damages were awarded; (3)
the issues were close and difficult; (4) the costs were

62
63
64
65
66
67
68

James, 886 F.3d at 41.
Id. at 40.
836 F.3d 1072 (9th Cir. 2016).
Id at 1087.
Id.
360 F.3d 1180, 1189 (10th Cir. 2004).
250 F.Supp.3d 775 (D. Colo. 2017).

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13

unreasonably high or unnecessary; or (5) the non-prevailing party
was indigent.69
While the First Circuit has not addressed the issue of court
costs in suits involving a public defendant, the court has provided
guidance on denying costs to the prevailing party in private suits.
Mirroring the Second, Eighth, Ninth, and Tenth Circuits, the
First Circuit held that a district court has discretion to award or
not award costs, but must articulate its reasons for doing so “if
the basis for denying costs is [not] readily apparent on the face of
the record.”70 The First Circuit has also stated more generally
that “the exercise of authority to tax costs under Rule 54(d) is
discretionary when IFP [in forma pauperis] status is involved.”71
In court cost decisions, these courts affirming discretion to
deny courts in indigency and public interest settings have placed
the burden on the non-prevailing party to show why costs should
not be awarded against them.72 Furthermore, “[i]n light of the
general rule, when a prevailing party is denied costs, the district
court must articulate its reasons for doing so.”73

Id. at 779 (citing Rodriguez, 360 F.3d at 1190).
In re Two Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation,
994 F.2d 956, 963 (1st Cir. 1993).
71
Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir. 1988).
72
See Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001); Rivera v. City of
Chicago, 469 F.3d 631, 634 (7th Cir. 2006); Thompson v. Wal-Mart Stores, Inc., 472
F.3d 515, 517 (8th Cir. 2006); Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir.
2016); Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1189 (10th Cir. 2004).
73
Whitfield, 241 F.3d at 270; see also Thompson, 472 F.3d at 517; Rodriguez, 360
F.3d at 1190.
69
70

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II. The Ethical Duty of Government Law
Officers to Honestly Reveal Public Policy
Exceptions to Awards of Court Costs
For a government legal officer to declare to a civil rights
plaintiff that he or she will suffer the financial detriment of court
costs upon losing the case is at best misleading and at worst an
outright falsehood. Pressing upon an unrepresented party a
narrative of financial disaster in the wake of a judgment of costs
crosses the ethical line into offering improper legal advice. And
the lawyer who appears on behalf of the public has a higher
standard of candor and civility, mandating disclosure that any
award of court costs remains subject to the discretion of the court
and may be reduced or eliminated for public policy reasons.74
The Lawyer’s Duty of Fundamental Honesty: While the
lawyer’s primary ethical responsibilities are directed to clients,
the lawyer has defined ethical duties to others, including a duty
of fundamental honesty.75 Under Rule 4.1(a) of the Model Rules of
Professional Conduct, a lawyer is prohibited from making “a false
statement of material fact or law” to a person other than a
client.76 As one court has put it, “[i]t is the responsibility of every
attorney at all times to be truthful.”77
To be sure, under Rule 4.1(a), the lawyer’s duty is to be
honest, not necessarily to be transparently candid (although, as
explained below,78 candor indeed is expected of government
lawyers). In distinguishing being truthful from being candid,
Professor Bruce Green explains that to “make a false statement is
to lie, but to withhold relevant information—to fail to be candid—
is to be reticent.79
Does a government lawyer’s forecast of an award of court costs
against a civil rights plaintiff, without revealing the discretionary
nature of such an award, qualify as a “false statement of material
See supra Part I.
On the lawyer’s ethical duty of truthfulness, see generally GREGORY C. SISK,
LEGAL ETHICS, PROFESSIONAL RESPONSIBILITY, AND THE LEGAL PROFESSION § 4-11.2, at
658-63 (2018).
76
MODEL R. PROF’L CONDUCT 4.1(a) (ABA 2020).
77
In re Kahil’s Case, 773 A.2d 647, 648 (N.H. 2001).
78
See infra notes 93 to 98.
79
Bruce A. Green, Candor in Criminal Advocacy, 44 HOFSTRA L. REV. 1105, 1108
(2016).
74
75

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. . . law” or instead slide past an ethical breach as a permissible
failure to volunteer information? While one might imagine a
cynical reference to court costs that touches so lightly on the
subject as to avoid being dishonest, the lawyer who refers to such
an award as a genuine risk to the plaintiff without also disclosing
its contingent nature engages in “outright dishonesty regarding a
material element” of the subject being raised.80 As noted in
Comment 1 to Rule 4.1, “[m]isrepresentations can also occur by
partially true but misleading statements or omissions that are
the equivalent of affirmative false statements.”81 The lawyer
would be raising the prospect of court costs for the very purpose of
cajoling the plaintiff to act on the risk by surrendering the civil
rights claim, thus inducing material reliance. Omitting the
crucial element that such an award remains discretionary is
anything but honest.
In fact, under Rule 4.1(b), the lawyer is forbidden to remain
silent when failure to disclose “a material fact” would assist a
criminal or fraudulent act by the client.82 If a government lawyer
effectively blackmails a pro se litigant into abandoning a civil
rights claim by the dishonest suggestion that a substantial award
of costs is automatic, the deliberate refusal to disclose the nature
of judicial discretion verges on a fraudulent exaction.
Notably, Rule 4.1(a) prohibits not only false statements of fact,
but material false statements of law.83 For that reason, as stated
in a legal ethics treatise, “the statements about the law that fall
within this prohibition presumably are those that are concrete in
expression and that can be objectively evaluated as actually true
or false.”84 Moreover, as the American Bar Association’s
Committee on Ethics and Professional Responsibility has opined,
“a lawyer would not violate this rule by making “overstatements

SISK, supra note 75, § 4-11.4(b), at 660.
MODEL R. PROF’L CONDUCT 4.1 cmt. 1 (ABA 2020).
82
MODEL R. PROF’L CONDUCT 4.1(b) (ABA 2020).
83
See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1064 (9th Cir. 2007)
(saying that letters by counsel advising an unrepresented defendant employer that it
had “no bona fide defense” to a disability discrimination action, “when in fact this might
not be true in a particular case,” was a “possibly false statement of law” in violation of
Model Rule 4.1).
84
SISK, supra note 75, § 4-11.4(b), at 661.
80
81

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or understatements of the strengths or weaknesses of a client’s
position in litigation or otherwise.”85
Nonetheless, that an award of costs is committed to the
discretion of the presiding judge is an objectively verifiable
statement of the law. And, depending on the federal jurisdiction,
the law is increasingly clear that such discretion may be guided
by considerations of public policy. The government lawyer who
aggressively insists that such an award is inexorable should not
find any shield in the excuse that he or she was advocating a legal
position with acceptable hyperbole.
The Prohibition on Legal Advice to an Unrepresented
Party: When the civil rights plaintiff is pro se, the government
lawyer is also constrained by ethical limits on communications
with an unrepresented party.86 Under Rule 4.3 of the Model Rules
of Professional Conduct, a lawyer shall not “shall not give legal
advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably should know
that the interests of such a person are or have a reasonable
possibility of being in conflict with the interests of the client.”87
That Rule 4.3 is implicated here is plain, as the government
lawyer representing a public entity or official in a civil rights case
obviously has interests that are directly in conflict with the
interests of the civil rights plaintiff.
As said by one leading commentator on Rule 4.3 as applied to
lawyer negotiation of settlement with pro se civil litigants:
The prohibition of advice-giving significantly limits
permissible attorney behavior in the context of
negotiations. An attorney must refrain from giving
legal advice, but must also refrain from suggesting a
proposed course of action to the unrepresented
adversary. The attorney must not mislead the
unrepresented person, and must refrain from
overreaching.88

ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-439 (2006).
On the ethical duties of a lawyer communicating with an unrepresented
person, see generally SISK, supra note 75, § 4-11.4, at 675-78.
87
MODEL R. PROF’L CONDUCT 4.3 (ABA 2020).
88
Engler, supra note 32, at 82.
85
86

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17

Now, this prohibition on offering legal advice to a pro se
opponent does not prevent the government lawyer from
advocating on behalf of the public client, including attempting to
dissuade the pro se plaintiff from proceeding or negotiating a
settlement of the dispute. Comment 2 to Model Rule 4.3 states:
So long as the lawyer has explained that the lawyer
represents an adverse party and is not representing
the person, the lawyer may inform the person of the
terms on which the lawyer’s client will enter into an
agreement or settle a matter, prepare documents that
require the person’s signature and explain the
lawyer’s own view of the meaning of the document or
the lawyer’s view of the underlying legal obligations.89

As with any defense lawyer facing a pro se plaintiff, the
government lawyer in a civil rights case may advance the
considered position of the government defendant, including
“express[ing] a legal opinion or advocat[ing] the client’s position
concerning the obligations or direction of the law.”90 But, as
discussed above91 and below,92 expressing or advocating a legal
viewpoint may not include false statements of the law or lack of
public-regarding candor, such as that imposition of costs is an
automatic rule without qualification.
More directly, the government lawyer would violate Rule 4.3 if
that client-centered argument included individually-tailored legal
advice, even though couched in terms of zealous advocacy. While
the government lawyer may suggest the possibility, even perhaps
the probability, of an award of court costs, subject to the court’s
discretion, the government lawyer may not properly advise on the
detrimental effects of such an award to the plaintiff’s life,
employment prospects, or financial security. When the
government lawyer transitions from speaking, with appropriate
clarity and qualification, about the potential cost award itself to
warning about the consequences that may be visited personally
on the pro litigant, the lawyer moves from advocacy to counseling.
Indeed, it is precisely such conflict-infected advice to an
unrepresented opponent that Rule 4.3 was designed to prevent.
89
90
91
92

Id. cmt. 2.
SISK, supra note 75, § 4-11.4(c), at 676.
See infra notes 75 to 85.
See infra notes 93 to 98.

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The Government Lawyer’s Higher Standard of Candor
and Civility: Finally, a government lawyer is not an ordinary
member of the legal profession, both by reason of the role to
pursue justice and by nature of the client as a public institution.
A lawyer for a government agency or official truly acts as an
officer of the court with a special responsibility for the public
interest. As Professor Bruce Green has written, no less than the
duty of prosecutors to “seek justice” in criminal cases, government
lawyers in civil litigation have a “distinctive professional role.”93
Just as the client government agency or official “owes
fiduciary duties to the public,” the government lawyer “owes some
derivative duties to the public.”94 Moreover, a government lawyer
engages in outrageously discriminatory conduct if attempting to
leverage the opposing party’s financial destitution to gain a
litigation advantage, as “the Constitution forbids punishing
people simply on account of their poverty.”95 The government
lawyer should not “engage in every method permitted by law to
prevail in litigation.”96 The “power imbalance between an
attorney, presumably very familiar with the law and the legal
system, and an unrepresented person, potentially unfamiliar with
the system and legally unsophisticated,”97 rises exponentially
when the lawyer is also a government official speaking with the
presumed imprimatur of a state institution.
Defining that “higher standard” for a government lawyer,
Judge Patricia Wald has articulated the five “C’s”: a higher level
of competence, greater candor, credibility by virtue of the
attorney’s confidence in the position advocated, a greater concern
for civility, and consistency in government positions taken before
the courts.98
Bruce A. Green, Must Government Lawyers “Seek Justice” in Civil Litigation?,
9 WIDENER J. PUB. L. 235, 239-40 (2000). But see Catherine J. Lanctot, The Duty of
Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest
Questions, 64 S. CAL. L. REV. 951, 957-58 (1991) (arguing that “the government lawyer
may represent the government client the same way that a private lawyer represents a
private client”).
94
Green, supra note 93, at 269-70.
95
Brandon L. Garrett, Sara S. Greene & Mark K. Levy, Foreword: Fees, Fines,
Bail, and the Destitution Pipeline, 69 DUKE L.J. 1463, 1463 (2020).
96
Id. at 270-74.
97
Engler, supra note 32, at 101.
98
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61
93

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In addition to the questionable civility of a government lawyer
engaging in an apparent shakedown of a civil rights plaintiff by
threatening imposition of court costs, the greater expectation of
candor is directly activated here. It simply is not honest for a
government lawyer representing the public to warn a civil rights
litigant, pro se or not, about the burdens of an award of court
costs, without also explaining that the award is discretionary
with the court, such as for reasons of poverty and public policy.
Even should the lawyer who makes an unqualified threat evade
the more limited strictures of honesty placed by Rule 4.1, the
heightened duty of candor for a government lawyer should make
such a resort to intimidation unthinkable.
In sum, disclosure that an award of court costs is discretionary
and may be subject to poverty and public policy limits is ethically
required and honorably demanded for the government lawyer.
Indeed, failure to do so is compelling evidence of bad faith, which
itself is a basis for denying an award of court costs.

Conclusion
The federal courts rightly insist on higher standards of
behavior for those lawyers privileged to represent the public as
government legal officers. And those lawyers who fail to uphold
that public-regarding expectation should be held accountable.
Indeed, one federal court of appeals issued a published opinion in
an otherwise routine ruling to counter the “remarkable” assertion
“that government attorneys ought not be held to higher standards
than attorneys for private litigants.”99 The longstanding principle
that prosecutors have greater ethical obligations “appl[ies] with
equal force to the government’s civil lawyers.”100
Whether to impose court costs on non-prevailing civil rights
plaintiffs falls within the sound discretion of the court, which
properly may take into account the poverty of the pro se litigant
and the public importance of a civil rights claim. While a
presumption in favor of costs against the losing party may
persist, imposing the full burden of costs is not automatic.
LAW & CONTEMP. PROBS. 107, 109-10, 119-27 (Winter 1998).
99
Freeport-McMoRan Oil & Gas Co. v. FERC 962 F.2d 45, 46 (D.C. Cir. 1992).
100 Id. at 47.

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A government lawyer should not falsely assert the
inevitability of potentially crippling financial costs in an attempt
to bludgeon a civil rights plaintiff into abandoning a claim.
Especially when the civil rights plaintiff is acting without the
benefit of counsel, the government lawyer has both an ethical
duty and a public-regarding responsibility to be truthful and not
to mislead the unrepresented plaintiff, who of course is also a
member of that same public to which the government agency has
fiduciary responsibilities.
The government lawyer who is necessarily dealing with a pro
se litigant of course may negotiate resolution of a civil dispute,
including asserting that the plaintiff’s case lacks merit and
should be voluntarily dismissed and suggesting that court costs
may be imposed if the plaintiff fails to win a judgment against the
government defendant. As a matter of expected candor from a
government legal official, as well as an ethical duty not to mislead
or provide improper legal advice to an unrepresented opponent,
the government lawyer must also acknowledge that awards of
costs are a matter of discretion and may be reduced or excused for
public policy reasons. Anything less is a breach of ethical and
public responsibility for any legal officer who is entrusted to
speak as a lawyer on behalf of the public. And the government
lawyer may never advise the pro se litigant by foretelling
economic catastrophe or employing other scare tactics.