Unrepresented litigants: Obligations of the lawyer

The Law Society of Upper Canada, the governing body for lawyers and paralegals in Ontario, recently provided an e-bulletin to assist lawyers who are dealing with self-represented litigants on the other side in a case.

The information it contains is helpful to anyone working with women who are unrepresented or with women who have lawyers and whose partners are unrepresented, as it clearly sets out the obligations of the lawyer:

Managing a file with a self-represented opposing party can be challenging. In some cases, misunderstandings, protracted proceedings, and additional expense to the lawyer’s client may result. The Rules of Professional Conduct (the “Rules”) define how a lawyer acting as an advocate must deal with self-represented (unrepresented) litigants.

When a lawyer acting for a client is dealing with a self-represented person, the lawyer must ensure that the self-represented person does not think or infer that the lawyer is also acting for him or her. Subrule 2.04(14) of the Rules requires lawyers to:

• Urge the unrepresented person to obtain independent legal representation;
• Take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and
• Make clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client and accordingly his or her comments may be partisan.

To manage risk, the lawyer should consider confirming these communications with the self-represented party in writing and, depending on the circumstances, may wish to have a witness present if the lawyer is meeting with the self-represented party.

A lawyer must be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings, including self-represented litigants, pursuant to subrule 6.03 of the Rules. In this regard, lawyers must:

• Agree to reasonable requests concerning trial dates, adjournments, and the waiver of procedural formalities, provided that there is no prejudice to the rights of the client;
• Avoid sharp practice and not take advantage or act without fair warning upon slips, irregularities, or mistakes on the part of the other party unless the slip, irregularity, or mistake goes to the merits or involves the sacrifice of a client’s rights; and
• Not communicate with a self-represented litigant in a way that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

Subrule 4.01(2)(h) of the Rules provides that the lawyer cannot deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opposing party. When an opposing party is self-represented, it is more likely that he or she will fail to advise the tribunal of such authorities due to lack of legal expertise. The lawyer must be vigilant in these circumstances to comply with his or her obligations to the tribunal.