By Alison Buchanan
For a variety of reasons, and in a variety of practice areas, many lawyers encounter self-represented litigants on a regular basis. Whether the person decided to go it alone from the inception of the matter or has discharged counsel (or had counsel withdraw) for some reason during the pendency of the matter, the issues that arise are similar.
Self-represented litigants can be challenging for a lawyer to work opposite, as they are often unfamiliar with the law and the courts. They may not be dissuaded by factual or legal impediments to their cause. They can be unsympathetic to a lawyer’s own ethical constraints. They may ask the lawyer for legal advice. They sometimes make threats that can be, at a minimum, disconcerting. They may seek media attention or attempt to publicly embarrass a lawyer or client. And they may attempt ex parte communications with the court.
In such instances, a lawyer’s conduct is still governed by the Rules of Professional Conduct. But that reminder, by itself, is an oversimplification. Litigating against, or even alongside, self-represented litigants can present unique ethical challenges. Understanding the ethical challenges that most commonly arise from dealing with self-represented litigants, and even anticipating them, can help a lawyer avoid them.
Complying with Rule 4.3 and Avoiding the Accidental Client
One of the most common and significant ethical issues when dealing with a self-represented litigant is the potential for confusion about whom the lawyer represents (and does not represent). A lawyer’s response to seemingly innocuous questions from a self-represented litigant can be perceived, or later misconstrued, as providing legal advice and potentially creating an attorney-client relationship. The possible ramifications for this can include the existence of a conflict resulting in disqualification, exposure to liability for malpractice or breach of fiduciary duty, and discipline.
Rule 4.3 of the California Rules of Professional Conduct provides guidance and governs a lawyer’s communications with unrepresented persons. Specifically, Rule 4.3 provides, in part, that when communicating with an unrepresented person on behalf of a client, a lawyer is prohibited from stating or implying that the lawyer is disinterested. Moreover, when communicating with an unrepresented person on behalf of a client, if the lawyer knows (or should know) that the unrepresented person incorrectly believes the lawyer is disinterested, the lawyer “shall make reasonable efforts to correct the misunderstanding.”
Thus, when a self-represented litigant asks a lawyer questions, the lawyer should be careful to clarify that the lawyer does not represent the self-represented litigant, is not disinterested, and, in fact, represents that person’s adversary. Doing so consistently, and in writing, will help the lawyer later establish compliance, if necessary.
Remaining Professional and Civil
While it is always important for a lawyer to maintain one’s professionalism and civility, it is perhaps even more so when dealing with a self-represented litigant. Though a lawyer may be frustrated by a tenacious, accusatory, or ill-informed self-represented litigant, courts generally expect lawyers to maintain their professionalism in those frustrating circumstances.
As an example, in October 2015, the Santa Clara County Bar Association revised its Code of Professionalism. The revisions included adding references to self-represented litigants so that the Code affords self-represented litigants the same courtesies and professionalism as opposing counsel (i.e., Section 3 – Scheduling, provides in pertinent part, “[a] lawyer should notify opposing counsel, self-represented litigants, and, if appropriate, the court or other tribunal as early as possible when scheduled meetings, hearings or depositions must be cancelled or rescheduled and provide alternate dates when possible.”)
Communicating with the Client About Fees
A lawyer shall keep clients reasonably informed about significant developments relating to the representation (See Rule 1.4(c)). Because litigating opposite a self-represented party can, often, significantly increase fees charged to the client, it may be appropriate to forewarn the client of that fact.
For example, particularly tenacious self-represented litigants may be unpersuaded by the facts or law applicable to their matter. This dogged persistence can result in the lawyer opposite the self-represented litigant spending significant time and resources addressing inadmissible evidence, inapplicable law, and possibly other red herrings. The additional time and resources can be substantial and, most often, will be passed along to the client. While a lawyer may be mindful of this situation and seek to curb the additional fees, doing so may not be possible. In such situations, a lawyer should make sure to communicate with the client, in compliance with Rule 1.4(c), so that the client is aware of the circumstances resulting in higher fees and is not surprised by a larger than expected invoice.
The best way for a lawyer to avoid ethics issues when dealing with self-represented litigants is to be aware of what issues are most common and to be diligent in addressing those issues. Maintaining boundaries (to avoid an “accidental client”), acting civilly (even in the face of uncivil conduct), and actively communicating with the lawyer’s client will ensure the lawyer’s compliance with ethical obligations notwithstanding the challenges inherent in dealing with a self-represented litigant.
Alison Buchanan is Shareholder and General Counsel with Hoge, Fenton, Jones & Appel, in San Jose, California. She is the Chair of the CLA’s Ethics Committee and is a Certified Specialist in Legal Malpractice Law, as certified by the State Bar’s Board of Legal Specialization. The views expressed herein are her own.