Managing a file with a self-represented (unrepresented) opposing
party can be challenging – in some cases, misunderstandings, protracted
proceedings, and additional expense to the lawyer or paralegal’s client result. The Rules of Professional Conduct
(lawyers’ Rules) and Paralegal Rules of Conduct (Paralegal Rules) define how a lawyer
or paralegal acting as an advocate must deal with self-represented litigants.
When a lawyer or paralegal acting for a client is dealing
with a self-represented person, the lawyer or paralegal must ensure that the
unrepresented person does not think or infer that the lawyer or paralegal is
also acting for the unrepresented person. Rule 7.2-9 of the lawyers’ Rules requires that lawyers and rule
4.05 of the Paralegal Rules require that
- 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 or paralegal; and
- make clear to the unrepresented person that the
lawyer or paralegal is acting exclusively in the interests of the client and
accordingly his or her comments may be partisan.
Although not required by the lawyers’ Rules or the Paralegal Rules, it is a best
practice to urge the unrepresented person to obtain independent legal
To manage risk, the lawyer or paralegal should also consider
confirming these communications with the unrepresented party in writing and,
depending on the circumstances, may wish to have a witness present if the
lawyer is meeting with the unrepresented party.
Lawyers and paralegals must be courteous, civil, and act in
good faith with all persons with whom they have dealings, including
self-represented litigants, pursuant to rule 7.2-1 of the lawyers’ Rules and rule 2.01(2) of the Paralegal Rules. In this regard, lawyers and paralegals must:
- agree to reasonable requests concerning trial dates,
adjournments, and the waiver of procedural formalities, and similar matters
provided that there is no prejudice to the rights of the client [rule
7.2-1.1 of the lawyers’ Rules; subrule 7.01(2) of the Paralegal Rules];
- 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 or paralegal [rule 7.2-4 of
the lawyers’ Rules; subrule 7.01(3) of the Paralegal Rules].
Subrule 5.1-2(h) of the lawyers’ Rules and clause 4.01(5)(d) of the Paralegal Rules provide that lawyers and paralegals 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 opponent. When an adversary is self-represented, it is
more likely that the adversary will fail to advise the tribunal of such
authorities due to lack of expertise.
The lawyer or paralegal must be vigilant in these circumstances to
comply with his or her obligations to the tribunal.