Dealing With Self-Represented Litigants

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 paralegals: 

  • 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 representation.

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.