GPSolo Magazine - October/November 2005

Learning to Live with Pro Se Opponents

You know the type. As his pen hovers over the signature line on the settlement agreement, he suddenly has a zillion questions: “So this is the best I can do on alimony, right? I mean, I want to be fair, but no sense giving away the farm if I don’t have to. What happens if I get downsized and can’t afford to pay this?”

Typical nervous patter; the kind you’d hear from anyone who realizes that he is a signature away from one of life’s major milestones.

But this guy’s cold feet mean a wave of heartburn for you—you represent his wife!

As a general practitioner handling civil matters for people with moderate incomes, you often deal with unrepresented adverse parties. But times have changed—maybe it’s the proliferation of courtroom shows on TV, where pro se litigants are allowed to duke it out (sometimes literally) for the judge’s attention. Maybe it’s the Internet and the rising number of courthouse self-help centers where there’s abundant information for folks who believe they can save a bundle by handling legal matters themselves. Maybe there really is a shortage of lawyers willing to handle small-stakes matters at rates most Americans can afford.

Whatever the reason, lawyers handling domestic, landlord/tenant, and small-stakes civil matters are increasingly challenged by adverse parties who have decided to go it alone. General practice lawyers, solos, and small firm practitioners by their very nature see more than their share of pro se litigants.

The National Center for State Courts estimates that one-third of cases in lower-level trial courts in this country are conducted with at least one unrepresented party. That constitutes a 10 percent increase in such matters since the 1970s. The statistics are particularly shocking for domestic relations matters. Judges handling divorce cases in Arizona and Florida estimate that 80 percent of their cases involve at least one self-represented party.

What’s the Big Deal?

Maybe it’s unfair to call the rise in the number of pro se litigants a “problem.” After all, people in this country have a constitutionally guaranteed right to self-represent. The more people learn about the law, their rights, and the system of justice, the better—right?

Maybe. Unfortunately, from a lawyer’s perspective, opposing a pro se litigant often means additional headaches. Lawyers complain that pro se litigants don’t know or follow court rules, don’t understand or obey the law, and, worse, that judges give them unfair leeway. Undoubtedly our perception of the problems posed by pro se litigants is colored by traditional legal training, resistance to change, and economic self-interest. Those biases aside, however, lawyers may legitimately find that dealing with a pro se litigant poses special ethical challenges.

What Rules Apply?

The rules of professional conduct apply to lawyers. They are not enforceable as to pro se litigants. This basic fact of life can pose problems for lawyers, who are accustomed to situations in which both sides play by the same rules. Some lawyers even believe that the lack of a set of ethics rules binding pro se litigants creates an unfair playing field in favor of the pro se party.

But a few words of advice for any lawyer harboring a grudge against pro se litigants for their perceived advantage in the system: Get over it. Nonlawyers attempting to negotiate the maze of the judicial system face a tremendous disadvantage. They don’t speak the language of legalese, they are often unaware of local court rules and procedures, and they lack the legal skill and training we all take for granted. Any advantage a self-represented litigant gains from the lack of a system of ethics cannot compensate for these disadvantages.

The pro se litigant is bound by the rules that govern a tribunal. Unfamiliarity with court rules can have devastating consequences for a pro se litigant. Rules of court can impose requirements that, if not complied with, may result in a pro se litigant’s having pleadings rejected for filing or having a case be dismissed or never reach a calendar.

Ethics issues raised by dealing with pro se litigants typically involve Rules 4.3, 1.7, 3.3, 3.4, and 3.5 of the ABA Model Rules of Professional Conduct, as well as generally accepted (though nonbinding in a disciplinary sense) rules of professionalism. Before you undertake your next case against a pro se litigant, be sure to review the rules of professional conduct that apply in your jurisdiction. You may recognize familiar situations in the following discussion of the relevant rules:

 

  • Rule 4.3 prohibits a lawyer from giving legal advice to the unrepresented person on the other side of a case, except for the advice to obtain counsel. The rule also requires a lawyer to correct any misunderstanding an unrepresented person may have about the lawyer’s role in the matter or the lawyer’s impartiality.
  • Rule 1.7 prohibits a lawyer from undertaking representation that involves a concurrent conflict of interest.
  • Rule 3.3 provides in part that a lawyer must disclose to a tribunal legal authority in the jurisdiction known to be adverse to the position of the client.
  • Rule 3.4 requires a lawyer to comply with obligations imposed by the rules of a tribunal.
  • Rule 3.5 prohibits ex parte communication with a judge, juror, or other official during a proceeding. It also prohibits a lawyer from engaging in conduct “intended to disrupt a tribunal.”
  • Many tribunals and bar organizations have adopted voluntary codes of professionalism to govern lawyer conduct. These rules, while not enforceable through the disciplinary process, seek to elevate the level of professionalism of the bar by setting aspirational goals for attorney conduct.

But Everybody Yells on “Judge Judy”. . .

Ever watch any of those “reality” court shows on TV? The judge acts as the referee in a shouting match between the plaintiff and the defendant. The camera seems to encourage rudeness, snide commentary, constant interruption, and baiting the various parties—and that’s from the judge.

If you encounter the pro se litigant whose sole purpose in self-representation is to vent his frustration with your client, you’ll find your presence is only a further frustration to that end. Outside the courtroom, the adverse party continues to call, write, and threaten your client despite your entry of appearance. In the courtroom, the pro se litigant is eager to subject your client to a cross-examination that is more like a family argument.

You have several options for working with the pro se opponent who has confused courtrooms on television with real life. First, have a frank conversation with your client, stressing the importance of your client’s refusing to react to inappropriate baiting or remarks by the pro se litigant. Encourage the client to allow you to do the talking. In a domestic case or any personal situation where the adverse party’s conduct is harassing, seek a protective order. In court, repeatedly insist on sticking to the issues at hand. Address comments to the judge rather than to the opponent directly.

Whatever you do, don’t deal with a bully by becoming a bully yourself. It’s unprofessional, and the court won’t be happy with a lawyer who engages in hardball tactics with a pro se.

But the Lawyer Said . . .

It’s impossible to settle a case without talking to the other side, and it’s hard to negotiate with a self-represented person without at least explaining your proposal. But how can you go about resolving a dispute with a self-represented person without running afoul of Rule 4.3? Can you take steps to minimize the pro se party’s confusion about his or her role?

Some relief is available in the distinction between legal information and legal advice. Legal information is a factual statement that requires no interpretation—what a particular statute says, or what a court’s procedural rules require. Legal advice, on the other hand, is an opinion—an interpretation based upon the lawyer’s knowledge, experience, and training.

So, although you will not violate Rule 4.3 by telling a pro se opposing party what the court’s child support guidelines are, you will violate it when you opine on how the judge might vary from those guidelines in light of the particular facts of the case.

Lawyers dealing with pro se litigants walk a fine line in negotiating. If the pro se is completely distrustful of the lawyer, the chances of settlement are nil. On the other hand, you will make a mistake by “buddying up” to a pro se opponent. The pro se party may become confused about your role, and it is not uncommon for pro se litigants to file a disciplinary grievance against opposing counsel, claiming they received bad legal advice or were misled into signing a settlement agreement.

If you end up in this situation, explain to the pro se litigant that you represent only the adverse party. It’s best to require the pro se party to sign a simple form verifying that he or she clearly understands who the lawyer represents, did not obtain any legal advice from the lawyer, and was told by the lawyer to hire personal counsel. Document all disclaimers and warnings in writing as insurance in the event of a bar grievance.

I Can’t Figure Out Why We Haven’t Gotten a Trial Date . . .

Often, opposing pro se parties have trouble figuring out the system. What are your obligations here? Do you really have to tell your opponent that his case will be dismissed if he doesn’t file a response to your motion for summary judgment? Do you have to point out the provision in the local rules that tells him how to get the case scheduled for hearing, or can you just let the lawsuit against your client languish until you can get it dismissed for lack of prosecution?

Aside from Rule 3.3, which does require a lawyer to disclose controlling adverse legal authority, the ethics rules do not impose any requirement on a lawyer to help the other side present its case. Some jurisdictions do impose special requirements upon counsel opposing a pro se litigant, typically those involving local rules of court.

It’s Not Fair!

Judges and court personnel have grown increasingly accustomed to dealing with pro se litigants. Many courts now have assistance plans ranging from self-help kiosks to clinics staffed by lawyers offering “unbundled services.” Courts offer simple and standardized forms—checklists that include all legal defenses to an eviction warrant, for example. The court’s more helpful approach to dealing with pro se parties may also include ignoring technical mistakes in pleadings and relaxing rules regarding admission of evidence in a trial.

Some lawyers mistakenly react to this softer stance by becoming more informal themselves. Wrong—you’re a lawyer. The court will still expect you to lay the proper foundation for admission of evidence and to conduct yourself according to professional standards.

If you think the court has gone too far in forgiving the pro se litigant’s errors, point it out. The court is required only to give a fair hearing to a litigant, not to take on the role of counsel to the unrepresented.

As to the pro se phenomenon itself—you may as well get used to it. The bar can no longer keep the courthouse “members only.” There’s little to be gained from complaining about pro se litigants’ burdening the system and opposing counsel. Focus, instead, on making it as easy as possible for litigants to represents themselves—it doesn’t have to cost your client a thing.

 

Paula J. Frederick is deputy general counsel for the State Bar of Georgia. She can be reached at paula@gabar.org.

 

 

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