David Versus Goliath – Lawyer’s Professional Responsibility & Self-Represented Litigants

Author: Gurinder Gujral Guest Blogger

The story of “David and Goliath” is a part of our cultural consciousness. Generally, the biblical tale is told as follows: a young shepherd battles a giant warrior and, using only a slingshot, comes out victorious. Today, the phrase “David and Goliath” represents a more secular meaning as a metaphor for improbable victories by a weaker party, better known as the “underdog”. A quick glimpse at popular culture illustrates that this “underdog phenomenon” has generated mass appeal – but why? Some scholars have said it is because the underdog story gives us hope for a fair and just world. However, as much as we would like to believe the outcomes in Legally Blonde, Braveheart and Rocky, real-world battles are rarely won by the ragtag team of underdogs.

In our Canadian justice system, self-represented litigants (“SRLs”) are arguably the underdogs since they face a host of obstacles including large financial costs and unnecessarily complicated processes. Accordingly, as the number of people representing themselves continues to grow, it is important to establish a commitment to respectful behaviour towards SRLs in the Model Code of Professional Conduct, in order to ensure fair and equal access to justice. [1]

The importance of regulatory reform was apparent on March 14, 2016, when the University of Ottawa hosted its first-ever “Bring a Self-Represented Litigant to School Day” event. In an attempt to build awareness among law students of the realities faced by SRLs, I was responsible for coordinating a panel discussion between six SRLs. Through my interactions, I learned about many of the same problems discussed in Professor Julie Macfarlane’s research, including the uncivil conduct of opposing lawyers. Although, a few SRLs spoke about the helpfulness of opposing counsel – the vast majority described stereotypical legal tactics, such as burying them in paperwork, cancelling last minute, threatening them with costs, and refusing information. Many SRLs even felt bullied by lawyers who acted as it they were above the rules.[2] Such conduct by opposing counsel has been linked to a range of negative consequences experienced by SRLs, including the depletion of personal funds, various health issues and even instability or loss of employment.[3] Accordingly, the Law Society needs to recognize this social problem and provide guidance to lawyers when dealing with SRLs.

The current rules in the Model Code of Professional Conduct do not account for important contextual differences between lawyers and SRLs, and consequently negatively impact the legal profession. For instance, currently the Federation of Law Societies of Canada (the “Federation”) has a blanket requirement for lawyers to treat everyone, including SRLs, politely and essentially in the same courteous manner as they would treat a fellow lawyer.[4] Accordingly, it can be argued that the experiences reported by SRLs are merely reactions to the inherently adversarial nature of the legal profession. Similarly, it can be argued that SRLs should not mistake a lawyer’s duty to advocate for their client as incivility. Such arguments are irrelevant and fail to address the problem, which is SRLs’ experiences to this type of behaviour by opposing counsel raises public anger around access to justice. Accordingly, each law society needs to provide clear guidance to lawyers on how to deal with SRLs, as they are inherently different then a fellow lawyer.

Currently, the Model Code of Professional Conduct rules include a duty to respect the tribunal, but fail to mention a similar duty to respect opposing counsel, which is actually one of the issues most frequently cited by SRLs.[5] When dealing with a fellow lawyer, respect for opposing counsel may not be a big concern. However, when dealing with SRLs, respect for their unique situations becomes important. Accordingly, entrenching a commitment to respectful behaviour by counsel towards SRLs will be helpful in attaining equal access to justice. Although the creation of rules will not in itself change the widespread concerns of SRLs, it will send an important message to the collective legal community, including judges who often see SRLs as nuisances.[6] Such a message will hopefully bring about a change in judicial attitudes towards SRLs, which will than implicitly and explicitly impact how opposing counsel treats SRLs in the courtrooms.

Similarly, although settlement negotiations are being actively encouraged, the rules are often silent on the professional obligations of lawyers. Since negotiations are more cost-effective, it is important to revisit the rules and provide further clarification, including specific guidelines when negotiating with SLRs.

In order to protect the image of the legal profession, it is important that the Model Code of Professional Conduct incorporate the important contextual differences that currently exist. While overzealous advocacy may be appropriate for criminal defense lawyers when opposing experienced crown counsel, it is less appropriate in civil and family matters when facing SRLs. It is important for each law society to acknowledge these contextual differences and provide tailored guidelines for lawyers dealing with SRLs, which ultimately will help protect the public interest and facilitate equal access to justice.

Gurinder Gujral is currently attending the University of Ottawa, Faculty of Law. Last year, Gurinder helped organize the University of Ottawa’s Bring an Self-Represented Litigant (SRL) to School Day event. This summer, Gurinder will be working at Fasken Martineau (Toronto) and will be seconded to the Ontario Securities Commission.

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[1] Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants, (Windsor, NSRL Project, 2013) at 110.

[2] See Ibid at 91-92.

[3] Ibid at 127.

[4] Federation of Law Societies of Canada, Model Code of Professional Conduct, Chapter 5, Rule 5.1-5 and Commentary.

[5] Ibid at Rule 5.1-1. See also MacFarlane, supra note 3 at 90.

[6] MacFarlane, supra note 3 at 103.

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