We are hearing more and more often from SRLs about “sharp practice” when they face a lawyer on the other side of their case.
There are many common elements to these reports, which I find to be largely credible. SRLs believe that their unfamiliarity with the legal system, combined with the tendency of some judges to assume the worst of them – that their cases are without merit, or that they are “vexatious” and abusing the process when they make honest mistakes and misjudgments – is being exploited by counsel on the other side as a matter of strategy.
The challenges of working opposite an SRL
To be fair, a lawyer facing an SRL encounters a situation they have not been trained to deal with, and may find difficult. I have seen responses that include reaching out to the SRL; panicking about their own client thinking they are “helping” the other side; trying to avoid communicating with the SRL because of fears of being called as a witness or otherwise compromised; or cynically exploiting procedural rules, including those on vexatiousness and claims for summary judgment.
But however sophisticated and intelligent the individual SRL, and however experienced (or not) the individual lawyer, there is a huge disparity of power and knowledge between them. Some of this flows from a difference in substantive familiarity, but much also comes from a legal culture that assumes that when lawyers speak, what they say is more credible and important than a member of the public.
It is all too easy for me to imagine that lawyers might sometimes believe that their duty of zealous advocacy to their own client means that they should take advantage of an SRL on the other side. This not the case – “sharp practice” against other lawyers has long been frowned upon and proscribed in the Rules of Professional Conduct – and I cannot see why this duty should be any different when the other side is an SRL. From the Ontario Rules:
7.2-2 A lawyer shall avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
Further, the evidence suggests a dangerous trend of taking advantage of SRLs that is bringing the profession into disrepute.
What types of complaints about “sharp practice” are we hearing?
The types of complaint we hear (and in some cases I have reviewed case correspondence) from SRLs about opposing counsel cover a wide range, but there are some clear themes. Some of the most common complaints include:
- Rudeness and incivility. This may sometimes be “professional brusqueness” – familiar to the lawyer but not to the SRL – but is often experienced as feeling disrespected and dismissed.
- Bullying communication. An apparent effort to bully the SRL into dropping their case by the tone of letters and other communications from the other side. This may take the form of dismissive verbal comments, or written communications that adopt a bullying and belligerent tone.
- Counsel unwilling to engage in a serious settlement discussion. Of course, lawyers sometimes complain with some cause that SRLs will not discuss settlement with them, but then lawyers are trained (and have a professional responsibility) to explore settlement or compromise.
- An assertion that there is no ethical duty owed to an SRL. I have seen correspondence asserting that the lawyer’s ethical duty is to the court, and that they owe none to the SRL (this is an overlap with “bullying communications” above). While this may be true in terms of liability, it is most certainly not true in terms of the (e.g. Ontario) Rules of Professional Conduct.
- Misleading information given by the lawyer to the SRL. Whether intentional or not, I have heard many examples of lawyers giving an SRL misleading information about court dates, whether they have received service of documents, and nefarious references to “rules” that do not exist.
- Refusing to use the SRL’s preferred mode of communication. For example, serving the SRL at home during the day when they have explained in advance that they would not be able to accept service because they would be at work, and have requested another agreed mode of service, such as email.
- Inadequate notice given under the court rules (unfortunately we have observed the court allowing this when the other side is an SRL).
- Change of venue. For example, a lawyer moves the venue of the hearing to a courthouse that requires significantly longer travel for the SRL.
- Perhaps most disturbing are reports of lawyers using applications for summary judgment and / or claims of “vexatiousness” as a default whenever they face an SRL on the other side. This strategy exploits the willingness of some judges to dismiss SRL cases as without merit in an extraordinarily high proportion (95% of cases in our 2015 study), and allow claims regarding “vexatiousness” that conflate SRLs who intentionally behave badly with the merely confused (also clear in the case law).
What happens when SRLs complain about the behaviour of opposing counsel?
A big beef of SRLs is that no formal complaint can be brought about the behaviour of opposing counsel until the proceedings are over. This gives SRLs no immediate recourse for actions or behaviours that they may feel are highly unprofessional and may be damaging their case.
Once the case is over, an SRL can complain about the behaviour of opposing counsel to the Law Society of Ontario (LSO) (apologies for the fact that all my data here is Ontario-based, it would be great if others would check out the numbers in their own jurisdiction).
Since we hear so many complaints from SRLs about the behaviour of opposing counsel, I was curious to find out how they fare when they bring formal complaints forward to the LSO. David Wright, the chair of the Law Society Tribunal, graciously looked through the 150 decisions the Tribunal rendered in 2018 for cases in which SRLs were among the complainants and found as follows:
- A handful of decisions in transactional cases (e.g. property deals) where a complaint was upheld against a lawyer who had not made clear to an unpresented party on the other side that they were not their lawyer and could not represent their interests (for example).
- There were 3 cases that involved an SRL as one of multiple complainants in relation to a lawyer’s litigation practice.
- In Law Society of Upper Canada v. Pascuzzi, the lawyer was found to have failed to adequately respond to communications from a self-represented party to the standard of a reasonably competent lawyer, resulting in a reprimand.
- In Law Society of Upper Canada v. Colin Cameron Leon Lyle, three SRLs were among a number of complainants, including former clients and colleagues. The Tribunal upheld the complaints of the SRLs that the lawyer, acting as opposing counsel, was rude, threatening, and both verbally and physically aggressive towards them. For this behaviour and the other complaints brought against him, the lawyer was suspended.
- Finally, in Law Society of Ontario v. Ejidike, a lawyer was found to have lied to a self-represented litigant. For this and multiple other incidents of misconduct, her licence was revoked.
This quick analysis suggests that very few SRLs make it to the hearings stage with their complaints. Of course, Tribunal hearings are a small fraction of the total number of complaints against lawyers received each year at the LSO. The more interesting question is what happens at the initial complaint and investigation stage.
The LSO received a total of 6,500 complaints in 2018 and referred 1,200 of these for investigation, at which point 25% were closed with a caution, and 35% closed because of “insufficient evidence to proceed”. 150 were subsequently sent to the Tribunal for a hearing. I have spent nearly a month asking for statistics that show how many of these complaints are from SRLs, and what happens to them. I have sent many emails and made numerous requests to different people I have been directed to. My final answer: we don’t have that information.
What Can Be Done?
- It is very important for regulators to be tracking how SRLs fare in their complaints processes. Whatever arguments might be made about SRL complaints being “spurious” (a reflection of the assumption that their cases are “without merit”), these numbers will tell their own story about how much public confidence we can have in these processes.
- I think a case can be made for an SRL Ombudsperson inside each regulator, whose exclusive brief is to investigate complaints by SRLs against opposing counsel. I think that it should be possible for such complaints to be brought while a case is still proceeding. An Ombuds process seems especially appropriate here because it includes the potential for enhanced understanding and education for both parties, as well as the possibility of discipline (perhaps feeding into the hearing process) for egregious and repeated bad behaviour by counsel.
- There is a need for leadership by the regulators on this issue. This means sending a clear message to members that “sharp practice” by counsel against an SRL on the opposing side will not be tolerated, is not professional, and will be taken seriously as a disciplinary matter.
Many lawyers are adjusting their practice to work civilly and constructively with SRLs on the other side. Sometimes this brings extra challenges, but this particular manifestation of the SRL phenomenon does not require deep structural changes, just better training and a positive mindset about working with the public. It is important to address the problem of “sharp practice” at an early stage, and assure the public that their complaints will be treated seriously.