The specialized knowledge and training of lawyers is supposed to make them uniquely positioned to engage in the practice of law. But it also underlies a fundamental assumption about the workings of litigation — that lawyers work with and against other lawyers who are equally trained and well-matched. Such an assumption underscores the functioning of the adversarial system, the ethical duties of lawyers operating within it, and the legitimacy of the outcomes reached in the adversarial system.
However, the validity of this operative assumption may be undermined by certain practical realities — whether most lawyers in the adversarial system are evenly matched or, more fundamentally, whether those participating within the adversarial system are even represented by lawyers.
The reality is that the civil justice system is quickly approaching a tipping point where there are as many (if not more) non-lawyers as lawyers engaged in civil litigation. Thus, a great number of self-represented litigants are litigating against trained and experienced lawyers.
Cases involving both a represented and self-represented party possess some of the greatest ethical challenges in terms of ensuring that the process is fair to all parties. However, addressing these challenges demands recognizing the imbalance occasioned by the unique needs of the self-represented party. This is not a challenge that can be exclusively unloaded onto the adjudicator overseeing the particular legal process. Although adjudicators have a crucial role to play, the more general situation must also be addressed by the lawyers acting against self-represented litigants and by their professional regulator, the provincial Law Societies.
Within the professional framework, the partisan role of the advocate is conditioned by certain accompanying and competing duties — not to take advantage of an opposing party’s slips and mistakes or not to mislead the court when an opposing party is not present. In an adversarial system that assumes that all parties have evenly matched legal representation, these different duties may not cause significant issues. Moreover, even if an issue arises, it is likely that the conduct will be “caught” by opposing counsel equally well versed in the professional rules of conduct, the rules of court, and the relevant substantive law.
However, self-represented litigants are not as likely to notice these issues as they arise. Without a clear and unambiguous delineation of the ethical responsibilities expected of counsel in cases involving self- represented litigants, the dominance of the duties to the client leaves the lawyer, at best, unsure of how to engage with non-lawyers and, at worse, in a position to manipulate the process for the benefit of the client and to the disadvantage of the unrepresented litigant.
Leaving the self-represented litigant to her own devices may very well result in the self-represented litigant’s failure to address the court’s queries. In this respect, the duty to the client can be used to justify a refusal to assist a self-represented litigant, and in effect, the court and the administration of justice.
In the context of a lawyer’s professional duties, there must be a clear distinction between assisting an opposing party in making their case for them and assisting the process. The latter being consistent with the lawyer’s broader obligation to promote the administration of justice. However, the concern is that in cases involving self-represented litigants, lawyers may be unable or unwilling to engage in an exercise that distinguishes between these two forms of assistance.
Such a concern appears to have animated Justice Lauwers’ comments in the recent Court of Appeal decision of Grand River Conservation Authority v Ramdas, 2021 ONCA 815 (Grand River). In that case, a self-represented litigant’s served, but not filed materials were not brought to the attention of the application judge. Additionally, the application judge was not made aware of the interim injunction in place or the self-represented litigant’s continued compliance with the terms of the injunction. While the self-represented litigant’s appeal was unsuccessful, the failure of opposing counsel to clarify certain aspects of the case before the application judge prompted Justice Lauwers to comment on the duty of counsel to an opposing self-represented litigant and to the court.
While the professional role of the advocate obligates lawyers to ensure that they treat tribunals and even opposing counsel with, among other traits, candour and fairness, there is a very limited discussion of the role of the advocate in cases involving non-lawyers. In fact, the Law Society of Ontario’s Rules of Professional Conduct make only limited reference to the duties owed by lawyers in cases involving non-lawyers; ostensibly, these rules focus on discouraging the non-lawyer’s reliance on opposing counsel. As a consequence, in cases like Grand River, opposing counsel are directed toward resources generated by the American College of Trial Lawyers. While such a resource might help those lawyers who voluntarily seek out direction respecting their duties to opposing self-represented litigants, this is far from sufficient.
Rather cases such as Grand River and Girao v Cunningham (Girao) speak to the urgent need for law societies to develop a more comprehensive set of ethical duties owed by opposing counsel that will be consistent with opposing counsels’ duty to the administration of justice. A disconcerting consideration is that these cases represent the very few cases involving self-represented litigants that actually reach the Court of Appeal; the assumption being that the majority of self-represented litigants are not in a position to carry the litigation forward.
Framing opposing counsel duties in a manner similar to the duty that counsel owe to the court when an opposing party is not present might be an useful starting point for professional obligations in cases of self-representation. However, in developing such a framework, it is necessary to take further account of not only the duty owed to the tribunal, but also of the profound disparity in power as between self-represented litigants and lawyers and the consequence for this disparity to seriously undermine the outcomes reached in civil litigation. Additionally, such a framework needs to also take account of the continuing impact of resolute advocacy as the dominant professional arrangement within the legal profession. This necessarily requires an ethical engagement with client expectations in a modern legal practice.
All of this must be further contextualized within a professional commitment that encourages a reinvigorated respect for the administration of justice. All of these considerations require the drafting of rules and commentary that speak to a re-prioritizing of the lawyers’ duties to ‘advance the causes of justice’ consistent with an evolving adversarial model that looks and operates very differently than has been traditionally the case. As Justice Lauwers notes, justice must not only be done but must also be seen to be done. In light of cases like Grand River and Girao, this is not likely to be the public’s perception despite the presence of a very significant tipping point.
By Jennifer Leitch, JD, LLM, PhD
Senior Research Fellow, Canadian Forum on Civil Justice