Lawyers and Self-Represented Litigants: Taking Pintea More Seriously

The 2017 decision Pintea v Johns has been heralded as a watershed moment for self-represented litigants in Canada. In a very short decision written by Justice Karakatsanis, the Supreme Court endorsed the Canadian Judicial Council’s (CJC) Statement of Principles on Self-Represented Litigants and Accused Persons.[1]

The Canadian Judicial Council’s statement on self-represented litigants sought to articulate proactive guidelines respecting judges’ responsibilities when hearing cases involving self-represented litigants. Recognizing the disadvantage to self-represented litigants who are not familiar with or understand the procedural and substantive law, the Statement of Principles was meant to provide guidance for judges, court administrators and other participants in the justice system engaging with self-represented parties. This guidance included possible intervention by judges on matters of evidence as well as process and procedure. It was hoped that such an endorsement by the SCC would open the door for more engaged interaction between judges and self-represented litigants and this would, in turn, ensure fairer outcomes for individuals compelled to represent themselves in court.

As we know, undertaking litigation without legal assistance is daunting for most litigants. More often than not, it results in negative experiences and outcomes for the self-represented party.[2] These litigants are often obligated to defend themselves against sophisticated opposing counsel, neutral adjudicators or, worse yet, hostile courts.[3] As Justice Lauwers recently noted in the case of Girao v Cunningham, the self-represented plaintiff “was left to fend for herself in a pitched battle with seasoned trial lawyers, with one hand effectively tied behind her back.”[4] In Girao, the self-represented plaintiff was severely disadvantaged by the multiple seasoned defence counsels’ evidential maneuvering and the trial judge’s failure to take the principle of Pintea and the CJC’s principles seriously. The result was the hearing of a one-sided story and an unjust result.

The concern that cases such as this raise is how effective Pintea may be where judges fail to actively engage with self-represented litigants in their courtroom and allow opposing counsel do all that is permissible within the four corners of the law. At best, it might be said that Pintea has raised awareness of the issues faced by SRLs and the need to ensure that such litigants are playing on level fields. In reality, it has not obligated either judges or opposing counsel to conduct themselves differently in consistent and meaningful ways.

Putting aside the judge’s role for a moment, it is worth concentrating on opposing counsel because without a different approach to engagement from opposing counsel, it is hard to imagine how SRLs are likely to get a fair shake in or out of court. The response of opposing counsel cannot simply be “my duty is as a zealous advocate for my client and, therefore, I owe no duty to an opposing SRL”. If we begin and end with this articulation of the lawyer’s duty, it is hard to see how SRLs will ever be in a position to engage in court proceedings or litigation generally in a meaningful way. Moreover, we know that the lawyer’s duties are (and should be) more nuanced than this. Lawyers have stand alone duties as officers of the court; these duties include, for example, an obligation to ensure that there is binding precedent presented to the court; even when the precedent may be contrary to a client’s position. The motivation for such a duty is that the adjudicator is making the decision on the right basis in a fair and just way.

In a prosecutorial context, prosecutors are required to turn over inculpatory as well as exculpatory evidence. Why? Because we recognize that this is a fair way of proceeding in the context of a serious power-imbalance between the state’s ability to prosecute and the accused’s ability to defend themselves against the power and resources of the state. While it is important to pause here and acknowledge the unique circumstances that inform the criminal context of the prosecutorial duties, the point is that in certain contexts, there are circumstances and forces at play that necessitate the consideration of duties other than zealous advocacy. In the examples of both binding precedent and prosecutorial duties, the normative values that underlie our justice system inform the responsibilities owed by those who participate in the system. Such duties expand beyond an exclusive commitment to zealous advocacy and a client’s right to choose how she proceeds. In other words, justice requires the interplay of different duties and responsibilities. Without such interplay, there is an inherent unfairness that contaminates the process and the legitimacy of the decisions made in those processes. In the context of counsel, a narrowly construed duty to the client fails to account for the realities of many litigation contexts, including non-criminal and private litigation involving self-represented litigants.

This point was not lost on Justice Lauwers in Girao. In that case, he noted that, “the defence advanced evidentiary positions that were problematic on legally complex topics. In advancing those positions, the defence ought to have assisted the trial judge, as officers of the court, with the legal issues embedded in the positions. Ms. Girao needed the assistance of the trial judge to deal with those positions.”[5] [emphasis added]

It has long since been acknowledged that fighting fair means you should not attempt to bamboozle opponents by passing off contested points as given. This does not excuse a trial judge’s obligations to ensure that the self-represented litigant is aware of and in a position to respond to legally complex arguments made by counsel. But it also recognizes the significant impact that a power imbalance between counsel and self-represented litigants may have on the outcome of the proceeding, particularly when it comes to questions of evidence. If Justice Karakatsanis’s acknowledgment of the CJC’s principles and a commitment to conducting fair hearings with self-represented litigants is taken seriously, it will be necessary for trial judges to commit to taking a different role consistently and for opposing counsel to check traditional notions of the zealous advocate. The reality of the case law post-Pintea is that there are cases that adopt the CJC principles, cases that disregard the principles and cases that actively reject the notion of active engagement with self-represented litigants. The latter groups of cases usually being framed in terms of bad behaviour on the behalf of self-represented litigants making them undeserving of the courts’ assistance.

The challenges facing the adversarial system’s response to self-represented litigants is complicated by the kind of theorizing that goes on with regard to lawyer’s professional duties more generally. For example, in the field of family law, the reluctance to place an onus on family law lawyers to minimize conflict can be particularly challenging in the context of self-represented litigants.[6] Where the percentage of self-represented litigants can range from 60-80% of litigants in family law, it would appear that a more radical departure from traditional modes of conduct is urgently needed if we are to take seriously the principles reflected in Pintea and in the CJC’s Statement of Principles more generally. Ethical theorizing that remains grounded in the more traditional language of duties owed to the client (and limits a lawyer’s duty to providing advice on the impact of a conflictual course of action) allows a significant space in which lawyers can act in ways that are detrimental to self-represented litigants and the system more generally. Moreover, it fails to account for the power and discretion afforded lawyers in conducting cases for their clients, much of which takes place on a spectrum well removed from bad lawyering.

Finally, it limits the responsibility of lawyers to have to reconcile their duties to a client with their duties to the court and the administration of justice. The latter being undermined when a lawyer takes advantage of a self-represented litigant’s lack of knowledge of substantive or procedural law. Again, Girao may provide a good example of this. The preparation of a ‘Joint’ Document Brief by defendant’s counsel on the eve of trial (later marked as an exhibit at trial with little scrutiny) and the inclusion of redacted records favourable to the plaintiff left the self-represented litigant running to catch up at trial. At the same time, this provided an advantage to the defendant who made use of the evidence for hearsay purposes. While it is not suggested that the defendant’s counsel in Girao was engaged in bad lawyering, there is a lot of distance between the counsel’s conduct in that case and the type of bad lawyering that might catch the attention of the regulatory authorities. The further reality is that self-represented litigants may disproportionally suffer the consequence of conduct that does not reach the level of ‘bad lawyering’ but still serves to undermine those normative values of justice and fairness. Moreover, it is fair to say that had the plaintiff been represented by counsel it is unlikely that her counsel would have agreed to the form and content of the ‘Joint” Document Brief prepared by the defendant’s counsel nor the form and content of the expert reports or testimony put forward by the defendant’s counsel. This recognition underscores the unfairness of the current system.

The pressing question remains – what is to be done about a growing group of participants in the civil justice system who are disproportionately affected by a continued adherence to the traditional commitment to an adversarial ethic and zealous advocacy. Decisions such as Girao assist in providing some direction to counsel. However, more is needed. Currently, the professional rules have little impact on counsel’s obligations to opposing self-represented litigants. At most, there is an obligation to ensure that the self-represented litigant does not mistake the opposing counsel as source of advice or assistance.[7] This is not adequate. More importantly, the existence of cases such as Girao demonstrates that the message of Pintea is not reaching all of its intended audience. The challenge of self-represented litigants demands more than just an effort to accommodate them in some peripheral way, while, at the same time, maintaining a commitment to the traditional framework of legal ethics.

The legal system has and continues to change in a fundamental fashion. For the most part, a significant number of parties are no longer represented by counsel. Therefore, the professional duties of lawyers engaging in this new system should reflect the realities of that system. The old ways of measuring the professionalism of lawyers (if it was ever a proper measure) are no longer applicable. In this regard, Pintea may have been a tipping point. However, there still remains much work to do in articulating the very practical ways in which judges and opposing counsel may implement and live up to both the spirit and letter underscoring the CJC’s statement of principles.

— Jennifer Leitch, Ph.D.

Jennifer Leitch is an adjunct professor at Osgoode Hall Law School, Instructor at Trinity College, University of Toronto and Senior Research Fellow at the Canadian Forum on Civil Justice. I would like Jennah Khaled for her research and insightful comments on this topic.

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[1] Pintea v Johns, 2017 SCC 23 (“Pintea”).

[2] Jennifer Leitch, “Lawyers and Self-Represented Litigants: An Ethical Change of Role?” 95 Canadian Bar Review 669-706 (2018); Julie MacFarlane, Katrina Trask & Erin Chesney, National Self-Represented Litigants Project, “The Use of Summary Judgment Procedures Against Self-Represented Litigants: Effective Case Management or Denial of Access to Justice”, (November 2015). Available online at http:// https://representingyourselfcanada.com/wp-content/uploads/2016/12/NSRLP-The-Use-of-Summary-Judgment-Procedures-Against-SRLs.pdf.

[3] Unrau v National dental Examining Board, 2019, ABQB 283; Biley v Sherwood Ford Sales Limited, 2019 ABQB 95.

[4] Girao v Cunningham, 2020 ONCA 260, at para 76.

[5] Pintea at para 154.

[6] Deanne Sowter, “A Family Lawyer’s Role Is (Not) to Minimize Conflict”, (June 25, 20202), SLAW.

[7] Rule 7.2-9 (b) & (c), Rules of Professional Conduct, Law Society of Ontario.