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Lawyers and the Self-Represented: Ethical Obligations in the Hearing Room

The role of adjudicators in hearings with self-represented litigants (SRLs) has been discussed in many court decisions and articles. What is less explored is the role of opposing counsel. In this column I will discuss the possibly expanding role of opposing counsel in facilitating access to justice for SRLs. Although the adjudicator has the primary role in managing a hearing and in assisting the self-represented party, opposing counsel can play an important role. It is also important that adjudicators clearly communicate their expectations of the lawyer when a hearing includes an SRL.

The Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons (PDF), mostly relates to the obligations of judges to SRLs. However, it does state that lawyers are expected to be respectful of SRLs and “to adjust their behaviour accordingly” when dealing with SRLs, in accordance with their professional ethical obligations. The guidelines provide an example of avoiding the use of “complex legal language”.

As the Ontario Court of Appeal noted in Girao v. Cunningham, the professional ethical obligations of a lawyer specifically related to an SRL in the Law Society of Ontario (LSO) Rules of Professional Conduct is limited. The Rules of Professional Conduct refers to SRLs as “unrepresented” and is mostly focused on ensuring that the SRL is not under the impression that the lawyer is protecting their interests (Rule 7.2-9). The use of “unrepresented” has been regarded as conveying negative images of self-represented individuals. “Self-represented” is now the preferred term. The LSO now uses the acceptable term on its website, but has not changed the Rules.

Jennifer Leitch has noted that the lack of any other references to the self-represented in the Rules “reinforces the notion that the lawyer’s primary duty remains that of the zealous advocate”. In contrast, there are extensive ethical obligations set out in Rules that apply to dealing with other lawyers and with corporations and governments. Professor Leitch comments on this juxtaposition:

…This is problematic from an ethical standpoint because it sends a message about how lawyers should act when engaging with other lawyers and/or represented parties while, at the same time, downplaying the importance of distinct ethical concerns that may arise in the context of cases involving self-represented litigants. The failure to articulate specific ethical obligations vis-à-vis self-represented litigants sends an implicit message that this is not something with which lawyers and the system at large need be concerned.

Although there are no specific ethical rules relating to positive support for SRLs, some of a lawyer’s ethical obligations are relevant when assessing their role. Lawyers are expected to be “courteous and civil and act in good faith” with all those whom he or she has “dealings” in his or her practice (7.2-1). When representing a client, the lawyer must treat the tribunal with “candour, fairness, courtesy and respect. ….and in a way that promotes the parties’ right to a fair hearing in which justice can be done” (5.1-1). A lawyer is also required to inform a tribunal of any binding authority that is directly on point but that has not been mentioned by the opposing party (5.1-2(i)).

There are a few general requirements that apply to all opposing parties, whether represented or not. For example, lawyers are required to agree to reasonable requests for adjournments and the waiver of procedural formalities if there is no prejudice to the client (7.2-1.1). In addition, although one wonders why it needs to be said, a lawyer shall not communicate in a way that is “abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication” from a lawyer (7.2-4).

The Ontario Court of Appeal recently addressed the role of opposing counsel in a hearing involving an SRL and has suggested that the ethical obligations of a lawyer extend beyond those set out in the Rules of Professional Conduct. In Grand River Conservation Authority v. Ramdas, 2021 ONCA 815, the court suggested that the rule of professional conduct that applies when there is no one appearing for the other side should apply to cases with an SRL (Rule 5.1-1). When an opposing party’s interests are not represented (in other words, the opposing party is not in the hearing room), the rule directs lawyers to take particular care to present their client’s case accurately, candidly and comprehensively to ensure that the tribunal is not misled. The court observed that this guidance should also apply “where the presence of a self-represented litigant might impede the full proof and argument expected when both sides are represented”.

In this case, a property owner had been represented and her lawyer had served materials on opposing counsel. By the time of the hearing before a judge about the granting of a permanent injunction, the property owner was self-represented. The judge denied an adjournment and granted the permanent injunction. At the Court of Appeal, the property owner (now again represented by counsel) argued that opposing counsel were under a duty to advise the judge that even though she had not filed the materials with the court, it had been served on the opposing parties. Although the Court of Appeal dismissed the appeal, it did comment about the conduct of opposing counsel, noting that they were “remiss in not alerting the application judge on a timely basis that interim injunctions were in place”. The court also noted that when asked by the application judge about whether the property owner had filed materials, counsel should have advised the judge that although materials had not been filed, they had been served. The court noted that due to these omissions, the judge was left with the wrong impression about the extent to which the property owner had not complied with previous judicial directions.

The court also referred to the American College of Trial Lawyers’ Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants (PDF). This code states that lawyers should not attempt to gain an advantage for their client because an opposing litigant is an SRL (s. 9(a)). Lawyers should also consider reasonable requests for adjournments or waivers of procedural formalities when there is “no real prejudice to their client’s rights or interests” (s. 9(b)). The Code also requires that counsel advise the court of all “material communications and agreements reached with an SRL” (s. 12(c)). The court stated that this was good advice and counsel opposite an SRL “would benefit from the Code of Conduct’s guidance”.

There is other guidance to lawyers in the Canadian Code of Conduct for Trial Lawyers that is relevant to a lawyer’s obligation to an SRL. A lawyer should communicate “unambiguously” with an SRL and should make an effort to avoid using legal terminology in all communications (written or oral) and in the hearing room: “When possible to capture legal concepts and requirements in everyday language a trial lawyer should do so” (11(c)).

The Advocates’ Society Principles of Civility and Professionalism for Advocates (PDF) also has some guidance for counsel when faced with an SRL. This code states that advocates should assist the court in dealing with an SRL and “should cooperate with the court in ensuring that a self-represented litigant receives a fair hearing”. This is not much different than the obligation under the rules of professional conduct. However, the Principles extend that obligation slightly, when it is suggested that advocates consider providing assistance to an SRL when doing so “will not prejudice an obligation to the client, will move the case forward and will not result in significant costs”.

The Principles also addresses the unfamiliarity of an SRL with the law and with procedures. It provides that advocates should not take advantage of an SRL’s unfamiliarity with the rules of practice and procedure and should point them to sources of information to help them understand their obligations under the tribunal’s rules. Although advocates are entitled to raise proper and legitimate objections and arguments in all cases, they are also not to take advantage of technical deficiencies in an SRL’s case that do not prejudice their own client or adversely affect the conduct of the proceeding.

Lawyers are often reluctant to speak directly with SRLs and prefer to communicate solely in writing. The Advocates’ Society Principles state that it is not uncivil to deal with a self-represented individual solely in writing but does provide some advice to lawyers on oral communication – have a witness present and if this is not possible, document the conversation by sending a confirming letter or email.

The Law Society’s Rules of Professional Conduct are clearly deficient in setting out the obligations of a lawyer to an SRL. This is especially so when you consider the principles that the Law Society is required, by statute, to apply when carrying out its duties and powers (section 4.2 of the Ontario Law Society Act):

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

The expansion of the ethical obligations set out in Grand River Conservation Authority as well as the additional guidance from the Canadian Code for Trial Lawyers and the Advocates’ Society Principles is a good start, however, in providing an ethical framework for lawyers. As Professor Leitch has noted, “the challenge is to balance the lawyer’s duties to the client with the equally important responsibilities to promote the administration of justice and access to justice”.

SRLs can perceive the legal system as a closed system with adjudicators and lawyers speaking in a coded language that is familiar only to them. Adjudicators must keep this in mind and do their utmost to counter this perception. Some tips for adjudicators include:

  • Explain to the SRL the role of opposing counsel in a hearing, with a particular emphasis on their role as an advocate for their client while being courteous, civil and acting in good faith;
  • If necessary, remind counsel of their ethical obligations to the tribunal and to ensuring access to justice;
  • Do not engage in discussions with counsel about previous appearances or otherwise convey an overfamiliarity;
  • Avoid lengthy dialogues with counsel – include the SRL in the conversation;
  • If counsel uses legal terms without explaining them, ask him or her to explain again using simple language;
  • If counsel insists on using complex legal language or does not explain legal concepts simply, paraphrase the counsel’s statements in simple language for the SRL;
  • Be consistent in your treatment of counsel and of the SRL – call out unacceptable behaviour on both sides.

 

Comments

  1. The necessarily wary approach always required of counsel when dealing with an SRL in family law matters is fulsomely addressed in an Ontario Bar Association CLE 2008 programme entitled ‘Remedies for unfair tactics in family law cases : is self-representation an unfair tactic?’

    Full disclosure: I wrote and presented one of the papers at that programme while a Law Society counsel.

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