June 29, 2021

Self-represented/Unrepresented Litigants

The Law Society receives hundreds of complaints every year from self-represented/unrepresented litigants against lawyers acting for clients on the opposite side of their case. This advisory gives guidance and ten tips for lawyers when the opposing party is self-represented.

There are multiple reasons why a person self-represents or is unrepresented either during the entirety of a court matter or from time to time. Affordability of legal services is high on that list.

The Code of Professional Conduct for BC requires that lawyers treat all people they interact with during the course of a file with courtesy and good-faith. This means that you have an obligation to “discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.” It can be challenging when someone contacts your office daily, sends you multiple emails, makes offensive comments about you or your client, or sets down court applications without canvassing the date with you. However, it is important to remind yourself that this person is dealing with issues that have a direct and real impact on their life. You are focused on your client’s best interest and should be guiding your client to a resolution, not becoming caught up in the animosity between the parties or communicating in ways that do not reflect the high ethical standard expected of the profession.

While it is not always possible to avoid a complaint, you do have some control over mitigating the outcome of a complaint. Here are some tips:

1. Record, record, record. Keep a written record of all communications. This includes adding a note to file following a phone call with the opposing party.

2. Follow-up. Send a follow up communication of what was discussed and what was agreed upon or not.

3. Don’t respond emotionally and always think before you hit send. If possible, review your draft response the next day, and, if you still feel triggered, have a colleague review it.

4. Think about your professional and ethical responsibilities. What would the Law Society think if they saw this communication? What would I think if my own client received this communication from another lawyer?

5. Do you have to respond? Think: if another lawyer asked me this question, would I be required to respond? If the answer is yes, respond. Be concise and to the point. Do not include any unnecessary personal opinion about the tone of the request, etc.

6. What is your role? Remind the litigant what your role is and that you cannot provide them with legal advice.

7. Think resolution. Understand your responsibilities to encourage resolution of disputes and reflect on this responsibility throughout the course of a file.

8. Wait before you pick up the phone. If you receive a message from someone who is at the height of frustration, think about the timing of your call back. The last thing you want to do is react to their frustration. Make a few notes of what you believe the underlying issue is and focus on these when you call them back. You may have a more productive conversation.

9. Be firm and consistent. If you believe that their communication is abusive to you or your staff, tell them and document it. For example, if phone calls are not productive or misinterpreted, let the person know that you will only correspond in writing.

10. Know your own boundaries. Know when it is appropriate to withdraw from a file (Review Rule 3.7 of the Code). Speak with a Practice Advisor or a trusted colleague about how you are managing a high conflict file. Your own mental health is important.

Trauma-Informed Practice

Like many clients dealing with high conflict litigation, past and current trauma can make coping and decision-making very difficult. Behaviour can too quickly be labelled as “irrational” or “manipulative” and therefore misunderstood. This is also true with self-represented litigants.

Trauma informed lawyering can not only help you to understand your clients better, but it can also assist lawyers with maintaining some level of understanding of what a self-represented litigant may be experiencing. Trauma informed lawyering means shifting from thinking someone is being “difficult” or challenging” with someone who has experienced some form of trauma. This shift can help you stay focused on your own client’s legal interests. Do not take remarks or actions personally Take a step back and remind yourself that decisions being made impact them directly, whether it is how often they can see their children or how their finances will be impacted by the litigation. While it does not necessarily change the outcome you are seeking for your clients, it may affect how you approach advocating for the outcome.

Relevant BC Code Provisions

Here are the relevant passages in the BC Code for your reference:

2.1-3(d) A lawyer should treat adverse witnesses, litigants and counsel with fairness and courtesy, refraining from all offensive personalities. The lawyer must not allow a client’s personal feelings and prejudices to detract from the lawyer’s professional duties. At the same time, the lawyer should represent the client’s interests resolutely and without fear of judicial disfavour or public unpopularity.

2.2-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

5.1-5 A lawyer must be courteous and civil and act in good faith to the tribunal and all persons with whom the lawyer has dealings.

Commentary

[1] Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by a lawyer, even though unpunished as contempt, may constitute professional misconduct.

7.2-1 A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice.

7.2-4 A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

7.2-9 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must:

(a) urge the unrepresented person to obtain independent legal representation;

(b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and