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Legally Speaking


Issue: June, 2008
Author: John M. Burman

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Ethically Speaking - Dealing with an Opposing Party Who is Proceeding Pro Se

When I was in law school, I thought having a client whose opponent did not have an attorney would be a great thing. Such a case would, I thought, be easy. It would be sort of like playing a game with no opponent--an almost guaranteed win with little or no opposition. I could not have been more wrong.

The reality is that representing a client against a party proceeding pro se presents challenges much greater than representing a client against a party who has an attorney. Everything is harder, not easier, both for the lawyer and the judge when one party is pro se. Unfortunately, neither the rules which govern lawyers’ behavior nor the code which regulates judicial conduct address in any detail the issues which arise, leaving the question of how to deal with a party who does not have a lawyer largely unanswered. This column is an attempt to provide some guidance to lawyers and judges when they find themselves in the inherently awkward position of dealing with an unrepresented party.

Defendants in criminal matters are entitled to lawyers paid by the government if the potential outcome is incarceration and they cannot afford their own (they also have a right to represent themselves). In most civil cases, however, there is no such right. (There are exceptions. For example, a parent in a termination of parental rights case or a parent in certain juvenile cases also has a right to counsel.) The absence of a right to counsel does not mean, of course, that the issues in a lawsuit or other legal matter do not involve vitally important matters, such as custody of a child in a divorce or paternity action, or significant financial liability for something. Rather, such actions involve critically important issues, but one simply does not have a right to an attorney (an indigent person may qualify for the services of a legal aid lawyer, but qualifying does not create a right to counsel. Most such offices cannot come close to meeting the demand for their services.) In addition to persons who qualify for, but cannot obtain legal assistance from legal aid offices, the sad truth is that many persons who are not eligible for civil legal assistance are not able to pay for an attorney to represent their interests. (I often joke that I could not afford to hire myself. It’s not really a joke. While I could afford some of my time, I would be very hard pressed to retain myself for any length of time, such as to represent me in a contested divorce case).

As a consequence of the high cost of legal representation, eighty percent of the legal needs of low-income Americans go unmet. The same is probably true of the legal needs of low and lower-middle class Americans. It has become fairly common, therefore, for one party to a lawsuit or other legal matter to be without representation.

Natural persons have a right to represent themselves. “Any person may appear, prosecute or defend any action pro se. Partnerships and sole proprietorships may appear through the owners.” By contrast, “Corporations and unincorporated associations (other than partnerships and individual proprietorships) may appear only through an attorney licensed to practice in Wyoming.” (In Small Claims Court, “corporations, partnerships, associations or other organizations may litigate actions on behalf of themselves in person or through authorized employees, with or without an attorney . . .”)

The Preamble to the Wyoming Rules of Professional Conduct (the “Rules”) provides “general orientation” to the Rules. It reminds lawyers that they “should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.” Because of these deficiencies, “all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who, because of economic or social barriers, cannot afford or secure adequate legal counsel.” To try and meet that need, the Rules contain an aspirational goal for each lawyer to provide fifty hours of pro bono service per year. In addition, that same sense of professionalism should carry over into lawyers’ treatment of persons who are proceeding pro se. Finally, lawyers should never forget that the Rules “do not . . . exhaust the moral and ethical considerations that should inform a lawyer.”

The Ethical Framework for Lawyers
The Rules are premised, for the most part, on a lawyer representing a client whose interests are adverse to those of another party who is also represented by a lawyer. With two exceptions, the Rules do not address the responsibilities of a lawyer who either represents a client proceeding against another party who is proceeding pro se or a lawyer who is dealing with one or more parties whom the lawyer does not represent (while the Preamble and Scope of the Rules also mention persons proceeding pro se; the Rules, not the Preamble, Scope or Commentary, bind lawyers. “[T]he text of each Rule is authoritative.”).

The first, and most important, time the Rules address a lawyer’s responsibility when representing a client against a person proceeding without an attorney is in Rule 4.3, which is entitled “Dealing with unrepresented persons.” It says:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Six phrases in the Rule are in bold, as each of them articulates an important duty for a lawyer representing a client against a person proceeding pro se.

First, the Rule applies when a lawyer is “dealing on behalf of a client with a person who is not represented by counsel.” It applies, therefore, whenever a lawyer is representing a client whose adversary does not have a lawyer. The Rule does not say that a lawyer must inquire whether he or she has a lawyer, but it should be read as though it did. The reason is simple. The Rule applies whether the lawyer knows or not. By contrast, if the lawyer “knows” that the other person is represented by a lawyer, the lawyer “shall not communicate about the subject matter of the representation” with that person, unless the lawyer has the permission of the other lawyer, or is authorized to make the communication “by law or court order.” In other words, if the person does not have a lawyer, Rule 4.3 applies. If he or she does, Rule 4.2 applies. The only way for a lawyer to know which Rule to follow is to ask if the person has a lawyer. Accordingly, Rule 4.3 should be read to include a duty to ask if the person with whom the lawyer is communicating is represented by a lawyer.

Second, when a lawyer is dealing with a person proceeding pro se, the lawyer “shall not state or imply that the lawyer is disinterested.” Again, the reason is simple. Often, if not usually, a non-lawyer assumes that a lawyer is looking after his or her interests, even when the lawyer has been retained by the other party. While that makes no sense to lawyers, it is a common misconception. In particular, an unrepresented person may not understand that the duty of the lawyer retained by the other party is to act “zealously” on behalf of the other party. Instead, the lawyer may be incorrectly viewed as a disinterested professional whose job is to seek justice (although a prosecutor has the duty to act as a “minister of justice,” other lawyers do not.).

The simple fact is that a lawyer is not disinterested, and to state or imply that he or she is violates a lawyer’s obligation not to “make a false statement of material fact of law to a third person.” A lawyer should, therefore, assume that an unrepresented person does not understand the lawyer’s role, and he or she should always take steps to make sure the unrepresented party knows who the lawyer represents, and that the lawyer’s job is to get the best deal possible for his or her client. Those efforts should be documented in any phone conversation, forms or letters that the lawyer prepares.

Third, even if the lawyer does not make the foregoing assumption, there are times when the lawyer must clear up any misunderstanding about the lawyer’s role. That is when “the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role.” The Rule’s use of both “know” and “reasonably should know” imposes additional obligations on the lawyer. “Knows” is subjective, meaning “actual knowledge . . . [although a] person’s knowledge may be inferred from circumstances.” (The last clause simply means that a lawyer may not close his or her eyes to the obvious.) The use of the phrase “reasonably should know” brings in the objective, reasonable lawyer standard: “Reasonably should know” means that “a lawyer of reasonable prudence and competence would ascertain the matter in question.” The only way to “ascertain” whether the person has a lawyer is to ask. The only way, therefore, that a lawyer can discharge his or her duties under Rule 4.3 is to inquire if the apparently unrepresented person has a lawyer. The first statement out of a lawyer’s mouth, therefore, when the lawyer is dealing on behalf of a client with any other person, should be to ask whether that person has a lawyer. If the answer is “no,” Rule 4.3 applies. If the answer is “yes,” Rule 4.2 (the anti-contact with represented parties’ rule) applies.

Fourth, if the lawyer learns that the unrepresented person misunderstands the lawyer’s role, “the lawyer shall make reasonable efforts to correct the misunderstanding.” The inclusion of “reasonable” in the obligation, once again, brings in the objective standard of “a reasonably prudent and competent lawyer.” Such a lawyer would explain the identity of the lawyer’s client, as well as how he or she is looking after the lawyer’s client’s interests, and not those of the unrepresented person.

Fifth, the lawyer must be careful not to give legal advice, for which the unrepresented person is likely to ask. A lawyer who represents a client and is dealing with an unrepresented party “shall not give legal advice to an unrepresented person, other than the advice to secure counsel.” This prohibition makes sense as the giving of legal advice may give rise to an attorney-client relationship. If that happens, the lawyer will have two clients, with interests that are likely to be directly adverse. That will result in a concurrent conflict of interest which is probably one that may not be waived, and the attorney will have to withdraw from representing both clients. (It is unethical to even ask for a waiver of a conflict that is not waivable.)

Finally, the advice to obtain counsel is to be given “if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” There will be few times that a lawyer dealing with an unrepresented party will not “know” or “reasonably should know” that the interests of the lawyer’s client and those of the adverse party “are or have a reasonable possibility of being in conflict.” Accordingly, a lawyer should assume a conflict, or at least a potential conflict, and advise the unrepresented party to retain an attorney.

Read as a whole, the Rule boils down to a simple proposition. A lawyer should not take unfair advantage of an unrepresented party. While the argument may be made that a lawyer ethically must do so to benefit the lawyer’s client, as part of being a zealous advocate, that argument does not fly very far. It is based on the premise that a represented client will “benefit” by his or her lawyer taking unfair advantage of an unrepresented party. That is not always the case. Sometimes the wiser, and safer, course is to not push the envelope and run the risk that an apparently advantageous agreement or result is thrown out.

Although the case has not arisen in Wyoming, it has elsewhere.

In In re Matter of the Marriage of Foran, the Washington Supreme Court considered the enforceability of a pre-nuptial agreement which had greatly benefitted one party who had been represented, at the expense of the other, who had not. The agreement had been drafted by the lawyer for the husband-to-be. The day before the parties were to leave for their wedding trip, they came in to read and sign the agreement. The lawyer advised the wife-to-be that he was not her lawyer, and that she should seek the advice of another lawyer. She declined and signed the agreement. At the time of the divorce some years later, the wife challenged the agreement, which was found to be unenforceable. The Washington Supreme Court upheld that determination.

One reason for its ruling was that the then prospective wife “did not have sufficient time to consult with independent counsel . . . . The only realistic choice would have been to postpone the wedding . . .” The court discussed the reason for providing such an opportunity. Its reasoning is apt to the issue of a lawyer negotiating a deal with an unrepresented client that significantly favors the lawyer’s client. “The purpose of independent counsel is more than simply to explain just how unfair a given proposed contract may be; it is for the primary purpose of assisting the subservient party to negotiate an economically fair contract.”

A Foran type analysis is likely similar to how a court will review a one-sided transaction in which the unrepresented client makes a claim that he or she misunderstood the lawyer’s role, and thought the lawyer was there to help both. The lawyer better be able to show that he or she complied with Rule 4.3, or the formerly unrepresented party will have a good argument to set aside the agreement. (Agreements entered into in violation of the rules may be voidable.)

To avoid such a situation, a lawyer should advise the client that an unfair agreement negotiated under inappropriate circumstances may not be enforceable. Only with such advice can the client make an “informed decision” about whether to proceed with the agreement. If the client insists on pursuing such a path, even after being advised that the agreement may not be enforceable, that decision should be followed, so long as it does not involve a fraudulent or criminal act.

The other mention in the Rules of an unrepresented party is in Rule 2.4, a new Rule that describes the duties of a lawyer serving as a “third party neutral,” the Rule’s term for “mediator.” As in Rule 4.3, which addresses a lawyer’s duties when dealing with an unrepresented party and is described above, Rule 2.4 strives to prevent an unrepresented party from misunderstanding the role of a lawyer acting as a “third party neutral.”

Traditionally lawyers represent clients, and that is still their primary function. Now, however, they often play other, non-representational roles: “[A] lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. . . .” The key to acting as a “third-party neutral” is that the lawyer does not represent any of the parties to the dispute. Rather, the lawyer “assists two or more persons who are not clients . . . to reach a resolution of a dispute . . .”

It is increasingly common for cases to go to mediation. Wyoming even has a rule that allows either party or the judge to ask that a case go to some type of ADR. If that happens, the lawyer who is acting as the third-party neutral has duties similar to a lawyer for a client who is dealing with an unrepresented party: The lawyer

[S]hall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral as opposed to a lawyer's role as one who represents a client.

The goal is the same. That is, unrepresented persons should understand that the third-party neutral does not represent them, and is not, therefore, looking after their interests as an attorney would. Unlike an attorney who represents another party, however, the third-party neutral is a disinterested professional, from whom all parties can properly expect something different.

Beyond Lawyers’ Ethics
As noted earlier, the Rules “do not . . . exhaust the moral and ethical considerations that should inform a lawyer.” Instead, they establish, for the most part, the floor, beneath which a lawyer may not sink, and the ceiling, above which a lawyer may not rise. In between is a lot of room, in which a lawyer can ethically decide how to practice. It is, unfortunately, ethical to be a jerk. It is also ethical to be a professional, treating everyone, clients, lawyers, judges, court personnel, unrepresented parties, and others, with dignity and respect.

Far too often, lawyers decide that it is in their interests, or their clients’, or both, to unfairly take advantage of an unrepresented party. While it is certainly ethical to get a good deal for one’s client, that can be done professionally and civilly. Perhaps the ultimate question a lawyer should ask of a proposed course of conduct is “how will this benefit my client and the legal system in the long run?” Too often, the question is confined to whether there is some short-term gain. And while there might be, that should not be the question.

A good guide to how lawyers should behave, not just what is or is not ethical, is contained in the Litigation Standards adopted by the United States District Court for the District of Wyoming. Though the standards are designed primarily for lawyers interacting with other lawyers and the court, they apply, in part, to lawyers’ treatment of non-lawyers, and their general standards should apply to everyone.

For the most part, the Litigation Standards are common sense. The standards were “specifically designed to apply to those attorneys who perceive themselves solely as combatants or believe they are retained to win at all costs without regard to fundamental principles of justice.” The standards contain what should be self-evident guidelines, such as “[a]ttorneys shall treat each other, the opposing party, the Court and members of the court staff with courtesy and civility, and conduct themselves in a professional manner at all times” Similarly, it should go without saying, but “[a]ttorneys shall not engage in obnoxious or antagonistic behavior.” Finally, while the guidelines contain numerous other admonitions, I particularly like the statement that “[c]ursing, sarcastic commentary, use of an attorney's voice in a loud, angry or hostile manner in the course of out-of-court depositions or other proceedings are violations of this [litigation] standard.”

Why a lawyer would need to be told to be a decent human being in dealing with others, including judges and lawyers, is a mystery, but the standards were obviously enacted for a reason. And while the vast majority of Wyoming lawyers don’t need to be told to behave, there are a few who do. Similarly, the vast majority of lawyers will treat pro se parties with the respect and dignity they deserve. There will be those, however, who do not, somehow thinking it is in their, or their clients’ best interests not to. They are wrong. There is no benefit, and a lot to lose, by acting otherwise.

The Ethical Framework for Judges
Having one party unrepresented places a judge in an inherently awkward position. On the one hand, judges do not want to penalize parties who have retained counsel by helping unrepresented parties too much. On the other, judges are understandably reluctant to see injustice or unfairness happen to anyone, and yet judges cannot intervene too much. How to balance those competing considerations is a challenge.

The Wyoming Code of Judicial Conduct (the “Code”) places great importance on the independence and integrity of the judiciary. The Code makes it clear that judges should afford everyone the chance to be heard, but it doesn’t provide much guidance on how that is to be done. Canon 2, which says that a judge “Shall Avoid . . . the Appearance of Impropriety,” places a higher burden on judges than on lawyers (the “appearance of impropriety” standard was part of the Wyoming Code of Professional Responsibility. That code, however, was replaced in 1986 by the Wyoming Rules of Professional Conduct, which did not contain the appearance standard. The current Rules are the same in that respect.) Avoiding the appearance of impropriety seems to include treating all litigants, whether represented or not, with dignity and respect.

The Code also directs that every litigant, represented or not, should get his or her day in court. “A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.” At times, that right is more important than the outcome. One, even a lawyer, has a much easier time accepting a negative result if one feels that he or she has been heard and treated fairly. As the United States Supreme Court has noted, “the courts have an independent interest in assuring compliance with ethical standards and the appearance of fairness . . . .”

Courts generally follow fairly formal, prescribed procedures. The Wyoming Rules of Civil Procedure generally apply in civil proceedings. They “govern procedure in all courts of record in the State of Wyoming, in all actions, suits or proceedings of a civil nature and in all special statutory proceedings” unless otherwise specified. In criminal cases, the Wyoming Rules of Criminal Procedure generally apply. Similarly, the Wyoming Rules of Evidence also usually apply to most judicial proceedings. Having the Rules of Procedure and the Rules of Evidence apply makes it difficult, at best, for a non-lawyer to know what to do or how to do it.

The most important exception to the applicability of the rules of procedure and evidence is Small Claims Court. In contrast to most courts, which are designed for lawyers, Small Claims Courts are designed for lay persons. “No formal pleading other than the claim and notice is necessary. The hearing and disposition of the hearing shall be informal.” Furthermore “strict” rules of evidence “shall not apply” in Small Claims Court. Judges in Small Claims Courts, therefore, have substantially more leeway to provide assistance to pro se litigants.

Beyond Judicial Ethics
How far a judge should go in assisting a pro se litigant will always be a difficult decision. It will not be difficult, however, to treat everyone with dignity and respect. Just as there should be no need to tell lawyers they should behave decently, there is no reason to tell judges that either.

Perhaps one of the better suggestions I heard from a judge was that a judge should, at the outset of a trial involving a pro se litigant, explain the procedure to be followed. As the perception that most folks, including many law students, have of court is based on what they have seen in the media, explaining how things really work will accomplish a couple of things. First, it will correct any misperception that the lay person has about court. Second, it may convince a lay person that he or she will have the chance to be heard, and, in the meantime, keep quiet (or at least quieter).

Beyond explaining procedural matters, it may help if a judge explains his or her ruling. Telling a person why he or she “lost,” or why the judge cannot do what the person wants, may help a great deal.

Finally, when all is said and done, patience and courtesy go a long way. While we all get impatient and want to get on with whatever is next, allowing a person to vent may be the reason he or she is in court. While the time may come that a judge owes it to everyone to put a stop to inappropriate behavior, that time is probably later, rather than sooner.

Whether we want to admit it or not, we are all, lawyers and judges alike, part of the system. How we behave and treat others will have a lasting impact. It will determine whether the unrepresented persons with whom we interact respect the system or despise it. As lawyers, the words of the preamble to the Wyoming Rules of Professional Conduct should ever be in our minds. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” The quality of justice depends, in significant part, on how participants, whether represented or not, are treated.

Similarly, “[t]he role of the judiciary is central to American concepts of justice and the rule of law. . . . [J]udges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.” Treating all litigants with patience and courtesy will do much to enhance the public’s confidence in the legal system.

At the end of the day, we lawyers and judges can choose how we treat others, including pro se litigants. We can choose to treat them with dignity and respect, or with impatience, as some lesser beings who are not blessed (or cursed) with a legal education or a black robe. And after all, “it is the choices we make . . . . that show who we truly are, far more than our abilities.”

John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.

The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.

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