Ethics of Dealing with Self-Represented Litigants Kendra Jacobs Gerrand Rath Johnson Civil Litigation Ethics October 22, 2013 October 22, 2013 Saskatoon Regina
Ethics of Dealing with Self-Represented Litigants By Greg D. Fingas Presented by Kendra L. Jacobs The Law Society of Saskatchewan s Code of Professional Conduct emphasizes that the primary duty of a lawyer dealing with a self-represented person is to sharply define the role of counsel and encourage the unrepresented litigant to seek independent representation: 6.02(9) When a lawyer deals on a client s behalf with an unrepresented person, the lawyer must: (a) (b) (c) urge the unrepresented person to obtain independent legal representation; 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 make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client. However, an individual is entitled to proceed without counsel: see Rules 1-2(2) and 2-33 of the 2013 Queen s Bench Rules. That choice may then complicate the adversarial process for both the Court and the opposite party s counsel. In this paper, we first set out the considerations applied by courts in managing cases involving self-represented litigants. We then review how counsel ought to approach matters where these considerations are engaged. 1. Role of the Court In September 2006, the Canadian Judicial Council adopted a Statement of Principles on Selfrepresented Litigants and Accused Persons (the CJC Statement ). The CJC Statement provides in part as follows as to the steps which may be taken in ensuring a fair hearing a for a selfrepresented party: STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation. PRINCIPLES: 1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. 3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible. 4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may: (a) explain the process; (b) inquire whether both parties understand the process and the procedure; (c) make referrals to agencies able to assist the litigant in the preparation of the case; (d) provide information about the law and evidentiary requirements; (e) modify the traditional order of taking evidence; and (f) question witnesses. This set of activities which may be pursued in the interest of allowing a self-represented party to be heard is consistent with case law to the effect that the court is required to ensure that proceedings involving self-represented litigants are fair to all parties. In principle, self-represented parties are subject to the same rules and processes as all litigants. Per Scott C.J.M. in J.W.C.R. v. C.R., 2006 MBCA 59: As everyone who is involved in court matters knows, more and more litigants, especially in family proceedings, are self-represented. This often creates difficulties not only for them but for court staff and judges. Notwithstanding, it is not accurate to say, as counsel for the wife seemed to be suggesting, that self-represented litigants (SRLs) have some kind of special status. See also Wozny v. R., 2005 QCCA 360 at para. 17: (E)ven though Mr. Wozny is not a lawyer, it matters not as far as his conduct before the courts is concerned and the powers of the courts to control their process. Just as a court would not administer the applicable substantive law differently because one of the parties was a self-represented litigant, so too should courts require self-represented litigants such as Mr. Wozny to participate in litigation according to the same standards of civility and courtesy that are expected of members of the Bar. However, a court faced with a self-represented litigant will generally make special efforts to ensure the matter is heard fully and fairly notwithstanding the unrepresented party s unfamiliarity with the legal system. Per Scott C.J.M. in Child and Family Services of Winnipeg v. J.A. et al., 2004 MBCA 184 at para. 32, 36 (citations omitted):
The extent to which judges should afford an unrepresented litigant additional leeway with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. It is generally recognized that the court should provide some assistance to an unrepresented litigant...but at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality. How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts. (F)airness and balance are the touchstones to enable justice to be done to all parties. A subsequent case involving the same litigant offers an example of the risks where a court dispenses too quickly with the representations of a self-represented litigant. In Director of Child and Family Services (Man.) v. J.A., 2006 MBCA 44, the litigant sought to have a trial delayed in order to bring a motion for recusal based on bias; the trial judge dismissed that motion without a substantive hearing. The Manitoba Court of Appeal held that the judge erred in so doing. In particular, Hamilton J.A. observed at para. 31 that the court is generally expected to deal in substance with poorly conceived motions even from counsel, and that a judge must take special care (and be patient) in order to ensure that an unrepresented litigant receives a fair hearing under similar circumstances. A court s attempts to assist a self-represented litigant may also be subject to challenge where they substantially affect the litigant s presentation of his own case. In R. v. West, 2010 NSCA 16 ( West ), the appellant s grounds of appeal included an argument that the trial judge had erred by preventing him from testifying (by cautioning against the damage that would be done to his case if the Crown were able to cross-examine him on a false alibi). The Nova Scotia Court of Appeal held that the trial judge came close to the line (para. 80), but ultimately dismissed the appeal. Courts may be particularly sensitive in relieving against procedural mistakes by a selfrepresented litigant. See e.g. Bourdages v Chanathavone, 2011 SKPC 69 at para. 5, where Jackson P.C.J. allowed the plaintiff to add an allegation of negligence simpliciter to a claim for negligent misstatement at the conclusion of the trial, and West at para. 22, where the Nova Scotia Court of Appeal allowed the appellant to argue grounds of appeal beyond those included in his Notice of Appeal. However, procedural issues may be held against self-represented litigants based on a combination of adequate warning by the court, and prejudice to the opposing party. In Bird v Bird, 2013 SKQB 157. Ryan-Froslie J. described her role in addressing the needs of a selfrepresented respondent as follows at para. 44: Whatever the reason, in assuming the role of representing herself, [the respondent] assumed the responsibility for preparing and presenting her case which includes following the Rules. While great latitude is given self-represented litigants, in the final analysis a judge must maintain their neutrality. They cannot enter the fray. They can
canvass the issues, explain procedure and in a general way describe what evidence may be required but they cannot tell a self-represented litigant what evidence they must call or what they need to do. Ryan-Froslie J. refused to allow the self-represented respondent to introduce a medical report at trial where she had failed to provide appropriate notice of any medical evidence despite being repeatedly informed of her obligation to do so (para. 49). However, Ryan-Froslie J. did allow the respondent to introduce an appraisal report notwithstanding a lack of compliance with the Queen s Bench Rules since the applicant received prior notice of its use and was not prejudiced by its admission (para. 55). Ultimately, a self-represented litigant will not be permitted to ignore responsibilities to the court with impunity. See e.g. Breberin v. Santos, 2013 BCSC 560 at para. 76-78, where Willcock J. dismissed the self-represented plaintiff s claim based on her repeated refusal to make required disclosures. In addition, a court may make costs orders to compensate for the effect of ill-advised applications by a self-represented litigant: Dutchak v. Dutchak, 2009 SKCA 89 at para. 17. 2. Role of Counsel When approaching a matter involving a self-represented litigant, counsel should keep in mind the role of the court as set out above. If the court offers some latitude to a self-represented party who has not fully complied with the applicable rules, that decision should be respected where it serves the courts ultimate purpose of evaluating a claim on the merits in fairness to all parties. However, actions by a self-represented litigant which render a proceeding unfair to the opposing may be subject to sanction just as they are where the opposing party is represented. In some cases, counsel and other persons with duties to ensure the fair administration of justice may also hold a heightened obligation to place full and accurate information before the court: R. v. Latham, 2010 SKCA 18 at para. 23, 33. However, this duty does not extend to an obligation to assist the opposing party. In Dodge v. Dodge, 2007 CanLII 80075 (ON SC), the applicant moved to set aside a judgment on the basis that the respondent s counsel breached a duty of candour by failing to warn him of his own rights. Campbell J. rejected this argument on the following basis at para. 45-47 (emphasis in original): It is not Mr. Menear s responsibility to put Mr. Dodge s claims or allegations before the court. It is my view that all counsel, as officers of the court, owe a duty to the court to be open, honest, trustworthy, reliable, and candid. That duty also extends to opposing counsel and to unrepresented litigants alike, regarding procedural matters. It extends to the basic courtesies relating to time-lines (eg. late service of documents) and full disclosure of documentation that support his/her client s case. As a courtesy, counsel may also encourage unrepresented litigants to seek/obtain independent advice regarding certain (possibly contentious) issues that have or might arise between the litigants. However, where Mr. Hainsworth and I part company is when he argues that Mr. Menear owed a duty of candour to Mr. Dodge in that he, Mr. Menear, was obliged to
warn/inform Mr. Dodge of his legal rights regarding the Burns Street and investment assets and, further, to put to the court at the uncontested trial Mr. Dodge s contention that those four assets should not be included in the Net Family Property Statements since (Mr. Dodge now argues) they were excluded as a result of his (then deceased) father s actions before his death. Ms. Dodge retained Mr. Menear (at great expense, I am sure) to represent her interests, not to raise in court obstacles to her claim(s) on behalf of an unwilling opponent, who refused to participate. By this argument, Mr. Dodge seeks now to somehow shift responsibility for his own avoidant behaviour onto Ms. Dodge and her lawyer, Mr. Menear. To accept Mr. Hainsworth s argument would place every counsel facing an unrepresented litigant in an entirely untenable position (i.e. arguing one side of a dispute, while also facing a duty to raise the arguments in opposition to his own client s claim(s) on behalf of/for a phantom litigant who would be entitled to obtain that service for free). An extension of Mr. Hainsworth s argument would allow that unrepresented litigant to, later, if/when unsuccessful, be able to argue that his former wife s lawyer did not present his own claims adequately as has occurred in this case. The argument is specious; that is to say superficially plausible, at first blush, but in reality it is entirely fallacious, internally flawed, and without merit. Finally, just as an unrepresented litigant may be required to comply with standards of civility and courtesy, counsel must extend the same to a self-represented adversary. In Lanning (Re), 2008 LSBC 31, the respondent was alleged to have acted unprofessionally by sending letters which belittled a self-represented opposing party. Chair Jackson upheld the citation against the respondent, holding as follows at para. 55-57: (T)he Respondent s letters belittle an opposing party who had no legal training. They contain references to the Respondent s extensive experience in a condescending manner. This worsened after October 30, 2006, when the Respondent learned that NG had been critical of his performance in her communications with LG and his girlfriend. A trained and experienced professional is expected to be more adept in legal matters than a nonlawyer. It is unfair to exploit that inequality in skill and experience in communications with the self-represented litigant in such a condescending manner. The client s interest is advanced by counsel through litigation or settlement, not through personal attacks. Attempting to crush the opposition in such a fashion is not the fair and honourable means referred to in the Canons. The Respondent s correspondence to NG fell markedly below the standard expected by the Law Society of a member, and amounts to professional misconduct. 3. Conclusion In summary, the presence of a self-represented litigant does not alter the court s basic obligation to ensure the just resolution of claims in a timely and cost-effective way (as set out under Rule 1-3). Nor does the fact that a litigant is self-represented deprive the opposing party of its usual procedural tools to expedite matters, dispose of claims and seek costs where appropriate.
However, a presiding judge faced with a self-represented litigant may be expected to engage in more active management of a matter. And counsel should neither be too quick to use the gap in specialized legal knowledge to obtain tactical advantages over a self-represented party, nor be unduly critical of the judge s efforts to ensure fairness for all parties.