Ethically Speaking
| Jurisdiction | United States,Federal |
| Citation | Vol. 38 No. 1 Pg. 44 |
| Pages | 44 |
| Publication year | 2015 |
John M. Burman Emeritus Carl M. Williams Professor of Law & Ethics University of Wyoming College of Law.
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[1] nor the code which regulates judicial conduct[2] 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[3] ).[4] In most civil cases, however, there is no such right. (There are exceptions. For example, a parent in a termination of parental rights case[5] or a parent in certain juvenile cases also has a right to counsel.[6] ) 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.[7] 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."[8] By contrast, "Corporations and unincorporated associations (other than partnerships and individual proprietorships) may appear only through an attorney licensed to practice in Wyoming."[9] (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 . .” [10])
The Preamble to the Wyoming Rules of Professional Conduct (the "Rules") provides "general orientation" to the Rules.[11] 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."[12] 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."[13] 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.[14] 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."[15]
The Ethical Framework for Lawyers
The Rules are premised, for the most part, on a lawyer representing a client[16] 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."[17] ).
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.[18]
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."[19] 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"[20] 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."[21] 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."[22] 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"[23] 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,"[24] 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."[25] 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...
To continue reading
Request your trial