‘In Australia, should a lawyer’s duties to a self-represented litigant be different from a lawyer’s duties to a represented litigant? If so, how and why? If not, why not? ’ Lawyers in Australia are bound in their work to a number of ethical and professional responsibilities that dictate the way in which they conduct themselves and deal with the court system. These obligations highlight the highly technical nature of litigation, something which is heavily reliant on the interdependency of the courts and the legal profession in general.
Courts are statutory and rule based environments and those who are not trained in their operation, boast the necessary specialist legal skills, or owe no duty to them or their members, inevitably create problems in the facilitating of justice equality before the law. Thus, self-represented litigants pose numerous problems for the lawyer who is opposing them in court. There are no strict guidelines on how to deal with these unrepresented litigants who themselves owe no ethical or professional duties and it is often up to the lawyer whether and to what degree they owe these litigants a duty.
The right to representation, including self-representation, is not explicitly recognised by Australian law as a fundamental human right, as opposed to the right to a fair trial. Nonetheless, this right to representation has a very important precedent in the Australian legal system and it is regarded as ‘a basic tenet of our democratic system that all have access to the Courts and each person the right to present his or her case’.
This is demonstrated by the number of initiatives and organisations that are designed to provide the population with some form of legal aid and representation as to facilitate the process of equality before the law. These resources however, for various reasons, do not have the ability to reach every person who needs them and this creates problem of the self-represented litigant. Self-represented litigants (SRLs) are not a new phenomenon but one that is on the increase in the Australian legal system.
The Family Law Council Litigants in Person report defines an unrepresented litigant ‘as someone who provides his or her own address for service’ and highlights that ‘unrepresented’ is a broad term which encompasses both those litigants who have had some legal aid but represent themselves in court, and those who have had none. The trend of SRLs appearing in courts is due to numerous factors. A person may refuse legal aid with the wish to represent themselves due to a distrust of lawyers and the legal system or because they feel they simply know everything, or they may be refused legal aid for a number of reasons.
More frequently however, the cost of legal services is the major factor in influencing a person to represent themselves in litigious matters. As the cost of legal services is increasing people may choose to potentially save money by representing themselves, and others have no choice in the matter as they simply cannot afford the legal services they require, yet do not meet the means or merit test required for legal aid. There is a trend of SRLs in family and migration cases because of this lack of accessibility to resources and money for legal aid and services.
A 2000 report by the Australian Law Reform Commission found that 31% of migration cases involved SRLs, and the Family Law Council Litigants in Person Report found that within the Family Court more than one third of cases involved one or more SRLs. SRLs not only pose numerous problems for the court system in terms of the amount of time, costs and resources needed to properly deal with their case, but also the other party in terms of the increased cost, time and resources needed to maintain what is often a lengthy case with an SRL as an opponent.
SRLs put a strain on court resources and limit public access to the courts and judicial system. The SRL themself also faces a lot of stress and emotional burden in preparing and presenting their own case in the courtroom, combined with the harm they will suffer upon losing the case, which in the case of a SRL is likely. Furthermore, the lawyer representing the other party is faced with a variety of ethical and professional dilemmas when considering how to appropriately deal with an SRL as opponent.
Lawyers must comply with the legislative obligations contained in the Legal Profession Act 2004 (NSW) and the Legal Profession Regulation 2005 (NSW), as well as their professional obligations under the Revised Professional Conduct and Practice Rules 1995 (NSW), also known as Solicitors Rules. This legislation outlines the manner in which lawyers should conduct themselves during litigation. Lawyers have certain duties to third parties as outlined in the Law Council of Australia Model Rules of Professional Conduct and Practice.
Here it is stated that lawyers must act with ‘the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest’ when dealing with third parties. Although these documents do not explicitly deal with the treatment of SRLs, it is assumed that they adhere at least to the duties owed to third parties. The extent to which the other rules and duties should be adhered to, however, is not clear and this makes the litigation process a difficult and stressful one. Most lawyers would volunteer to be flogged with a cat-o’-nine tails before offering to try a case against an unrepresented litigant’. This quote by Cornelius D. Helfrich quite accurately highlights the attitude of the majority of lawyers towards self-represented litigants. This is because there are no set guidelines on how to deal with a SRL, although over the past few decades there have been numerous reports, papers and books written on how to deal with SRLs and proposing specific plans of management.
There is a general consensus among these numerous reports, that is, to ensure a fair and equal trial but not to compromise the obligations owed to the lawyer’s own client and to the court. Lawyers here face conflicting ethical and professional obligations to help out the SRL but also to remain objective and ensure a fair trial for both sides without helping the SRL so much so that they gain an unfair advantage.
Lawyer’s duties to the SRL are much the same as the lawyer’s duties to a represented litigant. The lawyer has a duty to act in the best interests of their client; after all, they are employed to do just that. The lawyer will attempt to present their own client’s case in the best possible light which may include questioning the reliability of evidence or witnesses presented by the opposition.
Obviously, as with a represented litigant a lawyer should never act unfairly or dishonestly, and furthermore, they must not use their position to take unfair advantage of the SRL. Ethically, lawyers are bound to the court and whether the other party is represented or not, the lawyer will be obliged to bring to the court’s attention anything that may affect the court proceedings or ability to reach a fair and just decision, such as false or misleading information or evidence presented by the other party.
As a lawyer, there is a conflict of interests between their ethical duty which lays with their obligation to their client and the ethical duty owed to the practice of law and justice in general, meaning they should have an ethical obligation to help the SRL, even though this may not be in the interest of their own client. It has been suggested by the Australian Institute of Judicial Administration (AIJA) that a lawyer’s duties may be, n some cases, to assist a SRL. There is a lot of debate within the legal world about whether a lawyer should in-fact assist a SRL, and if so, to what degree and in what respects. While there are no strict guidelines to deal with these litigants, the lawyer must attempt to remain within their own professional rules which may be harder when the SRL is not subject to the ethical and professional constraints applied to lawyers in the conduct of their client’s case. The neutrality of the court is an essential part of the adversarial system’ and it is the court’s duty, as well as lawyer’s duty, to remain neutral and objective. For the lawyer with a SRL as opposition, this may be more difficult than if they lawyer was dealing with another lawyer. This is because the lawyer must deal directly with the client themselves and there is no objective middle ground.
In order to deal with this, it has been suggested that the lawyer pose questions in an objective and neutral manner with the intention of elucidating the facts while avoiding an emotional response. It has been suggested by Justice Strickland that when dealing with an SRL a lawyer should ‘treat the other litigant as though he or she is the lawyer and not the other party’. However, this approach seems harsh as it does not take into account the context of the particular case and individual, further generating the image of lawyers as unsympathetic and impersonal.
It is even harder of course, for a SRL to remain neutral and objective as they are presenting facts and arguments on something that is emotionally and otherwise very close to them. This lack of objectivity and emotional distance is a disadvantage to everyone involved in the litigation process as it impacts upon the ability of the SRL to present their case and arguments clearly and with critical analysis, and to choose appropriate evidence and issues. For these reasons, the lawyer should be patient, sympathetic, and professional and show ‘flexibility’ in their approach.
Furthermore, a SRL is at a serious disadvantage in litigation as they do not have the same knowledge of the relevant law and procedure as the lawyer opponent or the skills needed to present a case and argument before the court coherently and logically. The SRL will likely also lack familiarity with the language and specialist vocabulary of litigation The lawyer may be required to address ‘large numbers of ambiguous and irrelevant issues and evidence raised by unrepresented litigants’ and in these instances needs to remain patient and exercise commonsense.
In addition, because lawyers have a monopoly on the provision of legal services, and in conjunction with the judicial arm of the government, have largely created the Australian justice system, I consider lawyers to ‘have a particular responsibility to assist those who do not have equality of access to legal services’. With all these factors taken into account I believe that there is no definite answer or approach that can be taken to deal with SRLs as opponents. The degree to which the lawyer should help the SRL should vary depending on the context and nature of the case and the litigant themselves.
I believe that it is not unreasonable to ask the lawyer to help out any SRL with simple court proceedings such as when to stand up or how to refer to the judge and perhaps even with the filling out of paperwork and some basic advice on how to present evidence and what to do and what to avoid doing in the courtroom. Although this goes beyond what is generally asked of a lawyer, especially in regards to the duties that a lawyer owes their own client, this type of duty to a SRL, especially one who is willing to help others help themselves, would increase the mobility of the entire case and not put such a strain on time and other resources.
In non-criminal cases, especially family and migration cases, where custody and protection of children, domestic violence or lack of English language may be involved I believe there is a greater ethical duty owed by the lawyer to offer assistance. This may be contrasted to such a case involving big business which is significantly less personal and there are not a number of disadvantages already blatantly present. Furthermore, the severity of the case and proceedings should be a factor in influencing the amount and type of assistance offered to the self-represented litigant.
For example, in novel matters where one or both parties are expected to exit the proceedings with no or little harm, for example a small fine or warning, more support should be given to the SRL to speed up proceedings and avoid unnecessary costs and stress, although this should not necessarily involve giving legal advice. Where more is at stake for either party, for example a large fine or incarceration, the lawyer needs to be more careful about the degree to which they help the SRL, especially taking into account the fact that they are employed by their client to best represent them and attain the best possible outcome.
In conclusion, as there are no set guidelines on how lawyers should deal with self-represented litigants a variety of factors must be taken into account when the lawyer is deciding what duties are owed to the litigant. There is no doubt that the lawyer will face conflicting ethical and professional obligations when dealing with a self-represented litigant. The lawyer must balance out their duties to their client, the court and the unrepresented party, while adhering to the professional rules of conduct.
The particular context of the case, including which court the case is taking place in and the individual litigant themselves should be a factor in assessing these duties, as should the severity of the case. Ultimately, lawyers facing self-represented litigants will be in a potentially compromising and stressful position and it is up to them how, where and to what degree their duties lay.