Self represented parties and sharp practice by counsel. Should we be thinking differently?

War is the means by which nation states have sometimes resolved their differences. Litigation is the means by which people in our society sometimes resolve their differences. In both cases, there is value in prescribing the rules of engagement.

As wars between sovereign states have become less common and wars between sovereign states and insurgencies have become more the norm, the traditional rules of war seem to have become less relevant. This is presumably because rules that work to govern combat between traditional armies don’t effectively address asymmetric disputes where conventional militaries face off against “guerrillas”, “terrorists” or “freedom fighters” (the language depending on perspective and context).

Of course litigation is not and should not be conducted like a war.

My point is that necessary rules of engagement can be based on principles that no longer apply in some circumstances. Our professional conduct rules may face a similar challenge as the rules of war as the conduct rules appear to be premised on the assumption that all parties are represented by counsel and are comparably resourced.

Perhaps more importantly, life is not mostly about rules. Social norms are often more important than rules both between nations and within societies. We know from recent events that destabilizing important social norms is corrosive and threatening. But the reverse is also true. Making clear what is fair and acceptable is valuable. If we are going to deal properly with access to justice and SRLs, we need to be clear that treating people properly and not taking advantage of their vulnerability matters.

The 2nd National-Self Represented Litigants Project Dialogue

I recently attended the 2nd National-Self Represented Litigants Project Dialogue (the “Dialogue”) at the University of Windsor. In attendance were self-represented litigants, lawyers, judges and academics. This conference was held five years after the first SRL Dialogue which addressed the research undertaken by Professor Julie Macfarlane about self-represented litigants (SRLs).

One of the topics raised by SRLs at the Dialogue was sharp practice by counsel. These SRLs made clear that they consider that they were commonly being dealt with unfairly by opposing counsel. One lawyer at the Dialogue suggested that this was because the conduct rules were written by lawyers for lawyers.

I disagreed saying that it seemed to me that our approach to legal ethics was premised on the assumption that all participants in the adversarial process are represented by professional advocates – and that our approach can be problematic where that assumption does not apply.

Legal ethics in the adversarial system where parties are not evenly matched

In litigation

Essential to Canadian legal ethics is that advocates will resolutely advance their client’s interests subject to ethical obligations intended to ensure that the administration of justice works properly. For example, ethical rules require that counsel not “deliberately refrain from informing a tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party” and not “make suggestions to a witness recklessly or knowing them to be false”[1].

Adversarial systems, by their nature, work best where the protagonists are similarly resourced. An independent adjudicator is best able to reach a fair decision where competition between adversaries ensures that all relevant evidence and arguments are tested. Where parties are very differently resourced, the adversarial process works less well. This is the stuff of movies where a human David takes on a corporate Goliath in court. Davids win in movies but not so much in real life.

The David and Goliath problem can exist where David is represented by counsel. Even having experienced counsel does not necessarily overcome having insufficient resources to conduct investigations, retain experts and prepare for trial. The unfortunate reality is that some Goliaths conduct strategic wars of attrition. Even where that does not occur, being out-gunned is problematic in an adversarial system.

A David and Goliath problem can arise where a represented party engages with another party who can’t afford counsel. This appears to be most common in family law proceedings. While it is of course commonly the case that neither party is represented, it is common for one family law litigant be represented while their opposing party is not. This also occurs in other civil litigation between individuals and in civil litigation between individuals and business.

It was striking to hear from SRLs attending the Dialogue of their perception was that they commonly experience sharp practice in dealing with the advocates on the other side. Of course, this is anecdotal information. It may be that SRLs who experience sharp practice are more motivated to become engaged and to report their experiences. It may be that there is another side to the story. It may be that SRLs may consider some conduct to be sharp practice which actually is not. But it makes sense to think that SRLs are more vulnerable to sharp practice and the stories told seemed to me to reflect real problems.

If we accept that SRLs are more vulnerable to sharp practice and that some advocates seek to advance their clients’ interests by taking unfair advantage of their greater expertise and client resources, the question arises whether ethical rules premised on representation adequately protect the administration of justice where the adverse party is self-represented.

Probably more importantly, if the administration of justice is going to work properly where SRLs are involved, it is important that counsel take care to act properly.

Demand Letters

A similar issue arises where lawyers make demands for payment for relatively small amounts on behalf of well-resourced clients against parties who are unlikely to seek representation. Amy Salyzyn wrote about this several years ago in her column Bully Lawyers & Shoplifting Civil Recovery Letters: Who’s Going to Stop Them? and in her journal article Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters. The Toronto Star has recently addressed this issue in an article which quotes Alice Woolley saying that “There’s an exploitation of power here”.

A problem arises where the amount in issue, say a few hundred dollars, is not enough to merit the cost and trouble of seeking legal advice and the demand for payment is either without legal merit or of dubious merit. The problem is compounded where there is no real prospect that the claimant will commence proceedings and have the merits of the claim fairly adjudicated. While many recipients of such demands will ignore them, some will pay on demand out of fear or ignorance.

Where the recipient of a dubious demand letter seeks legal counsel, the recipient can elect to pay or not pay on an informed basis. Where a demand is adjudicated, a dubious demand can be dealt with on the merits and, where appropriate, costs can be awarded against the claimant.

But where large numbers of dubious or improper demands are sent where legal representation is unlikely, there is a problem where payments are made out of ignorance or fear. It is not a sufficient answer to say that the courts will adjudicate such demands where proceedings will not be brought and adjudication will not occur. Economics underlie the problem. There is an incentive for a claimant to send a volume of demands if the cost of each demand is low and some demands are satisfied. There is little if any incentive for a claimant to actually commence litigation against any one potential defendant. It makes little practical sense for any recipient to engage legal counsel for a few hundred dollars to decide whether or not to pay a claim for a few hundred dollars.

Our adversarial system and our approach to legal ethics operate effectively where parties are represented by counsel and have reasonably comparable resources. But for Davids facing Goliaths, whether in litigation or before litigation, there can be problems.

The Conduct Rules and self-represented parties

Rule 5.1 of the Model Code (The Lawyer as Advocate) does not address dealing with represented and self-represented adverse parties any differently[2]. The requirements of Rules 5.1-1 and 5.1-2 simply do not address acting against self-represented parties[3].

Under Rule 7.2 (Responsibility to Lawyers and Others), Rule 7.2-9 provides that:

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

(c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client.

Rule 7.2-9(a) is of little value in addressing imbalance where a person is self-represented because the person cannot afford representation or because the cost of representation is disproportionate to the matters in issue. Where a person can’t afford representation, it is of no value to urge them to obtain representation. Beyond this, the rule simply ensures that SRL understand the role of opposing counsel.

That said, it is not entirely obvious how the conduct rules ought to be modified where one party is represented by counsel and the other is not. It is difficult to conceive of conduct rules that provide for constrained representation in an adversarial process when our entire ethical approach is premised on undivided loyalty.

What to do?

At a deeper level, the problem is less the conduct rules that the advocate must follow and more the use of the adversarial system to resolve disputes where some of the adversaries do not have sufficient resources for the adversarial system to work properly. And particularly in the family law context, it is seems more than odd to think that an adversarial approach is constructive where relationships must continue through custody and support and where emotion rather than reason is so often in play. It is the very adversarial system, rather than the conduct required of counsel therein, that appears to be the problem.

But assuming the adversarial system, we should question whether reform is appropriate to address the fact that the adversarial system and the conduct rules are built on the assumption that all parties are represented by counsel.

As to modified conduct rules, I’m not aware of any proposals that could effectively make the administration of justice work more effectively in this context[4]. I doubt that it would be useful to vaguely require counsel not to take “unfair advantage” if that means doing something other than acting in accordance with the existing rules. And if the existing rules should be modified in context, advocates should be told what that the modifications really mean[5].

Perhaps the answer is not so much the conduct rules themselves but rather their application. Where both parties are represented by counsel, the advocate knows that breach of the conduct rules may well be identified by opposing counsel. There is greater disincentive to breach. And some breaches will be less likely to have an adverse effect on the administration of justice where there is effective adversarial competition.

If this is so then three points seem to me to emerge. The first is that there could be value in commentary in the conduct rules to the effect that a lawyer or paralegal is required to take special care to fully comply with the conduct rules where the adverse party is an SRL[6].

This might help set stronger social norms which could be valuable.

The second and third relate to the concurrent jurisdiction of the courts and the law societies in addressing the conduct of advocates[7]. As Chief Justice McLachlin said for the Court in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at paras. 13 and 15:

… The courts’ purpose in exercising their supervisory powers over lawyers has traditionally been to protect clients from prejudice and to preserve the repute of the administration of justice, not to discipline or punish lawyers.

… The purpose of law society regulation is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, the good governance of the profession.

Notably, not all sharp practice in litigation will engage the jurisdiction of the court over proper administration of justice. For example, where litigation does not follow a dubious demand letter, the court will have no jurisdiction. Even if improper conduct does engage the jurisdiction of the court, a judge may conclude that it is better not to “to criticize or complain about an advocate’s uncivil conduct in court” given “the simple reality that refraining from such action in a given case may permit the proceeding to advance more efficiently”[8].

Similarly, the law societies do not necessarily investigate and prosecute all professional misconduct. Give the volume of conduct investigated, relatively few conduct proceedings are commenced. Law societies are understandably reticent to adjudicate the propriety of legal claims. Law societies tend to defer investigation and prosecution of alleged misconduct in a proceeding until after the proceeding is completed to better ensure that complaints are not used as tactical weapons in proceedings and to avoid interfering with the administration of justice.

For an SRL who is uncertain about the process and see themselves as outsiders, this may contribute to a greater lack of confidence about the process itself. It may seem like protection of the advocate by the system. This may also result in fewer disincentives against improper practice. Those who are prepared to operate close to, or over, the line may be more prepared do so.

Assuming the adversarial system, the question is whether courts and law societies should be more willing to address alleged sharp practice where the opposing party is an SRL. There seem to be credible reasons to think so. There may be procedural mechanisms, just as an ombudsperson in the courts, who could assist. The risk on the other hand is that complaints could compromise the litigation process, whether intentionally or because the SRL is not well positioned to assess impropriety, thereby making an already inefficient and expensive process more so.

As is so often the case, the ultimate answer requires thoughtful balancing. But it does appear that the current balance may not best ensure the proper administration of justice[9].

_______________________

[1] Rule 5.1-2 of the Model Code of Professional Conduct

[2] The Commentary addresses dealing with unrepresented complainants in criminal and quasi-criminal proceedings which is a different matter

[3] Commentary 6 to Rule 5.1-1 contains an interesting but enigmatic reference to situations where the adversarial system does not operate effectively: “When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.” (Emphasis added)

[4] But I haven’t gone looking either.

[5] Alice Woolley has argued in Slaw that asking a prosecutor to “do justice” doesn’t really provide genuine guidance to a prosecutor who is to act as a strong advocate within the adversarial process.

[6] That said, I wonder if the implication of such guidance might be that full compliance with the conduct rules is not otherwise required.

[7] Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 55

[8] Groia v. The Law Society of Upper Canada, 2016 ONCA 471 at para. 108

[9] As always, this column reflects my personal views. It is written to raise rather than resolve the issues discussed.

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