In the introduction to this blog series, I offered you two overarching recommendations: 1) be nice; and 2) never communicate with your pro se adversary orally. Keep them in mind as you review the rest of my advice.
1. Clarify Your Role
Rule 4.3 of the Rules of Professional Conduct provides that, in dealing with an unrepresented individual, a lawyer must not state or imply that he or she is disinterested, and that the lawyer must make reasonable efforts to correct any misunderstanding a pro se has about the lawyer’s role. In communicating with a pro se litigant, communicate only in written form or on the record. This is because the unrepresented individual will often not understand what you have said or will intentionally misunderstand it. Thus, clear communication in written form or on the record, especially to avoid having a meritless grievance filed against you, will serve you best.
2. Do Not Give Legal Advice.
In the course of a lawsuit involving a pro se, there will likely come a time when the pro se asks you what he or she should do next. Rule 4.3 also prohibits a lawyer from giving advice to an unrepresented person (except a recommendation to hire counsel; more on this later) when the person’s interests might reasonably be in conflict with the interest of the lawyer’s client. Explaining that early on may help defuse a confrontational reaction later, when you remind him, for example, that you cannot advise on how to respond to a motion or discovery request. Inform him that your inability to help is not a sign of disinterest, but a result of your ethical obligations to your own client, and the need to avoid even the appearance of a conflict of interest.
3. Stay Calm
While your client may not understand this strategy, it will benefit him if you remain calm, explain to the pro se what you are doing and why, and which rules permit you to do so. The biggest frustration for pro ses is that they don’t understand the procedures or the process, and sometimes taking a moment to explain “This is the process, this is the rule, and this is why I’m doing this,” can be helpful. A brief explanation can defuse a potentially costly confrontation caused by needless motion practice.
Furthermore, consonant with being professional is maintaining a composed demeanor. Pro se parties are directly affected by the litigation and its outcome, which can, obviously, lead to emotional interactions. Litigation, by its very nature, can engender high emotions. Family law litigation especially may exacerbate these emotions, especially when it involves children. Pro ses may be unable to separate their emotions from the legal proceedings.
Dealing with a pro se litigant can be frustrating. Many are not aware of the rules and do not bother to learn them. Others think they know the rules better than you do and will accuse you of not following them. Some go so far as to file motions with the court based on trivial or nonsensical arguments, insisting the court sanction you for your actions.
While you must avoid giving the pro se legal advice, by calmly explaining your actions, you may be able to demystify the litigation process, and thereby reduce the chance that the pro se will file unnecessary and costly motions based on a misguided argument that you did not follow the rules.
4. Be Polite And Professional
When dealing with a pro se litigant, remain professional; do not be rude, regardless of how upset or confrontational the pro se may become. Being polite can be difficult when a pro se is yelling and calling you names. You, however, must remember that most pro ses do not understand the system and take every action you take in the case personally. As a result, their emotions run high, and they are more likely to lose their tempers with you. Recognize that a rude reaction is not likely to help your client’s case. Potentially, a pro se might retaliate by moving for sanctions, or even by filing a bar grievance. At a minimum, responding to such a complaint will entail unnecessary cost and distraction for both you and, potentially, your client.
Moreover, if you allow your personal dislike for a pro se to influence your actions, you might compromise your ability to represent your client effectively. Thus, it is critical that you remain composed and professional when dealing with a pro se.
5. Don’t Be Unethical
I know this doesn’t need to be said, but there’s actually a reason to say it. Remember this phrase: Litigation Privilege. As translated by the layman, it means that you can do just about anything, especially to a pro se, to protect your client. Therefore, pro ses assume that you will. This means that they believe that you will lie, steal, and cheat, if you can get away with it, to win. You know you don’t need tricks to defeat pro se litigants, but they believe that you will try them anyway. They assume that you’ll try to scare them into paying more than they owe or settling for less than they deserve, or that you’ll use requests for admissions to make them “admit” to undeserved liability by not answering.
So, keep your pro ses expectations in mind and don’t even be tempted.