Lawyers, judges owe duties to self-reps
By AdvocateDaily.com Staff
In part one of a two-part series on self-represented litigants, Toronto senior litigation lawyer Jeffrey Silver looks at what's expected of judges and lawyers.
Silver, principal of Jeffrey C. Silver Barrister, says the courts, regulators and legal organizations have all been forced into action by an explosion in the number of individuals appearing before judges without counsel.
In their book, Canadian Civil Procedure Law, Linda Abrams and Kevin McGuiness cite the declining availability of legal aid and the rising cost of litigation as reasons for the trend.
But whatever the explanation, “There is a real concern now in courts that self-represented litigants are dealt with fairly,” Silver says. “Before we can start thinking about practical ways to deal with self-reps and keep costs down, we must first gain a proper understanding of the duties judges and lawyers have to self-reps.”
According to Silver, 2006 was a key year in the development of judges’ duties to litigants without lawyers. That was when the Canadian Judicial Council (CJC) issued its statement of principles on self-represented persons.
“It put obligations on judges that normally would not be required of them in court, and allowed them to become more activist, so to speak,” he explains.
Unveiling the document, former Supreme Court Chief Justice Beverley McLachlin said that “ensuring better access to justice is a council priority,” adding that the increasing number of self-represented persons who appear in the court system was “a serious matter.”
“Access to justice for those who represent themselves requires that all aspects of the court process be open, transparent, clearly defined, simple, convenient and accommodating,” the statement reads.
To promote equal justice, the CJC statement also requires judges, where appropriate, to “consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons.” In certain circumstances, judges may also explain the process, provide information about the law and even refer self-reps to agencies that may be able to assist them.
“That’s a big shift because these are things judges would normally shy away from for fear of appearing to enter the fray or show bias to one side,” Silver explains.
The Supreme Court of Canada solidified the principles by endorsing them in a landmark 2017 decision. That was followed swiftly by an Ontario Court of Appeal case, where the panel found a trial judge had made an effort “to discharge his responsibility to protect the right of the self-represented person to be heard.” However, they found the judge fell short, due to his failure to sufficiently inquire about an abandoned claim, resulting in an unfair trial.
“These developments all put additional pressure on judges to act in a certain way,” Silver says. “Lawyers in court must understand that judges have their own obligations to self-reps that they wouldn’t ordinarily.”
Silver says lawyers must tread a particularly careful path when acting opposite self-represented litigants, due to the inherent tension between their duties to the opposing party, and that owed to their own clients.
According to rule 5.1-1 of the Law Society of Ontario’s Rules of Professional Conduct, lawyers in adversarial proceedings have “a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”
Silver says that duty bumps up against the need for civility between opposing counsel, with relationships between lawyers guided informally by the three C's: courtesy, communication and common sense.
“As a lawyer, you have an obligation to act in good faith and avoid sharp practice,” he says.
However, Silver adds that the tension magnifies when there is no lawyer on the other side since rule 7.2-9 sets out specific guidelines for dealing with unrepresented parties. According to the rule, lawyers must:
- take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer
- take care to see that the unrepresented person understands that the lawyer is acting exclusively in the interests of the client and accordingly their comments may be partisan
Professional groups have expanded on these rules with their own guidance for counsel. For example, the Advocates’ Society’s Principles of Professionalism and Civility for Advocates bars lawyers from attempting “to gain a benefit for their client solely due to the fact that a litigant is self-represented,” adding that they should “co-operate with the court in ensuring that a self-represented litigant receives a fair hearing.”
“At trial, advocates are entitled to raise proper and legitimate objections but should not take advantage of technical deficiencies in a self-represented litigant's case which do not prejudice the rights and interests of their client,” the principles continue. Similar guidance has been issued by the American College of Trial Lawyers in its Canadian Code of Conduct for Trial Lawyers.
In addition, Silver says a 2015 Ontario Superior Court case creates a positive duty for lawyers to assist unrepresented parties with scheduling.
“It is not just the duty of judges to ensure that all parties receive a fair hearing. Lawyers are required to do so as well,” the judge wrote, ordering defence counsel to accommodate the self-represented plaintiff’s needs when scheduling cross-examinations.
“It is the fairness of the process that differentiates the justice system from a street fight or trial by battle,” the judge added.
Stay tuned for part two, when Silver will offer practical tips for lawyers acting opposite individuals without legal counsel.