Last reviewed October How to Avoid the Complaint Dealing

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                                                               Last reviewed: October 2008


  How to Avoid the Complaint-Dealing with Unrepresented and
            Self-represented Parties in Family Law

One of the more challenging issues that lawyers face on an increasingly regular
basis is dealing with an unrepresented or self-represented party on the other
side. What may have seemed to be a relatively simple matter often evolves into
acrimonious, time intensive file when the other party is self represented.

In family law, the self represented party presents an even greater challenge
because of the many underlying emotional issues that frequently arise in family
law matters.

It is important to distinguish between an unrepresented party and a self
represented party. A n unrepresented party is often acting on his or her own
behalf because they have no choice-the party does not qualify for Legal Aid and
cannot afford a lawyer. Even if the party did have a lawyer at one time, they find
that they are now representing themselves as they no longer have the funds to
continue paying for representation.

Self represented parties represent themselves because they want to - they have
an agenda that they wish to follow and believe that they are able to represent
themselves. Although this paper generally refers to self represented parties,
some of the remarks are equally applicable to unrepresented parties.

Self represented parties are frequently unable to contain their anger at both the
opposing lawyer and their client. They can be so obsessed with punishing their
former partner or spouse that they will do whatever it takes not only to get even
but to get revenge. This may include trying to “destroy” the lawyer as well their
former partner or spouse. The lawyer may be faced with not only allegations
against his or her client, but attacks against he or she personally as well.

A self represented party also presents challenges because they although they
usually do not understand the litigation process, they believe that they have the
necessary knowledge and do not need a lawyer.

A further problem is the lack of restraint that a self represented party may
demonstrate in bringing motions, writing letters, and involving others in the
litigation simply because they are not constrained as a represented party would
be by cost concerns. There is no incentive to behave reasonably or to settle and
in fact, quite the opposite may occur. Escalating the amount of time the lawyer
spends on the file satisfies the self represented party’s desire to punish by
increasing the costs for the other party.
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The following are strategies that may assist you in dealing with a self represented
party that will hopefully help prevent a complaint from being made to the Law
Society.

Tip # 1 Establish your role – Advise the Self Represented Party that you do
not act for them.

At the outset, advise the self represented that you act for only their former
partner or spouse and that you do not act for them. It is imperative to set out that
you will not provide legal advice to the self represented party. This includes
general information about the law, how the law applies, legal options, etc.

The Rules of Professional Conduct provide that when dealing with an
unrepresented party, the lawyer should urge the unrepresented party to obtain
independent legal representation, e nsure that the unrepresented party is not
under the impression that their interests will be protected by the lawyer and
clearly indicate to the unrepresented party that the lawyer is acting exclusively for
their client. (Rule 2.04 (14))

Tip #2 Provide information when necessary, not advice

The situation becomes more complex when the self represented party brings
proceedings in the wrong jurisdiction or brings a motion improperly. You are then
caught in a balancing act between what constitutes providing information to the
self represented party and being accused by the self represented party of sharp
practice. The grounds for a complaint to be made are fertile-either the self
represented party will allege that you have misled them, have given improper
advice or have taken advantage of them.

If asked for directions on what steps to take or which action should be taken next,
refer the self represented party to the statements in your correspondence to them
that you cannot provide them with legal advice. If a procedural error is made,
then you should tell them that the error has been made in order to avoid being
accused of sharp practice but be mindful of not providing the self represented
party with advice.

Tip # 3 Establish a method of communication and stick to it

Establish a method of communication with the self-represented party and do not
deviate. In your first communication to the self-represented party, clearly outline
the rules for all future communications, including your time-frames for receiving
and responding to their correspondence. Set out in clear, concise and simple
language what the lawyer’s role is under Rule 2.04(14).

Ideally, a ll communications should be in writing. There is no obligation under the
Rules to speak with the self represented party. Therefore, a void telephone calls,
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meetings, and any opportunity for the self-represented party to engage you in a
conversation that cannot be corroborated. A self-represented party will have no
hesitation in calling you at all hours. In my experience, I have had self
represented clients call me late at night at the office, call me at home and fax
correspondence in the middle of the night.

It is common for a self represented party to try and cripple a lawyer’s practice by
bombarding them with letters, faxes or emails. Although Rule 6.03(6) sets out
that the lawyer shall answer with reasonable promptness all professional letters
and correspondence from other lawyers that require an answer, it is prudent to
apply this Rule when dealing with a self represented party in order to avoid what
will likely turn into a complaint if you don’t answer.

Although email may be a convenient way to communicate, ensure that you are
clear at the very first instance how you will respond. To avoid being confronted
with a barrage of emails each morning when you open your inbox, consider
telling the self represented party that you will only deal with their emails during
regular business hours.

Tip #4 Do not engage

While it is tempting to respond to every allegation, (and your client may insist on
dealing with every sentence) it is more productive and less costly for your client if
you deal with the issues and do not engage in a war of words. For example, if the
self-represented party writes you 5 letters or emails everyday and each is filled
with a litany of accusations against you and your client, you may want to consider
responding by acknowledging receipt of the correspondence, denying the
allegations where appropriate and dealing with only those issues that are
necessary. Keep your communications as brief as possible.

Remember, if you advise the self represented party that you will only deal with
those issues that are urgent, you can be sure that every future piece of
correspondence will be marked “Urgent”.

Ensure that your correspondence or other communications with the self
represented party are carefully drafted and clear. Rule 6.03(5) of the Rules of
Professional Conduct sets out that the lawyer shall not send correspondence or
otherwise communicate to any other person in the course of a professional
practice that is abusive, offensive or otherwise inconsistent with the proper tone
of a professional communication from a lawyer.

Tip # 5 Communicate with your own client

It is not unusual to become so caught up in dealing with the other side that your
own client may start to become dissatisfied, particularly when he or she receives
your account.
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Consider including in your retainer letter to your client a clause indicating that if
the other side is self-represented or becomes self-represented during the course
of the litigation, then there will likely being increased costs in dealing with their
matter. Remind the client of this on a regular basis.

It is also important to remind your client that their file may not proceed as it may
have otherwise because the other side is self represented. Orders may not be
complied with, requests for information ignored and indulgences granted by the
court. The lawyer’s client may become resentful that the self represented party
seems to “get away with things” while they are paying a lawyer and are treated
with less empathy by the court.

Tip #6 Act Reasonably

Under the Rules of Professional Conduct, a lawyer has a duty to be courteous,
civil and to act in good faith with all persons with whom the lawyer has dealings.
Again, take every opportunity to remind the self represented party that they
should retain their own counsel and indicate that there are a number of different
services that will provide appropriate independent legal advice. (Lawyer referral
service, legal aid, family law information centers, duty counsel)

Remember that the self represented party will use any opportunity to discredit
you before the court, the Law Society and your own client. Review all
communications from your office to ensure that there is nothing that can be
misinterpreted or can be viewed as misleading.

The Rules provide that a lawyer should agree to reasonable requests concerning
trial dates, adjournments, the waiver of procedural formalities and similar matters
that do not prejudice the rights of the client. (Rule 6.03(2)). Again, this is an area
that a lawyer should approach with extreme caution. There are numerous
reasons why a self represented party may request an adjournment or a waiver of
procedural formality, however your client will undoubtedly see these requests
from the self represented party as tactical strategies to delay the matter or
increase the costs.

Discuss each request made by the self represented party with your client and
explain why the request is being made. Determine what is reasonable given the
circumstances and whether your client’s rights will be prejudiced. Respond in
writing to the other side. If for example, a second request for an adjournment is
made and you and your client are prepared to grant the adjournment, put it in
writing why you are consenting and advise the self represented party of the
parameters of this or any other request. Consider stating that you will agree to
adjourn this matter fo r the second time because of the reason given by the self
represented party but will not agree to any further requests for an adjournment
because the delay will prejudice your client. There may be situations where the
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request would prejudice your client’s rights even when it is made initially. State
your reasons very clearly in writing if you are refusing an initial request to avoid a
complaint.
Tip # 7 Use the Rules of the Court

If you are in litigation, then you are entitled to rely on the Rules of the Court to
move the matter forward and to obtain the appropriate information and relief.
Advise the self represented party of your intention as you take each step.

You can also rely on the Rules of the Court to assist in controlling the self
represented party’s unreasonable behaviour or abusive tactics. Further, if the
self represented party is moving for relief and has not complied with an existing
court order, restrict the self represented party’s ability to proceed further until the
order has been complied with.

Ask for costs. It is crucial to advise the self represented party that you intend to
seek costs at each stage of the litigation. At some point, if there are significant
costs awards made, a self represented party may reconsider his or her decision
to represent themselves.

Finally, if you are asking for information or requesting disclosure, clearly identify
the Rule you are proceeding under along with your request.

Tip # 8 Don’t be a witness

Finally, avoid being a witness. This includes refraining from witnessing any
documents that the other side may present to you such as an affidavit to
commission or Minutes of Settlement to witness.

Conclusion

Dealing with a self represented party will not always result in a
complaint. If you take the proper precautions, you may be able to avoid having
to deal with a complaint being made. However, if the compliant is made, having
taken the appropriate steps throughout will ease the anxiety of dealing with the
complaint and will hopefully facilitate an expedient resolution.




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Please note that this information is not a substitute for the member’s own research, analysis and
judgment. The Law Society of Upper Canada does not provide substantive legal advice or opinions.