“Water shapes its course according to the nature of the ground over which it flows.” – Sun Tzu, The Art of War
Like the adaptability of water, attorneys should adjust their communications with pro se opposing parties. Due to a general lack of legal experience, self-represented litigants can easily misunderstand their position and your role as opposing counsel. For example, if you are involved in a negotiated settlement against a pro se party, they might mistakenly believe that you are advocating for them.
Clear communication with pro se parties can help prevent misunderstandings and allow you to better work with them and obtain the information you need to represent your client competently and diligently. Focus on building a professional relationship with them that clearly defines roles and interests. Consider the following tips when interacting with a self-represented litigant to help avoid potential ethics or malpractice issues.
1. Be Professional
Lawyers typically deal with other lawyers as opposing counsel, and it becomes routine to navigate the legal landscape with them. So when an opposing party appears pro se, lawyers may be thrown off guard or inclined to downplay the significance or impact of self-representation. Regardless of their reason for appearing pro se, it is important to be professional. Set aside any preconceived ideas you might have about pro se parties and approach the matter with an open mind.
Treat pro se parties with the same respect and professionalism you would show opposing counsel. For example, don’t ignore them in court or engage in ex parte discussions with the judge just because the opposing party is not a licensed legal professional.
It can sometimes be challenging to communicate with pro se parties for several reasons. They might not have an email or a phone, or perhaps they're not very responsive. However, that doesn't mean you should overlook them. Avoid issues by establishing clear expectations of professional courtesies at the start of the case. Explain why it’s important to have accurate contact information in sharing and receiving documents from the court. Get creative in finding ways to connect.
2. Communicate Clearly
Failing to clearly communicate your role as opposing counsel to a pro se party can lead to a mistaken belief on their part that you are their lawyer. As a result, they may rely on you for guidance on the next steps in the legal process, their responsibilities to the court, or the progress of their case.
To prevent such confusion, avoid providing information that might be seen as legal advice. If pro se parties seem uncertain or muddled about the requirements in, say, the UTCR or ORCP, encourage them to hire a qualified legal practitioner to help them. Make it clear that you are not their attorney and cannot offer advice on the court rules or their case. Consider including a statement at the end of each letter, emphasizing that you do not represent them and to forward the letter to their lawyer if they hire one.
Keep your communication limited to confirming dates and deadlines, conferring on continuances, and handling discovery matters. Follow up any verbal conversations in writing to create a clear record of what was said.
3. Educate and Focus on Your Client
As your case progresses, dealing with a pro se party could become more difficult. They might intentionally complicate the case, or they might genuinely be unsure of what to do next. This can be frustrating for you and your client, who may feel like the other party is trying to manipulate the situation. It's essential to explain to your client the challenges of working with a pro se party due to their limited knowledge of the legal process and the laws. Reassure your client that you are working to establish clear communication with the other party for the client’s benefit.
Always prioritize your client's interests. Whether your client decides to settle the case or move forward should be based on the strength of their own case and not because the other side has no legal representation. Inform the client that legal strategic decisions should not be made on the assumption that they have an automatic advantage over the pro se party.
Concentrate on collaborating professionally with the opposing party to advance the client’s interest. Collaboration means being responsive when the pro se party seeks information, and expect them to do the same. Steer clear of any actions that might be perceived as unprofessional, dishonest, or dismissive. By following these suggestions, you can build a positive working relationship with any opposing party.
When working with pro se parties, treat everyone respectfully, communicate clearly, and prioritize professionalism to navigate the legal waters accordingly.
_dragonwithlaptop1681501312-18359.jpg)
