Advice for self-represented litigants, Part 2: The Important Rule that most self-represented litigants never learn, or learn too late.

The Important Rule that most self-represented litigants never learn, or learn too late:

It is an opposing lawyer’s duty in law to deceive and obstruct you.

“Be instantly wary of any advice, suggestion, question or information from opposing counsel. They do not have your interests in mind; quite the opposite.”

For the moment, forget about Civil or Criminal court procedures. You need to know about the lawyers’ Rules of Professional Conduct; because these rules allow lawyers to deceive, cheat, abuse and obstruct the self-represented litigant in ways that ordinary people might consider to be unethical, unfair or unjust.

The most formidable challenge of being a self-represented litigant (‘SRL’) is that you must play in a game where the complete rules are known only to your opponents and to the referee (who is called ‘the judge’).

There are different sets of rules for different types of cases and different courts. The rules for Criminal proceedings differ so much from Civil procedure that most lawyers hesitate to cross into the other area of practice in all but the simplest cases. I personally saw one of Canada’s most senior and respected criminal lawyers overwhelmed by the Ontario Rules of Civil Procedure in just a few months. He charged me $60,000 for his reputation and then walked away. (And I thought, “If a man with 35 years before the criminal courts can’t figure out the rules of civil procedure, I’m toast.”)

The rules themselves are complex, and are made even more so by normal practice where rules can be bent, avoided and waived under various circumstances. Different courthouses can have different procedural sub-rules where legal documents must be filed a certain way at one courthouse, and another way in the next town.

There is also the reality that some judges routinely allow lawyers to break, bend or ignore various rules; even as the same judges slam self-represented litigants for being unaware of, or breaking, the same a rules or procedures.

And into the middle of all this chaos steps the self-represented litigant; desperately trying to learn enough of the rules and procedures to be effective against opposing counsel who might have 20 years or more appearing daily in the courts.

You don’t even know what you don’t know.  

For the moment though, forget about the Rules of Civil or Criminal Procedure. You need to know about the lawyers’ Rules of Professional Conduct; because those rules are not as ordinary people believe them to be.

You might believe that the Law Society of Upper Canada’s Rules of Professional Conduct lay out strict ethical standards for lawyers, and in a way they do: just not the ethical standards that you might conduct yourself by. What ordinary people don’t realize is that the Rules of Professional Conduct leave lots of room for lawyers to deceive, cheat, abuse and obstruct the self-represented litigant in ways that ordinary people might consider unethical, unfair or unjust.

Opposing lawyers are allowed to deceive by omission… and deceive they do when they face a self-represented litigant! SRL’s are ‘meat on the table’ for even the most junior lawyers. That is a systemic problem especially in Family Law where over 50% of the litigants are unrepresented.

Have a look at this advice to lawyers from LawPRO, the Lawyers’ Professional Indemnity Company that insures Ontario’s lawyers:

You are concerned about the ethics of asking the (Self Represented) husband to re-sign a settlement now that you know the husband has no legal obligation to divide his pension.

What do you do? Fortunately the Rules of Professional Conduct provide guidance for this situation. First, as a lawyer you owe a duty to your client.

Having said that, Rule 7.2-9 provides that when a lawyer deals on a client’s behalf with an unrepresented person, the lawyer shall:

• Take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer; and

• 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.

From the LawPRO article Dealing with a self-represented litigant who really needs legal advice (PDF 903kb)

Download the short 2 page document and read it all.

What LawPRO effectively advises lawyers is this: Do not tell the poor self-represented litigant that the law favours his side. Screw him and screw justice if he doesn’t know the law. Do the deal that’s best for your client and then cover your backside by inserting a single paragraph into a covering letter to be sent later. Ethical ‘problem’ solved, and tough luck for the poor guy who just lost half his pension for the rest of his life when the law says he need not have done so.

The Law Society of Upper Canada and LawPRO say that’s acceptable conduct for lawyers; and that’s the way it is. Self-representing litigants should be aware of this. You can download all the rules of Professional Conduct at the Law Society’s website. (PDF 1.3mb)

What LawPRO and LSUC don’t mention is that many lawyers have refined techniques that allow them to influence and provide self-serving advice or misinformation to opposing self-represented litigants without being seen to do so. A later article in this series will present some common ‘dirty tricks’ used against self-represented litigants.

Be instantly wary of any advice, suggestion, question or information from opposing counsel. They do not have your interests in mind; quite the opposite.

Opposing Lawyers will attempt to provide ‘quasi’ advice to self-represented litigants when they believe they can get away with it.

The opposing lawyers in my case had a technique where they would attempt to provide me (a self-represented litigant) with suggestions or advice without being seen to do so. They would say “I can’t give you advice Mr. Best, however…” or make a suggestion by asking a question “Mr. Best, have you considered…”

Self-represented litigants should always remember that anything the opposing lawyer says is for the benefit of their client, not you. Advice is never given to be ‘fair’, to facilitate both sides or to instruct; it is done for a reason and that reason is to defeat you in court. Never forget that.

Never believe anything an opposing lawyer says, because it is their job to defeat you.

Litigation is war. Deceit and trickery are a large part of war and of litigation. As a new SRL you are naive. You had better toughen up and soon.

As an example of the type of legal tactic you might expect, you’ll find that opposing counsel will chat you up in the most friendly manner. And if, for instance, you casually mention that you are going away Friday morning for a week of summer vacation at a friend’s cottage, don’t be surprised to be served with a procedural motion via fax or courier late Friday afternoon after you’ve left the city. When you return the following week, you’ll find that you have only two days left to serve and file your response.

Take heart though: this is not about your failings as a SRL. This is a systemic problem. It is a human rights issue when the justice system itself is designed to deny ordinary people access to justice.

The system is arranged to devour those who dare to appear before a former lawyer (called a judge) without paying the price of admission by hiring a lawyer at hundreds of dollars an hour. With study and hard work though, you might be able to overcome the odds.

So fight your good fight in the courts as a self-represented litigant. Then, no matter what your outcome in court, join in the larger battle to re-capture the justice system for all Canadians.