This is part of the Ethics Committee’s regular series of Ethics Minutes for federal litigators and others – what to watch out for, what to do and what not to do. Let us know what you think! Have an idea for a future Ethics Minute? Reach out to us!
The Curtain Rises
You are handling the defense of a case that a pro se plaintiff has brought against your client. The plaintiff is very emotionally-invested in the case, and has ample time to research and write a seemingly-endless number of motions. Plaintiff often calls you and tries to engage you in debating the legal merits of the case. To make matters worse, plaintiff has a volatile personality, and occasionally becomes verbally abusive. You sometimes feel that you’re at the end of your rope in dealing with this plaintiff.
The Moral of the Story
Dealing with a pro se litigant (usually a plaintiff) can present many challenges, including a couple ethical ones. Here are some possible pitfalls that you should be aware of:
- Giving legal advice to the pro se plaintiff. Rule 4.3 of the Model Rules of Professional Conduct, adopted with only slight variation in almost all U.S. jurisdictions, bars giving any advice to an unrepresented person who is adverse to your client – except the advice to secure counsel. The rule also cautions against implying that you are “disinterested.” You are an advocate solely for your client, and you must avoid any appearance to the contrary.
- Playing too much hard-ball. Some pro se plaintiffs are quite sophisticated, or have the benefit of behind-the-scenes lawyers, including friends or even previous counsel. But some pro se plaintiffs don’t understand the system at all. Not extending special treatment to a party who has chosen to proceed without a lawyer can be justified. But crossing a line and over-reaching or taking undue advantage of pro se plaintiffs who don’t know their way around litigation can actually disadvantage your client, depending on the outlook of the particular court and judge. In assessing the best approach, bear in mind that courts often give every benefit of the doubt to pro se litigants.
- Losing your cool. This is a professionalism issue. The ethics rules don’t expressly cover your demeanor, but many jurisdictions have adopted aspirational precepts that do. (Here are links to some examples from Washington, D.C., Illinois, Ohio and Virginia.) It goes without saying that we should act fairly, calmly and professionally. Equally, your clients are best served if you act professionally, even if a pro se litigant does not.
- Not noticing when the pro se plaintiff has “lawyered up.” Sometimes a pro se plaintiff will have counsel who steps in and out of the litigation. During time periods when you “know” plaintiff is represented, Rule 4.2 mandates that you communicate through the plaintiff’s counsel. “Knowledge” means actual knowledge, but may be inferred from circumstances. So be alert for signs that opposing counsel has entered the picture.
Keeping these these tips in mind should help you successfully navigate disputes involving pro se litigants.
“Ethics Minutes” are for your general information and do not constitute legal advice. The rules, ethics opinions and disciplinary cases in particular jurisdictions vary, and might result in an outcome different from the scenarios that are described here.
Karen E. Rubin is counsel in the Cleveland office of Thompson Hine LLP, where her practice focuses on ethics, professional responsibility and business litigation. She serves on the FBA’s Ethics Committee, and in addition is a past chair of the Cleveland Metropolitan Bar Association’s Certified Grievance Committee, which investigates allegations of attorney misconduct. Karen is an adjunct professor of law at Cleveland-Marshall College of Law, teaching legal ethics. She also is co-editor of Thompson Hine’s award-winning legal ethics blog, The Law for Lawyers Today.