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Pro Se Tenants (in court with no lawyer)

Postby TenantNet » Fri Apr 03, 2009 10:27 am

Opinion Defines Ethical Duties Toward Pro Se Adversaries
By Noeleen G. Walder
February 20, 2009
New York Law Journal

Confronting what it says has been a "sharp increase" in the number of people who come to court without an attorney, the New York City Bar Association is reminding lawyers that they have an ethical obligation to self-represented individuals adverse to their clients.

Moreover, the city bar's recently issued Formal Ethics Opinion 02-2009 stresses that "refraining from misleading or deceptive conduct" when dealing with self-represented litigants may not be enough to satisfy that obligation.

"For some self-represented persons, further action may be necessary," it advises.

According to court system figures, nearly 1.8 million self-represented litigants flooded New York courts in 2005, a figure that the opinion said will "undoubtedly" increase with mounting economic woes "as more people, unable to afford legal representation, must nonetheless come to court to protect and assert their rights."

Such litigants present "many and varied challenges for tribunals," the opinion says. They may be confused about court procedures and the roles of court personnel and attorneys. Or they may be unable to marshal facts or articulate their positions. As a result, the report says their inexperience can lead to costly delays and sometimes to cancelation of an executed agreement.

Despite these problems, however, the opinion says there has been "little discussion" of the lawyer's role in communicating with self-represented litigants.

The new ethics opinion notes that DR 7-104(A)(2) of the state's Code of Professional Responsibility prohibits an attorney from giving advice to an unrepresented party, "other than the advice to secure counsel, if the interests of such party are or have a reasonable possibility of being in conflict with the interests of the lawyers' client."

It concludes that the rule allows an attorney to advise the self-represented to seek his or her own counsel and to make certain related statements.

Those statements include "identification of general legal issues that a self-represented person should address with an attorney; undisputed statements of facts or law such as the position of the lawyer's client on a contested issue; and references to court-sponsored programs designed to assist a self-represented litigant."

Such information can be provided at any time without violating the rule, but an attorney must provide clarification "whenever she knows or has reason to know that the self-represented person misapprehends the lawyer's role in the matter," the opinion adds.

In some cases, a lawyer may need to "repeat the clarification more than once," and ask the unrepresented litigant to confirm that she understands the clarification. An attorney must also "determine, based on the facts and circumstances presented, whether the explanation to be provided to the self-represented person should be in writing," the opinion warns.

Alan Rothstein, general counsel for the city bar, declined to elaborate on the substance of the opinion, but said it is the first in "at least several years" to address a lawyer's ethical duties with respect to self-represented litigants.

'Babes in the Woods'

"We are dealing with a population that is like babes in the woods," said Judge Juanita Bing Newton, deputy chief administrative judge for justice initiatives (See Profile), whose office attempts to improve access to the courts for pro se litigants.

She said the city bar opinion "clarifies existing obligations" and "makes clear the parameters of what's required" of attorneys, which is a "good thing."

Roy D. Simon Jr., a legal ethics expert at Hofstra University School of Law, said the opinion "articulates something that was not previously explicit in the New York Code," but will become explicit on April 1, when New York adopts new rules of professional conduct (NYLJ, Dec. 17, 2008).

Under '4.3 of the new rules, a lawyer, who "knows or reasonably should know" that an unrepresented person misunderstands the attorney's role in the matter must "make reasonable efforts to correct the misunderstanding."

Under the current rule, a lawyer cannot give advice to an unrepresented litigant, except for telling him to seek counsel, Stephen Gillers of New York University School of Law said in an interview.

The new rule says that if an "unrepresented person misunderstands your role, you've got an obligation to correct their misunderstanding," Mr. Gillers said, adding that should have "been in the New York law 25 years ago."

Patricia Bath, director of communication for the Legal Aid Society, said in an e-mail that the organization agrees with the opinion's "general conclusions," but is concerned that language in the opinion that "authorizes a lawyer to speak to an adverse, unrepresented party and to describe her client's own position in negotiations could be susceptible to abuse by some attorneys who might misread the intent of the opinion."

Russell Engler, a law professor and director of clinical programs at New England Law, said the opinion draws "long overdue attention to what really happens when people are without lawyers," but worried that it "doesn't hammer hard enough" on the issue of attorneys who exercise undue pressure on self-represented litigants.

Christopher D. Lamb, executive director of MFY Legal Services, on the other hand, said the city bar opinion fails to "address the root problem" facing pro se litigants - the shortage of resources to help those who cannot hire their own attorneys.

"In the end, those unrepresented people are still at sea, and without representation in an adversarial system, they are going to be lost," he said.
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