It may happen that you have a case, and come to learn that the other side of the case, is pro se—that is, the other side is self represented. This would only be in cases where the other side is an individual—companies cannot self-represent—but in some areas of law, particularly family and some business or contract law cases, people can, and do, opt to represent themselves.
The Dilemma
This can lead to an ethical dilemma for an attorney on the other side.
On the one hand, you have an obligation to seize on every advantage that you can for your client—and the ability to “take advantage’ of a pro se litigant seems like a great opportunity to get your client a better outcome than he or she would have had if there was an attorney on the other side.
On the other hand, there are ethical rules to what an attorney can, and cannot do, when dealing with pro se litigants.
Being Too Nice
One of the big pitfalls for lawyers actually isn’t insidious or maliciously seeking an advantage; many attorneys actually get in trouble because of benevolence.
The urge as a human being is to be helpful to the pro se litigant, understanding that he or she likely has no idea what he or she is doing. But being too helpful can morph into giving legal advice to the pro se litigant—a violation of your ethical duties to your client and, potentially, creating a conflict of interest.
Communicating with Pro Se Litigants
Remember that pro se litigants, although they may get more leeway from a court, are still subject to the applicable court’s rules of procedure—and you, on the other side, have an obligation to enforce them.
You are certainly allowed to, and perhaps should, couch your discussions with the pro se litigant in plain, “nonlegal” terminology so as to allow the pro se litigant to understand what you are saying.
You also would likely be allowed to tell the pro se litigant how to navigate the courts—for example, giving a phone number to a judicial assistant or telling the pro se litigant how the clerk of the court accepts submissions.
While you don’t have an obligation to file the pro se litigant’s paperwork for him with the clerk, in some cases, you may have to do so. For example, if the pro se litigant sends an answer to the complaint to you but doesn’t file it with the clerk, it is OK for you to forward the document to the clerk for filing.
Be Clear in Communications
It is important to remind the pro se litigant that you do not represent him or her. You are looking for trust, not reliance; that is, it is always good and advisable to be trustworthy and honest (and it is likely an ethics violation to purposely mislead a pro se litigant)—but you do not want a pro se litigant to be relying on you for advice about what to file, how to word a motion, or what kind of discovery to conduct.
Speak with a Chicago business litigation attorney at Ellis Legal at (312) 967-7629 if you have an ethical problem or issue with the ARDC.