Approaching Ethical Issues Involving Unrepresented Litigants

Abstract

Ethical challenges facing legal services lawyers include those involving unrepresented or partially represented litigants. We negotiate with unrepresented adverse parties, interview adverse witnesses and observe lawyers overreaching in their dealings with the unrepresented poor. Ethical issues arise under labels of unbundling, discrete task representation or ghostwriting and involve hotlines, pro se clinics, or court-based assistance programs. Cases involving unrepresented litigants present ethical challenges to judges, court-connected mediators, clerks and lawyers. Yet, “[t]oo often the ethics training we experience… is geared to a practice that bears little resemblance to our day-to-day challenges.”

This article provides a framework for approaching these ethical issues. I focus in Part I on interactions with unrepresented adverse parties. In Part II I discuss the provision of assistance short of full representation. I turn to ethics and the roles of players in the court system in Part III. Building on the analysis in the first three sections, I set forth in Part IV a framework for handling ethics issues generally. While I focus on litigation in court, much of the analysis applies to administrative proceedings.

The discussion connects ethics and politics, which should not surprise the legal services community. The application of rules favors those with power over those without, requiring aggressive and sustained advocacy to counter the pressure. The ethics rules are no different. Our approach to ethics must prevent misconduct and promote good lawyering practices and justice for the poor.

Keywords: unrepresented, self-represented, pro se, unbundled legal services, limited assistance, ghostwriting, negotiations, legal ethics, professional responsibility