Deferring to the ‘unlearned’ friend: professional ethics and the unrepresented litigant

Abstract

ABSTRACT Courts are starting to keep data about the numbers of litigants who personally file court documents and appear without counsel. The growth in numbers of unrepresented litigants is aptly described as a phenomenon and can be attributed to various causes. Whether or not it is a ‘problem’ however, is arguable. This article explores the concept of the unrepresented litigant in a strange and unnavigable milieu and the ethical duties of lawyers as officers of the court in that context. Focussing on Australian examples, the primary aim of the article is to highlight the lack of guidance in both codes of ethical conduct and judicial commentary on ethical issues for lawyers faced with an unrepresented opponent. Ethical issues at various stages of the dispute resolution process are discussed, including the complexities involved with unbundled legal services. The author argues that as an officer of the court, counsel should assist the judicial officer and consider the situation through a lens of ethical reasoning, while recognising the dilemma this can pose for lawyers who must respect their duties to their own clients. The article concludes that lawyers must abide by their ethical responsibilities whether or not the opponent has representation, while acknowledging that this may be challenging for a variety of reasons. It also suggests that the absence of any reference to unrepresented litigants in ethical codes of conduct should be addressed.