Tips in Professionalism in Communicating with Pro-Se Litigants
A lawyer’s word should be his or her bond. This is a short, sweet, yet powerful statement reiterated many times by different committees, sections, and sources within the Florida Bar, with respect to professionalism and codes of conduct for attorneys. As professionals in this sphere, we are impounded with a duty of maintaining (yes, maintaining, as in the present and active tense of the word) trust and confidence in our judicial system and our profession. This means our communications with others—clients, opposing counsel, judges, and yes, pro-se litigants—must be honest, diligent, respectful, courteous, and civil at the very least. Pro-se litigants, or unrepresented parties, often present communication struggles. During these moments of frustration, remember there are a few tips provided to us by and through the Florida Bar that can help keep your communications on-par with what is expected of you.
A good place to start is for you to identify the type of unrepresented party and your role in this interaction. Are you a third-party neutral? Counsel for the other party? Providing limited representation? Once you know the type of relationship you have with the unrepresented party, it is important you also explain this to them. What should you expect from this unrepresented party and what should they expect from you?
If you are a third party neutral, let them understand that you do not represent either party, however, you cannot assist them personally in their case nor provide any kind of legal advice. The Rules Regulating the Florida Bar, Rule 4-2.4 states that the unrepresented party should understand your role. Are you a mediator? Arbitrator? Explaining your role is not giving legal advice, therefore, take a moment to explain your position, and provide the unrepresented party a thorough understanding of what purpose you serve.
If a litigant is represented by counsel for one matter, but not another, tread carefully, especially if both matters are similar in nature, or may overlap. The Rules Regulating the Florida Bar, Rule 4-4.2 advise the legal professional to contact the other lawyer, understand the scope of the representation provided in the other case, and possibly get consent from the other lawyer to engage with the party in question. It’s important you also let the unrepresented party know the limited scope of your intended interaction with them.
When providing limited representation, such as only helping someone with forms to be filed with the court, or limited subject matter representation on a case, be clear with the person you are dealing with. It is your duty that they fully understand how limited your scope of service is to them. Don’t avoid awkward conversations regarding your representation, or lack thereof, of them. It is preferable you explain it to them, at the very minimum in writing, how limited your work for them is in length, subject matter, and scope.
When engaging in communication with a pro-se litigant, first things first: breathe. The Rules Regulating the Florida Bar, Rule 4-4.3 talks about making it clear to unrepresented parties you are not a disinterested player on the board. State your position clearly, indicating who you represent, what case you are representing them for, and that you cannot give them legal advice (expect for advising them to retain counsel). Florida Statutes Section 454.18 indicates that “Any person, whether an attorney or not . . . may conduct his own cause in any court of this state . . . subject to the lawful rules and discipline of such court.” Can v. Grace, 321 So. 2d 618 (Fla. 3d DCA 1975) states in part that, a party’s “self-representation does not relieve her of the obligation to comply with any appropriate rules of the court and the rules of civil procedure.” Meaning, you can still engage in negotiating, settling, and of course, moving forward with the case, despite the pro-se litigant being unknowledgeable on the proper course of action. Sometimes, pro ses will go out of their way to ignore you, request you place them on a do-not contact list (despite having an open case), or block you entirely. Other times, you will get 5 emails a day with a truckload of gibberish. Your duty as a legal professional is to respond within a reasonable time, set and establish healthy boundaries, and communicate with the (possibly very confused and very stressed) human beings on the other side.
Protect your license. You worked hard to get it. Have all your communications with unrepresented litigants in writing. If you have a phone call with them, follow it up with a letter or an email, re-capping everything you spoke about, AND the fact that you don’t represent them and cannot give them legal advice. It can be helpful to have a short paragraph with this basic information that you can attach to all of your communications with an unrepresented party. Clear communication with these individuals can make a world of difference.
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Ritcy Canelon, Esq., is a Family Law Staff Attorney at the Legal Aid Society of the Orange County Bar Association, Inc. She has been a member of the OCBA since 2021.