Wednesday, April 16, 2008

Assisting Pro Se Litigants

A recent opinion of the New Jersey Advisory Committee on Professional Ethics deals with the degree of assistance that a lawyer may provide to a pro se litigant. The committee concludes:

"We believe that, given the New Jersey Supreme Court's manifest intent to remove impediments to providing at least some assistance to the unrepresented, the better course is to adopt an approach which examines all of the circumstances. Disclosure is not required if the limited assistance is part of an organized R. 1:21-1(e) non-profit program designed to provide legal assistance to people of limited means. In contrast, where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance, there must be full disclosure to the tribunal. Similarly, disclosure is required when, given all the facts, the lawyer, not the pro se litigant, is in fact effectively in control of the final form and wording of the pleadings and conduct of the litigation. If neither of these required disclosure situations is present, and the limited assistance is simply an effort by an attorney to aid someone who is financially unable to secure an attorney, but is not part of an organized program, disclosure is not required.

The duty to disclose is rooted in RPC 3.3(a) (5) as well as RPC 8.4(c) and (d). These ethics rules simply require candor and fairness toward the tribunal. We emphasize that even where disclosure is required, the limited representation itself is fully permissible as long as the requirements of RPC 1.2(c) are met. When triggered by the described circumstances, disclosure must include the name of the attorney and the fact that there is a limited scope of representation, not including actual appearance as counsel of record in the proceeding, under RPC 1.2(c). The client's involvement in the litigation, and the extent of the attorney's engagement in such circumstances, combined with the duty of candor under RPC 3.3(a) (5), support this limited exception to the blanket confidentiality required by RPC 1.6(a).

We make no comment concerning the possible applicability of Federal Rule of Civil Procedure 11 to such a situation. This Committee has no jurisdiction over questions of federal civil procedure.

We are aware that these situations present competing interests. The interests of extending legal assistance to the unrepresented, preserving confidentiality and minimizing the cost of legal representation are on one side, versus candor toward the tribunal and fairness toward opposing parties on the other. We believe the balance struck in this Opinion best advances the ethical values applicable to limited legal assistance to unrepresented litigants. "

(Mike Frisch)

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Whether a court should allow some lenity to an unrepresented litigant need not be based on knowing whether that litigant had a lawyer's help.

If a litigant's papers are good, a court may choose not to allow lenity. If a litigant's papers are good, does it really matter how they became good? If a litigant's papers are good and the litigant didn't get any lawyer's help, does such a litigant need the court's lenity?

Consider also the alternative. If a litigant's papers are weak, but the litigant had a lawyer's help (or even is entirely represented by a lawyer), should a court deny lenity? If so, is it fair that a court treats differently a litigant with weak papers written by a nonlawyer and a litigant with weak papers written by a lawyer?

A court doesn't need to know whether the papers were written by a lawyer, some other literate person, or the litigant herself. To the extent that a court chooses to allow any lenity, it may allow as much or as little as the papers before the court call for.

When a lawyer doesn't accept an in-court representation but advises an unrepresented litigant, we should regulate that conduct the same way that we regulate any out-of-court advice that a lawyer renders.

Posted by: Peter Gulia | Apr 16, 2008 7:57:04 PM

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