Lawyers urged to play it cool with litigants in person
Litigants in person: lawyers do not have to tolerate unacceptable behaviour
Solicitors, barristers and legal executives have been told by their professional bodies to be polite and non-judgemental when dealing with litigants in person (LiPs), and take “extra care to avoid using inflammatory words or phrases”.
Joint guidance issued by the Law Society, Bar Council and Chartered Institute of Legal Executives highlighted the fine line lawyers need to tread between their duties to clients and to the court.
For example, it said that if negotiating a settlement, it would be more appropriate to say ‘are you prepared to agree to…’ rather than ‘the courts in this situation would never agree to x, so I suggest that you agree to….’. “The latter approach might be seen as unfair to the LiP, even if legally accurate,” it said.
More generally, the guidance advised solicitors to adopt “a professional, co-operative and courteous approach at all times”.
Given the rise in LiPs following legal aid cuts, the increase in the small-claims limit and the introduction of employment tribunal fees, it emphasised that “a lawyer should not make assumptions about the merits of a LiP’s case simply on the basis that they have not obtained representation”.
The initial letter to the LiP, it said, could set the tone for the entire litigation, recommending that it “briefly address the issues and avoid protracted, clearly one-sided and unnecessary arguments or assertions”.
The guidance continued: “You should take care to communicate clearly and to avoid any technical language or legal jargon, or to explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language.
“You should take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP’s behaviour.”
At the same time, “this does not mean that you have to tolerate unacceptable behaviour from a LiP, nor does it mean that a LiP has a right to expect you to respond immediately to their calls or correspondence”.
Further, “knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be against a qualified representative or a LiP, is not taking ‘unfair advantage’ or a breach of any regulatory code”.
The guidance also stressed the need for lawyers to explain to their clients why they are helping the opposing party. “You should emphasise that you have a professional duty to the court and that in the interests of fairness the court may require you to provide procedural assistance to a LiP.
“There are potential benefits for your client in your assisting the LiP, which could include avoiding time taken at hearings, delays through adjournments and the associated costs to your client in terms of their money and time.”
The guidance has been welcomed by the Master of the Rolls, Lord Dyson, who described it as “a valuable and timely reference for lawyers”.
He continued: “An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law.
“This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.”
The guidance, which can be downloaded here, includes sources of advice and information to which lawyers can point LiPs, as well as notes they can provide to both clients and LiPs.
Tags: Bar Council, Chartered Institute of Legal Executives, Law Society, litigant in person
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