I did a podcast with the inimitable Charon QC this morning (it should be up in due course) – and one of the things he asked about was how should solicitors deal with litigants in person.
I said that while judges often ask me to explain the relevant legal framework and test to the court for the benefit the self-represented opponent, I avoid giving unrepresented third parties any sort of advice – other than that they should seek independent legal advice. That’s not because I’m being difficult – it’s because I’m not the other side’s lawyer.
After my Skype with Charon, I looked up the Law Society’s Practice Note on dealing with litigants in person. You can find it here.
The thing I forgot to mention?
[Y]ou should not take ‘unfair advantage’ of an opposing party’s lack of legal knowledge where they have not instructed a solicitor. Further, you should not use your professional status or qualification to take ‘unfair advantage’ of another individual in order to advance your client’s interests.
3.1 Taking ‘unfair advantage’
Taking ‘unfair advantage’ refers to behaviour that any reasonable solicitor would regard as wrong and improper. That might include:
- bullying and unjustifiable threats;
- misleading or deceitful behaviour;
- claiming what cannot be properly claimed;
- demanding what cannot properly be demanded.
Such conduct is likely to be penalised if identified by a judge or upon complaint.
Conversely, knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be as against a qualified representative or an unrepresented LiP, would not in itself be deemed to be either taking ‘unfair advantage’ or a breach of the SRA Code.
You should be mindful in this context that correspondence and telephone calls from some LiPs may be emotive, repetitive, and potentially hostile. Responses should be relevant, measured and calm; ‘tit-for-tat’ tactics should be avoided, and you should behave in a manner of which the court would approve. This includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable.
It’s a pity that the Law Society have to spell this out for solicitors – and that they need to be explicitly told that integrity is non-negotiable.