DEALING WITH SELF REPRESENTED LITIGANTS Louisiana Support Enforcement Association Annual Training Conference March 15, 2019 Presenters: the honorable Patricia Koch, 9th Judicial District Court(Rapides parish) NaTashia carter benoit, carter benoit & Associates, LLC (Baton Rouge, Louisiana)

INTRODUCTION The phenomenon of the rise of the self-represented litigant. Over the past few decades court systems have been inundated with people coming to court or advancing litigation without legal representation, much to the dismay and detriment of legal professionals….” WHY IS THAT” Can’t afford or gain access to legal counsel Technology supports the position that “hey I can do that” This CLE attempts to inform and advise legal professionals on how to ethically and professionally interface with pro-se litigants while providing adequate representation their client.

Remember Your Ethical Obligations: While dealing with pro-se litigants is and can be exhausting, frustrating and unduly expensive to your client, the best and only method to interacting with said litigant is to remain professional and calm at ALL times; and ALWAYS be conscience of and maintain your ethical responsibilities.

As an attorney who is your ethical obligation owed to? YOUR ETHICAL OBLIGATION IS TO YOUR CLIENT, THE COURT, AND PURSUANT TO LOUISIANA RULES OF PROFESSIONAL CONDUCT RULE 4.3, YOU ALSO HAVE AN ETHICAL OBLIGATION TO A SELF REPRESENTED LITIGANT.

RULES OF PROFESSIONAL CONDUCT Rule 4.3. Dealing with Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in a matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

DO NOT Give Legal Advice: NEVER EVER NEVER

By virtue of our chosen profession, every ATTORNEY who sits in this room is vested in the rule of law, in maintaining the integrity of our courts and legal system; thus, when we are faced with a pro-se litigating as an opponent, it is hard(very) to stand by without wanting/attempting to provide some assistance. DON’T!!!!

Never give legal advice to a pro-se litigant It does not matter how clue-less/lost a pro-se litigant appears to be, NEVER Give Legal Advice solicited or un-solicited. “It does not matter how minor or inconsequential the information sought may seem”, you must NEVER offer legal advice and as a rule of thumb, you should be suspect of giving any advice at all as it can(will) be misunderstood or taken the wrong way and then presented to the judge in a light most unfavorable to you as the attorney with the potential to cause conflict and/or a conflict of interest between you and your client.

What should an attorney do if they find themselves in an unavoidable dialogue with a pre-so litigant, while acting on behalf of their client? The attorney must advise and ensure that the pro-se litigant understands that his interest is not protected by the attorney, that you represent his opponent and you must spell out your role is to represent your client. (I always have them sign acknowledging this) Encourage the pre-se litigant to seek representation of his own to protect his interest. Advise them of legal services that ma be able to aide them in the litigation process.

Know WHO/WHAT You’re up against: Who are you? The most important/invaluable tool to have at your disposable when facing a pre-se litigant is to know WHO/WHAT you are dealing with. You should conduct yourself no differently than you do when facing opposing counsel and research, research, research, the pre-se litigant so that you may assess the personality(s) of the individual that you are litigating against as this will aide you in dealing with them in and out of the court room.

The two main categories of lay litigants are: Having some understanding of the personality that you are going to deal with will help in your approach. The more difficult the litigant, the more you need to limit your contact with them to writing. Those who would like a lawyer but cannot afford to hire one; and Those who can afford a lawyer but choose not to retain one. recreational litigants who have spare time to spend on litigation; people who are intelligent, or sometimes just self-absorbed, who feel they can do better than a lawyer; and, those who are deluded or dangerous.

Put Everything in Writing: While you have an ethical obligation to all parties involved in the litigation, the pro-se litigant DOES NOT.

The Court’s Role: With pro-se litigants, the Court finds itself serving in dual capacities and Counsel should recognize the Court’s responsibility and duties to ensure a pro-se litigant gets an opportunity at a fair hearing. However, this is not to say that the Court is allowed to interject on the pro-se litigant’s behalf and/or to give the litigant advice; the Judge’s role is only ensuring that the pro-se litigant understands the legal process and relevant issues.

Safety Precaution It’s personal for them!!!!!! Be mindful of your surroundings as some (not all) pro-se litigants can be unreasonable and dangerous.

Settlement Negotiations Make all negotiations in writing never discuss verbally with a pro-se litigant. Many don’t understand the legal concepts of agree to a settlement without having had their day in court. Following a negotiation whether face to face or over the phone (should be limited as much as possible), ALWAYS, ALWAYS, immediately follow up with written confirmation of what took place, the offer and the fact that it was without prejudice.

Conclusion Trial and error has shown that the best tool to use with pro-se litigants is to always be respectful of their feelings and position, to exercise professionalism even when they present as difficult.

N. Carter Benoit