Ethical Issues Surrounding Pro Se Litigants

Holland & Hart - Fiduciary Law Blog

Pro se litigants present a unique set of challenges when encountered in the practice of law.  In particular, pro se litigants seem to be on the rise on the fiduciary litigation context.  Whether this is due to the highly personal nature of fiduciary litigation or perhaps the increase in the availability of a form-based approach by the courts, it is unclear.  What is clear is that this variety of “opposing counsel” presents their own specific set of difficulties when running the litigation gauntlet. 

Pro se litigants are not represented by counsel and have instead voluntarily taken on the challenge of representing themselves.  Their lack of legal experience and training in a highly nuanced and specialized area of law often creates a perfect storm of confusion.  You may find a pro se litigant looks to you, opposing counsel, for guidance as they are unfamiliar with the litigation process; however, it is important to remember that your duty is to your client. 

Ethical rules can leave attorneys feeling pulled in different directions, and this is especially common when dealing with pro se litigants.  On one hand, lawyers have their first and foremost duty to their client; however, there are also rules governing “fairness to the opposing party and counsel”. See CO ST RPC Rule 3.4.  It is the tension between these duties that can sometimes be especially confusing in a pro se litigant situation because the parties are rarely evenly matched. In that case, some language from the Court can help assuage any doubts as to how much understanding a pro se litigant is entitled to in order to be treated fairly. 

“[P]ro se litigants are bound by the same rules of civil procedure as attorneys licensed to practice law in the state . . . . . and are entitled to no greater safeguards or benefits than if represented by counsel.”  Ballowe v City of Black Hawk, No. 08CV12, 2008 WL 1826754 (Colo.Dist.Ct. Apr. 18, 2008) (citing People v. Romero, 694 P.2d 1256 (Colo. 1985) with approval).  Indeed, the Supreme Court of Colorado made this exceedingly clear in its en banc decision in People v. Romero, stating: “To the extent that the defendant’s argument implies that a pro se defendant is entitled to opportunities over and above those normally accorded an attorney, we reject such implication as unfounded in law. By electing to represent himself the defendant subjected himself to the same rules, procedures, and substantive law applicable to a licensed attorney. A pro se defendant cannot legitimately expect the court to deviate from its role of impartial arbiter and accord preferential treatment to a litigant simply because of the exercise of the constitutional right of self-representation.”  People v. Romero, 694 P.2d 1256, 1266 (Colo. 1985).

These decisions are helpful because there will often be moments that arise where a pro se litigant’s inexperience and lack of expertise can lead them astray in the litigation process.  Perhaps they need additional time, perhaps they are unknowingly pushing the limits of the rules – or knowingly.  As opposing counsel, our duty is to our client.  Although, the Court may decide to allow some leeway for a pro se litigant, our duty remains to our client’s best interests, keeping that as our true North. 

So next time you find yourself against a pro se litigant, as much as they may try to rely on your experience with the litigation process, just remember that your duty is to your client. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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