Clients should be aware that proceedings brought by a self-represented litigant raise a number of issues not encountered when all parties have retained legal representation.
In December 2016 the Law Society of New South Wales published revised Guidelines to assist practitioners in dealing with self-represented parties in civil proceedings. The Guidelines can be found here: http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/1230404.pdf
A summary of the main points contained in the Guidelines is below:
- Solicitors have a duty to act fairly and honestly towards third parties, including towards self-represented opposing parties, and have a duty to assist the court when opposing a self-represented party.
- Solicitors should always explain to a self-represented party that they are neither acting for nor providing advice to the self-represented party, but rather representing the best interests of their own client and will take all steps reasonably open to them in advancing that client’s case.
- Solicitors should try to encourage a self-represented party to at least seek some free legal advice (and should record this in any settlement agreement if it in fact occurs).
- Solicitors may require that an independent third party be available during settlement negotiations and should confirm that the self-represented party understands the terms and effect of any settlement. This confirmation should be noted on the record of transcript, orders or other document containing the terms of settlement.
- When dealing with a self-represented party, solicitors should use plain language and should ensure that all communications are confirmed clearly and plainly in writing.
- Solicitors should ensure that self-represented parties are provided with authorities prior to hearing and should take care not to burden self-represented parties with any unnecessary material.
- It is also good practice to provide self-represented parties in advance with a copy of any orders that may be sought at an interlocutory or directions hearing.
- It is important to be aware that a party, although generally self-represented, may nonetheless have retained a legal practitioner to act and advise on specific aspects or stages of a matter. Solicitors dealing with parties such as these should first contact the party’s solicitor to ascertain the extent of the retainer.
- A self-represented party may also directly brief a barrister, in which case the self-represented party will be responsible for legal work that barristers are restricted from performing, including commencing proceedings and serving court documents. Solicitors should be mindful of the distribution of workload in circumstances such as these.
- As judicial officers are required to ensure procedural fairness, they may give the appearance of significantly assisting a self-represented party during a proceeding, may extend the time taken to conduct a hearing and may also allow a person, known as a ‘McKenzie friend’, to assist a self-represented party at the hearing. Solicitors should make their clients aware of these issues so that clients can adjust their expectations of the hearing, including regarding timing and costs, accordingly.
- Further, solicitors should make their clients aware if they may be cross-examined by the self-represented party directly and counsel the client on how to react to particular lines of questioning.
- Solicitors should be aware, and make self-represented parties aware, of available resources. These include information sheets and website pages published by the NSW Supreme Court and the Federal Circuit Court. In certain Federal Court and Federal Circuit Court matters the Self Representation Service may also be available.
- Solicitors should also refer to the NSW Bar Association’s Guidelines for Barristers on Dealing with Self-Represented Litigants.
Clients should be aware of the peculiarities of dealing with self-represented litigants and these new Guidelines provide a useful guide.