1.1. Who should read this Guidance Statement?
This Guidance Statement is for solicitors, law practices and government lawyers.
1.2. What is the issue?
Dealing with self-represented litigants (‘SRLs’), whose numbers have increased in recent times, can present ethical challenges for solicitors.
The purpose of this Guidance Statement is to outline the ethical positions and principles which solicitors should be aware of when dealing with SRLs, as well as to provide suggested approaches to some commonly encountered issues.1
1.3. Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society (‘QLS’) for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Committee.
In recent times, there has been an increase in the number of self-represented litigants, especially in the area of administrative review.2 Some self-represented litigants may have received legal assistance either through an unbundled or limited retainer,3 or from a community legal centre or other legal assistance service. However, some act for themselves without assistance during the entire matter.
Research shows4 that matters involving SRLs take longer, and consume large amounts of court time5 and resources due to SRLs’ lack of knowledge of the law and court processes.6 SRLs and parties opposed by SRLs reported greater levels of frustration and stress, and increased legal costs.
Solicitors opposed by SRLs are often put in the invidious position of having to guide their opponents to some extent, and are relied on heavily by the court to keep the matter moving. This can lead to a conflict between a solicitor’s duty to act in their client’s best interests and their duty to the court and the administration of justice.
3. Ethical principles
While there are no specific Rules in the Australian Solicitors Conduct Rules 2012 (‘ASCR’) relating to SRLs, Rules 3 and 4 are of relevance and provide:
3. Paramount duty to the court and the administration of justice
3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
4. Other fundamental ethical duties
4.1 A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and
4.1.5 comply with these Rules and the law.
Also refer to Rules 19, 32 and 33 of the ASCR.
4. Dealing with SRLs in the lead up to court proceedings
SRLs understandably struggle with a range of issues such as court procedures, rules of evidence, disclosure, undertakings7 and interlocutory steps.8 As solicitors, your legal and ethical duties to your clients, to the court and to your fellow practitioners are well established. Your obligations to a SRL are less clear.
4.1. Costs disclosure
Your costs disclosure obligations to your client include the obligation to give initially the best estimate of their total final costs, or if this is not reasonably practical, a range of estimates and an explanation of the major variables that will affect the calculation of those costs.9 Dealing with a SRL may increase your client’s costs and may be just such a ‘variable’. You may need to advise your client of this potentiality when you learn that the opponent is a SRL or if they cease to be represented.10
4.2. Initial communication with a SRL
It is necessary to set the parameters of your communication with a SRL:
- confirm that they are not represented;
- make it clear that you act for your client and in their best interests and not those of the SRL;
- make it clear that any communications with you are not confidential and may be communicated to your client and the court (the exception being settlement negotiations);
- suggest that they seek independent legal advice as soon as possible.11
The language and tone of communications with a SRL should also be considered as they may differ as to how you communicate with a fellow solicitor. All communications should be respectful and solicitors should avoid an aggressive or intimidating approach (which some practitioners may view as ‘ordinary’ communications between opposing solicitors).
It is crucial for solicitors opposing SRLs to make every effort to ensure that the disclosure process is effective and that all procedural issues (where possible and appropriate) are dealt with prior to the matter going to hearing, in order to discharge the solicitor’s duty to the court and their client.
One strategy that may be effective is to ask the court to alter the order of delivery of documents so that a SRL has the example of the documents provided by the solicitor, which can give the SRL an indication as to what should be included and what issues should be covered; this happens regularly in jurisdictions which specifically accommodate SRLs, such as QCAT.
Regardless of what disclosure and preliminary directions or orders have been made, it is advisable when opposed by a SRL, to ensure that the SRL is aware of your argument, and to provide copies of submissions and cases in advance. This will avoid the possibility of an adjournment to allow the SRL to digest the submissions and read the cases (which is almost inevitable otherwise).
4.4. Procedural assistance
Solicitors opposed by a SRL will generally be relied on by the court or tribunal to keep the matter on track and to assist in preventing irrelevant or vexatious issues from being raised by the SRL. This means that mentions, directions hearings and the like should be used by the solicitor to ensure that the SRL focusses on the correct issues. If irrelevant matters are being raised, it is the solicitor’s duty to challenge them with alacrity, and any issues regarding jurisdiction should be raised as early as possible to avoid wasting the court’s time.
It is also advisable to ensure that a SRL receives copies of all orders of the court or tribunal, although the temptation to explain those orders should be resisted. If the SRL does misunderstand the nature of the orders following an explanation, the SRL may lay the blame at the feet of the solicitor who provided the explanation, and may even complain that they were provided advice by the opposing solicitor.
Solicitors opposed by SRLs can also expect the court or tribunal to take the SRL’s lack of experience and qualifications into account when dealing with procedural matters and filing deadlines. The court or tribunal may show leniency to SRLs and as such, consideration should be given to whether objecting to such extensions is averse to your client’s overall position.
When dealing with SRLs, solicitors should keep their over-riding duty to the court and the administration of justice12 front of mind. That duty is more complex than is sometimes appreciated, and includes a positive obligation to aid the court or tribunal. Chief Justice Warren of the Victorian Supreme Court put it is as follows:
“The practitioner’s role is not merely to push his or her client’s interests in the adversarial process, rather the practitioner has a duty to ‘assist the court in the doing of justice according to law’.”13
This duty is all the more important when the court or tribunal cannot rely on the SRL operating under the same obligation, and solicitors opposing SRLs will need to be more than usually rigorous in ensuring that the court or tribunal has access to all the relevant material and is cognisant of the questions to be determined. Whilst the duty does not extend to making an opponent’s case, there is a clear risk that unrepresented litigants will fail to put forward important material or focus on the issues at hand, increasing the chances that justice will be miscarried.
It therefore is consistent with a solicitor’s duty to act in the best interest of their client to ensure that the court or tribunal has sufficient evidence to make a robust and appeal-resistant decision. Just as an appeal decision can be considered weak precedent in the absence of a strong contradictor, a decision of a court which is made in ignorance of relevant matters is vulnerable on appeal.14
5. Dealing with SRLs in court
Practitioners opposed by SRLs can expect judges, magistrates and tribunal members to assist the SRL to some degree. It is important for solicitors to allow that assistance to occur, whilst making an objection on the record should the assistance begin to undermine neutrality or unfairly disadvantage the client. Some guidance can be had from the Full Federal Court’s decision in Platcher v Joseph,15 whose approach can be summarised as follows:
- the level of assistance necessary will depend on the nature of the case, the understanding of the litigant and the intelligence of the litigant;
- assistance should be limited to what is necessary to off-set the disadvantage suffered by not being represented;
- the court should not go so far as to confer an advantage on the SRL;
- the absence of legal representation on one side should not induce the court to deprive the represented party of its lawful entitlement;
- the SRL is as much subject to the rules as a represented litigant, and those rules must be obeyed subject to proper exceptions; and
- the assistance provided to an SRL should not be such that the judge, magistrate or tribunal member cannot maintain a position of neutrality.
In Queensland, the Court of Appeal in Robertson v Hollings & Ors,16 has taken a conservative view of how far such assistance can go. Nevertheless, in circumstances where a SRL’s action has merit, practitioners should expect courts to err on the side of the SRL to ensure that no viable cause of action is lost due to the SRL’s lack of knowledge.17
These issues need also be born in mind when cross-examining SRLs:
- Little advantage can be gained for a client by their solicitor taking advantage of a SRL’s nervousness, unfamiliarity with the process and lack of legal skills to ensure a torrid time in the witness box. The courts will not allow SRLs to flounder on the force of overly clever or aggressive cross-examination. With no representative to guide testimony or object to questioning content or tone, SRLs will receive some protection from judges, magistrates and tribunal members, and neither a client’s case nor their confidence in their own legal representatives will be enhanced by an admonition from the bench over a line of questioning.18
When cross-examining SRLs, practitioners should keep their focus on ensuring that their own client’s case is appropriately put to the witness and that objections and interjections are used to keep testimony relevant and sufficient to allow the client’s case to be pleaded.
- SRLs may engage in hearsay and opinion when in the witness box, and practitioners should take their lead from the approach of the individual judge, magistrate or member in those circumstances; often an initial objection will be sufficient and the court or tribunal will indicate its willingness to allow leeway and confirm that the relevance or weight of the evidence can be adequately addressed in submissions. This does not mean that practitioners cannot champion their client’s cause when opposed by an unrepresented litigant; only that they should be alive to the preference of the court or tribunal hearing the matter in dealing with SRLs.
- If written submissions are allowed, it will be of benefit to provide copies to SRLs in advance. This will enable them to follow the format of the professionally drafted submissions and make it more likely that they will be able to keep their own submissions relevant and focused. Again, practitioners should keep in mind that their own client’s best interests are served by a robust and appeal resistant decision. Even if the represented client is ultimately successful, the expense and stress of an appeal should be avoided if possible.
Parties who represent themselves possess no special immunity from costs, and no ethical or other prohibition prevents a practitioner making application for costs against a SRL in appropriate circumstances. Nevertheless, it needs to be kept in mind that in jurisdictions which are established to facilitate or promote self-representation, costs will be difficult to secure and this should be made clear to a practitioner’s own clients at the beginning of the engagement.
For example, QCAT is historically reluctant to depart from the position that each party bears their own costs, even where one party has acted in such a way as to delay proceedings or increase expense.19 Indeed, the question of costs in QCAT is one which requires careful consideration when speaking to clients, as costs do not automatically follow the event and the issue should not even be raised prior to the Tribunal handing down its substantive decision.20
In traditional jurisdictions, however, costs against a SRL can be justified21 and can even extend to indemnity costs.22 Whether costs are justified and whether they should be awarded on an indemnity basis will depend on a consideration of the usual factors taken into account in a given jurisdiction. The merit of the SRL’s case, the way in which it has been conducted and the number of opportunities given to the SRL to amend pleadings or file relevant material can all be considered by a court when determining costs against SRLs23 or even in a pro bono engagement.24 However, awards of indemnity costs against SRLs remain rare, and practitioners should discuss the prospects of success frankly with their clients before embarking on such a course of action.
Although the decision to seek costs against a SRL, where circumstances justify such action, is consistent with acting in the client’s best interests, indemnity costs should of course only be sought where the behaviour of the SRL truly justifies such a course of action. SRLs will be given more leeway and one irrelevant or unintelligible submission or poorly drafted pleading will not be sufficient.
In general, conduct which is not a result of the SRL’s lack of familiarity with court processes and the law in general, but rather evidences a lack of respect for the court and its processes, may justify an application for indemnity costs. Such conduct might include the following:
- repeatedly failing to comply with orders of the court and refusing to take advantage of the opportunity to remedy this;
- abandoning applications at the last minute thereby causing adjournments;
- making repeated and unsubstantiated allegations about other parties to the matter.
SRL’s cannot generally claim professional costs for work done by themselves.25 Disbursements might however be claimed by any SRL, such as the cost of experts or filing fees.
6. More Information
Solicitors are also referred to:
- The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Solicitors, Queensland Law Society, June 2014, 58 – 59
- Guidance Statement No. 1 – Undertakings
- Guidance Statement No. 2 – Ongoing Costs Disclosure
- Guidance Statement No. 7 – Limited scope representation in dispute resolution
- QLS and LawRight - Self-represented litigants: Guidelines for solicitors
For further assistance please contact an Ethics Solicitor in the QLS Ethics Centre on 07-3842 5843 or email@example.com
1 Additional guidance on dealing with SRLs in civil law matters can be found in the LawRight publication, copublished by the Queensland Law Society, ‘Self-represented litigants: Guidelines for solicitors’ (November 2017).
2 Inquiry into Legal Aid and Access to Justice report, 8 June 2004, Chapter 10. <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2002-04/legalaidjustice/report/contents>
3 Queensland Law Society, ‘Guidance Statement No. 7 – Limited scope representation in dispute resolution’ (8 June 2017) Queensland Law Society website. <https://www.qls.com.au/Guidance-Statements/No-07-Limited-scope-representation-in-dispute>
4 Melissa Smith, Esther Banbury, and Su-Wuen Ong, ‘Self-Represented Litigants: An Exploratory Study of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions’ (Research Report, Ministry of Justice, July 2009) Ministry of Justice website <https://www.justice.govt.nz/assets/Documents/Publications/Self-Represented-Litigants-July-August.pdf>.
5 Elizabeth Richardson, Tania Sourdin & Nerida Wallace, ‘Self-Represented Litigants, Literature Review’ (2012) Australian Centre for Court and Justice System Innovation website, [2.10], <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2713503>.
6 Rabeea Assy, ‘Revisiting the Right to Self-representation’ (2011) 30 Civil Justice Quarterly 267, 271.
7 Queensland Law Society, ‘Guidance Statement No. 1 – Undertakings’ (8 June 2017). Queensland Law Society website<http://www.qls.com.au/Guidance-Statements/No-01-Undertakings>.
8 Elizabeth Richardson, Tania Sourdin & Nerida Wallace, ‘Self-Represented Litigants, Literature Review’ (2012) Australian Centre for Court and Justice System Innovation website, [3.16] <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2713503>.
9 Legal Profession Act 2007 (Qld), s 308. See also Queensland Law Society, ‘Guidance Statement No. 2 – Ongoing Cost Disclosure’ (5 May 2015).
10 Queensland Law Society and LawRight, ‘Self-represented litigants: Guidelines for solicitors ’ (November 2017).
11 Ibid p5.
12 Australian Solicitors Conduct Rules 2012, rule 3.
13 The Honourable Marilyn Warren AC, ‘The Duty Owed to The Court – Sometimes Forgotten’ (Speech delivered at the Judicial Conference of Australia Colloquium, Melbourne, 9 October 2009).
14 See also Australian Taxation Office, ‘Test Case Litigation Program’ (21 February 2017) Australian Government Australian Taxation Office website. <https://www.ato.gov.au/tax-professionals/tp/test-case-litigation-program/>
15  FCAFC 68.
16  QCA 303, followed in Commonwealth Bank of Australia v Dalle Cort & Anor  QSC 296, at , Keane JA stated: “the courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted”.
17 For an indication of the assistance courts are prepared to provide, see Bhagat v Global Custodians  FCA 223 and Wentworth v Rogers (No 5) (1986) 6 NSWLR 534.
18 Rajski v Scitec Corporation Pty Ltd (unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, 16 June 1986) at 27, Samuel J noted: “In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored”.
19 Williams v Queensland Building and Construction Commission (No 2)  QCAT 62.
20 Alroe v Medical Board of Australia  QCAT 482.
21 Queensland Police Service & Anor v Rose & Anor  QCA 105.
22 du Boulay v Worrell & Ors  QCA 63.
23 Ibid , Muir J stated: “a losing party's lack of legal representation has been held to be relevant to whether the costs awarded against that party should be on the indemnity basis. But in this case, the obvious lack of merit in the appellant's arguments and the oppressive nature of his conduct justifies an indemnity costs order”.
24 Mainieri v Cirillo  VSCA 227.
25 As to the position where the SRL is a solicitor, see: London Scottish Benefit Society v Chorley (1884) 13 QBD 872; Cachia v Hanes (1994) CLR 179; McIlraith v Ilkin (Costs)  NSWSC 1052; Guss v Veenhuizun (No 2) (1976) 136 CLR 47.