Ethical questions in pro se cases

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If attorneys had their druthers, everyone would have legal representation when they came to court.

But the reality in a recession is more and more litigants are representing themselves, especially in family, probate and small claims cases.
In those situations, attorneys are often asked to consider not only the needs of their client, but those of the self-represented party.

The dynamic can raise both ethical and financial questions about how much time attorneys can afford to spend helping a pro se litigant, what they can say and who pays for that time?

“I am very cautious when explaining legal principles to an unrepresented person, simply because what I might say may be heard differently by that party and that can create all sorts of different problems,” said attorney Dean R. Dietrich, chair of the State Bar of Wisconsin’s Professional Ethics Committee.

Helping Hand

Several attorneys discussed the dangers in dealing with pro se litigants at the State Bar convention in Milwaukee, including Johanna R. Kirk, who routinely deals with self-represented parties in probate cases.

When representing an estate, she said it is common for multiple heirs to appear pro se and proceedings can get contentious, especially if several people demand documents that she is not obligated to provide.

In one instance, parties asked Kirk of Knudson, Gee & Torvinen S.C. for financial documents relating to the deceased owner’s decision to change the beneficiaries on a checking account three weeks before his death.

“To some degree, I want to help those people and I can direct them where to get the information,” said Kirk. “But simply having that phone call or getting that letter can end up being tremendously unfair to my client, the estate.”

Attorney Daniel L. Shneidman, who also appeared on the panel, said attorneys should resist the temptation to go beyond their “undivided loyalty” to the client.

That is especially true in a situation where a pro se party mails opposing counsel a pertinent document which should be filed with the court and if not, could result in a default judgment.

“Some attorneys in a small town may say, ‘I’ll send this to the court,’ and that’s nice, but that person might then want to notify their malpractice insurance provider,” Shneidman of Shneidman Law S.C. said in an interview.

He recommended consulting with the client first and discussing his or her options, before making any decisions that could jeopardize the client’s claim.

Time Is Money

In some cases, self-represented litigants may know more about the law than they let on, and an attorney’s client can end up paying the price.

Divorce attorney Paul F. Angel, of Angel & Angel S.C., said he has had cases where pro se parties took up his time, simply to increase the bill for his client.

“Early on you can sense who is going to be reasonable or not,” Angel said during the panel discussion. “I’ve had a few people come in pro se and they thought it was somewhat amusing to spend a lot of time dealing with the other party’s lawyer and running up the bill.”

Dietrich said the Rules of Professional Conduct allow attorneys to charge their clients for time spent explaining the legal process to a pro se litigant, with the expectation that the additional time will ultimately benefit the client.

The rules also require that attorneys inform their client in writing that they may be on the hook for a higher fee if the opposing party is pro se.

“If you represent John Doe in a divorce case and don’t put in any other fees agreed to in writing, as an attorney you will be S.O.L. — and I don’t mean statute of limitations,” Shneidman said.

Another option, though problematic according to Dietrich, is asking the pro se party to contribute to attorney fees.

“I think trying to have the unrepresented party pay a portion of the fees for a represented party is a significant risk and I would not encourage that,” said Dietrich of Ruder Ware LLSC.

But attorney John B. Rhode, of Sommer, Olk, Schroeder & Payant LLP, suggested that it is all a matter of presentation.

If a client wants to recoup $500 in fees from their pro se spouse in a divorce case, Rhode said he has included the contribution in the equalization payment. Instead of asking for $1,000 in equalization payment, he will settle with the other spouse for $1,500.

“It’s often a very bitter pill to swallow when the other side is being asked to contribute to their soon-to-be ex-spouse’s attorney’s fees,” Rhode said. “So I play the shell game and tell my client that if they want the contribution, we have to change tactics.”