January 2000

Ethics and the Law:
Ethical Considerations for Lawyers and Judges When Dealing with Unrepresented Persons

Lawyers and judges dealing with persons who are not represented by counsel, or whose representation is a limited representation, must satisfy various ethical standards in those dealings. This article explores those standards, asks many questions, answers some of them, and provides some guidance on dealing with unrepresented persons.

Natural persons have a right to represent themselves in a trial court. The Supreme Court recognized this right in criminal cases as "a basic right of free people." Faretta v. California, 422 U.S. 806 (1975). In the civil context, the concept of a right to self-representation is often thought of as part of the greater concept of access to justice through access to the courts. Whether the right of self-representation in a trial court also constitutionally extends to the right of a convicted defendant to represent himself or herself on appeal is presently pending before the U.S. Supreme Court. Martinez v. Court of Appeal of California (Dkt. 98-7809).

While self-representation is a right, it is also a heavy burden for persons exercising this right. As our legal system tries to meet competing demands and needs of an increasingly complex society, the system itself becomes increasingly complex. Exercising the right to self-representation often becomes perilous to the self-represented person, a challenge to other participants in the system, and a strain on the system's limited resources. It is a right that most unrepresented persons would gladly give up if they could afford to retain legal counsel.

If a person has the right of self-representation in the legal system, does that system then have a duty to make that right a meaningful right? At the same time, the right of self-representation also necessarily includes the right to be a fool, where a self-represented party insists on self-representation even though legal assistance or counsel is available, and the self-representation works to the detriment of the self-represented person. See Justice Blackmun's dissent in Faretta v. California, 422 U.S. 806, 852. That criminal law case makes it clear that a person who elects to represent himself or herself cannot thereafter complain that the poor quality of his or her own self-representation amounted to denial of the effective assistance of counsel. But, should it make a difference whether the "right" of self-representation is being exercised because of the personal preferences of the individual as opposed to economic necessity?

Is the "system" obligated to structure itself in such a way as to be understandable by the average person? If it does not do so (or, even if it does), is it required to provide to the self-represented person some sort of assistance or help? If it is, must that assistance be in the form of a lawyer, or can it be some person with lesser expertise in the law? Or, does access to a computer, a book, or a law library suffice? In the criminal law context, the clear answer has long been that some assistance is required. Of course, a defendant has no right to personal instruction by the judge on courtroom procedures, nor is the judge required or permitted to act as the defendant's attorney. See McKaskle v. Wiggins, 465 U.S. 168, 183-4 (1984).

Is the civil legal system so complex that self-representation cannot be meaningful without assistance? If it is, should every self-represented person be provided legal assistance, or even legal counsel? Are there certain fundamental civil rights for which, when they are endangered, the legal system must provide assistance if it is to retain any sense of legitimacy? Important articles by Leonard W. Schroeter in the Washington State Bar News explore these and related issues of access to civil justice. See "The Fundamental Right to Access to Justice: The Historical Antecedents (May 1999, p.32); "The Declaration of Independence: The Precursor of Equal Justice Under Law" (July 1999, p. 39); "The Duty of the Judiciary to Ensure Access to Justice" (August 1999, p.32); "Attorney Representation: An Essential Right or Not?" (September 1999, p. 31); "The Right to Counsel as Developed in the United States Supreme Court" (October 1999, p. 30); and, "Obstacles to Civil Gideon: The Washington State Experience" (November 1999, p. 29 and this issue, p. 35). See also various letters to the editor in the Bar News responding to those articles and contesting certain of their premises.

On a more prosaic level, even though lawyers and judges may often complain about one another, dealing with unrepresented persons usually leads both lawyers and judges to more greatly appreciate, if not cherish, each other. This is not disrespect for the unrepresented person, but rather a practical appreciation of the fact that lawyers generally make more efficient use of limited judicial resources than do unrepresented persons. While judges and lawyers clearly recognize that justice, not efficiency, is the goal of our legal system, justice often cannot be accomplished without efficient use of limited resources. A judge or lawyer dealing with an unrepresented person will almost certainly spend far more time than if that person were represented by a lawyer. For the judge, this means his or her docket will likely be delayed and less productive, and thus justice will be delayed for other litigants. It also means the issues of the case will likely be more poorly argued, and thus place a greater burden on the judge to assure that justice is done. For the lawyer, it means the additional time required for the representation will inevitably result in a higher bill for his or her client, (who may well become dissatisfied because of the increased costs) and less time to represent other clients. Further, both the lawyer and the client may fear that the court will go easy on, and require less of, the unrepresented person, thereby giving the unrepresented person an unfair advantage in the litigation.

An excellent source for further background information on dealing with unrepresented persons is Meeting the Challenge of Pro Se Litigation – A Report and Guidebook for Judges and Managers (American Judicature Society/ State Justice Institute, 1998) by Jona Gold-schmidt, Barry Mahoney, Harvey Solomon and Joan Green.

The RPC most directly applicable to a lawyer dealing with unrepresented persons states:

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 the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

The rule refers to "persons," not "parties." It is thus not restricted merely to a lawyer's dealings with an unrepresented person in litigation, but applies also to all dealings by the lawyer with an unrepresented person, whether in litigation, transactions, negotiations or whatever. Under the rule, the lawyer must make clear that he or she is not a disinterested or neutral person, but rather serves as an advocate for his or her client. If the lawyer knows or should know the unrepresented person does not understand the lawyer's role, the lawyer must try to correct that misunderstanding.

The rule seeks in effect to put the unrepresented person on clear notice that the lawyer is an opponent and thereby lessen the possibility of overreaching by a lawyer since the lawyer will often have, by education, training and practice, knowledge and skills not posessed by the unrepresented person and will thereby likely be in a superior position. Thus, the lawyer may not imply that he or she is neutral or is looking after the interests of both the client and the unrepresented person, or that the unrepresented person should not hesitate to speak freely, since such statements could disarm the unrepresented person, leading to an unwarranted advantage for the lawyer's client.

The application of RPC 4.3 will vary depending on the sophistication, knowledge, skills and training of the unrepresented person. For example, a lawyer dealing with an uneducated manual laborer about family law matters will more likely need to take greater care under this rule than will a lawyer dealing with a sophisticated business executive over a commercial lease.

RPC 4.3 does not prohibit a lawyer from negotiating a transaction and preparing documents on behalf of his or her client for signature by the unrepresented person. Although RPC 4.3 does not explicitly prohibit a lawyer from giving legal advice to a non-client (a prohibition that was included in the prior ethics code), Comment 1 to Rule 4.3 of the ABA Model Rules of Professional Conduct states that a lawyer should not give legal advice to the unrepresented person (other than recommending that the person seek legal advice). See ABA Annotated Model Rules of Professional Conduct (Third Edition, 1996), Rule 4.3, Comment 1, page 409. Other authorities, however, suggest that a lawyer is not prohibited from making truthful statements of the law to an unrepresented party. See, for example, W.T. Grant v. Haines, 531 F.2d 671 (2d Cir. 1976). Thus, if asked, a lawyer may truthfully advise an unrepresented person, for example, that documents must be signed and filed to be effective. See Restatement of the Law Third – Restatement of the Law Governing Lawyers (Tentative Draft No. 8, March 21, 1997), Section 163, Comment D, Illustration 1, pages 281-2. The lawyer may, perhaps more safely, respond to that person that he or she cannot provide that person any legal advice. If the lawyer provides false information, the lawyer is liable and subject to discipline for those false statements. See RPC 4.1 and RPC 8.4, discussed below.

The submission by a lawyer of documents for signature to an unrepresented person should not of itself constitute the provision of legal advice to that person, although it would probably be safer for the lawyer to have the lawyer's client submit the documents to the unrepresented person. If the lawyer does so directly, however, the lawyer should take care to make clear that the lawyer is not disinterested and is not representing the unrepresented person. For example, a lawyer handling a house financing for a bank may send the documents to the buyer for signature, but should make clear that he or she represents the bank and not the buyer and should not advise the buyer whether or not to sign the documents. The lawyer should, however, be able (if true) to tell the buyer that the financing will not be consummated if the documents are not signed. See ABA Annotated Model Rules of Professional Conduct (Third Edition, 1996), pp. 410-412.

Conduct of Lawyer's Staff

RPC 8.4(a) prohibits a lawyer from doing indirectly what he or she cannot do directly. RPC 8.4(a) states that "it is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another." Further, RPC 5.1, RPC 5.2 and RPC 5.3 require a lawyer to be responsible for the professional conduct of subordinate persons, including a lawyer's staff. Thus, the lawyer must take care that these other persons, for whose conduct the lawyer has any responsibility, do not, when dealing with an unrepresented person, give the unrepresented person the misim-pression that they or the lawyer are disinterested.

Several other RPCs, while not specifically addressing the lawyer dealing with unrepresented persons, also have particular importance to such a lawyer. RPC 4.1 requires a lawyer in the course of representing a client to not knowingly "make a false statement of material fact or law to a third person" or "fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client . . . ." Clearly, a lawyer or the lawyer's staff cannot lie to an unrepresented person any more than they may do so to anyone else. But do RPC 4.1 and 4.3 taken together suggest that a lawyer dealing with an unrepresented person may not rely on verbal or linguistic technicalities or niceties of the type which might arguably be acceptable when dealing with another lawyer?

Who is an unrepresented person? Sometimes it is hard to know whether a self-proclaimed pro se person is in fact unrepresented or whether there are undisclosed lawyers assisting the person. The self-proclaimed pro se, for example, may be receiving some, but limited, assistance from a lawyer, and the uncertainty of the extent of the assistance can be troublesome for both the opposing lawyer and for a judge. For example, a self-proclaimed pro se may be receiving coaching in procedural matters, or drafting or writing assistance in pleadings from a lawyer. Is that person truly an unrepresented person? The question is not purely academic since practical consequences follow from differing responses.

If the self-proclaimed pro se is in fact being represented by counsel, lawyers will be concerned about violating RPC 4.2, which prohibits them from communicating about the subject of the representation with a party the lawyer knows to be represented by another party unless the lawyer has the consent of the other lawyer to do so (or they are otherwise authorized by law to do so). If the unrepresented person proclaims himself or herself a pro se, is that sufficient for the lawyer to freely communicate directly with that person without regard to RPC 4.2? Where a pro se acknowledges that he or she is receiving coaching or drafting assistance from another lawyer, and the opposing lawyer knows another lawyer is involved, how freely can the opposing lawyer deal with the pro se? Where an opposing lawyer knows or suspects that a self-proclaimed pro se is in fact being assisted by another lawyer, the opposing lawyer would be wise to confirm, and to document that confirmation with the pro se's lawyer, that the pro se's lawyer has no objection to the opposing lawyer contacting the pro se. For a discussion of some opportunities and dangers offered by such limited legal representation (sometimes referred to as "discrete task representation" or "unbundled legal services"), see Barrie Althoff, "Limiting the Scope of Your Representation: When Your Client Wants, or Can Afford, Only a Part of You" [Bar News, June 1997, p. 45], and Barrie Althoff, "Limiting the Scope of Your Representation: Questions of Cost, Candor & Disclosure" [Bar News, July 1997, p. 33].

Subsequent to those two articles, the Colorado Supreme Court adopted, on June 17, 1999, amendments to Rule 1.2 (scope of representation), Rule 4.2 (communication with person represented by counsel), and Rule 4.3 (dealing with represented party) of the Colorado Rules of Professional Conduct, and Rule 11 of the Colorado Rules of Civil Procedure, which together specifically permit unbundled legal services. The rules permit a lawyer to limit the scope of the representation with client consent and to provide limited representation to an otherwise pro se person pursuant to Civil Rule 11, which in turn requires that pleadings drafted with the assistance of counsel identify the counsel and contain a certification (which is not required where a lawyer assists a pro se client complete pre-printed forms issued by the court). Thus, the new Colorado rules permit unbundled legal services to be performed, but not anonymously, and any pleadings drafted by the lawyer are not "ghost-written," since the assisting lawyer's identity must be specified on the pleadings. The Colorado court also added a comment to its Rule 4.3 to make clear that a pro se party to whom limited drafting representation is provided under Civil Rule 11 is considered to be an unrepresented party for purposes of Rule 4.3, unless the opposing party knows in fact that the pro se is represented by counsel more generally.

In response to those changes, the United States District Court for the District of Colorado renewed its opposition to unbundled legal services and specifically rejected, by Administrative Order 1999-6, dated June 30, 1999, the Colorado Supreme Court's changes for practice in the Colorado Federal District Court as not being consistent with the District Court's view of Federal Civil Rule 11 or "with the view of the judges of this court concerning the ethical responsibility of members of the bar of this court." That court has previously opposed unbundled legal services and especially "ghost-writing." See Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994), aff'd on other grounds, 85 F.3d 489 (10th Cir. 1996).

Where a pro se says nothing to opposing counsel about receiving assistance from another lawyer, but the lawyer "knows" or "reasonably should know" that the otherwise unsophisticated pro se could not possibly have drafted the pleadings or made the legal arguments without having received legal assistance, is the lawyer then put on notice of such representation? If he or she is, is there any obligation to inquire of the pro se? Or, is it sufficient merely to rely on the pro se's declaration of not being represented?

Judges will likewise be concerned over whether a self-proclaimed unrepresented person is in fact receiving legal counsel. To satisfy the litigant's right to due process and access to the courts, a judge must assure a fair and meaningful hearing for the litigant. If a judge passively allows a pro se to jeopardize his or her claim or defense by significant errors, the unrepresented party may not in fact receive either a meaningful hearing or due process. On the other hand, if a judge assists the unrepresented party, the opposing party and that party's lawyer may well feel they have been denied a fair and impartial hearing since the judge has assisted the pro se against them. This will be especially true where the self-proclaimed pro se is in fact receiving undisclosed legal assistance.

Undisclosed drafting by a lawyer of pleadings for a self-proclaimed pro se litigant (a practice sometimes referred to as ghost-writing) raises particular concerns for judges. While Haines v. Kerner, 404 U.S. 519 (1972) holds that a pro se's complaint must be held to a less stringent standard than the formal pleadings drafted by lawyers, it is unclear whether that reduced standard also applies to documents other than pleadings, and whether it applies in other than federal courts. It seems clear, however, that where a self-proclaimed pro se submits pleadings ostensibly prepared by himself or herself, but which in fact were prepared by legal counsel, those pleadings should be held to the same standard as pleadings drafted by a lawyer, and thus the self-proclaimed pro se should not benefit from the reduced standard.

Does a judge have an obligation to inquire of each pro se whether he or she received drafting or coaching assistance? Some judges believe the undisclosed rendition of assistance by a lawyer is a violation by that lawyer of RPC 3.3, which requires lawyers to be candid with the court. Pro se litigants may, by analogy, be expected to comply with the same ethical standards as lawyers, even though those provisions do not on their face apply to non-lawyers. If a pro se litigant fails to disclose the role of the ghostwriting or coaching lawyer, can the pro se be sanctioned by the court for a lack of candor? Can the ghost-writing/coaching lawyer be sanctioned by the court even though the lawyer has not technically "appeared" before the court? Suppose the lawyer directs the pro se to disclose the lawyer's role in drafting pleadings or coaching the pro se, and the pro se agrees to do so, but in fact does not do so? May or must the drafting/coaching lawyer disclose his or her role, or would that disclosure be a breach of the lawyer's duty under RPC 1.6 to maintain the client's confidences and secrets?

While a judge may be tempted to sanction a pro se submitting allegedly self-prepared pleadings to a court by disregarding or expunging the pleadings, there is some non-Washington authority that a self-proclaimed pro se's pleadings found to have in fact been drafted by a previously undisclosed nonlawyer may not be disregarded or expunged, nor may the court prohibit such filings. See Tennessee Attorney General Opinion 94-101, 1994 WL 509446 (September 9, 1994); and Opinion 94-46 of the Committee on Standards of Conduct Governing Judges, Sixth Judicial Circuit, Florida (December 16, 1994).

Some courts also take the position that undisclosed ghost-writing is a violation of Rule 11 of the state or federal Rules of Civil Procedure, which require that every pleading be signed by the attorney of record or, where there is no attorney, by the pro se person. (See cites in two Althoff articles cited above.) While it would seem that to these courts a pleading signed by a drafting lawyer on behalf of the self-proclaimed pro se should be acceptable, this conclusion may be questionable given the position (cited above) of the U.S. District Court for the District of Colorado rejecting the Colorado Supreme Court's rules permitting unbundled legal services. Such a lawyer-signed pleading may also raise the issue of whether that signing constitutes an appearance in the litigation of the drafting lawyer, and if it does, whether it thereby limits the ability of the lawyer and his or her client under RPC 1.2 to agree to a limited scope of representation, as the court may seek to impose greater responsibilities on the lawyer than the lawyer and the client have agreed to. The Colorado Supreme Court rules seek to resolve these issues. In Washington, there is no authority on the issue.

In dealing with unrepresented persons, judges may be concerned that if they provide any assistance to the unrepresented person they may violate their own fundamental duty to provide a fair hearing to the litigants, to maintain complete impartiality, and to maintain control over their own docket of cases. Unfortunately, Washington's Code of Judicial Conduct, and the comments thereto, provide only very general guidance and are silent as to the special problems that arise when dealing with unrepresented parties.

The judge's duty of impartiality is referenced several times in Washington's Code of Judicial Conduct. Canon 2, entitled "Judges Should Avoid Impropriety and the Appearance of Impropriety in All Their Activities," provides: "(A) Judges should . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 3, entitled "Judges Shall Perform the Duties of Their Office Impartially and Diligently," states (in part (A)(3)): "Judges should be patient, dignified, and courteous." The official comment to that canon notes: "The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and businesslike while being patient and deliberate." Canon 3(A)(6) reinforces this by providing: "Judges should dispose promptly of the business of the court."

Canon 3 goes on to provide:

(A)(4) Judges should accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding …;

(5) Judges shall perform judicial duties without bias or prejudice.

The comment to Canon 3(A)(5) states: "A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute." To safeguard impartiality, judges must also take care that their staff and other officers of the court also maintain that same freedom from bias and prejudice.

The Court of Appeals commented in State v. Ladenburg, 67 Wn.App. 749, 754-5 (Div.II, 1992): "Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing." A recurring problem for a judge dealing with unrepresented persons is that if the unrepresented person is to receive a fair hearing, the person may need assistance. In this context the test of impartiality and fairness is not merely whether the judge assisted an unrepresented party, but rather whether that assistance would lead a "reasonably prudent and disinterested observer" to conclude that all parties had not had a fair, impartial, neutral hearing." The judge's role is neither to so assist an unrepresented party as to equalize the resources of the litigants nor to oversee a travesty of justice. But it is difficult for a judge to know where between the Scylla of seeking a level playing field and the Charybdis of presiding over a litigation massacre the judge may safely sail.

If there is no one else to provide assistance to the unrepresented person, the judge or the judge's staff may need to do so, and the more assistance given, the more likely the opposing parties will be deprived or feel deprived of themselves receiving a fair and impartial hearing. While the judge and the judge's staff clearly cannot provide the unrepresented party with legal advice or advise as to courtroom tactics (since Canon 5(F) of the Code of Judicial Conduct expressly prohibits judges from practicing law), that advice is sometimes the very advice the unrepresented party needs if she or he is to receive a fair hearing. Although the prohibition on judges practicing law does not apply to part-time judges (see Code of Judicial Conduct – Application of the Code of Judicial Conduct (A)(1)(ii) and Washington State [Judicial] Ethics Advisory Opinions 94-4 and 96-8), in the context of a judicial proceeding, the part-time judge is subject to the same restrictions as a full-time judge in assisting an unrepresented party. While court staff such as courthouse facilitators may lessen the need for the judges themselves to directly assist unrepresented persons, the distinction between providing prohibited "legal advice" and possibly permissible "legal information" is perilously fine and fraught with adverse consequences.

A judge has a duty to dispose of cases promptly. The judge may find difficulty in doing so when dealing with an unrepresented person because the person's unfamiliarity with appropriate procedures will often cause repeated and significant delays in proceedings. Should a judge, remembering the aphorism that "justice delayed is justice denied," allow delays in a pro se case which will effectively delay justice for other cases on his or her docket?

Little guidance is available to judges on how to meet their duty of impartiality and yet assure a pro se litigant of his or her right to a fair hearing. Advisory Opinion 1-97 of the Indiana Commission on Judicial Qualifications is one of the very few opinions that explores this issue. It concludes that a judge's ethical obligation to treat all litigants fairly obligates the judge to ensure that a pro se litigant in a non-adversarial setting is not denied the relief sought only on the basis of a minor or easily established deficiency in the litigant's presentation or pleadings. It states:

Neutrality and impartiality are virtues which are essential to the integrity of the judiciary. Perhaps because those virtues so often are extolled, it appears to the Commission that, from time to time, judges who have before them pro se litigants whose pleadings or presentations are deficient in some minor way, sometimes take an unnecessarily strict approach to those deficiencies, turn the litigants away on those grounds, and, in the name of strict neutrality, violate other sections of the Code of Judicial Conduct.

Fairness, courtesy, and efficiency also are hallmarks of an honorable judicial system. . . . [Indiana citations omitted.] The Commission members believe that in presiding in a case with a pro se litigant in a non-adversarial setting, where the litigant has failed in some minor or technical way, or on an uncontroverted or easily established issue, to submit every point technically required or which would be required from an attorney, the judge violates the Code by refusing to make any effort to help that litigant along, instead choosing to deny the litigant's request or relief. For example, if a pro se litigant seeking a name change pays the required fees, submits proof of publication, establishes the basis for the request, but inadvertently or for lack of experience does not state an element which the judge requires, such as that the name change is not sought for a fraudulent purpose, the judge should make that simple inquiry during the litigant's presentation to the court rather than simply deny the petition on that basis alone. Neither the interests of the court nor of the litigant are served by rejecting the petition on the basis of this type of deficiency. Similarly, for example, a married couple seeking a divorce, each acting pro se, with no contest or issues in dispute, might unknowingly omit from their pleadings their county of residence. A judge should make inquiry of the parties to establish this element of their petition, and proceed appropriately, rather than deny the petition and excuse the parties from the courtroom on the basis of their omission.

The Commission stresses the obvious here that a judge in no way has an obligation to cater to a disrespectful or unprepared pro se litigant, or to make any effort on behalf of any citizen which might put another at a disadvantage. Of course, normally a judge should not "try a case" for a litigant who is wholly failing to accomplish the task. However, on the occasion where a citizen has the simplest kind of matter to bring before the court, with no adversarial context, and no indication of any untoward motive or disrespect for the court, the judge has a duty and a responsibility to not simply turn that citizen away on the basis of a minor failure to establish every pertinent detail.

Florida also wrestled with this issue. The Committee on Standards of Conduct Governing Judges of the Florida Sixth Circuit concluded in Opinion 93-8 (1993) that a judge could provide pro se litigants with appropriate forms. But the Committee was divided as to whether it would be the prohibited practice of law for a judge to distribute a four-page brochure entitled "Family Law Division, Pro Se Pointers" which contained a checklist of 12 documents, two pages of explanations of forms and procedures, and a request that the pro se sign and date the brochure and return it to the judicial assistant for review shortly before a final hearing.

The Committee's doubts as to the permissibility of assistance to pro se litigants may subsequently have been resolved, however, since by Administrative Order No. PA/PI-CIR-99-34 (April 29, 1999), the Florida Sixth Circuit established a Family Law Self-Help Center to be operated under the auspices of the court to assist self-represented litigants filing family law actions.

In a tone somewhat similar to the earlier Florida opinion, the New Mexico Advisory Committee on the Code of Judicial Conduct in its Judicial Advisory Opinion 93-3 (June 8, 1993) concluded that a judge could not ethically develop forms for litigants in the judge's court since doing so would constitute the practice of law and would engender doubts as to the judge's impartiality. The author believes that contrary to this opinion and the earlier Florida opinion, the clear nationwide trend will be for courts, perhaps through their administrators, to provide more, rather than less, forms and assistance to unrepresented parties.

The personal mission statement of every lawyer should be, as it is of the Washington State Bar Association, to promote justice and to serve the public and the legal profession. The Preamble to the RPCs reminds us that "justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government." Lawyers and judges live this belief by respecting the dignity of the unrepresented persons with whom they deal, by treating them with deference and patience, by assisting them where they ethically may, and by respecting their attempts to exercise their ability to govern their own affairs through their own self-representation.

Back to table of contents >>