Where a party is not represented by counsel, a lawyer must inform the person:
(a) which party the lawyer is representing;1
(b) that the party’s interests are not being protected by the lawyer;2 and
(c) that the party should retain independent legal counsel.3
This information should be conveyed in writing.
Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012
- “Conflicts”: section 3.4
- “Communications”: rules 7.2-4 and 7.2-9
1. A lawyer must advise an unrepresented party that the lawyer is not acting for him/her and is only representing the lawyer’s client. This is especially (but not limited to) circumstances where an unrepresented party might believe from past dealings that the lawyer was still representing him/her or was the “family lawyer”: Hants County Business Development Centre Ltd. v. Poole, 1997 CanLII 12656 (NSSC) aff’d Poole v. MacKenzie, 1998 CanLII 4993 (NSCA).
2. A lawyer who reasonably foresees that an unrepresented party will rely on the lawyer’s skill and knowledge even if only for “reassurance” and that this reliance might cause serious loss may then have a negligence liability to the unrepresented party: Gateway Building Management Limited v. Manjit Singh Randhawa, 2013 BCSC 350 (CanLII), para. 21. These claims turn on the particular facts; liability is the exception not the norm. Relevant factors to assess liability include (but are not limited to), the unrepresented party’s business/legal sophistication, whether there were meetings at the lawyer’s office and/or documents prepared as part of the transaction for the client creating a perception that the lawyer owed a duty of care to the unrepresented party and whether the lawyer provided a written disclaimer confirming non-representation. The risk of ambiguous disclaimers is borne by the lawyer: 363440 Alberta Ltd. v. Clark, 2010 ABQB 806 (CanLII), paras. 63 – 78.
3. The threshold for determining whether to set aside agreements can be lower if one party does not obtain independent legal advice and that creates vulnerabilities/inequality of bargaining power: Miglin v. Miglin, 2003 SCC 24 (CanLII); Rick v. Brandsema, 2009 SCC 10 (CanLII). See also: NSBS Professional Family Standard #12: Independent Legal Advice.
E.K. v. J.K., 2012 BCPC 48 (CanLII). Husband with severe suicide/alcohol/drug issues signed Minutes of Settlement. His roommate presented these for his signature in final form. Soon after the Wife initiated a motion to convert the Minutes to a Consent Order. The Husband appeared unrepresented and the Order issued. At a later hearing the Minutes and Order were set aside. At this hearing the Husband testified he was unaware the Minutes were prepared by a lawyer and signed them due to the Wife’s threats to move the children to the US. The Wife did not deny the threats to move the children. Additional reasons to set aside Minutes/Order were that on the day of the first hearing when Husband met the Wife’s lawyer and signed the Consent Order he was not advised to obtain independent legal advice either from a lawyer or duty counsel (either verbally or in writing), or that the Wife’s lawyer solely represented her. The emotional stress of repeated threats to move the children was a “compelling factor” particularly given the Husband’s “deeply entrenched…substance abuse.”
Connell v. Connell, 2011 ONSC 4868 (CanLII). Husband consulted a lawyer but did not retain one to negotiate Minutes of Settlement due to the cost. His later application to set these aside was declined despite assertions that the Wife and/or her counsel had bullied him (and in particular correspondence on file suggested to the contrary). Wife’s “threats” to enforce her legal support claims and the frequency of her calls to the Husband with concerns about finances and the children were not “harassment” and the Husband did not complain about inadequate disclosure. Husband asserted he was under distress from the marital breakdown. No evidence of “debilitating mental or emotional issues” impacting on the Husband’s choices was found with the comment that most family law litigants are “distraught, fearful and not at their best” but absent inequality of bargaining power the remaining test was whether the Minutes were unfair.
Rogerson v. Rogerson, 2004 NSSF 37 (CanLII): Minutes of Separation set aside because one party did not have independent legal advice; Lang v. Lang, 2003 MBCA 158 (CanLII). While the absence of counsel does not automatically mean the unrepresented party was vulnerable during negotiations of a separation agreement, absence of counsel is a factor relevant to weight to be given to a Separation Agreement. An Agreement not in substantial compliance with the Divorce Act is to be scrutinized even more closely if both parties do not have counsel throughout the entire negotiation and execution process. (Wife became unrepresented towards the end of the negotiation process).
Ocean v. Economical Mutual Insurance Co., 2009 NSCA 81 (CanLII). Trial level order requested by insurer to have a plaintiff in a motor vehicle claim undergo psychiatric assessment to determine competence to self-represent reversed on appeal. No order can be made when competency is not a fact at issue in the proceeding. No decision made whether there is inherent jurisdiction to order this in exceptional circumstances because in this case no suggestion the self-represented litigant was incompetent under the Incompetent Persons Act, RSNS 1989, c. 218.
Williams v. Williams, 2015 ABCA 246 (CanLII). Summarizes responsibility of judges towards self-represented litigants, adopting with approval remarks in P.G.B. v. Nova Scotia (Community Services), 2014 NSCA 113 (CanLII).
Consider communicating only in writing with an unrepresented party whenever possible. If written communication is not possible, consider documenting all conversations and contact and/or whether verbal communications could be witnessed by a third party, or taping verbal communications with the knowledge and consent of the unrepresented party.
You may wish to provide an unrepresented party with contact information on Nova Scotia Legal Aid, the Legal Information Society of Nova Scotia (902-455-3135, www.legalinfo.org), and the Lawyer Referral Service (1-800-665-9779); and alert them to the written materials available at Court locations and on www.nsfamilylaw.ca, and of materials available through the Courts including those in the Downloads section below and if available in the relevant Court, the availability of Duty Counsel and how to contact Duty Counsel.
An unrepresented party should be advised (ideally in writing) of the implied duty of confidentiality with respect to information received during negotiations, discovery and litigation: Ryan and Schwartz v. Schwartz, 2000 NSCA 82 (CanLII).
Assess the dynamics between your client and the unrepresented party and advise the unrepresented party of prohibitions on direct contact with your client in terms of legal issues arising in the file. This prohibition applies even if the unrepresented party is a lawyer: Powers v. Powers, 2004 ONCJ 281 (CanLII), para. 58. Further, consider if restrictions should be requested on the unrepresented party’s rights to conduct discovery examination. The Court may restrict this in appropriate circumstances: Zanewycz v. Manryk, 2009 CanLII 44290 (ONSC), paras. 22 – 34
Become familiar with the jurisprudence surrounding “fair trials” to ensure that judges do not move past assisting an unrepresented litigant into compromising the represented party’s legal rights to a fair and impartial trial. Be prepared if necessary to object for the record if an unfair/impartial trial appears to be occurring. A useful summary of the relevant principles can be found in Malton v. Attia, 2016 ABCA 130 (CanLII), but be aware of jurisprudence suggesting there may be wider latitude for judicial intervention in trials where the best interests of the child are at issue: Powers v. Powers, 2004 ONCJ 281 (CanLII), paras. 51, 55 -57.
The terms Unrepresented and Self-Represented are often used inter-changeably in case law.
Presenting Your Case in Court — Representing Yourself in the Family Division, Supreme Court of Nova Scotia (13:18)
Your Day in Court — Representing Yourself in the Family Division, Supreme Court of Nova Scotia (10:08)
The Nova Scotia Department of Justice – Self Representation site contains information for a self represented person.
Representing yourself in Family Court Information Kits
Cochrane, Carol / Surviving SRLs (Self Represented Litigants) (Winter 2006) in LAWPRO Magazine .
What Keeps Family Law Lawyers Up At Night?, LawPro Magazine Volume II, Issue 3: Contains some tips about helping self-represented litigants understand your role (as opposing counsel) and a sample disclaimer letter.
Caldwell, Chelsea / Dealing with the Self-Represented Litigant: Challenges and Strategy, or Things I Wish I Had Known Five Years Ago (May 2011), BC Continuing Legal Education Society of British Columbia, © Chelsea C. Caldwell.
Burkholder-James, Carolynne / Tips for dealing with self-represented litigants (December 2, 2016) CBA National Magazine.
Balbi, Lonny L. / Self-represented Litigants from the Mediator’s Perspective: Walking the Line, , 19 CFLQ 583.
Thompson, D.A. Rollie and Reierson, Lynn / A Practicing Lawyer’s Field Guide to the Self-Represented, , 19 CFLQ 529.
Martin, Bronwyn / Fair play: How to be an advocate with a self-represented opponent, The Advocates’ Journal Winter 2017.
Approved by Council on March 25, 2011; Revised April 6, 2018