LAWYERS AND SELF-REPRESENTED LITIGANTS

AN ETHICAL CHANGE OF ROLE?

  • Jennifer A. Leitch
Keywords: self-represented litigants, self-representation, adversarial model, inquisitorial model, professional rules, professional conduct, ethics, ethical guidelines, legal profession, lawyer duty, lawyer responsibility, access to justice

Abstract

Despite efforts to improve access to justice, there has been an extraordinary growth in the number of self-represented litigants. Their presence offers both an obligation and an opportunity to examine the professional culture and governing rules that regulate lawyers. Because there are almost as many non-lawyers as lawyers handling civil litigation, the pressure on traditional models of professional responsibility has also increased. By focusing on the problems resulting from increased self-representation, it might be possible not only to refine the values and objectives underlying the professional rules generally, but also to ensure that the rules are relevant and reflective of the emerging and changed realities of the litigation process. It is the main contention of this paper that the adversarial system is and will continue to undergo a transformation that is occasioned by the recent growth of self-representation. This has important ramifications for lawyers’ professional responsibilities. The goal is not to suggest that the adversarial system should be replaced by an inquisitorial system. Rather, I will recommend how key professional duties and responsibilities within the inquisitorial system might better inform a discussion about the workings of an adversarial system that now includes significant numbers of non-lawyers.

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Author Biography

Jennifer A. Leitch

Adjunct Professor, Osgoode Hall Law School, York University, Faculty of Law, University of Toronto, and Research Fellow at Canadian Forum on Civil Justice.

Published
2018-04-18
Section
Articles