Insight Practical and Ethical Issues when Dealing with a Pro Se Litigant

This article was originally published in the March/April 2011 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

Pro se plaintiffs come in all shapes and sizes, from the relatively uneducated to the highly educated. While there have always been pro se litigants, I anticipate that economic conditions will cause the number of pro se litigants to increase in the near future.¹ In fact, with the increase of pro se litigants, it is not unheard of for a civil appeal to have pro se litigants on both sides.²

Though pro se litigants are not bound by the rules of ethics³, attorneys are and must avoid certain pitfalls when a pro se litigant is on the other side. Below are some suggestions which will hopefully assist attorneys in dealing with pro se litigants.

Fair warning: courts give pro se litigants significant leeway

It seems that the Courts tend to be more forgiving with pro se litigants than with represented litigants. For example, while the 9th Circuit has indicated that pro se litigants are expected to know and follow the rules of civil procedure⁴, many judges give pro se litigants more leeway than a represented party would receive.⁵ Thus, pleadings, memoranda, and other documents which give some inkling of what a pro se litigant is arguing will likely not be rejected because they do not have the proper format, or are inartful in presentation.⁶

First steps

Many of the mistakes made by a pro se plaintiff are made at the outset of the lawsuit. When first looking at a pro se complaint, it is usually worth checking to see if any 12(b) motions⁷ or other applicable procedural requirements apply. For example, upon receipt of a complaint, an attorney should confirm with the client how and when the complaint was served. I have had numerous cases where the pro se litigant has failed to properly execute service. In most of these cases, the pro se litigant simply mailed the complaint and summons. However, state rules generally do not allow service by mail upon individuals⁸ or corporations.⁹ The Federal rules also require personal service on individuals¹⁰ and corporations.¹¹

If there is an attorney working in the background with the pro se litigant, it is recommended to confirm the status of the relationship before engaging in any communications with the pro se litigant.

Of course, failure to properly serve a complaint and summons deprives a Court of jurisdiction over the suit, subjecting the suit to dismissal.¹²

Also, it is advisable to determine whether the complaint was served in a timely manner (120 days for a federal lawsuit¹³ and six months for an Idaho state lawsuit).¹⁴ This process can be easily handled by either checking the Idaho Repository¹⁵ or the Idaho Federal Court Electronic Filing System.¹⁶

If the pleading is so vague and ambiguous as to make it impossible to respond or even comprehend what is being alleged, the rules allow a party to move for a more definite statement.¹⁷ Courts will dismiss cases where complaints are unintelligible or incomprehensible.¹⁸

If the case gets to discovery, it may become necessary to depose the pro se litigant. It is important to ask the pro se litigant whether they have ever met with an attorney or obtained legal help from any source. If the pro se litigant is obtaining legal help or advice from an attorney, that may be sufficient for them to be considered represented. As discussed in more detail below, if the pro se litigant is represented, communications with the litigant may be limited by the Idaho Rules of Professional Conduct. If there is an attorney working in the background with the pro se litigant, it is recommended to confirm the status of the relationship before engaging in any communications with the pro se litigant. Further, if the pro se litigant has been represented in the past, this knowledge is helpful in suggesting whether there are any liens for legal work that could affect settlement negotiations. Always ask questions about what legal services the pro se litigant has received.

Motions to dismiss and motions for summary judgment

As discussed above, courts are extremely solicitous of pro se litigants. The Federal Court for the District of Idaho even goes so far as to issue a document entitled “Notice to Pro se Litigants of the Summary Judgment Rule Requirements,” which outlines federal and local rules for responding to motions to dismiss and for summary judgment. Frequently, pro se litigants ignore this document, or fail to follow the rules set explained therein.

Should grounds be available for a motion to dismiss or for summary judgment, I heartily recommend that you become familiar with the local rules, and specifically local federal civil rule 7.1(e). This rule states that failure to respond to an argument may be deemed a waiver of that argument, subjecting the claim to dismissal.¹⁹ Similarly, local rules have specific requirements for response documents, and failure to follow these rules may lead to waiver under 7.1 (e).²⁰

Improper practice of law

It is not uncommon for a pro se litigant to attempt to bring claims on behalf of others. Idaho law does not allow for unlicensed persons to represent other people or entities in legal claims.²¹ For example, a non-lawyer husband may not represent a spouse.²² Idaho Supreme Court cases have held that corporations cannot be represented by another business entity.²³ Similarly, corporations²⁴, limited liability corporations²⁵, and trusts²⁶ cannot be represented by a non-lawyer. Claims brought by a pro se litigant for any other person or entity are subject to dismissal.²⁷

The federal rule is similar.²⁸ Federal cases have held that pro se litigants may not represent estates²⁹, their own children³⁰, churches³¹, trusts³², unincorporated associations³³, or other persons or entities.³⁴ If there are any claims in the suit for any person or entity other than the pro se litigant, a motion to dismiss would be appropriate.

That being said, expect the unexpected from pro se litigants. In one of my cases, a pro se plaintiff was representing a company he owned. When I filed a motion to dismiss the company’s claims, the pro se plaintiff promptly responded by having the company assign to him personally all of the causes of action, which is allowed under Idaho law.³⁵ Needless to say, this made the improper practice of law issue moot.

Communication and settlement negotiations

Communication with a pro se litigant is difficult at best, and at worst, can lead to violations of the Idaho Rules of Professional Conduct.

Particular care must be taken to address ethical concerns when an attorney is involved in settlement negotiations with a pro se litigant. It can be unwise and potentially unethical to provide an analysis of the value of the case to the pro se litigant. The Idaho rules specifically state that when communicating with an unrepresented party, “a lawyer shall not state or imply that the lawyer is disinterested.”³⁶ Though the rule does not say so, it is good practice to indicate the contrary in any communication. In other words, tell the pro se litigant that you represent an opposing party and that your interest may be opposite the pro se litigant’s interests.

Lawyers also have a duty to correct any possible misunderstandings and are prohibited from giving legal advice.³⁷ One recommendation is to include in every letter to a pro se litigant that you do not represent the pro se litigant, are not writing the letter for the purpose of giving legal advice, and that the pro se litigant may contact an attorney to obtain representation.

However, even these precautions may not be sufficient. For example, in Hopkins v. Troutner, 134 Idaho 445, 4 P.3d 557 (2000), the Idaho Supreme Court found that a settlement negotiation between a represented party and a pro se litigant constituted overreaching on the part of the represented party’s attorney, resulting in setting aside the settlement.³⁸ During settlement negotiations, the pro se litigant inquired of the opposing party’s attorney as to the value of the case. The attorney provided his opinion,³⁹ and the case settled shortly thereafter.⁴⁰ The attorney recommended the pro se litigant should obtain legal counsel; however, the pro se litigant signed the settlement documents without consulting an attorney.⁴¹ Thereafter, the pro se litigant obtained counsel who objected to the settlement, and the settlement was set aside.⁴²

The Court determined that the original attorney had engaged in overreaching simply because the attorney gave an “opinion” as to the value of the case.⁴³ The fact that counsel informed the pro se litigant that they should obtain legal counsel was not sufficient to uphold the prior settlement agreement.

The lesson learned from Troutner is that communications with a pro se litigant should be straightforward, simple, and the attorney should avoid communicating any information that could be construed to be an opinion or legal advice. For example, settlement communications should be phrased as, “our settlement offer is…,” rather than “the case is worth…” One recommended method of avoiding ethical concerns in settlement negotiations is to utilize a mediator. Most civil forums have a no-cost mediation option, which interposes a third party between the attorney and the pro se litigant relieving some of the ethical concerns that direct communications might create.

Conclusion

Dealing with a pro se litigant can be frustrating, but should never be taken lightly. Hopefully these recommendations provide some insight and help avoid ethical pitfalls.

Endnotes

1. See, e.g. Madelynn Herman, Self-Representation: Pro Se Statistics, available at: http://www.ncsconline.org/wc/publications/memos/prosestatsmemo.htm (last accessed October 5, 2010). See also Robert L. Jeffs, The Pro Se Quandary, 23 Utah Bar Journal 6, 8 (2010).
2. See, e.g., Hausladen v. Knoche, 149 Idaho 449, 235 P.3d 399 (2010). Admittedly, respondent John Sahlin is a licensed Idaho attorney.
3. Dawson v. Cheyovich Family Trust, 149 Idaho 375, 234 P.3d 699, 706 (2010).
4. Weik v. Shinn (In re Weik), 2008 Bankr. LEXIS 481 (Bankr. D. Ariz. Feb. 15, 2008). See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“pro se litigants are bound by the rules of procedure.”); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986) (“pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record.”).
5. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). See also Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988)(discussing extra protections given to pro se litigants).
6. But see Liponis v. Bach, 149 Idaho 372, 234 P.3d 696, 699 (Idaho 2010) (where a pro se argument is “so lacking in coherence, citations to the record, citations of applicable authority, or comprehensible argument,” the court may reject it).
7. See Idaho R. Civ. P. 12(b); Fed. R. Civ. P. 12(b).
8. Idaho R. Civ. P. 4(d)(2).
9. Idaho R. Civ. P. 4(d)(4). Limited exceptions apply to service upon statutory agents.
10. Fed. R. Civ. P. 4(e).
11. Fed. R. Civ. P. 4(h). Note that the federal rule also deems service proper if the state rule is followed.
12. Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988).
13. Fed. R. Civ. P. 4(m).
14. Idaho R. Civ. P. 4(a).
15. Idaho Repository – Main Page, available at: https://www.idcourts.us/repository/start.do (last accessed February 10, 2011).
16. District of Idaho Live CM/ECF-Login, available at: https://ecf.idd.uscourts.gov/cgi-bin/login.pl (last accessed February 10, 2011). Requires a login and account to utilize.
17. Fed. R. Civ. P. 12(e); Idaho R. Civ. P. 12(e).
18. See, e.g., Liponis, 149 Idaho at *3; Brazil, 66 F.3d at 199; Hearns v. San Bernardino Police Dep ‘t, 530 F.3d 1124, 1131 (9th Cir. 2008).
19. Dist. Idaho Loc. Civ. R. 7.1(e).
20. Dist. Idaho Loc. Civ. R. 7.1(c).
21. Idaho Code Ann. § 3-104 (2011).
22. Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254, 260, 220 P.3d 1073, 1079 (2009).
23. White v. Idaho Forest Indus., 98 Idaho 784, 788, 572 P.2d 887, 891 (1977).
24. Kyle v. Beco Corp., 109 Idaho 267, 271 – 72, 707 P.2d 378, 382 – 83 (1985).
25. Indian Springs LLC v. Indian Springs Land Inv., LLC, 147 Idaho 737, 743 – 45, 215 P.3d 457, 463-65 (2009).
26. Id.
27. Indian Springs LLC, 147 Idaho at 745.
28. Dist. Idaho L. Civ. R. 83.7. See also 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel…”) (emphasis added).
29. Iannaccone v. Law, 142 F.3d 553, 559 (2d Cir. 1998); Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997). Note there may be an exception to this rule where an administrator of the estate may proceed pro se on behalf of the estate if the administrator is the sole beneficiary of the estate, and there are no creditors. See Pridgen, 113 F. 3d at 393. See also Marble v. Missoula County, 2006 U.S. Dist. LEXIS 72834 (D. Mont. Mar. 31, 2006).
30. Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997).
31. Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986).
32. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987).
33. Church of the New Testament, 783 F.2d at 773.
34. McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966).
35. Purco Fleet Servs. v. Idaho State Dep’t of Fin., 140 Idaho 121, 126, 90 P.3d 346, 351 (2004).
36. Id.
37. Id.
38. 134 Idaho 445, 447 – 48 (2000).
39. Id. at 446.
40. Id.
41. Id.
42. Id.
43. Id. at 448.

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