Lawyer's Duties to Litigants

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‘In Australia, should a lawyer’s duties to a self-represented litigant be different from a lawyer’s duties to a represented litigant? If so, how and why? If not, why not?’ Lawyers in Australia are bound in their work to a number of ethical and professional responsibilities that dictate the way in which they conduct themselves and deal with the court system. These obligations highlight the highly technical nature of litigation, something which is heavily reliant on the interdependency of the courts and the legal profession in general. Courts are statutory and rule based environments and those who are not trained in their operation, boast the necessary specialist legal skills, or owe no duty to them or their members, inevitably create problems in the facilitating of justice equality before the law. Thus, self-represented litigants pose numerous problems for the lawyer who is opposing them in court. There are no strict guidelines on how to deal with these unrepresented litigants who themselves owe no ethical or professional duties and it is often up to the lawyer whether and to what degree they owe these litigants a duty. The right to representation, including self-representation, is not explicitly recognised by Australian law as a fundamental human right, as opposed to the right to a fair trial. Nonetheless, this right to representation has a very important precedent in the Australian legal system and it is regarded as ‘a basic tenet of our democratic system that all have access to the Courts and each person the right to present his or her case’. This is demonstrated by the number of initiatives and organisations that are designed to provide the population with some form of legal aid and representation as to facilitate the process of equality before the law. These resources however, for various reasons, do not have the ability to reach every person who needs them and this creates problem of the self-represented litigant. Self-represented litigants (SRLs) are not a new phenomenon but one that is on the increase in the Australian legal system. The Family Law Council Litigants in Person report defines an unrepresented litigant ‘as someone who provides his or her own address for service’ and highlights that ‘unrepresented’ is a broad term which encompasses both those litigants who have had some legal aid but represent themselves in court, and those who have had none. The trend of SRLs appearing in courts is due to numerous factors. A person may refuse legal aid with the wish to represent themselves due to a distrust of lawyers and the legal system or because they feel they simply know everything, or they may be refused legal aid for a number of reasons. More frequently however, the cost of legal services is the major factor in influencing a person to represent themselves in litigious matters. As the cost of legal services is increasing people may choose to potentially save money by representing themselves, and others have no choice in the matter as they simply cannot afford the legal services they require, yet do not meet the means or merit test required for legal aid. There is a trend of SRLs in family and migration cases because of this lack of accessibility to resources and money for legal aid and services. A 2000 report by the Australian Law Reform Commission found that 31% of migration cases involved SRLs, and the Family Law Council Litigants in Person Report found that within the Family Court more than one third of cases involved one or more SRLs. SRLs not only pose numerous problems for the court system in terms of the amount of time, costs and resources needed to properly deal with their case, but also the other party in terms of the increased cost, time and resources needed to maintain what is often a lengthy case with an SRL as an opponent. SRLs put a strain on court resources and limit public access to the courts and judicial system. The SRL themself also faces a lot...
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