We are privileged to have an adversarial legal system where attorneys represent their clients’ interests in disputes pursuant to Court rules, rather than the litigants battling each other directly. Nothing gives an appreciation for the wisdom of that system more than defending an attorney in a pro se legal malpractice claim. Pro Se attorney malpractice claims present unique challenges, and anyone who regularly handles attorney malpractice defense cases will at some point have to deal with a claim or suit brought by a self-represented, or pro se litigant. In this article, I discuss some of the idiosyncrasies often seen in pro se attorney malpractice claims, case law addressing pro se litigants’ claims and strategies for dealing with these claims. These claims often present little to no indemnity exposure, but may present significant defense costs exposure.
Self-represented parties present unique challenges for counsel defending against such claims, and these challenges can be magnified where the claim is one of attorney malpractice. The Federal Judicial Center noted in a recent report that “Courts are obligated to be open and accessible to anyone who initiates or is drawn into federal litigation [.]” See FJC-MISC-2016-6, Federal Judicial Center, Jefri Wood, 2016, Pro Se Case Management for Nonprisoner Civil Litigation, 2016 WL 5920807. While it is understood that self-represented litigants are entitled to Court access, those litigants do not have unfettered rights. In some instances, if a litigant abuses the system with repetitive complaints about the same issue, Courts may issue a filing injunction (see generally, Id. at 37.), although that is a severe sanction that is not given lightly. A pro se claimant in a non-malpractice context, for example, a homeowner dissatisfied with work performed on his home may bring suit himself because he lacks resources to retain counsel. Perhaps the dollar amount of a dispute does not warrant commencement of an action. Perhaps a forum is designed for self-represented parties, i.e., Small Claims Court, where the Court specifically advises claimants they need not hire an attorney. (See e.g., https://www.nycourts.gov/courts/nyc/SSI/pdfs/smallclaims.pdf.) However, there is a difference with claims against attorneys. Some self-represented litigants have a philosophical problem with the legal profession or the judicial system as a whole. These types of litigants may have a problem with the very idea of a lawyer charging a fee for spending time on a matter, researching law and preparing pleadings or motions.
In my experience, such self-represented litigants in the context of an allegation of legal malpractice may assert claims of overbilling under the mistaken belief that the process of representing a client is no more than filling out form documents and pleadings. Self-represented litigants in a non-malpractice context may bring claims for economic reasons, but often in connection with claims pro se against attorneys, actions are brought for non-economic reasons, namely, the principle of the matter or with the intent to punish an attorney after receiving an adverse result by taking up his or her time and resources.
There are certain challenges often encountered in defending pro se attorney malpractice claims. Counsel should expect to see the following issues:
- For some self-represented attorney malpractice claimants, money is not the goal of the litigation, the goal is public vindication or the “principle” of the matter. As a result, claimants may behave in irrational ways, spending inordinate amounts of time arguing over minor points of procedure or discovery issues;
- Displays of arrogance through lecturing Court personnel or Judges and the inability to accept a Judge’s decision that is adverse to some aspect of the claim. Other inappropriate behavior might be encountered, such as anger or ranting by a claimant if he loses a motion;
- A lack of objectivity, i.e., an inability to perceive the weaknesses of an argument;
- Exhibition of an exaggerated sense of their own importance, and narcissistic behavior. Some self-represented attorney malpractice claimants seem to believe that everyone is thinking about them all the time, and conspiring against them all the time;
- Self-represented attorney malpractice claimants may be financially well-off, not working, and have all day to focus on their one case, or perhaps several cases;
- Today’s technology can enable pro se legal malpractice plaintiffs create chaos. Much information is easily available on line, for example, case law and sample pleadings can be located through a simple Google search; e-filings can be effectuated with ease at any time of the day or night; communication with opposing counsel can be accomplished via emails at any time of the day or night and these invariably end up in Court filings, sometimes out of context or without filing counsel’s responses requiring much effort to correct the record;
- Some self-represented claimants may be delusional or afflicted by mental illness, and may not behave rationally;
- Self-representation is permitted in Court, unlike other professions. A non-engineer cannot stamp his own plans while applying for a building permit. A person cannot perform surgery on herself. Some pro se legal malpractice plaintiffs verily believe that no one can handle their case better, but the difference from other professions is that they are actually permitted to represent themselves.
There is a body of case law addressing self-represented litigants. It is beyond the scope of this article to review the case law in-depth, but a brief examination is provided here. Generally speaking, the Courts will excuse in-artfully pled Complaints when adjudicating claims of self-represented parties. See, for example, Haines v. Kerner, 404 U.S. 519 (U.S. 1972). Even so, Courts will dismiss actions if the Plaintiff’s complaint does not state a claim, regardless of a plaintiff’s pro se status. Genet v. Buzin, 159 A.D.3d 540, 72 N.Y.S.3d 81 (N.Y. App. Div.1st Dep’t. 2018). (Plaintiff’s claim based on dissatisfaction with defendants’ strategic choices and tactics did not state a cause of action.) Courts will be “mindful” of the fact that a Plaintiff may be a pro se litigant and will “make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” However, pro se status does not “exempt a party from compliance with relevant rules of procedural and substantive law.” Roy v. Law Offices of B. Alan Seidler, P.C., 284 F. Supp. 3d 454 (S.D.N.Y. 2018). (The Court dismissed a pro se claim against criminal defense counsel, as the underlying conviction was undisturbed.) A California Court has held that “[a] party who chooses to act as his or her own attorney “‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’” Stover v. Bruntz, 12 Cal. App. 5th 19, 218 Cal. Rptr. 3d 551 (Ct. App. 2017) (In a family law case, the Court articulated a standard applicable to pro se claimants.)
Pro se legal claimants will often not operate outside the scope applicable rules or conventional norms. Often, courtesy adjournments will not be granted. Mediations will not be agreed to readily, as is usually the case when all parties are represented by counsel. Any settlement with a pro se claimant should be placed on the record in open Court, and only after the Court has inquired as to whether the Claimant understands the settlement and has entered into it freely, and had the opportunity to obtain counsel. It can be frustrating to deal with a self-represented claimant. Counsel must remember that pro se claimants will not hesitate to include emails in Court filings, often not providing the whole context of the discussion. Even in the face of abusive correspondence from the Claimant, professionalism and disciplined, measured responses will benefit defense counsel in the long run. If the pro se claimant brings multiple suits over the same occurrence, the remedy of a filing injunction may be available. See the standard for same in a five-part test articulated in Safir v. U.S. Lines, Inc., 792 F.2d 19 (2d Cir. 1986).
Conventional tactics may not always work in defense of attorney malpractice claims brought by pro se claimants. Counsel must be aware that personal attacks and irrational behavior may be the norm. Patience and persistence is required in these situations, as well as an effort remain professional and civil. All communications may wind up in front of the Court. If repetitive suits or claims are brought, it may be advisable to seek a filing injunction. Litigation with self-represented parties is a balancing act for the Court. The Court must grant access to all parties whether or not represented by counsel, while requiring adherence to Court rules as well as standards of ethics and civility. Often times, the key is to allow the Claimants to air their claims that they have somehow been wronged by a member of the legal profession. Once that happens, either the parties can explore resolution, or often the case will be ripe for dismissal. Litigation with pro se claimants in an attorney malpractice context can be challenging, but the challenges can be overcome.