Held to the higher standard

There are many situations where a lawyer may consider self-representation. They may involve sensitive matters related to estate or family issues, disciplinary proceedings, or when financial constraints hinder the ability to hire legal counsel. However, lawyers who choose to self-represent themselves risk not only jeopardizing their case but also their career. 

The most obvious risk is that the lawyer becomes too emotionally implicated in the litigation to view and approach issues reasonably, objectively, and respectfully.

In Ritchot, a 2007 decision upheld by the Manitoba Court of Appeal in 2010, the disciplinary committee of the Law Society of Manitoba found a self-represented lawyer guilty of unbecoming conduct. In reaching this conclusion, the law society found that "Ms. Ritchot chose to represent herself after an accident where she suffered considerable pain and suffering and she proceeded with great emotion and little objectivity."

One of the difficulties she faced was that under Canadian legal-professional codes of conduct, lawyers must treat the court or tribunal with respect and integrity. Unlike ordinary self-represented litigants, a self-represented lawyer is held to the same standards of conduct and competence as when representing a client, regardless of their emotional or financial interest.

As noted by the disciplinary committee in Ritchot, the lawyer remained an advocate "covered by the Rule" even though she was also the client. Her choice to self-represent did not alter the standards of her conduct. Nor did she "shed her ethical responsibilities." 

"To find otherwise would bring the administration of justice into disrepute, as it would create a different standard for counsel when they represent themselves versus when they represent clients," the court wrote.

In 1991, the Law Society of Upper Canada (LSUC) Ontario Discipline Committee found lawyer Peter Michael Hollyoake (who wasn't represented in the disciplinary proceedings) guilty of professional misconduct and conduct unbecoming. Mr. Hollyoake had written to a solicitor that "[a]s usual, your client is full of shit" and later, using profanity towards a representative of LSUC. The LSUC concluded, "[i]t was common ground that the Solicitor was very emotionally involved and upset by the litigation."

In another Ontario case, a lawyer represented himself in a family law proceeding involving his common-law spouse. The LSUC found that the lawyer engaged in abusive litigation tactics and offensive letters to opposing counsel, which were unprofessional and amounted to professional misconduct.

In its 2017 decision in Edwards v Edwards, the Supreme Court of British Columbia specifically warned a lawyer who was self-representing in a family matter. The lawyer had falsely informed the court that a hearing was rescheduled by consent.

Emotions can run high in family matters, but nobody wants to lose their professional reputation. People have been disbarred for less. Being emotionally invested in a matter can significantly impact a person's ability to act and respond objectively, reasonably, and even competently. In the Edwards case, the self-representing lawyer practised as an insolvency trustee and acknowledged that family law was not his "usual area of practice."

Additionally, testifying on one's behalf during proceedings poses a risk of being less than persuasive. In one recent matter out of B.C., a lawyer self-represented himself to defend against allegations of professional misconduct. His testimony was a mix of evidence and argument. It lacked credibility, recalling the Manitoba decision mentioned earlier, in which the disciplinary panel found the witnesses for the society "far more credible than the testimony of Ms. Ritchot."

The importance of impartiality in legal representation before Canadian courts cannot be overstated. Whether the case is civil, criminal, or family-related, the stakes in litigation are generally very high. For self-represented lawyers, they are even higher. An emotional reaction or decision can ruin one's professional reputation and career. It's always better that lawyers seek legal counsel in litigation, particularly where emotionally sensitive matters are involved.