Doing the right thing: Playing fair with the involuntary pro se litigant

Abraham Lincoln once famously said that “He who represents himself has a fool for a client.”  While this statement has been demonstrated to be true more often than not, what happens when (1) the pro se representation is not by choice, and (2) an adversary’s attorney takes advantage of the (involuntary) pro se litigant for tactical gain? A recent California appellate opinion addresses not the fool, but rather, the foolish misconduct on the part of opposing counsel when dealing with a pro se litigant.

California’s Fourth Appellate District recently answered these questions in a blistering opinion that should give every attorney who has ever been tempted to take advantage of a pro se litigant some pause, and remind them of the words of Mark Twain (and Ted Lasso) that “it is never wrong to do the right thing.” In this case, opposing counsel neither did the right thing nor did they comply with the very law that, by its intent, aims to protect pro se litigants whose attorney is no longer eligible to represent her or him in a case.

In Prato v. Gioia, et. al., the original attorney for the appellant Sheila Prato (attorney McFarlin) had been subject to disciplinary charges by the California State Bar as of January 2023, which ultimately resulted in him being placed in inactive status and deemed ineligible to practice law by April 2023. All of these developments were unknown to Prato. Yet, respondents’ counsel knew about the pending charges against McFarlin by at least February 2023, but did not inform the court until May 2023 on the eve of trial, a trial at which Prato did not appear, and which resulted in the dismissal of her case. Respondents’ counsel also failed to timely notify Prato of McFarlin’s status until well after the dismissal of her case, despite being required to provide such notice pursuant to Code of Civil Procedure Sec. 286.

Under Section 286, a party who is represented by counsel who dies or is removed or suspended from the practice of law is entitled to written notice of the same before further proceedings may be taken against her or him.

In this case, no such notice was provided to Prato. Indeed, Prato had been entirely unaware of McFarlin’s ineligibility, and after she failed to appear for trial, the trial court dismissed her case. Later, after Prato had learned of McFarlin’s inactive status and retained new counsel, the trial court nonetheless granted motions for attorneys’ fees against her in an amount in excess of $70,000.

On appeal, the court reversed the judgment against Prato and further found that it was an abuse of discretion to grant the fee motions. In its decision, the appellate court took no prisoners with its criticism of the players below. While conceding that much of the blame should be laid at the feet of McFarlin, the appellate court was also critical of the State Bar and the trial court, but saved the bulk of its admonishment for opposing counsel.

“At its core, this case presents a disturbing litany of mistakes by a profession we deem far too estimable to make so many. And there is plenty of culpability to go around, starting with Prato’s own attorney, who failed to inform her he was no longer eligible to practice law. But the circle grows. We see nothing in the record to show the State Bar took steps to inform Prato (or any of McFarlin’s other clients) of his status once he entered disciplinary proceedings. Respondents’ attorneys certainly seemed to be in no hurry to flag for the court or Prato that she lacked representation; even though they should have known it was impacting the case. And the record does not show the trial court took any action even when informed about McFarlin’s proceedings.”

And if that was not bad enough, the court then really dropped the hammer on respondents’ counsel:

“What might have changed the course of events here? We have an idea. Perhaps just a modicum of courtesy on the part of respondents’ attorneys would have made all the difference…We do not know why respondents’ counsel chose not to make such nominal attempts at basic professionalism and civility. What we do know is the attorneys’ conduct was more tactical than anything else—they obtained a dismissal of Prato’s lawsuit while she was unrepresented, and then had the audacity to move for an award of attorney fees against her. This conduct does not comport with the professional and ethical standards we expect from lawyers. But, as it happens, neither does it comport with the law on the books.”

And the court did not stop there.

“In this case, not only did respondents fail to provide section 286 notice to Prato in a timely fashion, it appears to this court based on this record, they took advantage of her unrepresented status during this litigation. Such conduct by members of the bar cannot be countenanced.”

Ouch.

For their part, respondents had argued that they were excused from giving Prato notice under section 286 because McFarlin was not formally suspended from the practice of law until July 1, 2023. Thus, they argued, notice was not required under section 286 until after the May trial. The court rejected such clever parsing of the requirements of section 286 and noted that although McFarlin had not been formally suspended until July, his inactive status rendered him “effectively removed or suspended” as of the date of the May trial. Respondents’ arguments, the court insisted, were “both disingenuous and lacking in merit…” and that the attorneys “knew enough at the time of trial to have raised the issue with the court before seeking a dismissal. Instead, it appears they took advantage of the situation to benefit their clients and themselves.”

Finally, in a final criticism of the trial court, the appellate court held that “[t]he record here reflects that Prato’s complaint was dismissed not because she had abandoned her claims, but because her counsel had abandoned her. It would shock the conscience to award attorney fees against such a party…Because the court was made aware of the disciplinary proceedings, and because Prato’s (new) counsel invoked section 286 in opposing the fee motions, we find it was an abuse of discretion for the court to grant the motion.”

What, then, are the takeaways for practitioners?

First, when faced with a pro se opponent, sharp practices or attempting to take advantage of the pro se opponent’s inexperience or lack of knowledge for tactical gain is never a good idea, is unethical under the spirit if not the letter of the law, and will gain no favor in the eyes of the court.

Second, follow the rules, and not just the letter of the law. Whether or not it is fair, attorneys will inevitably be held to a higher standard than their pro se opponents. Any attempt to ‘parse’ or ‘nuance’ the protections afforded to pro se litigants as occurred here will likely be judged harshly by the court, and while pro se litigants may inevitably be allotted some degree of leeway by a court as to their obligations as a litigant, attorneys should not expect similar treatment. Indeed, as trained litigators, they should expect to be held to a higher standard than the untrained and unknowledgeable pro se litigant.

Third, where an attorney is incommunicado and his or her client is subject to an adverse outcome in a case (in discovery, law and motion practice, or at trial), and assuming there is no knowledge of the absent attorney’s inability to legally represent the opposing party, the attorney should nonetheless document the attempts to communicate with the absent attorney and promptly inform the court of these efforts when seeking an order or other outcome that is detrimental to the opponent’s case. While a search of the California State Bar website to determine an attorney’s status is not required, it is simple to do and can also quickly reveal whether the attorney has been suspended from practice or is otherwise unable to represent their client. If this is indeed the case, an attorney can then provide notice to the opposing party under Sec. 286 and file that notice with the court.

Fourth, written notice should be provided to the purported pro se opponent in all instances, even where, as in this case, Prato’s’ counsel’s eligibility was in flux or arguably indeterminant. It is far better to err on the side of “over-noticing” the pro se litigant and their current counsel of record so that you can ensure compliance with Sec. 286, and provide actual notice to the pro se litigant. While there is a risk of running afoul Rule 4.2 of the California Rules of Professional Conduct (Communication with Person Represented by Counsel)(and the ABA Model Rules, Rule 4.2), concurrent notice with counsel of record, along with the documented unsuccessful attempts to communicate with absent counsel is likely the better practice. If counsel has not, in fact, abandoned his client, it is reasonable to expect that he or she will reappear and start responding once such concurrent notice is provided.

Finally, communicate with pro se litigants candidly and in writing, but also confirm that you represent the adversary of the pro se litigant and are not disinterested in the outcome of the case. Indeed, Rule 4.3 of the California Rules of Professional Conduct (and the ABA Model Rules, Rule 4.3) prevents an attorney from giving legal advice to a pro se adversary. However, nothing in the rule prevents an attorney from stating a legal position on behalf of the lawyer’s client. In Prato, respondents’ attorney obviously should have provided statutory notice to Prato under Sec. 286.  In addition, they could have also informed Prato that the trial date was looming, stated their opinion about the merits of her case or lack thereof, and even informed her of the risk of an adverse outcome. Instead, they failed to communicate with her or even attempt to communicate with her at all. It is also wise to involve the court when complicated issues arise with the pro se, whether through a status conference or a letter to the court informing it of the challenging circumstances, and perhaps seeking guidance.

Dealing with pro se litigants may indeed require more work and effort, and will likely be more frustrating for a practitioner as the pro se litigant attempts to navigate the litigation process. However, such inconveniences can never justify abandoning professionalism, civility, courtesy, and fairness for the sake of securing a tactical advantage in litigation.

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