It can be tricky when representing a client against an unrepresented party and particularly in a contentious matter when dealing with a Litigant in Person (LIP).
The difficulty is more than simply that LIPs tend to often be difficult people in a difficult situation. The more significant issue is that you must walk a tight rope between your duties to your client to act in their best interests and your duty not to take unfair advantage of third parties. LIPs put you in a nearly impossible position because you do have duties to protect them from themselves, despite their being on the other side. You therefore need to factor this into your dealings and most importantly your pricing. A rule of thumb is that having a LIP on the other side will double your client's costs - do bear this in mind when preparing your fee estimates.
Rule 1.2 of the Code says that: "you do not abuse your position by taking unfair advantage of clients or others". The previous code used to provide more specific guidance on this point and the likelihood is that following the old guidance would still be a good idea. You can give your client this note from the Law Society, that explains this.
The 2011 code said
"O(11.1)
you do not take unfair advantage of third parties in either your professional or personal capacity;"
The old Code went on to say that "taking 'unfair advantage' refers to behaviour that any reasonable lawyer would regard as wrong and improper" and provides some examples as follows
Indicative Behaviour 11.7 of the previous Code went on to say that "taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer" would be an indicator of a breach.
If there is a particularly complex area or point, you could suggest that the LIP obtain legal representation but that is ultimately their prerogative.
You need to always demonstrate that you are being fair. This does not go as far as advising the LIP as you have a duty to act in your client's best interests. You must therefore be even handed acting in your client's best interests but also not take unfair advantage of the LIP.
The SRA Principles which are particularly relevant in the context of dealing with litigants in person include those that require solicitors to:
If it is a contentious matter, then you will also need to bear in mind your duties to the court under paragraph 2 - Dispute resolution and proceedings before the courts, tribunals and inquiries'. You have a duty to the court not to waste its time and that does include making it alert of LIPs on the other side if their conduct would waste court time. For more on this, please see further guidance under Your duties to the Court'.
You need to act in the best interests of your client and paragraph 8.7 of the Code also provides that you should keep your client informed on costs. Clients must receive the best possible information about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of the matter and any costs incurred. As mentioned above, you should factor in the additional costs that can arise with a LIP on the other side. You will also need to warn your client that the courts tend to be lenient with LIPs and this might mean things take longer (e.g. a hearing adjourned due to a LIP's failure to comply with/understand court orders) and awards of adverse costs against LIPs tend to be lower.
The Law Society Guidance for lawyers: Litigants in Person' provides very helpful guidance on this issue. These guidelines discuss the relationship between a lawyer's duty to their client, their duty to the court and the administration of justice, and the extent to which the latter duty requires a lawyer to assist the LIP. It is suggested that you read this note in full as it provides helpful guidance and examples. It does predate the Code, but it is by no means out of date.
There is also judicial guidance on litigants in person and finally, please refer to PLC's note on litigants in person in the civil courts particularly the sections on Solicitors for the opposing party: duties' and What assistance may a solicitor consider giving to a litigant in person?'. You will note that the court decisions vary on how much leniency should be given to LIPs.