Out of Sight and out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons

Abstract

In a variety of civil legal settings, negotiations between lawyers and unrepresented parties are common. Despite this fact, the ethical rules governing lawyers, as well as most ethics textbooks, fail to address such negotiations in any specific way. The ethical rules do, however, prohibit the giving of advice to unrepresented parties. Through an examination of the New York City Housing Court and other contexts where such negotiations are commonplace, the author concludes that lawyers frequently violate existing rules against giving advice to unrepresented parties. Because the unrepresented litigants often are poor, are people of color, and are women, these ethical violations fall most heavily on members of those groups. The author reviews several possible responses to lawyers' abuses of ethical rules, concluding that no single response will curtail the problem. He calls, therefore, for a strategy that combines enhanced enforcement of existing ethical rules, the passage of additional ethical rules concerning negotiations with unrepresented parties, increased supervision by courts, and expanded provision of counsel in civil actions.