There is the old adage in civil or criminal trials that describes a person who represents himself at trial: “He has a fool for a client.”
Accordingly, attorneys maintain that they should handle all legal matters for their clients and that clients should not attempt to discharge legal matters on their own, no matter how simple. However, attorneys often do not heed their own advice. They will at times attempt to handle their own personal legal matters, which can result in some of the same problems confronted by non-professionals.
Competency
Often attorneys who represent themselves lack competency in the practice area.
Over the past 50 years, the practice of law has become exceedingly more complicated. Early in the 20th century, trial lawyers were capable of handling all litigation matters, whether they be criminal or civil. Many of the members of the Bar were sole practitioners in small law practices who handled all legal matters, from wills to criminal proceedings.
However, with the dawn of specialty litigation practices, such as anti-trust, securities and environmental, the generalist trial lawyer has been replaced by the specialist. Therefore, most practitioners when confronted by problems in their individual lives that are outside their practice area would be well served to engage an expert. For example, it is generally the case that an attorney engaged in a specialized practice such as employment law would be a poor family lawyer representing himself in his own divorce.
Similarly, while transactional matters were simple at one time, changes in the law, the enactment of voluminous regulations and the propagation of federal statutes that govern virtually every business or commercial transaction have made these matters the realm of experts.
Thus, even transactional lawyers, when handling a matter on their own behalf or for a partnership or business entity in which they’re a stakeholder or member, should engage specialized assistance. Because of the specialized nature of most of their practices, transactional attorneys often do not have the experience necessary to represent themselves in matters outside their specialty areas.
For example, a securities attorney should probably not handle the legal documentation involved in the sale of his home. Perhaps, he would not understand the important distinctions between a general warranty deed and a special warranty deed or complex title issues. He could very easily make errors in the transaction adversely affecting him and his other partners.
Conflicts of interest
Issues involving conflicts of interest can become especially acute when an attorney represents a business entity in which he is also an investor.
Attorneys are routinely participants in investment partnerships, private businesses, banks, hospital districts and any number of commercial and not-for-profit businesses.
In instances in which these businesses or ventures may have multiple investors, lawyers should refrain from acting in a dual capacity as counsel as well as an investor. In many cases, professional liability insurance will exclude coverage for advice given by an attorney if he is acting in any role other than as a provider of legal advice.
Furthermore, many private company matters involving an attorney’s advice to the board of directors or the attorney’s partners may involve mixed issues of law and fact that would give the liability insurance company a basis for excluding coverage of any claims that arose out of that relationship on the theory that the attorney provided business advice not legal counsel.
In addition, the attorney’s partners would be concerned when they approach the attorney for legal advice in a matter in which he is also involved as an investor. Are they truly getting the objective, disinterested advice of a legal adviser, or is the advice tempered by the fact the attorney has a commercial stake in the venture?
Consider the situation in which the attorney is giving advice to his partners in an insolvent business. Normally, in a situation involving the insolvency of a company, the legal adviser would advise the members of the board of directors that their duty has shifted from representing the interests of the stockholders to the creditors and that they risk personal liability if they ignore their responsibility to the creditors of the business. However, if the attorney is an equity holder in this business, he might not give strong advice to the board to consider liquidating the company to pay creditors because of a wish to preserve his investment in the enterprise.
Market terms
An attorney practicing outside his area of specialty is much less likely to understand the market in which he is operating and, consequently, is much more likely to misjudge what is acceptable in that market.
Practicing attorneys in a field, beyond the technical nuts and bolts of practicing law, develop expertise as to the customary and appropriate terms for a matter in a given instance, that is, what the particular market will allow.
Thus, an attorney who attempted to represent himself in a divorce might not understand the typical terms that a judge might accept in arrangements regarding custody of the couple’s children. Or, if a wealthy plaintiff’s lawyer became involved in a corporate transaction involving a preferred stock investment in a company, he would not understand the current reasonable and customary terms of the venture capital market (appropriate protection provisions, dividends that could be expected, and liquidation rights).
This knowledge beyond the four corners of the law would largely escape the attorney practicing outside his area of specialty.
Contacts
An attorney practicing outside his field would likely lack the contacts necessary to facilitate the swift, satisfactory completion of the matter. For instance, most commercial transactions involve the participation of third parties. Thus, an attorney trying to capitalize on a business idea that he may have identified should seek to engage attorneys that are familiar with the venture capital market place.
Access to the adviser’s Rolodex would provide introduction to venture capital firms and financing firms that might not otherwise be available. Also, participation of attorneys who are experts and conversant in the area will expedite and comfort third party participants that the transaction has a valid base and has counsel competent in the particular area.
A man who is his own lawyer has a fool for a client
This proverb is based on the opinion, probably first expressed by a lawyer, that self-representation in court is likely to end badly. As with many proverbs, it is difficult to determine a precise origin but this expression first began appearing in print in the early 19th century. An early example comes in The flowers of wit, or a choice collection of bon mots, by Henry Kett, 1814:
…observed the eminent lawyer, “I hesitate not to pronounce, that every man who is his own lawyer, has a fool for a client.
If John Edwards Were To Represent Himself, Would He Have a Fool for a Client?
Questioning the accuracy of an old legal saw.
John Edwards’ attorney Gregory Craig almost struck a plea bargain with prosecutors over charges of campaign-finance improprieties, but the government insisted on some jail time for the former senator. It now looks like the case could go to trial. Is there any reason Edwards, a successful trial attorney, shouldn’t represent himself in court?
There are reasons, but they might not be good ones. As with so much in the world of lawyering, there are arguments for and against attorneys representing themselves, but little data. Edwards knows his case better than anyone, so he might be particularly good at constructing his defense and responding quickly to allegations made in the courtroom. It’s also possible that an impassioned Edwards could sway the jury. Plus, he’d save a lot of money. But Edwards was a plaintiff’s lawyer in civil trials and might not be sufficiently acquainted with criminal procedure. There are also relationship considerations. Part of what you get when you hire a top-flight criminal attorney is familiarity with the prosecutors. Craig has probably dealt with the government’s team in the past and may have a sense of how far they’ll go in settlement negotiations. Finally, and perhaps most importantly, Craig can provide a reality check—defendants can become so convinced of their justifications that they can’t imagine how a jury could possibly disagree with them.
Whether the defendant is a trained lawyer or not, most attorneys have long accepted the conventional wisdom that representing oneself in court, known as pro se representation, is a bad idea. There’s an old saying that a person who represents himself in court has a fool for a client. The Supreme Court has even gotten into the act, quoting a law professor’s statement that “a pro se defense is usually a bad defense.”
A 2007 study, the first of its kind, seriously challenged these aphorisms. Professor Erica Hashimoto of the University of Georgia Law School found that, on the whole, pro se defendants actually achieve better results than their professionally represented peers. About 50 percent of do-it-yourselfers in state courts escape conviction, compared with 25 percent of represented defendants. (Hashimoto got her data from court docketing databases, which don’t list the defendants’ professions, so it’s not known what number of them, if any, were trained as attorneys.)
Of course, these numbers come with a variety of caveats. There were only 234 pro se defendants in the study, which is a small sample. There’s also a self-selection bias. Defendants who reject their attorneys are likely more convinced of their innocence than the average represented client. The difference in plea-bargain rates—44 percent for pro se versus 71 percent for represented defendants—suggests as much. In addition, these statistics mainly compare self-representation with a public defender or court-appointed counsel, not a prominent Washington litigator.
Self-representations can be a major headache for judges, especially when a pro se defendant decides to take the stand. Most judges dispense with the traditional Q&A format and require narrative testimony, but this robs opposing counsel of the opportunity to object before information is disclosed to the jury. Alternatively, some judges make the defendant bring in a proxy to ask the questions. There have even been cases in which the gallery was treated to the absurd spectacle of the pro se defendant both asking and answering the questions.
It’s also confusing for the jury to distinguish between when the defendant is presenting facts under oath and when he is making arguments as a lawyer. Judges typically keep the pro se defendant on a short leash during opening and closing arguments to prevent him from making factual statements without swearing to tell the truth first.
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