Monday, October 17, 2011

To Unrepresented Parties: The Judge Cannot Act as Your Lawyer

Over the past 10 years the Minnesota Judicial Branch has devoted much time, energy and public resources to developing self-help forms and centers to assist unrepresented parties in family court.  This gives many people access to justice that they would not otherwise have.  I think that 40 years ago the laws and rules of family court were a mystery to most people and they had no alternative but to retain a lawyer.  But access to justice does not mean that a judge can act as the lawyer for an unrepresented party.  First and foremost it is unethical under the Code of Judicial Conduct.  "A judge shall uphold and apply the law...fairly and impartially," states Rule 2.2.  The Comment to the rule states "a judge (may) make reasonable accomodations" to pro se parties.  Rule 3.3 is clear:  A judge shall not practice law. 

Parties appearing in family court without a lawyer are expected to follow the rules, with "reasonable accomodations."  To me this means that timeliness rules need not be strictly applied unless there is prejudice to the other party, particularly a denial of due process.  However, unrepresented parties cannot submit unsworn statements to the judge at the hearing; they must follow the rules of evidence.  The purpose of our rules of evidence is to find the truth.  Parties cannot circumvent the rules because they do not have a lawyer.

So don't be surprised if when you come to court without a lawyer, the judge simply says to you, "Proceed with your case."  The judge cannot act as your lawyer.




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