It is becoming more common to see individuals appearing pro se in cases. This is particularly prevalent in family law cases. Often times, generally in divorce cases, one of the parties will enter an appearance in addition to retained counsel. In these cases, the docket reflects that the spouse is both self-represented and represented by counsel. This hybrid appearance carries on to the Appellate Court in the event of an appeal, pursuant to Practice Book § 62-8.
As a result, a number of family law matters appearing on the docket will identify a party as both represented and self-represented. This creation of hybrid representation appears to be the product of clerical data entry rather than an exercise of any kind of judicial discretion.
Hybrid representation presents a bit of quandary for opposing counsel as to with whom he or she should be communicating. A self-represented party who is represented by counsel, which seems oxymoronic, may view themselves as co-counsel in a matter. Rule 4.2 of the Rules of Professional Conduct prohibits an attorney from directly communicating with a party who is represented by a lawyer. However, because a party has a pro se appearance, they may insist on being directly sent correspondence by opposing counsel.
Such parties may also feel it appropriate to directly contact opposing counsel regarding a case, putting opposing counsel in the difficult position with respect to handling the communication. The court’s treatment of the party as self-represented only fosters this type of confusion. Additional issues regarding an attorney’s apparent authority to settle a matter are affected by hybrid representation.
This docketing practice is consistent with Practice Book §3-8, which requires an attorney’s appearance to be listed as either “in place of or in addition to” the appearance already on file, even if the appearance is pro se. However, the practice and rule have essentially created hybrid representation in Connecticut. Many of the issues and much of the uncertainly that this causes can be avoided if hybrid representation were prohibited by rule in civil and family cases. In Cerosimo v. Cerosimo, 188 Conn. 385, 392 (1982), the Supreme Court seemed to say that a party may be represented by counsel or represent himself. Though it did not expressly state that these were mutually exclusive options, superior courts interpreting the decision have opined that hybrid representation violates our rules of practice or, at least, requires an exercise of judicial discretion.
Most jurisdictions that have addressed the issue have held that a party has no constitutional or statutory right to proceed pro se while, at the same time, being represented by counsel. The view of the Second Circuit as explained in O’Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982) is “that the rights of self-representation and representation by counsel cannot be both exercised at the same time” and a party who wants to proceed pro se must first discharge any lawyer who has filed an appearance on its behalf. In other words, the rights of self-representation and representation by counsel are mutually exclusive.
While Connecticut may ultimately deviate from the national trend and recognize hybrid representation, that decision should be informed by the complications that hybrid representation can create. The Rules Committee should consider adopting a rule prohibiting hybrid representation in the absence of an exercise of judicial discretion.