What is Legal Advice?
Susan Ledray Katrina Zabinski March 3, 2008
Definitions
Legal Advice
Advice about the course of action a court user should take to further his or her own best interests
Legal Information
Facts about the law and the legal process
Problems with Legal Advice/Legal Information Definitions
Vague Court personnel tend to give less information Practice varies from court to court and clerk to clerk and day to day Everyone is not treated the same
Favors attorneys vs. pro se court users Favors nice people vs. difficult ones Depending on the workload
Goals
Understand the role of the Judicial Branch in handling disputes Distinguish between legal information and legal advice Provide options and legal information to court users without providing legal advice
Roles of 3 Branches
Legislature—makes laws---advocates Executive—effects and enforces laws, creates regulations---advocates
Police, Attorney General, County Attorney, City Attorney, Public Defender, Probation Officers, Regulatory Departments
Judiciary—interprets laws and administers justice—provides forum for resolution of disputes about the law---non-advocates--neutral
Mission and Vision Statements
Mission: To provide a system of Justice that assures equal access for the fair and timely resolution of cases and controversies. Vision: To be recognized as providing an accessible, fair, courteous, efficient and innovative system of Justice.
Responsibilities of Court Personnel
Provide Access to the Courts Provide Customer Service Provide Accurate Information Be Fair and Neutral Follow Legal Requirements and Court Policies
Provide Access to the Courts
As judicial branch employees, we are the gatekeepers to the justice system Most of the public is not familiar with courts and court procedures We have an obligation to explain court processes and certain procedures
Provide Customer Service
We have an obligation to provide quality customer service to all court users Some court users need more assistance to achieve the same outcome How we respond to questions and requests will shape how our court users view their court experience and the public image of the court
Quality customer service may reduce the number of times court users have to come back
Provide Accurate Information
We have an obligation to provide accurate information to all court users. If you don’t know, don’t guess.
Even small mistakes can have a significant impact on peoples lives
Be Fair and Neutral
No interest or invested stake in the outcome of any case Facilitators of the legal process
Court Personnel are Judicial Branch members—non-advocates
Follow Legal Requirements and Court Policies
Court Procedures and Policies
Rules of Criminal/Civil Procedure and others State and Federal Statutes
The Legal Advice Shield
―I cannot provide legal advice‖ should never be used as an excuse not to provide customer service
This phrase is not helpful at all to a court user and has little meaning to them If we hide behind this shield, we are effectively denying access to the court
What is Legal Advice?
Legal Advice is defined as written or oral statement that:
Interprets some aspect of the law, court rules, or court procedures or recommends a specific course of action a court user should take Applies the law to a court user’s specific factual circumstances to further his or her own interests
So what does this mean?
Typically requires a person to have knowledge of the law beyond being familiar with court requirements and court procedures (experienced
staff more tempted to advise)
Telling a court user ―what to do‖ rather than ―how to do it‖ Court users are typically seeking legal advice when they ask whether they should proceed in a certain manner or not
What is Legal Information?
Answering questions about court rules, procedures, and ordinary practices Providing court forms, instructions, handouts Answering questions about completing forms, but not providing legal arguments or theories Explaining terms and documents used in court cases or the purpose of a hearing Providing case-specific information from MNCIS, if it’s public
General Guidelines
Legal Information – staff should answer questions that call for FACTUAL information – questions typically contain the words ―how,‖ ―where‖ or ―when.‖ Legal Advice – staff should not answer questions that call for an OPINION about what a court user should do - questions typically contain the words ―should‖ or ―whether.‖
Test—Rule of Thumb
Test: Would you give the same response if the other party were present?
Why Court Personnel Cannot Give Legal Advice
Neutrality Impartiality
Unauthorized Practice of Law (M.S. § 481.02) Court Policy
Remain Neutral
Court Personnel cannot remain neutral and recommend a particular course of action to a court user
Court Personnel are NOT in a position to know what is in the best interests of a particular court user
Remain Impartial
Equal treatment to all court users is essential to public trust and confidence in the court Cannot give advice or information that favors one court user over another Court knowledge must be shared fairly
Cannot disclose confidential information or facilitate ex-parte communication
Unauthorized Practice of Law
Only licensed attorneys who are admitted to practice law by the state are permitted to give legal advice
Even Court Personnel who are attorneys cannot give legal advice because it violates the concept of neutrality, impartiality and District Court Policy
Court Policy
Fourth Judicial District Policy and Minnesota Judicial Branch Policy 3.18 Court Employee Code of Ethics, Article V Performance of Duties, Section J
―Employees shall not give legal advice.‖
Other important prohibitions
Cannot disclose ―non-public‖ information Cannot disclose the outcome of a case submitted to a judge before it is made public. Should not convey information to the judge that you received ―ex parte‖ and that may influence the decision in the case (if in doubt or if safety is a concern contact Court Administration)
Now what? How do we respond to questions?
Provide effective customer service and assistance to the extent you can without providing legal advice
Provide options, referrals and resources
Don’t hide behind the ―legal advice shield‖
Develop Your Expertise
Review any standard forms, writings or brochures Review departmental policies and procedures
Review your department’s website
Review other departments’ websites
Internet sites
Providing Quality Customer Service
Provide options for court users Tell court users what you can do
Consult with your co-workers, supervisor or manager
Refer court user to the greatest knowledge department
Providing Quality Customer Service (continued)
Refer the court user to a specific department website or other publicly available resource Refer the court user to lawyer referral services, legal aid and the local bar association, but not to specific attorney
Refer to the local law library
Refer the court user to the self-help legal center and/or their website
Give referrals, but never promises (unreasonable expectations)
Statewide Self-Help Center
Forms Staff to assist court users Attorneys Tutorials Wealth of Information Rule 110
Quick Summary
Provide
Options, Customer Service, Referrals and Resources
not hide behind the ―Legal Advice Shield‖
Do
Legal Information or Legal Advice?
General Examples
Legal Information or Legal Advice?
Informing a court user of his or her options and how to carry out an option
Legal Information or Legal Advice?
Suggesting to a court user which option to pursue
Legal Information or Legal Advice?
Providing a court user with a brochure on how to present evidence in court
Legal Information or Legal Advice?
Suggesting to a court user what evidence to present at court and what objections to make
Legal Information or Legal Advice?
Telling a court user whom to name as a defendant in the complaint
Legal Information or Legal Advice?
Telling a court user how to file a complaint or other pleading
Legal Information or Legal Advice?
Predicting how a judge will rule
Legal Information or Legal Advice?
Providing MNCIS information about past rulings in a specific case
Legal Information or Legal Advice?
Directing a court user to statutes, rules, ordinances and cases
Legal Information or Legal Advice?
Providing some analysis or interpretation of statutes, rules, ordinances and cases
Legal Information or Legal Advice?
Explaining common, routinely employed court rules and procedures to a court user
Legal Information or Legal Advice?
Applying the law to the facts of a court user’s case
Legal Information or Legal Advice?
Recommending a specific attorney to a court user
Legal Information or Legal Advice?
Recommending the use of an attorney
Legal Information or Legal Advice?
Providing referrals to legal aid and lawyer referral services
Legal Information or Legal Advice?
Providing forms and instructions to court users
Legal Information or Legal Advice?
Verbatim recording on forms the information provided by court users who are unable to do so themselves
Legal Information or Legal Advice?
Rephrasing and polishing the information provided by a court user on forms
Legal Information or Legal Advice?
Suggesting to a court user to settle their case
Legal Information or Legal Advice?
Telling a court user what to do when they have settled their case
Legal Information or Legal Advice?
Recommending a court user appeal their case
Legal Information or Legal Advice?
Explaining the process for appealing a judge’s decision
Legal Information or Legal Advice?
Your Specific Examples
Conclusion
Avoid the ―legal advice shield‖ Provide real options, referrals and resources Provide customer service and assistance to the extent you can
Credits and References
Guide to Court Customer Assistance – Legal Advice – Legal Information Guidelines for Arizona Court Personnel - The Arizona Supreme Court Task Force on Legal Advice – Legal Information Guidelines 2006 North Dakota State Guidelines for Court Personnel on Legal Advice and Legal Information Distinguishing Legal Information from Legal Advice, 2007, John Greacen, Greacen Associates, LLC Michael Vicklund