What is Legal Advice?

1. What is Legal Advice? Susan Ledray Katrina Zabinski March 3, 2008

2. 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

3. 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

4. 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

5. 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

6. 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.

7. 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

8. 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

9. 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

10. 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

11. 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

12. Follow Legal Requirements and Court Policies • Court Procedures and Policies • Rules of Criminal/Civil Procedure and others • State and Federal Statutes

13. 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

14. 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

15. 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

16. 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

17. 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.”

18. Test—Rule of Thumb • Test: Would you give the same response if the other party were present?

19. Why Court Personnel Cannot Give Legal Advice • Neutrality • Impartiality • Unauthorized Practice of Law (M.S. § 481.02) • Court Policy

20. 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

21. 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

22. 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

23. 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.”

24. 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)

25. 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”

26. 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

27. 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

28. 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)

29. Statewide Self-Help Center • Forms • Staff to assist court users • Attorneys • Tutorials • Wealth of Information • Rule 110

30. Quick Summary • Provide Options, Customer Service, Referrals and Resources • Do not hide behind the “Legal Advice Shield”

31. Legal Information or Legal Advice? General Examples

32. Legal Information or Legal Advice? • Informing a court user of his or her options and how to carry out an option

33. Legal Information or Legal Advice? • Suggesting to a court user which option to pursue

34. Legal Information or Legal Advice? • Providing a court user with a brochure on how to present evidence in court

35. Legal Information or Legal Advice? • Suggesting to a court user what evidence to present at court and what objections to make

36. Legal Information or Legal Advice? • Telling a court user whom to name as a defendant in the complaint

37. Legal Information or Legal Advice? • Telling a court user how to file a complaint or other pleading

38. Legal Information or Legal Advice? • Predicting how a judge will rule

39. Legal Information or Legal Advice? • Providing MNCIS information about past rulings in a specific case

40. Legal Information or Legal Advice? • Directing a court user to statutes, rules, ordinances and cases

41. Legal Information or Legal Advice? • Providing some analysis or interpretation of statutes, rules, ordinances and cases

42. Legal Information or Legal Advice? • Explaining common, routinely employed court rules and procedures to a court user

43. Legal Information or Legal Advice? • Applying the law to the facts of a court user’s case

44. Legal Information or Legal Advice? • Recommending a specific attorney to a court user

45. Legal Information or Legal Advice? • Recommending the use of an attorney

46. Legal Information or Legal Advice? • Providing referrals to legal aid and lawyer referral services

47. Legal Information or Legal Advice? • Providing forms and instructions to court users

48. Legal Information or Legal Advice? • Verbatim recording on forms the information provided by court users who are unable to do so themselves

49. Legal Information or Legal Advice? • Rephrasing and polishing the information provided by a court user on forms

50. Legal Information or Legal Advice? • Suggesting to a court user to settle their case