Ethical Considerations for Self Help Center Staff

1. Ethical Considerations for Self Help Center Staff Assisting Self Represented Litigants While Maintaining Neutrality June 10, 2011

2. Lollie A. Roberts • Family Law Facilitator, Sacramento County Superior Court • Member, Self Represented Litigants Taskforce • Contributor: • Court Leadership for Self-Represented Litigants: Solutions for Access, Effectiveness and Efficiency • Best Practices in Court-Based Programs for the Self-Represented • Family Law Resource Guidelines Project

3. Overview • Defining Self Help • Setting Limits • Legal Advice v. Legal Information • Ex Parte Communications

4. Defining Self Help • Neutral • Within Scope • Reasonable

5. Setting Limits • Attorneys • Third Parties • Friends and Family • Paid Legal Assistants • “Interpreters” • Questions of Veracity

6. Legal Advice v. Legal Information • Pitfalls of Relying on Key Words • Remain Neutral • Admit What You Do Not Know • Keep It Simple

7. Legal Advice v. Legal Information • Safe Communications • Explaining Legal Process • Identifying Appropriate Forms • Explaining Available Options • How to Complete Forms • Explaining Repercussions of Available Options

8. Examples of Legal Information • Difference between a UPA case and a POP Declaration • Forms needed to respond to an Order to Show Cause • How to prepare a written declaration • How to get a formal judgment once all issues have been resolved at a settlement conference

9. Legal Advice v. Legal Information • Things to Avoid • Best Choice of Available Options • How to Obtain a Strategic Advantage • Which Available Option to Select • Lopsided Presentation of Repercussions/ Advantages of Legal Action • What the Judge is Most Likely to Do

10. Examples of Legal Advice • Based upon what you have told me, the Judge will most likely… • You are more likely to get a positive recommendation from the mediator if… • If I were you, I would… • If you were my client, I would advise you to… • You could do that, but it would be better for you to do this…

11. How Would You Respond? • What should I do? • How can I oppose this petition? • Which one would be better for me? • What will happen if I…? • I was told I can sign a POP Declaration. Why do I need to file a UPA case? • What am I supposed to do with this mediation report?

12. Suggested Responses • I can’t tell you what you should do because that would be legal advice. I can tell you the options that are available to you so you can decide for yourself. If you need advice, you will need to consult a private attorney. • I can tell you the possible outcomes of your case, but I cannot predict how the judge will rule. Each case is decided on its own facts and only the judge can tell you how it is going to come out, after he or she has reviewed all of the facts presented by all the parties.

13. Ex Parte Communications • When You Confer with the Judge, the Prohibition Against Ex Parte Communication Extends to You • Acting as/through an Intermediator Does Not Change the Nature of Ex Parte Communications

14. Ex Parte Communications • Safe Communications with the Judge • Whether or not a conversation with the party took place • What information was relayed to the party • Safe Communications with parties • Legal information • Identifying information • Deficiencies in filed/proposed documents

15. Examples of Safe Communication with the Judge • “All of the parties are present and ready to proceed.” • “I told the petitioner that he would need to complete and file a proof of service or declaration of due diligence.”

16. Ex Parte Communications • Risky Communications with the Judge • What the party stated to you • How a party behaved in your presence • What a party said to someone else in your presence • Risky Communications with Parties • Legal Advice • Anything communicated by the Judge or another party to the case

17. Examples of Ex Parte Communication with the Judge • “The petitioner gave me an attitude and said…” • “While I was in the courtroom, I heard the mother tell the grandmother…”

18. Examples of Ex Parte Communication with a Party • “The Judge does not think your declaration is sufficient.” • “When the mediator interviewed the father, he said…”

19. How Would You Respond? • “I saw you talking to the mother. Did she tell you…?”

20. Suggested Response • “I cannot discuss my conversation with another party with you. What I can tell you is that the only facts that the court will consider are those contained in the documents in the file or stated by one of the parties during the hearing.”

21. How Would You Respond? • “Before I take the bench, will you ask the petitioner about this item in her declaration and let me know what she says?”

22. Suggested Response • “I can ask her if she has witnesses or exhibits to present so you can decide whether to set the matter for long cause. If that is the case, I will make sure she has a referral to the Self Help Center so she can get help before the next hearing date.”

23. How Would You Respond? • “Is the judge going to grant my request?”

24. Suggested Response • “I am not the trier of fact, so I cannot predict whether your request is going to be granted. The judge has reviewed your court file and may have additional questions for you (or the other parties present). The judge cannot decide your case until he or she has had an opportunity to hear from the parties. I can tell you that the mediator’s report recommends…”

25. Practice Pointers • Before speaking, ask yourself: • Am I sure of the answer? • Would I say this if the Judge/other party were listening? • Am I repeating information that I obtained from an ex parte conversation? • Is it reasonable to expect an SRL to understand what I am about to say and to be able to accomplish it on his or her own?

26. Questions? Thank you for your participation!