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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.

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what is legal advice

What is Legal Advice?

Susan Ledray

Katrina Zabinski

March 3, 2008

definitions
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
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
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
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 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
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
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
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
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
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
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
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 advice14
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
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
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
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—Rule of Thumb
  • Test: Would you give the same response if the other party were present?
why court personnel cannot give legal advice
Why Court Personnel Cannot Give Legal Advice
  • Neutrality
  • Impartiality
  • Unauthorized Practice of Law (M.S.

§ 481.02)

  • Court Policy
remain neutral
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
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
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
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
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
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
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
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
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
Statewide Self-Help Center
  • Forms
  • Staff to assist court users
  • Attorneys
  • Tutorials
  • Wealth of Information
  • Rule 110
quick summary
Quick Summary
  • Provide Options, Customer Service, Referrals and Resources
  • Do not hide behind the “Legal Advice Shield”
legal information or legal advice32
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 advice33
Legal Information or Legal Advice?
  • Suggesting to a court user which option to pursue
legal information or legal advice34
Legal Information or Legal Advice?
  • Providing a court user with a brochure on how to present evidence in court
legal information or legal advice35
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 advice36
Legal Information or Legal Advice?
  • Telling a court user whom to name as a defendant in the complaint
legal information or legal advice37
Legal Information or Legal Advice?
  • Telling a court user how to file a complaint or other pleading
legal information or legal advice38
Legal Information or Legal Advice?
  • Predicting how a judge will rule
legal information or legal advice39
Legal Information or Legal Advice?
  • Providing MNCIS information about past rulings in a specific case
legal information or legal advice40
Legal Information or Legal Advice?
  • Directing a court user to statutes, rules, ordinances and cases
legal information or legal advice41
Legal Information or Legal Advice?
  • Providing some analysis or interpretation of statutes, rules, ordinances and cases
legal information or legal advice42
Legal Information or Legal Advice?
  • Explaining common, routinely employed court rules and procedures to a court user
legal information or legal advice43
Legal Information or Legal Advice?
  • Applying the law to the facts of a court user’s case
legal information or legal advice44
Legal Information or Legal Advice?
  • Recommending a specific attorney to a court user
legal information or legal advice45
Legal Information or Legal Advice?
  • Recommending the use of an attorney
legal information or legal advice46
Legal Information or Legal Advice?
  • Providing referrals to legal aid and lawyer referral services
legal information or legal advice47
Legal Information or Legal Advice?
  • Providing forms and instructions to court users
legal information or legal advice48
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 advice49
Legal Information or Legal Advice?
  • Rephrasing and polishing the information provided by a court user on forms
legal information or legal advice50
Legal Information or Legal Advice?
  • Suggesting to a court user to settle their case
legal information or legal advice51
Legal Information or Legal Advice?
  • Telling a court user what to do when they have settled their case
legal information or legal advice52
Legal Information or Legal Advice?
  • Recommending a court user appeal their case
legal information or legal advice53
Legal Information or Legal Advice?
  • Explaining the process for appealing a judge’s decision
conclusion
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
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
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