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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?

Susan Ledray

Katrina Zabinski

March 3, 2008


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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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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


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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


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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


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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.


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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


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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


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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


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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


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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


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Follow Legal Requirements and Court Policies

  • Court Procedures and Policies

  • Rules of Criminal/Civil Procedure and others

  • State and Federal Statutes


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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


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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


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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


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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


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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.”


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Test—Rule of Thumb

  • Test: Would you give the same response if the other party were present?


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Why Court Personnel Cannot Give Legal Advice

  • Neutrality

  • Impartiality

  • Unauthorized Practice of Law (M.S.

    § 481.02)

  • Court Policy


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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


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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


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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


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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.”


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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)


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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”


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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


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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


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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)


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Statewide Self-Help Center

  • Forms

  • Staff to assist court users

  • Attorneys

  • Tutorials

  • Wealth of Information

  • Rule 110


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Quick Summary

  • Provide Options, Customer Service, Referrals and Resources

  • Do not hide behind the “Legal Advice Shield”



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Legal Information or Legal Advice?

  • Informing a court user of his or her options and how to carry out an option


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Legal Information or Legal Advice?

  • Suggesting to a court user which option to pursue


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Legal Information or Legal Advice?

  • Providing a court user with a brochure on how to present evidence in court


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Legal Information or Legal Advice?

  • Suggesting to a court user what evidence to present at court and what objections to make


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Legal Information or Legal Advice?

  • Telling a court user whom to name as a defendant in the complaint


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Legal Information or Legal Advice?

  • Telling a court user how to file a complaint or other pleading


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Legal Information or Legal Advice?

  • Predicting how a judge will rule


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Legal Information or Legal Advice?

  • Providing MNCIS information about past rulings in a specific case


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Legal Information or Legal Advice?

  • Directing a court user to statutes, rules, ordinances and cases


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Legal Information or Legal Advice?

  • Providing some analysis or interpretation of statutes, rules, ordinances and cases


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Legal Information or Legal Advice?

  • Explaining common, routinely employed court rules and procedures to a court user


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Legal Information or Legal Advice?

  • Applying the law to the facts of a court user’s case


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Legal Information or Legal Advice?

  • Recommending a specific attorney to a court user


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Legal Information or Legal Advice?

  • Recommending the use of an attorney


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Legal Information or Legal Advice?

  • Providing referrals to legal aid and lawyer referral services


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Legal Information or Legal Advice?

  • Providing forms and instructions to court users


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Legal Information or Legal Advice?

  • Verbatim recording on forms the information provided by court users who are unable to do so themselves


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Legal Information or Legal Advice?

  • Rephrasing and polishing the information provided by a court user on forms


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Legal Information or Legal Advice?

  • Suggesting to a court user to settle their case


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Legal Information or Legal Advice?

  • Telling a court user what to do when they have settled their case


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Legal Information or Legal Advice?

  • Recommending a court user appeal their case


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Legal Information or Legal Advice?

  • Explaining the process for appealing a judge’s decision


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Legal Information or Legal Advice?

Your Specific Examples


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Conclusion

  • Avoid the “legal advice shield”

  • Provide real options, referrals and resources

  • Provide customer service and assistance to the extent you can


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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