Bridging the Gap of Legal Advice vs. Legal Information: GAL Court Employee’s Role a New Employee Orientation Presenta

1. Bridging the Gap of Legal Advice vs. Legal Information: GAL Court Employee’s Rolea New Employee Orientation Presentation

2. Bridging the Gap of Legal Advice vs. Legal Information: GAL Court Employee’s RolePresenter: ResaGilats

3. Purpose & Objectives • Learn how it is your duty as GAL employee to give quality and accurate information • Increase your ability to recognize and answer questions that ask for legal advice • Develop confidence as a legal advocate • Increase your ability to refer legal information questions to alternative court resources Q&A activity at the end Is it Legal Advice or Legal Information?

4. Definitions • Legal Information Facts describing what the law says and which legal procedures are involved • Legal Advice Applying the lawto someone’s facts, and telling them what they SHOULD do to further his or her own best interests

5. Problems with Definitions • Vague, and not well understood by the public • Fear of crossing the advice line, which can lead to failure to give legal information (hiding behind the advice “shield) • Practice varies from court to court and district to district • Different parties sometimes can influence the GAL’s response

6. 3 Branches of Government • Legislative Branch (House & Senate) — makes laws; advocates on behalf of constituents • Executive Branch (Governor & agencies) — enforces laws; creates regulations; advocacy (e.g.,Police, Attorney General, County Attorney, City Attorney, Public Defender, Probation Officers, Regulatory Departments) • Judicial Branch (Courts) — interprets laws & administers justice; provides forum for resolution of legal disputes; employees do NOT advocate but GALs DO advocate

7. Advocate for the child, not the parent • Providing information to parents can be in the best interests of the child • Need to use discernment • Is the request sincere or is someone trying to take advantage of you • This is probably the most common scenario for GALs • Examples • How did you handle it?

8. Court’s Mission and Vision • 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 This is why quality GAL services really matter!

9. Board’s Mission and Vision • Developing mission and vision right now • Board is still part of Judicial Branch but not court system • Dual ambassador responsibilities—the Branch and the Board! • Your actions reflect on both • Quality GAL services really do matter!

10. Statutory Duties of the GAL • Independent investigation • Advocate for child’s best interests • Maintain confidentiality of information…exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests • Monitor the child’s best interests • Present written reports…include recommendations and the facts upon which they are based

11. Duties of Guardian Ad LitemEmployee • Provide access to the courts • Provide quality customer service • Provide accurate information • Be fair and neutral • Follow legal requirements and court policies

12. Access to the Courts • Court employees are often the “gatekeepers” to the justice system; GAL may be perceived this way • Public is generally not familiar with real courts and real court procedures (it’s not like on TV!) • Refer parties to court employees in the courthouse or self-help center for information about court rules and procedures • Again, advocate for the child, not the parent but be helpful in pointing people to information and the right resources

13. What does customer service mean for the GAL? • Some court users need more assistance to achieve the same access to information • How we respond to questions and interact with the public shapes how court users view their court experience and the public image of the court • Quality interaction reduces the number of times court users ask for assistance (operational efficiency!)

14. Accurate Information • Duty 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

15. Fairness—No Appearance of Impropriety or Bias But Not Neutral • Employee: No interest or vested stake in the outcome of any case • Employee: “Facilitators” of the legal process; educate and inform • Employee: Court staff work for the Judicial Branch, so no advocacy (or advice) • GAL: Has an interest or vested stake in the outcome of any case and they advocate!

16. Service Limitations • Court Policies and Best Practices (statewide & county-specific) • Rules of Criminal/Civil Procedure and others • State and Federal Statutes

17. The Advice “Shield” • “What I can tell you is…;” what you can’t do should never be used as an excuse to avoid giving quality service • The lay public does not understand the technical meaning of legal advice; you may need to define it for them • Duty to provide access to the court, so give legal information and referrals whenever possible

18. What is Legal Advice? A written or oral statement that… • Interprets or analyzessome aspect of the law, court rules, or court procedures, or recommends a specific course of action a court user should take • Applying laws, rules, etc.to a court user’s specific fact situation

19. Legal Advice “Red Flags” Having in-depth knowledge on an area of law (more than just familiar with basic requirements and court procedures) NOTE: experienced staff may be more tempted to advise Telling a court user what they should do rather than how to do it Court user asks questions about whether they should choose a specific legal option over another • Hard for long-term GALs, attorney GALs, or GALs with mental health provider background

20. Legal Information It IS appropriate for GAL to (within reason): • Explain (tell the facts about) court rules, procedures, and regular court practices • Give instructions for going to the courthouse, obtaining court forms, handouts, brochures, self-help center • Answer questions about who could help to complete forms • Explain terms and documents used in court cases or the purpose of a hearing

21. Rules of Thumb • Would you give the same response if the other party were present? • Avoid the trap of saying “You should do XYZ.” • Could someone perceive an appearance of impropriety? • Is it really information they’re seeking or something more? • If it works for you, practice saying “I’m not the best person to address that for you but _________ is…” • Others?

22. Why No Legal Advice? • GAL does not advocate for legal interests • Statutory-based advocacy for BI • Impartiality but not neutral—in this context • Look at GAL Rules 907.02—similar to but not the same as the practice of law • Unauthorized Practice of Law (MN Stat. § 481.02) • There are reasons the practice of law is regulated • We do not hold GALs in MN to the same knowledge and expertise standards as those of a practicing attorney • Court Policy

23. Best Interests Advocacy without Advice • Start by telling parties how you CAN help within certain limits • Give options, referrals and resources (if you know them) • Consult with your co-workers, supervisor or manager (but protect confidentiality) • May be area, though, where GALs can share information more easily • Refer parties to the resources with the greatest knowledge

24. Best Interests Advocacy without Advice • Refer customer to a court website/page or other publicly available resource • Refer the party to local Self-Help Centers or Self-Help website (www.mncourts.gov/selfhelp) • Refer to lawyer referral programs, legal aid and the local bar association (*but, not to specific attorneys) • Refer to the local law library • OK to give referrals, but never give promises or predictions about the outcome of a case

25. Experience Will BuildYour Confidence • Review any standard forms & instructions, brochures, handouts, etc. • Review departmental policies and procedures • Review MN Court websites, including Self-Help Center; *visit websites regularly to stay current • Review your division-specific resources on CourtNet • Explore external law-related websites

26. Statewide Self-Help Center • Court Rule 110 – expands on duties of self-help staff • Staff Attorneys (we can educate, but not advise) • SHC Website (over 30 legal topics!) • Assist with Court Forms • Forms Tools & Court Videos • Links to lots of resources! • 1:1 help from staff attorneys via call-center & email www.mncourts.gov/selfhelp

27. Legal Information or Legal Advice? General Examples Questions? Raise your hand

28. Legal Information or Legal Advice? • Informing a court user of his or her options and how to carry out an option (Please, mark your choice below)

29. Legal Information or Legal Advice? • Suggesting to a court user which option to pursue • Click for legal information • Click for legal advice • Click if not sure

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

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

32. Legal Information or Legal Advice? • Telling a court user whom to name as a defendant in the complaint (Please, mark your choice below)

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

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

35. Legal Information or Legal Advice? • Providing MNCIS information about past rulings in a specific case • Click for legal information • Click for legal advice • Click if not sure

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

38. Legal Information or Legal Advice? • Providing some analysis or interpretation of statutes, rules, ordinances and cases(Please, mark your choice below)

39. Legal Information or Legal Advice? • Making referrals to legal aid and lawyer referral services

41. Legal Information or Legal Advice? • Providing forms and instructions to court users(Please, mark your choice below)

42. Conclusion • You CAN give quality customer service and avoid the “advice shield” • You CAN help people by explaining facts about laws, rules, procedures, and forms • You CAN give referrals and resources

43. Thank You! • Questions? • Contact: ResaGilats| 651-297-1145 | resa.gilats@courts.state.mn.us • Check out public court Web sites and MJB intranet • MN Judicial Branch www.mncourts.gov • MN Courts Self-Help Center www.mncourts.gov/selfhelp • MN Court Forms www.mncourts.gov/forms • CourtNet (intranet) http://courtnet.courts.state.mn.us