GIVING ASSISTANCE VS. GIVING LEGAL ADVICE

Objectives Understand why court staff can’t provide legal advice. Review guidelines to determine what is and is not legal advice. Discover ways to provide quality customer service without giving legal advice. Review 1. We’re first going to consider the question “WHY?” Why can’t we, as court staff, provide legal advice to others? I suspect that some of you know more about civil legal procedures than some attorneys. 2. Next we will give you 9 basic guidelines to help you and your staff determine whether the court’s customer is or is not seeking legal advice. 3. Then, we’ll share with you ways to provide quality customer service without providing impermissible legal advice. We want the person on the other side of the counter or on the other end of the telephone line to end up with a smile. The same kind of smile that you get as a result of random acts of kindness. Not only will the customer be happy, but you can feel good about the assistance and care you have provided. 4. Finally, we’ll have a review.

Advice Assistance Facilitator writes on a flip chart the words Advise and Assistance Asks participants for other words for each. Writes down responses as directed from participants and makes appropriate comments. If participants use a word in the wrong column- facilitator should ask “does this apply to Advise or Assistance” Summarize the words - Advise – subjective, specific, personal- opinion, recommendation, etc Assistance- information, directions, help, general, objective, etc.

Legal Advice 1. Advising someone to follow a specific or general course of action. 2. Involves an interpretation of the law (case law, statute, etc) as it relates to the facts presented. Notes:

Why Court Staff is Not Permitted to Give Legal Advice. The Courts must be Impartial not partial or biased- Webster’s Dictionary The Courts must be Neutral Belonging to neither side nor party- Webster’s Dictionary As a branch of state government, impartiality and neutrality are key Also consider the Judiciary Core Values (independence, integrity, fairness, quality service) Why can’t you give legal advice? Impartial- Court staff can’t recommend a particular course of action. Even though the staff person may have processed thousands of similar types of cases, that person isn’t in a position to know what’s in a specific litigant’s best interest. Only litigants or their attorneys can make that decision. A question you can ask yourself is would the answer to this question favor one party over the other? “Should” is a trigger word. It should send warning bells to you. Court staff can’t give advice or information to favor one court user over another. This is important because court staff is knowledgeable about court practices and procedures. That knowledge must be shared fairly and in a manner that doesn’t involve the disclosure of confidential or ex parte communication. Advising a party what to do, rather than HOW to do it crosses the line from impartiality to partiality, from providing permissible information to giving prohibited legal advice. All states have laws forbidding unauthorized practice of law. Only licensed attorneys are permitted to practice law & give legal advice. Since court staff are generally not attorneys, they can’t give legal advice, because doing so is the unauthorized practice of law. Even court staff who are attorneys shouldn’t give legal advice, because it would violate concepts of neutrality and impartiality. May not know all the facts anyway and could be giving incorrect legal advice – malpractice.

Why Court Staff is Not Permitted to Give Legal Advice Court staff must Not Engage in the Unauthorized Practice of Law NJ Statutes prohibit unauthorized practice of law, by anyone not licensed as an attorney in NJ (see N.J.S.A. Section 2C:21-22) Code of Conduct for Judiciary Employees (Canon 1) also prohibits practice of law, even for employees who are attorneys These rules protect the public and preserve the fairness of the judicial system, as well as public confidence in the process.

Legal Advice Guidelines Can provide: Definitions of legal terms Info on court procedures Cites of statutes, court rules & ordinances Public case information General information on court operations Options Access General referrals Forms and instructions on how to complete forms Cannot provide: Legal interpretations Procedural advice Research of statutes, court rules & ordinances Confidential case info Confidential/restricted info on court operations Opinions Information that would deny/discourage access Subjective/biased referrals Fill out forms for a party Every day, court staff is faced with providing information to the public, lawyers, parties, secretaries and paralegals, while remaining neutral, impartial & without giving legal advice. How the court employee responds will affect the public’s attitude about the court system. It can also affect the outcome of a case. There will never be a definitive listing of what is and isn’t considered legal advice. But there are some guidelines to follow. Let’s go through each one.

Guideline #1 Court Staff Can Provide Definitions of Legal Terms Generally, it’s all right to provide court users with definitions of legal terms & procedures to help them understand the court system. Example: What is a statute of limitations? But, They Cannot Provide Legal Interpretations One should not apply a term to a set of circumstances Example: My car accident happened more than two years ago. Can I still sue? Providing definitions and legal terms help the public to understand the court system and is not considered to be the unauthorized practice of law. Pro Se means to represent self in court, (no lawyer). “It’s Latin and literally means for self.” The law dictionary provides that pro se means appearing in court for yourself without the assistance of an attorney. You could give a definition of child neglect/abuse as according to the law dictionary, child neglect is “the mistreatment of a minor by an adult legally responsible for the minor.” However, we cannot interpret specific facts to a definition. Suggestion: It’s a good idea to have several books available. Court Rules, Statute books, phone book, NJ Lawyer’s Diary and a legal dictionary (Black’s) Only answer if you know the correct answer. Don’t guess. Ever.

Guideline #2 Court Staff Can Provide information on Court Procedures Telling the public of general court operations is not legal advice. Example: How do I file a lawsuit against the person who injured me? But, They Cannot Provide Advice We cannot tell court users whether to proceed. Example: Should I sue for pain and suffering in my lawsuit? You can tell a court user what generally will happen at arbitration. Can’t answer because it would be the unauthorized practice of law & would violate the concepts of neutrality and impartiality. An acceptable response would be to tell the court user that you aren’t an attorney and can’t provide legal advise but can refer them to a lawyer referral service.

But, They Cannot Do Legal Research Guideline #3 Court Staff Can Provide Citations Of Statutes, Court Rules & Ordinances Court staff may provide a copy of a court rule or ordinance. (if you have it) Example: May I have a copy of Rule 4:4-1? But, They Cannot Do Legal Research We cannot provide legal research Example: Could you give me a copy of all the rules about service of process? . Court personnel may provide a copy of a court rule. It’s a good idea to have copies of court rules and commonly used statutes available. Court personnel cannot research statutes, court rules and ordinances for parties because it would be considered the unauthorized practice of law and violates the concepts of impartiality & neutrality. Have copies of court rules and commonly used statutes available. To determine what is considered research, consider if the material requested is something that should be known as a part of the clerk’s job and whether the information is readily available or would require compilation.

Guideline #4 Court Staff Can Provide Public Case Information Example: May I see the Landlord Tenant file on Williams v. Smith? But, They Cannot Provide Confidential or Restricted Case Information Example: May I see the family case file on juvenile Tommy Jones? If there is confidential information contained on a single document, the confidential information must be redacted prior to disclosure. - examples of confidential information would be social security numbers, information pertaining to juveniles, information in a sealed file. When in doubt ask your supervisor. Cannot provide information regarding juveniles.

Court Staff Can Provide General Information on Court Operations Guideline #5 Court Staff Can Provide General Information on Court Operations Example: I have a conflict with my trial date; can I get my case adjourned? But, They Cannot Provide Confidential/ Restricted Information on Court Operations Example: Could you give me a copy of all the memos from the Assignment Judge to Civil Division? Litigants need to know certain basic information on how the courts function. How to request an adjournment is one such example. No. Confidential info cannot be provided. E.g., Internal memoranda are not considered to be information open to the public.

Guideline #6 Court Staff Can Provide Legal Options Example: How can I collect on my default Judgment? But, They Cannot Provide Legal Opinions Example: Is it better to garnish the person wages or seize their bank funds? Pro se packets give legal options. Some divisions also have pamphlets. Can’t provide this info because it calls for legal advice.

Guideline #7 Court Staff Can Provide Information on How to Access the Courts Example: How can I file a lawsuit for discrimination? But, They Cannot Discourage Access to the Court Example: 25 years ago my employer discriminated against me. I want to file a lawsuit. Can I do this? You can provide a brochure if there is one. We also have Pro Se packets that can be referred to on many items.- 10552- How to Ask the Court to Change Your Name. Even if you think a plaintiff has no case, keep your opinion to yourself. The complaint should be accepted for filing, even though you can clearly see some defenses to the action.

Guideline #8 Court Staff Can Provide General Referrals Example: How can I find a lawyer who can help me with my divorce? But, They Cannot Provide Subjective, Personal Referrals Example: Can you give me the name of a really good divorce lawyer? You can give general referrals to local bar associations or lawyer referral services. Court staff may not recommend attorneys- Canon 1.

Guideline #9 Court Staff Can Provide Forms and Instructions on How to Fill Them Out Example: What does this part of the form mean? But, They Cannot Fill out the Form for a Court User Example: What should I write in this part of the form to make sure I win my case? You can and should provide the appropriate forms to court users. You can assist a court user with filling out a form for a court user under specific circumstances such as: Court user is disabled Court user is unable to read or write Only if you write down the court users own words without modification and you should get another court staff to witness that you are doing so. Be very careful.

COURT STAFF SQUARES Get 9 participant volunteers. The volunteers in the squares are asked a question. The object is to decide whether the question calls for giving legal advice. The group will be divided into 2 teams. Each will designate a spokesperson. Each team gets a chance to select a participant volunteer who will be asked a question. The participant volunteer can answer the question correctly or can make up an answer. The team must decide if they agree or disagree. If the team answers correctly, they get the square. The object of the game is to get 3 squares in row. 1st team to do so wins. If neither gets 3 in row, team w/ most squares at end wins. The contestants in the squares are asked a question. The object is not to correctly answer the question, but, rather, to decide whether or not you, as court personnel, can answer the question or whether it calls for legal advice. Introduce the celebrities. Select spokesperson.

CAN YOU HELP ME. I’D LIKE TO KNOW WHAT MEDIATION MEANS CAN YOU HELP ME? I’D LIKE TO KNOW WHAT MEDIATION MEANS. Is court staff permitted to answer this question? Yes or No? Yes. definition

2. MAY I PLEASE HAVE A COPY OF THE NAME CHANGE LAW IN EFFECT IN 1990 2. MAY I PLEASE HAVE A COPY OF THE NAME CHANGE LAW IN EFFECT IN 1990? Is court staff permitted to answer this question? Yes or No. No. Cannot do legal research.

3. WHAT IS AN APPELLATE COURT 3. WHAT IS AN APPELLATE COURT? Is court staff permitted to answer this question? Yes or No. Yes. Can define court terms.

4. THE JUDGE WAS UNFAIR AND WOULDN’T LISTEN TO MY SIDE OF THE STORY 4. THE JUDGE WAS UNFAIR AND WOULDN’T LISTEN TO MY SIDE OF THE STORY. SHOULD I APPEAL THE JUDGE’S DECISION? Is court staff permitted to answer this question? Yes or No. No. Cannot advise a litigant what they SHOULD do.

IF THE DEFENDANT IN MY CASE LIES, WILL I LOSE MY CASE IF THE DEFENDANT IN MY CASE LIES, WILL I LOSE MY CASE? Is court staff permitted to answer this question? Yes or No. No. There’s not enough information and even if there were, it is for the judge to decide.

CAN YOU GIVE ME THE NAMES OF 3 GOOD REAL ESTATE LAWYERS IN THIS AREA CAN YOU GIVE ME THE NAMES OF 3 GOOD REAL ESTATE LAWYERS IN THIS AREA? Is court staff permitted to answer this question? Yes or No. No. Specific referrals are improper. General referrals are encouraged. E.g. Give litigant the phone number for the local bar association instead or Lawyers Referral Service.

7. DO YOU THINK I’D DO BETTER IF I GO TO MEDIATION, RATHER THAN HAVE MY DAY IN COURT? Is court staff permitted to answer this question? Yes or No. No. This calls for a legal conclusion.

WHAT FORMS SHOULD I USE TO BRING A MOTION WHAT FORMS SHOULD I USE TO BRING A MOTION? Is court staff permitted to answer this question? Yes or No. Yes. This goes to court operations. Court staff should be able to provide customers with appropriate forms.

9. WHAT DOES CDR MEAN? Is court staff permitted to answer this question? Yes or No. Yes. Legal definitions can be supplied, if known.

10. WHAT IS THE FILING FEE FOR A SMALL CLAIMS CASE 10. WHAT IS THE FILING FEE FOR A SMALL CLAIMS CASE? Is court staff permitted to answer this question? Yes or No. Yes. Court staff should be able to advise customers of filing fees. Goes to access to the courts.

SOMEONE SUED ME. HOW MANY DAYS DO I HAVE TO ANSWER SOMEONE SUED ME. HOW MANY DAYS DO I HAVE TO ANSWER? May court staff answer this question? Yes or No. Yes. You may answer if you know.

12. HAS MY LAWYER FILED MY CASE IN COURT YET 12. HAS MY LAWYER FILED MY CASE IN COURT YET? Is court staff permitted to answer this question? Yes or No. Yes. Whether a case has been filed is public information.

KEY FUNCTIONS OF COURT STAFF Providing access to the courts; Providing customer service; and Providing assistance to self represented litigants. Access – Most people aren’t familiar with courts & their procedures and have to depend on court staff for information on the court system. Court employees have a role as “gatekeeper” by providing access into the court system. If people don’t know how to use the system and court staff don’t tell them, they’re being denied access to the courts. Example: You can’t file a complaint unless you fill out the Complaint information sheet. Service – Providing service is vital. Providing information is a big part of providing service. Therefore, court administrators should understand what info can be provided and what cannot. Remember is you cannot provide the information that is asked, provide what you can do and why. Pro Se Litigation – More and more people are representing themselves. The burden falls on court staff to assist these parties without crossing the legal advice line.