Ethics Issues National Conference on Community Based Access to Justice February 20, 2004 San Francisco Ca Richard Zorza, Esq., John M. Greacen, Greacen Associates LLC,

Issues affecting persons outside the courtroom Issues affecting judges inside the courtroom

Issues affecting persons outside the courtroom – an overview No attorney-client relationship Attorney-client relationship limited to specific tasks (unbundled legal services) “Short-term limited legal services” provided “under the auspices of a program sponsored by a nonprofit organization or court” Full scale representation

No attorney-client relationship Anyone providing legal information rather than legal advice –Court staff (whether or not they are attorneys) –Legal services staff (whether or not they are attorneys) –Librarians –Authors and publishers (including those publishing on the Internet) –Persons conducting seminars and workshops

Attorney-client relationship limited to specific tasks (unbundled legal services) Practice pursuant to ABA Model Rule 1.2 (c) and state counterparts

“Short-term limited legal services” provided “under the auspices of a program sponsored by a nonprofit organization or court” Practice pursuant to ABA Model Rule 6.5 allowing representation without screening for conflicts of interest Hotlines Advice and brief services Courthouse assistance programs

Full scale representation Practice fully subject to the ethical obligations of a lawyer

Legal Advice vs. Legal Information

Application to Court Staff

State and Federal Guidelines CaliforniaFloridaIdahoIowa New Mexico New Jersey New York IowaMichiganUtahWisconsin Federal Judicial Center training materials

Definitions Legal information Facts about the law and the legal process Legal advice Advice about the course of action a client should take to further his or her own best interests

General Guidelines Legal information Staff should answer questions that call for factual information – questions that start with “who,” “what,” “when,” “where,” or “how” Staff should answer questions that call for factual information – questions that start with “who,” “what,” “when,” “where,” or “how” Legal advice Staff should not answer questions that call for an opinion about what a litigant should do – questions that contain the words “should” or “whether”

General Guidelines Legal information Staff should tell a litigant how to bring an issue to the attention of the court Legal advice Staff should not suggest whether it is wise to bring that issue before the court, how best to present the issue, or how the judge is likely to decide the case

General Guidelines Legal information Staff should inform a litigant of his or her options and the steps to carry out an option Legal advice Staff should not suggest which option the litigant should pursue

General Guidelines If you don’t know, don’t guess. Even if you would be allowed to provide the information if you knew it, you must say “I don’t know” if you are not sure. Refer these questions to a supervisor.

Examples of state guidelines Staff can explain court rules and procedures Staff cannot suggest which of several available procedures a litigant should follow

Examples of state guidelines Staff can provide information about past rulings in a case Staff cannot predict what the court will do

Examples of state guidelines Staff can provide cites to (or copies of) statutes, court rules, and ordinances Staff cannot provide an analysis or interpretation of statutes or ordinances based on the specific facts of a litigant’s case

Examples of state guidelines Staff can explain what records are kept by the court and can be made available to the public Staff can provide public case information Staff cannot provide confidential case information

Examples of state guidelines Staff can explain how and where to file a complaint concerning a judge, court employee or private attorney Staff cannot provide opinions about the conduct of a judge, court employee or private attorney

Examples of state guidelines Staff can provide general referrals to other offices or persons Staff cannot provide referrals to other offices or persons based upon personal preferences

Examples of state guidelines Staff can provide forms and instructions, and record on the forms information provided by the litigants Staff cannot provide or suggest the information that should be entered on the forms

Guidelines are not enough Clerks need procedures manuals to which they can refer for correct answers to procedural questions Websites can be of great help to court staff Clerks need standard handouts on FAQs, such as service of process Clerks need training Clerks need customer service skills

Unauthorized Practice of Law One purpose of state and individual court guidelines is to authoritatively provide that giving legal information is not practicing law Vermont Attorney General opinion Weight of authority is growing Not aware of any contrary examples or precedents

Ensuring that an attorney-client relationship does not exist Existence of attorney-client relationship is established by the client’s reasonable interpretation and expectations Need to make clear that a staff member, particularly an attorney, is not providing legal advice or representing the assisted party

California’s Family Law Facilitator Act § –No attorney-client relationship is created –The family law facilitator shall give “conspicuous notice” that no attorney-client relationship exists –The notice shall advise that communications are not privileged and that the family law facilitator may provide services to the other party in the case

Legal Obligation to Perform Competently Whether or not a lawyer-client relationship exists, any person, including a public servant, has a duty of reasonable care in the performance of his or her job Public servant liability depends on the specific provisions of state law, including tort claims act, governmental immunity, and judicial immunity

Application to Legal Services Staff

Giving legal information only Can be provided by lawyer or non-lawyer staff Can include navigational assistance to website information Can be provided to persons intending to represent themselves in court Same principles apply to the distinction between legal information and legal advice Make the limitation explicit Liability for misinformation provided may not limited by doctrines intended to protect public servants

Application to Law Librarians

Giving legal information only Can be provided by lawyer or non-lawyer staff Can include navigational assistance to website information Can be provided to persons intending to represent themselves in court Same principles apply to the distinction between legal information and legal advice Less reason to make the limitation explicit

Application to authors and publishers

Giving legal information only Can be provided by lawyers or non-lawyers Can include website information Can be provided to persons intending to represent themselves in court Same principles apply to the distinction between legal information and legal advice Obligation to update information? State limitations explicitly (including information currency) Liability for misinformation provided may not limited by doctrines intended to protect public servants

Attorney-client relationship limited to specific tasks (unbundled legal services)

Limited attorney-client relationship Ethical rules still apply –To perform competently –To maintain confidences –To avoid conflicts of interest Ethical obligations are limited to the tasks undertaken and advice given, including advice (explicit or tacit) that litigant can reasonably represent him or herself on the remainder of the tasks to be performed

Limited attorney-client relationship Must be “reasonable under the circumstances” Must have client’s informed consent –ABA Model Rule does not require that the consent be in writing

“Short-term limited legal services” provided “under the auspices of a program sponsored by a nonprofit organization or court”

Attorney-client relationship exists; only conflicts checking not required Ethical rules still apply –To perform competently –To maintain confidences Must avoid known conflicts of interest of the lawyer or other members of the lawyer’s firm

Full Legal Representation

Courtroom Neutrality

The Misperception Engagement = Non Neutrality and Passivity = Neutrality

An Alternative Perception Two Different Dimensions Neutrality/Non-NeutralityEngagement/Passivity

Implications

The Real World Tension Need for Appearance of Neutrality Takes to Passivity Need for True Neutrality Should Take to Engagement

The Resolution: Transparent Engagement Non-Prejudicial Engagement Explanation of Purposes Explanation of Techniques Techniques Themselves are Both Transparent and Aim for Transparency in the Underlying Process

The procedures in the court are structured so that each side has the greatest possible opportunity to be heard The judge will give each side the opportunity to explain whey there are in court, and what they want, and then tell their story, and may ask anyone for clarification, explanation, or more detail. Each side has the right to object to evidence, but must give a good legal reason, and each side has he right to ask courteous relevant questions of the other. General Rule Setting

The judge may have to limit or cut off one or other party if they are drifting too far from what is relevant to the decision that has to be made The judge will break the case up into steps and will explain what is happening in each step The judge will explain at the beginning of each step what the basis for decision will be in that step, and what the parties need to prove or undercut in order to prevail. General Rule Setting - 2

When someone offers certain kinds of evidence, the judge will explain what must be shown about that evidence in order for it to be considered. If those conditions are not met, then the evidence may not be able to be considered, or may be given less weight. If the evidence is excluded, the judge will not consider it. That the other side may object to certain evidence, or what someone is saying. That evidence will only be ignored if those objections go to the reliability of the evidence, or must, for some other reason that will then be explained, be ignored. General Rule Setting -3

The judge may decide to stop the hearing and recommend that one or other party consult with the Self Help Center (if available), or with a lawyer, in order that they move forward as well as possible. If one party has counsel, explaining that the attorney will, of course, be allowed to play the traditional role of counsel within this structure, but that counsel will not be permitted to inappropriately take advantage of the fact that only one party has counsel. General Rule Setting -4

Specific Situations Direct Testimony Hearsay Testimony Documentary Evidence Required Documents Failure to Meet the Elements of a Case Objections

Technology and Transparency Powerful Tool for Transparency Must Itself Be Transparently Applied Pro Se Example

Conclusions Rethink the Rules and Commentary –Little Change Needed, Just Clarity Create a Broader View of Engaged Neutrality Keep an Eye on the Potential of Technology to Transform