1. Legal Information and Legal Advice The Hard Situations
2010 California Conference on Self-represented litigants April 29-30, 2010
John M. Greacen Greacen Associates, LLC

2. General Rules and Principles

3. State and Federal Guidelines
Arizona
California
Florida
Idaho
Iowa
Michigan
Missouri
New Mexico
New Jersey
New York
Utah
Washington
Wisconsin
Federal Judicial Center training materials
Here are fourteen examples of statewide guidelines adopted by state supreme courts or judicial councils to provide standards for court staff in this area. There are undoubtedly others.

4. California Policy Documents
Family Law Facilitator Act, Family Code Sections
2003 Form MC-800 Court Clerk’s Office: Signage
2003 May I Help You: A Resource Guide for Court Clerks
2008 Rule
2008 Guidelines for the Operation of Self-Help Centers in California Trial Courts

5. Persons Admitted to the Practice of Law Currently in Active Status
Traditional UPL View
Persons Admitted to the Practice of Law Currently in Active Status
All Other Persons
Scope of Practice Limited Only by Areas of Competence and Conflicts of Interest

6. Washington State Bar Committee Insight
Persons Admitted to the Practice of Law Currently in Active Status
All Other Persons
Court Staff –
Specialized Knowledge
and Necessity of Public Assistance
Scope of Practice Limited Only by Areas of Competence and Lawyer/Client Relationship
Provision of Legal Information Consistent with Court’s Impartiality Imperative

7. Applicability of These Principles
To all court staff – whether or not they are attorneys
To self help services provided in the court, regardless of the provider of those services
To legal services staff providing self-help assistance
To library staff

8. Ethical Obligations of Court Staff
To remain impartial
with respect to parties in a case
with respect to lawyers in the community
To maintain confidential information
To avoid ex parte communications
To perform competently
The key ethical principle from which all of these guidelines derive is impartiality. It is not just judges who have to maintain their neutrality in cases that come before them. The same principle applies to every staff member in every activity in which they engage. It is the court that must be impartial and that includes every person associated with it.
A lawyer representing a client has an obligation to further his client’s best interests. A court staff member can never take on that role or responsibility. That means that s/he can provide lots of facts about the court and how things are done in the court. But s/he cannot take the side of one of the litigants and start helping the litigant figure out what to do to win in court. A good beginning test would be “If the other party in this dispute were standing right here, would I be answering his or her question in the same way?” For instance, the staff person can tell the litigant what papers are needed and how to fill them out, but not what to say in them.

9. 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
This is the basic distinction between information and advice.
The next three slides help to flesh out these definitions.

10. General Guidelines Legal information
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.”
Staff answer questions about how to file a lawsuit. They do not answer questions about whether a person should file a lawsuit, what s/he should seek in a lawsuit, or what sort of strategy s/he should follow to win. For instance, we would never advise a person with a traffic ticket to come to court and see if the officer shows up and then plead guilty. That is a clear example of giving legal advice.

11. 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.
If a litigant comes to the counter and complains that the judge was unfair or wrong in ruling against him or her in a case, the staff person can outline the remedies available – a motion to reconsider, an appeal, or a judicial conduct complaint if the person can show that the unfairness resulted from a violation of judicial ethics, such as racial or ethnic bias. But the staff member cannot take the next step and say, “If I were you I would cut my losses and quit while you are behind.”

12. General Guidelines
Legal information
Staff should inform a litigant of his or her options and the steps needed to carry out an option.
Legal advice
Staff should not suggest which option the litigant should pursue.
The concept of explaining options to people is readily understandable, so this is a useful example for most court staff.

13. General Guidelines Legal information
Educating the litigant or potential litigant
Legal advice
Guiding or directing the litigant or potential litigant

14. General Guidelines
It is always appropriate for a court staff person to provide information that is set forth on the Self Help website or that could be provided there as generalized statements about California law

15. General Guidelines
How a communication is framed determines whether it is appropriate or inappropriate

16. Specific California guidelines
Staff can explain court rules and procedures
Staff cannot suggest which of several available procedures a litigant should follow
This and the succeeding slides provide examples from actual state guidelines. They are usually set up in this “can” and “cannot” format to show generally what court staff can do and then to point out any applicable limitations.
State and local court websites now contain great amounts of information on statutes, rules and procedures. An easy rule of thumb for court staff is if someone can post information on a website, you can provide the same information over the counter or over the phone. You can also refer people to the website for more detail once you have given a general summary of the information requested.

17. Specific California guidelines
Staff can provide information about past rulings in a case
Staff cannot predict what the court will do
The information about past rulings in contained in the case file or the court’s case management information system. The only other limitation applicable here is that a clerk cannot provide confidential or sealed information or information from a sealed case or document. Some matters are so sensitive (such as an unserved indictment) that a clerk must ensure that s/he does not inadvertently even disclose its existence.

18. Specific California 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
Many courts find it useful to make copies of frequently requested statutes or rules, such as the grounds for divorce or the rule on service of process. For a topic as technical as service of process (who can serve, the modes of service, preparation of a proof of service) it rarely suffices to tell a person orally about the process; the requester needs to leave the courthouse with a piece of paper containing the information.
On the other hand, many courts attempt to answer all questions in a single document – a voluminous information packet. Litigants are much more likely to read limited information packets than thick manuals. Ask the audience how many of them have read their cell phone manuals from cover to cover.
Staff can take the second statement too far. Staff have to let requesters tell enough about their case to know what information they need. So the limitation is not in learning about the requester’s case; it lies in suggesting to the requester whether their facts fall within an ambiguous phrase in a statute.

19. Specific California guidelines
Staff can provide general referrals to other offices or persons
Staff cannot recommend specific attorneys
Staff get lots of questions about attorneys:
Question: Do I need to hire an attorney? Answer: No, you are allowed to represent yourself in court. However, the court always urges people to consult an attorney about a legal matter.
Question: Who would be a good attorney for this case? Answer: I can’t recommend a specific attorney; that would be a violation of my ethical duty to remain impartial with respect to all attorneys. But you can call the attorney referral service or talk to your minister or priest, to your banker, or to a friend or neighbor whose judgment you trust.

20. Specific California guidelines
Staff can provide forms and instructions, and record on the forms information provided by the litigants
Staff can check a court user’s papers for completeness and inform the person of specific problems identified and how to fix them
Staff cannot draft the wording to be entered on forms
Some states have appellate opinions holding that the selection of an appropriate court form is the provision of legal advice. Doesn’t this mean that court clerks cannot tell a litigant which divorce form to fill out? The answer was provided by a special bench bar committee in Washington state. The committee filed a report with the state Supreme Court recognizing that court staff are in a special category – the decisions concerning the unauthorized practice of law do not apply to them even if they are not lawyers. They are specially trained and supervised employees of the court. The proper functioning of the court requires them to provide information to the public, including the right form to use for requesting specific court actions.
California has such an unauthorized practice of law rule. However, the guidelines adopted by the California Judicial Council explicitly authorize court staff to provide litigants with appropriate forms.
Courts differ on whether they want their staff to fill out forms for litigants. When they tell staff not to do so, it is not because it would be improper to do so. Rather it is because the court does not have the resources needed to give litigants this much help. Courts generally make an exception for persons with a disability – they cannot write or they cannot read English. In these instances, courts allow staff to fill out the forms, adding at the bottom a statement that I, name, court clerk, assisted name to complete this form, putting into the forms the words told to me by name.

21. Specific California guidelines
Staff can assist court users in computing filing deadlines
Staff cannot advise how the statutes of limitation apply to a particular fact pattern

22. Specific California guidelines
Staff can prepare standardized, boilerplate, fillable form points and authorities that can be used by self-represented litigants
Staff can develop forms for use by self-represented litigants
Staff cannot prepare individualized points and authorities for a specific litigant

23. Specific California guidelines
Staff are specifically authorized to explain and clarify court orders.
Staff are specifically authorized to assess the status of a litigant’s case and provide directions concerning court requirements and procedural next steps

24. Extract From California Guideline 10: Scope of Services
This is an example from the California guideline explaining the role of a self help center staff member.
The full Guidelines are online at:
Module 3: Ethical Guidelines -- By the Self-Represented Litigation Network

25. Specific California guidelines
Self help staff must provide the same assistance, at the same level of service, to both sides of all types of cases served.

26. California ethical guidelines
Staff must uphold the independence and integrity of the self help center or office.
All persons working in a court-based self-help center must recognize that they are and will be perceived by the public as representatives of the court and must at all times avoid engaging in conduct that creates an appearance of impropriety.
All attorneys and staff must perform their duties impartially and diligently.

27. California ethical guidelines
Impartiality means delivering services in a neutral manner.
Diligence requires providing litigants with pertinent information to allow them to bring their matter before the court.
All attorneys and staff must be aware of the social and economic differences that exist among litigants and treat users with patience and respect. Litigants who become unruly, disruptive, violent or who harass staff may be asked to leave.

28. California ethical guidelines
Attorneys and staff must not exhibit bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or other similar factors and must require unbiased conduct of all personnel.
Attorneys and staff must provide competent legal information

29. California ethical guidelines
Centers must post conspicuous notice that services are not intended to give one side of a case an advantage over the other, that no attorney-client relationship exists, that communications are not privileged, and that information may be provided to the other party.
Attorneys and staff may not make any public comment about the litigants or any pending or impending matter in the court.

30. California ethical guidelines
Self-help center staff may not accept anything of value in the form of gifts, favors, bequests, or loans from persons they assist.
Self-help staff must avoid all ex parte communications with bench officers unless working as a research attorney or in a capacity permitted under Family Code 10005
Self-help staff may not offer an opinion to a bench officer on how the bench officer should rule on a pending case.

31. California ethical guidelines
Communications about purely procedural matters or the functioning of the court are allowed and encouraged.
Self-help staff must not provide assistance on any issue on which an attorney actively represents a litigant. This does not prohibit assistance on how to file a substitution of attorney, or respond to a request to be relieved as counsel

32. California ethical guidelines
Attorneys must see that volunteer attorneys comply with the ethical guidelines, do not solicit or accept clients from their volunteer work, or make referrals to a specific attorney

33. Applying the General Rules Principles to Difficult Situations

34. Difficult Situations DV declarations Complicated property issues
Protecting litigants from themselves – e.g., pensions and retirement accounts