legal info vs. legal advice in arizona courts

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    It is a mantra used  by staff in courthouses and libraries throughout the English-speaking world: “We can give you legal information but not legal advice.”  E.g., see the Delaware State Court We Can/We Cannot page; John Greacen’s Judicature article (2000); and Iowa’s Guidelines & Instructions for Clerks Who Assist Pro Se Litigants in Iowa’s Courts (2000, 42-pp pdf).  As you might suspect, making the distinction can be quite difficult — frustrating to both court personnel and pro se litigants.

graphClimbS The Arizona Supreme Court decided last year to do something about the problem. Noting that “With the increase of self-represented litigants in Arizona, the issue of how to provide assistance and information to court customers without giving legal advice is becoming more critical and urgent,” it established a Task Force on Legal Advice-Legal Information.  Earlier this month, the Task Force issued:

  • its Final Report (March 2007, 6 pp pdf), which notes in fn. 1 that “Although Arizona Rules of Court define ‘practice of law’ and ‘unauthorized practice of law,’ the Rules do not define ‘legal advice.’”
  • a GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel (March 2007, 67-pp pdf; with a 40-page Glossary of Terms)
  • a Question and Response Handbook (March 2007, 59-pp pdf).
  • Signage [Ed. Note: This is a one-page Welcome / We Can / We Cannot sign, made difficult to read by having the Seal of the Supreme Court appear behind the message.  As I do whenever I see such lists, I wonder if the Task Force argued over “We May” and We Can”.]

The Task Force documents will surely be helpful for court personnel who worry about crossing the info/advise line (and about being sued for UPL).  I am, nonetheless, a bit concerned that the tone is too stingy with useful information.  For example: The Handbook says: “When you are uncertain if you are being asked to give legal advice, please suggest that the one asking the question consult an attorney.”  Telling a pro se litigant to consult an attorney to answer one borderline question will seldom be helpful.  I’d say “bend over backward — or stick out your neck — to help them.”

Also worrisome is the following pair of Questions and Answers in the Handbook:

  1. Q. I can’t afford an attorney. Can you tell me what to do?
    A. Court personnel are not allowed to give legal advice and cannot guess what might be in a court customer’s best interests. Court personnel must remain neutral; there may be a list of local resources of attorneys who will work for a reduced fee or no fee.
  2. Q. Should I get a lawyer?
    A. Parties are not required to have a lawyer to file papers or participate in a court case. Court personnel cannot advise a party whether the party should hire a lawyer, nor may they recommend a specific lawyer. The State Bar of Arizona provides a lawyer referral number at 602-252-4804 or 866-482-9227 and the local County Bar Association may have a referral number. Some courts provide a list of local attorneys and there may be a list of local resources of attorneys who will work for a reduced fee or no fee.

Both answers seem strangely incomplete in a Handbook specifically created to help the unrepresented litigant in Arizona.  As we have said on our Getting Self-Help Help page, Arizona has been a trailblazer in creating online and in-court Self Help Centers, and the State has a network of Self-Help Centers, located in courthouses in at least a dozen counties.  A pro se litigant who complains he or she cannot afford a lawyer or who asks whether a lawyer is needed, ought to — in addition to being told about attorney options — be pointed to the Self-Help Center down the hall (or across the room), which surely has relevant information and assistance.  To respond by only suggesting they seek out a list of lawyers or the Bar Association’s referral program is inexplicable (unless, of course, the Arizona Bar controlled the Task Force).  

  • If you are a practitioner/professional interested in this topic, please note that SelfHelpSupport.org‘s April Webinar is “on Legal Advice vs. Legal Information.”  Two experts, John Greacen and Judy Meadows will present it on April 30, 2007 from 3-4:30 pm (EST) [I assume they mean EDST]. You need to be an SHS or SRLN member (it’s free and has many other benefits). You can sign up now by emailing anorris [AT] ncsc.dni.us

Below the fold, I have reproduced the Task Force definitions of “legal advice” and “legal information.”  
 
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From page of of the “GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel” (March 2007, 67-pp pdf; has a 40-page Glossary of Terms):

IV. What Constitutes Legal Information

Legal information is communication of facts about court procedures, timing and resources. It includes information contained in court records, examples of forms or pleadings, informational pamphlets, copies of statutes and court rules, procedures, practices and due dates.

Legal information involves identifying available procedural options (within the scope of the personnel’s knowledge) and helping customers understand and comply with court procedures.

Legal information is generally about court process (how the court and its judges function), court rules, court records and forms. If that information can be found in a source that the court makes available to the public, you can either:
• Tell the customer yourself, if you know, or
• If you are unsure of the answer, direct the customer to the appropriate court personnel or other publicly available source.

See the Question and Response Handbook for more details and specific examples.
V. What Constitutes Legal Advice   black check 

Legal advice is a written or oral statement that:
• Interprets some aspect of the law, court rules, or court procedures, or recommends a specific course of conduct a person should take in an actual or potential legal proceeding,
• Applies the law to the individual person’s specific factual circumstances, or
• Requires the person giving advice to have knowledge of the law and legal principles beyond familiarity with court requirements and procedures.

Court customers are asking for legal advice when they ask whether or not they should proceed in a certain fashion. Telling a court customer “what to do” rather than “how to do it” may constitute giving legal advice. See the Question and Response Handbook for more details and specific examples.

 

3 Comments

  1. Advice versus information « PLE / Canada / Fulbright

    March 26, 2007 @ 2:40 pm

    1

    […] The unauthorized practice concern, although it can loom in a staffperson’s mind and has come up again and again as a reason for official tentativeness towards PLE, has not turned out to be a real day-to-day threat to PLE in Canada.* That’s a damn good thing, too, because nobody really knows exactly what “legal advice” is. The advice vs. information issue is one that many folks have tackled (legal scholars, law librarians, bar personnel, court administrators, and self-represented litigant support program task forces, to name the major groups), but that no one has pinned down. A common solution is to offer guidelines to information providers in the form of “what you can do” and “what you can’t do” lists [consider the set of deliverables from the Arizona Supreme Court’s recent study of the issue, discussed on the Self-Help Law ExPress blog [link]]. […]

  2. kathleen bradshaw

    May 18, 2007 @ 1:55 am

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    We were just notified by our lawyer of 2 years that he is leaving his law firm and turning the case over to the senior partner……mind you our court date is now 83 days away and this sebior partner wants all court and ather fee up front. Has aked that we come up with a very large sum of money within 30 days or she will not represent us, and when I say large sum of money….I mean about 20-30 thousand dollars. Who in the world can come up with that in 30 days? And on top of that she notified us that she cost more that the lawyer that is leaving. This just doesn’t seem right. we are being penalized for our other lawyer leaving. We must now pay our balance with them and at the same time try to find someone to take on our case to make this court date. Anyone have any sugesstions or helpful information. We need a lawyer that is willing to take on our case with a small retainer fee and minimal (meaning about $1,000.00 to 2,000.00) payments per month. Our court date is in the middle of August and we hate to delay it. It’s been 2 years now that this case has consumed our lives. We just want to get through the court date and move on. Please help!!!!!

  3. david giacalone

    May 18, 2007 @ 10:28 am

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    Kathleen, I can’t offer you much advice at this time, but perhaps other readers might have some. It would help if you told us what state you live in and the kind of lawsuit that is involved (not a lot of facts, just the nature of the suit). I can understand that you want the lawsuit to be finished as soon as possible, but a short delay may be worthwhile if it allows you to find a lawyer that you can feel more comfortable with and who is willing to agree to a fee arrangement that better meets your situation. Have you looked into moving the case to your old lawyer’s new firm? Perhaps the local bar’s fee arbitration program can help you work out a reasonable compromise with the senior partner.

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