giving legal advice

giv

ing

lega

l adv

ice

how to give legal informationwith

out

“We cannot give legal advice.”

This session will help judges and court personnel:

Learn the difference between legal information and legal advice

Learn ways to interact with pro se litigants

Find helpful resources

The Pro Se Challenge

Pro Se litigants can:

Slow down the process Place unfair burden on

courts and staff Create ethical problems

Why can’t judges, clerks, and court personnel

give legal advice?

Ethical Obligations

Remain neutral and

impartial

Ethical Obligations

Ethical Obligations

Canon 3B(5): “A judge shall

perform judicial duties without bias

or prejudice.”

Unauthorized Practice of Law

Only attorneys licensed by Supreme Court of Texas may give legal advice (§81.101, Tex. Gov’t Code)

What happens with a vague standard?

Less information Inconsistent practices Unequal treatment

What is legal advice?

Interprets law, rules or procedure

Recommends a specific course of action

Applies the law to specific facts

What is legal information?

Facts about the law and the legal

process

How can I tell if a question is

calling for legal advice?

Legal advice

Legal information

Facts(Information)

“Who”“What”“When”“Where”“How”

Opinion(Advice)

“Should”“Whether”

You may: Provide information and

explanation about court process Recite common laws, rules and

procedures Explain terms used in court

process Give options as to all pleadings

that are appropriate at a certain stage

You may (cont’d): Answer questions about deadlines Act as a “scribe” by writing on forms

only a verbatim transcription of litigant’s words (e.g., blind or disabled litigant)

Refer court users to law library or www.TexasLawHelp.org

Review court file and pleadings for completeness and tell litigant what is missing

You may NOT:

Recommend a specific pleading to file

Recommend wording for a pleading or form

Recommend claims, parties, damages, or arguments

You may NOT (cont’d):

Recommend evidence or objections

Recommend whether to ask for a continuance

Recommend whether parties should try to settle

You may NOT (cont’d):

Interpret application of statutes

Perform legal research for a party

Predict the outcome

What can you provide?

Yes

Provide information

and explanations about court procedures

No

Recommend next steps

Can you tell me how to file a small claims action?

Question

Fill out a sworn small claims affidavit and file it with the clerk’s office. The clerk will

issue a case number and paperwork called the citation.

Tell the clerk where the…

Answer

… person you are suing can be found because they must be served before the court can grant you relief. The small

claims form is on the court’s website.

The laundry I sued sent the judge a paper about my

lawsuit. I want to tell the judge how they’re wrong.

How do I do that?

Question

I can’t tell you what would be best for your situation, but you have two options. You can talk to the judge at the

hearing or put the information in writing, file it in the clerk’s office, and give a copy to the

laundry.

Answer


Yes Cite

statutes,court rules

andordinances

NoResearchstatutes,

court rulesand

ordinances

I want a jury for my

case. What should I

do?

Question

Under Rule 544 of the Rules of Civil Procedure, you have to ask for a jury and pay a jury

fee of $5.00.

Answer

What are the laws on eviction?

Question

I can’t perform legal research for you. You can contact an attorney

or do the research yourself. If you want to do the research

yourself, check out www.TexasLawHelp.org and go to the Housing section. You will

find information on eviction there.

Answer


Yes

General information about court operations

No Restricted or

confidential information

about court operations

I need to talk to the judge. Where is his

office?

Question

The judge only talks with all parties to a case at the

same time. I can help you schedule a hearing with the judge so both sides can be present. He has court on

Monday through Thursday.

Answer


Yes

Explanationof legal terms

No

Analysis or interpretatio

n of legal terms based on facts of

case

My neighbors leave their kids at home all day

without supervision. Isn’t that neglect?

Question

I’m not an attorney or a judge and can’t make that legal

determination. However, I can refer you to Child Protective

Services. If you’re concerned that the children are in danger,

contact law enforcement.

Answer

What is “service of citation”?

Question

“Service of citation” means giving the other party legal notice that you have filed a

case in court. It is not enough to tell them about the case.

You must follow the Texas Rules of Civil Procedure in

giving notice.

Answer


YesGive options

as to allpleadings that

are appropriateat a certain

stage

No Recommend

a specific pleading

to file

I just got served with a case filed by my landlord.

What should I do?

Question

You have three options, you can file an answer, you can

try to work out an agreement with your

landlord, or you can do nothing.

Answer


YesForms and instruction

kits and verbatim

transcription of litigant’s

words

NoRecommend

what information

should be put on the forms

I loaned a friend somemoney, and he won’t payme back. How doI sue him?

Question

The Texas Law Help website has forms and instructions for

small claims lawsuits. Go to www.TexasLawHelp.org and

click on “Consumer” and then “Small Claims Court.”

Answer

My friend won’t pay back aloan, and I’m going to sue. Hehasn’t paid back another loan

from 2 years ago.Can I add that one to the

amount I put on the form?

Question

I can’t help you decide what to put on the form. You can ask an

attorney or visit a legal clinic. Information about legal clinics is

on the court’s website. If you have access to a computer, you can use Live Chat on the Texas

Law Help website.

Answer


Yes

General referrals

No

Subjectiveor biasedreferrals

I asked my landlord to make some repairs, and now he’s trying to evict me. Do you have an attorney you can

recommend?

Question

I can’t recommend a specificattorney. I can give you the

numbers for the local lawyerreferral service and the State

Bar. When you call, be sure to tellthem you need an attorney

specializing in Landlord-Tenant Law.

Answer

Ex Parte Communications

Judges

and court personnel

must avoid ex parte

communications.

Ethical Obligations

Canon 3B(8): “…A judge shallnot initiate, permit, or consider

ex parte communicationsor other communications made to the judge outside

the presence of the parties …”


What is it?

When only one partyappears before or

communicates with a judge.


What if…?• A party asks the clerk to

give a paper to the judge• A party asks to talk to

the judge• A party says they have

an emergency

Strategies

Listen closely and ask questions

Be patient Explain answers Give reasons Give a good referral

Resources

www.TexasLawHelp.org(forms and instructions)

www.texasbar.com/lris(lawyer referral service)

www.SelfHelpSupport.org(best practices, etc.)

Resources

More Resources

www.txcourts.gov(OCA’s website)

www.texasatj.org(Access to Justice Commission’s website)

www.sll.state.tx.us (State Law Library)

Questions?

ContactKatie BondOffice of Court Administration(512) [email protected]

Kristen LevinsTexas Access to Justice Commission (512) [email protected]

giving legal advice

Documents

Transcript of giving legal advice