Legal Advice-Legal Information IICM 2011

8/13/2019 Legal Advice-Legal Information IICM 2011

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Distinguishing Legal

Information from Legal

AdvicePresented by:

Judge Michael Dennard

Director of Court Services for Families and ChildrenIdaho Administrative Office of the Courts


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YOUR ROLE IN THE

JUDICIARY


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Providing Information and

Assistance

3


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KEY CONCEPTS

ACCESS

CUSTOMER SERVICE

PROVISION OF ACCURATE INFORMATION

PRINCIPLES OF EQUALITY, IMPARTIALITY &OPENESS


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ACCESS

Our doors are guaranteed to be open to

all.

Not familiar territory

If customers do not understand how to use

the system, and we dont tell them, we are

denying them access.

By providing access, we advance the

administration of justice.


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CUSTOMER SERVICE

This is why we are in this business.

We are competent, cooperative, and we

do all we can to assist in a timely manner.


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PROVISION OF ACCURATE

INFORMATION

The Court is obligated to provide accurate

information.

Accessibility is affected by this accuracy.

Small mistakes affect peoples lives.


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EQUALITY

All litigants must be treated fairly &

equally.

You can ensure equality in the Courts by

explaining your extraordinary knowledge

about court procedures, requirements, &practices.


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IMPARTIALITY

Impartiality to the individual litigants and to

the outcome of a particular case.

You must provide the same information to

either party.


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OPENNESS

Court proceedings are, in general,conducted in the open.

An individual is permitted to participate inhis/her proceedings.

Openness also means that the participantand the public must be able to understandthe process.


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Final Thought

It is not up to you to decide who needs

information.

You provide appropriate assistance to

anyone who requests it.


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CONFIDENCE IN THE COURTS

Your assistance to unrepresented litigants

and your application of these principles

furthers our goals of increasing thepublics trust and confidence in the

Judiciary.


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CONFIDENCE IN THE COURTS

Court Clerks play a critical role in ensuring publicconfidence in our judicial system. For most people whocome to court, you, as a court clerk will be their primary

point of contact with that system-not a judge, or a lawyer,or a court administrator.

What you do and what you say to these individualsshould deliver a clear and very critical message which is,

our courts are open to everyone and are here to servethe people.

Justice Joel Horton


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CLERKS CANNOT

GIVE

LEGAL ADVICE


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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 bestinterests


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General Guidelines

Legal information

Staff should answer questions that call forfactual informationquestions that start

with who, what, when, where, orhow.

Legal advice

Staff should not answer questions that callfor an opinion about what a litigant shoulddoquestions that contain the wordsshould or whether.


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General Guidelines

Legal information

Staff should tell a litigant how to bring anissue to the attention of the court.

Legal advice

Staff should not suggest whether it is wise

to bring that issue before the court, howbest to present the issue, or how the judgeis likely to decide the case.


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General Guidelines

Legal information

Staff should inform a litigant of his or her

options and the steps to carry out anoption

Legal adviceStaff should not suggest which option the

litigant should pursue


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General Guidelines

If you dont know, dont guess.

Even if you would be allowed to providethe information if you knew it, you must

say I dont know if you are not sure.

Refer these questions to a supervisor.


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General Guidelines

Staff can explain common, routinely

employed court rules and

proceduresStaff cannot suggest which of

several available procedures a

litigant should followStaff should not attempt to apply a

rule to the facts of a litigants case


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Specific Examples

Staff can tell litigants how to file acomplaint or other pleading

Staff cannot advise litigants whether tofile a complaint or other pleading,whom to name as a defendant in a

complaint, what sort or amount ofdamages to seek, what arguments toinclude in a complaint or pleading, orwhat arguments to make in response to

a filing by the other side


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More Examples

Staff can provide litigants withpamphlets or information on how to

present evidence in court

Staff cannot tell litigants specificquestions to ask witnesses in court

Staff cannot recommend techniques for

presenting evidence in courtStaff cannot recommend objections to

raise to motions or evidence submitted

by the other side


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More Examples

Staff may tell litigants how to request a

continuance

Staff may not recommend to litigants

whether to request a continuance


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More Examples

Staff can tell litigants what to do when

they have settled a lawsuit

Staff cannot recommend when or

whether a litigant should settle a

dispute


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More Examples

Staff can explain the process for

appealing a judges decision

Staff cannot recommend whether a

litigant should appeal a judges

decision


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More Examples

Staff can provide information about

past rulings in a case

Staff cannot predict what the court

will do


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More Examples

Staff can provide cites to (or show

litigants how to find) statutes, court

rules, and ordinances

Staff cannot provide an analysis or

interpretation of statutes or

ordinances based on the specific

facts of a litigants case

Staff cannot perform legal research

for a litigant


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More Examples

Staff can explain what records are

kept by the court and provide those

records that can be made available tothe public (including confidential

files pertaining to the requestor)

Staff cannot provide access to court

records that are sealed


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More Examples

Staff should recommend the use of a

lawyer and provide information

concerning lawyer referral servicesand legal aid

Staff cannot recommend a specificlawyer


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More Examples

Staff can provide forms andinstructions, and record on the forms

information provided by the litigantsif the litigants are not capable offilling out the form themselves

Staff cannot provide or suggest theinformation that should be enteredon the forms


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EXPARTE COMMUNICATIONS

Ex parte is a Latin phrase meaning

on one side only; by or for oneparty.


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When one party to a case, or someone

involved with a party, talks or writes to orotherwise communicates directly with thejudge about the issues in the case withoutthe other parties knowledge.

OR


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Whenanyone, including court staff, probation

officers, attorneys, and even judges talks orwrites to or otherwise communicates directly with

the judge about the facts and issues in the case

without the notice to, or knowledge of both

parties.


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Why are these communications prohibited?

Canon 3B(7) of the Judicial Code of Conduct

Allows judges to decide cases fairly

Preserves public trust in the court system


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EX-PARTE COMMUNICATIONS

Forms of ex-parte communication:

Face to face (in or out of chambers)

Phone callsLetters

Reports

Emails

Instant MessagingFacebook

Twitter


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Allowable Ex Parte Communications:

For scheduling, administrative, or emergenciesthat do not deal with substantive matters

With court personnel whose function is to aid thejudge in carrying out adjudicative function (lawclerks)

Communications with problem solving court team

Any other which is expressly authorized bystatute or court rule


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Best Practices:

Dont violate the rule yourself

Screen all calls to the judge

Except in emergencies, staff should

tell litigants to put in writing

information that they want to convey

to the judge and provide a copy to

the other side

Ask for guidance from the judge


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The Judges Responsibility:

A judge must make reasonable efforts,

including the provision of appropriate

supervision, to ensure that Section 3B(7)

is not violated through law clerks or other

personnel on the judges staff.Commentary to Canon 3B(7), Judicial Code of Conduct


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When in doubt.


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Thank You For Participating


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Acknowledgements:

John Greacen, Greacen Associates, LLC

Judy Meadows, State Law Librarian of Montana

Self-Represented Litigation Network

Legal Advice-Legal Information IICM 2011

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Transcript of Legal Advice-Legal Information IICM 2011