Distinguishing Legal Information from Legal Advice

Presented by: Judge Michael Dennard Director of Court Services for Families and Children Idaho Administrative Office of the Courts

YOUR ROLE IN THE JUDICIARY

Providing Information and Assistance

KEY CONCEPTS
ACCESS CUSTOMER SERVICE PROVISION OF ACCURATE INFORMATION PRINCIPLES OF EQUALITY, IMPARTIALITY & OPENESS

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.

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.

PROVISION OF ACCURATE INFORMATION

The Court is obligated to provide accurate information. Accessibility is affected by this accuracy. Small mistakes affect peoples lives.

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.

IMPARTIALITY
Impartiality to the individual litigants and to the outcome of a particular case. You must provide the same information to either party.

OPENNESS
Court proceedings are, in general, conducted in the open. An individual is permitted to participate in his/her proceedings. Openness also means that the participant and the public must be able to understand the process.

Final Thought
It is not up to you to decide who needs information.
You provide appropriate assistance to anyone who requests it.

CONFIDENCE IN THE COURTS

Your assistance to unrepresented litigants and your application of these principles furthers our goals of increasing the publics trust and confidence in the Judiciary.

CONFIDENCE IN THE COURTS

Court Clerks play a critical role in ensuring public
confidence in our judicial system. For most people who come 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 individuals

should deliver a clear and very critical message which is, our courts are open to everyone and are here to serve the people.

Justice Joel Horton

CLERKS CANNOT GIVE LEGAL ADVICE

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

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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.
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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.
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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
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General Guidelines
If you dont know, dont guess. Even if you would be allowed to provide the 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 procedures Staff cannot suggest which of several available procedures a litigant should follow Staff 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 a complaint or other pleading Staff cannot advise litigants whether to file a complaint or other pleading, whom to name as a defendant in a complaint, what sort or amount of damages to seek, what arguments to include in a complaint or pleading, or what arguments to make in response to a filing by the other side

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More Examples
Staff can provide litigants with pamphlets or information on how to present evidence in court Staff cannot tell litigants specific questions to ask witnesses in court Staff cannot recommend techniques for presenting evidence in court Staff 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 to the 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 services and legal aid
Staff cannot recommend a specific lawyer
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More Examples
Staff can provide forms and instructions, and record on the forms information provided by the litigants if the litigants are not capable of filling out the form themselves Staff cannot provide or suggest the information that should be entered on the forms
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EXPARTE COMMUNICATIONS

Ex parte is a Latin phrase meaning on one side only; by or for one party.

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EXPARTE COMMUNICATIONS

When one party to a case, or someone involved with a party, talks or writes to or otherwise communicates directly with the judge about the issues in the case without the other parties knowledge.

OR

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EXPARTE COMMUNICATIONS

When anyone, including court staff, probation officers, attorneys, and even judges talks or writes 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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EXPARTE COMMUNICATIONS

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 calls Letters Reports Emails Instant Messaging Facebook Twitter
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EX-PARTE COMMUNICATIONS
Allowable Ex Parte Communications: For scheduling, administrative, or emergencies that do not deal with substantive matters With court personnel whose function is to aid the judge in carrying out adjudicative function (law clerks) Communications with problem solving court team Any other which is expressly authorized by statute or court rule

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EX-PARTE COMMUNICATIONS
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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EX-PARTE COMMUNICATIONS
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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EX-PARTE COMMUNICATIONS

When in doubt.

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Thank You For Participating

Acknowledgements:
John Greacen, Greacen Associates, LLC Judy Meadows, State Law Librarian of Montana Self-Represented Litigation Network