2010 CALIFORNIA CONFERENCE ON SELF- REPRESENTED LITIGANTS APRIL 29-30, 2010 JOHN M. GREACEN GREACEN ASSOCIATES, LLC Legal Information and Legal Advice

2010 CALIFORNIA CONFERENCE ON SELF-REPRESENTED LITIGANTS

APRIL 29-30, 2010

JOHN M. GREACENGREACEN ASSOCIATES, LLC

Legal Information and Legal Advice

The Hard Situations

General Rules and Principles

State and Federal Guidelines

• Arizona• California• Florida• Idaho• Iowa• Michigan• Missouri• New Mexico

New JerseyNew YorkUtahWashingtonWisconsinFederal Judicial

Center training materials

California Policy Documents

Family Law Facilitator Act, Family Code Sections 10000 -10015

2003 Form MC-800 Court Clerk’s Office: Signage

2003 May I Help You: A Resource Guide for Court Clerks

2008 Rule 10.9602008 Guidelines for the Operation of Self-

Help Centers in California Trial Courts

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

Washington State Bar Committee Insight

Persons Admitted to

the Practice of Law Currently

in Active Status

Scope of Practice Limited Only by

Areas of Competence and

Lawyer/Client Relationship

All Other Persons

Court Staff – Specialized Knowledge

and Necessity of Public

Assistance

Provision of Legal Information

Consistent with Court’s Impartiality

Imperative

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

Ethical Obligations of Court Staff

To remain impartial with respect to parties in a casewith respect to lawyers in the

communityTo maintain confidential informationTo avoid ex parte communicationsTo perform competently

Definitions

Legal informationFacts about the law and the legal process

Legal adviceAdvice about the course of action a client should take to further his or her own best interests

General Guidelines

Legal information Staff should answer questions that call for

factual information – questions that start with “who,” “what,” “when,” “where,” or “how.”

Legal adviceStaff should not answer questions that call for an opinion about what a litigant should do – questions that contain the words “should” or “whether.”

General Guidelines

Legal informationStaff should tell a litigant how to bring an issue to the attention of the court.

Legal adviceStaff 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.

General Guidelines

Legal information

Staff should inform a litigant of his or her options and the steps needed to carry out an option.

Legal adviceStaff should not suggest which option the litigant should pursue.

General Guidelines

Legal informationEducating the litigant or potential litigant

Legal adviceGuiding or directing the litigant or potential litigant

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

General Guidelines

How a communication is framed determines whether it is appropriate or inappropriate

Specific California guidelines

Staff can explain court rules and procedures

Staff cannot suggest which of several available procedures a litigant should follow


Staff can provide information about past rulings in a case

Staff cannot predict what the court will do


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


Staff can provide general referrals to other offices or persons

Staff cannot recommend specific attorneys


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


Staff can assist court users in computing filing deadlines

Staff cannot advise how the statutes of limitation apply to a particular fact pattern


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


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

Module 3: Ethical Guidelines -- By the Self-Represented Litigation

Network

Extract From California Guideline 10: Scope of Services


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

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.


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.


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


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.


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.


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


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

Applying the General Rules Principles to Difficult

Situations

Difficult Situations

DV declarationsComplicated property issuesProtecting litigants from themselves –

e.g., pensions and retirement accounts