ethics issues national conference on community based access to justice february 20, 2004 san...

Ethics IssuesEthics Issues

National Conference on Community National Conference on Community Based Access to JusticeBased Access to Justice

February 20, 2004February 20, 2004

San Francisco CaSan Francisco CaRichard Zorza, Esq., Richard Zorza, Esq., richard@zorza.netrichard@zorza.net, , www.zorza.netwww.zorza.net

John M. Greacen, Greacen Associates LLC, John M. Greacen, Greacen Associates LLC, john@greacen.netjohn@greacen.net

Issues affecting persons outside Issues affecting persons outside the courtroomthe courtroom

Issues affecting judges inside Issues affecting judges inside the courtroomthe courtroom

Issues affecting persons outside Issues affecting persons outside the courtroom – an overviewthe courtroom – an overview

No attorney-client relationshipNo attorney-client relationship

Attorney-client relationship limited to Attorney-client relationship limited to specific tasks (unbundled legal services)specific tasks (unbundled legal services)

““Short-term limited legal services” Short-term limited legal services” provided “under the auspices of a program provided “under the auspices of a program sponsored by a nonprofit organization or sponsored by a nonprofit organization or court”court”

Full scale representationFull scale representation

No attorney-client relationshipNo attorney-client relationship

Anyone providing legal information rather Anyone providing legal information rather than legal advicethan legal advice– Court staff (whether or not they are attorneys)Court staff (whether or not they are attorneys)– Legal services staff (whether or not they are Legal services staff (whether or not they are

attorneys)attorneys)– LibrariansLibrarians– Authors and publishers (including those Authors and publishers (including those

publishing on the Internet)publishing on the Internet)– Persons conducting seminars and workshopsPersons conducting seminars and workshops

Attorney-client relationship limited Attorney-client relationship limited to specific tasks (unbundled legal to specific tasks (unbundled legal

services)services)

Practice pursuant to ABA Model Rule 1.2 Practice pursuant to ABA Model Rule 1.2 (c) and state counterparts(c) and state counterparts

““Short-term limited legal services” Short-term limited legal services” provided “under the auspices of a provided “under the auspices of a program sponsored by a nonprofit program sponsored by a nonprofit

organization or court”organization or court”

Practice pursuant to ABA Model Rule 6.5 Practice pursuant to ABA Model Rule 6.5 allowing representation without screening allowing representation without screening for conflicts of interestfor conflicts of interestHotlinesHotlinesAdvice and brief servicesAdvice and brief servicesCourthouse assistance programsCourthouse assistance programs

Full scale representationFull scale representation

Practice fully subject to the ethical Practice fully subject to the ethical obligations of a lawyerobligations of a lawyer

Legal Advice vs. Legal Information

Application to Court StaffApplication to Court Staff

State and Federal GuidelinesState and Federal Guidelines

CaliforniaCalifornia

FloridaFlorida

IdahoIdaho

IowaIowa

New MexicoNew Mexico

New JerseyNew Jersey

New YorkNew York

IowaIowa

MichiganMichigan

UtahUtah

WisconsinWisconsin

Federal Judicial Federal Judicial Center training Center training materialsmaterials

DefinitionsDefinitions

Legal informationLegal information

Facts about the law and the legal processFacts about the law and the legal process

Legal adviceLegal advice

Advice about the course of action a client Advice about the course of action a client should take to further his or her own best should take to further his or her own best interestsinterests

General GuidelinesGeneral Guidelines

Legal informationLegal information

Staff should answer questions that call for factual Staff should answer questions that call for factual information – questions that start with “who,” information – questions that start with “who,” “what,” “when,” “where,” or “how”“what,” “when,” “where,” or “how”

Legal adviceLegal advice

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

General GuidelinesGeneral Guidelines

Legal informationLegal information

Staff should tell a litigant how to bring an Staff should tell a litigant how to bring an issue to the attention of the courtissue to the attention of the court

Legal adviceLegal advice

Staff should not suggest whether it is wise Staff should not suggest whether it is wise to bring that issue before the court, how to bring that issue before the court, how best to present the issue, or how the judge best to present the issue, or how the judge is likely to decide the caseis likely to decide the case

General GuidelinesGeneral Guidelines

Legal informationLegal information

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

Legal adviceLegal advice

Staff should not suggest which option the Staff should not suggest which option the litigant should pursuelitigant should pursue

General GuidelinesGeneral Guidelines

If you don’t know, don’t guess. If you don’t know, don’t guess.

Even if you would be allowed to provide Even if you would be allowed to provide the information if you knew it, you must the information if you knew it, you must say “I don’t know” if you are not sure.say “I don’t know” if you are not sure.

Refer these questions to a supervisor.Refer these questions to a supervisor.

Examples of state guidelinesExamples of state guidelines

Staff can explain court rules and Staff can explain court rules and proceduresprocedures

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

Examples of state guidelinesExamples of state guidelines

Staff can provide information about Staff can provide information about past rulings in a casepast rulings in a case

Staff cannot predict what the court will Staff cannot predict what the court will dodo

Examples of state guidelinesExamples of state guidelines

Staff can provide cites to (or copies of) Staff can provide cites to (or copies of) statutes, court rules, and ordinancesstatutes, court rules, and ordinances

Staff cannot provide an analysis or Staff cannot provide an analysis or interpretation of statutes or ordinances interpretation of statutes or ordinances based on the specific facts of a based on the specific facts of a litigant’s caselitigant’s case

Examples of state guidelinesExamples of state guidelines

Staff can explain what records are kept Staff can explain what records are kept by the court and can be made available by the court and can be made available to the publicto the public

Staff can provide public case Staff can provide public case informationinformation

Staff cannot provide confidential case Staff cannot provide confidential case informationinformation

Examples of state guidelinesExamples of state guidelines

Staff can explain how and where to file Staff can explain how and where to file a complaint concerning a judge, court a complaint concerning a judge, court employee or private attorneyemployee or private attorney

Staff cannot provide opinions about the Staff cannot provide opinions about the conduct of a judge, court employee or conduct of a judge, court employee or private attorneyprivate attorney

Examples of state guidelinesExamples of state guidelines

Staff can provide general referrals to Staff can provide general referrals to other offices or personsother offices or persons

Staff cannot provide referrals to other Staff cannot provide referrals to other offices or persons based upon offices or persons based upon personal preferencespersonal preferences

Examples of state guidelinesExamples of state guidelines

Staff can provide forms and Staff can provide forms and instructions, and record on the forms instructions, and record on the forms information provided by the litigantsinformation provided by the litigants

Staff cannot provide or suggest the Staff cannot provide or suggest the information that should be entered on information that should be entered on the formsthe forms

Guidelines are not enoughGuidelines are not enough

Clerks need procedures manuals to which Clerks need procedures manuals to which they can refer for correct answers to they can refer for correct answers to procedural questionsprocedural questionsWebsites can be of great help to court Websites can be of great help to court staffstaffClerks need standard handouts on FAQs, Clerks need standard handouts on FAQs, such as service of processsuch as service of processClerks need trainingClerks need trainingClerks need customer service skillsClerks need customer service skills

Unauthorized Practice of LawUnauthorized Practice of Law

One purpose of state and individual court One purpose of state and individual court guidelines is to authoritatively provide that guidelines is to authoritatively provide that giving legal information is not practicing giving legal information is not practicing lawlaw

Vermont Attorney General opinionVermont Attorney General opinion

Weight of authority is growingWeight of authority is growing

Not aware of any contrary examples or Not aware of any contrary examples or precedentsprecedents

Ensuring that an attorney-client Ensuring that an attorney-client relationship does not existrelationship does not exist

Existence of attorney-client relationship is Existence of attorney-client relationship is established by the established by the client’sclient’s reasonable reasonable interpretation and expectationsinterpretation and expectations

Need to make clear that a staff member, Need to make clear that a staff member, particularly an attorney, is not providing particularly an attorney, is not providing legal advice or representing the assisted legal advice or representing the assisted partyparty

California’s Family Law Facilitator California’s Family Law Facilitator ActAct

§ 10013§ 10013– No attorney-client relationship is createdNo attorney-client relationship is created– The family law facilitator shall give The family law facilitator shall give

“conspicuous notice” that no attorney-client “conspicuous notice” that no attorney-client relationship existsrelationship exists

– The notice shall advise that communications The notice shall advise that communications are not privileged and that the family law are not privileged and that the family law facilitator may provide services to the other facilitator may provide services to the other party in the caseparty in the case

Legal Obligation to Perform Legal Obligation to Perform CompetentlyCompetently

Whether or not a lawyer-client relationship Whether or not a lawyer-client relationship exists, any person, including a public exists, any person, including a public servant, has a duty of reasonable care in servant, has a duty of reasonable care in the performance of his or her jobthe performance of his or her job

Public servant liability depends on the Public servant liability depends on the specific provisions of state law, including specific provisions of state law, including tort claims act, governmental immunity, tort claims act, governmental immunity, and judicial immunityand judicial immunity

Application to Legal Services Application to Legal Services StaffStaff

Giving legal information onlyGiving legal information only

Can be provided by lawyer or non-lawyer staffCan be provided by lawyer or non-lawyer staffCan include navigational assistance to website Can include navigational assistance to website informationinformationCan be provided to persons intending to Can be provided to persons intending to represent themselves in courtrepresent themselves in courtSame principles apply to the distinction between Same principles apply to the distinction between legal information and legal advicelegal information and legal adviceMake the limitation explicitMake the limitation explicitLiability for misinformation provided may not Liability for misinformation provided may not limited by doctrines intended to protect public limited by doctrines intended to protect public servantsservants

Application to Law LibrariansApplication to Law Librarians

Giving legal information onlyGiving legal information only

Can be provided by lawyer or non-lawyer Can be provided by lawyer or non-lawyer staffstaffCan include navigational assistance to Can include navigational assistance to website informationwebsite informationCan be provided to persons intending to Can be provided to persons intending to represent themselves in courtrepresent themselves in courtSame principles apply to the distinction Same principles apply to the distinction between legal information and legal advicebetween legal information and legal adviceLess reason to make the limitation explicitLess reason to make the limitation explicit

Application to authors and Application to authors and publisherspublishers

Giving legal information onlyGiving legal information onlyCan be provided by lawyers or non-lawyersCan be provided by lawyers or non-lawyers

Can include website informationCan include website information

Can be provided to persons intending to Can be provided to persons intending to represent themselves in courtrepresent themselves in court

Same principles apply to the distinction between Same principles apply to the distinction between legal information and legal advicelegal information and legal advice

Obligation to update information?Obligation to update information?

State limitations explicitlyState limitations explicitly (including information (including information currency)currency)

Liability for misinformation provided may not Liability for misinformation provided may not limited by doctrines intended to protect public limited by doctrines intended to protect public servantsservants

Attorney-client relationship Attorney-client relationship limited to specific tasks limited to specific tasks

(unbundled legal services)(unbundled legal services)

Limited attorney-client relationshipLimited attorney-client relationship

Ethical rules still applyEthical rules still apply– To perform competentlyTo perform competently– To maintain confidencesTo maintain confidences– To avoid conflicts of interestTo avoid conflicts of interest

Ethical obligations are limited to the tasks Ethical obligations are limited to the tasks undertaken and advice given, including undertaken and advice given, including advice (explicit or tacit) that litigant can advice (explicit or tacit) that litigant can reasonably represent him or herself on the reasonably represent him or herself on the remainder of the tasks to be performedremainder of the tasks to be performed

Limited attorney-client relationshipLimited attorney-client relationship

Must be “reasonable under the Must be “reasonable under the circumstances”circumstances”

Must have client’s informed consentMust have client’s informed consent– ABA Model Rule does not require that the ABA Model Rule does not require that the

consent be in writingconsent be in writing

““Short-term limited legal Short-term limited legal services” provided “under the services” provided “under the

auspices of a program auspices of a program sponsored by a nonprofit sponsored by a nonprofit

organization or court”organization or court”

Attorney-client relationship exists; Attorney-client relationship exists; only conflicts checking not requiredonly conflicts checking not required

Ethical rules still applyEthical rules still apply– To perform competentlyTo perform competently– To maintain confidencesTo maintain confidences

Must avoid known conflicts of interest of Must avoid known conflicts of interest of the lawyer or other members of the the lawyer or other members of the lawyer’s firmlawyer’s firm

Full Legal RepresentationFull Legal Representation

Courtroom NeutralityCourtroom Neutrality

The MisperceptionThe Misperception

Engagement = Non Neutrality andEngagement = Non Neutrality and

Passivity = NeutralityPassivity = Neutrality

An Alternative PerceptionAn Alternative Perception

Two Different DimensionsTwo Different Dimensions

Neutrality/Non-NeutralityNeutrality/Non-Neutrality

Engagement/PassivityEngagement/Passivity

ImplicationsImplications

The Real World TensionThe Real World Tension

Need for Appearance of Neutrality Takes Need for Appearance of Neutrality Takes to Passivityto Passivity

Need for True Neutrality Should Take to Need for True Neutrality Should Take to EngagementEngagement

The Resolution: Transparent The Resolution: Transparent EngagementEngagement

Non-Prejudicial EngagementNon-Prejudicial Engagement

Explanation of PurposesExplanation of Purposes

Explanation of TechniquesExplanation of Techniques

Techniques Themselves are Both Techniques Themselves are Both Transparent and Aim for Transparency in Transparent and Aim for Transparency in the Underlying Processthe Underlying Process

The procedures in the court are structured so The procedures in the court are structured so that each side has the greatest possible that each side has the greatest possible opportunity to be heardopportunity to be heard

The judge will give each side the opportunity to The judge will give each side the opportunity to explain whey there are in court, and what they explain whey there are in court, and what they want, and then tell their story, and may ask want, and then tell their story, and may ask anyone for clarification, explanation, or more anyone for clarification, explanation, or more detail. Each side has the right to object to detail. Each side has the right to object to evidence, but must give a good legal reason, evidence, but must give a good legal reason, and each side has he right to ask courteous and each side has he right to ask courteous relevant questions of the other.relevant questions of the other.

General Rule SettingGeneral Rule Setting

The judge may have to limit or cut off one or The judge may have to limit or cut off one or other party if they are drifting too far from what is other party if they are drifting too far from what is relevant to the decision that has to be maderelevant to the decision that has to be made

The judge will break the case up into steps and The judge will break the case up into steps and will explain what is happening in each stepwill explain what is happening in each step

The judge will explain at the beginning of each The judge will explain at the beginning of each step what the basis for decision will be in that step what the basis for decision will be in that step, and what the parties need to prove or step, and what the parties need to prove or undercut in order to prevail.undercut in order to prevail.

General Rule Setting - 2General Rule Setting - 2

When someone offers certain kinds of evidence, When someone offers certain kinds of evidence, the judge will explain what must be shown about the judge will explain what must be shown about that evidence in order for it to be considered. If that evidence in order for it to be considered. If those conditions are not met, then the evidence those conditions are not met, then the evidence may not be able to be considered, or may be may not be able to be considered, or may be given less weight. If the evidence is excluded, given less weight. If the evidence is excluded, the judge will not consider it. the judge will not consider it. That the other side may object to certain That the other side may object to certain evidence, or what someone is saying. That evidence, or what someone is saying. That evidence will only be ignored if those objections evidence will only be ignored if those objections go to the reliability of the evidence, or must, for go to the reliability of the evidence, or must, for some other reason that will then be explained, some other reason that will then be explained, be ignored. be ignored.

General Rule Setting -3General Rule Setting -3

The judge may decide to stop the hearing and The judge may decide to stop the hearing and recommend that one or other party consult with recommend that one or other party consult with the Self Help Center (if available), or with a the Self Help Center (if available), or with a lawyer, in order that they move forward as well lawyer, in order that they move forward as well as possible. as possible. If one party has counsel, explaining that the If one party has counsel, explaining that the attorney will, of course, be allowed to play the attorney will, of course, be allowed to play the traditional role of counsel within this structure, traditional role of counsel within this structure, but that counsel will not be permitted to but that counsel will not be permitted to inappropriately take advantage of the fact that inappropriately take advantage of the fact that only one party has counsel.only one party has counsel.

General Rule Setting -4General Rule Setting -4

Specific SituationsSpecific Situations

Direct TestimonyDirect Testimony

Hearsay TestimonyHearsay Testimony

Documentary EvidenceDocumentary Evidence

Required DocumentsRequired Documents

Failure to Meet the Elements of a CaseFailure to Meet the Elements of a Case

ObjectionsObjections

Technology and TransparencyTechnology and Transparency

Powerful Tool for TransparencyPowerful Tool for Transparency

Must Itself Be Transparently AppliedMust Itself Be Transparently Applied

Pro Se ExamplePro Se Example

ConclusionsConclusions

Rethink the Rules and CommentaryRethink the Rules and Commentary– Little Change Needed, Just ClarityLittle Change Needed, Just Clarity

Create a Broader View of Engaged Create a Broader View of Engaged NeutralityNeutrality

Keep an Eye on the Potential of Keep an Eye on the Potential of Technology to TransformTechnology to Transform