While there is broad agreement that there should be a clear verbal distinction between he adversarial/advocacy services provided by lawyers, and the neutral services provided by courts and others to assist litigants navigate the system, there is less complete agreement about what the best words to make that distinction are.
As a general matter, the usual distinction made is between information and advice, but some of us find both that the word information may be needlessly limiting, and that the use of the word “advice” to describe what cannot be done may have too restrictive an impact.
I have previously suggested the “not-malpractice” test, “If two lawyers can give you different answers to a question, and both are right, and neither is committing malpractice, that is the practice of law.” It’s a fun formulation, but has been criticized for suggesting that you have to be a lawyer to understand what lawyers can do — a fine principle if you want to frighten everyone but lawyers away from the border areas, but a terrible one if you want to encourage court staff to help. The core idea is that it is not non-neutral to tell someone a fact — provided you make that fact available to all.
So we are left with the question of what words to use — and what goals they should reflect.
The Association of Canadian Court Administrators, in their recent report, Addressing the Needs of Self-Represented Litigants in the Canadian Justice System, takes a new and potentially very helpful approach.
The legal information/advice distinction upon which court staff have traditionally relied when dealing with SRLs should be rejected in favour of a more service-oriented approach based on the notion of “meaningful legal assistance.” Principles and guidance should be developed and provided to court staff in order to empower the provision of legal assistance to SRLs. While this recommendation is designed to empower court staff to provide more meaningful and immediate assistance to SRLs, it does not suggest that court staff should become advocates or provide legal “advice” which are important services reserved for lawyers (and potentially other legally trained professionals.)
At pages 30 to 40, the Report goes into detail about various guidelines and supports a multi-option triage model modified from John Greacen’s Fifty State Report.
I very much like the phrase “legal assistance,” as it provides more flexibility. I think I might be even more comfortable with the phrase “neutral legal assistance,” since it combines the idea of help with the point that the help is not in the interest of one side over the other, but of the process working for all.
Interestingly, I do not see much difference between the specific examples suggested in the Appendix to the Report and those often used in the US under the information/advice distinction.
Here are some things, all of which I personally think should be considered appropriate, and which might be considered “neutral legal assistance,” but not advice.
- Explaining to a litigant what is in a court file.
- Explaining why a case is not moving, and what has to be done to get it moving.
- Calling a different court to find out what is happening in a case, and to get a document sent to the requesting court.
- Explaining what kinds of things a judge is looking for in the answer to a particular question in a form (preferably citing to the law, reading from it, or from a previously developed information sheet.
- Explaining what form should be used in a particular situation (assuming that is, that there are no tactical or strategic judgements involved, which would be inappropriate for a neutral role.)
- Describing the factors that a judge will consider in making a judgement (again preferably by reading from, or pointing to, a statute, or previously drafted instruction sheet
- Giving people examples of how others have completed forms, or presented facts to the court, provided the same examples are given in all broadly general situations. (I.e. not making or suggesting a personal judgement about how to present a particular case.
- Pointing out when something that is written is unclear or ambiguous, or when it is not responsive to the question. (But only if that is done for everybody not only for certain favored litigants.)
No everyone might agree about these examples. I offer them not as a statement of law in any jurisdiction, but as my own view as to what we should be included in the words we choose. And, of course, none of the above should be done by people who do not know what they are doing. Training is crucial.
Of course, I welcome discussion both about the words we use, and these and other possible examples.