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giving legal advice

giving legal advice

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giving legal advice

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  1. giving legal advice working with pro se litigants without how to give legal information

  2. “We cannot give legal advice.”

  3. This session will help judges and court personnel: • Learn the difference between legal information and legal advice • Learn ways to interact with pro se litigants • Find helpful resources

  4. The Pro Se Challenge Pro Se litigants can: • Slow down the process • Place unfair burden on courts and staff • Create ethical problems

  5. Whycan’t judges, clerks, and court personnel give legal advice?

  6. Ethical Obligations Remain neutral and impartial

  7. Ethical Obligations Canon 3B(5): “A judge shall perform judicial duties without bias or prejudice.” Ethical Obligations

  8. Unauthorized Practice of Law Only attorneys licensed by Supreme Court of Texas may give legal advice (§81.101, Tex. Gov’t Code)

  9. What happens with a vague standard? • Less information • Inconsistent practices • Unequal treatment

  10. What is legal advice? • Interprets law, rules or procedure • Recommends a specific course of action • Applies the law to specific facts

  11. What is legal information? Facts about the law and the legalprocess

  12. How can I tell if a question is calling for legal advice? Legal information Legal advice

  13. Facts (Information) Opinion (Advice) “Who” “What” “When” “Where” “How” “Should” “Whether”

  14. You may: • Provide information and explanation about court process • Recite common laws, rules and procedures • Explain terms used in court process • Give options as to all pleadings that are appropriate at a certain stage

  15. You may (cont’d): • Answer questions about deadlines • Act as a “scribe” by writing on forms only a verbatim transcription of litigant’s words (e.g., blind or disabled litigant) • Refer court users to law library or www.TexasLawHelp.org • Review court file and pleadings for completeness and tell litigant what is missing

  16. You may NOT: • Recommend a specific pleading to file • Recommend wording for a pleading or form • Recommend claims, parties, damages, or arguments

  17. You may NOT (cont’d): • Recommend evidence or objections • Recommend whether to ask for a continuance • Recommend whether parties should try to settle

  18. You may NOT (cont’d): • Interpret application of statutes • Perform legal research for a party • Predict the outcome

  19. What can you provide? Yes No Recommend next steps Provide information and explanations about court procedures

  20. Question Can you tell me how to file a small claims action?

  21. Answer Fill out a sworn small claims affidavit and file it with the clerk’s office. The clerk will issue a case number and paperwork called the citation. Tell the clerk where the…

  22. … person you are suing can be found because they must be served before the court can grant you relief. The small claims form is on the court’s website.

  23. Question The laundry I sued sent the judge a paper about my lawsuit. I want to tell the judge how they’re wrong. How do I do that?

  24. Answer I can’t tell you what would be best for your situation, but you have two options. You can talk to the judge at the hearing or put the information in writing, file it in the clerk’s office, and give a copy to the laundry.

  25. What can you provide? Yes No Research statutes, court rules and ordinances Cite statutes, court rules and ordinances

  26. Question I want a jury for my case. What should I do?

  27. Answer Under Rule 544 of the Rules of Civil Procedure, you have to ask for a jury and pay a jury fee of $5.00.

  28. Question What are the laws on eviction?

  29. Answer I can’t perform legal research for you. You can contact an attorney or do the research yourself. If you want to do the research yourself, check out www.TexasLawHelp.org and go to the Housing section. You will find information on eviction there.

  30. What can you provide? Yes No Restricted or confidential information about court operations General information about court operations

  31. Question I need to talk to the judge. Where is his office?

  32. Answer The judge only talks with all parties to a case at the same time. I can help you schedule a hearing with the judge so both sides can be present. He has court on Monday through Thursday.

  33. What can you provide? Yes No Analysis or interpretation of legal terms based on facts of case Explanation of legal terms

  34. Question My neighbors leave their kids at home all day without supervision. Isn’t that neglect?

  35. Answer I’m not an attorney or a judge and can’t make that legal determination. However, I can refer you to Child Protective Services. If you’re concerned that the children are in danger, contact law enforcement.

  36. Question What is “service of citation”?

  37. Answer “Service of citation” means giving the other party legal notice that you have filed a case in court. It is not enough to tell them about the case. You must follow the Texas Rules of Civil Procedure in giving notice.

  38. What can you provide? Yes No Recommend a specific pleading to file Give options as to all pleadings that are appropriate at a certain stage

  39. Question I just got served with a case filed by my landlord. What should I do?

  40. Answer You have three options, you can file an answer, you can try to work out an agreement with your landlord, or you can do nothing.

  41. What can you provide? Yes No Recommend what information should be put on the forms Forms and instruction kits and verbatim transcription of litigant’s words

  42. Question I loaned a friend some money, and he won’t pay me back. How do I sue him?

  43. Answer The Texas Law Help website has forms and instructions for small claims lawsuits. Go to www.TexasLawHelp.org and click on “Consumer” and then “Small Claims Court.”

  44. Question My friend won’t pay back a loan, and I’m going to sue. He hasn’t paid back another loan from 2 years ago. Can I add that one to the amount I put on the form?

  45. Answer I can’t help you decide what to put on the form. You can ask an attorney or visit a legal clinic. Information about legal clinics is on the court’s website. If you have access to a computer, you can use Live Chat on the Texas Law Help website.

  46. What can you provide? Yes No Subjective or biased referrals General referrals

  47. Question I asked my landlord to make some repairs, and now he’s trying to evict me. Do you have an attorney you can recommend?

  48. Answer I can’t recommend a specific attorney. I can give you the numbers for the local lawyer referral service and the State Bar. When you call, be sure to tell them you need an attorney specializing in Landlord-Tenant Law.

  49. Ex Parte Communications Judges and court personnel must avoid ex parte communications.

  50. Ethical Obligations Canon 3B(8): “…A judge shall not initiate, permit, or consider ex partecommunications or other communications made to the judge outside the presence of the parties …”