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LEGAL ADVICE OR LEGAL INFORMATION?

LEGAL ADVICE OR LEGAL INFORMATION?. AVOIDING THE UNAUTHORIZED PRACTICE OF LAW. WHY TALK ABOUT IT? . Know boundaries Serve victims Share information with clients without fear of UPL

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LEGAL ADVICE OR LEGAL INFORMATION?

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  1. LEGAL ADVICE OR LEGAL INFORMATION? AVOIDING THE UNAUTHORIZED PRACTICE OF LAW

  2. WHY TALK ABOUT IT? Know boundaries Serve victims Share information with clients without fear of UPL Open the door to educate yourself about the law without being afraid to repeat what you know

  3. WHO CARES ABOUT UPL? The Colorado Supreme Court and its Office of Attorney Regulation Counsel (OARC). http://www.coloradosupremecourt.com/Complaints/Complaints_Disc.asp

  4. WHAT HAPPENS? Complaint filed with OARC Investigation conducted Findings made (“guilty” or not) Discipline carried out by Sup. Ct. UPL Committee or by Sup. Ct., depending on circumstances and type of discipline imposed.

  5. TYPES OF DISCIPLINE • Reprimand and written agreement to “cease and desist” • Injunctive Proceedings (court order) • Can include client refund, restitution, fines and costs • Contempt Proceedings • Violation of prior injunction • Fine of $2000 or more per incident • Loss of professional license • Criminal prosecution for fraud, theft, official misconduct, and/or criminal impersonation • Colorado Deceptive Trade Practices Act or other consumer protection law

  6. HOW WILL OARC FIND OUT? A complaint must be made. Likely sources are opposing parties or offenders who are mad about assistance victim is receiving. Could come from a victim who got bad advice or is encouraged to do so by an attorney. No cases in Colorado involving advocates, but one serious case involving a social worker who actually represented parents in court. People v. Shell, 148 P.3d 162 (Colo. 2006). There is no special protection for advocates in Colorado.

  7. SO WHAT IS “THE PRACTICE OF LAW?” Defined by the Colorado Rules of Civil Procedure Rule 201.3(b)(i) and (ii) state, in part: “For purposes of this rule, ‘practice of law’ means:…furnishing legal counsel, drafting documents and pleadings, and interpreting and giving advice with respect to the law, and/or preparing, trying or presenting cases before courts, executive departments, administrative bureaus or agencies…”

  8. ACTS THAT MAY CONSTITUTE THE “PRACTICE OF LAW” Giving legal advice without the supervision of an attorney Interviewing clients and analyzing and explaining legal rights Soliciting clients to offer advice or assistance in completion of forms Negotiating claims on behalf of others and advising concerning their rights and liabilities and whether to accept a settlement offer Undertaking legal research and drafting legal documents Conducting unsupervised legal presentations and answering legal questions

  9. OTHER EXAMPLES Offering legal advice about a specific case. (People v. Shell) The application of legal principles and judgment to the circumstances or objectives of another person. (ABA) Offering advice or judgment about legal matters to another person for use in a specific legal setting. An attorney who “aids” or “assists” in UPL could be liable as well.

  10. WHAT CAN YOU DO? PROVIDE LEGAL INFORMATION: Tell someone what a statute/rule says. Tell someone the elements of a crime. Tell someone what their rights are pursuant to statute. Give someone general information about a particular legal or policy issue. Provide information about the judge or jurisdiction (but not what to say or where to file). Provide forms/explain forms needed. ALWAYS give a disclaimer that you are not an attorney and cannot give legal advice. ALWAYS refer to an attorney when appropriate.

  11. WHAT CAN’T YOU DO? GIVE LEGAL ADVICE: Tell someone what the statute means in their particular case. Tell someone what crime should be charged based on the elements. Tell someone how their rights should be enforced, other than referral to the appropriate person or agency. Tell someone how a specific legal or policy issue will impact their case. Recommend a particular legal path or strategy. (i.e. District vs. County Court)

  12. BOTTOM LINE It’s okay to give legal information, but not legal advice to others. Are you applying the law to the facts? That’s what lawyers do! A person can always represent themselves (pro se) and act as their own attorney, with or without a law license. There is nothing to stop advocates from learning the law and educating themselves.

  13. DANGER ZONES • STATUTES OF LIMITATIONS • Tremendous liability in giving the wrong information • Attorneys can be sued if client misses deadline, so very likely advocates will be in trouble. • VICTIM RIGHTS ACT • Probably a lot of wiggle room, but stay within the information/advice guidelines • Refer to the experts at DA’s office, DCJ, RMVLC. • CIVIL SUITS • MANDATORY REPORTING SITUATIONS • NON-ENGLISH SPEAKING, THOSE FROM OTHER COUNTRIES, THOSE UNFAMILIAR WITH LEGAL SYSTEM

  14. WHAT’S THE HARM? Victim may believe the advocate is an attorney by virtue of legal assistance given. Victim may believe she has retained the services of an attorney. Victim may believe communication is confidential when it’s not. Victim could suffer serious legal consequences if given erroneous information Victim’s opportunities for redress are limited – attorneys can be sanctioned, nonlawyers can’t.

  15. TIPS AND CAVEATS Don’t live in fear of crossing the line. You will do yourself and the victims you serve a disservice. Ask yourself, “Am I tailoring my answer based on this client’s situation, or could I give this same answer to anyone?” It is NOT okay to ask a lawyer, then share the information with your client unless you are acting under that lawyer’s supervision This could get you AND the lawyer in trouble.

  16. The critical factor in determining whether legal advice or other legal assistance constitutes the unauthorized practice of law is whether the legal advice is tailored to the needs of a specific person. Application of the law to a client’s particular situation or circumstances, providing a legal analysis of the strengths and weaknesses of a person’s legal case, or the recommendation of a course of action for a particular person are examples of conduct which clearly falls outside the scope of permissible conduct by nonlawyers and constitutes the unauthorized practice of law. By contrast, providing general legal information, copies of statutes, or copies of standard court forms is permissible. Ohio State Legal Services Association, Unauthorized Practice of Law in Domestic Violence Cases (2002). Emphasis mine.

  17. Jennifer Eyl, LPC, JD Rocky Mountain Children’s Law Center303-692-1165 jeyl@childlawcenter.org Alexis Freet, Esq. Project Safeguard 303-317-4157 alexis@psghelps.org

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