1. 2010 CALIFORNIA CONFERENCE ON SELF- REPRESENTED LITIGANTS APRIL 29-30, 2010 JOHN M. GREACEN GREACEN ASSOCIATES, LLC Legal Information and Legal Advice The Hard Situations

2. General Rules and Principles

3. State and Federal Guidelines Arizona California Florida Idaho Iowa Michigan Missouri New Mexico New Jersey New York Utah Washington Wisconsin Federal Judicial Center training materials

4. 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 10.960 2008 Guidelines for the Operation of Self-Help Centers in California Trial Courts

5. 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

6. 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

7. 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

8. Ethical Obligations of Court Staff To remain impartial  with respect to parties in a case  with respect to lawyers in the community To maintain confidential information To avoid ex parte communications To perform competently

9. Definitions Legal information Facts about the law and the legal process Legal advice Advice about the course of action a client should take to further his or her own best interests

10. General Guidelines Legal information Staff should answer questions that call for factual information – questions that start with “who,” “what,” “when,” “where,” or “how.” Legal advice Staff should not answer questions that call for an opinion about what a litigant should do – questions that contain the words “should” or “whether.”

11. General Guidelines Legal information Staff should tell a litigant how to bring an issue to the attention of the court. Legal advice Staff 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.

12. General Guidelines Legal information Staff should inform a litigant of his or her options and the steps needed to carry out an option. Legal advice Staff should not suggest which option the litigant should pursue.

13. General Guidelines Legal information Educating the litigant or potential litigant Legal advice Guiding or directing the litigant or potential litigant

14. 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

15. General Guidelines How a communication is framed determines whether it is appropriate or inappropriate

16. Specific California guidelines Staff can explain court rules and procedures Staff cannot suggest which of several available procedures a litigant should follow

17. Specific California guidelines Staff can provide information about past rulings in a case Staff cannot predict what the court will do

18. Specific California guidelines 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

19. Specific California guidelines Staff can provide general referrals to other offices or persons Staff cannot recommend specific attorneys

20. Specific California guidelines 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

21. Specific California guidelines Staff can assist court users in computing filing deadlines Staff cannot advise how the statutes of limitation apply to a particular fact pattern

22. Specific California guidelines 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

23. Specific California guidelines 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

24. Module 3: Ethical Guidelines -- By the Self-Represented Litigation Network Extract From California Guideline 10: Scope of Services

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

26. 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.

27. California ethical guidelines 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.

28. California ethical guidelines 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

29. California ethical guidelines 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.

30. California ethical guidelines 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.

31. California ethical guidelines 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

32. California ethical guidelines 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

33. Applying the General Rules Principles to Difficult Situations

34. Difficult Situations DV declarations Complicated property issues Protecting litigants from themselves – e.g., pensions and retirement accounts