The Third Branch
Legal information vs. legal advice by court staff
By Sharon Millermon, Barron County Clerk of Circuit Court
Editor's note: Court officials in Barron and Eau Claire counties have written nearly two dozen public education columns for local newspapers since launching the "Community Communications" outreach project in 2012. The program was developed after Barron County Circuit Court Judge James C. Babler, Clerk of Circuit Court Sharon Millermon and Eau Claire County Clerk of Circuit Court Kristina Aschenbrenner attended Improving Rural Courts: A Network Approach in Napa, Calif., Oct. 23-26, 2011. This article was distributed for publication during February 2014. Previous columns are posted on CourtNet under Publications and Manuals and the Courts Connecting with Communities heading.
Throughout the state, more individuals are coming to court offices without an attorney. Court staff have an obligation to explain court procedures to court users and are expected to provide the best customer service possible for all individuals to have access to justice without giving legal advice.
Court staff may not provide legal advice for the following three reasons:
- Neutrality: Staff cannot suggest a particular course of action. If they were to do so, court staff would risk favoring one party over the other.
- Impartiality: Court staff may not provide or withhold assistance for the purpose of giving one party an advantage over another.
- Unauthorized Practice of Law: Laws prohibit the unauthorized practice of law. Only attorneys licensed by the state are permitted to practice law and give legal advice.
Wisconsin Supreme Court Rule 70.41 sets forth the dos and don'ts, but the line between legal information and legal advice is not always clear for court staff. Please note the examples below indicate what court staff shall provide and also what court staff may not provide:
- Court staff shall provide general procedural information, but may not provide specific procedural advice. Court staff cannot advise an individual to take a specific course of action. Court staff cannot answer the question, "What would you do?" Court staff cannot advise whom to file an action against, the amount to claim or to appeal a judge's decision. Court staff may not predict the outcome of a case, strategy or action.
- Court staff shall provide definitions of legal terms, but court staff may not discuss if, how, or why a term relates to an individual's particular situation.
- Court staff shall provide information on where to find statutes, but may not provide advice on statutory relevance or conduct legal research. Court staff may not advise whether a particular statute is applicable or interpret the statute and apply it to an individual's case.
- Court staff shall provide county and state approved forms and instructions, but may not fill out the form (unless assisting someone who is disabled) or recommend information to be included or how it should be stated.
- Court staff shall provide information about court deadlines, but may not calculate court deadlines. Court staff may inform an individual that an Answer in a civil action must be filed within 20 days, but cannot indicate a specific date on which it is due.
- Court staff shall provide general referrals to lawyer referral service phone numbers or other resources known to staff, but may not provide specific or biased referrals to a specific attorney based on the facts of a particular case.
Court staff must also guard against ex parte communication (only one side is present). Neither parties nor attorneys may communicate with a judge without the other side present. Often individuals will request to speak to a judge individually believing if the judge only heard what they had to say, the judge could solve the problem/issue immediately. The judge can see a party only at a hearing or trial when the other side is also present.
Individuals who come to the courts seeking legal assistance can be assured court staff will do the best job possible in providing legal information, but not legal advice.
For more information, the Director of State Courts Office has published a guide for court staff entitled, Legal Information vs. Legal Advice.