How can I be clear about the difference between legal advice and legal information?
Service providers often provide women with information about family law and the family court process, which is of critical importance but is distinct and different from giving legal advice. Workers must be clear with the client that they are providing information only, not legal advice.
This is, as you are already well aware, easier said than done. Despite your best efforts, the women to whom you are providing this information may not always understand the distinction between legal advice and legal information.
If the woman does not have a lawyer, you may be her sole reliable source of information and so she may rely on what you tell her as though it were legal advice.
It is not always easy to draw a clear line between what is information and what is advice to a woman who is unfamiliar with family law and is desperate for someone to tell her what she should do. For example, describing the pros and cons of seeking sole vs joint custody can sound to the woman like you are suggesting (i.e. advising) her to do one or the other, even though what you are actually doing is informing her about the different options available to her.
Women leaving abusive relationships are used to being told what to do, so even if you are being as clear as you think you can about the fact that you are giving information and not advice, she may hear it as you telling her what she should do.
The CLEO Centre for Research and Innovation describes legal information as:
- General information about the law that does not apply to an individual’s specific situation
- Helping a person understand when a problem is a legal problem
- Discussing options and possible next steps, including when and where a person can get more help, including legal advice
CLEO describes legal advice as:
- An interpretation of the law and legal rules and principles to a particular situation
- Being specific to an individual’s specific situation
- Providing recommendations to a person about their options based on an assessment of how the law applies to their specific situation and what that person wants to achieve
Here are some tips for communicating this to a woman you are working with:
- Tell her at the beginning and throughout your work with her that you are not a lawyer and you are not giving her legal advice
- Discuss options available to her to get legal advice – apply for a legal aid certificate, speak with duty counsel, retain a lawyer with her own money – and assist her in pursuing whichever of these is appropriate for her
- Provide her with a 2-hour Family Violence Authorization Form, if she qualifies, so she can get some legal advice right away
- Focus on providing her with information about the family court process and related services; for example, explaining to her the steps in a family law case, letting her know how mediation works, telling her which forms she needs to complete, informing her about what happens at a settlement conference, etc.
- Refrain from being overly specific when you are talking about the law
- Speak in the third rather than second person when talking about options and pros and cons of different approaches to her case. For example:
“It is very difficult to get an ex parte order for custody. Women need to have detailed evidence of extreme concern about the safety of their children.”
NOT “It will be very hard for you to get an ex parte custody order. You need to have detailed evidence of extreme concern about the safety of your children.”
You can still work with the woman to assist her in putting together her evidence, but you have stayed away from language that could leave her thinking you are commenting on her particular facts and situation.
“The women we have worked with have found they often get better outcomes when they provide detailed information about the abuse they have experienced in their court documents.”
NOT “You will get a better outcome if you provide detailed information about your abuse.”“Many women have not found mediation helpful.” OR “Many women in situations similar to yours have found that…”
NOT “Given your situation, I don’t think mediation is a good option for you.”As much as possible, encourage women to speak with a lawyer to get the specific legal advice they need. For example, you could say: “There are pros and cons to applying for sole custody. I can review some of them with you, but then you should discuss them with a lawyer before you make a final decision about what you want to do. Only a lawyer can give you the legal advice you need to make the best decision possible for your situation.”
“I am not a lawyer. I can tell you how the court system works and can give you some basic information about the family law issues you are dealing with, but I cannot give you legal advice. I cannot tell you what you should do. Only a lawyer can do that, so once you have some information from me, you should speak with a lawyer.”
- Encourage the woman to think of you and her lawyer as a team. Explain your two roles to her:
“My role is to support you throughout your family law case. I can give you information about family court process, basic information about family law issues, help you with safety planning, assist you in putting together information about the abuse you have experienced, help you prepare for and debrief from meetings with your lawyer and refer you to any other services you might need. I am not a lawyer and I cannot give you legal advice. Your lawyer will collect detailed information about your family and situation from you, find out what legal outcomes you want, give you advice about what legal options are and are not available to you and then handle your case. I can help you have a productive relationship with your lawyer by assisting you prepare for your appointments, helping you do the follow up work your lawyer asks you to do, giving you emotional support and advocating for you when you ask me to. Our roles are very different, but they complement one another so that you can get the best possible outcomes in your case.”
It is also important to keep your own biases in check when talking about family law and family court process with a woman.
For example, no matter how much you personally think mediation is not appropriate in cases of intimate partner abuse, you need to be able to describe what mediation is objectively, point out pros and cons of mediation and then accept whatever decision the woman you are working with makes.
Despite all your best efforts, there is no way to ensure that the women you are working with will always understand that your role is to provide legal information not legal advice. You need to have a standard process, that you document, that sets out how you tell women that you do not provide legal advice. It would be helpful if that process includes a plain language description of both legal information and legal advice (for example, the definitions above that were developed by CLEO).
Then, when a woman says to you: “But you told me to do . . . “ you can refer to this and remind her that you provide legal information and not legal advice.