Standards for the Provision of Civil Legal Aid

Standard 3.4-1 on Representation Limited to Legal Advice

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Standard

A provider may limit its representation to providing legal advice if, in its judgment, clients will potentially benefit from the advice offered and the advice is based on the facts and the law pertinent to each client.

Commentary

General considerations

Legal aid providers frequently limit representation in selected practice areas to giving legal advice. Generally, advice clinics and hotlines are adopted because they offer an effective way to respond quickly and economically to the needs of large numbers of persons. Several kinds of legal advice may be offered:

  • Preventive advice to help clients avoid legal problems by advising them of appropriate steps to take;
  • Defensive advice regarding steps that might be taken in the face of threatened litigation or other adverse action;
  • Affirmative advice regarding how to proceed to assert a right or a claim.

This Standard governs those circumstances in which as a matter of policy, a provider determines that it will only offer legal advice about particular issues, or in selected substantive areas. It is focused on the provider's responsibilities, which arise at three levels. The first level involves the factors that are appropriate to consider in deciding to adopt delivery techniques for offering representation limited to legal advice to serve clients. Some mechanisms will be designed to offer high volume, legal advice, and others will offer more extensive advice and coaching to a smaller number of clients. How such techniques are deployed will be affected to some degree by the nature of the regional or statewide system of which the provider is a part.

The second level of responsibility entails assuring that the mechanisms operate effectively to serve clients and to meet their needs. The third is to ensure that practitioners offering the service do so consistent with their professional responsibilities and are aware of the options available to assist clients.

A number of delivery techniques are covered by this Standard. Those include: 1) hotlines; 2) specialized components of a provider that are set up specifically to give legal advice, either as part of the intake process or as a free standing unit of the provider; and 3) web-based advice where the advice is given after an inquiry into the facts and circumstances of the individual seeking the assistance, either by means of an on-line interview with a practitioner or by the inquirer posting a question that is answered by return e-mail.

Ethical considerations

As with all limited representation, when assistance is limited to legal advice, clients need to be informed of the limitations of the representation, including what assistance is not being provided and the risks if the advice is not followed. It is essential that clients be advised of the steps they are expected to perform, and that the provider will not undertake on their behalf. The giving of legal advice creates an attorney-client relationship when the advice given is tailored to the specific facts and circumstances of the person making the inquiry.

The provider and practitioner, therefore, have the same responsibilities that are owed to any client. The representation offered must be competent; that is, it must be based on the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary to be responsive to the client's situation. The advice must be based on an interview that probes adequately into each client’s situation to determine the pertinent facts. The advice must be given by an attorney or paralegal with appropriate training or experience in the provision of legal advice. A paralegal giving legal advice must do so under the direction of an attorney.

There is also a responsibility to be diligent about responding to the client's needs and interests. That means that the provider and practitioner also have a responsibility for assuring clients can make reasonable use of the advice that is offered. The Comment to Model Rule of Professional Conduct 1.2 authorizing limited representation specifically notes that a brief telephone consultation is appropriate for "a common and typically uncomplicated legal problem," but that such a limitation "would not be reasonable if the time allotted was not sufficient to yield advice on which the client could rely."

How potential conflicts are addressed may vary in systems such as hotlines, advice clinics and pro se counseling programs where there is a high volume of interaction and usual only one relatively brief contact with the client. Generally, it is not feasible to screen systematically for conflicts of interest and the person giving the advice would not, in fact, have access to information from or about the other party. Unless the practitioner knows that giving the advice does involve a conflict of interest, therefore, the fact that an adverse party was a client of the provider does not disqualify the provider from offering the legal advice, as long as it is given in the context of short term, limited representation. This is an area of evolving law and the provider should be aware of the ethical requirements in the jurisdiction in which it operates and abide by them.

Responsibilities of the provider

The underlying duty to offer advice on which clients can rely generates two important responsibilities for providers. The first is to make an informed decision that clients generally can take advantage of the advice offered. The second is to have systems in place to increase the likelihood that each client will be able to act effectively on the advice that is given.

Establishment of high volume, advice only systems. The provider has a responsibility to make an informed decision that offering advice on a large scale will be beneficial to the client communities it serves. The considerations set forth in the commentary to Standard 3.4 on Limited Representation apply here. In particular, based on its knowledge of client communities, the provider needs to exercise sound judgment regarding which recurring substantive issues will be appropriate for advice only. Some broad categories of substantive issues may be selected as areas in which only advice will be offered. Thus, for example, a provider might decide that it will only offer advice in all matters involving uncontested divorces. Or a provider might determine that in some areas, it will decide to limit its assistance based on the actual circumstances of the persons seeking help. It might determine, for instance, that in eviction matters for non-payment of rent, it will only offer advice if the client does not have any way to pay the arrearages, because of the small likelihood of prevailing on the merits, even with full representation. To identify which matters are appropriate for advice only, based on the specific, though common, situations of clients, the provider needs an intake system that is able quickly to obtain the pertinent facts in each applicant’s situation, so that the appropriate disposition of each matter can be made.

A variety of factors should be weighed in determining areas that are appropriate for representation limited to advice only. The factors include the complexity of the pertinent law and procedure, the likelihood that its clients will be able take steps necessary and the potential loss to clients if not fully represented.

The provider should also periodically evaluate the degree to which clients it has served have been able to follow the advice offered and have benefited from it. Periodic follow-up interviews of a small sample of clients, or a review of court files, for example, can uncover invaluable information about the actual outcomes for clients.

If the provider finds that clients generally have not been able to take advantage of the advice they have been given, it needs to consider changes in its approach. It should not continue to expend scarce resources operating in a way that does not actually benefit clients. The alternatives might range from 1) changing the way it gives advice and follows up on it; 2) to offering a higher level of limited representation, such as assistance preparing documents, making a phone call on the client’s behalf or coaching; or 3) to offering full representation to some or all clients in the substantive area. Or the provider might decide it is not a prudent use of its resources to continue to provide assistance in that substantive area. The decision whether to change, expand, or abandon assistance in a substantive area should be determined by the relative importance of the issue to clients, the relative cost of increasing the level of service offered, the availability of other resources to the clients, and the gravity of the risk to clients, if assistance is not offered in the area.

In some circumstances, the process for interviewing clients and offering them advice is integral to the intake process. The resources will be expended, in any case, to interview applicants and analyze their situation, so that the costs of offering advice for clients that will not be fully represented may be marginal. The provider could, therefore, appropriately decide to continue to offer advice to clients whom it does not fully represent. Clients should not, however, be given advice that they are unlikely to be able to follow. Rather they should be advised regarding likely developments in their situation and the steps they should take to mitigate the possible loss.

Quality assurance systems. Because it is difficult in advice only systems to determine if the assistance offered is actually benefiting each client, it is essential that a provider have processes in place for assuring the quality of the advice given. The provider should have supervisory systems that routinely review notes which set forth the facts and legal conclusions pertinent to the client’s circumstances and the advice given, to confirm that the advice is appropriate. There should also be a system for review of common issues and patterns to determine if other forms of assistance might be appropriate, including systemic advocacy.

Reducing the advice to writing. For a client to act on legal advice, it is essential that the individual understand the advice and the steps that need to be taken. Advice that may seem simple to a practitioner may be confusing to a client who is unfamiliar with the law and is apt to be anxious about the circumstances that give rise to the legal problem. Reducing the key points of the advice to writing is the best way to assure that there is clear communication. Such writings may be in the form of a letter to the client, a brochure or a pre-prepared form that covers the key points of the advice given orally.

It will not always be appropriate for a provider to give the advice to the client in writing. Circumstances in which it would not be appropriate to send a follow-up letter or otherwise communicate in writing with a client, include when the client who is a victim of domestic violence would be vulnerable to dangerous, possibly life threatening retaliation if written advice were to be intercepted. Similarly, providers offering advice on domestic relations matters need to be conscious of the fact that the parties may still live together, and the danger of interception would be extremely high, with potentially serious consequences.

Similarly, there may be circumstances when advice would have to be acted on before it could be provided to the client in writing. Some clients may have no practical way to receive the writing by mail or other means.

Responsibilities to individual clients

As with all forms of limited representation, some clients will be better able to take advantage of advice that they are given than others. Many factors, including education, culture, language, employment circumstances, emotional stability and personal self confidence will affect that degree to which each client is able to act on the proffered advice. In many circumstances, the practitioner giving the advice will not be able to know the extent to which the individual being advised will be able to follow the advice successfully. In other circumstances, it will be apparent in the course of the interview that the client will be unable to follow through as necessary.

A provider has a responsibility to ensure its practitioners understand their professional responsibilities and are proficient in giving advice that is appropriate to the client's circumstance and the objective that the individual seeks. The practitioner should inform the client about the likely developments that the individual will face and practical steps that should be taken to mitigate their effect. It calls for sound professional judgment on the part of the advising practitioner to decide what advice will be most useful, based on the client’s objective, the pertinent law and the client’s ability to act on the advice.

The practitioner should also be aware of alternatives that are available for clients who appear unlikely to be able to act on the advice given. The commentary regarding "Responsibility to individual clients" in Standard 3.4 on Limited Representation is appropriate here. Possible alternatives are a function of available resources and range from offering full representation, if possible; to offering more extended, though still limited representation; to referring the client to other sources of legal and social help.