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Legal Information vs. Legal AdviceGuidelines and Instructions for Clerks and Court PersonnelWho Work with Self-Represented Litigants in TexasState CourtsEdited for use in Texas by: Texas Office of CourtAdministration Texas Access to JusticeCommission Texas Access to Justice FoundationTexas Legal Services CenterSeptember 2015

Table of ContentsIntroduction . 2Roles and Responsibilities of Clerks and Court Personnel . 3Why Clerks and Court Personnel Must Not Give Legal Advice, But Should Provide LegalInformation. 4What is Legal Advice?. 5What is Legal Information? . 5What is Ex Parte Communication? . 6Quality Service: Strategies for Answering Difficult Questions . 7Procedural Explanations vs. Procedural Recommendations . 8General Information about Court Operations vs. Confidential or Restricted Informationabout Court Operations . 9Explaining Legal Terms vs. Providing Legal Interpretations . 9Providing Forms and Approved Instructions vs. Filling Out Forms . 10Public Case Information vs. Confidential Case Information . 11Options vs. Opinions . 13Citing Statutes, Court Rules and Ordinances vs. Researching Statutes, Court Rules andOrdinances. 14General Referrals vs. Subjective or Biased Referrals . 14Permissible vs. Impermissible Forms of Ex Parte Communication. 15AppendicesHandout/Sign: What Clerks and Court Personnel Can and Cannot Do. . 17Resources and Referral Information . 18Page 1

IntroductionEach year thousands of people represent themselves in Texas courts. It is crucial that clerks andcourt personnel understand how to help the self-represented without giving legal advice. Thismanual will help explain the difference between legal information and legal advice.You are the face and voice of justice in Texas. How you respond to questions about the court systemaffects how people feel about justice, as well as their access to justice. If someone does notunderstand how to use the court system, and you do not provide available and needed information,that person may be denied access to the courts and to justice.This manual is specifically intended for the use of clerks and court personnel who providetelephone and counter assistance. It is recommended that you keep the manual in a place where itis easily accessible. Of course, it cannot anticipate all the possible questions that self- representedparties might ask. If you are unsure if your response to a question would constitute giving legaladvice, refer to this manual. You can also check with your supervisor.The manual also contains a one-page list of some things clerks and court personnel can andcannot do (see page 17). This list is designed to be used as a handout or a sign posted at theclerk’s counter or public window so that people can read and understand the guidelines that youare required to follow.The law is complicated and confusing. Encourage people to talk to a lawyer about their situation.The Resources and Referral Information section of this manual describes a variety of ways peoplecan get help.Page 2

Roles and Responsibilities of Clerks and Court PersonnelPROVIDE ACCESS TO THE COURTS One of the basic principles of the American justice system is that the doors of ourcourthouses are open to everyone. Most members of the public, however, are not familiar with courts or courtprocedures and require some level of assistance. Access to justice is, in effect, denied if members of the public do not know how to use thecourt system, and the courts do not assist them in some meaningful way. The court is obligated to explain court processes and procedures, to provide quality service,and to provide accurate information to all members of the public. An understanding of what information can be provided to the public willsignificantly affect access to the courts and the administration of justice.PROVIDE SERVICE WITH ACCURATE INFORMATION Accessibility to the judicial system is affected by the accuracy of information provided by thecourt to members of the public, along with the manner in which it is presented. Clerks and court personnel are responsible for giving court users the service they need anddeserve by providing accurate information in a competent, cooperative, and timely manner. The public’s first and only contact with the judicial system may be with clerks and courtpersonnel, whose responses have an impact on how people view their court experience. The court should treat all court users fairly and equally: attorneys, defendants, selfrepresented litigants, and others. In other words, clerks and court personnel should feelcomfortable providing the same information to self-represented litigants that they provide ona routine basis to attorneys. All members of the public are entitled to the same information.Providing information to a lawyer that would not be provided to a self-represented litigant isnot equal. Similarly, providing information to a self-represented litigant that would not beprovided to a lawyer is not equal. Clerks and court staff should learn the rules about ex parte (one-sided) communication withthe judge, and should not let members of the public use them to circumvent that principle. Effective service may reduce the number of times court users must come to thecourthouse, and thus reduce stress on the court system. Provide accurate information because even seemingly small mistakes can affect people’slives or the outcome of court cases. It is better to be honest and say “I don’t know” thanto give incorrect information.Page 3

Why Clerks and Court Personnel Must Not Give Legal Advice,But Should Provide Legal InformationCLERKS AND COURT PERSONNEL MUST REMAIN NEUTRAL Remain neutral and do not promote or recommend a particular course of action to courtusers. Although you may have processed many similar types of cases, you do not know what is in acourt user’s best interest. Only they or their attorneys can make that determination.CLERKS AND COURT PERSONNEL MUST REMAIN IMPARTIAL Impartiality is similar to neutrality, but focuses on equal treatment of court users. Court knowledge must be shared fairly and equally. Never give advice or information that favors one side or the other. Do not disclose confidential information or become involved in or facilitate an ex partecommunication.CLERKS AND COURT PERSONNEL MUST NOT ENGAGE IN THE UNAUTHORIZED PRACTICE OF LAW Only attorneys licensed to practice by the Supreme Court may give legal advice. Do not engage in the unauthorized practice of law by providing legal advice. Even court personnel who themselves are licensed attorneys may not give legal advice tocourt users because doing so would violate the principles of neutrality and impartiality.The unauthorized practice of law statute, Section 81.101 of the Texas Government Code,states:(a) In this chapter the “practice of law” means the preparation of a pleading or otherdocument incident to an action or special proceeding or the management of the actionor proceeding on behalf of a client before a judge in court as well as a service renderedout of court, including the giving of advice or the rendering of any service requiring theuse of legal skill or knowledge, such as preparing a will, contract, or other instrument,the legal effect of which under the facts and conclusions involved must be carefullydetermined.(b) The definition in this section is not exclusive and does not deprive the judicial branch ofthe power and authority under both this chapter and the adjudicated cases to determinewhether other services and acts not enumerated may constitute the practice of law.(c) In this chapter, the “practice of law” does not include the design, creation, publication,distribution, display, or sale by means of an Internet web site, of written materials,Page 4

books, forms, computer software, or similar products if the products clearly andconspicuously state that the products are not a substitute for the advice of anattorney. This subsection does not authorize the use of the products or similar media inviolation of Chapter 83 and does not affect the applicability or enforceability of thatchapter.The above statute does not provide an exhaustive list of what constitutes the practice of law. TheSupreme Court of Texas has held that the courts ultimately decide what is and is not the practiceof law.What is Legal Advice?Court users are asking for legal advice when they ask whether or not they should proceed in acertain fashion. Telling a member of the public what to do rather than how to do it may begiving legal advice.Legal advice is a written or oral statement that: Interprets some aspect of the law, court rules, or court procedures; Recommends a specific course of conduct a person should take in an actual or potential legalproceeding; or Applies the law to the individual person’s specific factual circumstances.What is Legal Information?Clerks and court personnel may: Provide public information contained in dockets, calendars, case files, indexes, and otherreports. Recite common, routinely-employed court rules, court procedures, administrativepractices, and local rules, and explain generally how the court and judges function. Refer self-represented litigants to a law library or the court’s website for statutes, court rules,or forms. Explain the meaning of terms and documents used in the court process. Answer questions concerning deadlines or due dates (without calculating due dates). Identify and refer self-represented litigants to court forms.Page 5

Clerks and court personnel may NOT: Recommend whether to file a certain pleading. Recommend wording or content for a pleading. Recommend specific people against whom to file pleadings. Recommend specific claims or arguments to assert at trial. Recommend what type of damages to seek or from whom to seek them. Recommend techniques for presenting evidence in pleadings or at trial. Recommend which objections to raise or which motions to file. Recommend whether a party should ask for a continuance. Recommend whether or not parties should try to settle their dispute prior to trial. Interpret applications of statutes. Perform legal research for a party by researching case law, statutes, opinions, etc. Predict the outcome of a case.What is Ex Parte Communication?Black’s Law Dictionary defines ex parte as “on one side only; by or for one party; done for oneparty only.”Ex parte refers to situations in which only one party appears before a judge or communicates witha judge.With few exceptions, the court rules require that all documents filed with the court must be givento all other parties in the case so that the other parties have an opportunity to respond. Thus, it isimproper to give information to the judge unless that information has been provided to the otherparties in the case.If a party submits a written ex parte communication for a judge, ask the judge what the judgewould like to do with the communication. The judge will say either to send a copy to all theparties before the judge reviews it or to send it back to the individual who submitted thedocument. Check for any other local policies on this issue.If a party asks to talk to a judge, suggest that they write down what they want to say and file it withthe court. This written communication should: Include a proper heading, including the case number. Be dated and signed, with the name printed under signature. Include the party’s address and telephone number over the heading.Page 6

Be copied to the opposing party or counsel following Texas Rules of Civil Procedure.The original should be submitted to the clerk and the party should keep a copy for their records.If the party has an emergency situation and there is no time to submit a written request,communicate with the judge if allowed by local rules. The party should be warned that therequest may not be granted.Quality Service: Strategies for Answering Difficult QuestionsIt may not always be clear that it is appropriate to answer a member of the public’s question.However, there are several things that can be done to assist court users and make it easier toidentify whether the question is asking for legal information or legal advice.LISTEN CLOSELY AND ASK QUESTIONS Let members of the public ask their questions and listen carefully to what they areasking. Be an active listener and respond reflectively. If necessary, repeat or rephrase thequestion to state what you think they are asking. Take the time to clarify what court users need. If someone asks a question that is not clear,ask follow-up questions to clarify what they mean. Ask court users if they have completely read any paperwork they may have.BE PATIENT Think how much the court user will appreciate someone taking the time to answerquestions and explain an unfamiliar process. Coming to court can be stressful, confusing, and intimidating; so take the time towelcome and greet court users. The same questions may have been asked many times before, but remember that this is thefirst time for this particular court user. Remain calm even when the court user is not. Attitude is key. Some people may just needto vent. Take it professionally, not personally.EXPLAIN ANSWERS and GIVE REASONS Providing the reasons why certain information cannot be given helps minimize people’sfrustration and increases their understanding of the court system. If a question cannot beanswered, explain how important it is that clerks and court personnel remain neutral andimpartial. Always be clear and concise when providing information. Ask the person how theywould feel if the clerk or court personnel gave legal advice to the other side.Page 7

The phrase “I cannot give legal advice” should never be used as an excuse not to provideservice. Politely state that clerks and court personnel cannot explain or interpret the law orsay how it would apply to a case because that would be giving legal advice. Also, explain thatclerks and court personnel do not have legal training and if the clerk tries to give informationabout which they are not completely informed, it might jeopardize the outcome of the casefor the party. If a question cannot be answered, try to give a good referral such as to a local lawyerreferral service, legal clinic, the court’s website, or go to www.TexasLawHelp.org.Remember: do not recommend specific attorneys; remain neutral and impartial at alltimes.Procedural Explanationsvs.Procedural RecommendationsProvide procedural information and explanations on how to accomplish various actions within thecourt system. Explaining various procedures increases the public’s understanding of the courtsystem and provides greater access to the courts.Do not make any recommendation that would indicate a direct advantage or disadvantage of aparticular procedure. It is not appropriate to tell court users what is the best course of action forthem to take, nor is it appropriate to give opinions about the probable outcome of a case.CAN PROVIDEProcedural ExplanationsCANNOT PROVIDEProcedural RecommendationsQuestion:Can you tell me how to file a small claimsaction?Question:Can you tell me whether it would be betterto file a small claims action or a civil action?Response:Yes. You need to fill out a sworn smallclaims statement and file it with the clerk’soffice. When you file the affidavit, you willhave to pay a filing fee. The clerk will issueyou a case number and issue paperworkcalled the citation. Tell the clerk where theperson you are suing may be foundbecause the person must be served beforethe court can grant you any relief. Thesmall claims form is on the court’s website.Response:I cannot tell you which process would bebest for your situation because I cannot giveyou legal advice. You may want to talk to anattorney about this issue to determinewhich process best fits your situation. Youmay also contact other legal resourceorganizations in your area, or you mayconduct research at the local law library.Page 8

General Information about Court Operationsvs.Confidential or Restricted Information about Court OperationsAnswer questions about court policies and procedures if the information could not beinappropriately used to affect the status or outcome of a case. It is important not to discloseinformation that would allow one party or another to have an unfair advantage.As a general rule, it is appropriate to provide information on how to do something, but it is notappropriate to answer the “how” question when it involves the disclosure of confidential orrestricted information.CAN PROVIDEGeneral Information About Court OperationsQuestion:When will my divorce go to court?Response:This time frame may depend on the type ofservice in the case. Hearings are only neededon contested cases and it will depend uponthe status of the pleadings as to when it isset. There are general instructions andappropriate forms for uncontested divorceon the court’s website, or you may wish toobtain legal help if your case is going to go totrial.CANNOT PROVIDEConfidential or Restricted InformationAbout Court OperationsQuestion:Can you tell me when Judge Doe will be onvacation so I don’t have to appear in frontof him again?Response:I cannot give you personal informationabout the judge.Explaining Legal Termsvs.Providing Legal InterpretationsExplain legal terms so that people will have access to the court and understand the courtsystem. While it is appropriate to explain legal terms, it is not appropriate to provide legalinterpretations.Page 9

CAN PROVIDELegal DefinitionCANNOT PROVIDELegal InterpretationQuestion:What does “certificate of service” mean?Question:My neighbors leave their kids at home allday without supervision. Isn’t that childneglect?Response:The rules require parties to file proof withthe court that they complied with therequirement to serve other parties. This iscalled “certificate of service.” The rulesrequire parties to give copies of anydocument filed with the court to all otherparties in the case. The methods for serviceavailable to Texas litigants are outlined in thecourt rules and state statutes, in particularyou may wish to look at Rule 21a of theTexas Rules of Civil Procedure. The rules areavailable on the court’s website.Response:I am not an attorney or a judge and cannotmake that legal determination. I can,however, refer you to Child ProtectiveServices who may be able to help you. Ifyou are concerned that the children are inany kind of danger, contact lawenforcement.Tip: The Texas Rules of Civil Procedure are available 901.pdf.The Self Help section is available elp.aspx.Providing Forms and Approved Instructionsvs.Filling Out FormsAnother important way to facilitate access to the court is by providing forms and assistancewhere resources allow. It is important to know what forms and written instructions are availablefrom the court and other agencies.Often court users will not know what forms to request in order to bring their matters before thecourt. When this happens, clerks and court personnel should direct them to available resourcesfor forms such as the court’s website, law libraries, and legal clinics.Answer procedural questions about how to complete court papers and forms. For example, tell acourt user whether a form needs to be notarized or what factual information the form is asking for,Page 10

but do not say what words to put on the forms. If someone asks what to say in a form, tell theperson to use his or her own words. Due to time and resource constraints,suggest that people fill out as much of their form as possible before asking for assistance.The Americans with Disabilities Act (ADA) requires reasonable accommodation to people withdisabilities, which may include helping them fill out forms. Some legal clinics and legal serviceagencies will help people with disabilities fill out forms.When helping someone fill out forms, write down exactly what the person dictates, word for word.Do not correct the person’s grammar, and do not paraphrase or edit what the person says. This canbe considered giving legal advice, and threatens the court’s impartiality. Once the form is filled out,read it back to the party to confirm that what is written is correct. Write or stamp “dictated bycourt user, written verbatim by court staff,” and your name or initials in the margin, and why theassistance was necessary.CAN PROVIDEProviding Forms and Approved InstructionsCANNOT PROVIDEFilling Out FormsQuestion:I need to file for divorce and I have no ideawhere to begin. Is there some place I can goto find out how to get started?Question:The self-help divorce petition says I shouldlist as my separate property any gifts Ireceived while we were married. Myparents gave us money to make our housepayments for several months. Should I listthat money as my separate property?Response:Sure. The Texas Law Help website has formsand instructions for uncontested divorces.Go to www.TexasLawHelp.org to find a fulllist of free forms. The court charges a fee tofile your papers. This fee varies from countyto county and may depend on whetherchildren are involved.Response:I cannot help you decide what informationto enter. If you have questions about whatinformation is appropriate to enter on theforms, you can ask an attorney or visit alegal clinic. Information about legal clinics isavailable on the court’s website.Public Case Informationvs.Confidential Case InformationSome documents or entire cases are confidential and the information cannot be disclosed. Ask asupervisor what records or cases are public and what are not.Page 11

Do not disclose the outcome of a matter submitted to a judge for decision until the outcome is partof the public record or the judge directs disclosure of the matter.Do not speculate on the possible outcome of a matter submitted to a judge or a jury until theoutcome is part of the public record. This also applies in cases when a matter has not yet beensubmitted to the court.Generally, court case records are open to the public, and some records are made public by law. Forexample, search warrants and the affidavits that support them are public. Also, records in paternitysuits are available for public inspection.Some court case records may be sealed by the judge in civil cases under Rule 76a of the Texas Rulesof Civil Procedure. The access to other kinds of court case records, such as records in mental healthproceedings and juvenile case records, is limited by law. There are several other kinds of court caserecords that may be protected law. Be sure to check with your supervisor if there is a questionabout what records are public and what are not.If court case records are confidential or protected by law, do not read them unless necessary to doyour job. These records may contain highly personal information about parties, and it isinappropriate to read them unless required for your work.CAN PROVIDEPublic Case InformationCANNOT PROVIDEConfidential Case InformationQuestion:My mother died four months ago, and I lostmy paperwork regarding her probate case.Can you give me the case number, and can Iget copies of the pertinent documents?Question:I think there is a mental health case for myuncle in your court. His name is John Smith.Can you tell me anything about his case?Response:Yes. I need to know her name. I’ll check ourrecords and give you the case number. Then,you can visit our courthouse and view thefile.Response:Mental health cases are private andtherefore I cannot provide you with anyinformation. This type of information canonly be disclosed by court order.Tip: The Office of Court Administration publishes manuals for district clerks and countyclerks which address requests for court case records. They are available handbooks.aspxPage 12

Optionsvs.OpinionsProvide information on the various procedural options that are available and what the differencesare between the options. It is important to explain options because the person is often not awareof those options. People have better access to the courts when options are explained.It is also important to advise people of all appropriate options. Providing only some of theoptions may indirectly influence a decision by limiting the person’s choices.Do not give an opinion about what specific remedies to seek or which option the person should useor otherwise advise someone on whether to bring the problem before the court. Remain neutral anddo not take a position that will encourage or discourage a particular course of action.CAN PROVIDEOptionsCANNOT PROVIDEOpinionsQuestion:What can I do if I cannot afford to pay thefiling fee?Question:My ex-husband hasn’t paid the debts thathe agreed to pay in our divorce settlement.Now he’s filed for bankruptcy. The creditorsare coming after me. This is ruining mycredit. I don’t live in Texas anymore. Whatcan I do? He had an agreement and he’s notfollowing it. Can I be made responsible forthis debt?Response:You can request an affidavit of inability topay costs form. This form allows you toopen your case without paying the fee. Theforms are available on the court’s websiteand on Texas Law Help’s website.Response:I cannot advise you what you can dobecause I cannot give you legal advice. Thebankruptcy filing further complicates thismatter. You may want to consult anattorney. You can contact a local lawyerreferral service to find out if there are anyfree legal advice clinics that you couldattend to get furtherinformation, or see Texas Law Help’s FindLegal Assistance web page.Page 13

Citing Statutes, Court Rules and Ordinancesvs.Researching Statutes, Court Rules and OrdinancesIt is appropriate to share known statutory and court rule citations, especially as they apply toprocedures. However, it is not appropriate to conduct legal research. There are two factors thathelp distinguish between the two: If the information is something clerks and court personnel should know as a part of theirjob, then it is not considered legal research, even if it has to be looked up in the statutes,rules of civil procedure or local court rules. If the information is readily available and does not have to be compiled, then it is unlikely tobe considered legal research. If the information has to be compiled, then it probably is legalresearch.CAN PROVIDECites of Statutes, Court Rules andOrdinancesCANNOT PROVIDEResearch of Statutes, Court Rules anOrdinancesQuestion:Can I get a copy of a document from a case?Is it a public records?Question:What laws govern tort claims?Response:Court records and documents are publicrecord unless they have been sealed underRule 76a of the Texas Rules of CivilProcedure, or they are confidential undersome other law. The law requires that wecharge a copying fee. If the document needsto be certified, there is an additional fee andper page copy fee.Response:I cannot perform legal research for you, butyou can do that research yourself or contactan attorney to assist you. The statutes andrules are available online and at the lawlibrary. Contact the State Law Library forhelp getting started in your research.General Referralsvs.Subjective or Biased ReferralsBecause the court, clerks, and court personnel must remain impartial in all matters, do not makereferrals to a specific lawyer, law firm, or paralegal service. Instead, refer people to the court’swebsite, local lawyer referral service, the State Bar, or the yellow pages of the telephone book.Page 14

It is also helpful to keep lists of contact information for local government agencies anddepartments where people are frequently referred. Sometimes it is appropriate to make a call tothe referred agency or department (if time permits) to make sure it can accommodate the personbefore sending them there.CAN PROVIDEGeneral ReferralCANNOT PROVIDESubjective or Biased ReferralQuestion:Question:I need a process server. Where do I find one? Can you recommend a good process server?Response:We do not have lists of process servers atthe court. Pleadings may be served by asheriff, a constable or you can also check inthe phone book or on the internet forcertified private process servers.Response:I’m sorry, but the court must remainimpartial. I cannot recommend a specificprocess server. I suggest that you check thephone book or the internet for a certifiedprivate process server.Tip: Develop and have available a list of general resources and referrals. Good generalreferrals include the yellow pages and the Internet. A list of certified private processservers is available at http://www.txcourts.gov/jbcc/process-server-cert

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