We have all had it drummed into our heads that we shouldn’t give legal advice and that doing so constitutes the unauthorized practice of law, a criminal offense. However, we are probably all guilty of occasionally crossing that line, often unintentionally, in our efforts to provide clients with good service.
I recently came across a quotation that appeared to provide a good dividing line between giving legal advice and answering a client’s questions:
Never advise a client or other person on any matter if the advice may alter the legal position or legal rights of the one to whom the advice is given.1
Although there may be times when this rule of thumb could be applied too strictly, it is an excellent way to gauge whether what you say or do could be construed as giving legal advice.
Many times clients will ask me a question to which the answer strays into giving legal advice. In those instances, I explain to the client that he will need to discuss that with the attorney, but that I will pass along his question. Often the attorney will ask me to tell the client something in particular. I then take care to tell the client that the attorney asked me to tell the client whatever the attorney said to make it clear that the information is coming from the attorney.
Sometimes when the client asks me a question, I know exactly what the attorney’s answer will be. However, I never give the client the information without checking with the attorney. I then may tell the client that the attorney said to tell him some particular information. To remind me to do that, I only have to picture the attorney on the witness stand answering questions about this particular exchange with the client. Although neither of us may remember it later, I want the attorney to be able to say that it was always my practice to consult with him and then to pass along information to the client clearly stating it is something he asked me to tell the client.
Once a client thought that the member countries of the European Community and the European Patent Organization were the same. I faxed a list of the member countries of each organization to the client and the client used those lists to determine in which countries they wanted to file patent applications. Strictly applying the rule above, something I did affected the client’s decision on where to file to protect its patent rights. However, I did not advise the client on which countries to choose, I only provided a list of member countries which is readily available on the web.
At times you may have to force your attorney to review a client’s question and the appropriate response with you. Remind your attorney that although it is flattering that he thinks so highly of you and has such confidence in your abilities that he trusts you to give the client the correct answer, you still cannot give legal advice, although you are glad to pass along his message to the client.
We are often asked by family and friends to give legal advice, or just to say what we would do in a particular situation. Even giving common sense suggestions should be avoided since others will naturally give greater weight to recommendations from someone with legal training. Keep the number for the local attorney referral service or legal aid handy, or offer to recommend an attorney. Many attorneys offer initial consultations for $100 or less.
Before you give a client, or a friend, or a family member any legal information, you should ask yourself whether what you say will directly affect that person’s decision which in turn may affect that person’s legal rights or position. The safest answer to any question is to recommend he speak with an attorney.
1 West’s Paralegal Today, 2nd Edition, Miller and Urisko
Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.