Although defining the “practice of law” can be difficult, it is unequivocal that providing legal advice is something only an attorney or other explicitly authorized professional can provide.
Providing legal information, however, is generally not reserved just for attorneys. Some state UPL statutes explicitly exempt legal information from the practice of law.
Utah, for example, permits a person who is not otherwise able to practice law to provide “general legal information, opinions, or recommendations about possible legal rights, remedies, defenses, procedures, options, or strategies, but not specific advice related to another person’s facts or circumstances.” Similarly, “[m]aking legal forms available to the general public, whether by sale or otherwise, or publishing legal self-help information by print or electronic media” is also permitted by entities and individuals that are not lawyers.
And in Texas, in response to an unauthorized practice of law enforcement action, the legislature changed §81.101 of the Texas Government Code to include the following exemption:
the “practice of law” “does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.TX Gov’t Code (2022)
But even in those states with cursory definitions of the practice of law which don’t mention legal information, this distinction has proven valuable in defining the practice of law. Yet while the distinction is useful, there is still hardly any guidance provided in state UPL rules.
Some state court systems, however, have developed resources on the distinction between legal information and legal advice for court staff who routinely interact with self-represented litigants. This guidance has been critical as court-based self-help centers proliferate across the country. And while these guides and INSERT only apply to court staff in their respective jurisdictions, this information can be help for entrepreneurs trying to navigate this important line.
From Colorado’s Chief Justice Directive 13-01 (2013), Self-Help Personnel may (among other things):
- provide information about court rules, terminology, procedures, and practices
- offer educational session and materials
- assist self-represented litigants with selecting the correct forms and instructions on how to complete forms based on the person’s description of what he or she wants to pursue or request from the court
- record information provided by the litigants on approved forms if that person cannot complete the forms due to disability, language, or literacy barriers
- assist litigants to understand what information is needed to complete filling in the blanks on approved forms
- review finished forms to determine whether forms are complete, including checking for signatures, notarization, correct county name, and case number
- assist in calculating child support using the standardized state program and using information provided by the litigant
- answer general questions about how the court process works
- assist litigants with the preparation of proposed court orders based upon the parties’ agreement or stipulation for signature of the judicial officer
The services that are prohibited on the basis of it being legal advice include:
- recommend whether a case should be brought to court
- give an opinion about what will happen if a case is brought to court
- provide legal analysis, strategy, or advice
- tell a self-represented litigant anything the court staff would not repeat in the presence of the opposing party
The Judicial Council of California’s Access and Fairness Advisory Committee notes the following in their “May I Help You?” Handbook (2003):
- “You can answer questions about how to complete court forms, including where to write in particular types of information and what unfamiliar legal terms mean. You cannot, however, advise a court user on how he or she should phrase responses on a form.” (p. 4)
- “If someone asks you what to say in a form, you should tell the person to use his or her own words to state the information requested.” (p. 5)
- “You cannot give advice about specific arguments a person should make while in court or tell people what you think would be the best way to handle a court appearance.” (p. 5)
- “You can give out general information about appropriate courtroom behavior.” (p. 5)
- “You can help court users calculate routine filing deadlines associated with most court hearings” but “you should not attempt to explain the statute of limitations to court users.” (p. 5)
The Illinois Supreme Court Policy on Assistance to Court Patrons by Circuit Clerks, Court Staff, Law Librarians, and Court Volunteers (amended 2018) provides the following guidance with respect to permitted services:
- providing legal information about court rules, court terminology and court procedures
- explaining why a filing was rejected
- assisting court patrons in identifying approved forms and related instructions based on the court patron’s description of what he or she wants to request from the court
- recording verbatim information provided by the self-represented litigant on approved forms if that person is unable to complete the forms due to disability or literacy barriers
- reviewing finished forms and documents to determine whether forms are complete, including checking for signature, notarization, correct county name and case number
- offering educational classes and informational materials
- providing assistance to litigants pursuing self-guided research
The Fund for Modern Courts seeks to make the New York State Court system accessible and fair. As part of the Public Libraries & Legal Research Initiative, Modern Courts provides broad guidance on what constitutes legal information and legal advice.
|Legal Information vs. Legal Advice|
|Allow users to come to their own conclusions||Do not suggest a legal course of action|
|Provide federal and state resources on court procedures, |
court rules, cases, and statutes
|Do not interpret primary sources of law|
|Provide access to legal forms and instructions||Do not fill out legal forms or tell people how to fill them out|
|Direct people to legal treatises, dictionaries or legal|
encyclopedias for explanations
|Do not conduct legal research for a person.|