The line (if there is one) between “legal advice” and “legal information” is a troubling one to some public legal education providers, sole-purpose PLE providers (SPPLE) in Canada in particular. Though most Canadian SPPLE organizations have lawyers or lapsed lawyers on staff, only a few consider themselves engaged in the practice of law, and none confess an intent to provide legal advice. Thus, SPPLE programming—one-on-one programs like legal information hotlines especially—often rests right up against the advice/info line.
Sitting so close to that line has two risks:
- Overconfident users: those who use PLE services might not realize that legal information is not enough in their situation, and that they need legal advice or representation.
- Unauthorized practice: those who provide PLE could get in trouble for invading the legal profession’s monopoly over legal advice.
The unauthorized practice concern, although it can loom in a staffperson’s mind and has come up again and again as a reason for official tentativeness towards PLE, has not turned out to be a real day-to-day threat to PLE in Canada.* That’s a damn good thing, too, because nobody really knows exactly what “legal advice” is. The advice vs. information issue is one that many folks have tackled (legal scholars, law librarians, bar personnel, court administrators, and self-represented litigant support program task forces, to name the major groups), but that no one has pinned down. A common solution is to offer guidelines to information providers in the form of “what you can do” and “what you can’t do” lists [consider the set of deliverables from the Arizona Supreme Court's recent study of the issue, discussed on the Self-Help Law ExPress blog [link]].
The overconfident users concern doesn’t come up a lot, although it’s probably the more serious of the two. Maybe the reason that this doesn’t loom in the minds of PLE staff is that many PLE users have no choice but to be overconfident. Legal aid is just not robust enough to offer legal advice to all those who need it but can’t afford it. The extreme interest lately in self-represented litigant support projects suggests that governments and the legal profession might be starting to see “overconfidence” as a solution to unequal justice—a solution that’s cheaper and less controversial than bolstering legal aid.
There aren’t very many sole-purpose PLE organizations in Canada that have advice/info guidelines. Some probably do give out “legal advice” every once in a while—but hardly ever in a way that interferes with the legal profession’s monopoly. Is this issue just a straw man, a red herring, and a mountain made out of a molehill?
* In the United States the story has been a little different, and a couple for-profit PLE outfits have suffered close scrutiny from bar associations [link; link]; plus, a recent Federal Court of Appeals ruling held that the seller of bankruptcy form assembly software was engaged in unauthorized practice [link].
