In particular, given that the term “legal advice” has no intrinsic meaning, its definitions should provide more explicit guidance to courts and allay the fears of court staff in the event of violations of applicable ethical and professional rules. In terms of content, restrictions should focus on areas where legal expertise is needed – when applying specific rules and regulations to the facts of an individual case. It is also in the public interest to ensure that non-lawyers cannot misrepresent themselves as specialized knowledge or training that they do not have. The belief that self-represented litigants should know what the law requires and how to navigate the legal system accordingly – without receiving that information from the institutions that facilitate that process – is not only unrealistic, but also dangerous. At best, it leads to unnecessary frustration among litigants and reduces the effectiveness of the judiciary; At worst, it makes the judiciary complicit in creating and maintaining a level playing field, reduces the likelihood of a fair and equitable outcome of the trial, and violates constitutional requirements of due process. The guidelines issued by Texas authorities for court employees and other staff working with self-represented litigants define legal advice as follows: “Court users seek legal advice when they ask whether or not they should proceed in a certain way. Telling a member of the public what to do rather than how to do it can be legal advice. However, according to many definitions of “legal advice,” these staff members – or even the judge – would likely consider themselves excluded from the disclosure of such information.71 The jurisprudence on legal advice offers additional guidance, but often leaves room for interpretation. For example, the West Virginia Supreme Court ruled that county court magistrates and staff should not offer “legal advice,” but can provide “legal information.” 23 However, it is of little use that the Court did not develop further the distinction between legal `advice` and legal `information`. 24 Some jurisdictions have been more specific, emphasizing the primacy of the role of lawyers. For example, the U.S. Court of Appeals for the Second Circuit stated that “legal advice includes the interpretation and application of legal principles to guide future conduct or evaluate past conduct. [and] therefore] requires a lawyer to rely on his or her legal training and experience to render a judgment.

25 Other courts, such as the New Mexico Supreme Court, were more agnostic and refused to define legal practice in a general way.26 In the first part of this essay, I examine the range of restrictions on “legal advice” issued by jurisdictions across the country, which, in many cases, leads individuals to try to navigate the judicial process. Critical information is retained. In Part II, I highlight some of the dangers posed by such general restrictions, including constitutional concerns about due process. Finally, in Part III, I argue that courts and legislators should be more explicit in their definitions of legal advice in order to eliminate any concern that court staff may violate unauthorized rules of legal practice. They should also limit the definitions of legal advice to ensure that it protects and does not undermine unrepresented litigants. “The CFPB is trying to impersonate Congress and apply new theories of different effects through an extra-legal process,” Bradley said. Id.; see also Employee Guide to Legal Advice, Mich. Jud. Inst. (2016), mjieducation.mi.gov/documents/resources-for-trial-court-staff/6-employee-guide-to-legal-advice/file [perma.cc/ZHT9-Z2AV] (with detailed guidance, reasons and examples of what constitutes legal advice and what is not, highlighting the question of questions and answers that contain “should”). The inability to provide legal advice stems from state law, Supreme Court rules, and jurisprudence prohibiting unauthorized exercise of the law.14 There is no universally accepted definition of legal practice, and some states have concluded that an exhaustive definition is impossible.15 However, there have been some attempts, both in law and jurisprudence, to define “legal advice” and the restrictions on its provision. Deborah L.

However, Rhode noted that a common feature of these statutory and customary prohibitions “is their broad and ambiguous scope.” 16 The prohibition of legal advice should prohibit precisely and only that – “advice”. The law is and must be considered as a common good through which staff working in legal institutions can transmit basic elements, apart from specific or directive advice. Since the law regulates the functioning of the courts, this is a roadmap to which all parties concerned must have access. Refusal to disclose such information to the public creates critical inequalities of knowledge and power and may amount to a denial of due process. Several practical problems arise from the restrictions imposed on the courts and the actors involved, who are considered “legal advice”. Given the low likelihood that litigants will have access to counsel in many state and local courts – particularly in civil cases57 – self-represented litigants often have to navigate a labyrinthine system with little or no advice.58 See Herbert M. Kritzer, Legal Advocacy: Lawyers and Nonlawyers at Work 201 (1998) (suggesting that formal legal education in providing effective advocacy may be less critical than “substantial environmental experience”). He defines “legal practice” as “much more than just working with legal issues” and instead asks “whether the activity in question requires legal knowledge and skills to apply legal principles and precedents.” 22 While there are good reasons to prevent persons without the necessary legal training from posing as lawyers or attempting to interpret the application of the law to a particular situation, there is little reason to prevent those working in the legal system from disclosing information about the requirements of the law and the range of possible measures provided for in it. In fact, these individuals are the most natural source of this information, and if it is not available, many people will turn to the unregulated domain of the Internet, their friends and family – or even the opposing party – for advice.86 Moreover, at least one study has shown that “lawyers are less likely to influence the outcome of cases if they know the substantive law. only if they are familiar with basic procedures.” 87 Therefore, on many issues, it is not unrealistic to believe that non-lawyers, particularly those who are most knowledgeable about litigation, could be as helpful as a lawyer in exchanging information.88 And, as John Greacen wrote, the fact that advice “is useful does not make it inappropriate”; 89 On the contrary, it is capable of assisting the judicial system in ensuring the resolution of disputes on the substance.