Column

“Legal Advice” vs. “Legal Information”: Clearing Up the Murky Water

The distinction between what constitutes “legal information” versus “legal advice” has always been a source of confusion and substantial anxiety for legal practitioners and service providers. Given the importance of the distinction and its implications vis-à-vis the authorized practice of law, it is shocking that the term “legal information” is nowhere defined in any of the relevant statutes or regulations governing the provision of legal services. Across the provinces, the governing regulation tends to focus on defining “legal advice,” “legal services,” or “practice of law” without providing an accompanying definition for “legal information” as a point of contrast. That being said, non-authoritative definitions have been offered by public legal education and information (PLEI) organizations like the Centre for Public Legal Education Alberta (CPLEA) and Community Legal Education of Ontario (CLEO), which describe “legal information” in terms of “general non-tailored information about the law” and “self-help materials.”[1]

“Legal advice” and “legal services”, by contrast, are terms that are dealt with extensively in the provincial regulation. In the Ontario context, for example, the Law Society Act stipulates that legal services are provided when “the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”[2] Examples of such “conduct” have been defined as including activities like document drafting, negotiating settlements, providing legal advice and legal representation.[3] Penalties for violating unauthorized practice (UAP) provisions can be quite severe, ranging from the issuance of cease and desist orders to the imposition of hefty fines and penal sanctions for severe violations.[4] In terms of the prevalence of the problem, Ontario alone commenced 101 new investigations for UAP in 2016, which actually represents somewhat of a decline in recent years.[5]

From the perspective of access to justice, the consequences of this murky distinction between “advice” and “information” are particularly troubling. Firstly, as legal academics like John Greacen have noted, the distinction has caused court staff to unnecessarily restrict the information they provide to SRL’s for fear of crossing the boundary.[6] Recent data from a 2011 court staff survey confirmed this view, as most court workers felt that guidelines governing what they could and could not say were either inadequate (11%) or simply non-existent (44%).[7] With a mounting SRL crisis on our hands, it is simply unacceptable that litigants are being left in the dark when it comes to navigating their disputes as a result of this unclear distinction.

Furthermore, as other legal academics have noted, the fear of violating UAP provisions has forced community legal clinics, innovative startups, and other service providers to adopt an unduly conservative approach to legal service delivery.[8] This is at a time when innovation and creative approaches to legal service delivery are precisely what is needed to address the A2J crisis. Consider as an example the work of the FCJ Refugee Centre (FCJ), a registered non-profit that has been providing integral refugee support services to thousands of claimants for over 20 years.[9] In 2012, the FCJ received a “cease and desist” letter alleging that its non-lawyer community legal workers were assisting refugee claimants with legal matters in a manner that contravened UAP laws.[10] The scare from Law Society’s letter caused the FCJ to spend thousands on a legal opinion and consider closing its desperately needed programs.[11]

In the U.S., a similar situation occurred in the early 2000’s with legal tech startup LegalZoom Inc., a company that offers automated document preparation services. In 2003, LegalZoom received a “cease and desist” order from the North Carolina State Bar on the basis that its non-licensed “legal technicians” were actively involved in document review and preparation.[12] The Missouri Federal Court later upheld the order on a motion for summary judgment, agreeing that LegalZoom’s platform went beyond a “do-it-yourself” service and crossed the boundary of unauthorized practice.[13] The result of the federal court judgment meant that LegalZoom was effectively prevented from offering its pre-paid legal service plans in the state of North Carolina. As such, like what happened with the FCJ refugee Centre, the threat of UAP was the catalyst for stifling much needed legal services.

Given the negative effects of the “advice” vs. “information” distinction on SRL’s and A2J initiatives, it is about time that provincial regulators start thinking about clarifying the distinction for the benefit of litigants, service providers and consumers. After all, litigants should come to expect helpful front-line assistance when it comes to navigating an already complex legal system. Similarly, legal service providers are entitled to know the specific forms of conduct that will subject them to UAP scrutiny before the “cease and desist” letter is served. Finally, consumers should have access to innovative low-cost legal services that will become available as a result of clarifying the distinction.

In terms of clarifying the “bright line”, the most obvious place to start is in the legislation governing the provision of legal services across the provinces. Provincial legal services acts must specifically define terms like “legal information” as a means of clearly setting out what is permissible and what is not. Furthermore, while it is impossible to provide an exhaustive list of all the forms of conduct that would fall under the respective categories, a few examples in different legal contexts would certainly be of great benefit. For example, while explicit form filling is clearly caught within the ambit of UAP, what about the use of “logic-trees” to direct customers on which forms to use? Similarly, would providing assistance with form translation and interpretation qualify as a legal service? Ultimately, if provincial regulators are to “clear up the murky water,” they must set out guidelines that provide guidance and direction on these types of questions.

Mitchell Perlmutter is a research assistant at the Canadian Forum on Civil Justice. He holds an undergraduate Honours BA in Humanities from York University and is a third year Osgoode Hall Law student.

__________________________

[1] For CPLEA’s definition, see: “Legal Information vs. Legal Advice: What is the difference?”, (2015), Centre for Public Legal Education Alberta, online: <http://www.cplea.ca/wp-content/uploads/2015/12/LegalInfovsLegalAdvice.pdf>

For CLEO’s definition, see: “Legal information is not the same as legal advice”, (February 2013), Community Legal Education of Ontario, online: <http://www.plelearningexchange.ca/wp-content/uploads/2016/04/Legal-informaiton-versus-advice_final.pdf>

[2] Law Society Act, RSO 1990, c L-8, s. 1(5) [“Law Society Act”].

[3] Ontario: Law Society Act, ibid; Manitoba: The Legal Profession Act, CCSM 2002, c. L107, s. 20(3) [“Legal Profession Act”]; Quebec: An Act respecting the Barreau de Québec, CQLR c B-1, s. 128 [“Act respecting Barreau de Quebec”].

[4] Ontario: Law Society Act, ibid, ss. 26.2 & 26.3; Manitoba; Legal Profession Act, s. 28(3); Quebec: Act respecting Barreau de Quebec, s. 140.

[5] Law Society of Upper Canada, 2016 Annual Report (Professional Regulation Division) at 36, online: <http://annualreport.lsuc.on.ca/>.

[6] John Greacen, “‘No Legal Advice From Court Personnel’ – What Does That Mean?” (1995) 34 Judges’ Journal 10, online: <http://www.srln.org/system/files/attachments/34JudgesJ10.pdf>.

[7] Trevor C. W. Farrow et al, “Addressing the Needs of Self-Represented Litigants in the Canadian Justice System – A White Paper Prepared for the Association of Canadian Court Administrators” (27 March 2012) at 31, online: <http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Addressing%20the%20Needs%20of%20SRLs%20ACCA%20White%20Paper%20March%202012%20Final%20Revised%20Version.pdf>.

[8] See: Jennifer Bond, David Wiseman and Emily Bates, “The Cost of Uncertainty: Navigating the Boundary Between Legal Information and Legal Services in the Access to Justice Sector” (2016) 25:1 Osgoode Hall LJ 1 at 23-24 [Bond, Wiseman and Bates, “The Cost of Uncertainty”].

[9] Bond, Wiseman and Bates, “The Cost of Uncertainty”, ibid at 15-16.

[10] Bond, Wiseman and Bates, “The Cost of Uncertainty”, ibid at 16.

[11] Bond, Wiseman and Bates, “The Cost of Uncertainty”, ibid at 16.

[12] Kevin Penton, “LegalZoom Hits NC Bar With $14M Antitrust Suit”, Law360 (4 June 2015), online: <https://www.law360.com/articles/663699/legalzoom-hits-nc-bar-with-14m-antitrust-suit>

[13] Janson et al. v. LegalZoom.com Inc., 2:10-CV-04018-NKL.

Comments

  1. As part of an enquiry in to Alternate Delivery of Legal Services in 2011-12, the Law Society of Alberta prepared interim and final reports discussing an approach to defining the “practice of law”. It noted the oversimplification of the “legal information vs legal advice” distinction. Delivery of non-complex legal services by non-lawyers were contrasted with those that only a lawyer should obviously provide.

    “A definition of the practice of law must encompass more than just a list of activities that
    lawyers perform. It should try to capture the essence of what a lawyer does; trusted
    advisor, legal advice and legal analysis.”

Leave a Reply

(Your email address will not be published or distributed)