By Lauren K. Jones, RP
Lauren K. Jones, RP continues her articles on Paralegals and the Unauthorized Practice of Law – Where is the Line Drawn?
Legal Advice and Legal Opinions
It is clear that only licensed attorneys may give legal advice and render legal opinions. Is there a difference between “legal advice” and “legal opinion?”
What is a Legal Opinion?
Rule 2.1 states that advice goes beyond giving a legal opinion. Advice refers not only to law but to other considerations such as moral conduct, economic, social and political factors, that may be relevant to the client's situations.
(Comment [1] from Rule 2.1): ...honest assessment. Legal advice often involves unpleasant facts that a client may be disinclined to confront.
(Comment [2] from Rule 2.1): ...relevant moral and ethical considerations in giving advice...moral and ethical considerations impinge most legal questions and may decisively influence how the law will be applied.
(Comment [3] from Rule 2.1): ...responsibility as advisor may include indicating that more may be involved than strictly legal considerations.
What is legal advice? If you are asked to choose for someone between one alternative or another, that is giving legal advice.
The core element of practicing law is giving of legal advice to a client and placing oneself in a very sensitive relationship where the confidence of the client and management of his affairs is left totally in the hands of the "attorney." (Matter of Fletcher, 655 N.E.2d 58.)
Practicing law includes doing or performing services or acts of justice and any matter depending therein, throughout its various stages and includes legal advice and counsel. (Matter of Fletcher, 655 N.E.2d 58.)
The following excerpt from the May 2005 edition of Update, a publication of the American Bar Association Standing Committee on Paralegals (Vol. 6, No. 3, p. 4):
“Giving Legal Advice. Courts have traditionally applied three tests to determine whether conduct constitutes the giving of legal advice. The first test is whether the advice given is generally understood to require legal skill or knowledge. The second test is whether the conversation involves advising someone of their legal rights. Most courts recognize a standard exception: a response to a client’s inquiry does not constitute the rendition of legal advice when the legal assistant merely acts as a conduit of advice between a lawyer and a client. If a legal assistant does not convey any thoughts or advice of his or her own, then he or she is not giving legal advice, and therefore, not practicing law. Thus, legal assistants delivering information pursuant to instruction and on behalf of a lawyer should always be certain to make it clear to the client that the lawyer is the source of the information. The third test is whether the advice given is not normally given by a non-lawyer as part of another business or transaction. If someone who is not a lawyer dispenses law-related advice in furtherance of the ordinary course of his or her regular job, it may not amount to the practice of law. For example, many bankers and financial planners regularly dispense advice that involves legal aspects of investment and tax situations.”
Next Article: Rules of Professional Conduct – What Services can a Paralegal Perform in Indiana?
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