#CAIA2018 June 4-6, 2018


The Fuzzy Line: Legal Advocacy and the Practice of Law

Whether helping clients navigate a criminal case, explaining the Victim Rights Act, walking through the protection order process, explaining divorce or allocation of parental responsibilities, or responding to the myriad other legal questions that survivors have, advocates play an invaluable role.  But the line between legal information and legal advice is a fuzzy one.

Advocates are constantly dancing around that line, trying to make sure that survivors get the information they need, in a system that is hard for even the most educated person to understand.  When legal representation is so hard to come by, why do we make it so hard for non-lawyers to help people?

While it may seem like the unauthorized practice of law is intended to give lawyers job security and maintain their status as the only people who can answer legal questions, there is actually a legitimate purpose to these rules.  They are intended to protect people from bad information or bad advice that ultimately harms their ability to obtain legal relief.  Lawyers are accountable for giving bad or inaccurate advice, behaving unethically, or not abiding by the rules of practice, assuming the client files a complaint.

Given that lawyers must complete law school, pass the bar exam and obtain a law license, and are then held to a high standard of practice, it makes sense that there would be a distinction between what a lawyer can do and what a non-lawyer can do.  However, if you ask most lawyers what “practicing law” means, they probably won’t be able to tell you, or at least won’t give you the definition used by the Colorado Supreme Court, which includes providing legal counsel, drafting documents and pleadings, interpreting and giving advice, and/or preparing, trying or presenting cases.

In our experience, advocates are more reluctant to provide legal information or discuss legal matters with their clients than we would like, out of fear of crossing the line.  A good advocate beats a bad (and sometimes a good) lawyer much of the time.  Advocates know their stuff.  While lawyers might spend time on domestic violence or sexual assault cases, advocates spend all of their time dealing with victims.  That isn’t to say that there aren’t some great lawyers who really get it, but even they aren’t as knowledgeable about victimization as advocates. The problem lies in understanding what “practicing law” means, and what it doesn’t.

It is critical that advocates understand the boundaries of advocacy or legal information versus legal advice or practicing law, because victims need help with legal matters.  Something as simple as telling someone what the law is (“To get a permanent protection order, you will have to prove that he did these things, and that he’s likely to continue to do them.”) can be the difference between getting a permanent protection order or having no protection order at all.  But if you say, “To get a permanent protection order, you need to tell the judge that he has violated protection orders in the past and called you after he was served,” you have crossed the line.  As we said, the line is fuzzy and hard to find sometimes.

Advocates also need to understand the role of the Office of Attorney Regulation Counsel and the consequences of giving legal advice.  The folks at Attorney Regulation are not sneaking around, trying to catch non-lawyers practicing law.  They are only concerned about it when someone complains.  Like us, they want people to have access to legal service, but they want to be sure everyone follows the rules.  They probably would never know that you gave the above advice, but we don’t want you taking those chances.  Generally, the only time they pursue legal consequences against non-lawyers are extreme situations with serious implications for clients.  (See e.g., People v. Shell, 148 P.3d 162 (Colo. 2006). Shell, a self-described advocate on behalf of parents in dependency and neglect cases, was repeatedly ordered to stop practicing law without a license and was ultimately fined $6,000 by the Colorado Supreme Court.).

We hope you will learn some easy tricks to identifying legal information and legal advice, and will leave our session feeling more confident about helping your clients with legal questions.


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