Explaining the difference to clients
If a woman does not have a lawyer, you may be her sole reliable source of information and so she may rely on what you tell her as though it were legal advice.
It is not always easy to draw a clear line between what is information and what is advice to a woman who is unfamiliar with family law and is desperate for someone to tell her what she should do.
For example, describing the pros and cons of seeking sole vs joint decision-making for the children can sound to the woman like you are suggesting (i.e. advising) her to do one or the other, even though what you are actually doing is informing her about the different options available to her.
Women leaving abusive relationships are often used to being told what to do, so even if you are being as clear as you think you can about the fact that you are giving information and not advice, she may hear it as you telling her what she should do.
Communication tips
Here are some tips for communicating this to a woman you are working with:
- Tell her at the beginning and throughout your work with her that you are not a lawyer and you are not giving her legal advice
- Discuss options available to her to get legal advice – apply for a legal aid certificate if available, speak with duty counsel, retain a lawyer with her own money – and assist her in pursuing whichever of these is appropriate for her
- Focus on providing her with information about the family court process and related services; for example, explaining to her the steps in a family law case, letting her know how mediation works, telling her which forms she needs to complete, informing her about what happens at a settlement conference, etc.
- Refrain from being overly specific when you are talking about the law
Speaking in the 3rd person
Speak in the third rather than second person when talking about options and pros and cons of different approaches to her case.
YES “It is very difficult to get an ex parte order. Women need to have detailed evidence of extreme concern about safety.”
NOT “It will be very hard for you to get an ex parte custody order. You need to have detailed evidence of extreme concern about your safety.”
You can still work with the woman to assist her in putting together her evidence, but you have stayed away from language that could leave her thinking you are commenting on her particular facts and situation.
YES “The women we have worked with have found they often get better outcomes when they provide detailed information about the abuse they have experienced in their court documents.”
NOT “You will get a better outcome if you provide detailed information about your abuse.”
YES “Many women have not found mediation helpful.”
OR
YES “Many women in situations similar to yours have found that…”
NOT “Given your situation, I don’t think mediation is a good option for you.”
A standard practice
Despite all your best efforts, there is no way to ensure that the women you are working with will always understand that your role is to provide legal information not legal advice. You need to have a standard process, that you document, that sets out how you tell women that you do not provide legal advice.
It would be helpful if that process includes a plain language description of both legal information and legal advice. For example, see the definition provided by the Centre for Public Legal Education Alberta (website). Then, when a woman says to you: “But you told me to do…” you can refer to this and remind her that you provide legal information and not legal advice.
A key way to support a woman who is struggling to understand why you cannot provide legal advice is to connect her to a lawyer.