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Case management standards—legal advice

Introduction

The Case Management Standards - Legal Advice have been developed to assist staff in Legal Aid Queensland to provide accurate, accessible, appropriate, efficient and effective legal advice. The guidelines form part of the Quality Assurance documentation and should be read in conjunction with the Practice Management Standards which provide details in relation to the professional standards expected by all legal service providers.

Aim of legal advice

The aim of legal advice is to:

  • provide clients with an understanding of the nature of the legal issues concerning them, and
  • explain options so the client knows how to arrange for the next best steps to be taken.

Definition of legal advice service

A legal advice service provides fact specific advice where the advice provider:

  • makes an assessment of the client's individual circumstances
  • exercises professional judgment in applying the law to the client's circumstances
  • provides the client with a range of options about how to proceed
  • analyses those options so as to assist the client to make a decision about which option best meets the client's need
  • may include the provision of task assistance.

Scope of legal advice service

A legal advice service is a 'one off' interview concerning a particular legal problem relating to that client.

In general, legal advice for a client regarding the same matter does not exceed 60 minutes whether one or more legal advice interviews are conducted.

Legal Aid Queensland provides legal advice in relation to most personal legal issues.

Where another service provider (eg Community Legal Centre or Government Agency) exists to provide specialist advice and assistance in relation to particular legal matters, then Legal Aid Queensland refers clients to that service.

Legal Aid Queensland does not provide advice:

  • to companies or businesses
  • to clubs or associations
  • in relation to commercial transactions or dealings with real estate
  • in matters which have a high degree of complexity such that it is not possible to provide sound advice within the scope of the service.

Access to legal advice services and equity in service delivery

Legal advice services are available by:

  • telephone
  • video conferencing
  • interview at a Legal Aid Queensland office
  • interview at a designated outreach services.

Clients are offered telephone advice as a first option, unless the client's circumstances indicate telephone advice is not appropriate eg: due to the necessity to peruse written documents, the complexity of the issue, or the client's communication needs.

The legal advice service facilitates access by clients who experience social or economic disadvantage.

Clients from culturally and/or linguistically diverse backgrounds

Interpreters are engaged when:

  • a client indicates they are unable to adequately communicate the issues of concern to a staff member, or the advice lawyer or
  • the lawyer providing the advice believes that an interpreter would assist the communication.

Telephone interpreters are used unless the matter is of such complexity that an on site interpreter is required. Legal Aid Queensland meets the cost of the interpreter.

Clients who have been affected by domestic violence

Lawyers providing advice comply with the Best Practice Guidelines for Working with Clients Who Have Been Affected by Domestic Violence.

Clients requiring support person present

Where a client wishes to have a support person present during legal advice, the lawyer providing the advice agrees to this request unless it is inappropriate eg: conflict of interest, confidentiality.

Indigenous clients

Where a client wishes to have a support person present during legal advice, the lawyer providing the advice agrees to this request unless it is inappropriate eg: conflict of interest, confidentiality.

Indigenous Community Liaison Officers may provide assistance, either on site or by telephone, if a communication facilitator is required.

Young people and children

In civil and family matters, lawyers should initially form a view about whether the child or young person under the age of 18 is capable of providing instructions directly. If the child/young person is capable of doing so, the lawyer should take instructions directly from the client. In criminal matters lawyers always take instructions directly from the child/young person. Lawyers should assess whether it is appropriate for parents or other adults to be present when giving advice to a child/young person, keeping in mind that it is the child/young person who is the client and that parents or adults may sometimes influence the instructions obtained from a child.

Clients from rural and remote areas

Lawyers should ensure that referrals for support are provided to the client are realistic to the living situation of the client. This should be discussed with the client as a component of client service.

Prisoners

Legal Aid Queensland provides a duty lawyer advice service for prisons throughout Queensland.

Client service

The lawyer providing advice:

  • introduces themselves, and explains the purpose of the interview
  • uses active listening skills to build rapport with the client
  • explains the law related to the client's problems and the client's options in language which is clear and avoids legal jargon
  • checks that the client understands their options
  • provides referral to appropriate support services for the client.

Security

Legal Advice is not provided to clients who are intoxicated or drug affected or who are aggressive or abusive towards staff.

For face to face interviews a lawyer who has security concerns about a client may:

  • choose to interview the client at the counter rather than in an interview room, or
  • ask the client to leave bags outside the interview room, and/or
  • interview with the door open.

If during the course of an interview the client's behaviour becomes inappropriate, the lawyer may terminate the interview and ask the client to leave.

If a client makes threats to harm another person, the lawyer providing the advice reports the threat to their supervisor.

Accuracy and consistency

Lawyers providing advice are familiar with the resources which Legal Aid Queensland has available to assist with the provision of legal advice including:

  • legal information and referral databases
  • legal advice precedents
  • Legal Advice Toolkit
  • self-help publications.

Professional development

Lawyers providing advice demonstrate commitment to professional development. Legal Aid Queensland provides opportunities for:

  • legal update training
  • communication and client management skills training
  • training in the use of office systems and resources
  • mentoring and professional supervision.

Supervisors are responsible for ensuring that staff have access to formal and informal debriefing resources and opportunities when needed.

Administration

Prior to receiving legal advice, clients must provide personal details to Legal Aid Queensland.

Client service staff conduct a search of LA Office to ascertain whether the client has a client number. If there is no record of previous dealings, a new client number is to be created. The Client Service staff make brief notes about the client's legal problem to assist the lawyer who will be providing the advice.

If the client has previously obtained legal advice on the same subject matter, the interviewing lawyer, where practicable, reads the previous advice prior to the interview.

The lawyer providing advice records either on the legal advice form or in the Legal Advice module of LA Office sufficient information for another lawyer to readily understand:

  • The facts relayed by the client.
  • The advice provided including time limits relevant to the legal matter that have been explained to the client.
  • The name of any person other than the client who was present.
  • Details of any unusual occurrence eg: client appearing to be intoxicated, client complaint etc.
  • The approximate time spent on an interview, including time spent making phone calls, researching issues and perusing and/or drafting correspondence or documents.
  • Details of any referrals given. If referrals are given to private lawyers, then three names are given.

Copies of letters, forms or relevant documentation sighted or prepared are kept with the advice. If the advice is electronically recorded, then the record indicates where any documents (paper or electronic) which relate to that advice are kept.

Conflicts of interest

An officer should not assist any person in a manner which would lead a reasonable observer to consider that Legal Aid Queensland had a conflict of interest which may have led the officer to act prejudicially or preferably towards one or other of the parties to a dispute.

A search of data bases for potential conflict shall not be routinely undertaken before providing legal advice.

A lawyer shall not conduct a legal advice interview if the lawyer is aware that the other party to the dispute or a related party has previously received legal advice concerning the dispute from Legal Aid Queensland, unless:

  • the advice was provided by another team or regional office of Legal Aid Queensland and
  • it can be demonstrated that the lawyer providing the advice has no access to the records of the advice from that other team or regional office.

If Legal Aid Queensland is not able to provide advice due to conflict then the client should be referred to a private practitioner for independent legal advice.

If, during the course of a legal advice interview, a lawyer becomes aware that the other party or a related party to the dispute has received legal advice on the same matter from a lawyer in the same team or at the same regional office of Legal Aid Queensland, the interviewing lawyer terminates the interview and advises the client to seek independent legal advice from a private practitioner.

The lawyer cannot disclose to the client the fact that the other or related party has attended Legal Aid Queensland and obtained legal advice. The lawyer may disclose to the client that a possible conflict exists.

Prior to providing any task assistance as part of a legal advice consultation, the lawyer must check all relevant data base systems to ensure that no other party to the dispute has been assisted by any in house service.

Legal aid application

The lawyer providing advice informs the client if the client is likely to be eligible for a grant of legal aid and provides the client with a legal aid application form. The lawyer records sufficient information to support an application for legal aid and completes a simplification checklist if applicable.

Task assistance

The objective of task assistance is that with assistance from a lawyer, the client should be able to progress their legal problem without legal representation.

The standard maximum time to be spent on task assistance is 60 minutes, excluding the legal advice time.

General level of assistance provided

  • As a general rule, assistance is provided by drafting letters and making phone calls.
  • The decision about whether to write a letter for the client on Legal Aid Letterhead is one for the individual lawyer. The advantage of using letterhead (ie: the weight of a "lawyer's letter") should outweigh the disadvantage (ie: the possibility of becoming involved in a series of correspondence and conveying the impression that LAQ is acting for the client).
  • Assistance with documents, including court documents, should be limited to advising on documents or assisting the client to draft documents which are relatively simple.
  • Where the lawyer assists the client to draft a document, neither the lawyer's name nor Legal Aid Queensland should appear on the document. The assistance is provided to help the client draft their own document.

The decision about whether to provide task assistance or not

When deciding whether or not to provide task assistance in a particular matter, the lawyer will have regard to the following:

  • The degree of assistance provided will depend on the lawyer's assessment of the client's ability to progress the matter on their own eg: task assistance is more likely to be offered to a client with a disability or a literacy problem than to a client who is capable of drafting letters etc on their own behalf.
  • Assistance is more likely to be provided if the lawyer assesses that the intervention of the assistance is likely to be successful in resolving the matter
  • Assistance is less likely to be provided if there are other avenues which can assist the client eg: a grant of legal aid, a self-help kit, a specialist agency.
  • Assistance should be provided if there is material in the Legal Advice Tool Kit or if there is a precedent which allows the assistance to be provided quickly and efficiently.

Advice and assistance in particular matters

Criminal law

  • The types of assistance most commonly provided in criminal law are of an administrative nature, eg establishing court dates, assisting a client to organise a change of venue, obtaining details of charges.
  • It is not appropriate to assist clients with self-representation in summary trials other than by providing advice, eg: court documents, statements etc should not be drafted for clients.
  • In some cases, it is appropriate to assist clients by negotiating with prosecutors and preparing submissions in relation to charges where a grant of legal aid is not available.
  • It is appropriate to assist clients with pleas of guilty in writing.
  • It is desirable to prepare a duty lawyer instruction sheet for clients who will be using a duty lawyer (other than the advice lawyer).
  • Where a client seeks advice in relation to a section 222 Appeal and there is insufficient time for an application for aid to be processed and referred to a case manager, the advice lawyer should assist the client with the preparation and lodging of the required notices.

Civil law

  • Lawyers should assist clients to draft court documents only when the documents are simple and straightforward. It is not appropriate to draft District / Supreme / Federal / High Court documents for clients even if they are procedural only.
  • Legal Aid Queensland does not generally provide advice about personal injury matters except in relation to victims of crime. This is to avoid activation of time limits for notification of claims.
  • In areas where there is not an ITSA office, it is appropriate to assist clients with bankruptcy documents.
  • Lawyers should not prepare wills or give advice regarding preparing wills, powers of attorney or advanced health directives for clients and should not sign or witness these documents.
  • Lawyers should not give advice to executors of wills other than in the most general sense and should refer clients to private solicitors. Advice can be given to people who are beneficiary's under wills about their entitlements and procedures. Lawyers can give preliminary advice about challenging wills, particularly testators family maintenance, and preliminary advice in the case of intestacy.
  • Lawyers should not sign or witness leases or any documents related to the conveyance of property and should not provide advice in relation to these matters.
  • Lawyers should not sign certifications for clients in relation to bank guarantees, security documentation or any other financial transactions and should not provide advice in relation to these matters.
  • Lawyers may advise clients in relation to costs agreements with private solicitors but should not certify that independent advice was given.
  • In relation to negligence claims against private solicitors, advice lawyers may provide advice and the same level of assistance as with general negligence matters provided that the retainer with that private solicitor has been terminated.

Family law

  • Assistance should be given to clients to draft consent orders and simple initiating applications or responses in relation to children.
  • Assistance may be given to clients to try and arrange Primary Dispute Resolution in accordance with the Family Court's Pre-Action Procedures, but assistance should not include preparing written settlement proposals under these Procedures in relation to either children's or property cases.
  • Lawyers should not sign/certify consent orders.
  • In contested child matters, assistance should not include the drafting of complex documents such as affidavits.
  • In property disputes documents should not be drafted for clients.

It may be appropriate to draft letters for clients in relation to minor property disputes which relate to cars, chattels and debts.

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