How many times have we seen the disclaimer “the information provided does not, and is not intended to, constitute legal advice and instead all information, content, and materials available are for general informational purposes only?” Everything that comes out of an attorney’s mouth is not intended to be legal advice. Until an attorney is hired by a client for formal representation, when we are providing law related information we want to make it clear that we are not advising, we are just seeking to educate. Attorneys are not interested in sticking their necks out unless they are being paid to provide specific advice. Divorce mediators, who are often licensed attorneys, are not engaged as advisors, so the legal information they provide is all for informational purposes and not to be construed as advice. This week’s blog tackles the difference between legal information and legal advice, why the distinction is important and why it is essential for divorcing couples to understand the distinction as they explore hiring attorneys and/or mediators.
What is Legal Advice? A lawyer’s role is to advocate for the one party that hired them with the goal of achieving the most favorable outcome for their one client. When it comes to a divorce, a lawyer can only represent one side. In representing that one side, the attorney’s task is to take an approach to the case that best forwards the interests of the client. In providing legal advice, the attorney applies the law, including statutes, case law and legal principles to the client’s particular situation. In doing so the attorney provides recommendations about what course of action would best suit the facts of the case and best accomplish the outcome the client wishes to achieve. Attorneys specifically establish a relationship with the client in these situations confirming the advocacy and advisory role.
The Oxford dictionary defines advising as “offering suggestions about the best course of action to someone.” When a spouse hires an attorney to represent them in their divorce that attorney takes on the responsibility for making decisions on the clients behalf with their input. They are counted on to be the protector of the client’s interests. It is not only giving the client their options but directing them on which option to choose.
What is Legal Information? As mentioned earlier, an attorney is not allowed to “advise” both sides in a divorce. There is a potential conflict of interest in doing so as what is best for one spouse may be entirely different from what is best for the other. In providing Legal information a mediator explains the law and the legal process in a way that educates the couple so they understand their rights and responsibilities, but stops short of directing them as to what final decision to make. Sometimes the information can be very technical and detailed. It can include an explanation of nuances and trends but it stops short of telling the client what to do. It is educating the client so they are in a position to make good decisions, but avoids telling the client what decision is best for each of them. Legal information works to set the recipient up to be in a place where they can comfortably make decisions, while legal advice also engages in directing the actual decision making itself.
Why the Distinction? It is extremely important to know the role of any professional you are engaged with. When I mediate I make it very clear to the couple that I cannot and do not advise them. This appears prominently in my mediation agreement. I am providing details about the law for educational and informational purposes. If you choose to mediate it is important that you understand the mediator’s limited role when it comes to the actual decision making. If you want someone to represent you specifically and direct your decisions, then what you are seeking is someone to act as an advisor and give you legal advice. A mediator cannot play that role. Many people who engage in mediation arrive at a place where they are comfortable making decisions without receiving advice. I seek to make the legal information I provide very comprehensive and understandable so that the couple feels they can confidently make educated decisions on their own. In the end once I have done what I can to provide them with the framework of the law and what their options are, I must step away and leave them to make the decisions themselves.
The distinction between legal advice and legal information is a very fine but important one. It really comes down to clearly understanding the relationship between the person providing the information and the person receiving the information. When you hire an attorney there is an attorney/client relationship that is established and with it an expectation that the attorney will inform and advise on decisions as they need to be made. When you and your spouse hire a mediator there is an understanding that while the mediator will be there as a guide and educator for both of you, they do not represent either one of you. They will inform both spouses on the framework of the law and the issues, will give the couple options to consider, will help foster clear communication between them, but will leave the couple to make their own decisions in the end. As you choose how to proceed, it is important to understand the different types of guidance available. Disclaimer: This blog is intended for legal information purposes only. Sorry, I couldn’t resist.