Understanding the Difference - Advocacy and Legal Advice
UNDERSTANDING THE DIFFERENCE BETWEEN ADVOCACY AND LEGAL ADVICE
Healthcare providers, including DMHAS, recognize that persons in recovery have the right to receive assistance from an advocate of their choice. Advocates play an extremely important role educating persons in recovery about their rights and supporting their efforts to have their rights respected.
However, there are limits on a lay advocate’s (non-lawyers not supervised by an attorney) expertise and authority. Practicing law without a license in Connecticut is a criminal offense. Persons who violate it could be prosecuted. Just as important, they could cause harm to someone they are trying to help.
It is essential that lay advocates understand these limits and understand when issues should be referred to legal professionals.
While it can sometimes be difficult to draw a clear line between advocacy and legal advice, there are some fundamental guidelines that should be followed in order to avoid the unauthorized practice of law and to provide the best service to persons being assisted. This flyer is intended to provide general guidelines.
I. Clarify the Goal
▫ The advocate helps people articulate preferences and goals and have those goals and preferences respected.
▫ A key role of the advocate is to assist an individual to understand his or her situation by helping him/her to gather facts and information: to organize, summarize, collect and record information about the situation.
▫ This enables the person in recovery to explore his/her options.
II. Give Advice, Not Leal Advice
Generally, giving information may include:
▫ Quoting directly from a pamphlet, or other materials
▫ Directly providing pamphlets or printed materials
▫ Providing factual information
▫ Explaining a process, including time frames and deadlines.
In contrast, giving legal advice may include:
▫ Predicting the outcome of the case or suggesting a specific course of action based on your experience with, or understanding of, the law;
▫ Interpreting statutes, regulations, or case law or suggesting a course of action based on such an interpretation;
▫ Applying the law to an individual’s circumstances.
WHEN IN DOUBT, REFER TO LEGAL PROFESSIONALS. DELAYS CAN IMPAIR RIGHTS!
III. Respect Confidentiality
▫ Confidential information includes, but is not limited to, the fact that an advocate has been consulted, or is assisting, a particular person.
▫ Assume all information is confidential.
▫ Be careful of casual conversations, even with other advocates.
▫ Discussing the circumstances of a case, even without mentioning the name, can violate confidentiality.
▫ Lay advocates have an ethical responsibility to maintain confidentiality. However, conversations between a person being assisted and a lay advocate are not “privileged” or protected. Under certain circumstances advocates could be forced to testify about what they have been told. Persons being assisted should be made aware of this fact.
IV. Basic Advocacy Guidelines
The following are basic guidelines for advocates:
▫ Clearly explain your role to the person you are assisting.
▫ Be sure the person understands your role and what you will and won’t do.
▫ Advocacy is done at the request of the person being assisted and that individual’s expressed preferences should be respected.
▫ When giving information about how to complete a procedure, and assisting someone to do that, give all the information and follow all the steps.
▫ When you are unable to answer a question, admit it, find the answer or refer the question to a knowledgeable professional.
▫ Pay careful attention to time commitments. It is better to say “no” than to do an inadequate job.
CLRP is staffed by attorneys and by paralegals, working under the direct supervision of attorneys, who oversee their legal advocacy and advice. We are available to train lay advocates and persons in recovery.
Connecticut Legal Rights Project, Inc., (CLRP) is a statewide non-profit agency which provides free legal services to low income adults with psychiatric disabilities, who reside in hospitals or the community, on matters related to their treatment, recovery, and civil rights. CLRP represents clients in accordance with their expressed preferences in administrative, judicial, and legislative venues to enforce their legal rights and assure that personal choices are respected and individual self-determination is protected. CLRP develops and supports initiatives to promote full community integration which maximizes opportunities for independence and self-sufficiency.