How Not to Give Legal Advice
For law librarians, the line between helping with legal research and giving legal advice is clearer than it looks.
Suppose a young, well-dressed patron — we’ll call him Arthur — walks in and approaches the reference desk. “Hello,” Arthur says. “My wife and I are getting a divorce, and neither of us can afford a lawyer. I’ve decided to write the separation agreement for us. Do you have any examples I could look at?”
As you talk to Arthur more, you learn that he and his wife have no children and they don’t own a house. In other words, they have no property to divide, making the divorce a simple one. A separation agreement is not essential to divorce in your state — you know this from having looked up the statutes for so many patrons — and you want to save Arthur a lot of unnecessary work. So you casually mention what you know about separation agreements.
Stop right there. You may have just given legal advice.
I know what you’re thinking. You’re thinking, I’m not a lawyer. I never said I was a lawyer. And I’m talking to this person in a library, not a law office. Besides, isn’t it my duty to help patrons find useful information and understand its applications? If I know the answer to a question or the solution to a problem, am I not obligated to offer it up without hesitation?
Those are excellent points. Yet, depending on the question at hand and the needs of the patron who raised it, a librarian’s recommendation can creep into the unauthorized practice of law, or UPL, which means practicing law without being a licensed attorney. This is illegal in every US state.
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Anticipating this issue, many libraries avoid engaging with these requests in the first place. In one public library where I worked, the policy was to forward all legal questions to an outside nonprofit group rather than try to answer them. (I never did this, rebel that I am.) Their logic was that if a patron reasonably believed we were lawyers and reasonably believed our response created an attorney-client relationship, then a jury could find us guilty of UPL.
This is not as far-fetched as it sounds. In one of the most-cited articles on this topic, Yvette Brown points out that pro se users are “unaware of the fundamental differences between the services of an attorney and the services of a librarian,” a confusion that could lead to the accidental transmission of legal advice.
As a law librarian, I have been asked to summarize statutes, fill out forms, advise someone what to ask for in court, explain case law, proofread legal documents, and interpret the US Constitution. I know the boundaries are sometimes unclear.
UPL first appeared in the library literature in the mid-1970s and has been frequently discussed, though infrequently agreed upon, ever since. As early as 1971, librarians were expressing their reticence to help pro se, or self-represented, litigants. In 1976, Robert Begg took this sentiment a step further, arguing that public patrons should pay fees, receive limited service, and be given “the old run-around.”
More severe still is an article by C.C. Kirkwood and Tim Watts, who feel that pro se users should not be helped at all unless a specific institutional policy requires it. In their view, a librarian must be prepared to control the flow of information to a user, “turning it on and off like a spigot.” They note that law librarians can’t “hide the law,” but neither should they be “spreading the word.”
I have watched this ill-disposed attitude on the faces of librarian colleagues, seen it in their bowed heads and crossed arms, and heard it in their not-too-friendly voices. Even I don’t always leap at the chance to help public patrons. In those moments, I forget that legal research can overwhelm nonlawyers. The process is unintuitive, the publications and language are unfamiliar, and for pro se patrons, the stakes are high.
We do a disservice to the profession if we shy away from patrons researching legal issues — whether we are anxious about UPL prohibitions, unfamiliar with the relevant legal materials, or too strapped for time to deal with patrons seeking to represent themselves in court. It is the rare school paper, job search, or genealogy project that has life-or-death consequences.
Legal matters, on the other hand, tend to be urgent, and the requestors are much more needful of our assistance as professional researchers. Pro se patrons come to the library after calling the police department, the courthouse, the department of social services, legal aid agencies, and the offices of the mayor, governor, attorney general, and state and federal senators. They get the runaround in all these places, and by the time they wind up at the library, their desperation is palpable. The least we can do is point them in the right direction.
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Yes, we have an obligation to avoid UPL, but this is a cinch, according to many scholars. Paul Healey, one of the leading writers on this topic, believes that “no librarian will ever be prosecuted for unauthorized practice of law while engaging in normal reference activities.”
What are “normal reference activities”? They are things like:
- Helping patrons find primary or secondary sources;
- Explaining the format or use of a source;
- Defining legal terms;
- Interpreting citations;
- Advising on the research process; and
- Interpreting a case or statute in the abstract — i.e., without relating it to the patron’s situation.
In the case of Arthur, for example, a librarian could, in the first place, listen and empathize. Then, she could search online for relevant state statutes, recommend a family law treatise, or locate free sample agreements at FindLaw.com.
Bottom line: UPL is not the bugbear a lot of librarians imagine it to be. Healey advises us to do what we do, use reasonable care, and be clear about boundaries. The best way to do the latter is to have a written policy on reference service. Here are a few examples.
If we do that, Healey believes — and I concur — that UPL is nothing to worry about.
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