Librarians and the Unauthorized Practice of Law
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Librarians and the Unauthorized Practice of Law

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  • One group of commentators has taken a very narrow view when it comes to librarians and the unauthorized practice of law. They begin all their analysis by focusing on the fact that unauthorized practice of law is a crime that can send an individual to jail. This places all nonlawyers attempting to help others with legal problems, including librarians, in an extremely vulnerable position. To adherents of this line of thought, any assistance with legal information could be perceived as legal advice and would thus be a violation of the law. They believe that the pro se litigants who come to the library are in reality seeking legal advice, and are unaware of the fundamental differences between the services provided by a librarian and those provided by a lawyer. Thus, almost any reference interaction involving legal materials would be, in essence, practicing law. Second group of commentators believe that the entire idea of librarians being accused, much less convicted, of the unauthorized practice of law is completely overblown and is much more myth than reality. They do not believe that pro se patrons confuse librarians with attorneys, even if they might see the librarians as having subject expertise in the law. In short, pro se patrons know the difference between seeking reference help and legal advice. Followers of this line of thought believe that librarians who supply legal reference services are not performing any type of lawyerly functions. The act of searching for and finding appropriate legal materials simply brings together the elements of a legal problem. It is the interpretation and analysis of these elements that constitute legal advice and is what librarians need to avoid. Thus, as long as librarians continue to act as experts on finding the information, rather than experts on the information found, their risk of being prosecuted for activities springing out of normal reference work is virtually nonexistent.
  • 1. In 1995, A businesswoman used a computer program to generate legal documents for other persons to be filed in family court.
  • 1. Testator's non-lawyer neighbor, who filled in the blanks in computer-generated generic will form, acted as more than mere scrivener and therefore engaged in practice of law; there was no evidence testator reviewed the will once it was typed, it was not typed in her presence, and there was no indication that neighbor contemporaneously recorded testator's instructions and then simply transferred the information to the form.
  • The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence in the preparation of legal documents and prevent harm resulting from inaccurate legal advice. Housing Auth. of City of Charleston v. Key, 352 S.C. 26, 572 S.E.2d 284 (2002) ; see also In re Baker, 8 N.J. 321, 85 A.2d 505, 514 (1951) (“The amateur at law is as dangerous to the community as an amateur surgeon....”).
  • “ The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. “ McLauren , - The statute prohibiting the practice of law without being admitted and sworn prohibited inmate from assisting another inmate with the filing of a petition for post-conviction relief; Statute which addressed appearing in person for others without compensation did not allow inmate to assist other inmates with the preparation of post-conviction relief petitions;
  • Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. See State v. Buyers Service Co., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987) .
  • First the Good News…
  • WHO? Typically a person who has a more detailed knowledge of the law beyond being generally familiar with legal requirements and legal procedures is more likely to give advice. (experienced staff more tempted to advise)
  • Q1: specifying which laws apply to a situation ) Q3: suggest a legal reference book or database to search) (suggest a legal reference book or database to search; refer patron to agencies, organizations, and other places that can help them further)
  • Q1: specifying which laws apply to a situation ) Q3: suggest a legal reference book or database to search) (suggest a legal reference book or database to search; refer patron to agencies, organizations, and other places that can help them further)
  • Q: suggest a legal reference book or database to search; refer patron to agencies, organizations, and other places that can help them further) (suggest possible search terms; suggest a legal reference book or database to search) (suggest a legal reference book or database to search; refer patron to agencies, organizations, and other places that can help them further)
  • Try to use black and white answers to abstract questions (Q. “Do I have any chance of beating this traffic ticket?”; A. “Let’s see if we have any books on traffic laws in South Carolina or on how to proceed with a traffic case.”) Always use verbal disclaimers such as “this might be helpful”, “this might be a good place to start”, “try this and see where it goes If the library adopts a policy that allows librarians to point out particular resources, such as major decisions or potentially helpful forms, always use strong verbal disclaimers: “ This is a case which involves traffic tickets and radar guns in South Carolina. I’m not a lawyer and I don’t know if this will be helpful to your particular situation but it may be a good place to start your research.” Here’s a book that contains legal forms. This section has been helpful to others, but I’m not a lawyer so I have no idea which forms you should or shouldn’t use. It is always best to call a legal aid service or the court itself if you’re not sure which one to use”.
  • Refer more difficult questions to subject specialists, e.g., law librarians Have legal aid numbers nearby When it comes to helping pro se patrons with legal information, the bottom line is that librarians are there to assist the patrons in the location of and proper use of legal tools. They should never do anything that could possibly be perceived as interpreting information or giving advice, and should never analyze the relationship of the information to the patron’s own situation. It is also best to get in the habit of using constant verbal disclaimers, such as, “this might be helpful” or “this may be a good place to start”. A good basic rule of thumb would be “if in doubt, then choose the conservative route and stick to it.”

Librarians and the Unauthorized Practice of Law Librarians and the Unauthorized Practice of Law Presentation Transcript

  • The Unauthorized Practice of Law (UPL)
  • UPL in General
    • The practice of law by an individual who has not been licensed or admitted to practice in a given jurisdiction
    • A crime in all 50 states
    • Definitions vary across states and are often vague
    • It’s more than just appearing in court of behalf of a client,
    …… much more
  • Not New Idea!
    • Controversy Since 1944
    • Really got active around 1970s
    • Two Theories:
    • - We’re All at Risk
    • or
    • - There’s Nothing to Worry About
  • UPL in South Carolina
    • It’s a Felony
    • Up to $5000 in fines …
    • (or) up to 5 years in jail …
    • (or) BOTH
  • UPL in South Carolina
    • - South Carolina v. Despain , 460 S.E.2d 576 (S.C. 1995).
    • The Supreme Court found this activity amounted to the unauthorized practice of law when it involves,
    • “ the giving of advice, consultation, explanation or recommendations on matters of law,” and “instructing other individuals in the manner in which to prepare and execute such documents.“
  • One Misconception !
    • Whether an individual is paid for his or her service irrelevant !!!
  • UPL in South Carolina
    • Franklin v. Chavis , 371 S.C. 527, 640 S.E.2d 873 (2007)
    • Testator's non-lawyer neighbor, who filled in the blanks in computer-generated generic will form.
    • “… . He acted as more than mere scrivener and therefore engaged in practice of law; We construe the role of ‘scrivener’ in this context to mean someone who does nothing more than record verbatim what the decedent says.”
  • UPL in South Carolina
    • State v. Buyers Service Co., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987) . (real estate documents)
    Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener.
  • UPL in South Carolina
    • State v. McLauren , 349 S.C. 488, 536 S.E.2d 346 (Ct. App. 2002)
    • “ The Supreme Court has defined the practice of law to
    • include the preparation and filing of legal documents
    • involving the giving of advice, consultation, explanation
    • or recommendations on matters of law .”
    • The reasons for prohibiting the unauthorized practice of law
    • are not to protect licensed attorneys from losing business to
    • unlicensed individuals. Rather, the purpose is to protect the
    • public from consequences resulting “ from the erroneous
    • preparation of legal documents or the inaccurate legal
    • advice given by persons untrained in the law ."
  • UPL in South Carolina
    • Filing of an appeal by a non-lawyer, who was the personal representative of an estate.
    • Representation of a third-party before IRS agents.
    • Paralegal giving advice on landlord-tenant issues and helping fill out forms.
  • UPL and Librarians? Are we all going to Jail if we help patrons with legal problems?
  • UPL and Librarians
    • Not one librarian has ever been prosecuted for the unauthorized practice of law
    • ABA Report (1995) – Against UPL for Librarians “ Informal help with legal problems coming from librarians has not generally been considered the unauthorized practice of law ”
  • Virginia UPL Opinions
    • Query: Research and law library retrieval for members of the general public where the inquirer does not provide a specific cite but outlines the question to your staff.
    • “ The intent of Section I of Part Six of the Virginia Rules of Court, relating to
    • Unauthorized Practice Rules and Considerations, is to protect the public
    • From individuals untrained in the law and unregulated by the profession
    • who are providing inappropriate legal advice, it is the opinion of the
    • committee that the facts as you have presented them … do constitute the
    • unauthorized practice Of law.
    • … .. Thus, the Committee opines that provision of legal research
    • services to the general public by non-lawyer personnel (librarians)
    • constitutes the unauthorized practice of law.
  • Legal Advice v. Legal Information
    • Goal of Librarians is to provide options and legal information to library users without providing legal advice !
    • Legal Advice? or
    •  Legal Information?
  • What is Legal Advice?
    • Legal Advice is defined as written or oral statement that:
      • Interprets some aspect of the law, court rules, or legal procedures or recommends a specific course of action a patron should take;
      • Applies the law to a patron/user’s specific factual circumstances.
      •  Maybe less involvement required depending upon what state you work in!!
  • What is Providing Legal Information?
    • Answering questions about legal rules, legal procedures, where to find form books, and other secondary sources;
    • Providing access to forms, instructions, etc.
    • Answering questions about where to access or find forms, but not completing the forms, explaining what they mean or suggesting specific forms;
    • Providing access to legal arguments or theories that help patrons but not commenting on them;
  • What is Providing Legal Information?
    • Guiding patrons to information they can use to find legal advice.
    • Showing patrons, statutes, regulations, and other legal materials but not explaining to them what they mean.
    • Showing patrons how to access cases but not suggesting cases to read.
  • How do I decide what this means?
    • Telling a patron “what to do” rather than “how to find what to do”
    • Pro se patrons are typically seeking legal advice when they:
    • - Ask whether they should proceed in a certain
    • manner or not.
    • - Say, “ I know you can’t give legal advice but could
    • you tell me…….”
  • General Guidelines
    • Legal Information – librarians SHOULD answer questions that call for FACTUAL information – questions typically contain the words “how,” “where” or “when.”
    • Legal Advice – librarians SHOULD NOT answer questions that call for an OPINION about what a patron/user should do - questions typically contain the words “should” or “whether.”
  • Legal Information or Legal Advice?
    • Some Questions
    • Providing a patron with a book that explains how to present evidence in court ?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • Suggesting to a patron what evidence is admissible in court?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • Explaining what a statute means?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Maybe?
    • Directing a patron to statutes, rules, ordinances and cases?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Maybe?
    • Recommending a patron appeal their case?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Depends on the explanation
    • Explaining the process for appealing a judge’s decision?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Depends on the explanation
    • Recommending the use of an attorney?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Depends on the explanation
    • Recommending a specific attorney or list of attorneys?
    • A. Legal Advice
    • B. Legal Information
    • C. I don’t know
    • D. Depends on the explanation
  • Specific Library Questions?
    • Question 1: I just have a quick question. I'm going to sue my neighbor because he's building a new fence and he's putting it on my side of the property line. I know you can’t give legal advice but I just need you to tell me what law says he can't do that .
    • Legal Advice:
    • Legal Information: Analyze the problem for legal terms and possible resources to refer him to.
    • Search Terms: Encroachment, easement, trespass
    • Resources: Online or Print
    • - Statutes or cases?
    • - Secondary sources ? – Encyclopedia or books or ALR
    tell me what law says…….. Jurisdiction ?
    • Question 2: I'm looking for the law on underground storage containers on farmland, but I can't find it. Can you tell me what the law is and how to find it?
    • Legal Advice:
    • Legal Information: how to find it? Analyze the problem for legal terms and possible resources to refer him to.
    • Search Terms: Encroachment, easement, trespass
    • Resources: Online or Print
    • - Statutes or cases?
    • - Secondary sources?- Encyclopedia or books or ALR?
    • “ Environmental Law in South Carolina”
    tell me what law is …….. Jurisdiction ? Federal or state
    • Question 3: I just read this case you found for me, but I don't understand it. Can you tell me if it applies to a person in my circumstances?
    • Legal Advice: The question is for legal advice!
    • Use Disclaimer and guide back to resources. Tell patron to read other cases and try to find facts that fit their circumstances.
    • Question 4: What is the penalty for using a fake l.D. to buy alcohol when you're actually only 18 years old?
    Legal Advice: YES South Carolina - Statute – S.C. Code 63-19-2440, 56-1-746 “A fine of $100 to $200, Misdemeanor - up to 30 days jail and suspension of driver’s license for 90 days for the first offense and six months for a second or subsequent offense.” Additionally, Alcohol education DAODAS program Different penalties for factual circumstances: Altering a driver’s license; Using someone else’s driver’s license or personal identification card; Lying or providing false information about your age to purchase liquor; buying for another person. Remember local ordinances also! Legal Information: You can Only guide to Resources
    • Question 5 : I want to get a divorce and my husband now lives in Michigan. Where is the best place for me to file?
    • Legal Advice: Where is the best ………. (opinion)
    • Legal Information: How to find it? Analyze the problem for legal terms and possible resources to refer patron.
    • Search Terms: Family law, grounds, property division
    • Resources: Online or Print
    • - Statutes or cases?
    • - Secondary sources? – Encyclopedia or books or ALR – Law review articles
    • Collateral matters
    • Question 6 : My supervisor is harassing me about my upcoming maternity leave. How can I stop him and what are the laws that apply to me?
    • Legal Advice: How can I stop him ………..
    • Legal Information: How to find it? Analyze the problem for legal terms and possible resources to refer him to.
    • Search Terms: Discrimination, harassment, FMLA
    • Resources: Online or Print
    • - Statutes or cases?
    • - Secondary sources?-Encyclopedia or books or ALR
    • Law review articles
    • Question 7: How do I become a registered day care provider?
    • Legal Advice:
    • Question 8: What list of factors does a judge take into consideration when awarding custody to one parent or the other in a child custody dispute arising from a divorce?
    • Legal Advice:
    Legal Information: Legal Information:
  • Consider Ways to Avoid Trouble
    • Don’t fill out forms
    • Do not give advice on how to fill out legal forms
    • Don’t do research
    • Don’t give opinions or advice
  • Consider Ways to Avoid Trouble
    • Never read any cases or laws over the phone; this will avoid the possibility of errors in reading or inflection. Explain how the patron can access the material themselves via the library, an online source, or document delivery.
    • Use Disclaimers:
    • Make your role clear when asked for assistance on legal questions, e.g., “I’m a librarian, not a lawyer, so I’m not allowed to give you any advice (… choose a form for you … help you fill out this form … interpret what this means for you …)”
    • Put up written disclaimers that define your role as a librarian, on the website and visible within the library. For example:
    • “ This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However, we do not provide legal advice – the application of the law to your individual circumstance. For legal advice, you should consult an attorney.”
    • Or/And
    Written Disclaimers – Web and Library
    • “ Because of the ethical and legal implications surrounding the unauthorized practice of the law, patrons must be advised that the Library staff may not engage in the following activities:
    • - perform legal research;
    • - answer legal questions;
    • - advise any patron on the status of the law on a
    • particular issue;
    • - explain legal procedure, court rules or
    • jurisdiction or interpret the text of a statute, legal
    • opinion, or administrative regulation.”
    • 1. Reflections on Malpractice of Reference Librarians by Ronglin Wan,
    • Public Libraries Public libraries. 45, no. 2, (2006): 35
    • Personal Malpractice Liability of Reference Librarians and Information
    • Brokers by John A. Gray. Journal of Library Administration, v9 n2 p71-
    • 83 1988 ERIC #: EJ389233
    • Are Public Law Librarians Immune from Suit? Muddying the Already Murky Waters of Law Librarian Liability - http://www.aallnet.org/products/pub_llj_v99n01/2007-01.pdf
    Other Thoughts
    • Pro Se Users, Reference Liability, and the Unauthorized Practice of Law:
    • Twenty-Five Selected Readings, Paul D. Healey, 94 Law Library Journal 133 (2002) http://www.aallnet.org/products/pub_llj_v94n01/2002-08.pdf
    • 5. The Authorized Practice of Legal Reference Service – Madison Mosley, Jr., 87 Law Library Journal 203, Winter, 1995.
    • Professionalism in Librarianship: Shifting the Focus from Malpractice
    • to Good Practice - http://findarticles.com/p/articles/mi_m1387/is_3_49/ai_75278303/pg_2
    • South Carolina State Bar - www.scbar.org/public/upl/default.asp
  • Unauthorized Practice of Law - End