Librarians and the Unauthorized Practice of Law

Here are some descriptions of what a librarian does. See if you agree with them.

It's not every day that you find a job that can make a world of difference in people's lives. Libraries have been empowering people by offering resources, services and training to expand their knowledge for thousands of years. Me, a librarian? American Library Association

Be a Librarian (Or Just Look Like One)

Bureau of Labor Statistics Occupational Outlook Handbook, Librarians

City of Philadelphia, Librarian 2, Examples of Work Searches literature and electronic resources for information bearing on a specific problem or subject; gathers, analyzes and interrelates information from a variety of sources in response to reference and readers advisory requests.... Utilizes a computer to search and retrieve information materials needed to assist patrons.

 Are these descriptions accurate?  Would they include helping patrons locate information and resources on the internet?  Would they include helping people find information on starting a divorce?  Would they include helping people find and prepare interactive forms to begin their divorce?

So, what’s the concern about

Title 4 MRS §807. Unauthorized practice of law 1. Prohibition. No person may practice law or profess to practice law within the State or before its courts, or demand or receive any remuneration for those services rendered in this State, unless that person has been admitted to the bar of this State and has complied with section 806-A, or unless that person has been admitted to try cases in the courts of this State under section Violation. Any person who practices law in violation of these requirements is guilty of the unauthorized practice of law, which is a Class E crime. All fifty states prohibit the unauthorized practice of law and make it a crime. In Maine it is a Class E crime punishable by up to six months in jail.

However, NO ONE in the history of the State of Maine has ever been convicted of Unauthorized Practice of Law

No Librarian Anywhere Has Been Prosecuted for Unauthorized Practice of Law

Professor Paul Healey, writing in the Law Library Journal concludes “that no librarian will ever be prosecuted for unauthorized practice of law while engaging in normal reference activities.” Pro Se Users, Reference Liability, and the Unauthorized Practice of Law: Twenty-Five Selected Readings, Law Library Journal, Vol. 94:1, 134 (emphasis added)

American Library Association Reference and User Services Association Guidelines for Medical, Legal, and Business Responses A library’s information services staff must have the knowledge and preparation appropriate to meet the routine legal, medical, or business information needs of their clientele When asked legal, medical, or business questions, information services staff should make clear their roles as stated in their library’s specialized information services policies Information services staff members are responsible for providing complete and accurate responses to users’ questions when possible and for guiding library users to the most appropriate resources for their information needs Staff should provide instruction in the use of the sources, enabling users to pursue information independently and effectively, if so desired.

 A library’s information services staff must have the knowledge and preparation appropriate to meet the routine legal, medical, or business information needs of their clientele.  When asked legal, medical, or business questions, information services staff should make clear their roles as stated in their library’s specialized information services policies.  Information services staff members are responsible for providing complete and accurate responses to users’ questions when possible and for guiding library users to the most appropriate resources for their information needs.  Staff should provide instruction in the use of the sources, enabling users to pursue information independently and effectively, if so desired.  Are these ALA guidelines appropriate?  How would they relate to using HelpMeLaw  How would they relate to helping a patron use automated forms?  How do they relate to Unauthorized Practice of Law?

1.0.1 A library’s information services staff must have the knowledge and preparation appropriate to meet the routine legal, medical, or business information needs of their clientele. The focus of the inquiry [whether something is the practice of law] is, in fact, whether the activity in question requires legal knowledge and skill in order to apply legal principles and precedent. Can we reconcile the ALA’s mandate with the Supreme Court’s prohibition? Perhaps the key is in “applying legal principles,” as opposed to “meeting information needs.”

As far as we know these are the facts: No one in Maine has ever been convicted of Practicing Law Without a License No librarian anywhere has ever been charged with Practicing Law Without a License. Professor Healy suggests that that no librarian will ever be prosecuted for unauthorized practice of law while engaging in normal reference activities. Is there anything we can do to improve on those odds?

Let’s look again at what the Maine Supreme Court has said: The focus of the inquiry is, in fact, whether the activity in question requires legal knowledge and skill in order to apply legal principles and precedent. Even where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law. Generally the distinction is made between “giving legal advice” and “providing legal information.” What’s the Difference?

John Greacen, one of the leading experts in the field, provides these definitions (for court clerks): Legal information  Facts about the law and the legal process Legal advice  Advice about the course of action a client should take to further his or her own best interests

Greacen goes on to provide these general guidelines for Court Clerks  Legal information Staff should answer questions that call for factual information – questions that start with “who,” “what,” “when,” “where,” or “how.”  Legal advice Staff should not answer questions that call for an opinion about what a litigant should do – questions that contain the words “should” or “whether.”

 Legal information Staff should tell a litigant how to bring an issue to the attention of the court.  Legal advice Staff should not suggest whether it is wise to bring that issue before the court, how best to present the issue, or how the judge is likely to decide the case.  Legal information Staff should inform a litigant of his or her options and the steps to carry out an option  Legal advice Staff should not suggest which option the litigant should pursue

A task force of the Arizona Supreme Court provides this guidance (again for Court Clerks): Telling a court customer “what to do” rather than “how to do it” may constitute giving legal advice.

There is another element of what the Maine Supreme Court has said that might relate to a librarian helping patrons find help for their legal problems: The focus of the inquiry is, in fact, whether the activity in question requires legal knowledge and skill in order to apply legal principles and precedent. Even where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law. A lot of the help available on the Pine Tree Legal Assistance web site, and other sites has to do with the on line preparation of legal documents.

Can you help a patron find this resource without “practicing law?” Can you help a patron use this resource without “practicing law?” The ALA Guidelines say, “Staff should provide instruction in the use of the sources, enabling users to pursue information independently and effectively, if so desired. Would this apply to filling out forms?

The California Courts provide some guidance to their clerks with respect to forms preparation: It seems a good rule of thumb that you could help people with the kind of information is required by a specific form, but not the specific words that relate to their individual situation.

Some Ideas that Might Keep You From Being the First Librarian Ever Prosecuted for Unauthorized Practice of Law  Help people find and use legal information and resources.  Don’t advise them what they ought to do with those.  Tell people what is required to use a resource properly.  Don’t tell them how to present their particular situation.