A Lawyer/Librarian's Efforts to Avoid the Unauthorized Practice of Law
As a new law librarian in an academic law library setting, I am faced with many types of reference questions during the times I sit at the reference desk. Serving law students, attorneys, and pro se patrons, I have to constantly guard myself in how I answer these reference questions. Dealing with legal related questions, I have to be sure I do not violate the prohibition against the unauthorized practice of law while at the same time doing my best at fulfilling my duty to help the library patron as best I can. This essay covers my experiences dealing with reference interactions with all three groups.
Within the past twelve months I have become both a law school graduate and a law school librarian. Setting out three years ago to become a practicing attorney, I had every intention of practicing law upon graduating from law school. However, after graduating in May 2010 and ultimately failing the bar exam, I was offered a position as a circulation librarian at the law library at the law school I had recently graduated from.
Although most of my duties pertain to circulation and overseeing the library’s student workers, I do on occasion provide reference services to three distinct groups of patrons: law students, attorneys, and members of the general public who attempt to represent themselves in legal matters, commonly referred to as pro se patrons. These three groups exhibit different use patterns as well. Law students seek frequent reference service, while attorneys and pro se patrons only occasionally venture into the library to pose reference questions.
Being new to both law and librarianship, I have three sets of ethical codes I now must diligently follow as I provide reference service: the American Association of Law Libraries Ethical Principles, the Code of Ethics of the American Library Association, and the Mississippi Rules of Professional Conduct as adopted by the Mississippi Supreme Court. Under these sets of rules, I am obligated to help inquiring patrons on one hand but, on the other hand, forbidden to cross the line into the unauthorized practice of law.
How do I walk this line? With these three groups requiring different types of assistance, are there certain things I can do to ensure I do not run afoul of the prohibition against the unauthorized practice of law? Questions such as these form the basis of this essay which will comb through personal experiences and the ethical codes and scholarship on the matter in an effort to set up parameters which I might follow in providing reference services.
As an employee of a law library which is a member of the American Association of Law Libraries (AALL), I am guided by the AALL Ethical Principles (1999) as passed in April 1999. The Ethical Principles promote the notion that all citizens should be informed and should actively participate in American democracy. To prepare citizens for this, law libraries do the work of “collecting, organizing, preserving, and retrieving legal information” for individuals. The AALL Ethical Principles strive for robust interaction between the library patron and the law librarian. The Principles advocate that law librarians should “provide zealous service” to patrons while always remembering that any and all interaction with a patron should remain confidential and private. Zealous service, however, should not approach the unauthorized practice of law by the law librarian no matter how good his or her intentions might be in helping the patron (AALL Ethical Principles, 1999).
While my employer is not currently a member of the American Library Association (ALA), I believe it necessary to also keep in mind and strive to adhere to the ALA Code of Ethics. Similar to the AALL Ethical Principles, the Code of Ethics promotes “intellectual freedom of access to information” for an informed citizenry. To do this, librarians should provide the highest level of service to all patrons, be courteous in all interactions, and protect each patron’s right to privacy and confidentiality in the materials they might select (ALA Council, 2008).From just a brief reading of both the Ethical Principles and Code of Ethics, the overall impression conveyed to me as a new librarian is that we librarians should do everything in our power to assist the library patron. We should treat the patron with the utmost respect no matter the type of reference question they might pose. We law librarians have the added responsibility of not committing the unauthorized practice of law which is also prohibited by most, if not all, Bar Associations.
The American Bar Association (2010) has established its Model Rules of Professional Conduct for state bar associations to follow if they so choose. Each state bar association is free to adopt the Model Code in whole, in part, or not at all. The Model Rules covers a wide variety of topics ranging from client gifts to attorneys to the unauthorized practice of law. Rule 5.5(b) of the Model Code essentially prohibits lawyers from holding themselves out as someone who is admitted to practice law in a jurisdiction in which he or she is not admitted to practice law (American Bar Association, 2010).
In its version of Rule 5.5 of the Model Code, the state of Mississippi in its Mississippi Rules of Professional Conduct (MRCP, 2004) mandates that “a lawyer shall not assist a person who is not a member of the Mississippi Bar in the performance of an activity that constitutes the unauthorized practice of law” (Rule 5.5(b)). In the Comment to this rule, the Mississippi Bar Association explains that the purpose behind this rule is the protection of the general public (2010). It is essential that an unqualified person, in essence one who is not a member of the bar association, not be allowed to render legal services for a member of the public who places reliance on the unqualified person. Not as detailed as the Model Code, the Mississippi rule adequately explains the necessity of such a rule.
As a new law librarian looking at these three sets of guidelines, the Ethical Principles, the Code of Ethics, and the MRCP, I am struck by what appears to me to be a conflict of interest. On the one hand, I should do my best to help a patron with his or her reference needs when they arrive in the law library. On the other hand, I must be ever careful to not practice law as I provide reference services.
As I have settled into this job over the past school year, I have essentially divided library patrons into three distinct groups in terms of the reference services I provide on a routine basis. These three groups consist of the law students who come in and out of the library doors daily, attorneys who request reference services on Mississippi law, and pro se patrons who attempt to learn the law on their own. These three groups are distinct not only in their characteristics but also in the type of reference questions they pose. Each group thus poses a different risk in the ways they may draw the law librarian closer to the unauthorized practice of law. The scholarship surrounding law library reference service focuses more on pro se patrons and the risks they pose to the law librarian. Pro se patrons therefore receive more attention in this essay. Yet, each of the three groups, the needs they require, and the risks they pose, based on my limited experience, are examined.
Being in a law school library, I am constantly inundated with reference questions from law students. Each law student is required to take two courses in legal research during the first year of law school. In the first course, students are taught research methods to locate case law, federal and state statutory law, and secondary sources such as legal encyclopedias. In the second course, the students learn how to research legislative history, government regulations, and international law materials such as treaties. Each week the students are required to complete a homework assignment based on the current week’s lesson. The final product of both courses is a research plan wherein the students detail the research steps they took to answer a legal question based on the facts given to them.
The reference desk is busy as the weekly assignments become due. Most of the questions we deal with at the reference desk pertain to locating certain items. Occasionally the assignments require the student to analyze an issue based on the research he or she has found. Students, rather than thinking for themselves, will oftentimes ask the reference librarians how they would analyze the issue. However, those of us at the desk who face this type of question simply remind the students that the homework assignment is theirs to complete and not ours. By doing so, we at the reference desk steer clear of adding our own legal opinion to the hypothetical fact pattern.
Even if we librarians were to offer an opinion to the students, I do not believe the prohibition against the unauthorized practice of law would be breached. Part of law school is the back-and-forth banter between students and faculty, and exercises in debate and analysis assist the students in learning the law. Could it potentially reach the level of unauthorized practice? I doubt it. The reference services provided to the law students mainly consist of simply assisting the students in locating and identifying specific resources that may be used for their many assignments. In general terms, we librarians are providing more of a ready reference type of service, directing students to legal encyclopedias, legal dictionaries, and the like in order that the students might find what it is he or she is looking for, whether it be case reporters or statutory code books.
Cassell and Hiremath (2009) point out in their text that “ready reference questions provide the possibility of teachable moments” (p. 6). To a degree, this statement is correct. I have witnessed students at the reference desk have a moment where they finally understand how to locate an item on their own. However, others have such a moment and simply refuse to learn from it. Those who refuse to learn, for whatever reasons, constantly visit the reference desk each week with new questions. Yet as librarians we should put on a smile and provide the best reference service we have to offer.
Seeking typical ready reference materials, law students appear to not pose much of a risk in bringing a law librarian to the level of unauthorized practice of law. Scholarship is lacking in examining the potential for the unauthorized practice of law exhibited by law librarians in their interactions with law students. Based on personal experience thus far, however, I believe it to be a very slim possibility simply based on the types of questions and requests made by law students at the reference desk. The types of questions typically raised by law students involve locating materials, discussing hypothetical scenarios raised in a law school class, and debating legal theories and case law. This type of interaction between the law student and the reference librarian simply rises to the level of a discussion between inquiring minds and not the unauthorized practice of law.
With the increasing number of online resources available at no cost on the World Wide Web, the number of attorneys who seek reference assistance at our law library has dropped. Weeks may pass by without a single reference question from an attorney. Attorneys do routinely visit the law library, but the ones who do are essentially regular visitors. They know where everything is located, and they know how to locate the materials they need.
Dealing with attorneys can be tricky at times especially when an attorney knows the law librarian has a law degree. Many attorneys view the reference interaction as two attorneys speaking about an issue; however, most seem to understand we are at the reference desk to provide assistance in locating materials. While I have not run into any issues as of yet, a fellow co-worker of mine, who also has a law degree but is not admitted to practice by a state bar association, does extensive research for an individual attorney. To be sure he does not approach the unauthorized practice of law, my coworker includes a disclaimer in all his legal memoranda explaining that the information is being presented as research only and not as a legal opinion. This is an excellent way to ensure he is not practicing law.
As described above, interactions between a reference librarian and a law student or an attorney can be dealt with in a manner that does not run afoul of the unauthorized practice of law. Pro se patrons, on the other hand, present a different situation altogether. The following two situations, both of which I have experienced, convey the type of questions pro se patrons ask at the reference desk and the challenges they pose. One patron needs to file a response to a summary judgment motion which, if not replied to in a specific time frame, could have led to the dismissal of the patron’s case. I assist the patron in locating certain books on legal writing and legal forms; however, as the reference interview becomes prolonged, it becomes clear the patron essentially wants me to assist her in writing the legal filing. Doing so would be performing a lawyerly function and practicing law by preparing a court filing which I am unqualified to do. Another patron needing assistance in locating materials on civil rights repeatedly asks if I was a lawyer. After I tell him I am not a practicing attorney, the patron becomes unwilling to provide more details that would help me locate materials for him. I become frustrated because I cannot provide further assistance without knowing more of his situation. He, in turn, becomes frustrated because he is not getting the assistance he feels he deserves. This frustration on the part of both of us is typical of the interaction between the reference librarian and the pro se patron.
Incidents like these occur often simply because pro se patrons have unrealistic expectations of a law library reference desk. The average pro se patron when approaching the reference desk has the expectation that the reference librarian has all the answers to all legal questions and can readily provide the answers. Healey (1998) posits that pro se patrons present a problem because of the nature of the patron and the nature of law libraries in general. Pro se patrons are generally unfamiliar with legal reference materials, and they “often misunderstand essential aspects of law and the legal process . . . including the lack of a clear answer to most legal questions” (Healey, 1998, p. 131). These misunderstandings lead to frustration for both the reference librarian and the patron. The patron gets frustrated when the reference librarian cannot adequately answer a legal question because at times there is no clear answer. The reference librarian then may get frustrated as the patron becomes adamant for an answer. Healey even admits part of the problem comes from us librarians in the way we perceive pro se patrons. Healey writes that “pro se users tend to dominate the reference librarian’s time, requiring instruction in legal bibliography and direction concerning the collection, and then demanding interpretation of the materials they find” (p. 133). Going back to the AALL Ethical Principles and the ALA Code of Ethics, we librarians are not to look at a certain type of patron and resent them based on any preconceived notion we might have about a certain subset of the library patrons. Abiding by the Principles and Code, however, is often easier said than done when dealing with pro se patrons.
In response to the feelings against pro se patrons, some scholars argue we reference librarians in a law library setting should restrict pro se patron use. Richmond (2003) adamantly states that the “law librarian cannot give the attorney patron and the pro se patron the same level of service” (p. 80). Kirkwood and Watts (1983) argue that law librarians should divide both their time and users into groups in order to adequately assist those who, in so many words, are more important. Kirkwood and Watts divide library patrons into three groups: primary, secondary, and tertiary. In this framework, law school faculty and attorneys inhabit the primary group and are owed a “high degree of service” (Kirkwood & Watts, 1983, p. 74). Law students make up the secondary group and are owed a lesser level of service. Pro se patrons under this framework make up the group of tertiary users. “Tertiary users are those patrons to whom no assistance is owed by virtue of contractual or statutory duty, and who may or may not be able to judge the quality of assistance rendered,” according to Kirkwood and Watts (p. 74).
The framework posed by Kirkwood and Watts (1983), while interesting, seems too harsh. Healey (1998) does not agree with this approach, claiming that it could lead to “the very real possibility of a claim of discrimination” by a pro se patron who is denied reference assistance (p. 137). Richmond (2003), while agreeing that reference time should be divided in some fashion, essentially agrees with Healey, saying the Kirkwood and Watts (1983) approach is too rigid and “probably discriminatory” (p. 81).
While some such as Kirkwood and Watts (1983) argue for the exclusion of the pro se patron, others argue for inclusiveness. Pro se patrons, according to Moseley (1995), should be viewed like any other library user. The pro se patron is no different than the law student or the attorney, and his or her reference question should be treated with the same respect. Law librarians should therefore not concern themselves with the unauthorized practice of law as they search for legal materials for the pro se patron as searching for materials “only brings together the elements that must be analyzed in a legal problem” (Moseley, 1995, p. 208). So long as the librarian avoids the actual analysis needed to adequately answer a legal question he is doing a service to the pro se patron by gathering the materials. Protti (1991) takes it a step further and believes that law librarians should actually advise the pro se patron when faced with a reference question (p. 238). Since law librarians may at times know more than lawyers about a specific area of law, Protti sees no problem in librarians advising the pro se patron (p. 238).
One side believes pro se patrons should be excluded entirely. Another side believes in all inclusiveness. Is there a happy medium in between these approaches? Various writers have listed concrete steps that can be taken by law libraries to ensure pro se patron inclusion as well as ensure conformity with the prohibition against the unauthorized practice of law. Brown (1994) believes law libraries should post signs at the reference desk. These signs can list the types of services that the reference librarians will and will not provide and can have a list of referral sources that patrons might be interested in contacting (Brown, 1994, p. 41). Along the same lines, Begg (1976) thinks libraries should use pamphlets and research guides that can provide helpful information to the pro se patron since pamphlets “describing the nature of the proceeding and the proper procedures to follow can be of immense value” (p. 32). Schanck (1979) proposes that law libraries have a complete set of guidelines that reference librarians can follow as they face legal questions from the pro se patron. Schanck’s list includes avoiding “allowing the patron to provide a detailed rendition of his problem” and telling a pro se patron what something means in legal terms (Schanck, 1979, p. 62).
Barnes (2005) explains that the librarian may just have to reach a point in the reference interview where he or she refers the patron to professional legal counsel. The reference interview may get into too much detail or may require an explanation of a law or other legal information that the reference librarian just cannot provide. Barnes suggests making referrals to the local public defender’s office, bar associations, and government agencies devoted to the user’s specific area of legal inquiry. This has been a practice we have used at our law library. The law school with which we are affiliated has a legal aid clinic. At times, pro se patrons have needed assistance that went beyond the mere locating of legal materials. When the reference interview reaches that point, we generally ask if they have sought out legal aid, and if not, we get them started on that path.
As a new librarian, I see upfront the differences which different types of library users present at the reference desk. They not only present different types of reference questions. They also present, in my view, different possibilities of running afoul of the unauthorized practice of law. Law students generally seek out aid with ready reference materials. Attorneys may seek out more but seemingly understand the position of the law librarian. Pro se patrons, according to the scholarship, have certain expectations of law libraries and as a result present more difficult situations. As they present unique situations, some writers argue for the exclusion of pro se patrons from the law library. Others argue for their inclusion. Examining the scholarship on the topic as well as the ethical codes by which we are to abide, I believe the middle approach is better. We librarians are to strive to serve all yet should remain cautious in avoiding the unauthorized practice of law. By providing helpful tools to the pro se patrons such as pamphlets and research guides and making it clear we do not provide legal advice, we law librarians are able to adequately serve our patrons while at the same time guarding ourselves against the unauthorized practice of law.
ALA Council (1997, June 28). Code of ethics of the American Library Association. Retrieved from http://www.ala.org/ala/issuesadvocacy/proethics/codeofethics/codeethics.cfm.
American Association of Law Libraries (1999, April 5). AALL ethical principles. Retrieved from http://www.aallnet.org/about/policy_ethics.asp.
American Bar Association (2010). Model rules of professional conduct. Retrieved from http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html.
Barnes, N. (2006). Handling legal questions at the reference desk and beyond. Electronic Journal of Academic and Special Librarianship, 6(3), Retrieved from http://southernlibrarianship.icaap.org/content/v06n03/barnes_n01.htm.
Mississippi rules of professional conduct. (2004, October 1). Retrieved from http://www.mssc.state.ms.us/rules/msrulesofcourt/rules_of_professional_conduct.pdf.
Stephen Parks is the Research, Instruction Services,
and Circulation Librarian for the Mississippi College
School of Law Library. He is a 2010 graduate of
Mississippi College School of Law, and he is currently a
candidate for the MLIS Degree at the University of
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