Librarians and the Unauthorized Practice of Law

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


- 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 !!!


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 CarolinaState 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 CarolinaState v. McLauren, 349 S.C. 488, 536 S.E.2d 346 (Ct.

App. 2002)“The Supreme Court has defined the practice of law toinclude 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."


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 OpinionsQuery: 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


C. I don’t know

Explaining what a statute means?

A. Legal Advice


C. I don’t know

D. Maybe? Directing a patron to statutes, rules, ordinances

and cases?

A. Legal Advice


C. I don’t know

D. Maybe?

Recommending a patron appeal their case?

A. Legal Advice


C. I don’t know

D. Depends on the explanation Explaining the process for appealing a judge’s

decision?

A. Legal Advice


C. I don’t know

D. Depends on the explanation

Recommending the use of an attorney?

A. Legal Advice


C. I don’t know

D. Depends on the explanation Recommending a specific attorney or list of

attorneys?

A. Legal Advice


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, trespassResources: 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, trespassResources: Online or Print


- 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 divisionResources: Online or Print


- 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, FMLAResources: Online or Print


- 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

2.Personal Malpractice Liability of Reference Librarians and Information Brokers by John A. Gray. Journal of Library Administration, v9 n2 p71- 83 1988 ERIC #: EJ389233

3.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

4. 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.

6.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

7.South Carolina State Bar - www.scbar.org/public/upl/default.asp

Unauthorized Practice of Law - End

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Librarians and the Unauthorized Practice of Law