July 25, 2011
The Grey Area of Unathorized Legal Practice
How many times in my career have I told a public patron that I couldn’t answer a question because I couldn’t provide legal advice? How many times have they told me that they didn’t want legal advice but proceeded to ask questions about court procedure, how to fill out a form, or what to put into a document intended as a court filing, or something similar? I’ve even had an attorney come to me once asking for arguments on a statutory construction issue he could put in a brief that was due in less than 24 hours. Does that constitute the unauthorized practice of law?
I bring up the ethical obligations of librarians because of this article in Forbes: Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules. It details several instances where non-lawyers are up on charges for doing things such as preparing forms for individuals to use in immigration filings, even though the U.S. Customs Service encourages their use. There are other instances where non-lawyers prepare paperwork used in uncontested divorces, paperwork that is typically filed by a pro se litigant. And of course, there is the LegalZoom case, where a software package that writes wills is under class action challenge in Missouri even though no consumer harm is alleged. The software was created by former O.J. Simpson attorney Robert Shapiro.
Contrast this approach to legal services with that in the United Kingdom. The Legal Services Act of 2007 divides work into reserved and unreserved categories with 80% of the work performed by law firms described as unreserved. That means anyone can enter the legal advice business short of appearing in court. The Act takes effect this October and the result should be interesting to anyone in the legal advice business. Will the British find these alternative legal services satisfactory to meet their lesser needs? How will the incompetent entrants be sorted out, aside from market forces? We will begin to see next year what a deregulated legal services market will look like going forward under the Act.
I realize that lawyers in the United States are protective of their franchise. The Forbes article quotes the licensed attorney fallback statement that consumers wouldn’t want to be operated upon by an unlicensed doctor. That statement completely ignores medical treatment offered by nurses and nurse-practitioners. Not every medical procedure requires a doctor, and not every legal matter requires a lawyer. I’ll point out that nurses practice their version of the medical arts in a regulated environment. It would be simple enough to do the same thing with simple legal problems if it weren’t for the paranoia of the established bar. I’d like to see education requirements and professional standards established for what could be the nurses of the legal profession.
Getting back to ethical issues for librarians and legal advice, my approach for handling the “non-legal” legal questions is to offer the patron general information on the area of law involved in their question. That acts as a context for any of the research materials to which I direct them that may help them with their specific problem. I’m always careful not to give them specific, interpretive answers to the legal problem at hand. It works for the most part, but not always. I had an encounter once with an impatient patron who demanded some legal interpretations of the statute of limitations. She wasn’t happy with my responses and heatedly asked if I was a lawyer. I responded by saying, yes, I was a lawyer, but I wasn’t her lawyer. This incident was a rare exception to how my encounters with public patrons tend to work out. [MG]