Avoiding the Unauthorized Practice of Law

By Scardilli, Brandi | Information Today, October 2014 | Go to article overview

Avoiding the Unauthorized Practice of Law


Scardilli, Brandi, Information Today


No librarian has ever been prosecuted for the unauthorized practice of law (UPL), but the concept still makes many librarians nervous. UPL occurs when someone who is not a licensed attorney helps another person with a legal matter, says Anthony Aycock, the instructional support services manager at the North Carolina Justice Academy and author of The Accidental Law Librarian. It's a concern for anyone working around the law, including paralegals and law librarians. Public librarians also need to be diligent about avoiding UPL when they interact with patrons who have legal questions.

"There's never been a case where someone sued a library or a librarian because they thought they were getting faulty legal advice or they did what the library said and lost their case; that's never happened. But because it could happen, that's what freaks a lot of librarians out," says Aycock. Talking to patrons about legal matters can seem risky, but by practicing answers to common legal questions, knowing the best resources about the law, and remaining calm in any situation, librarians can avoid UPL and still help their patrons.

Do No Harm

"Aside from the personal, legal, and possibly job-related ramifications, I think the greatest danger of UPL is the possibility of doing harm to our library patrons by attempting to practice law when you're not qualified to do that, and you don't have a full knowledge of the facts behind the question," says Mary S. Searles, the director of the New Hampshire Law Library. Librarians don't want to see patrons lose their cases because they didn't get the proper legal help, regardless of whether they blame the library for their failure.

Laura Orr, the law librarian at the Washington County Law Library in Oregon, also notes the serious ramifications of UPL. People can lose time, money, custody of their children, property, and liberty if they follow bad legal advice, she says, such as a patron who lost tens of thousands of dollars after writing his own house sale contract because the deal went south and he hadn't consulted a lawyer. "Those things would not happen if you do thorough legal research or if you talk to an attorney. I've been doing this for 25 years; I can research circles around lawyers, but when I have a legal problem and do a little research to get information for myself, I hire lawyers," she says. Lawyers will know which laws to apply to each particular case, which is something a librarian can't learn from consulting a book, she explains.

Legal Advice vs. Legal Reference Advice

Searles notes that librarians don't need to answer every question they're asked, which is a difficult habit to break, especially for public librarians, whose job involves helping patrons solve their problems. "You owe people a response, but we tell librarians to respond to a legal advice question with a legal reference answer," she says.

Searles' first response to a legal question is, "I don't know." She suggests that library students practice in the mirror at home before working in a library, so that when a patron asks, for example, if he should use a specific form, a librarian can say, "I don't know if you should--that's a question for a lawyer. I can show you this book that talks about the subject, but I don't know what you should do." Searles finds that although "I don't know" can be difficult to say, it becomes the most valuable response when in the field. Orr agrees that practice makes perfect. She says that even if a librarian can find the correct answer to a patron's question, that doesn't mean he's asking the correct question about the law.

"And it's not that you're saying, T don't know,' it's that you have to fit it in with a shrug, practice looking a little demented, and say, 'That's a great question; I have no idea, but let's go and do some research,'" says Orr. (She cautions against telling patrons that she can't answer something because saying "can't" implies that the librarian has something to hide. …

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