Locating the Law 4th Edition CHAPTER 6: LEGAL REFERENCE V. LEGAL ADVICE ANO PERSON SHALL PRACTICE LAW IN CALIFORNIA UNLESS THE PERSON IS AN ACTIVE MEMBER OF THE STATE BAR@1 @ The question of when providing legal reference may constitute the unauthorized practice of law has been a topic of professional literature since early in the 20th century.2 While there are no known cases of a librarian being prosecuted for practicing law without a license, the real concern is a matter of ethics. A librarian who, while assisting a patron in locating information about her legal problems, begins offering opinions or advice about a course of action that should be taken, may unduly influence the patron, and it is possible that this influence could negatively affect the ultimate outcome of the problem. WHAT A NON-ATTORNEY CAN AND CANNOT DO In California it is illegal for people who are not members of the California Bar Association to practice law. The Apractice of law@ has been defined in California as: A...doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in court.@ 3 This statute limits the help given by librarians, paralegals and any other individual who has not passed the California State Bar. For librarians in all types of libraries who are committed to giving the very best service possible, the following is a list of can’s and cannot’s to serve as a guide when you are assisting a patron with legal reference questions:
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Locating the Law 4th Edition
PROVIDING LEGAL REFERENCE Non-attorneys (librarians and others) can:
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Recommend law books on particular subjects, including books that provide forms and will explain the law and procedures of the courts, and demonstrate how to effectively use them by explaining the indexes and tables of contents; Help to find the broad definition of legal words or phrases, usually by using sources such as Black’s Law Dictionary, Cal. Jur. 3rd, Words and Phrases, etc.; Perform an on-line search to provide the patron with information which may be relevant to his legal question; Suggest search terms when using indexes or finding tools; Locate new legislation or cases when the patron does not know the citation or party names; Read short quotes from legal materials over the phone when the person has a specific citation (time and library policy permitting); Teach legal research techniques such as use of digests and Shepard’s; Locate biographical information about attorneys and judges.
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Locating the Law 4th Edition
THIS IS OR MAY BE GIVING LEGAL ADVICE Non-attorneys (librarians and others) cannot:
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Help a person by interpreting the law (statutes, regulations, or cases), or offering an opinion as to how a patron’s specific legal problem should be handled. It is illegal for anyone other than an attorney to do this. Librarians, paralegals and other non-attorneys may know where to find legal information, but are not trained in the procedures and rules of the court, or in legal theory, and most importantly, are not licensed to practice law. It is imperative that patrons research their own issues and come to their own conclusions about how the law applies to their particular situation; Identify any single law as the statute (or regulation, or case) that will answer the patron=s legal question; Interpret the law by explaining what a statute (or regulation, or case) means; Recommend a specific legal form or explain how to fill in the form (However, again, it is okay to refer patrons to Nolo Press publications, for example, and show the sample forms in the books which deal with their legal issue. The patron will need to ultimately decide whether to use those forms or not.); Write a brief, prepare a will or draft a contract; Interpret any legal document from a court or an attorney.
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There are plenty of legal procedures non-attorneys can handle themselves, but when things get complicated, there is no substitute for a good attorney. Attorneys are trained in the law, they understand legal theory, they have experience with forms and procedures, and they have malpractice insurance in case things go awry.
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Locating the Law 4th Edition HOW TO FIND LEGAL ASSISTANCE There are often a variety of legal resources available in a community which are not well publicized. A librarian who is trying to assist a patron with a legal problem will want to be aware of how to find these resources: CALL YOUR CLOSEST COUNTY LAW LIBRARY FIRST: There are often legal resources available in the community to assist people who are reluctant or unable to consult an attorney when they are initially confronted with a legal problem. There is a county law library in every county in California. Though they are funded separately from the public library, they are open to the public, and offer some reference service. They usually have a good collection of selfhelp law books, like Nolo Press publications. While many law librarians do have legal training, they do not give any legal advice, they provide reference service. County law libraries often compile a listing of local legal resource services (such as the State Barapproved lawyer referral service or a legal clinic that offers Apro bono@ services in your area), and they will be happy to share this information with public libraries. In addition, because many county law libraries are located in or near court houses, the librarians may be able to provide you with information about domestic violence clinics which assist victims in getting temporary restraining orders, as well as other important programs, such as adoption clinics and mediation services for divorce, landlord-tenant, or neighbor disputes. If you are trying to assist a patron, this is a good place to begin. You can also call your local county bar association to find out what resources they have available in your area. Many county bar associations in California have pro bono programs, where attorneys volunteer time to legal causes and to people who cannot afford an attorney. In addition, some law schools offer legal clinics run by students who are supervised by attorneys. Call your local law schools to get more information regarding this option. There are legal aid societies and community outreach programs that host legal clinics. Often senior citizen centers will have a lawyer visit on a regular basis. Sometimes government agencies can answer questions about their internal policies and procedures. The United States Government Manual is the best place to begin your quest for federal agencies (see www.access.gpo.gov. The State of California Telephone Directory is a wonderful resource for finding who does what in California, and for government agency phone numbers other than those generally advertised as public information numbers. This resource can be ordered from Documents Section, PO Box 1015, No. Highlands, CA 95660, (916) 574-2200. You can also find it in public libraries and other resource centers. Also, check out the official California state web site at http://www.ca.gov for links to the various state agencies.
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Locating the Law 4th Edition Check the yellow pages of your telephone directory under ALegal Services,@ which will refer you to a number of areas: arbitrators, attorneys, divorce assistance, mediation services, paralegals, etc. However, caution should be used when referring patrons to these resources, as many of these businesses do not employ qualified legal advisors. Show the patron the listings in the phone book, but be careful not to make any recommendations that could be construed as a Alibrary recommendation.@ Remember, only an attorney is authorized to give legal advice, anyone else who does so is breaking the law. The more serious someone=s legal situation is, the more important it is for them to get good legal counsel. HAVE A WRITTEN POLICY REGARDING LEGAL ADVICE POSTED FOR PUBLIC VIEW People needing legal help are often scared and desperate to get the answer they want. When a staff member becomes overly eager to please patrons, it can give the impression that a library is willing to do more than the law allows. All library staff members should be educated regarding giving legal advice. A written statement of the library’s policy posted in the library is often useful. A handout can be created by typing the policy statement with a list of legal organizations. A statement such as the following can enlighten the patron as to legal limitations: A MESSAGE TO PATRONS ON LEGAL ASSISTANCE Some library patrons do not realize that it is unlawful for members of the Law Library staff to help patrons interpret legal materials they read or to advise them how the law might apply to their situation. That kind of service would constitute the unauthorized practice of law and could subject the staff member and the Law Library to prosecution. It would also require an amount of personal service that a staff of our size cannot provide if we are still to carry out other duties. For those reasons, our staff must limit themselves to advising you which books might be helpful to you, where they are located, and how to find information in them. Please do not think our staff is being uncooperative when they suggest that you interpret the materials you read for yourself and make your own decisions as to how the material you have read applies to you. Our staff will be happy to help you find the materials you need, and to show you how to use the various legal publications. If you need further help to solve your legal problem, you may wish to consult one of the following legal service organizations:
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Locating the Law 4th Edition [LIST YOUR LOCAL ORGANIZATIONS HERE] A file of organizations that offer legal services can be very useful. Keep track of organizations’ URLs, addresses and phone numbers, as well as their hours of operation, and what services they provide. It is a good idea to note if they charge for their services, if they offer help over the phone, if an appointment is necessary, etc. It is every librarian’s goal to be helpful and to give excellent reference service. By recommending sets of books, teaching patrons how to use the sets (indexes, etc.), helping choose search terms and translating legal citations, we are keeping ourselves within the bounds set by the law and our professional ethics. We are also doing more good than damage to a patron’s legal situation. BIBLIOGRAPHY Yvette Brown, From the Reference Desk to the Jail House: Unauthorized Practice of Law and Librarians, Legal Reference Services Quarterly, p. 31-45, v. 13, no. 4, 1994. NOTES
1 California Business & Professions Code '6125 (West Supp. 2000) 2 Margaret E. Hall, Reference Work in a Law Library, 31 Law Library Journal 238 (1938) 3 Smallberg v. The State Bar, 212 Cal. 113, 119 (1931) citing Eley v. Miller, 34 N.E. 836,
837-838 (Ind. Ct. App. 1893)
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