— Jeff Woodmansee (@jbwoodmansee) April 16, 2014
[Editor’s Note: This entry originally appeared on the The Arkansas Journal of Social Change and Public Service on November 29, 2013.]
One of the many effects felt downstream during the U.S. economic slump of the past several years has been the tremendous rise in pro se litigation (i.e., citizens who choose to represent themselves in court, generally due to their inability to afford an attorney) in today’s courtrooms. However, even as the need for access to professional legal services increases, officials in both federal and state government find themselves needing to cut existing services to lower budgets. Accordingly, many public law libraries find themselves taking on an ever-increasing role as the de facto “front line” for the growing demand for access to legal information, leading to increased pressure on law librarians and other legal-information professionals who provide reference services and often balance myriad other “new” duties in this transitional period of our profession.
With this new environment comes not only increased patron counts, but also the kind of expectations many of these laypersons have when they come see a “lawyer librarian.” In this role, we have a very important legal boundary when dealing with these patrons – we are not their attorneys, are not practicing law in this role, and cannot steer them into decisions by providing legal advice. It’s not only unethical; it can have negative repercussions should the person not have things go their way and feel they relied on your opinion to make a decision. With so many resources and layperson forms available now, however, and because many people are directed to law libraries by local court staff members without much direction as to what can be offered, many patrons have unrealistic expectations of what the reference librarian can do for them. That said, those in this field are librarians first – while legal boundaries must be respected, there is also a professional obligation for reference librarians of all stripes to treat all patrons equally and fairly and provide them with the tools they need to access and use the information that they seek.
Pro se patrons are a unique group of people from all sorts of different backgrounds, but almost all share a very limited background when it comes to the practice of law. Nonetheless, as persons representing themselves in court, they are required to perform at least some research to have a basic understanding of their legal issue, and they must submit documents that follow a certain basic format to be deemed acceptable in court. These patrons typically ask for assistance in choosing and drafting pleadings and forms, interpreting what something says, and in researching statutory law. Ethical conflicts arise regarding the level of reference service a librarian can give to the patron in this context, often when choosing forms, and particularly in drafting forms to be used in court. Patrons frequently inquire about the legal expertise of the person helping them, and, if that person mentions that they have a law degree, those expectations become even higher. Many library policies are vague on issues such as these, leaving librarians on their own when an insistent patron’s inquiry becomes problematic. The trick for librarians is to perform as experts on finding information, rather than as experts at analyzing all of the information gathered, in order to assist the patron in a meaningful way but also not cross into the unauthorized practice of law.
Fulfilling Ethical Duties While Avoiding Unethical Conflicts
The tools of legal reference are often very confusing to pro se patrons, and it is important that these patrons have someone to assist in the navigation of these tools, because, office water cooler stories aside, helping them remains our duty as librarians. To leave the user floundering about, unable to use available resources would be no less a disservice or wrong action than would giving out bad legal advice. The librarian’s loyalty lies with the patron and their information need. Yet fulfilling this need comes with restrictions that protect both the librarian and the patron who has taken on the task of handling the matter on their own. It is best for law librarians to help the patron as much as possible – providing basic source and term suggestions; instruction on using the tools, guides, referrals, and other pieces of assistance; and avoiding any lawyerly performance that might arguably establish a client-attorney relationship. There are certainly a broad range of approaches to this process, with some librarians acting as a source guide, and others as someone who teaches the self-litigant how to research on their own, but the bottom line is the same: if the line into “lawyerly function” is not crossed and the librarian is working inside the boundaries, they may assist their patrons without needing to fear unauthorized practice of law.
Game-planning for Law Libraries
Many library policies do not specifically address the problem of giving clear guidelines to both staff and pro se patrons about the scope of available reference service, beyond cautioning their librarians to tread carefully. Placing stated policies regarding the scope of available legal reference services in a prominent position where patrons can easily spot and read it as they wait their turn at the desk can be a great way to get everyone, staff and patrons alike, on the same page. In addition to increased awareness of policies, there should be available directories and referral lists of attorneys and local association numbers available to the patrons who need legal advice – what better way to show that librarians are here to help, but we are happy to defer to the “experts” when it comes to the actual practice of law?
Randy Diamond and Martha Dragich. Professionalism in Librarianship: Shifting the Focus of Malpractice to Good Practice. 49 Library Trends 395 (2001).
Paul D. Healey. Pro Se Users, Reference Liability, and the Unauthorized Practice of Law: Twenty-Five Selected Readings. 94 Law Lib. J. 133 (2002).
Paul D. Healey. Professional Liability Issues for Librarians and Information Professionals (Neil Schuman Press, 2008).
Stephen Parks. A Lawyer/Librarian’s Efforts to Avoid the Unauthorized Practice of Law. Library Student Journal (2013).
Drew A. Swank. The Pro Se Phenomenon. 19 BYU J. Pub. L. 373 (2011).
Arthur J. Lachman. Self-help services: Reducing risk by avoiding the formation of lawyer-client relationships. NLDA Insurance Program Bulletin.
The Arkansas Journal of Social Change and Public Service is a vehicle for identifying and addressing the pressing needs of our society. It examines issues lying at the nexus of policy, public interest, and academia, and raises awareness of topics insufficiently examined in traditional scholarly publications. [UALR Bowen School of Law]
[Editor’s Note: This entry originally appeared on the RIPS Law Librarian Blog on November 11, 2013.]
Although we have long incorporated elements of teaching into our “toolkit” of skills as reference librarians, there is an increasing trend of academic law librarians having formal teaching duties inside traditional classrooms. In today’s rapidly changing information environment remaining relevant means librarians must understand our role (and ourselves) as library and information professionals. We have roles beyond those of traditional encounters at the Reference Desk. And whether we’re at the Reference Desk or inside a classroom, we must strive to understand the complex behavioral processes that information seekers experience during the search process.
Law librarians serve a variety of roles as legal information professionals, especially in today’s day and age of advanced software and online technologies. Still, in the end, our traditional functions as being the people best equipped to help others access the information our patrons need and providing them with the tools they need to perform efficient research themselves remain paramount to what we do. We must always appreciate the roles we serve within the library and the overall mission that library serves for its users, regardless of all of the new “outside the library walls” duties we have now incorporated into our more traditional daily routines.
Of course, with that comes a new responsibility to not remain static and merely wait for today’s patrons and our new students to seek us out. Instead, we must be able to evolve constantly as technology demands and users and their needs adapt accordingly over time. Today, while we concern ourselves most with how to best serve our primary users and patrons to serve their information-seeking needs, we are now serving a much more diverse group of users and find ourselves having to adapt to their constantly-changing needs.
It’s important to note that even with all of the formal change seen in academic law libraries, many information professionals, even those not in the academic setting, generally acquire some pedagogical teaching skills along the way in their education—or will need to pick up these communication skills in other ways to effectively assist the wide range of patrons headed their way. We know that a lot of what we do in this profession involves “mini-lessons” with our users, and to be successful at that, one must be adaptable to various user learning styles. Each user is unique, and we need to be able to adjust to meet those needs in the best manner possible. Though we may serve unique individual users, we can also become better at what we do by picking up on general trends displayed by users to be better prepared when common needs arise. This is even more important when adding so much online technology in the mix because we find that we’re not just demonstrating the process of how to navigate the library’s resources, but often having to teach basic computer software and online researching skills as well.
For further reading, please see the following:
Beatrice A. Tice, The Academic Law Library in the 21st Century: Still the Heart of the Law School, 1 UC IRVINE L. REV. 159 (Mar. 2011).
Michael Rogers, Turning Books Into Bits: Libraries Face The Digital Future, MSNBC: The Practical Futurist (Sept. 2005).