by Professor Jeff B. Woodmansee, UALR Bowen School of Law
Law Libraries & Pro Se Litigants: Accessing the Information to Access Justice
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?
Additional Reading
Randy Diamond and Martha Dragich. Professionalism in Librarianship: Shifting the Focus of Malpractice to Good Practice. 49 Library Trends 395 (2001). Retrieved on September 27, 2013 from https://www.ideals.illinois.edu/bitstream/handle/2142/8346/librarytrendsv49i3c_opt.pdf?sequence=1
Paul D. Healey. Pro Se Users, Reference Liability, and the Unauthorized Practice of Law: Twenty-Five Selected Readings. 94 Law Lib. J. 133 (2002). Retrieved on September 29, 2013 from http://www.aallnet.org/products/pub_llj_v94n01/2002-08.pdf
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). Retrieved on September 30, 2013 from http://www.librarystudentjournal.org/index.php/lsj/article/view/267/318
Drew A. Swank. The Pro Se Phenomenon. 19 BYU J. Pub. L. 373 (2011). Retrieved September 28, 2013 from http://www.law2.byu.edu/jpl/papers/v19n2_Drew_Swank.pdf
Arthur J. Lachman. Self-help services: Reducing risk by avoiding the formation of lawyer-client relationships. NLDA Insurance Program Bulletin. Retrieved September 27, 2013 from http://www.nlada.org/Insurance/Insurance_Bulletin_Winter_2005