I recently read Yvette Brown’s From the Reference Desk to the Jailhouse: Unauthorized Practice of Law and Librarians. It came to me while searching for prison librarianship articles due to jailhouse in the title.
Even though this article focuses on public librarians’ experiences with law at the reference and circulation desks. This article is helpful to learn where to ethically cross the line without obstructing a patron’s need for legal information and legal advise that may lead to violating ethical codes and / or the law due to performing unauthorized practice of law in the prison setting. We as librarian need to know the difference between legal information access and advise, but also make our patrons aware of our limitations.
Brown reminds us to remember the variety of people who are our patrons:
When patrons approach the desk seeking legal advice, they are approaching the desk from various standpoints, from being unable to afford or locate low cost or free legal services to plain curiosity about the law. In many cases, they view the person sitting behind the reference desk as the solver of their problems and not the guide lo the solution. (32)
Even in a law library setting, patrons blur the lines of attorneys and librarians. Here, Brown informs us on what a librarian CAN do and what attorney’s are for:
Law library patrons are unaware of some of the fundamental differences between the services of an attorney and the services of a librarian. First and foremost, an attorney’s job is to provide legal advice, counsel, and representation. In sharp contrast, when a library patron approaches the reference desk, the patron is entitled to legal reference, not legal research, or legal advice, or legal representation The librarian’s role is to disseminate legal information, not vindicate fundamental rights at the reference desk. The librarian may tell the patron where supreme court decisions are located; the librarian does not read, analyze, interpret or apply a decision to the patron’s personal situation.(32)
Brown also offers us some advise when in the reference interview on to distinguish legal information or advise and what the patron must do on their own:
“Err on the side of caution rather than recklessness” should be every librarian’s motto when providing legal reference.Librarians should apply a two prong test to each reference request. First, does the question require legal advice or legal information. Second, does the answer to the request go beyond mere guidance. The patron is entitled to be pointed in the right direction and instructed in the proper usage of legal materials. The patron must personally go to the index or digest, select the proper form, case, or statute, and apply it to his or her personal circumstances. The patron, not the librarian, interprets and drafts all legal documents. (33)
In the prison system, there are some differences in assisting patrons with legal needs:
The only library patrons who are entitled to assistance with preparing and filing legal documents as a matter of law are prison inmates. The United States Supreme Court held that prison authorities must assist inmates in filing and preparing legal documents with either adequate assistance from individuals educated in the law or they must provide the inmates with an adequate law library? In the dissent, Justice Rehnquist noted, however, that the majority opinion is based upon a fundamental constitutional right of access to the courts which can not be found in the literal text of the United States Constitution and that he “would not have the slightest reluctance to overrule Younger and reverse the judgment of the Court of Appeals in this case.” (33)
Ms. Brown suggests librarians do 10 things to make clear to patrons that librarians can offer legal information access and not advice beyond taking a conservative approach to legal questions:
- Post a sign at various desks patrons can approach distinguishing what legal services librarians can and cannot provide.
- Have handouts prepared to give patrons with legal hotlines and low income legal services in the community.
- Sign up for mailing lists of legal hotlines and low income services to be aware of any legal workshops that might be available to the public. Make these date available for patrons and put on a community calender.
- Libraries may want to partner with low income legal services by putting legal packets they distribute on reference or placed where the public can pick up when needed.
- Libraries should provide professional training for their staff about unauthorized law practice. Asking a local law firm to participate in the education of librarians and staff might work out nicely.
- Collect self-help legal books and how to interpret the law books for patrons needing such help that staff cannot offer.
- Librarians might want to use examples of non-legal materials when explaining how to find materials in the library, therefor the patrons knows how to find anything and then can find legal information on their own.
- Prepare a line or two that staff and librarians are comfortable saying when patrons insist on legal help to help them understand that they need to contact an attorney.
- Prepare a guide to law information at the library for patrons to get familiar with legal information access they have available to them at the library.
- This handout should have a disclaimer similar to what Brown offers: “This handout is only for informational purposes regarding the library’s holding and anyone with a legal problem or question is strongly advised and encouraged to consult an attorney” (42).
- Try to prevent a patron from telling them their predicament with why they are needing legal information. This will help stop the temptation of wanting to help the patron and giving advice. Complete your reference interview and rely on information that the library has available.
It seems like the best practice to serve patrons with legal needs and not violate ethics or laws is to be prepared for these patrons, especially with materials that can guide them through the materials at the library and partner with community legal organizations to provide further access for patrons.
Below in the resources are also links to codes of ethics for the ALA and the AALL (American Association of Law Libraries).
Brown, Yvette. From the Reference Desk to the Jailhouse: Unauthorized Practice of Law and Librarians. Legal References Quarterly. 13.4 (1994): 31-45.
Monaco, Ralph. Revision of the AALL Code of Ethics: Role of an Ethics Code. AALL Spectrum. (Nov 1997): 14-8.