Guidelines and Opinions on the
Unauthorized Practice of Law

A. Virginia UPL Opinion 127, Provision of Legal Research Services

You have indicated that you are a licensed Virginia attorney, and that you propose to set up a business in Virginia which does not constitute the practice of law. For purposes of this opinion, the Committee assumes that members of your staff will not be licensed attorneys. The four scenarios you describe include:

1. Retrieval and copying of law library publications, by your staff, at the request of attorneys only who have provided your organization with specific cites to cases, statutes, etc.;
2. Retrieval and copying of law library publications, by your staff, at the request of members of the general public (in addition to attorneys) who have provided your organization with specific cites to cases, statutes, etc.;
3. Research and law library retrieval for attorneys where the attorney does not provide a specific cite but outlines the question to your staff; and
4. Research and law library retrieval for members of the general public where the inquirer does not provide a specific cite but outlines the question to your staff.

Since the retrieval and copying of specific materials does not require the possession or use of any legal knowledge or skill, it is the opinion of the Committee that the activities indicated in scenarios one and two do not constitute the practice of law. Similarly, since the non-lawyer researcher in scenario three is providing assistance to a licensed attorney who retains an attorney-client relationship with the ultimate beneficiary of the research materials, and since it is the licensed attorney who will assess the legal case and select from among the materials provided by the non-lawyer researcher, it is the further opinion of the Committee that the situation in your third question does not constitute the practice of law.

However, since the intent of Section I of Part Six of the Virginia Rules of Court, relating to Unauthorized Practice Rules and Considerations, is to protect the public from individuals untrained in the law and unregulated by the profession who are providing inappropriate legal advice, it is the opinion of the Committee that the facts as you have presented them in the fourth scenario do constitute the unauthorized practice of law. The Committee believes that in order for appropriate legal research to be done for members of the general public, it is essential that legal training provide the researcher with the ability to assess the inquirer’s legal training case and to then determine which cases, statutes or other legal materials are applicable to the case. Thus, the Committee opines that provision of legal research services to the general public by non-lawyer personnel constitutes the unauthorized practice of law.

Committee Opinion
February 2, 1989

B. Virginia UPL Opinion 152, Public Law Library Employees’ Provision of Information to the Public

The Committee opined that the following Policy for Information Service to the Public, adopted by a Public Law Library operated by a local bar association, is appropriate and conforms to the requirements of the Unauthorized Practice Rules and to the guidelines earlier adopted in Opinion 127. [Policy reprinted in its entirety.]

No one on the Law Library staff is an attorney. Only an attorney may provide legal advice. However, the library staff will serve the public by facilitating access to the materials in the collection.

The Law Librarian will seek to enhance the collection with materials designed for use by the layperson seeking legal information.

The Law Library staff will respond to telephone inquiries regarding the library’s holdings on a particular subject; staff may read exact text over the phone, time permitting, only when provided with a precise citation.

The Law Library staff may not do legal research, answer a legal question, or advise any patron as to what the law on a particular issue is, what the text of a law or legal opinion means, or on legal procedure, court rules, or jurisdiction.

Although numerous form books and legal research materials are available in the library, the Law Library cannot recommend or endorse the use of any particular form for any particular purpose. Consultation with a lawyer is recommended with respect to the use of legal forms and/or form books.

The committee further opined that solutions to eight hypothetical scenarios posed by the inquirer were appropriate and did not violate any Unauthorized Practice Rules or Considerations. The substance of the hypotheticals indicated that non-lawyer law library staff would not select specific forms for patrons presenting questions, would not answer procedural or jurisdictional questions, and would not in any manner evaluate facts presented by a patron in an effort to determine whether a cause of action had accrued.

Committee Opinion
July 2, 1991

C. Virginia UPL Opinion 161, Assistance Provided by Non-Lawyer Library Staff to Library Patrons

I am writing in response to your letter of August 20, l992, requesting an Unauthorized Practice of Law advisory opinion dealing with the provision of assistance to law library patrons by non-lawyer library staff.

The committee has considered your inquiry at a number of its meetings and has directed me to transmit its conclusions to you.

You have indicated that a public law library, operated in Virginia by a local bar association, has adopted the Policy for Information Service (“Policy”) as specified in prior UPL Opinion 152. You further indicate that, for the purposes of the Policy, all non-lawyers will be treated alike.

You have advised that neither computer assisted legal research (“CALR”) assistance nor CALR retrieval services are provided to non-lawyer patrons and CALR is performed only for attorneys. All computer commands and searches are typed in by non-lawyer library staff and no library patrons are permitted to use the computer keyboards. You have also indicated that many attorneys are present while the staff run their CALR searches from prepared written forms.

Finally, you indicate that, frequently, non-lawyer student patrons, who may be employed as law clerks or summer associates and who may be spending significant time on library research, request library staff reference assistance for academic or employment purposes. Such requests are for the most part refused, pursuant to UPL Opinions 127 and 152 and the Policy.

As an initial matter, the committee does not undertake to comment on the Policy of the library, except as it relates to the issue of the unauthorized practice of law. The committee believes that the policy of each library is a matter for its governing body to decide.
As to your inquiries, the committee is of the opinion that inquiries from non-lawyers will ordinarily fall within one of three general categories.

The first category is the patron who seeks assistance in legal research for academic, historical, employment or other non-legal purposes. Since a legal opinion or advice is not being requested and the patron does not intend to use the assistance to affect his legal or constitutional rights or to advise others, provision of assistance would not constitute the unauthorized practice of law. Upon adequate verification of these purposes, such a patron may be given any assistance that the library policies permit and the staff might choose to provide, without limitation.

The second general category would be the law student, clerk, summer associate, paralegal, etc., who is performing legal research under the supervision of a licensed attorney. The committee is of the opinion that the supervising attorney retains the ultimate responsibility for his own work product and the accuracy of his advice. Therefore, assistance to his agent or employee would not constitute the unauthorized practice of law. Upon the library staff being satisfied that the patron is acting under the supervision of a licensed attorney, then assistance may be provided without limitation, subject of course to the policies of the library and the availability of its staff.

The third category would be inquiries from pro se litigants or members of the public seeking legal advice and opinion without the involvement of an attorney. The committee is of the opinion that responses to such inquiries must of necessity be limited since the patron would presumably intend to take positions or actions or advise others in a manner that would affect their legal and/or constitutional rights and which might have grave consequences.

The committee believes that, in such cases, the library staff may only respond to specific questions or requests rather than attempt to interpret the patron’s need as to do more would constitute the unauthorized practice of law.

For example, if the patron sufficiently identifies a case, statute, regulation or other legal material by name, citation or other unambiguous description, the library staff may either provide the requested document or direct the patron to the place in which it might be found. This would include showing the patron how to locate the material if they are unfamiliar with the index or other locator. However, the library staff should caution such a patron that other decisions, statutes, regulations, etc., may exist that would affect or alter the effect of the material actually identified and provided. Likewise, the staff may provide CALR service if the inquiry is formulated by the patron without assistance from the staff.

The committee does not undertake to place limitations on the manner in which the material should be described since this will vary depending upon the material in question. The committee does caution that the inquiry should be specific enough that there is little or no doubt in the mind of the staff member as to what is being sought.

If the request by the non-lawyer patron is nonspecific or general in nature, the committee is of the opinion that the librarian and staff may only direct the patron to the general location of the materials and instruct the patron in the use of indexes or other finding tools. The committee does believe, however, that questions relating to the meaning of legal citations, to the extent that they will assist the patron in locating materials from indexes or citators, may be answered since this is a proper function of a library of any description.

The committee does not undertake to opine on the manner in which the library staff should undertake to verify the status of a patron. The committee believes that such verification is case specific and should be to the satisfaction of the library staff. In a small legal community, patrons may be known by name and association with specific attorneys. In a larger community, more formal means of identification may be required.

However, the committee cautions that verification of the status of the patron is of great importance. The provision of assistance in legal research to a pro se litigant or a patron seeking legal advice, either for themselves or to provide to others, is not only the unauthorized practice of law, but is fraught with peril to both the patron and to the person providing the advice if it prove incorrect or if legal rights are affected.

By issuance of this Opinion 161, the committee hereby restates and reaffirms its conclusions as stated in prior UPL Opinions cited herein, i.e., Opinions 127 (February 2, 1989) and 152 (July 2, 1991).

This opinion is based only on the facts provided and the questions posed and is subject to review by Bar Council at its next regularly scheduled meeting in accordance with Part Six: Section I: 10(c)(iv) of the Rules of the Virginia Supreme Court. Should Council approve the Opinion, it will then be reviewed by the Supreme Court pursuant to Part Six: Section I: 10(f)(iii).

Approved by the Supreme Court of Virginia
November 16, 1994
Effective November 16, 1994

D. Reference and User Services Association Guidelines for Medical, Legal, and Business Responses

Introduction

This is the second revision of the guidelines developed by members of the American Library Association designed to assist information services staff in meeting user needs and in responding to users requesting medical, legal or business information. In this edition, revisions are focused on three issues: (1) new terminology, specifically the replacement of the term ‘reference’ with the term ‘information services,’ ‘patron’ with ‘user’ and ‘librarian’ with ‘information services staff;’ (2) recognition and incorporation of the impacts that rapidly changing technologies have on the delivery of specialized information services and source formats; and (3) change in focus of the original intention of the guideline from one of addressing the needs of non-specialists at general reference desks to one which addresses the needs of both specialists and non-specialists.

Serving as an enhancement to the information included in “Guidelines for Information Services” (2000), the following issues and perspectives specific to medical, legal, and business information service responses are addressed:

1. Role of Information Services Staff
2. Sources
3. Information Service Responses for Off-Site Users
4. Ethics

1.0 Role of Information Services Staff

1.0.1 A library’s information services staff must have the knowledge and preparation appropriate to meet the routine legal, medical, or business information needs of their clientele.

1.0.2 Staff members need to keep current in subject areas and refer questions beyond their level of competency.

1.0.3 Libraries should develop written disclaimers stating a policy on providing specialized information service denoting variations in types and levels of service. The level of assistance and interpretation provided to users should reflect differing degrees of subject expertise between specialists and non-specialists.

1.0.4 When asked legal, medical, or business questions, information services staff should make clear their roles as stated in their library’s specialized information services policies.

1.0.5 Information services staff members are responsible for providing complete and accurate responses to users’ questions when possible and for guiding library users to the most appropriate resources for their information needs.

1.0.6 Staff should provide instruction in the use of the sources, enabling users to pursue information independently and effectively, if so desired.

1.0.7 If a user has trouble understanding a source, an alternative source should be sought for further explanation or for comparison. If no appropriate sources can be located, a referral should be made.

1.0.8 The information service transaction should satisfy the user’s need for information, by providing either accurate sources in hand or clear and concise referrals to obtainable sources and/or services located elsewhere.

1.1 Advice

1.1.1 Libraries may advise users regarding the relative merits of sources, regardless of their medium, and make recommendations regarding library materials when appropriate.

1.1.2 Materials recommended should be the most comprehensive and the most current available.

1.2 Confidentiality

1.2.1 Confidentiality of user requests, both in-person and off-site, must be respected at all times.

1.2.2 Questions should not be discussed outside of the library except when seeking assistance with an information query and names should never be mentioned without the user’s permission.

1.3 Tact

1.3.1 Information services staff should use discretion during the reference interview. While it is important to conduct a thorough interview, this should be done in such a way as to minimize discomfort to the user.

1.3.2 Staff should try to identify the issue in question without intruding on the user’s privacy.

1.3.3 Information services staff should be impartial and nonjudgmental in handling users’ queries.

2.0 Sources

2.0.1 Each library should evaluate and acquire appropriate sources in medical, legal, and business subject areas that are current, accurate, and accessible to meet the needs of the community served.

2.0.2 Users have a right to access information available in library collections within the parameters of copyright and licensing agreements. Information should not be withheld from a user unless the use of a resource in providing that information violates a licensing agreement.

2.0.3 Information services staff should direct the user to possible sources where the information the user requires would be provided. These sources may include in-house print and non-print collections as well as access to external resources.

2.0.4 Aids that assist users in identifying, using, and evaluating relevant sources should be made available.

2.1 Currency of Sources

2.1.1 Libraries should provide the most current information possible, consistent with the needs of the library’s primary clientele and within the limitations of the library’s materials budget and collection development policy.

2.1.2 User guides should be periodically evaluated to remove references to dated materials.

2.1.3 Information services collections should be weeded to withdraw or transfer dated materials to the general collections.

2.1.4 Currency of publication dates should be made clear to the user in the case of information and information resources of a time-sensitive nature.

2.1.5 Since information in medical, legal, and business areas changes rapidly, the user should be advised that there might be more current information available elsewhere on the topic.

2.2 Accuracy of Sources

2.2.1 Information service collections may provide more than one source that answers a user’s request for medical, legal, or business information. Whenever possible, information services staff members should assist users in assessing the accuracy of information by providing alternate sources for comparison or explanation.

2.2.2 In cases where advertisements or solicitations may be misinterpreted as information content, staff should assist users in making the differentiation whenever possible.

2.3 Referrals to Other Sources

2.3.1 Information services staff should make every effort to answer users’ questions in accordance with local information services and collection development policies.

2.3.2 If the question cannot be answered using available sources and personnel, they should be prepared to refer questions to individuals as well as to published sources in a variety of formats.

2.3.3 Referrals should be made to other sources only if the agency, service, or individual, will extend its services to that user.

2.3.4 Awareness of community, state, and private services outside of the library is important and referrals to services should follow any protocols in effect.

2.3.5 Staff may not make recommendations to specific lawyers, legal firms, doctors, other medical care providers or business professionals but may provide access to other information that may help the user identify and locate those resources.

3.0 Information Service Responses for Off-site Users

Off-site users include both affiliated and non-affiliated users requesting assistance from remote locations.

3.1 Special care must be taken with off-site requests for assistance since it is easy to misinterpret voice messages, and text-based communication may need explanations or interpretation.

3.2 Each library should develop information service policies that include provisions for off-site requests.

3.3 Requestors may have to be informed that the library does have information on the topic but that they will need to come into the library to use in-house print and non-print materials and for further research assistance.

4.0 Ethics

4.1 The American Library Association’s current Code of Ethics (as stated in the ALA Policy Manual in the ALA Handbook of Organization) governs the conduct of all staff members providing the information service.