UPL No. 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:
- 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.;
- 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.;
- Research and law library retrieval for attorneys where the attorney does not provide a specific cite but outlines the question to your staff; and
- 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 nonlawyer 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 nonlawyer 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 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 nonlawyer personnel constitutes the unauthorized practice of law.
February 2, 1989
UPL No. 152 Public Law Library Employee's 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 No. 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 holding 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 consideration. The substance of the hypotheticals indicated that non-lawyer law library staff would not select specific forms for patrons presenting question, 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 has accrued.
July 2, 1991
UPL No. 161 Assistance Provided by Non-Lawyer Library Staff to Library Patrons
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 nonlawyer 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 nonlegal 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 to 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 proves 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).
Approved by the Supreme Court of Virginia,
November 16, 1994