The "practice of law" is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.
Library patrons research the law for many reasons. Some are simply curious about legal issues and their legal rights. Students of all ages research the law for school reports and papers.
It becomes more complicated when a patron is researching the law to draft their own will, start their own business, or represent themselves in a court proceeding.
The term “pro se” refers to individuals who are representing themselves in a legal matter without an attorney. The last few decades have witnessed a dramatic increase in the number of pro se or self-represented litigants (SRLs). Because people naturally turn to libraries as sources of information, there has also been a dramatic increase in the number of library patrons seeking assistance with legal information and materials.
This presents a challenge for law librarians and non-law librarians alike—How do we provide legal reference assistance without giving legal advice? In South Carolina, if a non-lawyer gives legal advice, it is considered the unauthorized practice of law, which is a felony punishable by a fine of up to five thousand dollars or up to five years in prison, or both (See S.C. Code Ann. § 40-5-310).
The following sections on What is the Practice of Law? and Best Practices for Legal Reference provide basic guidelines for avoiding any such dilemma.
Legal Reference for Librarians: How and Where to Find the Answers by 
Finding the Answers to Legal Questions, Second Edition by 
The Law of Libraries and Archives by Librarians are knowledgeable about available resources and skilled at accessing information. With regard to facilitating access to legal information, our role is to recommend resources and services and to teach effective legal research techniques.
Our role is not to conduct legal research for patrons, to interpret their research or apply the law to their particular facts, or to recommend a particular procedure or course of action.
Patrons must conduct their own research, apply it to their own situation, reach their own conclusion, and determine their own legal course of action.
The chart below distinguishes legal reference from legal advice.
Legal Reference |
Legal Advise |
|---|---|
| Asking only information necessary to help a patron access relevant legal information while remaining neutral about the patron’s legal problem | Providing an opinion or advice on the application of a particular law or legal course of action |
|
Directing a patron to a book or legal dictionary to find the meaning of a legal term |
Explaining what a legal term means |
| Teaching a patron how to use legal materials and how to conduct effective legal research | Conducting legal research for a patron |
| Showing a patron how to use indexes and how to conduct keyword searches to locate laws and cases and form books | Telling a patron which laws and cases apply and which forms to use and how to complete them |
| Helping a patron find books on procedures for a particular court (showing her how to find what to do) |
Telling a patron which steps to take, what to file, and in what order (telling her what to do |
South Carolina statutes prohibiting the unauthorized practice of law reads as follows:
§ 40-5-310. Practicing law or soliciting legal cause of another without being enrolled as member of South Carolina Bar.
No person may either practice law or solicit the legal cause of another person or entity in this State unless he is enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina. The type of conduct that is the subject of any charge filed pursuant to this section must have been defined as the unauthorized practice of law by the Supreme Court of South Carolina prior to any charge being filed. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.
Although there is no precise definition of the “practice of law” in South Carolina, the South Carolina Supreme Court has addressed specific conduct in several unauthorized practice of law cases. From those cases, it is clear that if a person who is not licensed to practice law in South Carolina prepares legal documents for another or gives someone advice regarding legal matters, he or she has engaged in the unauthorized practice of law.
The question remains, what is preparing legal documents and what is legal advice?
In State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995), the South Carolina Supreme Court explained that the preparation of legal documents "constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. Further, instructing other individuals in the manner in which to prepare and execute such documents is also the practice of law."
In 2007, when faced with the situation where a non-lawyer assisted a neighbor with filling in the blanks for a computer-generated generic will form, the South Carolina Supreme Court in Franklin v. Chavis, 371 S.C. 527, 640 S.E.2d 873 (2007) held that his actions constituted the unauthorized practice of law because he exceeded the role of a mere "scrivener," which the court defined as "someone who does nothing more than record verbatim" what another instructs him to record.
Our job as librarians is to know the resources and services available to patrons regarding legal documents and forms. It is the patron's job to draft his or her own legal documents and to choose a particular form and complete it. It is also the patron's responsibility to determine how and with whom to serve or file a legal document or form.
When helping a patron who is searching for and needs to complete legal forms, librarians:
CAN
CAN NOT
This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - we cannot apply the law to your individual circumstances, tell which form you need to use, or how to fill out the form.
For legal advice, you should consult an attorney.