Legal Research Services for the Public – Looking for a Solution

Ever since I set up a shingle four years ago to consult independently, I have been asked periodically as to whether I do legal research. Most recently, a few people have asked if this is a service I provide for the public. My response until now has been that I really don’t know of anyone who does any substantive legal research for the public. It would be great to have the great collective mind of the Slaw community work on a solution since it is something I haven’t been able to crack myself.

Some libraries (public and academic) may be able to direct the public to hard copy sources for their research or retrieve specific documents from online sources. Earlier this year I also asked my colleagues via the law library listservs as to who does independent Canadian legal research. Most who responded positively and were willing to do so unfortunately did not have their own licensing arrangement with the commercial vendors and would have to rely on the requester to provide access.

CanLII screen shotWhere does this leave the general public? In addition to pro se litigants, I can imagine there are likely historians and scholars doing research leading to the writing of reports and historical treatises. And possibly other types of research, too. How do they do it??

The challenge of providing any kind of substantial legal research from online sources for the general public seems a tad insurmountable:

  • Typically Canadian online commercial legal research sources are made available by flat rate subscription, not transactional fees. My perception has been that this would make setting up a legal research service prohibitively expensive for someone working independently.
  • Much as with in-person inquiries at libraries when the public look for research in hard copy sources, emphasis would need to be placed on explaining that no interpretation by the online searcher could take place (well, unless the searcher was also an insured lawyer willing to take on the risk). I wonder how meaningful search results would be if no interpretation could take place? An approach to this would need to be taken and policies would need to be put in place.
  • Liability would be a huge issue. When law librarians do legal research for client files in a law firm setting, it is understood that the lawyer on the file is ultimately taking responsibility for the results found and their interpretation. And is insured for this responsibility.

I was brainstorming some ideas with Liana Giovando (a newly-minted fellow independent law librarian), and this is what we have come up with so far:

  • A consortium of some sort might be best to take this on rather than one or two independent consultants. Having the backing and resources of a larger group would go a long way to mitigate the costs and liability.
  • Alternatively, perhaps a law firm would take this on as a service, providing the backing in terms of liability, providing the service of lawyers to review (and interpret?) search results.
  • If commercial legal research sources are prohibitively expensive, then perhaps research could be done solely from publicly available sources such as CanLII, advising the research requester of the difference between free and fee sources.
  • Access to a library with hard copy resources would also be needed to supplement the online research. Would it be acceptable to use a public library resources for this type of (presumably paid) service, or would an agreement need to be made with an existing law library to give access? Perhaps access to a number of otherwise private libraries would be needed.

That is as far as I’ve gotten with thinking this through. The next step is to determine whether there is a real need for such a service. Is this something that comes up only periodically, or frequently? What types of requests are there? Is it worth setting up such a service and what would be the business model? Thought would also need to be given as to how to deliver this type of service and how to market it.

I invite you to share your thoughts and suggestions, especially something that will move these ideas forward (I’ve already got lots on the negative side, thank you). Is there a service like this already that I have not yet found? How could one be set up? Would you be willing and able to help move this forward?

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Comments

  1. It would be interesting to hear from the academics whether or not a service like this could be used as a training ground for students in law or in information programs. Suitably supervised, this might be a huge opportunity for the students to gain some real-life experience in negotiating the request, useing the tools and professional communication.

  2. Thanks, Wendy. I hadn’t thought about students.

    But that kind of model would still run into the same concerns, with need for licensing of the online services and the liability issue. Or are you thinking the law or library school would take on the responsibility of both of those?

  3. How do the clinics work? Do they rely on law students (I have a suspicion they do for a lot of the work with clients). If the libschools could develop relationships with the existing legal infrastructure, you wouldn’t have to reinvent the wheel.

  4. Some are student clinics, some are not. That is an interesting thought though, providing this as a service from the clinics.

    I wonder if that might add a layer of complexity to their service they might not welcome? I had thought about clinics as being a place to partner with to take in potential clients though.

  5. Hi Connie,

    Thanks for your thoughtful musings. There are in fact several freelance (independent) legal researchers, some of whom do work for lay litigants. In my experience, sometimes lay litigants say they are looking for legal research, but what they are really expecting is a lawyer to handle the entire file. (I have a lot of sympathy for lay litigants who are trying to use a research lawyer, since even regular lawyers have quite different ideas about where “legal research” stops and other legal practice begins.)

    Access to some commercial research services is free from courthouse libraries in BC, so there is no licensing cost associated with accessing these services. Of course, sometimes an issue requires more extensive fee-based resources, which would involve disbursements.

    In fact, the BC Courthouse Libraries hosts a listing of freelance legal researchers (I should disclose, I am one) on their website (http://www.courthouselibrary.ca/library/researchers.aspx), and they are currently featuring this service on their homepage.

    Thanks again for your thoughts — a consortium as you are proposing does sound like a good idea!

    Cheers,
    Susan MacFarlane

  6. As Susan mentions, in British Columbia, our courthouse libraries are open to the public. All our clients, from the public and the legal community, have access to such commercial databases as LawSource and Quicklaw on our public access computers (as well as our print materials). As well, our library staff provide assistance to members of the public with their research in our seven largest libraries and via email and a 1-800 number. Our focus is on providing some initial information and suggested approaches, to help point the member of the public in the right direction with their research. We also (where appropriate) make referrals to free and low cost legal services, or suggest that the client consider seeking legal advice. We’re finding that questions from the public are on the rise – in 2010, 38% of our information requests were from the public, up 30 percent over the last four years.

    As Connie mentions, there are a number of challenges in taking on more full-blown research assignments from the public, particularly the challenge of not providing legal interpretation or advice. Where a member of the public is looking to have more indepth legal research done on their behalf, we recommend that they try the list of freelance research lawyers maintained by the Canadian Bar Association BC Branch and available through our website.

    Public access to legal research expertise is a dimension of the much broader issue of access to justice. At Courthouse Libraries BC, we’ve put efforts into enhancing access to legal information for the public, by coordinating the Clicklaw portal that features plain language legal information and options for legal help. We also partner with public libraries in BC with our LawMatters program to provide access to current legal information in public libraries. These programs aren’t a replacement for a lawyer or a legal research specialist, but they do extend access to legal information, which can help people to identify if they have a legal issue and become more aware of options for help.

  7. I have been a freelance lawyer in the U.S. since 1996. My comments below are based on my experience with the American legal system and my knowledge of American ethics opinions concerning issues of interest to freelance lawyers.

    In the U.S., freelance lawyers (a/k/a contract lawyers) work exclusively for other attorneys. Thus, the introduction to http://www.courthouselibrary.ca/library/researchers.aspx (“One option for people in British Columbia who need more in-depth legal research than the assistance offered by Courthouse Libraries BC is to hire a research lawyer on a freelance basis”) would not make any sense here in the U.S. I note that the website of at least one entity listed on that page (http://onpointlaw.com/) clearly states on its website that it offers its research services only to other lawyers.

    In my view, conducting legal research on a particular subject, and communicating the results of that research (by, for example, forwarding cases, statutes, etc., without any of your own analysis) to a non-lawyer who seeks the information for any purpose other than purely academic or scholarly use would constitute the unauthorized practice of law. This is because the very process of legal research involves the exercise of professional judgment.

    My view does not arise from a desire to protect freelance lawyers’ turf. Indeed, although my website clearly states that I perform work only for other lawyers, I regularly receive telephone calls from non-lawyers outside New York seeking legal research assistance. Because I am licensed only in New York (and thus am considered a non-lawyer in all other states), I cannot, and do not, work with such individuals.

    On the other hand, as a freelance lawyer, I can work for lawyers in any jurisdiction. This is because a freelance lawyer is considered to be working under the supervision of the hiring attorney. The hiring attorney, in turn, retains all direct ethical responsibilities (and potential malpractice liability) to the client.

    With respect to some of the other issues you raised, the cost of subscription legal databases should not be prohibitive for a librarian operating a legal research service, any more than it’s prohibitive for a solo lawyer who does his or her own legal research. Because I have a broad Westlaw subscription; a small personal library of useful reference works; and access to hard copy books by mail (when needed, which is rarely) through my membership in the New York State Library, I have not found it necessary to visit a law library in years.

    You can find extensive analysis of issues related to the practice of freelance lawyering in the U.S. on my blog at http://www.LegalResearchandWritingPro.com. You can find a number of articles about freelance lawyering on my website at http://www.QuestionOfLaw.net.

  8. Susan, Drew and Lisa: Thank you for sharing this information. It is interesting to me how in one jurisdiction (BC) it is so simple, and in another jurisdiction (New York) it is next to impossible.

    I do think this highlights some of the differences between Canada and the U.S. both with the idea of the liability and regulation, and with the access to commercial services.

    On the other hand, the idea of independent research lawyers intrigues me. I had been setting my focus on librarians, but this may be the solution. However, access to the commercial online services is still the question. Yes, I believe one would have to commit to a contract and be willing to absorb that as overhead.

    I love that the Courthouse Libraries BC have proactively developed policy and service around public access. In Ontario I see the university and public libraries attempting to fill this need but it presents challenges for both.

    Is anyone else struggling with this challenge? I would love to hear others’ experience!

  9. A few points in response. First, my comments are applicable to all U.S. jurisdictions, not only New York.

    Second, I’m not sure why you have such a serious concern about access to online legal research services. many lawyers with traditional practices absorb the expense of Lexis or Westlaw contracts (some do attempt cost recovery, but I’m against that approach, as explained in this post: http://is.gd/DS0zm1. Why would freelance lawyers who focus on legal research (or legal research and writing) not do the same?

    Finally, to underscore my point, freelance research lawyers do not work directly for clients: they work only for other lawyers. Therefore, they are not generally a solution to access to justice issues. (They may help a lawyer provide low-bono services to clients, if (1) the freelance attorney’s rate is lower than the hiring lawyer’s rate; and (2) the hiring attorney chooses to pass on the freelance attorney’s fees at cost, rather than marking up the rate).

  10. Lisa, I find it surprising that forwarding cases or statutes to a non-lawyer without any analysis would constitute the unauthorized practice of law in New York. That would suggest that if a librarian is asked to help a client find cases involving doctors being sued, or to locate the statute that deals with child support, then the librarian would be engaged in the unauthorized practice of law?

    In British Columbia, the Legal Profession Act in s. 1 defines the “practice of law” to include “giving legal advice”. The term “legal advice” isn’t defined in the Act and the cases considering this section have not provided a clear definition, but the Dictionary of Canadian Law, 3rd Ed. (Thomson Carswell), defines “legal advice” as:

    “Not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered.” Gower v. Tolko Manitoba Inc., 2001 MBCA 11

    At Courthouse Libraries BC, our librarians take great care not to suggest what clients should do in their legal context. We assist clients in locating information, but don’t interpret the information or suggest how it might apply to the client’s situation. We provide legal information, but are very careful not to provide legal advice.

  11. Drew, the extent to which an independent librarian researcher would ascertain the facts of the client’s case was unclear from Connie’s post. Since I always ascertain the facts of the cases I’m hired to assist with, I’m sure I brought that perspective with me when I commented.

    According to Am. Jur. Attorneys s. 119,

    One of the touchstones of a state’s ban on the unauthorized practice of law is an unlicensed person offering advice or judgment about legal matters to another person for use in a specific legal setting.[FN15] Unauthorized practice of law consists of rendering legal services for another by any person not admitted to practice in the state; thus, with limited exceptions, only a licensed attorney may provide legal advice, file pleadings and other legal papers in court, or manage court actions on another’s behalf.

    Engaging in the type of research you mentioned (helping a client find cases involving doctors being sued, or locating the statute that deals with child support) would not constitute the practice of law in the U.S. Perhaps Connie can expand on the degree to which the independent research librarians she has in mind would obtain from clients the facts of their cases, and be guided in their research by those facts.

  12. I should come back and leave a more complete comment. Some discussion has also taken place via Twitter which has been interesting.

    I just noticed that the Yukon has a Public Law Library, which sounds similar to the services provided by the BC Courthouse Libraries. Their website doesn’t mention legal research service, however; it sounds like it is more along the lines of providing the resources for the public to do the research themselves. See: http://www.justice.gov.yk.ca/prog/cs/library.html