I almost snorted my coffee. My newsfeed popped up an article by a lawyer that described the appropriateness of the legal profession’s caste system entitled “Separate, not equal.” His position seems to be that not all legal professionals should have an equal expectation of access to legal information, whether due to “lawyers … [being] slow to accept paralegals…” or other reasons. Unlike concerns about public risk in accessing legal help, accessing legal information should not depend upon one’s caste status.

I’ve touched on the backwards looking approach to legal information delivery in Ontario before. It’s not really surprising that this lawyer’s perspective emanates from that environment. But it highlights an interesting issue for courthouse law libraries dealing with access.

Fortunately for me, access to our California law library is legislated. Access “shall be free to the judiciary, to state and county officials, to members of the State Bar of California, and to all residents of the county ….” It’s that last bit that is the most liberating.

I mean, in theory, we could ask people for something to show they were in an allowed group. The local public library does when you ask for a library card. But, realistically, you can’t really tell people apart and, if there’s no particular business reason to do so, why would you? Isn’t the whole point to maximize access?

And some law libraries do ask. An Ontario law library asked and was sued, and lost, for essentially carding minority researchers but not carding everyone. It’s hardly a surprise when you create an environment where certain people are allowed to have access and certain people aren’t.

We hear it all the time in our language. I recently read something about “non-lawyers,” a term I don’t use any more than I use for any other profession: non-teachers, non-accountants, non-doctors. It’s as dumb as it sounds. People need access to legal information to help answer a legal question. Some of those people are members of the legal professions. But they’re all just people or, in my case, “residents of the county.”

What’s In a Name

Ontario’s challenge is that their regulator has oversight over lawyers and other legal professionals, including paralegals. Since Ontario’s regulator operates partially like a guild, representing the lawyers’ interests, it can amplify differences between legal professionals who are not otherwise getting equal representation or access. See, for example, how the regulator’s governance board has 40 lawyer representatives and 5 paralegal representatives. Boards are not constituent legislatures so this sort of representational model is fraught with problems.

As the author of the original article poses in regards to whether paralegals (who finish an educational certification and a competency exam like lawyers do) should have access to legal information:

Should paralegals have access to our [private law association law library funded by the regulator]? If the answer is “yes,” then the second question is “on what terms?

“Separate not equal”, Michael M. Lerner, The Lawyer’s Daily, April 1, 2022

This is not unique to Ontario. We have seen a variety of new types of roles appear in courts across North America. Limited license legal technicians, court navigators, and others are there to fill access gaps. Some of them, like law librarians, are restricted from practicing law. Others have been able to practice within limited scopes. And each of these new roles has caused a response from the bar about whether they create risk for the public who are seeking legal help.

I found the Orange County Bar Association‘s response to the California State Bar working group on paraprofessionals to be worth a read. It provides a good example of concerns, usually raised by the bar, suggesting that too little education may put the public at risk.

I’m not persuaded that there is a magic (or as lawyers will have it, thaumaturgic) amount of education that one can attain. I have my own thoughts about why lawyers can’t do legal research and it doesn’t have to do with whether they’ve learned it in law school or had law librarian refreshers. And, notably, we don’t bar lawyers who can’t do legal research adequately from practicing law, even though it jeopardizes the public to allow it. Fortunately, no matter what we call people who are seeking legal information (to help themselves or others), the question about access is probably an easier one to answer.

Who Chooses?

One obstacle may be how we determine who makes these choices. In Ontario, the decision-makers are all lawyers from private bar associations. It’s hardly surprising they are self-dealing.

But investing the bar with the decision-making or selection is a common approach. Although we have seen greater acceptance of people accessing legal information and the justice system without lawyers, courthouse law libraries were legislated into existence before that.

In California, law library boards are made up of judges and members of the bar, with specific limitations on people who aren’t, unless they’re members of county government. The board of supervisors can also appoint a resident of the county who doesn’t seem to have to have any legal background.

No more than two law library trustees may be residents of the county who are not judges of the county, members of the State Bar, or members of the board of supervisors of the county

California: Boards of Law Library Trustees 6301.b

In Texas, having a county law library is optional. But if the county creates one, the board managing may be created from the local bar. The legislation says may so I wonder how many boards are not entirely members of the local bar.

The commissioners court may vest management of the library in a committee selected by the county bar association

Texas: County Law Library §323.024 (b) Management

Ohio’s laws are broader and so county law libraries can involve a variety of people. Instead of putting accountable people – elected officials or judges – on the board, Ohio gives the power to the accountable people to make selections. Two of the roles are selected from the local bar but everything else is very general.

The five members of the county law library resources board shall be residents of the county

Ohio: Law Library Resources Board Members §307.511

It makes me wonder whether, if we had broader representation from outside the legal profession, we would have greater opportunities for success. Different perspectives, connections to different types of people or communities, a counterbalance to any leaning towards serving the bar over other county residents. We might have people who could help us fundraise, or lobby the legislatures from a different perspective, from outside the legal professional community. When we rely entirely on the legal profession, we look for support from a small pool and, when we turn to public funders and decision-makers, we look like we are trying to get a resource for an elite and narrow band of people.

Under What Terms

A government funded law library may just have it easier. When the statute says “residents of the county,” you have your marching orders. It is the broadest scope in a sense. Implicitly, you’re open to anyone who can walk in your doors.

It’s worth noting the physical aspect. The legislation is old in that sense. Like courts themselves, there may be an idea of delivery from a physical location also funded by government. The California statute goes on to say that the access involves “the examination of books and other publications at the library….”

In general, we own our print collections. We make them accessible through physical locations, often locations (including in Ontario) given to us for free or low rent by the government. The bar for access to those collections is low. As I’ve noted before, it is not uncommon to have an unstaffed space with physical objects in it for the purposes of legal research. At minimum, you need someone to open and close a space. Ideally, you’d staff the space with someone who can intermediate the use of the physical objects.

It can get stickier when you get into remote content. Even when the courts and government are providing free access to their own information, the information need is broader. Legal publishers have no incentive to improve access, because they frequently see more public access as negatively impacting their commercial market. Ironically, this can make information access clearer because it may limit access to a physical location.

Like Ontario’s lawyers, legal publishers make distinctions about access based on your place in the caste hierarchy. Both make decisions based on the financial impact of more people in the hierarchy getting access. Unfortunately, it’s not a position a law library can entertain when it is tasked to make information freely available to everyone.

Frankly, most lawyers probably buy far too much information in so-called “comprehensive” publisher resources. But that is an insurance or fomo mindset, and also reflects that they can build those costs into their fees even if they can’t pass the cost directly on to the client.

Innovative law librarians have tried to tackle that. In some markets, the legal publishers seem to realize that remote access isn’t going to impact their bottom line. One way to ensure that is to differentiate the public courthouse law library’s remote package from that required by a legal professional who might otherwise pay for access. They don’t call it freemium but we all have plenty of experience with those sorts of differentiated licenses.

Shouldn’t everyone have the same access, though? Your legal issues are probably narrowly tailored. At any given time, you need only a narrow slice of legal information. There is a sufficiency level, certainly, but for anyone trying to get an answer to a given legal issue, there is far more information available than is necessary to answer most legal questions. Law firm libraries experience this when they buy for practice groups and criminal lawyers probably don’t pick up real estate treatises for the same reason.

Hopefully, all law libraries would be focused on this idea of sufficiency. Good enough. Otherwise you can very easily veer into the “just in case” collection development that we’ve recently largely left behind. A level of sufficient content would mean that, regardless of a person’s education or rank in the legal profession, they would find legal information to meet their needs.