Small Claims Question (WARNING: LONG ANSWER AHEAD): Non-attorneys, including non-law librarians, have a tough time understanding why law librarians just won’t answer questions. This answer from my colleague to a “simple question” will give you an excellent idea why we don’t and won’t answer questions. Law librarians will, however, show you how you might answer your own question. To use an overused analogy, we won’t hand you the fish, but we will show you how to fish.
Question from a public librarian: If someone comes in to the library and wants to sue for a small amount, is it “practicing law without a license” to suggest they consider small claims?
The short answer is “No.”
Merely “suggesting” someone “consider” a particular course of action would not likely constitute the unauthorized practice of law. However, it doesn’t hurt to recognize that this is a very fine line. For example, telling someone they “should” consider small claims, might constitute the unauthorized practice of law.
Which leads us to the long answer…
Oregon Revised Statute 9.160 states that “…a person may not practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.” The reason for the statute is to protect the public from the consequences resulting from attempts to engage in such matters by people who are not properly trained and qualified to do so. The Oregon Rules of Civil Procedure provide that if the Board of Governors of the Oregon State Bar has reason to believe that a person is practicing law without a license, the board may maintain a suit for injunctive relief in the name of the Bar against that person. The court will, then, enjoin that person from practicing law without a license. The unauthorized practice of law statute was challenged in the case of the Oregon State Bar vs. Smith, 149 Or. App. 171 (1997). In this case, a paralegal services company argued that their constitutional rights of free expression and due process were violated. The court held that the statute was constitutional.
When a person receives advice from a non-lawyer and that advice involves the application of legal principles, then the non-lawyer has “practiced law without a license.” The essential ingredient to pick up on, here, is the advising of a particular person in a particular situation. Thus, the mere general dissemination of legal information by non-lawyers does not constitute the unauthorized practice of law. Other, more personalized contact and advice is needed. All contact between non-lawyers and their patrons in the nature of consultation, explanation, recommendation or advice or other assistance in selecting particular forms, in filling out any part of the forms, or suggesting or advising how the forms should be used in solving the customer’s particular problems does constitute the practice of law. Definitively, the “practice of law” means the exercise of professional judgment in applying legal principles to address another person’s individualized needs through analysis, advice, or other assistance.
So, what does all this mean as applied to this particular hypothetical? If you advise the person who came in (a particular person) “with a small amount to sue” (a particular situation) on what they should do (small claims), then that could constitute the unauthorized practice of law. Taking this hypothetical a bit further, let’s imagine that the person was involved in a minor fender-bender and just wants to sue for the cost of having the damages repaired in the amount of $250. On its face, it seems like a pretty easy query, right?
So, let’s say that instead of showing this patron how to look up the statutes on their own and giving them information on other legal resources, such as self-help legal titles, their local law library and lawyer referral services, you just tell them that they “might want to consider small claims.” Then, you proceed to show them the small claims chapters of the statutes, tell them where they can pick up a small claims packet at the courthouse and give them the OSB Lawyer Referral Service number. Easy enough. They call an attorney saying that they need to sue for small claims and probably find out that attorneys aren’t allowed in small claims. This would be their first stumbling block as a result of your suggestion. Then, they go pick up their small claims packet, read the chapter you directed them to in the statutes about small claims, fill out and file their small claims suit. For purposes of brevity, let’s just say that everything goes smoothly and the opposing party doesn’t move the case to Circuit Court. Your patron receives their judgment in the amount of $250.
A week later, your patron has a brain aneurysm as a direct result of the whiplash suffered in the fender-bender and is paralyzed for life. Has your patron now forfeited all rights to a personal injury action against the opposing party? Maybe. Or, let’s say that a week after obtaining the judgment, the person discovers that their car has a cracked head as a direct result of the fender-bender and that it’s going to cost $8,000 to have it repaired. Can your patron recover those damages? Maybe not. See, the point is that you don’t know whether a person who “needs to sue for a small amount” should be considering small claims. Your patron doesn’t even know if they should only be suing for a small amount. It’s likely that your patron may have many other considerations that need to be taken into account that neither one of you can appreciate. Your patron may also need to consider other areas of the law, such as torts, damages, civil procedure, etc. Only an attorney, presumably, has the necessary skill and training to advise your patron on the areas of the law that need to be considered. Thus, while it probably wouldn’t be considering practicing law without a license to suggest that the patron consider small claims, you would also want to remember to suggest that there are also many other areas of legal recourse they might want to consider. Thoroughly going over all of the legal resources available and allowing the patron to decide on their own which options they might want to consider is your best course of action in this scenario.