ARCHIVED: Investigation of Nolo Press

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May 21, 1998

Unauthorized Practice of Law Committee
Norman R. Rogers, Investigator
1700 Pacific Ave., Suite 3300
Dallas, Texas 75201

Dear Mr. Rogers:

We are writing to you today on behalf of the American Association of Law Libraries to ask that, as a member of the Unauthorized Practice of Law Committee (UPLC), you reconsider the investigation of Nolo Press, a respected national publisher of self-help legal books and software. It has recently come to our attention that the committee plans to hold a hearing on August 20, 1998, to investigate and consider whether the sale of the Living Trust Maker-2.0 software published by Nolo Press constitutes the unauthorized practice of law.

While we are unclear about the UPLC's purpose for this hearing, the American Association of Law Libraries would oppose any effort to ban books or software in Texas as a threat to the rights of both the publisher and the consumer. We hope that any hearing or investigation conducted by the UPLC will not result in a ban on publications of Nolo Press. Such censorship would be a clear violation of First Amendment principles that our Association staunchly upholds.

The American Association of Law Libraries (AALL) was founded in 1906 to promote and enhance the value of law libraries to the legal and public communities, to foster the profession of law librarianship, and to provide leadership in the field of legal information. Today, with 4,800 members nationwide, of whom 345 work and reside in the state of Texas, the Association represents law librarians and related professionals who are affiliated with a wide range of institutions: law firms; law schools; corporate legal departments; courts; and local, state and federal government agencies.

Unlike the situation in Texas where self-help legal materials are subject to regulation under the unauthorized practice of law statute (3 Texas Government Code Sec. 81.101), other states follow the decision of the New York Court of Appeals in New York County Lawyers Assn.. v. Dacey (234 N.E.2d 694 (1967)) which overturned a lower court's injunction that would have banned Norman Dacey's highly regarded book, How to Avoid Probate. The appellate court viewed the lower court's ban on the publication and distribution of self-help law materials as an egregious form of censorship in violation of the First Amendment, and therefore not subject to the state's laws on the unauthorized practice of law. Other states have declined to include published materials within the definition of what the practice of law entails, thus recognizing the important freedom of the press protections guaranteed under our Constitution.

There has been a long tradition in our country of publishing legal materials to assist members of the public in learning about the law. The publications of Nolo Press and other self-help legal materials are necessary to help consumers maneuver through the legal quagmire for many simple, day-to-day issues. The public, we believe, has a right to have access to legal information that will assist them in understanding the law and interpreting its mysteries.

As librarians who deal with the public's legal information needs, we think it important to note that many low-income citizens who would never seek an attorney are assisted by self-help materials such as those published by Nolo Press. They rely on finding these materials in the collections of their local public library or a conveniently located law library that is open to the public. Self-help materials, if nothing else, provide members of the public with a better understanding of the magnitude of their particular legal problem. They also assist those users who simply want to educate themselves enough to ask a lawyer the right questions. As information providers who deal with a wide variety of such questions every day, we are grateful to have basic Nolo Press materials in our collections. Even as we explain to a patron our own inability to provide legal advice and their need to get such advice from the practicing bar, we can provide them with resources that will satisfy their basic needs. We can assure you -- from our own day-to-day experiences -- that Nolo Press materials are not ruining the market for Texas attorneys.

Law libraries routinely purchase self-help materials for their collections, such as those published by Nolo Press. Any decision to ban publications of Nolo Press would dramatically curtail the way law libraries in Texas build their collections and fulfill their mission of providing access to legal materials for their patrons, many of whom are members of the public. Self-help legal materials are as important to the general public as are self-help books about health or financial issues. We believe that the state of Texas should not ban any type of books or software that a library can acquire or that a bookstore can sell.

In addition to these concerns about the purpose of the scheduled hearing and a possible ban by the state of Texas on self-help legal publications and software, we are also concerned about the rights of Nolo Press to due process, an open hearing and the opportunity to present testimony on their behalf by legal experts. As you formulate plans for the August hearing, we urge you to take this matter under full consideration and to conduct any investigation in an open manner.

AALL policy strongly affirms the public's rights of access to information. We believe that self-help books and software produced to assist the public in understanding the law provide an important public benefit to the citizens of the state of Texas and do not constitute the unauthorized practice of law. AALL would be pleased to have one of our members appear before the Unauthorized Practice of Law Committee when it meets in August. Thank you very much for your prompt consideration of the serious concerns of the law library community in this matter.

Sincerely,

Robert L. Oakley
American Association of Law Libraries
Washington Affairs Representative

Elizabeth M. McKenzie
Chair, Legal Information Services to the Public
American Association of Law Libraries

cc:

Unauthorized Practice of Law Committee
Mark A. Ticer
Smith & Ticer
4144 North Central Expressway, Suite 1250
Dallas, Texas 75204

Unauthorized Practice of Law Committee
Jeffrey A. Lehmann
Lehmann & Associates
11500 Northwest Freeway, Suite 580
Houston, Texas 77092

Chief Justice Thomas Phillips
Supreme Court of Texas
P.O. Box 12248
Austin, Texas 78711