We are looking for a lawyer to provide us with advice on numerous issues, including whether library employees are employees of the library or the village, whether the municipal retirement plan is open to or perhaps required for library employees, limitations on investments, limitations on fundraising, guidance on setting up a friends group and/or changing our charter to association library, as well as other questions.
In talking with a number of lawyers, we have found no one with experience with both municipal law and education law, ie public libraries-related law.
What suggestions or referrals can be provided to help us find the appropriate legal guidance for a rather wide array of questions, that have a municipal library bent?
Here’s a typical scenario confronting the modern library board president: on the day the director alerts her that a patron is using the copiers to copy sexually explicit material—taking care to ensure the patrons and employees can see it— a clerk has threatened to complain to the union if the municipal lunch room isn’t made accessible to library employees. The board chair looks compassionate and sighs…she’ll add these to a list that already includes:
a) trying to figure out if the library actually has a lease for its premises, where it has operated since 1892, but no one can find the deed or contract;
b) assessing if there’s enough money in the endowment to fix the elevator before there’s a complaint under the ADA (and can those funds even be used that way?); and
c) revising the employee handbook.
Municipal law, education law, employment law, intellectual property, and civil rights…all meet at the crossroads of “library law.” Libraries also have unique protections under New York’s CPLR, and as they become increasingly critical providers of technology, must be adept at interpreting software licenses, too.
The array of legal issues is endless. How does a library find the right lawyer?
To make sure your library can find the right fit for you, I have five answers. But first, I have THREE IMPORTANT PRIMARY CONSIDERATIONS
Primary Consideration Number One: remember that legal services can be an expenditure like any other. If your library is subject to a procurement policy, you may need to develop a “Request for Proposals” (“RFP”) to seek the service. So before you try and of my suggestions below, rule an RFP in our out.
Primary Consideration Number Two: The New York State Education Department’s Division of Library Development is a great resource for information, particularly on structural/charter, budget, and grant matters. They are there to help you, so don’t hesitate to call (even if they end up telling you to find a lawyer—and they might—you’ll have a nice chat).
Primary Consideration Number Three: NYLA, New York Library Trustees Association, and your regional council may have some resources for you, too.
Of course, be careful how in-depth you go when describing your issue(s) to these resources, since these communications would not have attorney-client privilege.
Okay. Here are “Five Ways to Find a Library Lawyer:”
1. In many counties, the local Bar Association runs an “attorney referral service.” Attorneys who participate in the service will self-identify areas of experience and interest. For many such services, the first 30 minutes of consultation with the lawyer they send you to is at a greatly reduced rate.
2. Almost all lawyers1 enjoy “knowing someone.” So even if they don’t practice in those areas, ask every lawyer you know for a referral. Someone will eventually “know someone” who practices the type of law relevant to your library’s current needs.
3. Ask a local elected representative or municipal employee about lawyers they know who practice municipal law, or check to see if your local college or university has a “general counsel.” This could put you on the trail of attorneys with the right array of municipal, education and employment law experience.
4. Members of any regional library counsel or network can separately contact the provider of this “Ask the Lawyer” service: The Law Office of Stephanie Adams, PLLC, at email@example.com. If there is no conflict of interest, and your issue is within our experience, we can help—or, we can help you find the right attorney (not every issue needs a “library lawyer”). The contract for such work would be separate from the service your regional council or network pays for, but you get the same hourly rate for most types of work.
5. Your insurance carrier may have a list of law firms near you to help out, and may even have some internal resources it can provide for policy and compliance-related matters. Call your broker or representative to inquire (remember, your insurance carrier has a high motivation to you connect you to timely legal advice and avoid a claim!).
When selecting a lawyer, is very appropriate to asking about past work, rates, and proof of malpractice insurance coverage. The terms of any services should be confirmed in a signed “retainer agreement” or “letter of engagement.” And don’t be shocked if the person you talk to says “I would have to research that.” In my experience, libraries come up with very complicated and unique questions. An experienced attorney may be able to give a quick tentative answer, but will then almost always want to check the latest case law, read your bylaws, and review other factors before committing to final, written advice.
1 Do not rely on a board member who is a lawyer to provide the legal services, but DO ask them to help find the right person. As has been written extensively in various guides from the Attorney General’s Charity Bureau, and the New York Bar Association, professionals sitting on not-for-profit boards owe the institution not only a fiduciary duty, but also the skills they bring to the table…but they are board members, not professionals under contract (this pertains to accountants, too). It is a conflict of interest for a board member to be hired to provide professional services to a board s/he sits on…even if it is pro bono. That said, they can absolutely (and should be) on the ad hoc committee helping to oversee the service or particular matter for the board!