Presented July 13, 1998 at the AALL 1998 Conference, Independent Law Librarian Program, Anaheim, CA

Elizabeth H. Klampert is the Director of Library Services for the Association of the Bar of the City of New York. Ms. Klampert was formerly a litigator for five years, specializing in professional liability litigation. Before attending law school, she was a corporate librarian for twelve years, holding management positions in libraries in a number of large organizations, including Rainier National Bank in Seattle, Deloitte & Touche, and Merrill Lynch, both in New York. She received both her BA in English and MLS from the University of Washington in Seattle. She received her JD at the Benjamin N. Cardozo School of Law in New York.

(Archived August 15, 1998)

Introduction

In light of my background, Tammy asked me to address this group. As a former litigator specializing in professional liability issues, I do have a certain perspective on the issue of ethics. Among my former clients were attorneys and accountants who were charged with malpractice and, in some cases, violation of professional ethics. Ethics violations of attorneys can (and have) put them at risk of disbarment.

As you know, at this conference, the draft of the revision to AALL’s Code of Ethics for Law Librarians is up for discussion. Peter Schanck, in the Winter 1998 issue of the Law Library Journal, criticized the proposed draft because it was not strong on the issue of conflict of interests, especially those involving vendor support. The focus here is not on that particular issue, but it is one that independent librarians providing research services should address especially if approached to provide research services to both sides in a legal dispute. If you haven’t had a chance to read it yet, I recommend that you do so. It is certainly provocative and has caused some controversy, mainly because Schanck maintains that librarians should not accept any support from vendors, period.

Background

Librarians/information professionals have, for the most part, embraced technology and used it to the fullest extent possible. For those in reference and research, the ability to go online and find information has been greatly enhanced by the Internet and its multiple offerings. With this enhancement, however, have come great challenges, not the least of which is sorting the wheat from the chaff, to use just one of the many metaphors used to describe the hard task of finding useful and reliable information on the Internet.

Another challenge is the rise of the online investigator (or snoop), many of whom have dubious credentials and ethics. Legitimate information brokers, like those in this room, find themselves being lumped in with these investigators and are, understandably, concerned. For a good description of this phenomenon, I suggest you read the article in the September 15, 1997, New York Times, On-Line, High-Tech Sleuths Find Private Facts. If you have subscribed to the New York Times on the Web, you can find the article in their archives.

The article discussed the growing appetite for private information now available that clients of information brokers were asking these brokers to find. The article referred to an information underground that was able to find the most detailed and intimate information by using a variety of approaches, including electronic resources and telephone scams, as well as surveillance equipment, a common device. One of the more troubling aspects of this article was its recognition of the increased availability of public records on line. Another cause for concern, of course, is the fact that legitimate information brokers are being lumped in with those who are not so legitimate.

This article is, of course, not the only one I’ve seen on this issue and the Web, that great source of all kinds of information, spurious and legitimate, is helpful here, too. For example, want to learn how to be an investigator? Look no further than Dig Dirt, Inc., (because what you don’t know can hurt you, http://www.pimall.com. ) Here, among other items, you can find an ad for the manual, How to Investigate by Computer, by Ralph D. Thomas and published by Thomas Investigative Publications, located in Austin, Texas. In fact, this is the “new, updated and expanded” 1998 edition, available for a mere $35!

In this manual, the potential investigator will find out how to access credit bureau reports, SSN tracing, DMV information, along with information pertaining to judgments, tax liens, UCC filings, among others. It promises to save you money and keep you on the cutting edge of investigative technology. As an interesting note, the ad advised that the manual contains 108 pages with 33% more words than the last edition. This is not, of course, the only such manual available from this publisher.

Other titles include, Encyclopedia of Investigation and Surveillance: The Whole Spy Catalog, Info Power III: The Ultimate Source for Private Investigators, Information Brokers, Investigative Journalists, and Media Researchers, Professional’s Guide to Auto Repossession and so on. Go to Web site for additional titles.

Other Web sites I suggest that you look at include: Advanced Research, Inc. to whom you can send an e-mail at [email protected] and WeSpy4U whose motto appears to be, “Our philosophy is to give each client the level of service that exceeds their expectations, regardless of the task at hand.”

Now, on its face, there is nothing wrong with any of this. After all, everyone has the right to make a living, right? However, some of the services offered by these and other such groups can make one uneasy and, in fact, this may be just the tip of the iceberg.

Ethics

Now, what is the impact here on legitimate information professionals? Your current and repeat clients probably trust that you will not only do a good job for them but will also do it ethically. And you hope that potential clients will do the same.

However, what happens when a client asks you to do something that you consider unethical? What recourse do you have? Can you look to our profession’s Code of Ethics for guidance? What about other professions’ codes?

The current draft of the AALL Ethical Principles does provide some assistance in the section on “Business Relationships:”

We promote fair and ethical trade practices.

We have a duty to avoid situations in which personal interests might be served or significant benefits gained at the expense of library users, colleagues or our employing institutions.

We strive to obtain the maximum value for our institution’s fiscal resources, while at the same time making judicious, analytical and rational use of our institution’s information resources.

In addition, the “Service” section provides that: “We uphold a duty to our clientele to develop equitable service policies that respect confidentiality and privacy…” Further, “[w]e provide competent service to our clients while acknowledging the limits imposed by our institutions and by the duty to avoid the unauthorized practice of law.”

Interestingly, under the “Professional Responsibilities” section, the draft provides that, “We distinguish between our personal convictions and professional duties and do not allow our personal beliefs to interfere with the service we provide.” This is tricky. In the context of the law firm or corporation or public law library, this makes sense and should be easy to follow. However, the independent information professional may have some trouble with this one’s ethical standards may conflict with one’s client’s wishes.

AALL is not, of course, the only organization to have a code of ethics. The Association of Independent Information Professionals (AIIP) has its Code of Ethical Business Practice that provides the independent information professionals should uphold the profession’s reputation for honesty, competence and confidentiality, accept only those projects which are legal and are not detrimental to our profession, and respect client confidentiality.

While it is certainly helpful to know that we have ethical codes on which we can rely to help us make decisions, how, in the real world, can we apply them? Do we have to turn down an assignment that we consider unethical or is there another approach?

Practical Advice

Before going on, I just want to advise you that I am not dispensing legal advice here, that you should contact your legal counsel to discuss any legal issues and, that this is just a conversation among friends (this disclaimer is courtesy of Mickey Voges).

For the client or potential client who asks us to do a search that we feel uncomfortable about or raises our ethical antennae, we do have choices, of course. We can choose to decline the assignment, stating our ethical objections or we can attempt to keep the assignment in some form, advising the client that there are issues raised by the request and then outlining just what those issues are.

For example, your client has asked you to find out information about someone in preparation for a deposition that he or she has coming up. Not only are you to find general information, but you are also to dig up any dirt on this individual that you can. This last bit gives you pause big-time. If the client has actually phrased it this way, you may want to have the client define her terms. You may also want to advise the client of the resources that you plan to use to retrieve information and are not willing to go further. Further, you will not misrepresent yourself to obtain this information.

The alternative is to decline to take the assignment, but if this is a client with whom you normally have had a good, professional relationship, a frank discussion of your reservations may be in order to see whether you can limit the scope of the project to one with which you feel comfortable.

As you know, attorneys and accountants also have codes of ethics and, unlike information professionals, can lose their licenses to practice for violating the ethical standards of their respective professions. These professionals have put in place some standards of practice to protect themselves, some of which may be helpful to the independent information professional to distinguish her or himself from other, more questionable information providers, such as those described above.

If you haven’t already put the following into practice, you may want to consider:

1. A retainer letter for each client and each engagement or project on which you embark. This letter should outline what you understand the project to be, your basic charges, and one copy should be signed and returned to you by your client.
2. A disclaimer. LRN (Legal Research Network), a group that is doing legal research for a number of corporations, has at least two disclaimers. The first: LRN is not engaged in the practice of law. The second: LRN is not dispensing legal advice.

As you know, a number of Web sites also now have disclaimers with regard to the reliance on the information provided. As an information professional, you are only as good as the information provider on whom you rely. You should say so.

3. Professional liability insurance. Any professional needs this in case of a lawsuit. A disgruntled client may sue you even if you have done nothing illegal and provided the best information possible. Remember, anyone can sue at any time for anything and even if you have a strong defense and can knock a lawsuit out with a good motion to dismiss, you still must hire a lawyer and defend yourself.

Parting Thoughts

All professionals find a code of ethics is useful to guide them through the sometimes thorny issues that confront them. The theory behind these codes needs to be put to practical use particularly when some information brokers are using questionable tactics to obtain information and our own clients sometimes want us to be less than ethical. To protect themselves, information professionals need to be as professional as they can be and, sometimes, must decline a project if clients insist that they do something with which they are highly uncomfortable.