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Court rejects unlicensed practice claim against “jailhouse lawyering”

prison_cell_blockThe Vermont Supreme Court dismissed a criminal case of unlicensed practice of law against a prison inmate who routinely provided legal advice to her fellow inmates, ruling that the practice is longstanding and an important source of legal advice to individuals who may not otherwise be able to obtain such services (In re Morales).

In February 2016, Vermont filed a complaint against Serendipity Morales, accusing her of the unlicensed practice of law. Morales was in the habit of helping fellow inmates in their legal cases, often by drafting motions and performing legal research, but always without compensation.

Before allowing the case to continue, the state’s Supreme Court, which was hearing the case, held a hearing to determine whether probable cause existed to believe that Morales had actually engaged in any unauthorized legal practice.

Surveying the case law, the court noted that, although unlicensed practice had been defined broadly through the years, exceptions to the prohibition were also defined broadly. The court suggested that “the general scope of the prohibition against the unauthorized practice of law may not solely be a function of the tasks an individual performs but also reflects a balancing of the risks and benefits to the public of allowing or disallowing such activities.”

Assessing the history of “jailhouse lawyering,” the court noted the benefits the practice provides to inmates. Justice Beth Robinson, writing for the court, noted that inmates with legal knowledge have been helping others navigate the legal system for many years, usually without the threat of prosecution.

Semi-official structures even exist for this type of legal advice in Vermont. For example, Justice Robinson noted that the policies of the state’s Department of Corrections contains an exception to the normal prohibition of correspondence between inmates: when one of the inmates involved “customarily offers legal advice to other inmates.” Morales has also introduced into evidence the transcript of a trial court hearing in which a judge urged a defendant to seek the help of other inmates when filing motions.

“In this context,” wrote Justice Robinson, “although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the state.”

Robinson also noted the important role that inmate legal help plays in the administration of justice. “Incarcerated prisoners are not only disproportionately undereducated; their access to a range of legal resources and information is severely limited, and their need may be great.”

“Although ‘jailhouse lawyers’ may pose a risk to the individuals they are trying to help, and to the court system, they may also perform a valuable service in promoting more meaningful access to justice than their fellow inmates would otherwise enjoy. In determining whether the prohibition against the unauthorized practice of law extends to the conduct of ‘jailhouse lawyers,’ this Court must take into account both sides of this balance.”

Given these considerations, the justices determined that Morales’ actions did not amount to an unauthorized practice of law.