From Issue 49
August 6, 2016: Vermont Supreme Court dismisses case against inmate accused of illegally practicing law without a license – Acknowledging the vital role of jailhouse lawyers nationwide.
In a unanimous decision, the Vermont Supreme Court has dismissed the State’s information against Serendipity Morales, an inmate at Marble Valley Regional Correctional Center, which alleged that Morales engaged in the unauthorized practice of law (UPL) by helping fellow inmates in their cases, including performing legal research and drafting motions.
The allegations were: 1) the inmates had heard Morales was familiar with the legal process, 2) the inmates asked Morales for assistance in reviewing and preparing various legal filings on their behalf, 3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed, and 4) Morales did not request or accept any payment for these services.
The high court ultimately found these facts alleged by the State – whether or not they were true – did not meet the elements of the crime of UPL.
Justice Beth Robinson, writing for the court, aptly addressed the fundamental legal question of the case “concerning the scope of the offense of UPL, particularly as it relates to the rights of prison inmates to access the justice system.”
The court acted upon its duty to meaningfully examine the state’s interest in prohibiting non-lawyer assistance, and in so doing considered the applicability of the prohibition against the unauthorized practice of law to the activities of a jailhouse lawyer.
In this, the court noted its decision was guided on two particular factors – first, that jailhouse lawyers are a “well-established fixture in the justice system” and second, that “incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns.”
Prohibition of UPL exists to protect the public from unqualified and incompetent practitioners. Advocates also promote the prohibition of UPL with the concern that unprofessional filings would pollute the courts and lessen the integrity of the justice system. Prisoners are no longer eligible to a state-appointed attorney post-conviction (unless on death row), and most cannot afford to hire a “street” lawyer. A system that restricts a chance at justice to only those who can afford a private attorney surely hurts the integrity of the so-called justice system far more.
While there exist inherent risks of entrusting one’s liberty in another who is not licensed to practice law, for many, it would be their only avenue to the courts. The prisoner’s right of access to the court trumps the UPL public protection rules that were enacted and better fit for the outside. The laws governing those on the inside ought to be tailored to serve those individuals. Prison populations are notoriously largely poverty-stricken and undereducated and therefore individuals often cannot afford an outside attorney and/or do not have the reading and writing skills necessary to fight their case on their own. Such ‘well-meaning’ laws initially enacted to protect individuals from incompetent representation would ironically inhibit them from accessing the justice system altogether. UPL rules must not further discriminate indigent and illiterate prisoners.
The court was not without warning, emphasizing that if a litigation attempt is unsuccessful, the prisoner could be left worse off than if the jailhouse lawyer had done nothing .
Prisoners receive help from jailhouse lawyers where they are not entitled to an appointed attorney, mostly for petitions for a writ of habeas corpus and civil lawsuits regarding inhumane or improper prison conditions. The procedure and standard for filing appeals and writs are incredibly complex, even for experienced licensed post-conviction attorneys. These intricate rules hinder prisoners’ and jailhouse lawyers’ ability to be successful in such filings. Petitions can be dismissed by the court for a technical reason such as an “untimely” filing or for failure to properly articulate their claim. If an inmate discovers a different or better claim after their initial filing, the court may not allow it to be presented later.
If the reviewing court believes there is merit to a petition, it may appoint an attorney to represent the inmate in conducting the hearing or with further briefing. However, this occurs only once the petition is filed successfully and contains an argument persuasive enough to convince the court to do so, making strong legal research and persuasive writing skills all the more critical.
The Vermont Court stated it does not hold that an inmate may sign and file pleadings on behalf of another. Additionally, it did not determine whether selling legal services or receiving compensation for providing legal help is engaging in UPL. Nonetheless, it declared jailhouse lawyers play a vital role of upholding prisoners’ rights to access the courts; to prohibit such non-lawyer assistance would be unduly harmful to those individuals and raise gross constitutional concerns.
While this decision is not binding on courts in California and states outside of Vermont, the decision acts as persuasive authority that outside courts ought to consider. The decision establishes precedent to preserve the rights of prisoners (at least in Vermont) to provide and accept legal guidance inmate-to-inmate, under the conditions set forth, and it has raised public awareness of the rights and needs of the incarcerated.
NOTE: The Jailhouse Lawyer’s Handbook published by the Center for Constitutional Rights and the National Lawyers Guild. This Handbook explains how a prisoner can start a lawsuit in federal court, to fight against mistreatment and bad conditions in prison. Because most prisoners are in state prisons, the authors focus on those. However, people in federal prisons and city or county jails will be able to use the Handbook too. This is the fifth edition, revised and printed in 2010. To receive a hard copy, please write to:
National Lawyers Guild—Prison Law Project
132 Nassau Street, Rm 922
New York, NY 10038
Donations of $2 (or more) to help offset postage and shipping are greatly appreciated.●