2016 VT 85
By Andrew Delaney
I argued before the SCOV when I was a law student. I also appeared on behalf of clients in court through working at my law school’s legal clinic. It was allowed because there was a rule that said it was okay so long as I got all my permission slips signed by responsible adults, which I’d done. But if I had just skipped all that and pretended to be a lawyer, that would’ve been unauthorized practice of law.
This case is interesting for a couple of reasons. First, it’s a criminal charge filed in the SCOV. You don’t see that every day. Second, it explores what unauthorized practice of law (UPL) means in relation to so-called “jailhouse lawyers”—probably not the ideal term to use in this case, but it’s what we’ve got and I’m getting a little off track.
Serendipity Morales is an inmate. She helped some of her fellow inmates with legal research and motion drafting. The Bennington State’s Attorney filed an information in the SCOV charging Ms. Morales with six counts of UPL. The basis was that she’d helped five other inmates. She didn’t request payment or get paid. The SCOV notes, “The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.”
Once the SCOV received the information, it requested the State’s Attorney do some ‘splainin as to how Ms. Morales had actually committed the common law crime of unauthorized practice of law. The SCOV told the parties it would treat the proceeding like a probable-cause determination.
The SCOV explains that probable cause is far less than determining whether an offense has actually been committed—it’s simply a determination that there’s enough to form a reasonable belief that a crime probably has been committed. In this case, that means looking at the UPL landscape in Vermont.
Generally, UPL has been defined broadly. It includes not only saying, “I’m a lawyer!” but also performing “services that require legal knowledge or skill such as drafting legal documents and giving legal advice—at least when one charges a fee for those services.”
Back in 1924, a debt-collecting accountant who signed pleadings and writs and appeared in court, for example, was found to have engaged in UPL. Similarly, a decade and change later another debt collector who threatened and filed suit was also found to have engaged in UPL. As an aside, I will note that the above-linked cases should be read with a haughty English accent to make them entertaining.
A law student who negotiated a settlement of a case for a fee was also found to have engaged in UPL. I just read it. The facts are something else. Essentially, it’s the settlement of a claim in which a rich guy wrote another guy’s wife dirty letters. Oh, and the law student also happened to be the sheriff who transported the guy (whose wife was the recipient of the letters) after guy got picked up on a warrant in another county. It appears law student got a little greedy as well. But I digress as I so often do.
Back to the history lesson. Acting as a sort of financial counselor and creating a debt-pooling plan and assigning financial interests can constitute UPL. A surveyor who drafts deeds and advises “as to the type of estate and manner of holding” to meet clients’ needs engages in UPL.
But while the definition of practice of law can be expansive, the Attorney General and the SCOV view it a little more narrowly than might be implied in the history above. Modern-day practice is different. The real purpose of prohibiting UPL is to protect the public and that needs to be kept in mind here.
The SCOV notes that it has allowed a nonlawyer to represent “an unincorporated organization where the requirement of counsel would preclude the organization's appearance.” So when an organization can’t afford (or find pro bono) counsel; the lay representative is authorized and has enough legal knowledge and skills; and the representative shares a common interest with the organization, a lay representative can represent an organization.
The legislature , with approval from the SCOV, has allowed nonlawyer Office of Child Support employees to practice in child-support proceedings in front of magistrates. Other nonlawyer representatives can represent parties in certain administrative proceedings.
And finally, the Attorney General doesn’t consider “providing ‘legal advice internally within a company, department or other entity’ by an individual not admitted to practice law in Vermont to constitute” UPL. (Don’t try this in New York, kids.)
And so, the SCOV reasons that there’s a “balancing of the risks and benefits to the public of allowing or disallowing such activities.”
Against this backdrop, the SCOV turns to “jailhouse lawyering.” The SCOV first notes that jailhouse lawyers “are a well-established fixture in the justice system.” Second, being in jail presents unique challenges in the access-to-justice context.
Jailhouse lawyers have been around for a long time and they aren’t normally prosecuted for UPL. The SCOV cites a bunch of articles, and notes that “Vermont is no exception.” Even the Department of Corrections’ policies recognize the role of jailhouse lawyers. And trial courts traditionally have condoned if not encouraged the use of jailhouse lawyers. In this case, Ms. Morales even “provided [the SCOV] with a transcript of a hearing in which the trial court urged a defendant to seek the help of other inmates who have successfully filed motions on their own behalf.” In this context, the SCOV is hesitant to criminalize “conduct that has been tolerated and arguably even supported by the State.”
The SCOV then turns to the unique problems faced by inmates. Inmates are at a particular disadvantage “in trying to get legal information and advice.” A higher percentage of inmates are totally or functionally illiterate and can often lack the wherewithal to advocate effectively on their own behalves.
The SCOTUS has “recognized that barring nonlawyer inmates from helping their peers with legal matters may raise constitutional issues in some cases.” The SCOV acknowledges that Ms. Morales’s beneficiaries were represented but reasons that the broader policy implications in favor of access to justice still apply.
Put simply, inmates need help with legal issues and they face unique-to-incarceration challenges. The SCOV is not about to make it harder for these folks by subjecting traditional jailhouse lawyers to prosecution.
The fact that Morales gave legal advice to and drafted motions for fellow inmates does not amount to UPL.
The SCOV makes sure to articulate some limits to its holding here. First, it’s based on the facts alleged. That means the SCOV isn’t deciding whether a compensated jailhouse lawyer engages in UPL. Nor does the SCOV hold that an inmate can sign and file pleadings on behalf of another inmate. Nor does the SCOV decide today whether a person not in prison who assists inmates might be guilty of UPL. The holding today applies only to inter-inmate legal assistance.
The SCOV also notes that inmates should be aware that a jailhouse lawyer presents a certain risk. Some are great and some are not so great. Sometimes, one will be better off without a jailhouse lawyer than with one.
Finally, the SCOV notes that the decision does not mean that the trial courts must accept a pro se pleading from an already-represented inmate. That has nothing to do with this case.
And so, the SCOV declines to find probable cause that Ms. Morales engaged in UPL and tosses the case.