The Vermont Supreme Court building
The Vermont Supreme Court building | wikimedia, commons

Inmates may give each other free legal advice, Vermont court rules

The Vermont Supreme Court has  narrowed the definition of what constitutes unauthorized practice of law after it dismissed charges against an inmate who had helped others to prepare legal forms.

In clarifying when so-called “jailhouse lawyers” may give legal advice, the ruling last Friday could offer a model for other states, attorneys for both sides say.

“In the state of Vermont, the Supreme Court has the sole authority to define what the unauthorized practice of law is. They have not really clarified what it is in decades,” said Alex Burke, deputy state attorney for Bennington County and the prosecutor in this case. “The historical definition has been very broad.”

Burke’s office brought charges in February against Martin “Serendipity” Morales for helping five fellow inmates with legal cases. Although each inmate had a court-appointed attorney, all asked Morales for help.

Morales “was drafting motions and other pleadings ... that were being filed in our court for other inmates that were already represented by counsel,” Burke said. “This continued for a period of time and under the prior definition of the unauthorized practice of law our office felt that this was a violation of that and filed the charges.”

The court, however, noted that “jailhouse lawyers” have long been tolerated in Vermont and sometimes have even been encouraged by the state. “In this context, 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,” the court held.

The court ruled that there was no probable cause for the charges, given that Morales refused payment from the other inmates, never signed a legal document, and never claimed to be an attorney.

For Vermont inmates, the ruling means that giving legal advice to peers is allowed “as long as you don’t pretend to be a lawyer, you don’t sign the papers, and you don’t accept payment,” Emily Trudeau, Morales’ public defender, said. “In general, they (jailhouse lawyers) are doing something valuable even if a few don’t know what they’re doing,” she said. “I think it’s a case people outside of Vermont can cite should this arise.”

Burke agreed that, although the case would not be binding outside Vermont, “it may be looked at as a framework. Other states define it by statute. Some states may define it like Vermont does just by case law by the Supreme Court. I’m sure it will be looked at, but I don’t know that it will be precedential.”

The court warned that jailhouse lawyers “may pose a risk to the individuals they are trying to help, and to the court system,” but ruled that, on balance, barring them would be bad policy because “they may also perform a valuable service in promoting more meaningful access to justice than their fellow inmates would otherwise enjoy.”

Said Burke: “The Bennington County State Attorney’s office agrees with the Vermont Supreme Court about the dangers inmates face from accepting legal advice from unauthorized practitioners.”

Morales, who identifies as a woman but is being held in a men’s correctional facility, is serving 12-25 years for kidnapping, burglary, first degree aggravated domestic assault and violation of an abuse prevention order, according to the state.