Jailhouse Lawyers and the Unauthorized Practice of Law

The Vermont Supreme Court recently threw out charges against a state prison inmate accused of practicing law as a “jailhouse lawyer.”[1] The case highlights the fine line between the unauthorized practice of law and work on legal matters, especially for incarcerated individuals with infrequent access to counsel. “Jailhouse lawyer” refers to an inmate who helps other inmates with legal matters while they are in jail or prison. Inmates run a high risk when relying on such advice – not only are the jailhouse lawyers not licensed to practice law, but some may be very limited in their legal training or knowledge.[2] However, they are acknowledged by the courts and penal system and even permitted to communicate regarding legal matters.[3]

As a result, the Vermont court’s decision reflected on a “balancing of the risks and benefits to the public” related to punishing those who give legal advice or draft legal documents without a law license.[4] Importantly, the Vermont inmate was not accused of accepting payment for the legal work or of holding herself out as an attorney.[5] The court limited its decision to the facts of the case.

As in Vermont, unauthorized practice of law is treated very seriously by many states.[6] In California, falsely holding oneself out as an attorney is punishable as a misdemeanor.[7] Disbarred, suspended, or resigned attorneys also may not practice law or hold themselves out as attorneys.[8]

“Practicing law” in California includes preparing legal instruments and contracts securing legal rights, even if a matter is not pending in court. [9] The complexity of documents prepared is irrelevant.[10] As a result, inmates should seek advice from qualified attorneys. Moreover, jailhouse lawyers should take care not to stray into the unauthorized practice of law.

— By Julia Damron, Esq., Barnes Law

Julia Damron is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Gershman, Jacob, “State High Court Tosses Charges Against Unlicensed ‘Jailhouse Lawyer’”, Wall Street Journal Law Blog, Aug. 8, 2016, http://blogs.wsj.com/law/2016/08/08/state-high-court-tosses-charges-against-unlicensed-jailhouse-lawyer/.

[2] In re Serendipity Morales, 2016 VT 85, No. 2016-043, at ¶ 28.

[3] Id. at ¶¶ 18-21.

[4] Id. at ¶ 18.

[5] Id. at ¶ 2.

[6] See, e.g., State Bar of California Rules of Professional Conduct, Rule 1-300.

[7] Cal. Bus. & Prof. Code § 6126(a).

[8] Cal. Bus. & Prof. Code § 6126(b).

[9] In re Garcia (9th Cir. B.A.P. 2005) 335 B.R. 717, 728; Peck, Ellen R., “Avoiding Unauthorized Practice”, California Bar Journal MCLE Self-Study, June 2008, http://apps.calbar.ca.gov/mcleselfstudy/mcle_home.aspx?testID=29.

[10] Id.