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Vermont Supreme Court Hears Case Of 'Jailhouse Lawyer' Who Advised Fellow Inmates

Vermont Law School sign on a fall day in October 2012.
Toby Talbot
Associated Press FIle
The Vermont Supreme Court was in session at Vermont Law School Wednesday to consider whether a prison inmate who helped other prisoners with their court cases was practicing law without a license.

The Vermont Supreme Court is considering whether a prison inmate who helped other prisoners with their court cases was practicing law without a license. The state thinks so and is pursuing criminal charges against the inmate.

The court heard arguments in the case on Wednesday at the Vermont Law School.

At the heart of the arguments are two questions: What is a lawyer and what constitutes practicing law without a license?  

The Bennington County State’s Attorney says Martin Morales, also known as Serendipity Morales, practiced law without a license when she drafted court motions for several fellow inmates.

“I believe Ms. Morales was acting as what’s commonly known and has been written about as a jailhouse lawyer,” Bennington County Deputy State’s Attorney Alexander Burke told the justices.

Burke said earlier rulings clearly state that the practice of law includes preparation of legal instruments and contracts.

Chief Justice Paul Reiber raised the example of legal forms that are available online that people might help friends or family fill out. But Burke told the court that those are generalized forms.

"I believe Ms. Morales was acting as what's commonly known ... as a jailhouse lawyer." — Bennington County Deputy State's Attorney Alexander Burke

Morales, he said, had researched and filed motions in specific cases where the inmates were already represented by public defenders.

Justice Beth Robinson countered with a more specific example.

Robinson described a hypothetical situation in which someone in a civil dispute with his neighbor can’t afford a lawyer and solicits the help of his sister. She researches the statutes and helps him draft a response which he signs and submits to the court.

“Has she engaged in the unauthorized practice of law and is she subject to a criminal contempt charge?” Robinson asked.

Burke said she hadn’t because the she is helping her brother access the court system – although it might be a problem if she then continued to represent him.

Attorney Emily Tredeau with the office of the Defender General represented Serendipity Morales and told the justices that if preparing legal documents and contracts is practicing law without a license, as the state says it is, there’s a big problem.

"We have an un-prosecuted epidemic of unauthorized practice in the state," Tredeau said.

Tredeau said no public defender had complained about Morales, nor did she charge a fee. Tredeau said instead of bringing criminal charges against Morales, a more appropriate action would be for the criminal court to refuse to accept the filings. 

"We got a clear answer here today that that's ok. That's what I do. It's a secretarial role more than anything." — Annette Smith of Vermonters for a Clean Environment

Justices also expressed concern that so-called jailhouse lawyers could work at cross purposes with public defenders, and pointed out that licensed lawyers as officers of the court play an important role in the legal system.

Both sides in the case agreed on one thing: The definition of what constitutes practicing law is outdated and needs to be clarified, something that can only be done by the Supreme Court.

A brief filed with the court by the Attorney General’s office says there is probable cause to show Morales practiced law without a license. But the state’s top law enforcement officer also says the definition of a lawyer should be revised, pointing out instances where non-attorneys have provided legal representation.

One person watching the court proceedings knows firsthand the problems that can arise without a clearer definition.

In January the Attorney General’s office opened an investigation into whether Annette Smith had practiced law without a license.

Smith is executive director of Vermonters for a Clean Environment and has worked with many people concerned about the siting and effects of renewable energy projects.

Eventually the Attorney General dropped the case, but the decision left a lot of uncertainty for Smith.

Listening to the justices, particularly Justice Robinson’s example of the sister helping her brother with court filings and the response that it would not constitute practicing law without a license, was a clarifying moment for her.

“We got a clear answer here today that that’s ok. That’s what I do. It’s a secretarial role more than anything, but because of the knowledge I have of the Public Service Board’s process in particular, I understand it in many ways better than lawyers do,” Smith said.

But the real clarity will come when the court issues a ruling in this case and perhaps in the future makes clear what a lawyer is, and isn’t.

Correction 3:45pm 3/31/2016: An earlier version of this story misspelled the name of Serendipity Morales' attorney. It is Emily Tredeau, not Emily Trudeau.

Steve has been with VPR since 1994, first serving as host of VPR’s public affairs program and then as a reporter, based in Central Vermont. Many VPR listeners recognize Steve for his special reports from Iran, providing a glimpse of this country that is usually hidden from the rest of the world. Prior to working with VPR, Steve served as program director for WNCS for 17 years, and also worked as news director for WCVR in Randolph. A graduate of Northern Arizona University, Steve also worked for stations in Phoenix and Tucson before moving to Vermont in 1972. Steve has been honored multiple times with national and regional Edward R. Murrow Awards for his VPR reporting, including a 2011 win for best documentary for his report, Afghanistan's Other War.
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