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In re Morales

Supreme Court of Vermont

August 5, 2016

In re Serendipity Morales

         Supreme Court Original Jurisdiction March Term, 2016

          Alexander N. Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff. Kelly Green and Emily Tredeau, Appellate Defenders, Montpelier, for Defendant.

          William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Amicus Office of Attorney General.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, J.

         ¶ 1. This case calls upon us to consider the applicability of the prohibition against the unauthorized practice of law to the activities of a "jailhouse lawyer." In February 2016, the State filed an information in this Court against Serendipity Morales, an inmate at the Marble Valley Regional Correctional Center, alleging she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, we consider whether there is probable cause to believe that defendant has committed the alleged offenses. We conclude that there is not and accordingly dismiss the State's information without prejudice.

         ¶ 2. The information filed by the State charges Morales with six counts of unauthorized practice of law, in violation of 4 V.S.A. § 901 and Administrative Order No. 41, § 2. [*] In support of these charges, the State included an affidavit from Sergeant Lloyd Dean, an officer for the Bennington County Sheriffs Department. In that affidavit, Sergeant Dean alleges that Morales prepared court filings for five fellow inmates. These inmates reported to Dean that: (1) they had heard Morales was familiar with the legal process; (2) they 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. Sergeant Dean further alleged that each of the five inmates was represented by counsel in the matters in question, and that Morales is not a licensed attorney in the State of Vermont. 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.

         ¶ 3. After we received the State's information, we directed the Bennington County State's Attorney's Office to show cause as to why the information should not be dismissed on the basis that, even if the factual allegations were true, Morales had not committed the common law crime of unauthorized practice of law. We issued a second order clarifying our directive, and informed the State that this case presented a fundamental legal question concerning the scope of the offense of unauthorized practice of law, particularly as it relates to the rights of prison inmates to access the justice system. We scheduled a show-cause hearing to determine whether this case could proceed and informed the parties that we would treat this proceeding like a probable cause determination.

         ¶ 4. At a probable-cause hearing, the court is required to determine whether "there is probable cause to believe that an offense has been committed and that the defendant has committed it." V.R.Cr.P. 5(c). If there is no probable cause at the Rule 5(c) hearing, then the information is dismissed without prejudice. See State v. Roya, 169 Vt. 572, 572, 730 A.2d 600, 601 (1999) (mem.). At this stage, our role is to simply determine the existence of probable cause, not to reach the ultimate conclusion of whether a crime has in fact been committed. State v. Clark, 2003 VT 29, ¶¶ 2-3, 175 Vt. 506, 825 A.2d 803 (mem.) (holding it was error for trial court to reach "legitimacy of stop" at probable cause hearing because State would not have been "prepared to defend the information at arraignment or suffer dismissal"). But, if "the law is settled that an element of the crime was not met, " then a court may find "no probable cause at arraignment." State v. Bresland, 2012 VT 75, ¶ 6, 192 Vt. 644, 57 A.3d 727 (mem.). Accordingly, in order to decide whether there is probable cause, we must determine whether the prohibition of the unauthorized practice of law applies to the alleged facts of this case.

         ¶ 5. In evaluating this question, we consider the general legal landscape in Vermont concerning the unauthorized practice of law, and then the particular case of legal advice provided by one inmate to another.

         I. General Vermont Legal Landscape

         ¶ 6. This Court has historically defined the unauthorized practice of law broadly, to include not merely holding oneself out as an attorney, but also providing 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. More recent social and legal developments reflect a trend toward a somewhat more purpose-driven approach to defining the scope of the unauthorized practice of law.

         ¶ 7. In In re Morse, we concluded that an accountant who held himself out as an attorney and signed pleadings and other court filings on behalf of his debt collection business had engaged in the unauthorized practice of law. 98 Vt. at 95, 126 A. at 553. The defendant ran a debt collection business and regularly issued trustee writs, signed many of them as "attorney" or "acting attorney, " brought suits against various parties who were in default, and acted as an attorney before the court in those cases. In our decision, we emphasized that even though justices of the peace and process servers with whom he did business knew that he was not an attorney, the defendant "acted, and held himself out, as an attorney" and signed pleadings and other court filings. Id. at 89-90, 126 A. at 551-52. On that basis, we adjudged him guilty of contempt of this Court. Id. at 95, 126 A. at 553.

         ¶ 8. We articulated a broader definition of unauthorized practice in In re Ripley, 109 Vt. 83, 191 A. 918 (1937). In that case, the defendant also ran a debt collection agency in which, for a fee, he undertook the obligation of enforcing, securing, settling, adjusting, and compromising a civil claim a Mrs. Spaulding had against a Mr. Stone. Id. at 85, 191 A. at 918. The defendant also advised a creditor regarding the liability of Mr. Stone, wrote letters to Mr. Stone threatening him with legal action should he fail to pay the defendant a substantial amount then due and owing, and filed a lawsuit against Mr. Stone. Id. We found the defendant in contempt for engaging in the unauthorized practice of law. Id. at 87, 191 A. at 919-20. In so concluding, we explained:

According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in ...

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