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 ...