Jail Time: Can Lawyers Practice Law Behind Bars?

In the United States, the term jailhouse lawyer refers to an inmate who assists other inmates in legal matters, often relating to their sentence or prison conditions. While it is uncommon, a prison warden may allow a qualified lawyer to practice law while incarcerated, subject to significant limitations. However, all bar memberships are typically suspended during imprisonment, and most states impose penalties for practicing law without a license. In some cases, a lawyer who has been charged with a crime may have their license suspended or revoked, and they would no longer be authorized to practice law.

Can a lawyer practice law in jail?

Inmates as lawyers

Inmates in the United States are rarely permitted to have jobs outside of those supplied by the prison. This means that even if a prisoner is a qualified lawyer, they are not allowed to leave the prison to practise law.

However, the term "jailhouse lawyer" refers to an inmate who, though usually never having practised law nor having any formal legal training, informally assists other inmates in legal matters relating to their sentence or to their conditions in prison. Sometimes, they also assist other inmates in civil matters of a legal nature. The ability that inmates have to help other illiterate inmates file petitions for post-conviction relief was first recognised in Johnson v. Avery. This same case also determined that unless states provide a reasonable alternative, they must permit such action by jailhouse lawyers. The Supreme Court has held that jailhouse lawyers must be allowed to assist illiterate inmates in filing petitions for post-conviction relief unless the state provides some reasonable alternative.

Many states in the US have jailhouse lawyer statutes, some of which exempt inmates acting as jailhouse lawyers from the licensing requirements imposed on other attorneys when they are helping indigent inmates with legal matters. However, this service can be taken away or restricted, and states may lay down limitations on the times and places where such business can be conducted.

In addition, it is not inconceivable that a prison warden would allow an inmate to practise law, subject to significant limitations on the scope of their practice. Some factors that might encourage a prison warden to allow it are that:

• The state has to pay another lawyer to represent inmates in some kinds of cases if the fellow inmate does not, which would be at greater expense per hour to the state.
• It might promote rehabilitation and garner good press.
• The prison warden might reasonably guess that an inmate represented by a fellow inmate is less likely to prevail on the merits than an inmate represented by another lawyer and might prefer that outcome.

It is important to note that the unauthorized practice of law can lead to criminal, civil, and administrative penalties. Most states make it a crime to practise law without a license.

Work release

In the United States, there is an absolute ban on felons becoming lawyers in three states. Additionally, all bar memberships are usually suspended while in prison. Prisoners are also not permitted to have any job other than those supplied by the prison. This means that even if a prisoner is a qualified lawyer, they cannot leave the prison to work.

However, work release programs allow inmates to work in the community for up to 14 hours a day. In New York, inmates who meet the eligibility requirements can submit an application to the Offender Rehabilitation Counselor or Temporary Release Chairperson at their facility. The inmate's record is reviewed, and the applicant is interviewed. If approved, the application is then submitted to the superintendent and the Central Office for final approval. The committee will also create an agreement outlining the details of the temporary release program, which is sent to the superintendent for approval or rejection. If the inmate agrees to the program, they are bound by its terms and conditions.

In some cases, inmates have failed to return overnight and are charged with escape. A charge of introducing contraband may also be given for bringing unauthorized items into the jail. To qualify for work release, the sheriff will need to ensure that the inmate qualifies under local rules. For example, inmates with a history of sex offenses or violent crimes are typically not permitted to participate in work release programs. The inmate must also have a qualified job, as self-employed inmates and those with inconsistent working hours are less likely to gain approval.

Unauthorized practice of law

The Model Rules of Professional Conduct, created by the American Bar Association, provide guidance on UPL. Rule 5.5 states that lawyers admitted to practice in a specific jurisdiction may provide temporary services in another jurisdiction without violating UPL rules. This includes representing a client in a single lengthy negotiation or litigation. Additionally, lawyers can provide professional advice to non-lawyers, such as claims adjusters or government employees, without violating UPL rules.

In the context of incarceration, the ability of a lawyer to practice law while in prison is highly unlikely. In the United States, bar membership is typically suspended during incarceration, and prisoners are generally not permitted to work outside the prison. While a prison warden may have the discretion to allow an inmate to practice law within the prison, it would be subject to significant limitations and highly unusual.

It is important to note that the definition of UPL and the specific rules and regulations surrounding it can vary by state and jurisdiction. Therefore, it is always advisable to consult with a licensed attorney or refer to the specific rules and regulations in the relevant jurisdiction to understand the precise scope and implications of UPL.

Suspension of bar membership

While laws vary by jurisdiction, prisoners in the US are typically not permitted to work outside the prison. This means that a lawyer in jail would not be able to represent clients in court, a fundamental aspect of practising law. Furthermore, all bar memberships are usually suspended while in prison. Section 6126 of the State Bar makes it a crime for a suspended lawyer to practise law, attempt to practise law, or advertise themselves as practising law.

A suspended lawyer may be reinstated or readmitted only upon order of the court. The lawyer must meet specific criteria for reinstatement or present good and sufficient reasons for their reinstatement. These criteria include fully complying with the terms and conditions of all prior disciplinary orders and not engaging in or attempting to engage in the unauthorized practice of law during the suspension period. The court may also impose conditions related to the grounds for the suspension or disbarment, such as requiring the lawyer to pass the bar examination and the character and fitness examination for readmission.

To initiate the process of reinstatement, a lawyer must file a petition for reinstatement or readmission with disciplinary counsel. This petition must be under oath or affirmation and specify how the lawyer meets the criteria for reinstatement or provide reasons for their reinstatement. The lawyer must also publish a notice of the petition in the relevant state bar journal and a newspaper of general circulation in each judicial district where they practised law before their suspension. This notice informs members of the bar and the public about the application for reinstatement and allows individuals to file notice of their opposition or concurrence with the board.

It is important to note that the rules and procedures for suspension of bar membership and reinstatement may vary depending on the jurisdiction and the specific circumstances of each case. While the above information provides a general overview, specific details may differ based on local laws and regulations.

Jailhouse lawyers

In the United States, a "jailhouse lawyer" is a colloquial term for an inmate who assists other inmates with legal matters, despite usually never having practised law or received any formal legal training. This assistance can include matters relating to their sentence (e.g. appeals, pardons, stays of execution) or their conditions in prison. They may also assist with civil matters of a legal nature.

The term can also refer to an inmate who is representing themselves in legal matters relating to their sentence. The US Supreme Court has ruled that jailhouse lawyers must be permitted to assist illiterate inmates in filing petitions for post-conviction relief unless the state provides a reasonable alternative. Many states have jailhouse lawyer statutes, some of which exempt jailhouse lawyers from the licensing requirements imposed on other attorneys when assisting indigent inmates.

However, the ability to practice law as a jailhouse lawyer is subject to the discretion of the prison warden and significant limitations on the scope of practice. All bar memberships are usually suspended while in prison, and there is an absolute ban on felons becoming lawyers in three US states.

The Jailhouse Lawyer Initiative (JLI) at NYU School of Law supports jailhouse lawyers in becoming leaders in criminal legal reform, providing them with the skills and agency to challenge their convictions, defend their parental rights, and demand improved conditions within the prison.

Frequently asked questions