Activities
of a Layman Inmate in a Correctional Facility,
on
Behalf of Fellow Inmates in Pending
Civil Litigation.
Inquiry: May a non-lawyer inmate of a correctional facility
represent a fellow inmate by way of in-court oral
argument and out-of-court settlement negotiations
in pending civil litigation?
Opinion: The activities of a non-lawyer and self-styled “paralegal,”
in attempting to represent in-court oral argument
and to negotiate out-of-court settlement on behalf
of a fellow inmate in a pending civil suit, fall
squarely within the Supreme Court’s definition
of the practice of law. One is deemed to be practicing
law whenever.
(1)
One undertakes for compensation, direct or indirect,
to advise another not his regular employer, in any
matter involving the application of legal principles
to facts or purposes or desires.
(2)
One, other than as a regular employee acting for
his employer, undertakes, with or without compensation,
to prepare for another legal instruments of any
character, other than notices or contract incident
to regular course of conducting a licensed business
(3)
One undertakes, with or without compensation, to
represent the interest of another before [a tribunal,
as hereinafter defined in UPC 1-1,] otherwise than
in the presentation of facts, figures, or factual
conclusions, as distinguished from legal conclusions,
by an employee regularly Ö employed on a salary
basis, or by one specially employed as an expert
in respect to such facts and figures when such presentation
by such employee or expert does not involve the
examination of witnesses or preparation of pleadings.
Rules of Court, Part 6:§IV:¶10
Appendix, 221 Va. 381, 382 (1980). See Rules 6:§I,
216 Va. 941, 1062 (1976).
The
applicable provisions of UPL Rule 6.1-1, Unauthorized
Practice Rule (UPR)1-101 (A) state as follows:
(A)
A non-lawyer , with or without compensation, shall
not represent the interest of another before a tribunal,
judicial, administrative or executive, established
under the Constitution or laws of the Commonwealth
of Virginia, otherwise than in the presentation
of facts, figures or factual conclusions, as distinguished
from legal conclusions, . . . Rules, 221 Va. 381,
386.
Again,
the rationale expressed above can be found in two
Rules of Court specifically addressing the performance
of activities such as those attempted by the “paralegal”
in this matter. Rule 6.1-1 (Unauthorized Practice
of Law Advisory Opinion, Practice Before Tribunals)
and Rule 6.1-2 (Unauthorized Practice of Law Advisory
Opinion, Lay Adjusters), respectively prohibit the
non-lawyer from representing the interest of another
before a judicial tribunal and from advising another
as to matters of liability or non-liability or negotiating
settlement of pending civil litigation, subject
to several well-defined exceptions. The pertinent
exception in Rule 6.1-1, UPR 1-101(A)(1) reads as
follows:
A
non-lawyer under the supervision of a lawyer who
is a regular employee of a legal aid society approved
by the Virginia State Bar in accordance with its
rules and regulations adopted under ß 54-52.1 of
the Code of Virginia may represent an indigent patron
of such society before such a tribunal when authorized
to do so by the governing body of such society and
when such representation is permitted by the rules
of practice of such tribunal. The supervising attorney
shall assume personal professional responsibility
for any work undertaken by the non-lawyer. Rules, 221 Va. 381, 386.
The pertinent exception in Rule 6.1-2, UPR
2-102(A), reads as follows:
(1)
A lay adjuster may secure and convey factual data
and information transmit settlement offers made
by either party, determine and express his opinion
on the extent of damage or injury and its monetary
value, deliver releases or other documents, and
assist the lawyer for his principal in the efficient
performance of ministerial acts arising out of the
settlement of negotiations. Id., 389.
In
the absence of information to the contrary, it is
assumed herein that neither of the above exceptions
encompasses the activities of the non-lawyer in
this matter. That it, there is no indication that
the non-lawyer is under the supervision of a lawyer
who is a regular employee of a legal aid society
or that he is assisting the lawyer for his principal.
Nevertheless, this inquiry must give due consideration
to the holdings of the Supreme Court of the United
States concerning the Constitutional right of meaningful
access to the courts accorded to prisoners.
Beginning with Johnson v. Avery, 393
U.S. 493 (1969), and continuing through Bounds
v. Smith, 430 U.S. 817 (1977), to the present,
the Supreme Court has outlined the essential requirements
of “meaningful access.” As set forth in
Bounds, supra:
“It
should be noted that while adequate law libraries
are one constitutionally acceptable method to assure
meaningful access to the courts, our decision here,
as in Gilmore, does not foreclose alternative means to achieve that
goal. Nearly
half the states and the District of Columbia provide
some degree of professional or quasi-professional
legal assistance to prisoners . . . Such programs
take many imaginative forms and may have a number
of advantages over libraries alone. Among the alternatives are the training of inmates as paralegal
assistants to work under lawyers' supervision, the
use of paraprofessionals and law students, either
as volunteers or in formal clinical programs, the
organization of volunteer attorneys through bar
associations or other groups, the hiring of lawyers
on a part-time consultant basis, and the use of
full-time staff attorneys, working either in new
prison legal assistance organizations or as part
of public defender or legal services offices . .
. [A] legal access program need not include any
particular element we have discussed, and we encourage
local experimentation.
Any plan, however, must be evaluated as a
whole to ascertain its compliance with constitutional
standards.” 430 U.S. at 830-32.
The Virginia General Assembly has recognized
its constitutional responsibility for providing
meaningful access to the courts by its enactment
of §53.1-40 of the Code of Virginia.
That section provides for appointment of
attorneys-at-law to counsel or assist indigent prisoners
regarding any legal matters relating to the prisoner's
incarceration. Such attorneys’ legal assistance
is a constitutionally approved method of providing
meaningful access to the courts. Almond
v. Davis, 639 F.2d 1086 (4th Cir.,
1981). Significantly,
the Virginia General Assembly did not see fit to
remove the prohibition contained Virginia General
Assembly did not see fit to remove the prohibition
contained in §54-42 and §54-44 proscribing
non-lawyers from practicing law.
Summary: The Rules of Court set forth in this Advisory Opinion
clearly define and proscribe the activities of the
“paralegal” assisting a fellow inmate
in the correctional facility as the unauthorized
practice of law.
Approved
by the Supreme Court
Of Virginia, September 9, 1983
Effective December 1, 1983
