Saturday, November 10, 2012
Jailhouse Rock: Court Of Appeals Of Mississippi Finds Jailhouse Lawyers Is Not An Attorney For Attorney-Client Privilege Purposes
Mississippi Rule of Evidence 502(b) provides that
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.
So, who qualifies as a "lawyer" for purposes of Mississippi's attorney-client privilege? According to Mississippi Rule of Evidence 502(a)(3),
A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.
In Harrell v. State, 2012 WL 5395162 (Miss.App. 2012), the Court of Appeals of Mississippi addressed the following question: Does, a "writ writer" within the prison system, a so-called "jailhouse lawyer," who assists other inmates with legal advice and research, qualify as a "lawyer" under Rule 502(a)(3)?
In Harrell, Christopher Harrell was convicted for the murder of Frank Damico and for possession of a firearm by a felon. At trial, the prosecution called "Henry Peters, an MDOC inmate,... a 'writ writer' within the prison system, a so-called 'jailhouse lawyer,' who assists other inmates with legal advice and research." According to Peters, "Harrell confided in him that he shot Damico in the head." According to the Court of Appeals of Mississippi,
Although the defense objected to Peters's testimony, the court allowed it, and Harrell now claims that the admission of Peters's testimony was prejudicial error. Harrell acknowledges that Peters is not licensed as an attorney, but he claims Peters was acting as an unauthorized legal advisor to him. Therefore, Harrell contends that Peters is held to the same confidentiality standard as a licensed attorney."
The court then rejected this claim, concluding that
Under Mississippi Rule of Evidence 502(a)(3), "[a] 'lawyer' is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation." At trial, Peters admitted that he was not licensed to practice law; he merely assisted prisoners with legal research. Peters said he was questioned by Harrell regarding how to transfer a case to another jurisdiction. As the State notes, most prisoners are well aware that writ writers are not lawyers; in this case, Peters did not hold himself out to be a licensed attorney. Furthermore, under Rule 6(a) of the Mississippi Rules of Discipline, attorneys who are "convicted in any court of any state or in any federal court" are suspended from the practice of law. Peters could not, therefore, be an attorney authorized to render legal assistance to others and be an inmate in prison. We find absolutely no merit to Harrell's contention that his admission to the writ writer is entitled to protection under the attorney-client privilege.