EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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),

“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.



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The court's answer is deeply unsatisfying. The rule as I read it requires either one of two things to be true. (1) The person is authorized to practice law OR the client reasonably believed the person to be authorized. Now, the court's analysis is correct as to item one. The writ writer was a fellow prisoner so, by definition, could not be authorized to practice law. The difficulty is that the court's analysis of item two is flawed. Nowhere does it make an attempt to directly address the "reasonably believed" standard. The court states "most prisoners are well aware that writer are not lawyers" but that elides the standard. The standard is not what "most" prisoners know rather the standard is what this specific prisoner actually could "reasonably believe". It is obvious that most prisoners could know that writ writers are not lawyers and yet circumstances arise such that this specific prisoner could reasonably believe one to be. Whether those circumstances actually arose in this case I do not know but I do know that in refusing to address the correct standard directly the court has its head in the sand.

Posted by: Daniel | Nov 10, 2012 2:30:19 PM

Seems fine to me. The court needs to draw the line as to what's objectively reasonable. Otherwise, lots of folks will claim privilege when they confide in people they think can help them. To say that belief in a co-inmate's status as practicing lawyer is unreasonable makes sense much like the Fourth Amendment cases saying it's unreasonable to believe your movements are private when you're walking down the street. Even supposing a subjective belief, society does not recognize that belief as objectively reasonable.

Posted by: Steve | Nov 12, 2012 10:27:27 AM

The problem Steve is if the court /thinks/ "Look, no reasonable person believes a writ writer is a lawyer therefore it is not reasonable to believe this guy thought one was" it should /say/ that. It didn't say that. It didn't even mention the word "reasonable" anywhere in the opinion in this context despite the fact the rule clearly states reasonable.

It is not objectively reasonable to assume that the court applied an objectively reasonable test when the objective fact is that it never said it did. The issue isn't whether, as an objective matter, the court got the result right or wrong. The issue is that there is no way to tell that from the opinion because they simply don't discuss it.

Posted by: Daniel | Nov 12, 2012 2:29:01 PM

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