by John E. Dannenberg
A majority of the Ohio Supreme Court held that the right of prisoners to meaningful access to the courts entitles them to be aided by jailhouse lawyers because Ohio does not provide a reasonable alternative.
The Disciplinary Counsel of the Ohio state bar had filed a complaint of Unlicensed Practice of Law (UPL) against state prisoner Prince Charles Cotton, Sr. because he was aiding other prisoners in the preparation of their legal papers. Cotton, who is not a lawyer, was not only providing legal advice but was also co-signing the prisoners’ submissions to the courts with his own name. Having determined that Cotton was practicing law without a license, Disciplinary Counsel asked the Ohio Supreme Court to prohibit Cotton from continuing such actions.
The state Supreme Court was guided by the U.S. Supreme Court in Johnson v. Avery, 393 U.S. 483 (1969), finding that they would restrict Cotton’s activities only if the state provided a “reasonable alternative” to assistance by jailhouse lawyers. This was subsequently interpreted in Bounds v. Smith, 430 U.S. 817 (1977) to mean that the prisoner was entitled to “meaningful access to the courts.” The Ohio Supreme Court recognized that such “meaningful access” required more than just a law library and four prisoner law clerks with no formal legal training.
Further, “law clerks,” whatever their state prison employment status may be, do not constitute substitutes for a lawyer. Thus, neither Cotton nor the designated prison law clerks (who also presumably engaged in UPL in their daily job assignments) could supplant real state-provided attorneys. Moreover, the court mused, since Cotton’s sentence might keep him in prison for life, there was nothing they could additionally sentence him to to deter his activities. Rather, such restrictions should come from prison authorities. As to Cotton’s pernicious and conspicuous co-signing of other prisoners’ legal documents, a court clerk might reject such filings because they were not submitted pursuant to court rules.
The state Supreme Court concluded that its ruling was in no way an endorsement of Cotton’s “right” to act as a jailhouse lawyer, but rather “an acknowledgment of inmates’ rights to meaningful access to the courts.” While the Ohio prison provided a seven-day-per-week compliant law library replete with law clerks, that did not rise to the level of a “reasonable alternative” to meaningful access to the courts, absent state-provided lawyers.
Perhaps if the Ohio bar deems jailhouse lawyers who help other prisoners to be such a threat to justice – or to their profession – then they should put more effort into supplying pro bono assistance to needy prisoners. See: Disciplinary Counsel v. Cotton, 115 Ohio St.3d 113, 873 N.E.2d 1240 (Ohio 2007).
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Related legal case
Disciplinary Counsel v. Cotton
|Cite||Ohio St. 3d, 2007-Ohio-4481.1 (September 2007)|
|Level||State Supreme Court|