Rules of Professional Misconduct

Court Holds That Practicing Law From a Jail Cell May Violate Some Ethics Rules

Hard to maintain confidentiality, and also the wifi sucks

It may violate the Rules of Professional Conduct to run a law practice from your jail cell, or so the Oklahoma Supreme Court has concluded.

Jay Silvernail’s license was probably already in jeopardy following his 2019 conviction for shooting a guy in a parking lot. He wasn’t practicing law at the time, but the court decided his “choice to deliberately bring a loaded firearm” to “what had been a verbal disagreement” was sufficient to “adversely reflect … on his fitness to practice law.” At first that seemed like a bit of a stretch, but then I considered being on the other side of the table from him during a deposition and I decided it wasn’t. Cf. Practice Tip: Probably Okay to End Deposition Early If Other Side Brings a Gun” (Feb. 19, 2008) (involving allegations that attorney’s bodyguard “showed up strapped for a deposition”).

The court also frowned upon Silvernail’s choice to keep running his practice from jail while awaiting formal sentencing. “Silvernail thought that so long as he could find attorneys to stand in for him at hearings, he could operate his practice vicariously, as a sort of general manager,” the opinion states. Well, why not? All partners delegate, and some seem to delegate pretty much everything. Why can’t they do it from jail? On a limited basis, this might have been okay, and the court in fact did not punish Silvernail for this alone. He “seems to have thought that he might receive a suspended sentence instead of prison time,” it noted, so the vicarious practice would be only temporary. That turned out to be wrong (though his two-and-a-half-year sentence seems fairly short, considering), but he didn’t know that at the time. The record did not show, the court said, that his “stand-ins” were incompetent to handle their tasks, which may have been limited to seeking short continuances on the ground that the lead lawyer would be out of jail soon—an awkward argument to make, maybe, but not a sure loser. In any event, the court did not agree with the prosecution that vicarious practice from jail was necessarily “prejudicial to the administration of justice” (Rule 8.4).

But there was more to it. “The obstacles to effective representation from a jail cell should be obvious,” the court suggested, but in case they aren’t, it mentioned a few specific rules. First is the duty of competence (Rule 1.1), by which it meant mainly the problem of accessing case files, doing research, etc., while in the slam. Then there’s the duty of reasonable diligence (1.3), given that being in jail makes it difficult to go places and do things for your client (or for any other purpose, really). Confidentiality (1.6) is another concern, as are conflicts of interest (1.7). If Silvernail had his clients’ best interests in mind, the court suggested, he might have advised them to get new lawyers instead of trying to represent them himself, vicariously, from jail.

The court also noted that “practicing law from a jail cell arguably gives the appearance of impropriety,” so be aware of that as well.

Ultimately, the court decided to disbar Silvernail, not to suspend him as had been recommended. It’s hard to say how much the jailhouse law practice added to the end result, given the court’s concern about his decision to bring a gun to an argument. On balance, my advice would be to avoid either of those things going forward.