An Indianapolis non-lawyer who drafted a petition for post-conviction relief and sentence modification for an inmate has been permanently enjoined from offering or providing legal advice and services.
On March 4, Indiana Attorney General Todd Rokita filed a “Verified Petition to Enjoin the Unauthorized Practice of Law” against Eric Smith pursuant to Indiana Admission and Discipline Rule 24.
Justices in the Thursday order of State of Indiana ex rel. Theodore E. Rokita v. Eric Smith, 22S-MS-83, granted the petition and permanently enjoined Smith from offering or providing legal advice or legal services to others unless or until he obtains a license to practice law in Indiana.
The petition alleges that Smith, who is not a licensed attorney, engaged in the unauthorized practice of law in the Hoosier State by offering and providing legal assistance without attorney supervision to Indiana residents through “Self Help Legal Aid Company, LLC,” a company he owns and operates.
Among other things, Smith was allegedly hired to assist “Fisher,” an incarcerated individual, and drafted a petition for post-conviction relief and a sentence modification motion for the inmate.
According to the order, the PCR petition Smith drafted included legal argument, and the sentence modification motion indicated that Smith had attempted to communicate with the prosecutor regarding a modification.
Smith allegedly indicated in a separate email that he would appear as Fisher’s “legal assistant” at any hearing on the sentence modification motion. However, Fisher did not file either the PCR petition or modification motion drafted by Smith.
Justices were prompted to accept the verified allegations as true because Smith’s March 14 verified return did not “specifically deny or admit each allegation of fact” in the petition.
“Smith argues more broadly that his conduct is permissible under our rules governing the use of paralegals. But Guideline 9.1 requires a non-lawyer assistant to perform services ‘only under the direct supervision of a lawyer[.],'” Chief Justice Loretta Rush wrote in the Thursday order.
“Smith does not claim to have been acting under the supervision of a lawyer; rather, he appears to argue that his actions were authorized because pro se litigants ‘act[ ] as their own attorney.’ Self-representation enables an individual to speak on his or her own legal behalf, but it does not make that individual a lawyer, and certainly not a lawyer authorized to directly supervise Smith’s conduct.”
“Smith also argues that his conduct occurred in 2019, outside of any statute of limitations,” the order continued. “But Rule 24 contains no limitations period; and in any event, Smith’s Return admits the Petition’s averment that ‘as of the date of filing, Smith continues to offer legal services to individuals in exchange for payment.’ Smith also summarily asserts that pro se litigants have a constitutional right to be assisted by a paralegal, but he offers no cogent argument in support.”
The restriction doesn’t preclude Smith from being employed by, or independently contracting with, a lawyer or law firm as a non-lawyer assistant. The only caveat is that while doing so, he abides by the terms of this permanent injunction and does not contravene the Indiana Rules of Professional Conduct or Guideline 9 for the Use of Non-Lawyer Assistants.