The opinion
Lundberg Stratton, J.,
dissenting.
{¶ 28} I respectfully dissent from the majority’s conclusion that respondent may continue to practice law without a license merely because he is behind prison walls.
{¶ 29} Much of the majority’s conclusion is based on two reasons: first, that Ohio prisons provide no reasonable alternative assistance under the standard announced in Johnson v. Avery (1969), 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 , and second, that we should not waste our resources prosecuting such cases. I disagree with both premises.
{¶ 30} On remand, the Board on the Unauthorized Practice of Law weighed the evidence and concluded that LoCI met the Johnson standard. The majority summarily rejects that finding, largely upon its conclusion that four “inmate law clerks” are insufficient to serve LoCI’s inmates. Yet Johnson sets no standard requiring the use of inmate law clerks. Johnson lays out a more far-reaching standard than the simple issue identified by the majority, and in fact, the Johnson standard has been narrowed and clarified by subsequent United States Supreme Court decisions.
{¶ 31} After our remand, Disciplinary Counsel conducted further investigation, including depositions, and presented evidence to a panel of the board. The panel found that LoCI “has implemented a comprehensive system to ensure that inmates are provided adequate access to the courts” and that the relator had adduced “substantial evidence of the services provided to illiterate inmates.” Consequently, the panel also found that “[rjeasonable alternatives exist in the Ohio prison system and at LoCI to assist inmates in the preparation of petitions for post-conviction relief, and to have access to the courts, as mandated by Johnson v. Avery and later U.S. Supreme Court decisions.” Thus, the panel concluded that respondent’s actions of preparing, assisting, and revising legal papers for other inmates constituted the unauthorized practice of law. The panel recommended that this court issue an order (1) finding that respondent has engaged in the unauthorized practice of law and (2) prohibiting respondent from engaging in the unauthorized practice of law in the future. The panel chose not *121 to recommend any penalties. The board adopted the panel’s findings, conclusions, and recommendation. The majority has now rejected all of those factual findings and recommendations, focusing almost solely on the “four inmate law clerks” as being inadequate to assist other inmates in their legal pursuits.
{¶ 32} The critical case addressing “jailhouse lawyers” is Johnson v. Avery, 393 U.S. 483 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . The issue in Johnson was whether a Tennessee prison regulation that prohibited inmates from advising or assisting one another in preparing writs or other legal matters improperly interfered with the inmates’ right of access to the courts, particularly the right to file a habeas corpus petition.
{¶ 33} The court found that “it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.” Johnson, 393 U.S. at 485 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . The court recognized that inmates generally have no right to counsel when seeking postconviction relief. Id. at 488 , 89 S.Ct. 747 , 21 L.Ed.2d 718 , citing Barker v. Ohio (C.A.6, 1964), 330 F.2d 594 . For this reason, the court determined, inmates often rely on help from other inmates when filing posteonviction petitions. Id. The court found that without the assistance of these jailhouse lawyers, it was possible that valid constitutional claims of illiterate or poorly educated prisoners would never be heard in any court. Id. at 487, 89 S.Ct. 747 , 21 L.Ed.2d 718 . The court concluded that unless Tennessee provided some substitute assistance to inmates to file their petitions for postconviction relief, the regulation barring the use of jailhouse lawyers could not stand. Id. at 490 , 89 S.Ct. 747 , 21 L.Ed.2d 718 .
{¶ 34} The only alternative assistance that Tennessee provided to inmates was (1) free notarization of pleadings, (2) access to listings of attorneys in the telephone directory, and (3) “on several occasions,” access to the public defender at the request of an inmate. Johnson, 393 U.S. at 489-490 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . The court in Johnson held that these alternatives were “obviously far short” of satisfying the constitutional requirement of providing inmates access to the courts. Banning jailhouse lawyers in effect prevented inmates who were “unable themselves, with reasonable adequacy, to prepare their petitions” challenging the legality of their confinements. Id. at 489 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . Thus, the court held that “unless and until the State provides some reasonable alternative to assist inmates in preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.” Id. at 490 , 89 S.Ct. 747 , 21 L.Ed.2d 718 .
{¶ 35} The court in Johnson did not define “reasonable alternative.” However, it is clear that a particular alternative is not sufficient unless it provides inmates with meaningful access to the courts. See Buise v. Hudkins (C.A.7, 1978), 584 *122 F.2d 223, 228 . “Meaningful access” is further defined by other United States Supreme Court cases.
{¶ 36} The Supreme Court first recognized the right to access to the courts in 1941, when it struck down a state regulation that prohibited prisoners from filing habeas petitions unless they were properly drafted, on the basis that the regulation impaired the petitioner’s right to seek habeas relief. Ex parte Hull (1941), 312 U.S. 546 , 61 S.Ct. 640 , 85 L.Ed. 1034 . More recently, the court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (Emphasis added.) Bounds v. Smith (1977), 430 U.S. 817, 828 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 . However, there is no one constitutionally acceptable method to ensure meaningful access to the courts. Id. at 830 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 . Particular remedies, such as the law library in Bounds, are “not the ends in themselves, but only the means” of ensuring such access. Lewis v. Casey (1996), 518 U.S. 343, 351 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 .
{¶ 37} In Lewis , decided 27 years after Johnson , the court recognized some limitations on the right of access to the courts. The court in Lewis determined that in order to assert a claim alleging denial of the right of access, an inmate must prove actual injury; merely showing that a law library or legal assistance program “is subpar in some theoretical sense” is not enough. Id. at 351 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 .
{¶ 38} The court in Lewis also determined that meaningful access does not require a state to provide inmates the means to “discover grievances” or to “litigate effectively.” (Emphasis sic.) Id., 518 U.S. at 354 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 ; see also Cody v. Weber (C.A.8, 2001), 256 F.3d 764 , 767-768. The court stated that “[t]o demand the conferral of such sophisticated legal capabilities upon a mostly uneducated and indeed largely illiterate prison population is effectively to demand permanent provision of counsel, which we do not believe the Constitution requires.” Lewis at 354, 116 S.Ct. 2174 , 135 L.Ed.2d 606 .
{¶ 39} The court in Lewis further determined that “the Constitution does not require that prisoners (literate or illiterate) be able to conduct generalized research, but only that they be able to present their grievances to the courts — a more limited capability that can be produced by a much more limited degree of legal assistance.” Id., 518 U.S. at 360 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 .
{¶ 40} Thus, the court in Lewis concluded that “meaningful access” means only that inmates “have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.” Id. at 356 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 .
*123 {¶ 41} I believe that Lewis limits the scope of the alternative assistance required under Johnson , by holding that alternative assistance requires a state to provide inmates a reasonably adequate opportunity to file claims challenging their convictions or conditions of confinement, but does not require the state to provide inmates the effective equivalent of legal counsel.
{¶ 42} Respondent’s conduct is not identical to that of the inmate clerks except for “signing pleadings” as the majority contends. The board found that “[although Respondent’s conduct appears to encompass certain activities in which the inmate legal assistants also engage (properly or otherwise), Respondent’s conduct exceeds that level of participation and control.” Respondent assisted other inmates by drafting, conducting legal research, and providing legal advice. None of the inmate clerks ever signed another inmate’s pleading, nor did any insert a statement in another inmate’s pleading indicating that the clerk had drafted it. It is this conduct that alerted relator to investigate respondent.
{¶ 43} Moreover, whether the inmate clerks are assisting other inmates in a manner that constitutes the unauthorized practice of law is not currently before this court. Respondent’s conduct is the sole subject of today’s decision.
{¶ 44} The majority summarizes the measures adopted by LoCI and Ohio’s prisons in a simplistic manner. In greater detail, the state of Ohio has adopted measures to ensure that inmates receive access to legal services, which include (1) providing inmates who are not in the general population access to legal materials, (2) establishing a library’s schedule of operation, (3) permitting inmates to purchase law books, (4) permitting inmates to assist each other in preparing legal documents, (5) permitting inmates access to typewriters and assistance in typing, (6) permitting inmates to contact attorneys, and (7) providing inmates legal kits. See Ohio Adm.Code 5120-9-20(B). In addition, the Department of Rehabilitation and Correction has adopted a policy to ensure that inmates have adequate access to the courts, attorneys, and legal-research materials. Specifically it provides (1) that each prison library must maintain current editions of the required legal materials, (2) that each library must have reasonable hours, (3) that each library may employ inmate clerks, (4) that inmates may request assistance from a staff member, (5) that illiterate inmates may request assistance with their initial pleadings (reading and writing), (6) that inmates may have access to a translator if necessary, (7) that inmates must be instructed in writing and orally how they may acquire assistance, (8) that provisions must be made for indigent inmates, (9) that inmates may possess legal materials, (10) that inmates may assist each other in “the preparation and filing of legal documents or other legal matters” with reasonable restrictions, and (11) that inmates may not hold themselves out as being attorneys. DRC Policy 204-01, as effective November 28, 2000.
*124 {¶ 45} Both of these provisions permit inmates to assist one another in preparing legal documents. Ohio Adm.Code 5120 — 9—20(B)(5); DRC Policy 204-01, Section VI(F)(1). However, the policy precludes inmates from holding themselves out as attorneys. Id. at VI(F)(4). Furthermore, although Johnson precludes a state from regulating jailhouse lawyers unless the state provides inmates an adequate alternative type of assistance, Johnson does not confer on an inmate a license to practice law. Webb v. State (1980), 274 Ind. 540, 542 , 412 N.E.2d 790 . And under Lewis , the right of access to the courts does not require that a state provide inmate assistance that is equivalent to legal counsel. Id., 518 U.S. at 354 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 . Thus, I agree with the board that the authorized activities of the inmate clerks are mostly clerical in nature, such as directing inmates to the location of texts and showing inmates how to use the various law books and legal forms. Inmate clerks are not authorized to give legal advice, draft a legal pleading for another inmate, recommend strategy, make legal arguments, or otherwise act as an attorney.
{¶ 46} Consistent with the aforementioned policies, LoCI has a law library that contains over 3,300 volumes and is staffed by a librarian, assistant librarian, and four inmate law clerks. The library is open seven days a week, six hours a day. The library maintains on file 30 to 40 fill-in-the-blank legal forms, which include forms for a notice of appeal, habeas corpus, civil rights violations under Section 1983, an affidavit of indigency, a motion to reduce fines, and a motion for jail-time credit. Inmates also have access to translators, typewriters, and legal kits, which contain writing materials. LoCI does not charge indigent inmates for mailing court filings. And LoCI provides indigent inmates with a legal kit free of charge.
{¶ 47} Most important, LoCI has procedures in place to assist illiterate or uneducated inmates. LoCI requires all incoming inmates to be evaluated. Illiterate inmates are required to attend instruction. There is a special intensive literacy dormitory with tutors and assistance available around the clock for inmates at the extreme low end of the literacy scale.
{¶ 48} Inmates are also informed, both in writing and orally, of the literacy program, as well as the availability of assistance from staff members or inmate law clerks. The inmate clerks help illiterate inmates to read books, cases, pleadings, and the like. Inmate clerks assist other inmates in writing or typing their pleadings using words generated by the inmate. Inmate law clerks also help inmates locate the fill-in-the-blank form on file in the library that corresponds to the inmate’s particular claim. If the library does not have the form that an inmate is looking for, the library staff may call the public defender’s office to acquire it. The public defender updates the library with new forms.
{¶ 49} I would find that the assistance provided by LoCI provides inmates with “a reasonably adequate opportunity to file nonfrivolous legal claims challenging *125 their convictions or conditions of confinement.” Lewis, 518 U.S. at 356 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 . The educational opportunities, coupled with access to a law library, assistance with reading and writing, and rudimentary advice regarding legal matters, e.g., locating a fill-in-the-blank legal form, suggesting a particular word, or directing an inmate to a particular legal source are sufficient to afford illiterate and uneducated inmates that opportunity.
{¶ 50} Inmates deserve the same protection from untrained, unqualified persons who act as lawyers dispensing legal advice that we afford to the public. Cleveland Bar Assn. v. CompManagement, Inc., 111 Ohio St.3d 444 , 2006-Ohio-6108 , 857 N.E.2d 95, ¶ 23 . As Justice Byron White stated in his dissent in Johnson , “[m]any assert that the aim of the jailhouse lawyer is not the service of truth and justice, but rather self-aggrandizement, profit, and power.” Id., 393 U.S. at 499 , 89 S.Ct. 747 , 21 L.Ed.2d 718 (White, J., dissenting). And it’s unlikely that “the problem of the indigent convict will be solved by subjecting him to the false hopes, dominance, and inept representation of the average unsupervised jailhouse lawyer.” Id. at 501 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . “Unless the help the indigent gets from other inmates is reasonably adequate for the task, he will be as surely and effectively barred from the courts as if he were accorded no help at all.” Id. at 499 , 89 S.Ct. 747 , 21 L.Ed.2d 718 . By washing our hands of policing the actual practice of law by jailhouse lawyers, we increase the danger that an inmate "will receive incompetent legal advice that could damage his of her chances on appeal, or worse.
{¶ 51} Here respondent drafted legal pleadings, conducted legal research, and gave legal advice to inmates, all without any legal training or education. Respondent also either signed pleadings and motions on behalf of other inmates or inserted a statement acknowledging that he had drafted them. Respondent is neither an attorney nor a party in any of the pleadings that are at issue. Yet our decision will continue to allow other inmates to engage in such activities despite the board’s conclusion that LoCI provides inmates reasonable alternative assistance that complies with Johnson .
{¶ 52} I do not believe that this is a “prison regulation” issue only. Our authority, and obligation, to regulate the practice of law does not stop at the prison door. We have the same duty to protect other inmates from incompetent and ineffective lawyering. Instead, we allow such conduct to continue unabated by this decision. Thus, I respectfully dissent and would find that respondent engaged in the unauthorized practice of law.