by Christopher Zoukis

Michigan Department of Corrections Rule 607, which mandated that an attorney who is also a family member of a prisoner could not have legal visits with the prisoners, has been ruled unconstitutional.

The Rule was struck down by a federal court after prisoner John Vincent, Jr. (prisoner Vincent) and John Vincent, Sr. (attorney Vincent) sued over the restriction. The Vincents claimed that Rule 607 violated attorney Vincent's First Amendment right to practice law and his Fourteenth Amendment right to equal protection. They also claimed that the Rule violated prisoner Vincent's First and Sixth Amendment right to retain an attorney of choice and his right to access the court system.

The Michigan DOC argued that Rule 607 was necessary to defend against smuggling.

"If the attorney is a family member, there is some concerns [sic] that that family member might be more likely to be convinced to either smuggle contraband or assist a prisoner with escape," argued Michigan DOC employee Marjorie Van Ochten. "And it's not that one type of an attorney is more likely than the other, it's that a family member, because of their relationship with an individual, would be more likely to be convinced to assist."

The court applied the Turner test to determine the constitutionality of the Rule (Turner v. Safely, 482 U.S. 78 (1987)). The first factor to consider was whether there was a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." The only evidence of attorney misconduct presented by the Michigan DOC involved non-family member attorneys. As such, the court found that Rule 607 failed the Turner test.

"[D]efendants have no rational basis for distinguishing between attorneys who are family members and attorneys who are not family members in terms of allowing legal visits," ruled the court.

The judge also rebuked the Michigan DOC for using Rule 607, which dealt solely with legal visits, to interfere with legal mail from attorneys who were related to their clients.

"Rule 607 does not restrict legal mail, only legal visits," wrote the court. "However, that Rule 607 may have been extended to encompass a prohibition on legal mail from relatives who are also attorneys is deeply disturbing."

The court made it clear that the Michigan DOC's interference with legal mail was illegal.

"[T]o the extent that defendants extend Rule 607 to also bar attorney Vincent from sending legal mail and opening prisoner Vincent's legal mail outside his presence, such conduct is prohibited." See:  Vincent v. Martin, U.S.D.C. (E.D. Mich.), Case No. 99-cv-71416.

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