Unauthorized Practice of Law in South Carolina, 0920 SCBJ, SC Lawyer, September 2020, #42

AuthorBy Kevin R. Eberle
PositionVol. 32 Issue 2 Pg. 42

Unauthorized Practice of Law in South Carolina

Vol. 32 Issue 2 Pg. 42

South Carolina BAR Journal

September, 2020

By Kevin R. Eberle

Just as Web M.D. has made everyone a doctor, the internet has also given everyone the confidence to assert bold opinions on nuanced legal topics. When people chime in on Facebook about hot button legal issues from headline-making Supreme Court opinions to municipal decisions about curfews, lawyers roll their eyes and know that the postings will quickly be forgotten. But in the ordinary course of business, well-intentioned individuals can find themselves in hot water by practicing law without a license, clients can be easily injured by accepting legal advice from non-lawyers, and lawyers can find themselves facing discipline for not protecting their clients.

Unfortunately, the only thing clear about the unauthorized practice of law (UPL) in South Carolina is that it is unlawful. Beyond the broad prohibitions, the issue quickly becomes murky. Our Supreme Court has repeatedly explained that even the nature of practicing law itself is best reviewed on a case-by-case basis instead of setting clear rules. Even when some activity is deemed to be the practice of law, there are a host of exceptions, safe harbors, and pitfalls waiting, which are themselves unclear.

Just what is the practice of law?

The South Carolina Supreme Court regulates the practice of law in South Carolina. S.C. Const. art. V, § 4; In re Unauthorized Practice of Law Rules, 309 S.C. 304, 305, 422 S.E.2d 123, 124 (1992); see also S.C. Code Ann. § 40-5-10 (2011). A bedrock rule is that the practice of law is limited to licensed attorneys. Brown v. Coe, 365 S.C. 137, 139, 616 S.E.2d 705, 706 (2005).

The Court does not prohibit UPL to create a monopoly for lawyers, but instead to protect the public in the pursuit of justice by preventing incompetent and unlearned persons from rendering legal services. State ex rel. Daniel v. Wells, 191 S.C. 468, 5 S.E.2d 181, 186 (1939). By excluding laypersons, the Court can “protect the public from the potentially severe economic and emotional consequences which may flow from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law.” Linder v. Ins. Claims Consultants, Inc., 348 S.C. 477, 486, 560 S.E.2d 612, 617 (2002).

The most frequently quoted definition for the practice law came more than a century ago in In re Duncan, 83 S.C. 186, 65 S.E. 210 (1909). When Jim Saunders failed to pay a $10 criminal fine, he was put onto a county chain gang to work off the debt. Id. at 186, 65 S.E. at 211. Even though John Duncan had been disbarred a year earlier, he agreed to help Nita Saunders have her husband released. Id. Mrs. Saunders was to pay Mr. Duncan $15 for his help ($5 paid up front for his services and a future $10 to settle her husband’s fine). When the case dragged out, Mrs. Saunders became dissatisfied, so Mr. Duncan returned her $5 and dropped the matter. Id.

The attorney general fled the case against Mr. Duncan for violating the Court’s earlier disbarment order. Id. Mr. Duncan responded that he had not practiced law in helping Mr. Saunders; he had not, after all, fled any new case for Mrs. Saunders or reopened the criminal case against Mr. Saunders. Id. It seems that he was simply handling the payment of the fine and the administrative release of Mr. Saunders.

The Supreme Court disagreed. After noting that Mr. Duncan had spoken to both the original and replacement magistrates about having Mr. Saunders released upon the late payment of the $10 fine, the Court wrote that [i]t is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. . . . [I]t embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients, and all action taken for them in matters connected with the law.

Id. at 186, 65 S.E. at 211; see also Matter of Easler, 275 S.C. 400, 272 S.E.2d 32 (1980). In other words, apart from appearing in a courtroom on a client’s behalf, practicing law includes preparing pleadings and other litigation documents, managing cases, preparing legal instruments, giving advice, and all other actions for clients connected to the law. Because Mr. Duncan’s services were clearly connected to a legal matter, they were practicing law even if they might have been handled by Mrs. Saunders for herself.

More than a century later, the Supreme Court has still not settled on an objective test for identifying the practice of law. But “[t]he absence of a precise definition is deliberate” precisely because “what constitutes the practice of law must be decided on the facts and in the context of each individual case.” Boone v. Quicken Loans, Inc., 420 S.C. 452, 460-61...

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