You Best Protect Your Neck A Guide to Preventing Your Non-Attorney Staff from Engaging in UPL, 0319 SCBJ, SC Lawyer, March 2019, #22

• Author: By Patrick A. McCabe
• Position: Vol. 30 Issue 5 Pg. 22

You Best Protect Your Neck^[1] A Guide to Preventing Your Non-Attorney Staff from Engaging in UPL

Vol. 30 Issue 5 Pg. 22

South Carolina BAR Journal

March, 2019

By Patrick A. McCabe

Whether you are an attorney at a large firm or working out of your own office, you have the responsibility to supervise your legal staff.² Supervising attorneys must pay special attention to ensure their staff does not engage in the unauthorized practice of law (UPL). The South Carolina Rules of Professional Conduct (RPC) state that a lawyer cannot "[a]ssist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."³ Furthermore, a supervising attorney must give "reasonable assurances that the [non lawyer assistant's] conduct is compatible with the professional obligations of the lawyer" and must have "direct supervisory authority over the non-lawyer."⁴ Additionally, "[a] lawyer must give ... assistants appropriate instruction and supervision concerning the ethical aspects of their employment... and should be responsible for their work product."⁵ It doesn't matter if you supervise one non lawyer assistant or 20; ensuring your staff avoids the unauthorized practice of law is a constant vigil.

With information obtained from the South Carolina Bar Unauthorized Practice of Law Committee⁶, I wrote this article in the hope that this material gives attorneys and paralegals a better understanding of what types of activities South Carolina considers to be UPL, thus, avoiding any potential UPL claims.

What is the unauthorized practice of law?

The Supreme Court's authority in regulating the practice of law in South Carolina is firmly established within our state's constitution.⁷ The Supreme Court also has the sole authority to determine what activity constitutes the practice of the law.⁸ To legally practice law in South Carolina one must be "enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina."^[9] An individual who commits the unauthorized practice of law could be convicted of a felony, fined up to $5,000, and be incarcerated for up to five years.¹⁰

Unfortunately, there is not a set of statutes or regulations that specifically define what encompasses the practice of law. In 1992 a subcommittee of the South Carolina Bar proposed to the South Carolina Supreme Court a set of rules that would govern the unauthorized practice of law.¹¹ The proposed rules attempted to determine and describe what activity constituted the practice of law. The Court recognized the effort of the subcommittee in drafting the rule, but ultimately rejected the proposed rules, stating, "We are convinced, however, that it is neither practicable nor wise to attempt a comprehensive definition by way of a set of rules."¹² The Court found that the better course of action was to determine what constitutes UPL on a case-by case basis.¹³ "It is the character of the services rendered, and not the denomination of the tribunal where services are rendered, that determines whether such services constitute the practice of law."^[14]

"The goal of the prohibition against the unauthorized practice of law is to protect the public from incompetent, unethical, or irresponsible representation."¹⁵ "The reason preparation of instruments by a lay person must be held to constitute the unauthorized practice of law is not for the economic protection of the legal profession. Rather, it is for the protection of the public from the potentially severe economic and emotional consequences which may flow from erroneous advice given by persons untrained in the law."¹⁶ In a further effort to protect the public in 2017, South Carolina made it unlawful to impersonate a lawyer for the purposes of soliciting business, obtaining anything of value, or providing legal advice or assistance.¹⁷ Those found guilty of violating this statute face monetary fines or incarceration.^[18]

As an attorney there are a several things to help protect your legal staff from the unauthorized practice of law: 1) At the onset of employment, educate your non lawyer assistant about the unauthorized practice of law.

2) Require your legal staff to disclose their status as a nonlawyer assistant at the start of any professional relationship.

3) Require that your legal staff's email signature identifies them as a nonlawyer assistant.

4) Prohibit your nonlawyer staff from giving any type of legal opinions or advice.¹⁹

5) Inform your clients that you have instructed your nonlawyer staff to refuse to answer any questions that might constitute legal opinions or advice.

6) Prohibit your nonlawyer staff from completing legal forms on behalf of your clients.²⁰

7) If your nonlawyer staff conducts initial interviews with potential clients, limit the interview questions to only those needed to compile client information.

8) If your nonlawyer staff assists in drafting a document, ensure that the document ultimately merges with and becomes the attorney's work product.²¹

9) Prohibit your nonlawyer staff from correcting legal documents without the attorney's approval.

10) Prohibit your nonlawyer staff from signing legal pleadings on your behalf.

11) Do not allow the use of a signature stamp.^[22]

12) Prohibit your nonlawyer assistant from conducting educational seminars for the general public.^[23]

13) Ensure sufficient and meaningful supervision of your non-lawyer staff during real estate transactions.²⁴

14) Prohibit your nonlawyer assistant from drafting and recording lien documents without attorney supervision.

15) Prohibit your nonlawyer assistant from filing judgments in circuit court without attorney supervision.

Nonlawyer staff can also take steps to make sure that they are not engaging in the unauthorized practice of law. Below is a set of questions your staff should ask themselves before helping a client: 1) Am I about to apply the law to an individual person's specific situation?

2) Am I about to say, "You should ...."

3) Am I about to describe to someone what a contract or other legal document says or means?

4) Am I about to show someone where to look in a contract to find the answer to a question?

5) Am I about to tell someone what his or her legal rights are?

6) Am I about to tell someone the consequences of his or her actions or inactions?

7) Am I about to tell someone what to do in a particular legal situation (other than to get an attorney)?

Answering any of the above questions with a yes should alert your staff that they may be on the cusp of engaging in UPL, and they should ensure the client speaks with you.

These are just a few suggestions that can be implemented in your office to safeguard against the inadvertent UPL by your legal staff.²⁵ However, as the definition of what constitutes the practice of law is fluid and constantly changing, attorneys must be attentive to changes in pertinent case law and train their staff accordingly.

Patrick A. McCabe is employed by the South Carolina Department of Revenue (SCDOR) and the University of South Carolina (USC). While Mr. McCabe is an employee of SCDOR and USC, the opinions expressed are his own and should not be attributed to SCDOR or USC.

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Notes:

[1] Wu-Tang Clan, Enter the Wu-Tang (36 Chambers) (Loud Records 1992) (CD).

[2] Rule 5.3, RPC, Rule 407 SCACR

[3] Rule 5.5(b), RPC, Rule 407 SCACR

[4] Rule 5.3 (a)-(b), RPC, Rule 407 SCACR

[5] Rule 5.3, Note 1, RPC, Rule 407 SCACR

[6] The Author would like to thank, Tammy Besherse, Barbara Seymour, and Bob Wood with their assistance in writing this article.

[7] S.C. Const. Art. V §4.

[8] S.C. Code Ann. §40-5-10. (2009). See Under v. Ins Claims Consultants, Inc., 348 S.C. 47, 486, 560 S.E.2d 612, 617 (2002)

[9] S.C. Code Ann. § 40-5-310 (2009)

[10] Id.

[11] In Re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 309 S.C. 304, 422 S.E.2d 123 (1992).

[12] Id, 124.305.

[13] Id.

[14] Medlocfe v Uniuersity Health Seruices, Inc., 404 S.C. 28, 743 S.E.2d 831 (2013). See State ex rel. Daniel Wells, 191 S.C. 468, S.E.2d 181 (1939).

[15] Renaissance Enterprises, Inc. v. Summit Tele-seruices, Inc., 334 S.C. 649, 515 S.E.2d 257, (1999).

[16] State v. Buyers Seruice Co. Inc., 292 S.C. 426,431, 357 S.E.2d 15, 18 (1987).

[17] S.C. Code Ann. §16-17-770.

[18] Id.

[19] See State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995).

[20] See State v. McLauren, 349 S.C. 488, 563 S.E.2d 346 (2002). See In re Deddish, 347 S.C. 614, 557 S.E.2d 655 (2001).

[21] See State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995).

[22] See In Re Marshall, 331 S.C. 514, 498 S.E.2d 869 (1998).

[23] See Doe v. Condon, 341 S.C. 532, S.E.2d 879 (2000).

[24] State v. Buyers Seru Co., 292 S.C. 426, 357 S.E.2d 15 (1987). Preparation of deeds, notes, title abstracts, disbursement of funds all require sufficient and meaningful attorney involvement. See Boone v. Quicfeen Loans, Inc., 420 S.C. 452, 803 S.E.2d 707 (2017). See In re Lester, 353 S.C. 246, 578 S.E.2d 7 (2003).

[25] See Memo. From S.C H. of Delegates to S.C. Bar Prof. Resp. Comm., 2003 ABA Model Guidelines for the Utilization of Paralegal Services (April 28, 2006) (copy available from S. C. Bar) See also ABA Standing Comm. on Paralegals, ABA Model Guidelines for the Utilization of Paralegal Services, ABA, 2004.

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