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...