What is the Unauthorized Practice of Law?
In order to practice law in South Carolina, an attorney must be licensed by the Supreme Court of South Carolina. The authority of the Supreme Court can be found in the South Carolina Code of Laws at Section 40-5-220, available online or at a local library.
Except where a person is representing his or her own cause, practicing law without a license is strictly prohibited by state law. Section 40-5-310 states that practicing law without a license is a felony, with a penalty of up to five years in prison and/or five a thousand dollar fine. As of 2002, Section 40-5-80 was amended to prohibit the representation of another, with or without permission from a court.
The biggest problem in determining whether someone is engaged in the unauthorized practice of law is determining whether his or her conduct is actually the "practice of law." It is up to the South Carolina Supreme Court to decide whether someone is engaged in the practice of law. Code Section 40-5-20 allows the Supreme Court to adopt rules "defining and regulating the practice of law."
What is considered the "practice of law"?
The practice of law is more than just appearing in court on behalf of a client. Though no concise definition of practice of law exists, certain characteristics make it more likely that the Court will view certain conduct as the practice of law. An early South Carolina case, cited by other jurisdictions as well, stated that the practice of law includes "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." In re Duncan, 65 S.E. 210 (S.C. 1909). The practice of law "extends to activities in other fields which entail specialized legal knowledge." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987).
Additionally, whether an individual is paid for his or her services is irrelevant. The reasons for prohibiting the unauthorized practice of law are not to protect licensed attorneys from losing business to unlicensed individuals. Rather, the purpose is to protect the public from consequences resulting "from the erroneous preparation of legal documents or the inaccurate legal advice given by persons untrained in the law." South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).
Examples from South Carolina Supreme Court Decisions
Inmates. The Supreme Court ruled that it was the unauthorized practice of law for a state prison inmate to help other inmates prepare applications for post-conviction relief, even though he was not paid and never appeared in court on the other inmates' behalf. South Carolina v. McLauren, 563 S.E.2d 346 (S.C. 2002).
Real Estate Closings. Preparation of deeds, mortgages and other legal instruments related to transfers of real estate falls within the practice of law. Additionally, the Supreme Court ruled that "real estate and mortgage loan closings should be conducted only under the supervision of attorneys, who have the ability to furnish their clients legal advice should the need arise ..." South Carolina v. Buyers Serv. Co., 357 S.E.2d 15 (S.C. 1987); Doe v. Condon, 568 S.E.2d 356 (S.C. 2002). While the Bar's Ethics Advisory Committee is limited to issues of professional conduct by South Carolina attorneys and does not issue opinions as to what constitutes the unauthorized practice of law, the Committee does acknowledge a significant number of inquiries about UPL by lenders in the real estate field. Click here for more information.
3rd Party Insurance Adjusting. Public insurance adjustment does not necessarily constitute the practice of law, and is regulated by SC Code section 38-48-70.Insurance adjustment is limited to include: (a) estimations of property damage and repair costs, (b) inventory of loss, (c) delivering claim to insurance company, and (d) negotiating with insurance company relating to property-damage valuations.
Insurance adjustment violates restrictions on unauthorized practice of law when conduct includes: (a) advising clients of their rights under an insurance policy, (b) advising on whether to accept settlement offers, (c) becoming involved in coverage dispute between the client and the insurance company, and (d) advertising that adjuster offers services that require legal skill. Linder v. Ins. Claims Consultants, Inc., 560 S.E.2d 612 (S.C. 2002).
Unsupervised paralegal. A disbarred attorney prepared and filed a deed for a small fee. Though he argued that he was merely acting as a paralegal, his conduct constituted the practice of law. Paralegals do not engage in the practice of law as long as their work is "of a preparatory nature, such as legal research, investigation, or the composition of legal documents, which enable a licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort." Matter of Easler, 272 S.E.2d 32 (S.C. 1980).
Estate planning seminar. A paralegal wanted to conduct unsupervised "wills and trusts" seminars for the public. Because the paralegal planned to advise potential clients of their need for particular estate planning devices, such advice requires professional judgment by a licensed attorney. Doe v. Condon, 532 S.E.2d 879 (S.C. 2000).
Paralegal advertising. A paralegal advertised, "If your civil rights have been violated, call me." It was illegal for the paralegal (not a licensed attorney) to solicit the cause of another person. At the time of the case, it was legal for a non-lawyer to defend the cause of another after receiving permission by the court. Now, it is illegal for an unlicensed person to represent anyone other than himself or herself. South Carolina v. Robinson, 468 S.E.2d 190 (S.C. 1996).
Pro bono paralegal. A certified paralegal offered voluntary services for persons in need of assistance with housing and landlord-tenant issues. The paralegal prepared and filed a complaint (lawsuit) in federal court relating to unlawful eviction. He also prepared pleadings filed in state circuit court alleging unlawful termination of public assistance benefits. The fact that the paralegal was not paid was irrelevant. The Supreme Court ruled that his actions amounted to the practice of law, which includes "the preparation of pleadings and the management of court proceedings." The Hous. Auth. Of the City of Charleston v. Key, 572 S.E.2d 284 (S.C. 2002).
Corporations. Though someone may represent himself or herself pro se, this exception applies only to individuals. A non-lawyer (officer, agent or employee) can only represent a corporation in civil magistrate's court. Because a corporation is an artificial entity created by law, it cannot represent itself. A corporation must be represented by a licensed attorney in circuit and appellate courts. Renaissance Enterprises, Inc. v. Summit Teleservices, Inc., 515 S.E.2d 257 (S.C. 1999).
A non-lawyer insurance representative/employee appeared before a State commissioner. Though an individual can appear on behalf of him or herself, a corporation cannot appear or act in person, and cannot practice law. The Court reasoned that, "[i]f a corporation could appear in court through a layman upon the theory that it was appearing for itself, it could employ any person, not learned in the law, to present it in any or all judicial proceedings." State ex rel. Daniel v. Wells, 5 S.E.2d 181 (S.C. 1939).
Legal document computer programs. A businesswoman used a computer program to generate legal documents for other persons to be filed in family court. The Supreme Court found this activity amounted to the unauthorized practice of law when it involves "the giving of advice, consultation, explanation or recommendations on matters of law," and "instructing other individuals in the manner in which to prepare and execute such documents." South Carolina v. Despain, 460 S.E.2d 576 (S.C. 1995).
Exceptions. In addition to pro se representation and representation of a corporation before a magistrate's court, the Supreme Court has provided for several exceptions allowing a non-lawyer to engage in legal proceedings. State agencies may permit non-lawyers to appear and represent clients before it. Certified public accountants (CPAs) maintain a special status before the court. It is not the unauthorized practice of law for a CPA to represent clients before an agency or Probate Court if it is within his or her professional expertise and qualifications. Lastly, an arresting police officer does not engage in the unauthorized practice of law when he or she prosecutes traffic offenses in magistrate's court or a municipal court. In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 422 S.E.2d 123 (S.C. 1992).
What can I do if I suspect someone is practicing law without a license?
Contact your local solicitor or the South Carolina Office of the Attorney General; they enforce the criminal statutes prohibiting the unauthorized practice of law (UPL). You may also complete and submit the following form to assist the South Carolina Bar's UPL Committee to monitor such activity in this state and to assist authorities in taking appropriate action.Report Suspected UPL