Brown v. Coe
Decision Date | 07 July 2005 |
Parties | Sharon BROWN, Administratrix of the Estate of Ronnie Lee Brown, Appellant, v. Suzanne E. COE, Respondent. |
Court | South Carolina Supreme Court |
Respondent moves to dismiss this appeal on the ground that the notice of appeal was served and filed by appellant, who is not a lawyer, in violation of S.C.Code Ann. § 40-5-310 (2001). Appellant has filed a return in opposition to the motion, arguing that she properly served the notice of appeal. She notes that she has filed two prior appeals on behalf of the estate in the Court of Appeals, one of them being a prior appeal in this case. In addition, she previously represented the estate before this Court. She argues there is no South Carolina law prohibiting her from representing the estate.
Appellant argues further that she and Ronnie Lee Brown have the same biological mother and father and that they agreed to her being the personal representative of the estate. Appellant states further that her father passed away a few years ago and she and her mother are the only heirs to Ronnie's estate.
The South Carolina Constitution provides this Court with the duty to regulate the practice of law in this state. S.C. Const. art. V, § 4; see also S.C.Code Ann. § 40-5-10 (2001). South Carolina, like other jurisdictions, limits the practice of law to licensed attorneys. In re Lexington County Transfer Court, 334 S.C. 47, 512 S.E.2d 791 (1999). "No person may practice or solicit the cause of another in a court of this State unless he has been admitted and sworn as an attorney." S.C.Code Ann. § 40-5-310 (2001). The generally understood definition of the practice of law 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. Doe v. McMaster, 355 S.C. 306, 585 S.E.2d 773 (2003); State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995); In re Duncan, 83 S.C. 186, 65 S.E. 210 (1909).
"The adjudicative power of the Court carries with it the inherent power to control the order of its business to safeguard the rights of litigants." Renaissance Enters., Inc. v. Summit Teleservices, Inc., 334 S.C. 649, 651, 515 S.E.2d 257, 258 (1999) (citing Williams v. Bordon's, Inc., 274 S.C. 275, 262 S.E.2d 881 (1980)). "The goal of the prohibition against the unauthorized practice of law is to protect the public from incompetent, unethical, or irresponsible representations." Id.
The Court has held that non-attorneys may not prepare legal documents for others to present in family court when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. State v. Despain, supra. The Court noted its holding was for the protection of 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.
The Court has also held that non-attorneys cannot negotiate guilty pleas on behalf of a party or represent a party in a guilty plea. In re Lexington County Transfer Court, supra.
In State v. Wells, 191 S.C. 468, 5 S.E.2d 181 (1939), this Court held that a corporation must act through licensed attorneys in legal matters. That holding was modified in In re Unauthorized Practice of Law, 309 S.C. 304, 422 S.E.2d 123 (1992), in which the Court held a non-lawyer, officer, agent, or employee may represent a business entity pursuant to S.C.Code Ann. § 40-5-80 (1986) in civil magistrate's court proceedings.1 The Court stated further that the magistrate shall require a written authorization from the entity's president, chairperson, general partner, owner or chief executive officer. Finally, in Renaissance Enters., Inc. v. Summit Teleservices, Inc., supra, the Court held a non-lawyer cannot represent a corporation in circuit or appellate courts and once again held that a corporation may appear pro se only in magistrate's court.
However, appellant is correct that this Court has never specifically addressed whether a nonlawyer executor or personal representative can represent an estate in matters such as this appeal. Courts that have addressed the issue have concluded such conduct constitutes the unauthorized practice of law. Ex parte Ghafary, 738 So.2d 778 (Ala.1998) ( ); Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002) ( ); Ratcliffe v. Apantaku, 318 Ill.App.3d 621, 252 Ill.Dec. 305, 742 N.E.2d 843 (2000) ( ); State v. Simanonok, 539 A.2d 211 (Me.1988) ( ); Waite v. Carpenter, 1 Neb.App. 321, 496 N.W.2d 1 (1992)(statute stating no person shall practice law in a proceeding in which he is not a party unless admitted to the bar) nonlawyer personal representative who filed complaint on behalf of estate in wrongful death action violated ; Kasharian v. Wilentz, 93 N.J.Super. 479, 226 A.2d 437 (.App.Div.1967)("nominal representatives or even active fiduciaries of the persons in beneficial interest, not themselves lawyers, should not be permitted to conduct legal proceedings in court involving the rights or liabilities of such persons without representation by attorneys duly qualified to practice law.") wrongful death action brought by nonlawyer administrator on behalf of estate was required to be brought and appealed by a lawyer; ; State ex rel. Baker v. County Court of Rock County, 29 Wis.2d 1, 138 N.W.2d 162 (1965)(denying petition of nonlawyer executor of estate to compel lower court to consider and act on petitions presented by executor on ground that presentation of probate matters to court for adjudication, when done in behalf of another, is the practice of law; "an executor's appearance in the conduct of a probate proceeding is not to be deemed the mere appearance of an individual in his own behalf, but is also a representation of others, and therefore an executor not licensed to practice law must appear by an attorney."); see also State Bar Ass'n of Conn. v. Conn. Bank and Trust Co., 146 Conn. 556, 153 A.2d 453 (1959) ( ); In re Brainard, 55 Idaho 153, 39 P.2d 769 (1934) ( ); In re Otterness, 181 Minn. 254, 232 N.W. 318 (1930) ( ); Ferris v. Snively, 172 Wash. 167, 19 P.2d 942 (1933) ( ).
The same holds true in this state. In the case at hand, the filing of a notice of appeal on behalf of the estate and preparation of briefs that will be required to further perfect this appeal clearly constitutes the practice of law as defined by this Court. Section 40-5-310 prohibits appellant who, while the administratrix of the estate, is not a...
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