In re Lexington County Transfer Court

• Decision Date: 25 January 1999
• Docket Number: No. 24890.,24890.
• Court: South Carolina Supreme Court
• Parties: In the Matter of LEXINGTON COUNTY TRANSFER COURT, Eleventh Judicial Circuit Solicitor Donald V. Myers, Petitioner.

334 S.C. 47

512 S.E.2d 791

In the Matter of LEXINGTON COUNTY TRANSFER COURT, Eleventh Judicial Circuit Solicitor Donald V. Myers, Petitioner.

No. 24890.

Supreme Court of South Carolina.

Submitted October 12, 1998.

Decided January 25, 1999.

Eleventh Judicial Circuit Solicitor Donald V. Myers, of Lexington, for petitioner.

Desa Ballard, of West Columbia, for David B. Butler.

Disciplinary Counsel Henry B. Richardson, Jr., of Columbia, for the Office of Disciplinary Counsel.

PER CURIAM:

Petitioner sought to have the Court accept this matter in our original jurisdiction to determine whether certain tasks performed by a non-attorney employee of the solicitor in the operation of the Lexington County transfer court constitutes the unauthorized practice of law. The transfer court system was established under S.C.Code.Ann. § 22-3-545 (Supp.1997) which authorizes the transfer from general sessions court to magistrates' or municipal court of criminal cases in which the penalty does not exceed $5,000 and one-year imprisonment.

David Butler, a Lexington County attorney, filed a return opposing the petition. Disciplinary Counsel filed a return asking the Court to accept the petition in its original jurisdiction and to grant additional guidance concerning the unauthorized practice of law in the summary courts.

The Court invoked its original jurisdiction to determine whether the non-attorney employee was engaged in the unauthorized practice of law and, pursuant to S.C.Code Ann. § 14-3-340 (1976), John W. Kittredge was appointed as referee to make findings of fact and conclusions of law concerning this matter. A hearing was held and the referee issued proposed findings and recommendations. We adopt the referee's findings and recommendations attached to this opinion and hold that general, preparatory, case management activities conducted by a non-attorney do not constitute the practice of law provided the solicitor or an assistant solicitor supervises the work and has complete responsibility for the work product. However, plea negotiations and representation of the state in transfer court guilty plea proceedings constitute the practice of law and the state may only be represented by a solicitor or an assistant solicitor during plea negotiations and guilty plea proceedings.

ATTACHMENT

THE STATE OF SOUTH CAROLINA IN THE SUPREME COURT ______________________________

IN THE ORIGINAL JURISDICTION OF THE SUPREME COURT ______________________________

IN THE INTEREST OF THE LEXINGTON COUNTY TRANSFER COURT, ELEVENTH JUDICIAL CICUIT SOLICITOR DONALD V. MYERS, PETITIOER. ____________________________________

PROPOSED FINDINGS AND RECOMMENDATIONS OF REFEREE __________________________________________

This is a declaratory judgment action in the Supreme Court's original jurisdiction. This matter has been referred to me as referee to take evidence and issue a report containing proposed findings and recommendations to the Court. The focus of the inquiry is whether certain tasks performed by a non-attorney employee of the solicitor in the operation of a transfer court constitutes the unauthorized practice of law. I find the negotiation of guilty pleas and the representation of the state in transfer court by a non-attorney employee of the solicitor constitutes the unauthorized practice of law.

BACKGROUND

The General Assembly established the transfer court system in 1992. S.C.Code Ann. § 22-3-545 (1976, as amended). The law authorizes under certain conditions the transfer from general sessions court to magistrates' or municipal court of criminal cases in which the penalty does not exceed $5,000 and one-year imprisonment. The transfer court provides a valuable function, for it permits the solicitor and consenting defendants to timely and efficiently dispose of many criminal cases. The transfer court serves its intended purpose well in addressing the ever-increasing volume of criminal cases.

This dispute arises from the use of a non-attorney employee of the solicitor's office in the operation of the Lexington County Transfer Court. The facts are stipulated. An assistant solicitor is assigned by the solicitor to supervise the operation of the transfer court. Much of the state's legal representation, however, is delegated to a non-attorney employee.¹ This non-attorney performs the following duties:

Opening and updating files; obtaining investigative reports and criminal records; preparing indictments; printing a roster of cases; notifying officers, victims and witnesses; coordinating court dates with magistrates for guilty plea dates and jury trial dates; occasionally negotiating guilty pleas with defendants and defense counsel; the calling of some cases for guilty pleas and the presentation of the guilty plea (unaccompanied by the assistant solicitor) to the magistrate.

Moreover, the non-attorney employee is occasionally the only representative of the solicitor's office in the courtroom.

DISCUSSION

South Carolina, like other jurisdictions, limits the practice of law to licensed attorneys. S.C.Code Ann. § 40-5-310 (1976). The protection of the public so demands. Beyond the compelling public policy considerations, courts have been historically hesitant in defining broadly what constitutes the practice of law. The `practice of law' cases tend to be fact-intensive. Indeed, our Supreme Court exercises restraint in defining the practice of law, electing to judge each case in accordance with its own facts and circumstances. Recognizing the "unclear"² line between proper and improper conduct of non-attorneys, the Supreme Court noted:

We are convinced, however, that it is neither practicable nor wise to attempt a comprehensive definition by way of a set of rules. Instead, we are convinced that the better course is to decide what is and what is not the unauthorized practice of law in the context of an actual case or controversy. In Re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 309 S.C. 304, 422 S.E.2d 123, 124 (S.C.1992).

There are, nevertheless, some general and fundamental principles which give guidance in determining whether certain conduct constitutes the unauthorized practice of law.

It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts ... [I]t embraces... the management of such actions and proceedings on behalf of clients before judges and courts ... An attorney at law is one who engages in any of these branches in the practice of law. The following is the concise definition given by the Supreme Court of the United States: `Persons acting professionally in legal formalities, negotiations, or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as employed in this country.' In Re Duncan, 83 S.C. 186, 65 S.E. 210, 211 (S.C.1909); see also State v. Wells, 191 S.C. 468, 5 S.E.2d 181, 183 (1939).

"It is the character of the services rendered, not where they are rendered, which determines whether the acts constitute the practice of law." Matter of Peeples, 297 S.C. 36, 374 S.E.2d 674, 677 (S.C.1988) (emphasis in original).

A. General Case Management

Applying these rules of reason to the present situation, I find that a non-attorney of the solicitor may properly perform the general case management duties of transfer court cases³ provided the solicitor or his assistant "maintains a direct relationship with [the law enforcement agency involved and, if applicable, the victim], supervises the delegated work and has complete professional responsibility for the work product." Matter of Easier, 275 S.C. 400, 272 S.E.2d 32 (S.C.1980). A solicitor's reliance on a non-attorney employee in general case management duties is akin to the assistance of paralegals in civil matters. "The activities of a paralegal [or solicitor's office investigator/employee] do not constitute the practice of law as long as they are limited to work of a preparatory nature ... which enable the licensed attorney-employer to carry a given matter to a conclusion through his own examination, approval or additional effort." Id. at 32-33 (emphasis added).

B. Negotiation of Guilty Pleas

The non-attorney's negotiation of guilty pleas with defendants and defense counsel clearly crosses the line into the unauthorized practice of law. Plea negotiations require the training, skill and accountability of an attorney. There are numerous issues involved in plea negotiations, including counsel versus uncounseled pleas; recommended sentences versus negotiated plea agreements; nolo contendere pleas and related implications; handling of enhanced penalties for subsequent offenses per Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), and the list goes on. The...