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THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of

Lexington County

Transfer Court, Eleventh

Judicial Circuit Solicitor

Donald V. Myers, Petitioner.

IN THE ORIGINAL JURISDICTION

Opinion No. 24890

Submitted October 12, 1998 - Filed January 25, 1999

Eleventh Judicial Circuit Solicitor Donald V. Meyers,

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-

3-54-0 (Supp. 1997) which authorizes the transfer from general sessions court

to magistrates' or municipal court of criminal cases in which the penalty does

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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.

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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 CIRCUIT SOLICITOR DONALD V. MYERS,

PETITIONER.

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.

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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-attomey 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.

senior investigator is well-qualified and experienced. His qualifications, in my opinion, are largely

irrelevant. The dispositive inquiry is whether a non-attorney is engaging the practice of law.

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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.2nd 181, 183) (S.C.

1939).

"It is the character of the services rendered, not where they are rendered, which determines

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whether the acts constitute the practice of law." Matter of Peeples 297 S.C. 3 6, 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 Easler, 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

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;

and other similar preparatory duties assigned by the supervising attorney.

p.35

contendere pleas and related implications; handling of enhanced penalties for subsequent offenses

per Baldasar v. Illinois, 446 U.S. 222 (1980), and the list goes on. The reasonable assurance of a

truly final outcome and accountability to professional discipline dictate that plea negotiations fall

squarely within the practice of law. The negotiation of a plea is fertile territory for confusion and

uncertainty. To be sure, the field of plea negotiations is no place for a non-attorney. See State v.

Thrift, 3 12 S.C. 282, 440 S.E.2d 341 (S.C. 1994).

Plea negotiations constitute the practice of law and may not be delegated to a non-attorney.

I do not recommend any exception which would permit a non-attorney to initiate, respond to, or

otherwise engage in plea negotiations.

C. Representation of the State in Transfer Court

I further find that a non-attorney's representation of the state in transfer court constitutes the

unauthorized practice of law. This rule applies with equal force to represented defendants, in that

neither the public defender's office nor retained defense counsel may rely on a non-attorney or

paralegal to represent the defendant in a guilty plea. The representation of a party in a guilty plea

in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this

general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187

S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex

Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended

to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d

259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to

extend Messervy exception denied). I reject the solicitor's attempt to bootstrap the use of his non-

attorney employee to the Messervy exception.

p.36

The solicitor correctly points out that non-attorneys (such as police officers, victims and

victim advocates) routinely make statements to a trial judge in the taking of a guilty plea and

sentencing. The distinction is that such statements are made in the context of the state's presentation

while represented by an attorney.

I appreciate the difficulties faced by this solicitor in the operation of transfer court. This

solicitor has acted in good faith and worked diligently in effectively managing the criminal docket

and disposing of a substantial number of cases through the transfer court. There are practical

considerations which make the solicitor's guilty plea (non-attorney) versus trial (attorney only)

approach understandable. Limited resources and budgetary constraints, coupled with expanding

criminal dockets, may merit consideration of an exception to the rule. But in the first instance, such

conduct constitutes the practice of law. It is my recommendation that no exception be granted under

these circumstances. First, there are important differences between magistrates' court and transfer

court. For example, while a solicitor is under no duty to prosecute a case un magistrates' court, all

cases in transfer court "must be prosecuted by the solicitor's office." S.C. Code Ann. § 22-3-545 (C).

Thus the solicitor has a duty to prosecute transfer court cases. Second, the exception would likely

be cumbersome and create more confusion. Would an assistant solicitor have to be physically

present in the courtroom at all times? If so, who would monitor this requirement? Would a brief

absence of the solicitor or his assistant from the courtroom potentially constitute grounds for relief

from the guilty plea in post conviction relief proceedings or otherwise? Would there be situations

when an attorney must represent the state in a guilty plea, thereby creating an exception to the

exception? If a non-attorney employee of the solicitor is permitted to represent the state, under, what

circumstances could a non-attorney employee of the public defender's office (or a non-attorney

p.37

employee of retained defense counsel) represent a defendant in a guilty plea? In sum, although I am

sympathetic with the solicitor's situation, I do not recommend any exception which would permit

a non-attorney employee of the solicitor to represent the state in transfer court guilty plea

proceedings.

CONCLUSION

1. General, preparatory case management duties do not constitute the practice

of law, provided the solicitor or his assistant supervises the work and has

complete responsibility for the work product.

2. Plea negotiations constitute the practice of law. No exception recommended.

3. Representation of the state in transfer court guilty plea proceedings

constitutes the practice of law. No exception recommended.

Respectfully submitted

John W. Kittredge

Referee

Columbia, S.C.

September 4, 1998

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