In the Matter of Robert Barnwell Clarkson, Respondent.
By order dated February 20, 2003, the Court issued a rule to show cause why respondent should not be held in contempt of court for practicing law without a license. Thereafter, the Court appointed a special referee to take evidence and issue a report containing proposed findings and a recommendation. After a hearing, the special referee filed his report finding respondent had engaged in the unauthorized practice of law and recommending respondent be found in contempt of court. Respondent has filed exceptions to the special referee's report.
After review and consideration of the hearing transcript, the special referee's report, respondent's exceptions and his motion to dismiss, and the parties' oral arguments, the Court finds respondent has engaged in the unauthorized practice of law and holds that respondent is guilty of criminal contempt. As fully discussed below, the Court renders this conclusion based upon the undisputed testimony and/or exhibits and the applicable law.
In 1978, respondent was disbarred from the practice of law. In the Matter of Clarkson, 271 S.C. 5, 244 S.E.2d 512 (1978). He has not been reinstated.
Respondent is the executive director of the Patriot Network and he admits he is responsible for the content of materials which are placed on the Patriot Network website. The website has referred to respondent as an "attorney" or "lawyer." Respondent has produced publications in which he refers to himself as an "attorney and tax procedure expert," "a tax procedure lawyer," or "a constitutional attorney, an expert on tax procedural law . . .". Respondent agrees that use of the terms "attorney" or "lawyer" to describe himself is improper, however, he testified "[w]hat I normally say is I graduated from law school and let people draw their own conclusions."
In at least one of respondent's brochures, "Removing Tax Liens and Levies, A Clarkson Report," respondent invites readers to "call" him and "follow [his] advice," and he offers alternatives and recommendations for handling tax liens. The Patriot Network provides members with access to the Patriot Advisory Service, "an advisory, consulting service whereby subscribers can call [respondent] and other knowledgeable experts. . .". The Patriot Advisory Service states "[a]dvice will mainly cover subjects as . . . FOIA-Privacy Act, . . . , Summons, . . . , civil right [sic] suits (Section 1984), Privacy Act Suits for damages, . . ., illegal disclosure suits, etc."
The Patriot Network website contains legal forms, often with accompanying instructions and/or advice. For example, respondent authors pages entitled "How to Draft Interrogatories," "How to Serve FOIA-PA suits," and "Interrogatories Explained" in which he discusses the benefits of interrogatories over other discovery methods.
A witness for respondent testified respondent has helped others submit documents in court. The witness stated, "strictly on an advisory basis based on his training as an attorney and his experience while he was still a practicing attorney, [respondent] makes suggestions and gives advice as to how [others] might proceed in court, in as far as filings, pleadings, memos, that kind of things are concerned."
Respondent denied preparing legal documents for other people. He testified, however, if someone contacted him with regard to a legal problem, he would provide the appropriate legal document and would explain "why to use [the legal form], the law behind it, and what to write."
Respondent testified he assisted a Patriot Network member with an information summons as part of a tax audit. He stated that, in September 2002, he advised the member to file a motion to quash in federal court and then extensively instructed the member after the motion was filed. Respondent admitted dictating pleadings which were filed by the Patriot Network member and sitting at counsel's table during the court hearing.
A. Unauthorized Practice of Law
The South Carolina Supreme Court has the authority to regulate the practice of law in this State. S.C. Const. art. V, § 4. This Court had held that the practice of law:
. . . is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it 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, and in addition, conveyancing, 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. An attorney at law is one who engages in any of these branches of the practice of law.
In re Duncan, 83 S.C. 186, 189, 65 S.E. 210, 211 (1909).
Applying this definition, the Court has held preparation of a deed or other legal documents for another individual by one who is not a licensed attorney constitutes the unauthorized practice of law. State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995); In re Easler, 75 S.C. 400, 272 S.E.2d 32 (1980). While the sale or lease of blank legal forms does not constitute the practice of law, instructing others in the manner in which to prepare and execute blank documents is the practice of law. State v. Despain, supra. The practice of law also includes the preparation of pleadings and the management of court proceedings on behalf of clients. Housing Authority of City of Charleston v. Key, 352 S.C. 26, 572 S.E.2d 284 (2002).
Respondent has engaged in the unauthorized practice of law. He held himself out as a lawyer on a website for which he admits responsibility and he has published materials in which he states he is an attorney. Moreover, respondent has provided advice on selection of legal forms and how to complete the forms. Respondent has drafted pleadings and, on at least one occasion, managed court proceedings on behalf of another individual. All of this conduct has previously been defined as the practice of law by this Court.
B. Contempt of Court
"Willful disobedience of an Order of the Court may result in contempt." Spartanburg County Dept. of Social Servs. v. Padgett, 296 S.C. 79, 82, 370 S.E.2d 872, 874 (1988). "A willful act is defined as one 'done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done: that is to say, with bad purpose either to disobey or disregard the law." Id. at 82-3, 370 S.E.2d at 874. "Contemptuous behavior is conduct that tends to bring the authority and administration of the law into disrespect." Ex parte Stone v. Reddix-Smalls, 295 S.C. 514, 516, 369 S.E.2d 840 (1980). Contemptuous intent is subjective rather than objective. State v. Bowers, 270 S.C. 124, 241 S.E.2d 409 (1978).
Respondent's conduct, practicing law without a license, was clearly willful. It is undisputed respondent knew he had been disbarred from the practice of law. In spite of this knowledge, respondent nevertheless identified himself as an attorney or, at minimum, stated he graduated from law school and "let people draw their own conclusions . . . .". Respondent willfully managed court proceedings for at least one individual, drafted pleadings, and provided instructions and advice to individuals in completing legal forms. Respondent's behavior demonstrates a clear disrespect for this Court, its orders, and the practice of law and, beyond a reasonable doubt, is contemptuous. Accordingly, we hold respondent in criminal contempt.
We hereby sentence respondent to imprisonment for a term of six (6) months, suspended for a period of five (5) years upon the following three conditions: 1) within thirty (30) days of the date of this order, respondent and the Office of Disciplinary Counsel shall submit to this Court an agreed-upon disclaimer which states respondent is not an attorney and is not licensed to practice law in South Carolina or in any other state; 2) within sixty (60) days of the date of this order, respondent shall file an affidavit averring the disclaimer has been prominently and permanently placed on any and all of his websites, including the Patriot Network website, and on all literature authored and/or published by respondent; and 3) that respondent no longer engage in the unauthorized practice of law.1 Failure to comply with the conditions imposed by this order shall result in respondent's arrest and immediate incarceration.
IT IS SO ORDERED.
s/Jean H. Toal C.J.
s/John H. Waller, Jr. J.
s/E. C. Burnett, III J.
s/Costa M. Pleicones J.
s/John W. Kittredge A.J.
Columbia, South Carolina
May 25, 2004
1 Respondent's motion to dismiss is denied.