THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of
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
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
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,
PROPOSED FINDINGS AND RECOMMENDATIONS
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.
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
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.
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
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.
"It is the character of the services rendered, not where they are rendered, which
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
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.
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.
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
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
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.
John W. Kittredge
September 4, 1998