THE STATE OF SOUTH CAROLINA
In The Supreme Court
Inc., a South Carolina
Malcolm M. Babb,
IN THE ORIGINAL JURISDICTION
Opinion No. 24922
Submitted February 18, 1999 - Filed March 22, 1999
Malcolm M. Babb, of Little River, pro se.
Richard M. Lovelace, Jr., of Lovelace & Rogers, P.A.,
of Conway, for respondent.
MOORE, A.J.: Petitioner Malcolm Babb is the president and
director of Renaissance Enterprises, Inc., a Sub-Chapter "S" Corporation.
The only two shareholders are Babb and his wife. Renaissance currently has
a matter pending before the Court of Appeals and Babb is representing
Renaissance. The Court of Appeals informed Babb that an attorney must be
hired to represent Renaissance. Babb petitioned this Court in its original
jurisdiction seeking a ruling on whether non-lawyers can represent a
corporation in circuit or appellate courts. The Court of Appeals has held the
matter in abeyance pending the resolution of this issue.
Whether a non-lawyer can represent a
corporation in circuit and appellate courts?
In State v. Wells, 191 S.C. 468, 5 S.E.2d 181 (1939), the Court held a
lay person could not represent a corporation. However, in In re
Unauthorized Practice of Law, 309 S.C. 3041 422 S.E.2d 123 (1992), we
modified Wells "to allow a business to be represented by a non-lawyer
officer, agent or employee, including attorneys licensed in other jurisdictions
and those possessing Limited Certificates of Admission pursuant to Rule
405, SCACR, in civil magistrate's court proceedings."1 We have never ruled
on the issue whether a non-lawyer can represent a corporation in circuit or
appellate courts. We now hold a non-lawyer cannot represent a corporation
in circuit or appellate courts.
Babb relies upon S.C. Code § 40-5-320(A)(1)(Supp. 1998) which
provides: "(A) It is unlawful for a corporation or voluntary association to: (1)
practice or appear as an attorney at law for a person other than itself in a
court in this State or before a judicial body. . ." (emphasis added). In In re
Unauthorized Practice of Law, we did not address the language in this
guilty pleas and plea negotiations in cases transferred from general sessions
to municipal or magistrate's court pursuant to S.C. Code Ann. º 22-3-545
(Supp. 1997). In re Lexington County Transfer Court, Op. No. 24890 (S.C.
Sup. Ct. filed January 25, 1999).
2 Babb contends that this Court's opinion in Fanning v. Fritz's Pontiac
Cadillac-Buick, Inc., 322 S.C. 399, 472 S.E.2d 242 (1996), provides support
for the proposition that a layperson can represent a corporation in an
appellate court. We disagree. In Fanning, one of the respondents did appear
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.
Williams v. Bordon's Inc., 274 S.C. 275, 262 S.E.2d 881 (1980)(statute which
attempted to exercise ultimate authority over inherent power of Court
violated separation of powers doctrine). As pointed out in In re Unauthorized
Practice of Law, supra, "[t]he Constitution commits to this Court the duty to
regulate the practice of law in South Carolina." 309 S.C. at 305, 422 S.E.2d
at 124.3 Any interpretation which would expand our decisions regarding the
practice of law would violate the separation of powers provision which is set
forth in article 5, section 1 of our State Constitution.
The goal of the prohibition against the unauthorized practice of law is
to protect the public from incompetent, unethical, or irresponsible
representation. The majority of other jurisdictions have held a corporation
must be represented by an attorney in all courts. See e.g. Nicollet
Restoration, Inc., supra. See generally Jay M. Zitter, Annotation, Propriety
and Effect of Corporation's Appearance Pro Se Through Agent Who Is Not
Attorney 8 A.L.R.5th 653 (1992). Some jurisdictions, however, allow a
corporation to represent itself through a director or an officer only in small
claims court or a court which is not a court of record (i.e. equivalent to our
magistrate's court). Jadair Inc. v. United States Fire Ins. Co., 209 Wis.2d
1872 562 N.W.2d 401 (1997); Feldman v. Mazzei, 631 N.Y.S.2d 241
(1995)(any authorized employee may appear for a corporation in small
claims court); Turkey Point Property Owners' Ass'n, Inc. v. Anderson, 106
reference in the opinion which Babb relies upon is when Fritz Waider is
listed as pro se counsel in the listing of the attorneys in the caption. This is
not precedent for the issue in this case.
3 In Nocollet Restoration, Inc. v. Turnham, 486 N.W.2d 753 (Minn.
1992), the Minnesota Supreme Court addressed an issue almost identical to
the one in this case. A Minnesota statute stated that no corporation shall
maintain, conduct, or defend, "except in its own behalf when a party litigant.
. . . 11 an action in any court. (emphasis added). The Minnesota Supreme
Court cited the separation of powers doctrine and noted that the court was
vested with exclusive power to make rules governing the practice of law. It
concluded that the legislative enactment which purported to authorize
certain classes to practice law was not controlling upon the judiciary.
Md.App. 710, 666 A.2d 904 (1995)(officer or designated employee may appear
on behalf of corporation in small claims actions); In re Estate of Lydia Nagel,
950 P.2d 693 (Colo. Ct. App. 1997)(generally corporation may appear in court
of record only through attorney); Eckles v. Atlanta Tech. Group, 267 Ga. 801,
485 S.E.2d 22 (1997)(non-lawyer may represent corporation only in a court
that is not court of record). We agree with these jurisdictions and decline to
extend Wells to allow a non-lawyer to represent a corporation in circuit or
appellate courts. Thus, a corporation may appear pro se only in magistrate's
court. Accordingly, we remand to the Court of Appeals for further
proceedings consistent with this opinion.
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.