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24922 - Renaissance Enterprises, Inc. v. Summit Teleservices, Inc.

Shearouse Adv. Sh. No. 12
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Renaissance Enterprises,

Inc., a South Carolina

Corporation, and

Malcolm M. Babb,

Individually, Petitioners,

v.

Summit Teleservices,

Inc., Respondent.



IN THE ORIGINAL JURISDICTION

Opinion No. 24922

Submitted February 18, 1999 - Filed March 22, 1999



REMANDED



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

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RENAISSANCE ENTERPRISES, INC., et al. v. SUMMIT TELESERVICES, INC.





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.





ISSUE



Whether a non-lawyer can represent a

corporation in circuit and appellate courts?



DISCUSSION



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

statute.2


1 Recently, we stated that non-attorneys may not represent the State in

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

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RENAISSANCE ENTERPRISES, INC., et al. v. SUMMIT TELESERVICES, INC.





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


However, this was never an issue brought up in the case on appeal. The sole

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.

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RENAISSANCE ENTERPRISES, INC., et al. v. SUMMIT TELESERVICES,

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.



REMANDED.



FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.

p.7