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2010-MO-008 - State v. Clemmons

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


The State, Respondent,

v.

James Franklin Clemmons, Jr., Appellant.


Appeal from Charleston County
 J. C. Nicholson, Jr., Circuit Court Judge


Memorandum Opinion No.  2010-MO-008
Heard March 3, 2010 – Filed April 5, 2010


REVERSED


Capers G. Barr, III, of Barr Unger & McIntosh, of Charleston, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia,  and Solicitor Scarlett Anne Wilson, of Charleston, for Respondent.


PER CURIAM:  Appellant, a law school graduate who has never sat for a bar exam, was convicted in a bench trial of five counts of violating the 1995 version of S.C. Code Ann. § 40-5-310,[1] which made it a felony to practice law under certain circumstances.  He received five concurrent sentences of three years each, suspended on service of five years probation and was ordered to pay restitution as a condition of probation.  Appellant contends that his conduct, although admittedly the unauthorized practice of law, did not violate the 1995 statute.  We agree and reverse.

FACTS

Appellant acknowledged drafting wills and trust instruments for the victims named in the indictments, and admitted that in so doing he had engaged in the unauthorized practice of law.

ISSUE

Did the trial court err in denying appellant's motions for a directed verdict?

ANALYSIS

Appellant was convicted of five violations of the 1995 version of § 40-5-310, which read:

No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney.  A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

Appellant argues that his conduct in drafting wills and trust instruments did not violate the 1995 version of the statute because, he asserts, it only criminalized the unlawful practice of law in a courthouse setting.  We agree.

Section 40-5-310 derives from Act No. 473 of 1721, which established trial courts outside of the City of Charleston.  Section XXIX of this Act provided in relevant part:

And whereas, divers unskillful persons do often undertake to manage and solicit business in the courts of law and equity, to the unspeakable damage of the clients, occasioned by the ignorance of such solicitors, who are no ways qualified for that purpose, tending to the promoting litigiousness, and encouraging of vexatious suits: Be it therefore enacted by the authority aforesaid, That no person whatsoever shall practice or solicit the cause of any other person, in the said county or precinct courts, or any other court of law and equity in this Province, unless he hath been heretofore admitted and sworn as an attorney, by the chief justice and judges of the general and supreme court at Charlestown, under the penalty of one hundred pounds for every cause he shall so solicit, one half to his Majesty for the use of the public, and the other half to him or them that will sue for the same.

"The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature."  Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282 (2009) (internal citation omitted).  Here, both the language of the statute and its legislative history support appellant's argument that the 1995 version of § 40-5-310 criminalized representation by a non-lawyer only in a litigation setting.

Moreover, even if we were to find the statute's terms were ambiguous, the rule of lenity would require us to construe this penal statute strictly in appellant's favor.  Id. at 533, 683 S.E.2d at 284. 

We hold that the statute did not apply to appellant's conduct, and that therefore the trial court erred in denying appellant's motion for directed verdicts on all five counts.

CONCLUSION

Appellant's convictions and sentences are

REVERSED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.


[1] The statute was substantially revised in 2009.  The revised statute criminalizes the unauthorized practice of law, as that term has been defined by this Court's precedents.  It appears that the drafting of trusts and wills would constitute the unauthorized practice of law.  See Doe v. Condon, 341 S.C. 22, 532 S.E. 2d 879 (2000).