Circuit Riders: What is the Practice of Law?

The law prohibiting the unauthorized practice of law in South Carolina reads as follows:

§ 40-5-310. Practicing law or soliciting legal cause of another without being enrolled as member of South Carolina Bar.

No person may either practice law or solicit the legal cause of another person or entity in this State unless he is enrolled as a member of the South Carolina Bar pursuant to applicable court rules, or otherwise authorized to perform prescribed legal activities by action of the Supreme Court of South Carolina. The type of conduct that is the subject of any charge filed pursuant to this section must have been defined as the unauthorized practice of law by the Supreme Court of South Carolina prior to any charge being filed. 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.

But, what is the "practice of law"? Although there is no precise definition of the “practice of law” in South Carolina, the South Carolina Supreme Court has addressed specific conduct in several unauthorized practice of law cases. From those cases, it is clear that if a person who is not licensed to practice law in South Carolina  prepares legal documents for another or gives someone advice regarding legal matters, he or she has engaged in the unauthorized practice of law.

The question remains, what is preparing legal documents and what is legal advice?

In State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995), the South Carolina Supreme Court explained that the preparation of legal documents "constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. Further, instructing other individuals in the manner in which to prepare and execute such documents is also the practice of law."

In 2007, when faced with the situation where a non-lawyer assisted a neighbor with filling in the blanks for a computer-generated generic will form, the South Carolina Supreme Court in Franklin v. Chavis, 371 S.C. 527, 640 S.E.2d 873 (2007) held that his actions constituted the unauthorized practice of law because he exceeded the role of a mere "scrivener," which the court defined as "someone who does nothing more than record verbatim" what another instructs him to record.

Our job as librarians is to know the resources and services available to patrons regarding legal documents and forms. It is the patron's job to draft his or her own legal documents and to choose a particular form and complete it. It is also the patron's responsibility to determine how and with whom to serve or file a legal document or form.

When helping a patron who is searching for and needs to complete legal forms:

DO

• Inform patrons about the existence of court approved legal forms
• Show patrons how to navigate a particular website that contains court-approved forms
• Inform patrons of any known legal services groups that are available to help them complete legal forms
• Recommend form books for examples of legal forms
• Suggest books on specific legal topics that may include forms
• Show patrons how to use the index and table of contents for a particular form book
• Point out that annotated codes, legal encyclopedias, and treatises may reference forms relevant to a legal topic.

DO NOT

• Prepare legal documents or complete forms for patrons
• Advise patrons on how to fill out forms
• Interpret the language in a form for a patron
• Suggest that a patron use a particular form.
  

Librarians are knowledgeable about available resources and skilled at accessing information. With regard to facilitating access to legal information, our role is to recommend resources and services and to teach effective legal research techniques.

Our role is not to conduct legal research for patrons, to interpret their research or apply the law to their particular facts, or to recommend a particular procedure or course of action.

Patrons must conduct their own research, apply it to their own situation, reach their own conclusion, and determine their own legal course of action.

The chart below distinguishes legal reference from legal advice: