Heard November 7, 2016
P. Wood, of Rogers Townsend & Thomas, PC, of Columbia,
Matthew Evan Pecoy and Peter Gerard McGrath, both of McGrath
Law Firm, PA, of Mt. Pleasant, for Respondents/Petitioners.
Court accepted this declaratory judgment action in our
original jurisdiction to determine whether Community
Management Group, LLC; its president, Stephen Peck; and its
employee, Tom Moore, engaged in the unauthorized practice of
law while managing homeowners' associations. We find
Community Management Group engaged in the unauthorized
practice of law.
Management Group manages homeowners' associations and
condominium associations in Charleston, Dorchester, and
Berkeley Counties. The company manages the associations'
grounds and common areas, enforces covenants and rules, and
takes care of financial matters, including collecting
assessments for the associations. Until we issued a temporary
injunction in connection with this case, when a homeowner in
an association did not pay an overdue assessment, Community
Management Group-without the involvement of an
attorney-prepared and recorded a notice of lien and related
documents; brought an action in magistrate's court to
collect the debt; and after obtaining a judgment in
magistrate's court, filed the judgment in circuit court.
Community Management Group also advertised that it could
perform these services.
referred the case to the Honorable Stephanie P.
McDonald to act as special referee. Judge McDonald
recommended we find Community Management Group engaged in the
unauthorized practice of law.
Unauthorized Practice of Law
supreme court has the power to regulate the practice of law.
See S.C. Const. art. V, § 4; S.C. Code Ann.
§ 40-5-10 (2011) (recognizing "[t]he inherent power
of the Supreme Court with respect to regulating the practice
of law"); Linder v. Ins. Claims Consultants,
Inc., 348 S.C. 477, 486, 560 S.E.2d 612, 617 (2002)
("Under the South Carolina Constitution, this Court has
the duty to regulate the practice of law in South
Carolina."). Generally, the practice of law includes
"the preparation of pleadings, and other papers incident
to actions and special proceedings, and the management of
such actions and proceedings on behalf of clients before
judges and courts." State v. Despain, 319 S.C.
317, 319, 460 S.E.2d 576, 577 (1995) (quoting In re
Duncan, 83 S.C. 186, 189, 65 S.E. 210, 211 (1909)). The
practice of law "extends to activities . . . which
entail specialized legal knowledge and ability."
Linder, 348 S.C. at 487, 560 S.E.2d at 617 (quoting
State v. Buyers Serv. Co., Inc., 292 S.C. 426, 430,
357 S.E.2d 15, 17 (1987)). "Other than these general
statements, there is no comprehensive definition of the
practice of law. Rather, what constitutes the practice of law
must be decided on the facts and in the context of each
individual case." Roberts v. LaConey, 375 S.C.
97, 103, 650 S.E.2d 474, 477 (2007) (citing Linder,
348 S.C. at 487, 560 S.E.2d at 617-18); see also Medlock
v Univ. Health Serv., Inc., 404 S.C. 25, 28, 743 S.E.2d
830, 831 (2013) ("We have encouraged any interested
individual to bring a declaratory judgment action in this
Court's original jurisdiction to determine the validity
of any questionable conduct.").
administrative order titled In re Unauthorized Practice
of Law Rules Proposed by South Carolina Bar, 309 S.C.
304, 422 S.E.2d 123 (1992), we modified prior case law to
"allow a business to be represented by a non-lawyer
officer, agent or employee." 309 S.C. at 306, 422 S.E.2d
at 124 (modifying State ex rel. Daniel v. Wells, 191
S.C. 468, 5 S.E.2d 181 (1939)). We also promulgated South
Carolina Magistrate Court Rule 21, which provides, "A
business . . . may be represented in a civil magistrates
court proceeding by a non-lawyer officer, agent, or employee
. . . ."
central question of this action is whether the word
"agent" in Unauthorized Practice of Law
and Rule 21 includes a third party agent like Community
Management Group. We find "agent" does not include
non-lawyer third party entities or individuals.
"Agent"-in Unauthorized Practice of Law
and Rule 21-includes individuals who are not officers or
employees of a business, but who have some nexus or
connection to the business arising out of its corporate
structure. For example, a member of a corporation's board
of directors who is not an officer or employee would qualify
as an "agent" under these provisions. However, we
now clarify ...