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Supreme Court Reaffirms Rule that Drafting of Legal Documents By Non-Lawyer, Which is Accompanied by Advice or Recommendation, Constitutes the Unauthorized Practice of Law

In Frankin v. Chavis, Op. No. 26251 (Jan 22, 2007), the South Carolina Supreme Court held a will assembled using a computer program by a nephew of a 91-year-old woman constitued the unauthorized practice of law. In its holding, the Court recited the basic rule that the preparation of legal documents, which is accompanied by advice or recommendations, is a component of the practice of law in South Carolina:

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. State v. Despain, 319 S.C. 317, 319, 460 S.E.2d 576, 578 (1995). Even the preparation of standard forms
that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. See State v. Buyers Service Co., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987). The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence in
the preparation of legal documents and prevent harm resulting from inaccurate legal advice. Housing Auth. of City of Charleston v. Key, 352 S.C. 26, 572 S.E.2d 284 (2002); see also In re: Baker, 85 A.2d 505, 514 (N.J. 1951) (“The amateur at law is as dangerous to the community as an amateur
surgeon . . . .”).

Interestingly, the Court did not hold the will was void as a matter of law, stating there was no evidence of undue influence or incapacity. The nephew was an insurance salesman who had previous business dealings with eventual testator and had been asked by her to help her make a will. Notwithstanding the fact this particular document was not voided by the Court, our clients and friends should exercise caution regarding standard seeming legal documents they may forward to claimants for execution. On frequent occasion, our retail and hospitality clients, advising of a presuit
settlement with a claimant, contact us. Our clients seek to have the claimant execute a receipt and release, which ends the claim with permanence and finality. The reason for their call is to ensure the release they seek to have executed is compliant with South Carolina law. This is a goo move. Get counsel involved to make necessary edits to ensure what you’re sending out to end a claim can stand up to judicial scrutiny.

Additionally, clients need to be mindful when their conversations with claimants take on the air of giving legal advice (i.e., giving advise, making substantive explanations, or recommendations). Moreover, it goes without saying that the basis prohibitions found in basic contract law involving incapacity and undue influence must be respected and observed when dealing with claimants.

Have a great week. As always, please let us know what Collins & Lacy can do for you in South Carolina.