Could a paid nonemployee agent represent a South Carolina business in civil magistrate court?

Plain-English summary

The South Carolina Sheriffs' Association asked whether a person who was not a business employee could be paid to represent the business before a magistrate. The Attorney General said Section 33-1-103 should be read with a state Supreme Court decision that allowed a business to use a compensated nonlawyer officer, agent, or employee in civil magistrate court. Although the statute mentioned only employees and principals, the office concluded it should not be read to exclude the court-approved agent.

The letter adopted a 2002 AG opinion's reasoning that a statute narrowing the court's rule would raise separation-of-powers concerns. It said a reviewing court should harmonize the two if possible and defer to the Supreme Court's decision if they could not be reconciled.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a paid business representative have to be an employee?
A: The AG said a compensated nonemployee agent was permitted under the Supreme Court's rule for civil magistrate proceedings, despite the statute's narrower wording.

Q: Why did the AG read the statute beyond its employee and principal wording?
A: The opinion said the legislature intended to codify, not narrow, the court's earlier decision, and that an inconsistent narrowing would raise a separation-of-powers problem.

Q: Did the letter cover all court proceedings?
A: No. Its analysis concerned representation of a business in civil magistrate court.

Background and statutory framework

Section 33-1-103 named employees and principals as business representatives in magistrate court. In re Unauthorized Practice of Law, Rules Proposed by the South Carolina Bar had also allowed nonlawyer agents in civil magistrate proceedings and permitted compensation. The AG read the statute in light of that court decision and the office's earlier 2002 opinion.

Citations

• Section 33-1-103
• In re Unauthorized Practice of Law, Rules Proposed by the South Carolina Bar

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-31-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-31-Moore.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
H .ENRY McMAsTER

August 31 , 2004

AlTORNt~Y GENERAL

(
Jeffrey B. Moore, Executive Director
South Carolina Sheriffs' Association
P. 0. Box 21428
Columbia, South Carolina 29221-1428

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Dear Jeff:

In a letter to this office you questioned whether it is permitted in light of S.C. Code Ann. Section 33-1-103 (Supp. 2003) for a non-employee of a business to represent that business before a magistrate and receive compensation. Such provision states: A corporation or partnership, as defined in this section, may designate an employee or principal of the corporation or partnership to represent it in magistrates ' court...Notwithstanding the provisions of Chapter 5 ofTitle 40 or any other provision oflaw, the person so designated, while representing the corporation or partnership in magistrates ' court, is not engaging in the unauthorized practice of law. You referenced a decision of the State Supreme Court in 1992, In re Unauthorized Practice of Law, Rules Proposed by the South Carolina Bar, 309 S.C. 304, 306, 422 S.E.2d 123, 124 (1992) which authorized 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. Such representation may be compensated. Enclosed is a copy of a prior opinion of this office dated September 17, 2002 which I believe is responsive to your inquiry. ln its opening remarks, the opinion quotes the intent of the primary sponsor of the legislation codified as Section 33- l - l 03 not to limit the authority granted by the Supreme Court in Unauthorized Practice but to codify that authority. Such opinion concludes that noting the distinction between Unauthorized Practice and Section 33-1 103 in excluding the word "agent" from Section 33-1-103
... it would appear that, to the extent that it is inconsistent with or na1rnws the application of the Cou1t's ... (decision in Unauthorized Practice) ... Section 33-1- 103

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Mr. Moore
Page 2
August 31, 2004
would be found by a reviewing court to be in violation of the separation of powers doctrine. Commenting as to the interpretation of Section 33-1-103, the opinion further states that

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It has been indicated that the intent in drafting Section 33-1-103 was " ... to simply codify... " ... (the decision in Unauthorized Practice) ... (I)t must be presumed that the Legislature did not intend to expand or narrow the Court's decision in ... (Unauthorized Practice) ... Further, it would be the duty of a reviewing court to construe Section 33-1-103 in such a way to uphold its constitutionality if at all possible. It does not appear to be wholly unreasonable to interpret Section 33-1-103 and the ... (!lnauthorized Practice opinion) ... as being consistent. Should it be ultimately determined, however, that the two are irreconcilable, deference should be given to the ruling of the Supreme Court.

Therefore, consistent with such opinion, Section 33-1-103 should be read consistent with the decision in Unauthorized Practice so as to authorize representation by a compensated agent. With kind regards, I am, Very truly yours,

d(M)o t!f/2J cJ2 ~
Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General