Could a lawyer licensed only in another state file South Carolina court pleadings without admission or pro hac vice approval?

Plain-English summary

A chief deputy solicitor asked whether a lawyer licensed in North Carolina could file pleadings for a litigant in a South Carolina court without first seeking permission to appear pro hac vice. The Attorney General concluded in 2005 that the relevant statute's phrase “admitted and sworn as an attorney” meant admission in South Carolina. Admission in another state alone did not authorize court practice here.

The AG reasoned that a contrary reading would make the state's separate pro hac vice rule unnecessary. He quoted Rule 404, which allowed a qualified out-of-state lawyer to apply in writing to appear in a South Carolina proceeding with a South Carolina attorney associated as attorney of record. He also noted Rule 405's separate limited certificate of admission. The opinion interpreted the admission requirement; it did not decide a criminal charge against the lawyer described in the request.

Currency note

This opinion was issued in 2005. 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

Was a North Carolina law license enough to file in a South Carolina court?
The AG said no. He read Section 40-5-310 as requiring South Carolina admission and swearing.

What route for an out-of-state lawyer did the opinion describe?
It quoted Rule 404's written pro hac vice application process with a South Carolina attorney associated as attorney of record.

Did the opinion decide whether the lawyer in the request committed a felony?
No. It interpreted the statute and rules, without deciding a prosecution or making factual findings about the filing.

Background and statutory framework

Section 40-5-310 barred a person from practicing or soliciting another's cause in a state court without attorney admission and swearing. The opinion read that provision together with Rules 404 and 405 of the South Carolina Appellate Court Rules, which expressly addressed lawyers admitted elsewhere.

Citations and references

• Section 40-5-310: admission requirement interpreted by the AG.
• Rule 404, SCACR: pro hac vice route quoted in the opinion.
• Rule 405, SCACR: limited admission provision cited in the opinion.

Official title

Questioning the applicability of S. C. Code Ann. § 40-5-310 to an out of state licensed attorney.

Requester

Francis A. Humphries, Jr., Chief Deputy Solicitor, Fifteenth Judicial Circuit

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-22-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05nov22humphries.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATfORNEY GENERAL

November 22, 2005

Francis A. Humphries, Jr.
Chief Deputy Solicitor
Fifteenth Judicial Circuit
P. 0 . Box 1276
Conway, SC 29528
Dear Mr. Humphries:
In a letter to this office you questioned the applicability of S.C. Code Ann.§ 40-5310 to an out of state licensed attorney. Such provision states that

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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. You referenced the situation where a lawyer licensed in North Carolina filed pleadings in Horry County on behalf of a domestic litigant without first petitioning to appear pro hac vice. You indicated that while Section 40-5-310 prohibits one not "admitted and sworn as an attorney'' to practice in a court of this State, the statute is silent as to any specific requirement that the person must be "admitted and sworn" to practice law in this State as opposed to any other State.

In my opinion, Section 40-5-310 should be construed as authorizing an individual to practice law in this State if that individual has been admitted and sworn as an attorney in South Carolina. While Section 40-5-310 does not specifically provide such distinction, Rule 404, SCACR, states that

~~~ING • POSTOFFICE Box 11549 • CoUJMBv.,S.C. 292 11-1 549 • TELEPHONE: 803-734-3970 • FAr<:1M11 i:- ltl\1-?q_.-;?~l

Mr. Humphries
November 22, 2005
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Upon written application, an attorney who is not admitted to practice law in
South Carolina and who is admitted and authorized to practice law in the
highest court of another state or the District of Columbia may appear pro
hac vice in any action or proceeding before a court of this state if an
attorney admitted to practice law in South Carolina is associated as attorney
of record.

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Such a rule would be unnecessary if Section 40-5-310 is construed as being applicable to
an individual who is "admitted and sworn as an attorney" in another state so as to
authorize that individual to practice law in South Carolina. See also: Rule 405, SCACR
(authorization for a limited certificate of admission to practice law in South Carolina
where the individual " ...has been admitted to practice law in the highest court of another
state or the District of Columbia; .... ").

If there are any questions, please advise.

Sincerely,

Charles H. Richardson
Senior Assistant Attorney General

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REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General