South Carolina Criminal Defense Blog

In In re Richland County Magistrate Court, decided today, the S.C. Supreme Court held that it is the unauthorized practice of law for a non-lawyer to represent a business as prosecutor of a criminal misdemeanor charge, other than a traffic offense. The opinion puts a stop to the practice of some magistrates allowing individuals to prosecute offenses such as bad checks, or shoplifting, on behalf of corporations.

If a private party is permitted to prosecute a criminal action, we can no longer be assured that the powers of the State are employed only for the interest of the community at large. In fact, we can be absolutely certain that the interests of the private party will influence the prosecution, whether the self-interest lies in encouraging payment of a corporation's debt, influencing settlement in a civil suit, or merely seeking vengeance. Petitioner candidly acknowledges in its brief that the non-lawyers are authorized by the companies "to represent their interests" in the criminal proceedings.

We find that allowing prosecution decisions to be made by, or even influenced by, private interests would do irreparable harm to our criminal justice system. At the very least, there is "too much opportunity for abuse and too little motivation for detachment."[2] See State v. Martineau, 808 A.2d 51, 55 (N.H. 2002), Nadeau, J., concurring. Though we certainly understand the practical concerns raised by the dissent, we are confronted with a higher question here. The convenience and fiscal economy of private prosecution may be facially appealing, but we must not embrace them at the expense of fundamental fairness and justice.

It is disturbing that two of the five justices, Chief Justice Toal and Horry County's own Justice Hearn, dissented and would have held that non-lawyer individuals representing the interests of corporations can pursue criminal charges and be vested with the power to put citizens in jail.

Although not directly on point, this touches on the same issues involved in magistrates allowing private individuals to prosecute criminal cases on their own behalf - also unauthorized practice of law and a dangerous practice. Individuals, and representatives of corporations, may represent themselves pro-se in civil litigation, but the state and not the individual is the complaining party in any criminal case:

The right of pro-se representation is preserved by S.C. Code Sec. 40-5-80, which says:

This chapter may not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires.

However, it is the State who is the plaintiff in a criminal action, not the complaining witness. If an individual is wronged, they can seek redress in tort, and they have the right to represent themselves. This statute does not give to individuals the right to represent the State against a person charged with a "public offense." S.C. Code Sec. 17-1-10 states:

A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof.

In re Lexington County Transfer Court summarizes the limits of unauthorized practice of law in the context of criminal prosecutions, holding that:

The representation of a party in a guilty plea in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187 S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d 259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to extend Messervy exception denied).

Complaining witnesses are not parties in a criminal prosecution. The State and the defendant are the parties. Unless the complaining witness is an arresting officer or their supervisor, they cannot prosecute a criminal case.