Franklin v. Chavis
371 S.C. 527, 640 S.E.2d 873, 2007 S.C. LEXIS 20 (2007)
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Rule of Law:
The preparation of legal documents constitutes the unauthorized practice of law when it involves giving legal advice, consultation, explanation, or recommendations, or if the non-attorney acts as more than a mere scrivener by doing anything beyond recording verbatim instructions.
Facts:
- Annie Belle Weiss, 91 years old and hospitalized, was the subject of a will signed on July 31, 2004.
- Ernest Chavis, a former neighbor and insurance agent, drafted the July 31, 2004 will for Ms. Weiss.
- The July 31, 2004 will named Ernest Chavis as the personal representative of Ms. Weiss’s estate and allocated 60% of her estate to her nephew by marriage, Michael Lehman, and 10% to each of her three grandnieces and their mother, Lynn Franklin.
- On June 25, 2004, Ms. Weiss had signed a different will prepared by her lawyer, which named Lynn Franklin as personal representative and was more favorable to the petitioners.
- Ernest Chavis also drafted a General Power of Attorney for Ms. Weiss, naming himself as her attorney-in-fact, which she signed on July 31, 2004.
- Ernest Chavis used the power of attorney to close a real estate transaction for Ms. Weiss before her death.
- On September 14, 2004, Ms. Weiss signed a Renunciation of Right to Administration and a Statement of Agreement to Waive Bond for her daughter Sara Crossman's estate, both drafted by Ernest Chavis, nominating him to act as personal representative.
- Ms. Weiss died on September 27, 2004.
Procedural Posture:
- Petitioners (Ms. Weiss's grandnieces) commenced an action in probate court contesting Ms. Weiss's July 31, 2004 will on grounds of undue influence and lack of capacity.
- The action was removed by consent to circuit court.
- Petitioners sought a declaration that Ernest Chavis engaged in the unauthorized practice of law by drafting the will, power of attorney, and probate forms, a declaration that these documents are void, an injunction, and restitution.
- The South Carolina Supreme Court accepted the case in its original jurisdiction to consider the questions of whether Ernest Chavis engaged in the unauthorized practice of law and what relief was appropriate.
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Issue:
Does the preparation of legal documents, including wills and powers of attorney, by a non-attorney, even when using generic forms, constitute the unauthorized practice of law if it involves more than merely recording verbatim instructions, and if so, what relief is appropriate?
Opinions:
Majority - Justice MOORE
Yes, Ernest Chavis engaged in the unauthorized practice of law by drafting Annie Belle Weiss's will and power of attorney, but not by filling out simple probate forms. The court found that Chavis’s actions in drafting the will exceeded those of a mere scrivener, a role defined as someone who does nothing more than record verbatim what the decedent says. Chavis selected a will form from a 'Quicken lawyer disk,' filled in information provided by Ms. Weiss, and arranged the will's execution without evidence of Ms. Weiss reviewing the typed document or of Chavis merely transcribing her exact words. The court reiterated that the preparation of legal documents constitutes the practice of law if it involves giving advice, consultation, explanation, or recommendations on legal matters. Similarly, the court concluded that drafting the General Power of Attorney constituted the unauthorized practice of law due to its complex legal phrasing and the wide-ranging rights it conferred, which inherently required legal advice. However, the court determined that Chavis's completion of simple probate court forms (Renunciation of Administration and waiver of bond) by merely inserting names, addresses, and dates did not constitute the unauthorized practice of law, as these forms are straightforward and publicly provided, with no evidence of legal advice being given. As relief, the court issued an injunction prohibiting Chavis from further unauthorized practice of law, and ordered that he receive no fee as personal representative of Ms. Weiss's estate and disgorge any fees already received, as his entitlement to this position stemmed directly from his unauthorized drafting of the will. The court declined to remove Chavis as personal representative on the record, to void Ms. Weiss's will (reasoning that if it reflected her true wishes, it should not be invalidated solely due to being drafted by a non-lawyer), or to order restitution for alleged financial missteps, noting that there is no private right of action in South Carolina for the unauthorized practice of law.
Analysis:
This case significantly clarifies the distinction between clerical assistance and the unauthorized practice of law, particularly in the context of estate planning. It establishes a strict interpretation of a 'mere scrivener' role, indicating that non-attorneys who do more than record verbatim instructions when preparing legal documents engage in UPL. The ruling provides a strong deterrent against non-lawyers drafting complex legal instruments by denying them compensation for roles secured through such unauthorized actions. While protecting the public from incompetent legal assistance, the court also balanced this by refusing to invalidate a will based solely on the drafter's UPL, thereby upholding the testator's likely intent and avoiding penalizing the estate.
