Tuesday, September 7, 2010

Neither Lawyer Or Prosecutor

The South Carolina Supreme Court has held that the prosecution of misdemeanor offenses by a non-lawyer business agent violated criminal statutes regulating the unauthorized practice of law. The court considered the public policy interests:

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." 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.

As to those practical concerns, the dissent notes:

One of the purposes of magistrate's court is to dispense with the formalities required of a court of general sessions, allowing for a more expedient and layperson-friendly disposition of certain select grievances and offenses.  The fact that the General Assembly has not required magistrates to be attorneys is further indication of its intention to retain the citizen focus of the court.  See S.C. Code Ann. ยง 22-1-10 (2007).  In short, magistrate's court was created by the General Assembly to be the "peoples' court," a distinction that seems to have been overlooked by the majority in its analysis.

Finally, at the risk of discussing a possible parade of horribles, the practical consequences of the majority's decision should nonetheless be examined.  This decision will place an additional burden on the South Carolina business community, as well as on the already budget-strained and time-challenged prosecutorial arm of the State.  Without the ability to make a cost/benefit analysis of whether to pursue their own claims, corporations may be more willing to pursue prosecution, secure in the knowledge that the burden of prosecuting the claims rests squarely on the shoulders of the solicitor's office.  On the other hand, overburdened solicitor's offices may exercise prosecutorial discretion to not prosecute these minor cases, which might very well have the end result of businesses refusing to accept checks in payment for merchandise.  As discussed by then acting circuit judge, John Kittredge in Lexington County Transfer Court, limited resources and budgetary constraints can serve as a valuable consideration in determining whether practices should qualify as an exception to the prohibition against the unauthorized practice of law.  334 S.C. at 53-54, 512 S.E.2d at 794.  As a state, we certainly want these and all crimes to be prosecuted; nonetheless, a process that becomes too cumbersome and costly for the State to pursue does not successfully address the problem.  Permitting a process whereby   business entities can pursue these claims through an agent, in a manner which is cost-effective for both the State and the corporations, yet checked by the integrity of our judicial system, is, in my opinion, a practice which should be sanctioned by this Court.

(Mike Frisch)

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