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4th Circ. Pauses Fight Over SC Non-Atty Legal Advice Law

By Chart Riggall · 2023-12-14 16:19:43 -0500 ·

The Fourth Circuit agreed Wednesday to pause a lawsuit brought by South Carolina's NAACP chapter challenging the legality of a state law that bars non-attorneys from giving legal advice while the merits of the NAACP eviction relief program at issue are under consideration at the state-court level.

The 90-day stay comes at the request of Attorney General Alan Wilson, who said last week that the South Carolina Supreme Court's potential approval of the program – in which nonlawyer housing advocates assist residents facing eviction – would render the NAACP's suit moot.

The Supreme Court said in a letter last month that approval could be forthcoming "on a provisional basis or as a pilot program," court filings show. But it asked the NAACP for additional data on the program's scope and efficacy before granting final approval.

Were the program allowed to go forward, it remains to be seen whether the civil rights organization would continue to press its case that Code of Law Section 40-5-310 – which threatens up to $5,000 in fines and up to five years in prison for violations – is unconstitutional. Counsel for the NAACP declined comment Thursday.

Filed in March, the suit initially asked for an injunction from the U.S. District Court for the District of South Carolina blocking the law, which the NAACP says violates the First Amendment. But the district court, citing the 1941 U.S. Supreme Court holdings in Railroad Commission of Texas v. Pullman Co., told the organization it should plead its case before the state Supreme Court, abstaining from a ruling.

The NAACP did so, meanwhile appealing the abstention to the Fourth Circuit.

It told the appellate court in November that the Supreme Court had already ruled that programs similar to the advocacy organization's eviction-help effort violated the law. And keeping the statute on the books would only exacerbate an ongoing access-to-justice crisis in the Palmetto State, the NAACP said.

"The chilling effect of South Carolina's prohibition of the unauthorized practice of law is ongoing, and Plaintiffs' need for an injunction remains live," the NAACP said. "The district court's decision to abstain under Pullman does not negate that ongoing harm."

Later last month, the NAACP was backed up in an amicus brief signed by 27 legal scholars from around the country that also called attention to the state's dearth of legal representation. The state currently has the fewest civil legal aid attorneys for every 10,000 low-income people in the country, according to a ranking compiled by the National Center For Access To Justice that was cited in the brief.

"The vast majority of South Carolina residents facing eviction cannot afford counsel and are unable to adequately represent themselves," the brief says. "For the thousands of individuals facing eviction actions who cannot afford counsel (or find pro bono counsel), representation by these nonlawyers is plainly better than no representation at all."

Wilson's office did not immediately respond to a request for comment.

The NAACP is represented by Benjamin Adam Gifford, Amy Marshak, William Powell and Joseph Wilfred Mead of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, Joseph Rostain Schottenfeld and Glynnis Alexia Hagins of the NAACP and James Edward Cox Jr. of Wyche PA.

Alan Wilson is represented by James Emory Smith Jr. of the South Carolina Attorney General's Office.

The amici are represented by Peter Karanjia of DLA Piper.

The case is SC State Conference of the NAACP v. Alan Wilson, case number 23-1917, in the Fourth Circuit Court of Appeals.

--Additional reporting by Marco Poggio. Editing by Peter Rozovsky.

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