Ex Parte Ninth Judicial Circuit v. In re Bradley Rowland Marshall ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ex Parte Ninth Judicial Circuit Solicitor Scarlett A.
Wilson, Petitioner.
In re Bradley Rowland Marshall, Respondent.
Appellate Case No. 2017-001951
ORIGINAL JURISDICTION
Opinion No. 27919
Submitted August 15, 2019 – Filed September 25, 2019
JUDGMENT DECLARED
Benjamin Chad Simpson, of Charleston, for Petitioner.
Bradley Rowland Marshall, of Mt. Pleasant, pro se.
PER CURIAM: We agreed to hear this declaratory judgment action in our
original jurisdiction to determine whether Respondent has engaged in the
unauthorized practice of law (UPL). The matter was referred to a Special Referee
to take evidence and issue a report containing proposed findings of fact and
recommendations to the Court. Following a hearing, the Special Referee issued a
report concluding Respondent engaged in UPL. Respondent has filed exceptions
to the Report. We hold Respondent has engaged in UPL and enjoin him from any
further UPL.
UNDERLYING FACTS
Respondent was disbarred by the Washington Supreme Court on October 1, 2009, 1
by the Ninth Circuit Court of Appeals on May 25, 2010, 2 and by the United States
Supreme Court on December 13, 2010.3 He is no longer licensed to practice law in
any state.
Respondent is currently the sole proprietor of Chartmans, Inc. According to the
company's website, Chartmans "serves as a legal consultant to federal workers,
contractors, foreign states, statesmen and companies doing business abroad. In
today’s world, legal representation is essential. Whether it is in U.S.
administrative hearings, before international tribunals, foreign courts, or in
mediations and arbitrations abroad, CHARTMANS ensures its clients continue to
grow through compassionate problem-solving, pragmatic negotiations and
unwavering litigation." The website further states, "If you are a federal contractor
or employed by a federal agency, department or entity in the United States or
overseas and are dealing with an employment dispute, you need adequate legal
representation. Any problem you may run into in dealing with employment
discrimination, work-place disputes or business problems in the States or overseas,
Chartmans is prepared to provide comprehensive and compassionate
representation." Respondent's biographical information on the website states, "Mr.
Marshall is a conciliator, broker and litigator" and indicates he has "considerable
experience as an American lawyer, cleric and foreign legal and business
consultant." Chartmans' letterhead indicates the company specializes in
"Longshore and Federal Worker Claims."
Pursuant to the regulation in effect at the time of Respondent's actions, 29 C.F.R.
§18.34(g)(2) (2011), 4 any citizen who is not an attorney was permitted to appear in
a representative capacity in an adjudicative proceeding before the Department of
Labor's Office of Administrative Law Judges (OALJ). Claims under the
Longshoremen's and Harbor Workers' Compensation Act (Longshoremen's Act)
are decided by the OALJ. After his disbarment, Respondent represented numerous
1
In re Marshall, 217 P.3d 291 (Wash. 2009), cert. denied, 561 U.S. 1008 (2010).
2
In re Marshall, Case No. 07–80092 (9th Cir. 2010).
3
In re Marshall, 562 U.S. 1105 (2010).
4
The current regulation defining attorney representatives and non-attorney representatives is 29
C.F.R. §18.22 (West 2019).
clients in Longshoremen's Act claims before the OALJ.
On November 2, 2011, United States Department of Labor Administrative Law
Judge Jennifer Gee disqualified Respondent from appearing before the OALJ in a
case arising under the Longshoremen's Act because he was an attorney as defined
by 29 C.F.R. § 18.34(g)(1) and, therefore, could not appear as a non-attorney as
defined by 29 C.F.R. § 18.34(g)(2). Subsequently, United States Department of
Labor Administrative Law Judge Stephen Purcell issued a Notice of Judicial
Inquiry and Order to Show Cause why the OALJ should not afford reciprocal
effect to Washington's disbarment of Respondent. On December 8, 2011, Judge
Purcell issued an order denying Respondent the authority to appear in a
representative capacity before the OALJ. The United States District Court
dismissed Respondent's action challenging the orders of Judge Gee and Judge
Purcell under the Administrative Procedures Act and denied his motion for
reconsideration. Marshall v. Purcell, No. 2:12–cv–00084–RMG (D.S.C. Jan. 2,
2013). The Fourth Circuit Court of Appeals affirmed. Marshall v. Purcell, 521 F.
App'x 200 (4th Cir. 2013).
LAW
The United States Supreme Court has held a state may not enforce attorney
licensing requirements that give the state's attorney licensing authority "a virtual
power of review over the federal determination that a person or agency is qualified
and entitled to perform certain functions, or which impose upon the performance of
activity sanctioned by federal license additional conditions not contemplated by
Congress." Sperry v. State of Fla. ex rel. Florida Bar, 373 U.S. 379, 385 (1963).
Pursuant to Sperry, when a state licensing law excludes a lawyer from practice that
federal rules expressly allow, the two rules conflict, and the state law is preempted
by the federal law. Id. However, if the authorization to practice before federal
agencies and courts is withdrawn, the practice becomes subject to this Court's
authority to regulate the practice of law in South Carolina. See S.C. Const. art. V,
§ 4 ("The Supreme Court shall have jurisdiction over the admission to the practice
of law and the discipline of persons admitted."); S.C. Code Ann. § 40-5-10 (2011)
(recognizing the inherent power of the South Carolina Supreme Court to regulate
the practice of law); In re Lite Ray Realty Corp., 257 B.R. 150, 153 (Bankr.
S.D.N.Y. 2001) (holding the ability to practice in federal court depends on the
extent of the "federal exception" to the unauthorized practice of law, which
insulates a lawyer, acting within the scope of an authorization to practice before a
federal court, from the charge of violating state restrictions on the unauthorized
practice of law); People v. Shell, 148 P.3d 162, 175 (Colo. 2006) (holding in the
absence of preemption by the federal courts, the state court has the power to
sanction an individual for the unauthorized practice of law in a federal action); In
re Amalgamated Dev. Co., Inc., 375 A.2d 494, 497 (D.C. 1977) (holding if the
federal government has not granted a license to practice in an area, a state is free to
enforce its own licensing regulations because the state is not interfering with any
federal purpose); In re Lyon, 16 N.E.2d 74, 77 (Mass. 1938) ("[W]e see no reason
why our policy or statute should give way in favor of persons who seek to escape
State regulation of the practice of law on the ground that their practice is within the
field of Federal jurisdiction, when they are not authorized to [practice] in that
jurisdiction."); Cleveland Bar Ass'n v. Boyd, 859 N.E.2d 930, 932 (Ohio 2006)
(holding except to the limited extent necessary to protect peculiarly federal
objectives, the state may enjoin the unauthorized practice of law before federal
courts in Ohio); In re Unauthorized Practice of Law Rules Proposed by S.C. Bar,
309 S.C. 304, 305, 422 S.E.2d 123, 124 (1992) (noting the South Carolina
Supreme Court has the duty to regulate the practice of law in South Carolina).
Because whether Respondent's representation of Longshoremen's Act clients
before the OALJ prior to the orders prohibiting him from appearing before the
OALJ constituted UPL is a question for federal determination, we express no
opinion as to the propriety of that representation. However, we hold any
representation of clients by Respondent in actions before the OALJ after he was
prohibited from appearing before the OALJ constitutes UPL and enjoin
Respondent from any further representation of clients before the OALJ.
Respondent's provision of advice to clients, negotiation of settlements, and general
case management of claims under the South Carolina Workers' Compensation Act
without the supervision of a licensed attorney; participation in the drafting of
settlement agreements and other agreements affecting title to real property;
negotiation of legal rights and responsibilities on behalf of other individuals; and
provision of advice to individuals on the desirability of settlement offers or
contract terms under South Carolina law also constitutes UPL and may be
regulated by this Court. See Rogers Townsend & Thomas, PC v. Peck, 419 S.C.
240, 244, 797 S.E.2d 396, 398 (2017) ("Generally, the practice of law includes 'the
preparation of pleadings, and other papers incident to actions and special
proceedings, and the management of such actions and proceedings on behalf of
clients before judges and courts.'" (quoting State v. Despain, 319 S.C. 317, 319,
460 S.E.2d 576, 577 (1995))); State v. Buyers Serv. Co., 292 S.C. 426, 430, 357
S.E.2d 15, 17 (1987) ("The practice of law is not confined to litigation, but extends
to activities in other fields which entail specialized legal knowledge and ability.").
Accordingly, we enjoin Respondent from any further actions of this nature.
JUDGMENT DECLARED.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.