S.C. court reverses conviction

Clemmons

A man who was arrested, charged and convicted of practicing law without a license had his conviction overturned by the state Supreme Court this week.

James "Frankie" Clemmons Jr., a law school graduate who never sat for a bar exam, had set up shop in Mount Pleasant as a financial and legal estate planner, drafting wills and trust instruments for his clients at his Coleman Boulevard office.

In 2006, Clemmons was arrested after having agreed to prepare a living will for $195 for a client who was an undercover police officer.

The 9th Circuit Solicitor's Office had launched an investigation into Clemmons' activities after receiving complaints from the S.C. Bar.

In October 2008, a grand jury indicted Clemmons on five counts of practicing law without a license.

The case was argued in February 2009 before Circuit Judge J.C. Nicholson, Jr.

No one disputed that Clemmons had drafted wills and other instruments. The case hinged on the interpretation of a statute written in 1902 and revised in 1995 about the unauthorized practice of law. The 1995 revision made the crime a felony.

Assistant Solicitor Chad Simpson argued that the 1995 statute was applicable. "We asserted that doing wills and trusts constituted the unlawful practice of law," he said.

Clemmons' lawyer, Capers G. Barr III, contended the statute applied only to those who practiced law in courtrooms. Barr moved for a direct verdict of acquittal.

Nicholson agreed with the prosecution's interpretation and found Clemmons guilty of all five counts. Clemmons was sentenced to five concurrent three-year prison sentences, suspended on service of five years of probation.

Clemmons appealed. The state Supreme Court heard the case last month and filed its reversal Monday.

No new trial was ordered. No new charges are planned, and Clemmons can have his record expunged.

In its opinion, the court reached back to pre-Colonial times to consider the intent of the statute under which Clemmons was convicted.

The court said Clemmons' conduct, "although admittedly the unauthorized practice of law, did not violate the 1995 statute."

Barr was pleased with the ruling. "It confirms conclusively what I had been arguing all along," he said.

Barr had argued that the 1995 version of the statute, S.C. Code 40-5-310, did not apply to drafting wills and trust instruments, but only to practicing law in a courthouse setting. The high court agreed, saying that the statute was derived from Section XXIX of Act No. 473 of 172, which established trial courts in the Province of Carolina outside the city of Charleston. The pre-Colonial law clearly refers to the practice of law as something that took place in courtrooms.

The high court said the language of the 1995 statute and its legislative history supported the argument that the law criminalized representation by a nonlawyer only in a courtroom.

The court's opinion noted that the 1995 statute was substantially revised in 2009 and that drafting of wills and trusts by a nonlawyer would be illegal under the revised law.

Barr said the ruling means Clemmons gets his life back.

"He stood convicted of a felony," Barr said. "He was disqualified from voting, from being an insurance agent."

Contacted at his home, Clemmons, 59, said he was glad the court ruled in his favor.

He said he has changed occupations and is working in real estate.

"I have been thinking long and hard about it," he said. "I forgive the parties for the false claims. I am moving on."

Simpson said prosecutors don't plan on filing any new charges.

"It's pretty clear that if Mr. Clemmons were to do this today, he would be in violation of the law," Simpson said.

Reach David W. MacDougall at macdougd@postandcourier.com or 937-5655.