2016 South Carolina Code of Laws
Title 25 - Military, Civil Defense and Veterans Affairs
CHAPTER 1 - MILITARY CODE
Section 25-1-635. Legal assistance to guard members and immediate family members; scope, duties, and limitations.

(A) For purposes of enhancing the readiness of National Guard personnel for mobilization or call up for state or federal service, legal assistance attorneys and judge advocates of the South Carolina National Guard who provide premobilization legal assistance and counseling to national guard personnel may also provide legal assistance and counseling to the immediate family members and dependents of members of the South Carolina National Guard when, in the opinion of the legal assistance, attorney or judge advocate, the legal assistant and counseling provided enhances the overall mobilization readiness of a member of the National Guard who has an obligation to provide for his family and dependents in his absence in the event of his mobilization.

(B) Subject to the availability of resources, the scope of the practice of law and the legal assistance attorney's duties and responsibilities authorized by this section are limited to advice and service regarding the following matters:

(1) Basic wills, trusts, and estate planning. Complex estate planning and drafting are not authorized by this section. Except when a legal assistance client is unable to communicate adequately, a will for one spouse may not be prepared based upon discussions with the other spouse without personal communication sufficient to establish the attorney-client relationship with the spouse for whom the will is prepared.

(2) Advice concerning the legal and practical implications of divorce, legal separation, annulment, custody, and paternity.

(3) Advice and document preparation, as appropriate, but not pleadings except as permitted by applicable service regulations.

(4) Advice and assistance, including communication, correspondence, and negotiations with another party or lawyer, on behalf of the client, may be provided as appropriate.

(5) Basic advice and assistance on federal, state, and local taxes may be provided as appropriate. Legal assistance attorneys will not prepare or sign returns.

(6) Advice and assistance relating to landlord and tenant matters, including review of personal leases and communication and correspondence in behalf of the client, may be provided as appropriate.

(7) Advice and appropriate assistance in connection with civil suits may be given. Procedures and requirements of small claims courts and other courts may be explained and appropriate referrals made. Except as permitted by applicable service regulations, court appearances and representation as attorney of record are not authorized by this section.

(8) Advice and assistance concerning the Soldiers' and Sailors' Civil Relief Act may be provided as appropriate pertaining to the protections afforded and the effect of the act on the client.

(9) Limited general advice may be provided regarding minor criminal matters and traffic offenses within the jurisdiction of the civilian courts. Serious criminal matters are not within the scope of legal assistance and will be referred to military defense counsel or private civilian attorneys, as appropriate.

(10) Advice and assistance may be given on powers of attorney, real estate, bankruptcy, contracts, consumer affairs, insurance, immigration, naturalization, and other areas if not inconsistent with legal assistance regulations. Advice and assistance regarding military matters may be provided subject to the limitations stated in applicable service regulations.

(C) Legal assistance is authorized for personal legal affairs only. Legal advice and assistance will not be provided regarding business ventures or regarding matters that are not of a personal nature.

(D) Legal assistance duties are separate and apart from responsibilities of trial counsel, defense counsel, or others involved in processing courts-martial, nonjudicial punishments, administrative boards or proceedings, and investigations. Unless otherwise directed by the Adjutant General or his designee, legal assistance attorneys may not assume defense counsel functions for their legal assistance clients. Members accused or suspected of offenses or conduct that may result in disciplinary or judicial proceedings under Title 25, the Uniform Code of Military Justice, or administrative discharges, must be referred to a defense counsel.

(E) If two or more eligible persons with conflicting interests seek legal assistance from the same legal assistance officer on the same matter, the party first establishing an attorney-client relationship will be provided representation. Other parties shall be advised that they are also eligible for assistance, but that it must be obtained from another source. Every effort will be made to refer the party with a conflicting interest to another legal assistance attorney or to a private civilian attorney.

(F) Legal assistance attorneys may not advise on, assist in, or become involved with, individual interests opposed to or in conflict with the interests of the State of South Carolina or the United States without the specific approval of the Adjutant General.

(G) Except when the client is unable to communicate adequately, advice or assistance will not be provided through third parties. In the absence of unusual or compelling circumstances, legal advice will not be provided over the telephone. This does not prohibit appropriate follow-up telephone discussions between the legal assistance attorney and the client.

(H) The legal assistance attorney may determine that the best interests of the client will be served by referring the case to a private civilian attorney. Referral may be for a variety of reasons, including expertise of the attorney or regulations that prohibit involvement of the legal assistance attorney. Should referral to a private civilian attorney be necessary, payment of legal fees is the client's responsibility. Except as otherwise provided by law, the State will not reimburse the individual or pay any expenses associated with the referral. Legal assistance attorneys shall not refer legal assistance clients to themselves in their private practice nor to their law firm.

(I) Services provided in the legal assistance program are considered an official function of the National Guard and must be provided at no cost to eligible personnel. Legal assistance attorneys, National Guard personnel, and civilian employees acting within the scope of their official duties, are exempt from personal liability for alleged negligent or wrongful acts, omissions for service, or advice rendered pursuant to the legal assistance program, so long as the attorneys, personnel, or employees neither requested nor received a fee or compensation other than their regular compensation for legal services provided to persons eligible for assistance under this section.

HISTORY: 2000 Act No. 288, Section 2; 2011 Act No. 46, Section 8, eff June 7, 2011.

Effect of Amendment

The 2011 amendment rewrote subsection (I).