UNLAWFUL PRACTICE OF LAW
Found at Nevada Revised Statutes Section 7.285
It is against the law for smeone to practice law in the State of Nevada unless that person has been authorized to do so by the State Bar of Nevada.
HOW DOES SOMEONE GET AUTHORIZED TO PRACTICE LAW?
In order to become authorized by the State Bar of Nevada, a prospective lawyer must, per Nevada Supreme Court Rule 51:
- Have attained the age of majority (18 years);
- Graduate from an accredited law school – this is necessary in order to be allowed to take the Bar Exam;
- Prove that you have not been refused admission to practice law in another state on character and fitness grounds;
- Apply to the State Bar;
- Be admitted to take the Bar Exam; and
- Pass the Bar Exam;
- Pass the associated Character and Fitness background check;
- Take the Oath of Attorney administered by a duly authorized officer of the Court.
- For more information regarding admission to the bar please visit the State Bar of Nevada admissions page at (http://nvbar.org/content/admission-requirements);
- Admissions requirements can also be found at the Supreme Court of Nevada Rules at (http://www.leg.state.nv.us/CourtRules/SCR.html).
SO ANYONE WHO HAS COMPLETED ALL OF THOSE REQUIREMENTS IS AN ATTORNEY?
Not quite, once admitted to practice within the State of Nevada, all lawyers must continue to abide by a number of bearucratic and professional rules.
- Paying annual Bar Dues;
- Complete the required Continued Legal Education (CLE) credits as determined by the State Bar of Nevada. Currently those requirements are:
- 9 Hours of general continued legal education
- 2 Hours of Ethics and Professional Conduct
- 1 Hour in the area of Substance Abuse, addictive disorders and/or mental health.
- Attorneys are required to act in accordance with the Nevada Supreme Court’s Rules of Professional Conduct for Attorneys – these are the ethical rules every attorney must follow.
A violation of any of the above requirements can result in a person not being allowed to practice law in the State of Nevada. In other words a person representing themselves as a lawyer would be engaged in the unlawful practice of law in any of the following circumstances:
- A person who has not yet passed the Nevada Bar Exam;
- A person who has not yet been cleared by the Nevada State Bar as a result of the Character and Fitness background check;
- A person who has passed the Bar Exam and the associated Character and Fitness check, but has not yet taken the Oath of Attorney, administered by a duly authorized officer of the Court.
- A person who has been “disbarred” as an attorney by the Nevada State Bar for violations of either the Rules of Professional Conduct or the annual requirements (if an attorney receives a “disciplinary resignation”, they have, for all intents and purposes, been disbarred);
- A person whose law license has been suspended by the State Bar of Nevada for violations of either the Rules of Professional Conduct or the annual requirements;
- A person whose license is currently inactive because they have chosen to give up their right to practice law in Nevada (usually because they have either retired or moved to another state);
- A person who has never been admitted to practice law in the State of Nevada.
WHAT IF I KNOW AN ATTORNEY IN CALIFORNIA, CAN SHE REPRESENT ME IN NEVADA?
Possibly. Generally speaking, Nevada does not allow out-of-state attorneys to practice law in Nevada unless they first apply to and pass the Nevada State Bar Exam and Character and Fitness background check.
There are, however, several uncommon circumstances where an out-of-state attorney can request permission from the State Bar of Nevada to practice in a limited capacity:
- An out-of-state attorney can request permission to practice “pro hac vice” (a latin term meaning ‘for this turn’ or ‘for this occasion’), so that they may litigate or act as an attorney for one case. An out-of-state attorney requests permission, from the State Bar of Nevada, to practice law in the State of Nevada for the purposes of one case. Generally, the out-of-state attorney will be required to associate with a Nevada licensed attorney before the State Bar will accept “pro hac vice” representation.
- Corporate in-house counsel for an out-of-state corporation may request for pro hac vice admission in order to represent their employer in Court proceedings;
- Out-of-state attorneys may seek to conduct an investigation (the ‘discovery’ process of a court case) in Nevada;
- An out-of-state attorney acting as an arbitrator, mediator, or impartial third-party in a dispute resolution proceeding within Nevada;
Please note that anyone can be guilty of the unauthorized practice of law, not just those those who are, or were, attorneys.
It is also important to note that an attorney who assists in another person’s unauthorized practice of law has also violated the laws against unauthorized practice of law.
WHAT HAPPENS IF I’VE BEEN ACCUSED OF THE UNAUTHORIZED PRACTICE OF LAW?
There are a number of defenses that can be brought up, depending on the specifics of your particular case. These defenses include:
- No Legal Services Provided. This defense is premised on there being numerous activities, related to the practice of law, that do not need to be carried out by a licensed attorney. If your only activity falls within this category, then you were not engaged in the unauthorized practice of law. Some examples include:
- Notary Public services – Notary publics do not need to be licensed attorneys. Nor do they need to be employed by a licensed attorney (please note: Notary Publics still have to be licensed as a Notary Public);
- Taking of a sworn statement – So long as there is no exercise of professional legal judgement, the taking of a sworn statement does not have to be done by a licensed attorney.
- Working for an attorney – Most law offices employ a number of people whose jobs sound like they fit in to the definition of unauthorized practice of law. Paralegals, law clerks, and office managers all havevarious duties that could be seen as the unauthorized practice of law. However, that work is always reviewed by a licensed attorney before it is finalized. The review process ensures that the work is not unauthorized practice of law.
- Information not Advice. If you were providing legal information, not legal advice, to the other person, then you were not engaged in the unauthorized practice of law. Conveying information that anyone could find, if given the necessary tools and materials, is not considered practicing law. Rather, it is the opinions, advice, and counsel of attorneys that is considered ‘the practice of law’. For this reason, many law professors are not, nor do they need to be, licensed to practice in the State in which they teach, they are not counseling students in legal matters, but rather teaching them legal information and how to think like a lawyer.
- Under Attorney Supervision. Most attorneys have a number of non-attorneys working with them. Law clerks, paralegals, and office managers often draft letters, motions, and other documents that, strictly speaking, are considered ‘practicing law.’ However, these people are not engaged in the unauthorized practice of law because their work is supervised by a licensed attorney. If the work consists of drafting a document, that document will be proof-read and edited by a licensed attorney before being signed by a licensed attorney and sent out.
- Self–representation. Everyone has the right to represent themselves in legal proceedings. It is not considered the unauthorized practice of law for a someone to act as his or her own representation. Note, however, that representing another person while not admitted to the State Bar of Nevada is the unauthorized practice of law.
WHAT HAPPENS IF NONE OF THE DEFENSES APPLIES TO ME?
Punishment for the unauthorized practice of law is cummulative, meaning that a second conviction will carry a harsher penalty than the first, the third conviction will carry a harsher penalty than the second, and so on. This cummulative effect lasts for 7 years, meaning that if you were convicted of the unauthorized practice of law in 2007, and again in 2009, then were not convicted again until 2015, both the 2009 and 2015 convictions would carry the same penalties because they would be considered the second offense in the past 7 years (the 2007 conviction would ‘fall away’ in 2014).
- A first conviction (within the past 7 years) is considered a misdemeanor in Nevada and carries a punishment of up to 6 months in jail and/or fines of up to $1,000.
- A second conviction (within the past 7 years) is considered a gross misdemeanor in Nevada and carries a punishment of up to 364 days in jail and/or fines up to $2,000.
- A third conviction (within the past 7 years) is considered a Category E felony in Nevada and carries a punishment of 1 to 4 years in prison and fines up to $5,000.
To better illustrate the cummulative effect, assume Ned Notalawyer was convicted of the unauthorized practice of law in 2000, 2005, 2009, and again in 2011.
- The 2000 conviction would be a misdemeanor and would carry a penalty of up to 6 months in jail and/or fines of up to $1,000.
- The 2005 conviction would be a gross misdemeanor, because it was his second offense in 7 years, and would carry a penalty of up to 364 days in jail and/or fines up to $2,000.
- In 2007, 7 years after his first conviction, the 2000 conviction would no long be part of the cummulative punishments.
- The 2009 conviction would be another gross misdemeanor, because the 2005 conviction was within the past 7 years, but the 2000 conviction was not, and would therefore carry the same penalty as the 2005 conviction of up to 364 days in jail and/or up to $2,000 in fines.
- The 2011 conviction would be a Category E felony, because both the 2005 and 2009 convictions were within the past 7 years, and would therefore carry the penalty of 1 to 4 years in prison and fines up to $5,000.
WHAT IS A CATEGORY E FELONY?
For a more detailed description of all the categories of felonies, please read our article on felony categories here.
Nevada classifies felonies into 5 Categories (A, B, C, D, and E). These categories are loosely based on the gravity of the crimes they categorize, with A being the most grave (First Degree Murder, for example) and E being the least grave (such as unauthorized practice of law and gang recruitment). .
Category E Felonies are probationable offenses. In Nevada, the Court will suspend the sentence and impose probation on someone guilty of a Category E felony so long as the convicted person:
- Was not on probation or parole for a felony offense at the time the offense was committed;
- Has not previously had probation or parole, stemming from a felony conviction, revoked;
- Was not previously assigned to a treatment program and failed to complete that program; and
- Does not have two prior felony convictions.
So long as none of the above situations applies, the Court is required to suspend the sentence and impose probation which may include:
- Up to 1 year in the County Jail;
- Fines up to $5,000;
- Any other terms the Court deems proper.
Anyone accused of the unauthorized practice of law is liable to their victims, and may be sued in civil court to collect money damages. While there is no civil cause of action for the unauthorized practice of law, civil suits stemming from the unauthorized practice of law may include:
- Breach of Contract;
- Breach of the Implied Covenant of Good Faith and Fair Dealing, either in Contract or in Tort;
- Breach of Fiduciary Duty;
- Fraud or Intentional Misrepresentation;
- Intentional Interference with Contractual Relations;
- Intentional Interference with Prospective Economic Advantage;
- Negligent Misrepresentation;
- Unjust Enrichment;
- Legal Malpractice.
Please note: Only attorneys can be sued for legal malpractice.
WHAT IF I’M AN ATTORNEY ACCUSED OF THE UNAUTHORIZED PRACTICE OF LAW?
Attorneys accused of the unauthorized practice of law face disciplinary actions by the State Bar of Nevada. These actions do not replace criminal sanctions, rather they are in addition to any criminal or civil action that may be taken. When an attorney is accused of the unauthorized practice of law (whether because they were practicing out-of-state, or a suspended or barred license), they must appear for a hearing in front of the Nevada State Bar Disciplinary Board. If the Disciplinary Board finds that the attorney did engage in the unauthorized practice of law, they will impose one of the following punishments, based on the severity of the ethics violation:
- The State Bar will place an official reprimand letter into the Attorney’s file with the Nevada State Bar and may impose a fine or restitution of up to $1,000;
- The State Bar will publish a public reprimand in local newspapers and official Nevada State Bar publications;
- The State Bar will suspend the lawyer’s bar license; or
- The State Bar will disbar the lawyer.
If you have been accused of the Unauthorized practice of law, you should speak with an attorney as soon as possible to discuss your situation and possible defenses.