October 2007

OFFICE OF BAR COUNSEL REPORT- October 2007

SUPREME COURT OF NEVADA

Resignations (Voluntary, no discipline pending)

S.C.R. 98(5)(a) states:

Any member of the state bar who is not actively engaged in the practice of law in this state, upon written application on a form approved by the state bar, may resign from membership in the state bar if the member: (1) has no discipline, fee dispute arbitration, or clients’ security fund matters pending and (2) is current on all membership fee payments and other financial commitments relating to the member’s practice of law in Nevada.  Such resignation shall become effective when filed with the state bar, accepted by the board of governors, and approved by the supreme court.           

The following members have resigned:

Byrne, Barbara      Bar No. 0165            Order 49669  Filed 08/17/07  

Healy, Dennis         Bar No. 2145            Order 49668  Filed 08/17/07

Taylor, Cynthia       Bar No. 6140            Order 49324  Filed 06/22/07

Weule, Colleen        Bar No. 7557            Order 49325  Filed 06/22/07

Wilt, Brad                Bar No. 6867            Order 49665  Filed 08/17/07

LETTERS OF PRIVATE REPRIMAND

NORTHERN NEVADA DISCIPLINARY BOARD

File No.  N06-38-59

Private reprimand issued to attorney who as a matter of practice allowed non-lawyers to conduct initial consultations, quote fees, and accept cases on behalf of the firm.

Client A first contacted Attorney B’s law office regarding her husband’s wish to adopt her child from a former marriage.  She spoke only to a nonlawyer assistant, who advised  the first step was to terminate the natural father’s parental rights.  Client A paid $650 and received a receipt marked “adoption” in the memo line.

After this meeting, the client states she heard nothing from the law office despite repeated requests for an update.  She maintains that at no time did she ever speak or meet with any attorney.   Attorney B denies this, claiming to have spoken (but not met) with her on two occasions.

It is clear there was a breakdown in communication as well as a misunderstanding by the client as to the scope of legal services.   The client asserts the non-lawyer told her that a termination might not be needed in this case.  That is the reason she paid only $650 and her receipt indicates “adoption,” not “termination of parental rights.”   Attorney B maintains that she was informed that all parental rights must first be terminated. 

Attorney B’s response to the State Bar concerning his client intake procedures and allocation of duties to non-lawyers evinced a policy which violated the Rules of Professional Conduct.  To wit:  in low-fee cases the non-lawyers were allowed to review the prospective clients facts, quote a fee from a pre-set menu, and accept cases on behalf of the firm.

The Nevada Supreme Court, in an unreported opinion, noted that the decision of whether to represent a particular client calls for an exercise of professional judgment, and requires that the attorney-client relationship must be formed with the attorney, not a nonlawyer assistant.  In addition, a nonlawyer assistant may not be delegated the task of advising a client or potential client about his or her legal rights and remedies. See, generally, McMackin v. McMackin, 651 A.2d 778 (Del. Fam. Ct. 1993); Louisiana State Bar v. Edwards, 540 So.2d 294 (1989); Atty. Grievance Comm. v. Hallmon, 681 A.2d 510 (Md. 1996).  The State Bar has obtained disciplinary sanctions for such misconduct ranging from private reprimands to public reprimands to suspensions.

Attorney B was privately reprimanded for violating SCR 154/RPC 1.4 (Communications), SCR 187/RPC 5.3 (Responsibilities regarding nonlawyer assistants), and SCR 189/ RPC 5.5(Unauthorized practice of law). 

SOUTHERN NEVADA DISCIPLINARY BOARD

File No. 06-103-2576

Private reprimand and a fine warranted on the sole charge of  dilatory response to the State Bar, even where no underlying misconduct occurred.

Court Reporter C grieved to the State Bar concerning several unpaid bills accrued by Attorney D for reporting services.   Attorney D failed to respond to the four resulting State Bar investigation letters in this matter, resulting in the initiation of a grievance file.  After a personal call from a Bar Counsel, Attorney D finally filed a dilatory response. 

While there was no underlying misconduct ultimately charged, failing to respond to the State Bar is a separate offense.  In this case, had the attorney simply timely replied, the resources of the State Bar and its volunteer panels could have been more effectively utilized.  Moreover, it is integral to the public trust and the efficacy of a self-disciplined system that lawyers cooperate with the investigation process with diligence and candor.    

Attorney D received a Private Reprimand for violating RPC 8.1(b) (Bar admission and disciplinary matters), and the Panel also imposed a $500 fine. SCR 102(6).  

File No. 06-133-1234

Lawyer failed to safeguard trust account funds by offering to write a trust account check in a particular matter before a check upon which the transaction was based cleared, placing other clients’ trust funds at potential risk.         

Attorney E attempted to exchange an approximate  $42,000 check (payable to Client F and representing her share of the proceeds from the sale of her house) for an approximate $37,700 check from Attorney E’s trust account.   The difference was allegedly for attorney’s fees owed.

Had the client agreed to this, Attorney E would presumably have given her funds held in trust for other clients because Client F’s money was in the form of a not yet negotiated check and therefore not in the trust account at the time of the proposed exchange.

Attorney E received a Private Reprimand for violating RPC 1.15 (formerly SCR 165) (Safekeeping property). 

LAWYER ADVERTISING

Don’t forget all advertisements that are being run after September 1, 2007 (except tombstones¹ and websites) must be filed with the State Bar Advertising Administrator on or before September 17, 2007.

Visit the website for forms, applications and fees for advance committee advisory opinions, the complete Advertising Committee Rules, FAQs, and other information such as guidelines for preparing the Biographical Data Form:

http://www.nvbar.org/SCLA/scla.htm

The Advertising Administrator, paralegal Louise Watson, CLA, may be reached at (702) 317-1433, Louisew@nvbar.org, or fax (702) 382-8747.    You may send scanned documents concerning lawyer advertising to Ms. Watson’s email.     

COMMITTEE & BOARD VACANCIES

ADVERTISING REVIEW COMMITTEES   

On April 26, 2007, the Nevada Supreme Court enacted revisions to the lawyer advertising rules which created new standing advisory committees.  The new rules go into effect Sept. 1, 2007.  To review the complete order, visit either the State Bar or Supreme Court website.  The Board of Governors is in the process of formulating bylaws, guidelines, policies, and fee schedules* (*NB: fees apply to optional advance opinion requests only).

These working Committees shall meet at least once per month to (1) review all advertisements submitted pursuant to rule RPC 7.2A as amended and (2) render advance advisory opinions upon request.  Because review & communication will largely be accomplished though electronic mediums, Committee members should be proficient with computers, email, and Internet use.

Interested persons should send: (1) a cover letter, (2) C.V., (3)  references, and (4) level of computer proficiency to:  State Bar of Nevada: attn:  AD Committee, 600 E. Charleston Blvd., Las Vegas, NV 89104, or via e-mail louisew@nvbar.org, or call (702) 317-1433 for more information.   Lawyers will also need to fill out a State Bar Committee Application form.

DISCIPLINARY BOARD VACANCIES

The Southern Nevada Disciplinary Board needs volunteer non-lawyer professionals to review allegations of attorney misconduct.  No prior training or legal experience is required. 

The Northern Disciplinary Board has vacancies for attorney volunteers. Specific hearing panel assignments are flexible and will work around your schedule.

Interested persons should send a cover letter, c.v., and references to:  State Bar of Nevada: OBC, 600 E. Charleston Blvd., Las Vegas, NV 89104, or via e-mail tarad@nvbar.org.  Lawyers will also need to fill out a State Bar Committee Application form.

ENDNOTE

 1.         Advertising Committee Rule (ACR) 2(o) subparagraphs (1) and (3)  provide, in pertinent part, that the following advertisements are exempt from filing under RPC 7.2A:   

2.   Tombstone. Advertisements which are limited to the following information shall be considered “tombstone” advertisements which are exempt from filing under this Rule:

(a)  The name of the lawyer or firm and lawyers associated with the firm, with office addresses, telephone numbers, office and telephone service hours, telecopier numbers, e-mail and website information, and a designation of the profession such as attorney, lawyer, law office, or firm;

(b)  The fields of law in which the lawyer or firm advertises a certification, limited practice, or specialty, and required related information as set forth in RPCs 7.2 and 7.4,  provided the lawyer is otherwise qualified to make those statements in compliance with those Rules;

(c)  The date of admission of the lawyer or lawyers to the State Bar of Nevada, to federal courts, and to the bars of other jurisdictions;

(d)  Technical and professional licenses granted by this state and other recognized licensing authorities;

(e)  Foreign language ability;

(f)  Identification of prepaid or group legal service plans in which the lawyer participates provided the participation is otherwise compliant with SCR 42.5;

(g)  The acceptance or nonacceptance of credit cards; and

(h)  In addition to the exceptions listed in subparagraphs (a)-(g) above, listings in a regularly published law list; newsletters or other similar publications directed primarily to other lawyers and legal professionals; and announcements limited to change of address, affiliation, or staffing are exempt from filing.    

3.         Websites.   Websites are exempt from mandatory filing until further directive of the Board of Governors.  This subject may be revisited as part of the first advertising program review or sooner as the Board deems necessary and proper.  This waiver from filing shall not be construed to exempt websites from compliance with the substantive Rules of Professional Conduct. Further, websites may also be voluntarily submitted for RPC 7.2B advisory opinions.