1

1 APPEARANCES
2 MEMBERS:
3 Mr. Thomas R.C. Wilson, Chairman
4 The Honorable Nancy A. Becker
5 The Honorable Jack B. Ames
6 The Honorable James W. Hardesty
7 The Honorable Ronald D. Parraguirre
8 Mr. John H. Mowbray
9 Ms. M. Ann Morgan
10 Mr. Rob Bare, Bar Counsel
11 Ms. Gloria J. Sturman
12 Ms. Bridget Robb Peck
13 Mr. Matthew W. Addison
14 Mr. Allen Kimbrough, Executive Director
15
16 GUEST SPEAKERS:
17 Mr. Richard Barrows, Wilson & Barrows
18 Ms. Win Smith, Elko County Clerk's Office
19
20
21
22
23
24
25

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1 CHAIRMAN WILSON: Let's call the meeting to
2 order, get down to work. I am Spike Wilson. I'm supposed
3 to chair this hearing. Let's go around and introduce
4 ourselves.
5 JUDGE AMES: I'm Jack Ames from Elko.
6 JUDGE HARDESTY: Jim Hardesty from Reno.
7 MS. MORGAN: Ann Morgan from Reno.
8 MR. MOWBRAY: John Mowbray, formerly from Carson
9 City, presently in Las Vegas.
10 MR. BARE: Good morning, Rob Bare from the State
11 Bar.
12 JUDGE PARRAGUIRRE: Ron Parraguirre from Las
13 Vegas.
14 MS. STURMAN: Gloria Sturman, Las Vegas.
15 JUSTICE BECKER: Nancy Becker, Las Vegas.
16 MS. PECK: Bridget Peck, Reno.
17 MR. ADDISON: Matt Addison, Reno.
18 MR. KIMBROUGH: Allen Kimbrough, State Bar, Las
19 Vegas.
20 CHAIRMAN WILSON: Thank you all for being here.
21 You are required, obviously, to fulfill your obligation of
22 the Supreme Court's order creating this commission to have
23 public hearings to inquire into the subject of
24 multijurisdictional practice by lawyers and to render a
25 report to the Court for its consideration.

3

1 We have people who are going to appear, speak
2 this morning.
3 JUDGE AMES: Mr. Barrows is here and Ms. Smith is
4 here.
5 CHAIRMAN WILSON: Great. Who would like to go
6 first? This is going to be rather informal, more
7 conversational than anything else, I hope.
8 MR. RICHARD BARROWS: Mr. Chairman, members of
9 the commission, my name is Richard Barrows. I have
10 practiced, had a civil practice in Elko for about 28 years
11 I have practiced in Elko since 1973.
12 This subject today has been an interest of
13 mine for a long time, maybe for reasons other than a lot of
14 members of the bar.
15 I wish to talk about only one aspect of
16 proposed Rule 5.5, and that is the association of foreign
17 counsel with legal counsel, which I guess is in proposed
18 Rule 5.5(b)(3)(iii).
19 For years and years and years, being a general
20 practitioner in a rural area, if a specialized matter came
21 along, whether it be a nonlitigation transaction or
22 litigation, being a general practitioner, if the matter
23 warranted it, or if the client -- and/or if the client
24 could afford it, I affirmatively sought out specialized
25 counsel to assist me in the matter.

4

1 In some of those instances, the counsel that I
2 associated with was out of state. And I always operated
3 under what may or may not be -- probably is -- the
4 misconception that out-of-state counsel was in full
5 compliance with the law, simply associating with me as
6 licensed Nevada lawyer.
7 That is until the day that I heard about the
8 Birbrower case, which I hope is an aberration, I actually
9 haven't followed the developments since it.
10 But I do know that one of the arguments made
11 in the Birbrower case was that the New York counsel, if the
12 New York counsel had associated with local counsel, then
13 the New York counsel would not have been engaging in the
14 unlawful practice of law.
15 And the Court said in Footnote 3 of Birbrower
16 case that that's irrelevant, even if the counsel at issue
17 had associated with local counsel, the statute and the
18 Court rule doesn't have that exception. It simply says
19 unlicensed, unauthorized practice of law, period.
20 I believe there ought to be an implied
21 exception for association with local counsel, but whether
22 there is an implied exception or not -- apparently there
23 isn't -- I would support Exception 5.5(b)(3)(iii), which
24 says that the one exception to the unauthorized practice of
25 law is where the lawyer is associated in a particular

5

1 matter with a lawyer admitted to practice in this
2 jurisdiction.
3 And I read some proposed language from -- I
4 believe it must be Neil Galatz -- that adds, "and is
5 performing work on an occasional basis and not as a regular
6 or repetitive course of practice."
7 That certainly makes sense to me. I would
8 urge this commission to urge the Supreme Court to adopt
9 that exception. And I would hope that there would be some
10 common sense to it, not make it onerous, like pro hac vice,
11 where you have got to go through an application and plead
12 with the State Bar to allow it and pay $350 a year, pay to
13 file a motion in court, et cetera.
14 In many of those transactions there is no
15 Court to file your application in. And I would -- at least
16 where there is no pending arbitration or mediation, it
17 seems to me that simply on an informal basis the rule ought
18 to be that if foreign counsel is associating with local
19 licensed counsel, then that is not the unauthorized
20 practice of law.
21 CHAIRMAN WILSON: Are you talking in a context
22 where you are not appearing in court in a matter, or are
23 you talking with about consulting with specialized counsel
24 who is working with you in Nevada for a Nevada client?
25 MR. BARROWS: Absolutely.

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1 CHAIRMAN WILSON: On that kind of issue?
2 MR. BARROWS: Yes. I would submit, unfortunately,
3 the way the law has been written for many years, there is
4 just a wholesale unauthorized practice of law by foreign
5 counsel, by out-of-state counsel, because it simply --
6 there are no exceptions in the rule or the statute.
7 MR. MOWBRAY: Richard, would you propose maybe a
8 registration system? You mentioned that you would not be
9 in favor of going through the same mechanism under Supreme
10 Court Rule 42 with filing the petition with the State Bar,
11 then going through the motion practice.
12 Have you thought about that, how you would
13 implement it?
14 MR. BARROWS: I don't know why it would be -- you
15 know, I still believe that the legal profession by and
16 large is honorable. I don't know why there needs to be a
17 registration process, at least where there is no formal
18 arbitration or pending mediation.
19 I simply would like a system where, as the
20 Nevada licensed counsel, it is up to me to know when there
21 has to be a formal application with the State Bar or
22 anyone. And if there is no pending court proceeding,
23 administrative proceeding, arbitration or mediation, I
24 would think merely associating with me should be enough.
25 JUDGE HARDESTY: What about a notification, at

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1 least some way to regulate or police? The concern I would
2 have is that, outside of yourself, the Bar would not know
3 in the case of subsequent Supreme Court Rule 42
4 applications, that this lawyer had been a frequent
5 participant in matters involving yourself.
6 Should there at least be a notification
7 process that you have associated out-of-state counsel on a
8 matter?
9 MR. BARROWS: I came prepared to answer that
10 question affirmatively as a fallback position. I would
11 prefer no formal process. But at worst, I guess I should
12 phrase it, a mere notification to the State Bar as opposed
13 to an application and a fee, I think, would be appropriate.
14 JUDGE HARDESTY: There are circumstances, it seems
15 to me, where some local counsel might not be as honorable
16 and might take advantage of the opportunity to have
17 out-of-state counsel handle your matters on a regular
18 basis.
19 Is that something we should be concerned with?
20 MR. BARROWS: I suspect, in reality, that is
21 happening a lot, probably not in the rural areas.
22 CHAIRMAN WILSON: Judge Ames?
23 JUDGE AMES: One of the purposes of being
24 licensed, of course, is to protect the public. And so we
25 need that mechanism in place, also, when these attorneys

8

1 come in, if they are actively representing a client in
2 Nevada, then, if they do something that the client -- that
3 gives them a cause of action back against the attorney,
4 what do we have to protect the client, the public?
5 MR. BARROWS: Well, if I understand your question,
6 what I am proposing is whether it be, let's say, a large
7 leaking underground storage tank clean-up process that I
8 certainly am not familiar enough with that type of law,
9 where there is no lawsuit pending, or whether there is a
10 huge real estate transaction, there is no pending
11 proceeding to file in.
12 If there is malpractice, I would think, first
13 of all, that I should be actively involved in the matter,
14 rather than just -- I think I read a comment in one of
15 these documents -- I should not act as a mere conduit, I
16 should actually be representing my client, making sure that
17 Nevada law and procedure is complied with.
18 And both me, as Nevada licensed counsel, and
19 the out-of-state counsel should be liable to the client for
20 malpractice, if it happens.
21 CHAIRMAN WILSON: Rob?
22 MR. BARE: Thank you, Mr. Chairman. I just want
23 to take an opportunity to kind of put Mr. Barrows' comments
24 in context, if I could. Perhaps you would appreciate a
25 little background on this. This is one of the main issues.

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1 We get a lot of calls at the State Bar on this.
2 Normally, what happens is we get a call from a
3 Nevada licensed attorney who is physically present at some
4 sort of a prelitigation proceeding, something like a
5 mediation or arbitration or even a deposition. And that
6 Nevada lawyer calls the bar, says, Hey, bar counsel, what
7 am I supposed to do here today? Opposing counsel is not
8 licensed in the state.
9 Now, what we tell that lawyer is, in
10 prelitigation matters, such as mediation and arbitrations,
11 if it's the practice of law, which it is when opposing
12 counsel shows up representing the opposing party, you have
13 got to have a Nevada lawyer handle that.
14 There is no mechanism in the rules to allow
15 for that practice of law by the out-of-state lawyer.
16 That's really the legal situation we are in. I mean, just
17 to be clear, what we have here is the practice of law by an
18 out-of-state attorney.
19 In order to have an authorized practice of law
20 by an out-of-state attorney in our state, we have Supreme
21 Court Rule 42.
22 If you look at the technicalities of Rule 42,
23 it requires, as a threshold matter, that there be a matter
24 pending in a court of this state before you can even file a
25 pro hac vice petition.

10

1 That means if you don't have a matter pending,
2 things like arbitrations, mediations, such, there is no
3 mechanism legally in our state to allow for a blessing, an
4 authorization, of that practice of law by the out-of-state
5 attorney.
6 And I will tell you, we have looked at what
7 other states do, and there are no states -- we have not
8 found, and I have sent -- in fact, I sent a letter to all
9 the other bar counsel, all the other 49 bar counsel, and I
10 asked them to provide to me any rule they have in their
11 state that allows for an admission of out-of-state attorney
12 on a prelitigation basis, at things like mediation,
13 arbitration.
14 Nobody has a rule. There is no rule allowing
15 for this. What's happened in practical effect over time,
16 and I know what happens even more and more every day, is
17 just what Mr. Barrows is suggesting. What happens is you
18 have a State licensed attorney present and essentially
19 handling the legal matter.
20 What does the out-of-state attorney do? Well,
21 what I like to say to people is, if that attorney is
22 limiting him or herself to a consultation, you know, they
23 are basically a consultant for the Nevada lawyer, the
24 Nevada licensed lawyer who's present for the proceeding and
25 handles it.

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1 That's pretty much what we allow at this
2 point. We don't allow solo practice by the out-of-state
3 counsel with things like mediations and arbitrations.
4 JUSTICE BECKER: I think to some extent that has
5 come to the forefront because I think the Bar is now
6 interpreting unauthorized practice of law in a manner that
7 was never historically considered when those rules were
8 enacted.
9 I think the few cases we have in this make it
10 clear that unauthorized -- the reason the Rule 42 relates
11 to court proceedings is because it was never considered to
12 be the unauthorized practice of law for someone to
13 represent their client in an arbitration or a mediation
14 proceeding, because you can be represented by anyone at an
15 arbitration or mediation or administrative proceeding
16 federally.
17 You are not required to have an attorney, and
18 there is no bar in those proceedings from having someone
19 other than an attorney represent you.
20 And if any person off the street can be your
21 spokesperson, then it can't be the unauthorized practice of
22 law if your spokesperson is an attorney. And that's
23 traditionally what was happening.
24 The problem is that arbitrations or mediations
25 or administrative hearings were not a norm 30 or 40 years

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1 ago, but they are a norm now. They are much more complex.
2 They are much more like a court proceeding, or at least a
3 prelitigation method of resolution.
4 So while it may be appropriate for us to now
5 rethink that as an unauthorized practice of law, I think,
6 by the same token, I don't think it's anybody's intent to
7 take what was intended to be informal proceedings and blow
8 them up into a trial proportion by our use of the
9 unauthorized practice of law.
10 I think our concern is the protection of the
11 public and the people. I don't think that asking a local
12 attorney, saying, you know, I need somebody with a little
13 more expertise and there really isn't anyone in Nevada that
14 I feel comfortable with for copyright infringement or toxic
15 waste massive litigation, so I would like to hire -- I, the
16 attorney, want to hire out-of-state counsel to associate
17 with me to advise me. It is still my client.
18 That out-of-state attorney is being hired by
19 you, Mr. Barrows, to give you counsel. And the question
20 now becomes, is that a different situation when they are
21 not the ones who sign the retainer agreement with your
22 client? Your client pays you and doesn't pay them. You
23 are responsible for paying them. I still don't think
24 that's the unauthorized practice of law.
25 JUDGE HARDESTY: Isn't what he's doing is having

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1 the client pay the associated counsel?
2 MR. BARROWS: I am sure it could occur that way.
3 I am suggesting in my instance, we are co-counsel. There
4 is a separate retainer agreement between out-of-state
5 counsel and the client.
6 JUSTICE BECKER: In that case I think it would be
7 the unauthorized practice of law, whether you are
8 associated or not, because they are co-counsel. That's the
9 difference between you hiring someone to advise you and
10 them actually having a client in state and practicing in
11 state.
12 JUDGE HARDESTY: When I was in practice that was
13 really the practice 90 percent of time. You were bringing
14 in co-counsel and co-counsel was associating in the case.
15 MR. ADDISON: In fact, working on the matter,
16 negotiations and everything else.
17 MS. STURMAN: As a little historical background
18 for the committee that amended the Rule 42 few years ago,
19 which I chaired, we looked at this very thing, thought
20 about extending -- asking the Court to extend it a little
21 further.
22 We specifically didn't because we were
23 contacted by a lot of transactional attorneys and
24 government attorneys, and the problem they raised for us
25 and that we just ran into an impasse, decided not to go any

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1 further with was, particularly in the state of Nevada,
2 there is a dearth of, for example, bonding counsel for
3 governmental entities.
4 They contacted us and said, Please don't do
5 what you are thinking about doing. Because we were going
6 to take it beyond. We thought it should apply to
7 transactional, we thought it should apply to anybody that
8 sets foot in the state of Nevada. We actually thought under
9 Birbrower that we needed to do that.
10 And they said, You are just going to handicap
11 us, you're going to tie our hands, we won't be able to get
12 bonding. Our only bonding counsel are these people from
13 New York, San Francisco and Denver. There is no bonding
14 counsel in the state of Nevada. We are going to have to
15 travel to them because they will be afraid to come here.
16 It will be impossible for us to do this. You are going to
17 raise our costs. It's going to substantially handicap the
18 ability of -- at the time the big problem was the airport,
19 going through a big expansion, they were bringing people in
20 on a regular basis for huge hundreds of millions of dollars
21 in bonding. They said, Please don't do this to us. And it
22 was attorneys from governmental entities that were calling
23 us.
24 And so it's a little bit different probably
25 from what Mr. Barrows is talking about. Historically, that

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1 is why, when we amended Rule 42, we didn't go the extra
2 step, just the philosophical problem that it presented.
3 We decided at that point that the immediate
4 problem for us was all these problems with the people
5 coming in on construction defect, that was really where we
6 wanted to address things, where people were dealing
7 hands-on with individuals and affecting individuals'
8 rights.
9 I think we just decided the big government
10 entities can protect themselves, if they are hiring these
11 big, flashy lawyers out of New York to do their bonding.
12 Maybe we don't want to go there. We are more concerned
13 about our consumers, protecting them. That is why we only
14 went as far as we did.
15 But this committee might want to explore that
16 a little further, hopefully we'll have some more testimony,
17 particularly in Southern Nevada, on how this would affect
18 that type of practice.
19 MS. MORGAN: Richard, have you had any discussion
20 with other practitioners in Elko about this subject?
21 MR. BARROWS: I have not.
22 MS. MORGAN: Have you heard whether there is any
23 other concern by anybody except you in this area?
24 MR. BARROWS: I'm sorry, I have not. I guess my
25 general impression is a lot of people want to do it

16

1 themselves, and whether or not that is appropriate under
2 the rules or not, I don't know. But I am not an expert in
3 very much, I can guarantee you that.
4 MS. MORGAN: One follow-up question. Is it your
5 observation in transactions that you find yourself dealing
6 with out-of-state attorneys, where there is not a local
7 presence on the other side?
8 MR. BARROWS: Certainly. Although we don't, in
9 Northeastern Nevada, other than the mines, which are sort
10 of their own islands, we don't really have a lot of
11 transactions that would warrant out-of-state counsel.
12 But I am currently involved in one fairly
13 large transaction in which the counsel on the other side is
14 from out of state. I haven't raised the issue and
15 certainly, I guess, wouldn't, simply out of courtesy.
16 But it seems to me that that out-of-state
17 counsel who is engaging in a huge real estate transaction
18 without local counsel is engaging in the unauthorized
19 practice of law.
20 JUDGE HARDESTY: That's the other side of the
21 coin. You are a local lawyer and you are dealing with
22 maybe a co-counsel situation or a lawyer from out of state
23 and that lawyer is engaging in behavior and conduct which
24 creates a problem with the transaction, which creates a
25 problem ethically. How do you deal with that situation?

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1 I confronted that when I was practicing law
2 and it is extremely frustrating. And there is virtually no
3 control other than to call the Bar and ask for some relief,
4 which can really complicate -- especially in transactional
5 matters -- your own client's situation.
6 If you are involved in a major real estate
7 deal, calling the Bar and asking for relief is not the best
8 approach in blowing a million dollar or $2 million
9 transaction.
10 MS. PECK: Just a follow-up comment to what Judge
11 Hardesty just said, it is my experience that in those types
12 of circumstances where there is no pro hac vice application
13 on file that a call to the Bar is not effective.
14 They take the position they don't have
15 jurisdiction and will then refer that matter to the state
16 in which the attorney practices.
17 But again, that gives your local consumer and
18 your local attorneys no real form of relief because you
19 don't have anybody locally that you can deal with.
20 JUDGE HARDESTY: I think it's an issue this
21 committee needs to address. You just have no way -- local
22 counsel have no way of dealing with a problem where
23 out-of-state counsel is appearing, as you have described.
24 CHAIRMAN WILSON: It looks like it comes up two
25 ways: The person with whom you're having a transaction has

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1 out-of-state counsel, perhaps not local counsel, or either
2 of those; or, in your own case, where you are associating,
3 although there is a separate contract with your client and
4 the out-of-state lawyer.
5 I guess the question is, how do you make it
6 work?
7 MR. BARROWS: Well, in the -- in the case of the
8 out-of-state counsel who has not associated, that is a
9 problem that needs to be dealt with, and I simply haven't
10 viewed it as my function to deal with it.
11 I am simply here on, I suppose, the selfish
12 grounds of not wanting to lure an expert out-of-state
13 counsel into Nevada to help me and have Birbrower hit them
14 in the face and them not be able to collect their fee.
15 And I guess, in closing, I I would like to see
16 a very broad definition of practice of law, with the
17 exceptions that are suggested in Proposed Rule 5.5, rather
18 than a very narrow definition of practice of law, so that
19 you don't get to the issue.
20 And I thank you for coming all the way out to
21 Elko to hear the rural perspective. I thank you for
22 letting me address you.
23 CHAIRMAN WILSON: That's helpful, thanks.
24 JUDGE HARDESTY: On the bond matters, I think it
25 might be worthwhile to check into this. My experience is

19

1 that where they hire out-of-state bond counsel, all of
2 these situations are worked out with civil deputies from
3 those agencies. It's very much like --
4 MS. STURMAN: It may be that you can consider
5 that an association, that would be adequate, if we adopt
6 the safe harbor proposed in 5.5.
7 JUDGE HARDESTY: Unless they are acting
8 independently.
9 JUSTICE BECKER: They do it both ways. And it
10 isn't just the local government. It is also our State
11 Treasurer who has bond counsel out of state that they
12 consult with frequently.
13 And it goes beyond that. I think that in the
14 materials we have been presented, we need to remember that
15 clients have a right to ask someone from out of state to
16 represent them.
17 The issue is, if there is a problem with that
18 out-of-state counsel, how do we regulate that? How do we
19 get jurisdiction over them?
20 MS. STURMAN: I would like to invite somebody to
21 come and tell us -- I don't understand a lot about
22 internally how they handle it. I think your question is
23 very valid.
24 Maybe we could ask, see if somebody would be
25 willing to testify in Reno or Las Vegas.

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1 JUDGE HARDESTY: For example, anything from S.B.A.
2 loans or I.R.B.'s, all of those things are involving
3 out-of-state bond counsel opinions on these bonds.
4 JUSTICE BECKER: It goes beyond that. I'm sure
5 that the major corporations use out-of-state counsel as
6 well as local counsel. I would presume that IGT doesn't
7 provide -- consult only with in-house counsel, that you
8 consult with experts that are out of state, if necessary,
9 although with gaming most of the experts are in state.
10 But, you know, we have major corporations and
11 you have the issue of the corporation counsels.
12 And I think that again, you know, the
13 unauthorized practice of law, if I say this person is my
14 agent, they are my agent. If I have authorized them to be
15 my agent, that's always been considered not to be the
16 unauthorized practice of law.
17 The fact that they happen to also be an
18 attorney is irrelevant. I have designated them as my agent
19 for this transaction and lease negotiation.
20 And that is where we need to come up with up
21 with some additional protections.
22 But I honestly don't want to change the
23 situation where the client, knowing that this is an
24 out-of-state person, doesn't have the right to say, look, I
25 like this person, this is who's negotiated all of our other

21

1 franchise leases, this is who we use to negotiate our
2 franchise leases.
3 I have no doubt that McDonald's Corporation,
4 when it opens a new franchise, doesn't necessarily use
5 local counsel, although the person who is opening, buying
6 the franchise, probably has local counsel.
7 But I would bet that there is corporate counsel
8 for McDonald's corporate headquarters that is negotiating
9 those.
10 CHAIRMAN WILSON: Which would be an in-house
11 counsel situation, as opposed to a lawyer who is
12 independent but is being engaged from out of state.
13 You know, I guess the challenge is how would
14 you make the system work and preserve a degree of
15 accountability. It has to work in the practical context of
16 business and commerce and everything else.
17 How do you make people accountable in a way
18 that is workable?
19 JUDGE HARDESTY: Rob, are you pursuing complaints
20 in which a lawyer has called up and said, hey, I have this
21 out-of-state counsel I am dealing with on a transactional
22 matter and --
23 MR. BARE: Most of that, Judge, is handled
24 relatively informally be either me calling or writing a
25 letter to the out-of-state counsel advising that they are

22

1 engaged in the unauthorized practice of law, having them
2 associate with Nevada counsel.
3 I mean, it's got to the point that it's a form
4 letter that tells them that, okay.
5 JUDGE HARDESTY: Are they responsive?
6 MR. BARE: Sometimes they are, sometimes they
7 aren't. Let me just tell you the cases that stick out in
8 my head are ones where there is a lot of out-of-state
9 practice and it's unauthorized, there is no Nevada lawyer
10 involved.
11 When we initially get involved, I think the
12 majority position that the out-of-state lawyer has is,
13 Well, leave me alone. Who the hell are you? You don't
14 have any jurisdiction over me. I am from some other state.
15 If you have a problem, deal with my bar counsel, deal with
16 my state, deal with my supreme court.
17 And I say that because I had a case in Las
18 Vegas -- I guess it is now about a year-and-a-half ago --
19 where an out-of-state lawyer showed up and opened up a real
20 nice law office and started practicing construction defect
21 law and just really started practicing.
22 His way of doing business was more or less
23 just to try to settle everything. If the matter proceeded
24 on to court, he would just file a Rule 42 petition in every
25 case that proceeded to court. He tried to limit the amount

23

1 of cases that went to court. That was how he was going to
2 practice law.
3 In that case, it was one of the few cases
4 where we had to actually start proceedings, disciplinary
5 proceedings, concerning an out-of-state lawyer.
6 When we did that, the out-of-state lawyer's
7 first response to us was, well, he filed a motion to
8 dismiss for lack of jurisdiction.
9 Now, Supreme Court Rule 99 does say that as
10 far as disciplinary jurisdiction is concerned that we have
11 jurisdiction over, of course, all Nevada licensed lawyers
12 and any other lawyer that is practicing within the physical
13 borders of the state. We have disciplinary jurisdiction
14 pursuant to Rule 99. So I used that rule, of course, in
15 that case and in other cases to pursue the matter.
16 So anyway, interestingly enough -- and I'll
17 try to make this short. Justice Becker, I think, heard
18 this argument recently, too, when we were in the front of
19 the Court.
20 But that lawyer that I am talking about
21 initially just said, hey, send me all the letters you want,
22 I am just going to practice, you don't have any
23 jurisdiction over me, the hell with you.
24 And then, when he filed his motion to dismiss
25 our proceedings and he started getting serious, he went out

24

1 and hired a prominent Nevada lawyer to represent him.
2 This lawyer sat him down and said, look, if
3 the State of Nevada disciplines you, there is such a thing
4 known as reciprocal discipline where your state may impose
5 the same discipline that has been imposed upon you in
6 Nevada. So you run a risk of losing your license in your
7 home state if that occurs.
8 When that lawyer received that advice from his
9 learned Nevada counsel, boy, did his tune change then. And
10 we ended up having that lawyer close the law practice; he
11 doesn't have his practice anymore.
12 So that's my main experience because that is
13 the one case that really proceeded on and got serious.
14 But I just tell you, in general terms, the
15 out-of-state counsel tend to not respect our letters and
16 our calls until we start to point out the fact that we have
17 jurisdiction. And when we point that out, start talking in
18 terms of reciprocal discipline, then things start to
19 happen.
20 I will tell you that most cases when we get
21 involved what happens, as a practical matter, is the
22 out-of-state lawyer simply associates with a Nevada lawyer
23 and things are handled from there.
24 And that's important. I mean, Judge Ames
25 talked about accountability here. That is really the

25

1 problem for us at the State Bar. If you have out-of-state
2 lawyers practicing, whether it's prelitigation or not, we
3 have got to have some accountability as to what we are
4 going to do when their client -- by the way, guess where
5 their client files the bar complaint? They don't file it
6 in Oklahoma, Kansas, someplace, they file it in my office,
7 right. So that really is an important aspect.
8 MR. MOWBRAY: Mr. Barrows' comments bring up
9 another topic. That is, the full faith and credit. In
10 terms of different jurisdictions, this is a big issue.
11 When we appeared, the Nevada delegation, at
12 the ABA session in Chicago on August 5, we were asked
13 several questions concerning would we give full faith and
14 credit to another state's disciplinary proceeding and do we
15 do the same thing.
16 MS. STURMAN: Another question they wanted to
17 know was if, for example, under pro hac vice, if a
18 California attorney who goes to an unlicensed --
19 unaccredited law school in California, but is licensed in
20 California, under our pro hac vice provisions, do we accept
21 the fact that they can work in Nevada pro hac vice, even
22 though they went to an unaccredited school, where they
23 would have to go through a functional equivalency if they
24 wanted to take our bar?
25 So it's not just discipline, it's admissions.

26

1 While they don't want us to give reciprocity, necessarily,
2 they want us, under the pro hace vice provision, to give
3 full faith and credit to the fact somebody is admitted,
4 even though they wouldn't be qualified in Nevada. So it's
5 broader.
6 CHAIRMAN WILSON: Is that a good thing or a bad
7 thing?
8 MS. STURMAN: I don't believe we discriminate in
9 pro hac vice.
10 CHAIRMAN WILSON: Wait a minute. What should the
11 law be? We are going to make recommendations as to what
12 the law or the rule ought to be, and the question is going
13 to be, what should it be and why.
14 MS. STURMAN: John?
15 MR. MOWBRAY: Well, I think we have to take a
16 look at the full faith and credit issue. If all the states
17 are willing to give full faith and credit to the other
18 jurisdictions' disciplinary proceedings, that's one thing.
19 But as a practical matter I am not sure that that's the
20 case.
21 And I say this because of the February hearing
22 of the M.J.D. commission by the ABA in San Diego. Bar
23 counsel from a southeastern jurisdiction proposed a
24 hypothetical to his California counterpart and said -- my
25 recollection was -- let's assume that one of your

27

1 California lawyers came to our jurisdiction, committed an
2 offense which was clearly disbarable under the California
3 Code of Professional Responsibility, clearly disbarable
4 under our Code of Professional Responsibility, there were
5 hearings held, appeals held, there was an adjudication by
6 our Court that this lawyer should be disbarred, and we sent
7 that order to California.
8 Would you, California, give that full faith
9 and credit? The delegate said, "Absolutely not." At which
10 point there was a groan in the room.
11 And that's the problem. That's part of the
12 problem we have got to take a look at in terms of
13 accountability.
14 I was just going to say, I have been looking
15 at these issues, trying to come up with categories. I
16 think if we look at -- the main thing ought to be the
17 protection of the public, making sure there is some
18 mechanism in place to respond if there is a grievance filed
19 against a Nevada lawyer, a California lawyer, a Colorado
20 lawyer, regardless of their specialty.
21 And we also need to look at in the field of a
22 litigation sense and, on the other hand, in a transactional
23 sense, outside the court. The litigation forum is pretty
24 well regulated by Supreme Court Rule 42.
25 And I think if we approach the problem, look

28

1 at if the lawyer is coming to Nevada to represent Nevada
2 citizens on a continuous systematic basis, that is one
3 thing; as opposed to isolated, you know, once every five
4 years or related to some particular specialty. That is one
5 area.
6 In terms of a mechanism to keep account of
7 that, you know, there are mechanisms other than SCR 42
8 where you go through the motion practice, file the
9 statement with the State Bar, do that.
10 Other states have been looking at different
11 models, some form of registration system. So I think, we
12 don't need to -- this is not black and white. There is a
13 lot of gray areas.
14 CHAIRMAN WILSON: Before we get caught up in
15 discussion among ourselves, we have another speaker.
16 Welcome. Why don't you sit at the microphone.
17 MS. WIN SMITH: My name is Win Smith. I am from
18 the Elko County Clerk's office. Mr. Mowbray called
19 yesterday and asked me if I would just speak briefly on
20 what our local practice is with getting out-of-state
21 attorneys.
22 More often than not, we will have one of the
23 local attorneys call and say, Do you have some form? Which
24 we do have, we have a form we present to them. It is Rule
25 42. We give that out to them, then we file it within that

29

1 case, that file.
2 Occasionally, we get an out-of-state attorney
3 calling about a foreign judgment. We will tell them
4 at that time, Don't put your name on any of the filings,
5 because -- unless you are admitted to the Nevada bar.
6 So what they will do is they will just present
7 us with an out-of-state foreign judgment and it will be
8 prepared on legal paper without their letterhead. So
9 that's really easy in our office.
10 CHAIRMAN WILSON: So they just mail it to you and
11 you prepare -- take a -- create a Nevada judgment, have it
12 entered by the Court?
13 MS. SMITH: No, it's a foreign judgment. It can
14 be from -- we get quite a few of them from Utah. For
15 instance, somebody goes over to the University of Utah
16 Medical Center, doesn't pay their bill, they will get a
17 foreign judgment, then they do executions on it.
18 It just doesn't have a -- it has no local
19 attorney, nor does it have a Utah attorney.
20 JUDGE HARDESTY: But the effect -- to effect an
21 execution, a law firm must be doing that through and writs
22 and the like?
23 MS. SMITH: They just send them, then we issue
24 them. It doesn't have any letterhead on them, so --
25 CHAIRMAN WILSON: What happens after that you

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1 don't hear?
2 MS. SMITH: No.
3 MR. ADDISON: Isn't the procedure you do a notice
4 of filing of foreign judgment, you attach an exemplified
5 copy, then they wait the 30 days, go to the sheriff's
6 office after they have the execution issued by your office,
7 and if there is a bank account, it's done without a lawyer,
8 Nevada lawyer being involved, correct?
9 MS. SMITH: If a Nevada lawyer -- there is one
10 attorney in Reno that does a lot of foreign judgments. He
11 attaches a notice of foreign judgment. He does put his
12 letterhead on it. Otherwise, they will just come in
13 without that.
14 MR. ADDISON: But the law is, as I understand it,
15 is that a foreign judgment doesn't become an enforceable
16 Nevada judgment until 30 days passes following its filing
17 and service upon the judgment debtor.
18 MS. PECK: You can't execute on it.
19 MR. ADDISON: Right. In fact, it can be
20 challenged in that period.
21 MS. SMITH: That's true. And we just -- we file
22 them, and then within a month, or after a month, they do
23 the execution. They don't do that immediately.
24 MR. ADDISON: Right. The execution is just on a
25 form you have that need not be accompanied by anything from

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1 a lawyer?
2 MS. SMITH: Exactly.
3 MS. STURMAN: I wanted to ask you a question.
4 Absolutely different topic. But just if you are familiar
5 through filings in your local courts, do you have a lot of
6 attorneys coming from out of state, particularly, I guess,
7 neighboring states like Utah, on a regular basis, having
8 the rule -- a little provision, that, you know, the Judge
9 has discretion if it seems to be excessive? Do you have a
10 problem with people who --
11 MS. SMITH: No. They have to be admitted to the
12 Nevada bar. No. We get -- they are temporary. We pass out
13 this. Normally, what we find is in the past there have not
14 been too many. But as mining came in, we found a lot more
15 of them coming in then.
16 MS. STURMAN: Because I think our rule is five
17 cases in three years or three cases in five years.
18 MR. MOWBRAY: It is presumed to be excessive at
19 five cases in three years.
20 MS. STURMAN: I was wondering if you have a
21 problem with a lot of people who are clearly practicing
22 primarily here, do seven, eight, nine cases in a year.
23 MS. SMITH: I don't think so. I don't think we
24 have ever picked it up, anyway.
25 JUSTICE BECKER: But you wouldn't know if they

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1 don't put -- if all they put is pro per, you would just
2 file it, and you would assume that someone else would raise
3 it before the Judge.
4 MS. SMITH: If we see a lot of cases coming in --
5 I'm sure that this would happen. If we saw cases coming in
6 with letterhead we didn't know, Elko is small enough that
7 we would question it.
8 JUSTICE BECKER: But the mines frequently use
9 out-of-state counsel.
10 MS. SMITH: Yes, they do.
11 JUSTICE BECKER: You also see things like the
12 national credit card companies doing things, or are those
13 local attorneys?
14 MS. SMITH: They go normally through -- there is
15 several people in Reno who do a lot of that.
16 MR. MOWBRAY: Thank you very much. Before you
17 leave, I would like to thank you for coming today, taking
18 time out of your busy day to do this.
19 Also leave with you the observation that you
20 are, in many senses, the gatekeeper for the legal
21 profession in the state of Nevada, the entry point for a
22 lot of the citizens. And you provide a very important
23 function in that capacity.
24 MS. STURMAN: And, John, is there something --
25 maybe we should ask, is there more we could do at the State

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1 Bar level to help the clerks in the spread out
2 jurisdictions track these things?
3 I mean, maybe there is something logistical,
4 more information we could give to them that might help you.
5 You use our form. Is there any more that we could do that
6 makes that process any easier?
7 MS. SMITH: Perhaps let us know who has been
8 admitted from out of state.
9 MS. STURMAN: On a more regular basis. Maybe
10 they don't know. They may be doing all the cases in Reno,
11 not necessarily in this county. Maybe the State Bar should
12 give more information to our clerks.
13 JUSTICE BECKER: I don't think -- you need to
14 understand the clerks don't have the authority to refuse to
15 file.
16 What they will do, because Elko is small
17 enough, is they would talk to the chief judge, one of the
18 two judges, say, gee, I don't know what to do about this.
19 I guarantee you that is not going to occur in Clark County
20 with the volume.
21 That is not the statutory duty of the Clerk,
22 and the Supreme Court has, in fact, told them they cannot
23 simply say, You can't file a document.
24 CHAIRMAN WILSON: There has been some reference
25 to the mining companies. What has been their practice?

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1 MS. SMITH: Well, the only time that we would see
2 a mining company is if there is a big mining civil suit,
3 and then their attorneys come in, and we will end up filing
4 one of these forms.
5 I am trying to think of some of the --
6 Barrick, we have Barrick and Newmont who are two of the big
7 ones. Anglo Gold is another big one. They occasionally get
8 going with cases and they are voluminous, they file these.
9 They are very compliant with everything.
10 MR. KIMBROUGH: The State Bar staff is currently
11 in the process, with regular assistance from Rob, in
12 revamping all of our forms and procedures for SCR 42, and I
13 have just made a note to make sure once those new forms are
14 done that we will get that information out to all the
15 district clerks.
16 I really don't think I have ever focused on
17 the fact that you had the forms you passed out. So that is
18 helpful information.
19 MS. SMITH: If you would like to keep this and
20 you can look at our form, the form we have been using. It
21 may not even -- it might be old. I don't know. Once we
22 get one, we keep them.
23 MR. KIMBROUGH: I will defer to Rob, let Rob take
24 a look at it. Thank you. We appreciate it.
25 MS. SMITH: Thank you inviting me.

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1 CHAIRMAN WILSON: We appreciate you coming today.
2 This is kind of an unruly bunch.
3 Let's adjourn the public hearing and we'll simply
4 convene with the committee meeting right now.
5 (WHEREUPON, the public comment portion of the meeting
6 was concluded)
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