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Drawing a Line in the Sand Against Unauthorized Practice of Law

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DRAWING A LINE IN THE SAND AGAINST
UNAUTHORIZED
PRACTICE OF LAW
BY JON ERIC GARDE, ESQ.
AB74 was enacted June 12, 2013 (effective March 1, 2014), to prevent the unauthorized practice of law (UPL) by permitting unsupervised non-attorneys to assist clients only through entities called document preparation services (DPS).1 Codified as NRS § 240A, AB74 defines what a DPS can and cannot do and requires the creation of a document trail as supportive evidence of UPL, when committed. A DPS, for a fee, can prepare documents concerning “legal matters,” defined, in part, as pertaining to a client’s legal rights, benefits and obligations.2 Document preparers must use information provided solely by the client to complete pre-fabricated legal forms and cannot give legal opinions or advice, including indicating which forms to use.3 NRS § 240A thus distinguishes documentation preparation from the practice of law. DPS clients remain self-represented absent legal counsel.4
Document preparers must be US citizens or permanent residents, must annually register with the Nevada Secretary of State and are assigned a registration number. Registration entails submission of the applicant’s name, address, telephone number, fingerprints, and information concerning convictions for gross misdemeanors, felonies or crimes involving theft or fraud, evasive or immoral behavior such as child support arrears, or disbarment from law practice or other professional licensure. They must report material changes within 30 days to the Secretary of State and must renew their certificate within 30 days of expiration with no extensions allowed.5 A $50,000 bond must be posted during registration to pay damages resulting from fraud or incompetence.6 Registrants are issued a Certificate of Registration, featuring the business name, address and registration number, that must be conspicuously posted in their place of business. Additional notice must be conspicuously posted in the document preparer’s place of business, on a sign measuring at least 12 x 20 inches, written in English or the customer’s language and stating that:
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April 2014
1. The document preparer is not an attorney and cannot provide legal advice or legal representation to any person; 2. The full name of all registered document preparers working in that office; 3. A list of services provided and the price for each service; and 4. Information about the bond, the bond amount and the bond number filed by the registrant.7 A DPS must provide clients with a contract written in English and the client’s primary language, signed by the business and the client, which provides: 1. An explanation of the services performed for the client by the document preparer; 2. The anticipated time in which the documents will be completed, at what court or agency the documents will be filed or submitted, and any hearing dates or deadlines for filing or submittal by that court or agency; 3. That the document preparer is not an attorney licensed in Nevada and cannot provide legal advice or legal representation to any person; 4. That any complaint against the document preparer can be filed at the Secretary of State or with the Bar Counsel of the State Bar of Nevada, depending on the type of alleged violation, including contact information for both of agencies; and 5. The date that the client signed the contact. At any time, a client can void a contract that does not comply with these requirements.8 An additional signed notice must be provided to each client, written in English and the client’s primary language, read to and comprehended by the client, stating: 1. The full business name and contact information for the company including the name of the person(s) who must be notified of any lawsuit filed against them; 2. That the document preparer is not an attorney licensed in Nevada and cannot provide legal advice or legal representation to any person; 3. That unless the document preparer is a licensed attorney in another state, any conversation between the client and the document preparer is not protected by the attorney client privilege and can be disclosed to other persons; 4. Information about the bond filed by the registrant, including the amount and bond number; and 5. The expiration date of any state, city and/ or county business licenses of the document preparer. 9 Document preparers must provide receipts and monthly billing statements to clients for all payments for services. Receipts must be printed or typewritten and must include the letterhead and name of the
document preparer, the DPS’s business address and telephone number, and the preparer’s registration number and taxpayer identification number.10 AB74 is also understood by identifying parties exempted from registration, including:
1. Secretarial/receptionist services; 2. Licensed attorneys or their employees acting within the scope of their employment; 3. Law students certified by the State Bar of Nevada for training; 4. Government entities or employees acting within the scope of their employment, 5. A nonprofit organization qualifying for tax exempt status per 26 USC § 501(c), that provides free legal services; 6. A legal aid service accredited by the state bar, an accredited law school, a government entity or an employee acting within the scope of their employment;
Document preparers must be U.S. citizens or permanent residents, must annually register with the Nevada Secretary of State and are assigned a registration number.
continued on page 32
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Nevada Lawyer
31
DRAWING A LINE IN THE SAND AGAINST UNAUTHORIZED PRACTICE OF LAW
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professional relationship with law offices as camouflage to evade 7. A military legal aid office, employee or assigned registration. Secondly, qualification for non-profit status under person acting within the scope of that employment or 26 USC 501(c) requires the DPS to have either last filed federal assignment; taxes under 501(c) designation or to have received a written 8. Any person providing services regulated under federal appointment letter from the IRS providing 501(c) designation. law; This provision is crucially important, 9. A BIA or DHS accredited because applications for non-profit status representative handling immigration All in all, NRS §240A sets can extend for years, creating opportunity to matters; and up a detailed paper trail, evade registration. 10. A corporation, limited liability All in all, NRS §240A sets up a the absence of which company or other business entity detailed paper trail, the absence of which creates liability. providing itself such services creates liability. Yet, compliance empowers through its own officers, executives, complainants with a strong chance to managers or employees acting within prevail against systematic offenders. NRS the scope of their employment. § 240A requires the Secretary of State to set up a complaint process by phone and online registration. The Secretary of Regulations have closed two statutory loopholes State can conduct an investigation and, upon finding culpable preventing non-attorneys from evading registration. Firstly, conduct, can issue a cease and desist order, initiate proceedings a more precise definition of employee has been promulgated to suspend or revoke registration and transfer matters to the to exclude “independent contractors or persons rendering State Attorney General to issue civil sanctions, or to the State professional services to an employer on a fee, retainer or contract District Attorney for criminal prosecution within the county basis.” Thus, independent paralegal services cannot use their where the business is located or the document preparer resides.
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Civil sanctions include: 1. OPEN Injunctive relief against a person who violates or POSITIONS threatens to violate a provision of the law or a regulation STATE OF NEVADA or orderBAR adopted or issued pursuant thereto; Of  ce of Bar Assistant Counsel, 2. Fines ranging Counsel, from $100 to $5,000 Bar for each violation; Vegas Ofce for any suffered pecuniary loss; or 3. Las Orders of restitution position. Applicants must be attorneys 4. Prosecutorial Any combination of these remedies.
providers, to enforce NRS § 240A. Accordingly, prospective judgments should provide our state legislature with incentive to TIRED OF WATCHING YOUR BACK? 40 year Elko-based fund state enforcement. civil/commercial/Litigation practice in booming economy
for sale, all FFE-networked computer systems [substantial Pleading, Business Law, and other Nevada compliant Formats] great street frontage with 12,000+daily trafc 1 Intr. Assemblywoman Flores, Jan. 31, 2013; signed by Gov. count, Walking distance to Courthouse, great Lease and Sandoval, June 12, 2013. more-$135,000.00 – Down, nancing, and transition 2 much AB 74, § 5.3 (which provides a catch-all phrase subsuming § 5) period negotiable – go to elkocva.com to learn more about 3 Id, § 4.1.a (holding that a “[d]ocument preparation service” means this superwho… County Call (775) 738-2525. a person [f]or compensation and at the direction of a client,
classifieds
licensed to practice, and in good standing, in any jurisdiction of the United States. Non-Nevada licensed Penalties are must paid to thethe Secretary of State, includingand the attorneys pass Nevada bar examination cost of enforcement and attorney’s fees. become licensed in Nevada. Desirable attributes include: Criminal penalties, do not excellent include felony convictions, litigation and trialwhich experience, legal research and are slightly enhanced, compared to those set forth under NRS the writing skills, and knowledge of Supreme Court Rules, Rules ofdefine Professional Conduct and disciplinary procedure. § 7.285, which UPL. Willful violations of the document Submit resume, sample and salary history tofirst preparation statute bringwriting a misdemeanor conviction for the hrdiscipline@nvbar.org or fax (702) 382-8747. infraction within the preceding five years. The second infraction
within five years brings a gross misdemeanor conviction (not more than a year in county jail) with a maximum fine of $10,000, or both.OFFICE The criminal SPACE court may also order payment of restitution in cases involving a pecuniary loss. Any infraction committed Premium executive legal ofce space, Henderson (1060 after receipt of an order by the Secretary of State evidences Wigwam Parkway), right off the I-215 and US95; includes intentional conduct when involving the same form of activity le storage, copy room, receptionist, secretarial space, fax, leading to a conviction. internet; four ofces available; call Steve Day or James Enforcement provisions are presently unfunded; however, Nance at (702) 309-3333. the Secretary of State reports the ability to absorb registration within its present budget. Yet, NRS § 240A creates a private Ofce space for lease. $500-$700 per month, common civil cause of action and, factoring in the $50,000 bond and reception area, conference rooms, internal bathrooms, the provision ofcommon double damages, attorney’s fees and costs, Near utilities, area cleaning and parking included. ample incentive exists forFor private attorneys, including legalinfo@ aid Jones and US95. more details (702) 538-9300,
vandermaylawrm.com
provides advice or assistance to the client in a legal matter…”) & § 20. 4 Id, §§ 3.1 & 3.2 5 Id, § 7 6 Id, § 9 – Board-certied, court-qualied doctorate 7 TOXICOLOGY Id, § 13 toxicologist, 25+ years experience. Former 8 level Id, §forensic 15 lab director. Specialties: medical malpractice, 9 NV Id, Licensed § 14 DUI drugs 10 Id, § 19 and alcohol, postmortem toxicology, employment
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serves as vice chair of Nevada’s Chapter of the American Immigration Lawyers Association and, MONITORED & RESERVED PARKING for and as AILA Consumer Protection Liaison,SPACES has lectured attorneys and runners available directly across from the published on various topics, and litigates frequently. Clark County Justice Center. Park at 525 S. Third St., at
Bonneville. Call Peter Koppe at (702) 254-5766.
CONTRACT ATTORNEY Supreme Court University of Former BuffaloNevada Law School in 1992. staff attorney available forthe contract work.Social Experienced He directed Lutheran Ministry in research Immigration and writing motions and for statebefore and Project inbriefs Las Vegas, federal courts. Efcient and meticulous work at commencing private practice in reasonable 1995. Garde rates. Fast results. Contact Leslie.wolf@charter.net.
JON ERIC GARDE graduated from
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