Share |

President's Message: Unauthorized Practice of Law: Redux

Embedded Scribd iPaper - Requires Javascript and Flash Player
NEVADA LAWYER
EDITORIAL BOARD Michael T. Saunders, Chair Richard D. Williamson, Chair-Elect Erin Barnett, Vice-Chair Patricia D. Cafferata, Immediate Past Chair Gregory R. Shannon Elizabeth Fielder Stephen F. Smith Nancy Harkess Kristen E. Simmons Mark A. Hinueber Scott G. Wasserman Laury Macauley John Zimmerman Leon F. Mead II BOARD OF GOVERNORS President: Alan Lefebvre, Las Vegas President Elect: Elana Turner Graham, Las Vegas Vice President: Laurence Digesti, Reno Immediate Past President: Frank Flaherty, Carson City Paola Armeni, Las Vegas Ryan Russell, Carson City Elizabeth Brickfield, Las Vegas Bryan Scott, Las Vegas Julie Cavanaugh-Bill, Elko Richard Scotti, Las Vegas Richard Dreitzer, Las Vegas Ex Officio Eric Dobberstein, Las Vegas Dean Daniel Hamilton, Vernon (Gene) Leverty, Reno UNLV Boyd School of Law Paul Matteoni, Reno Richard Trachok, Chair Ann Morgan, Reno Board of Bar Examiners Richard Pocker, Las Vegas STATE BAR STAFF Executive Director: Kimberly K. Farmer Bar Counsel: David A. Clark Director of Finance & Information Systems: Marc Mersol Program Director: Lisa Dreitzer Asst. Director of CLE: Stephanie Hirsch NEVADA LAWYER STAFF Publications Manager: Jennifer Smith (jennifers@nvbar.org) Nevada Lawyer Coordinator: Melinda Catren (melindac@nvbar.org) Publications Specialist: Christina Alberts (christinaa@nvbar.org) GRAPHIC DESIGN Georgina Corbalan
Message from the President
By Alan J. Lefebvre, Esq., President, State Bar of Nevada
UNAUTHORIZED PRACTICE OF LAW: REDUX
The unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing. While we have dithered, others have not; they continue to “steal money” from our pockets. The greater evil, however, is that the same UPL bad-actors are fraudsters, stealing from the poor and undocumented. I wrote about the notario problem in the September 2013 issue of Nevada Lawyer. UPL is the broader category within which notario fraud takes place. I won’t repeat my observations from my October 2013 Nevada Lawyer column on how the evolution of supplying simple will forms has had a disastrous impact on our profession, resulting in a commodization of the practice. This month’s column picks up the tale from that point, reporting the rule-making progress on AB 74 by the very able staff of Nicole J. Lamboley, Chief Deputy Secretary of State. The September column included an abbreviated discussion of Assemblywoman’s Flores’ AB 74: a law which, frankly, scared the hell out of me as it wound through the last legislative session. (“What is Flores up to?” I fretted!) Here is a newsflash: Lucy Flores should get a “lawyer of the year” award for her foresight. A secondary effect of the law and its regulations is to protect the erosion of legal revenue. That was not the lawmaker’s purpose, but the consequences will benefit the profession, nonetheless. The regulations have added flesh and roll out simultaneously with the March 2014 edition of Nevada Lawyer. (The law went into effect on March 1, 2014).
ADVERTISING INDEX
ABA RETIREMENT FUNDS ............... 21 ALLISON MACKENZIE ..................... 39 CHARLESTON INSURANCE ............. 33 CLARK COUNTY BAR ASSOCIATION ... 43 FASTCASE ..................................... IBC FOREVER 99 REALTY....................... 10 GATSKI COMMERCIAL REAL ESTATE AGENCY......................... 37 GORDON & SILVER ........................... 8 HOLLAND & HART .......................... 15 HUTCHISON & STEFFEN ................. 22 JAMS.............................................. 27 KENDALL MEDIATION ..................... 18 LAW OFFICE OF DAVID E. WALTERS .. 34 LAW OFFICES OF NEAL HYMAN...... 13 LAWPAY ........................................ IFC LEGISLATIVE COUNSEL BUREAU ....BC MORRIS LAW GROUP ..................... 14 NEEMAN & MILLS .......................... 29 PUBLIC LAWYERS SECTION .............. 9 STATE BAR OF NEVADA .... 11, 32, 33, 45 VERITI CONSULTING ....................... 19
What Does Regulation of Document Preparation Service Mean?
1. The individual “document preparer” cannot be a documented felon. 2. The individual must come forward and complete enough paperwork to make Ron Paul and John Stossel spin like lathes. 3. The “preparers” (or “feral paralegals,” as attorney Marshal Willick prefers) will need to plaster their paperwork with enough warnings about the limitations of their undertakings that they will feel like swimming pool contractors on probation with the Nevada State Contractors Board.
4
Nevada Lawyer
March 2014
4. They can’t run afoul of constraints on the unlawful practice of law. Nevada law, from case law, defines “unlawful practice,” thusly: “Identifying two components to the practice of law:  (1) the exercise of professional judgment, which occurs when an informed or trained discretion is exercised in the selection or drafting of a document to meet a client’s legal needs, an intelligent choice is made between alternative methods of accomplishing the client’s desires, or advice that involves the application of legal principles is given;  and (2) application of legal principles to individual cases, which occurs when a particular form, document, or option is recommended to the client.” Fn 14, In Re: Discipline of Glen Lerner, Esq., Bar No. 4314, 124 Nev. Adv. Op. No. 100, (2008). Also, from In Re Lerner: “As stated by the Colorado Supreme Court, a ‘touchstone’ of whether an activity constitutes the unauthorized practice of law is whether an unlicensed person offers ‘advice or judgment about legal matters to another person for use in a specific legal setting.’  Similarly, a bankruptcy court applying Tennessee law stated that the practice of law ‘relates to the rendition of services for others that call for the professional judgment of a lawyer,’ that is, the lawyer’s ‘educated ability to relate the general body and philosophy of law to a specific legal problem of a client.’  The Ninth Circuit, applying Oregon law, likewise held that ‘the ‘practice of law’ means the exercise of professional judgment in applying legal principles to address another person’s individualized needs through analysis, advice, or other assistance.’ For example, simply providing forms or offering a service to type client-provided information onto the forms was not the practice of law, but advising the client about how to complete a form, e.g., what information to include and on what portions of the form, was the practice of law.” 5. The thin-line-walker needs a surety bond of $50,000. A fraudster won’t pass the insurance company’s underwriting guidelines to qualify for the issuance of bond and only the most stupid surety will issue bonds; the fraudsters are in automatic violation of the law if they go without one (they can post cash-in-lieu). 6. Substandard sureties will enter the market and feverishly write the product. 7. Litigators will line up to take cases against the bond producers, organized by a bar committee on the horizon of formation, the UPL Clearing House. (I have a chair of this organization in mind: Enrique Acuña, immediate past president of the Latino Bar Association.) Who would think! For once, a web of bureaucracy you gotta love!
Questions? Comments?
Nevada Lawyer welcomes feedback from our readers! Contact us at nvlawyer@nvbar.org.
March 2014 Nevada Lawyer 5

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
NevLawyer_March_2014_President's_Message.pdf670.36 KB