Wednesday, December 24, 2008

Employee's Unauthorized Practice Draws Reprimand

In an interesting bar discipline case, the Nevada Supreme Court imposed a public reprimand on an attorney for assisting in the violation of unauthorized practice rules as a result of conduct by his employee who was admitted to practice only in Arizona but located in the attorney's Nevada office:

Our prior precedent and authority from other jurisdictions support the conclusion that what constitutes the practice of law must be determined on a case-by-case basis, bearing in mind the overarching principle that the practice of law is involved when the activity requires the exercise of judgment in applying general legal knowledge to a client’s specific problem.  When the person engaged in the activity is a lawyer licensed in another state, we must also consider whether that activity may be permissible under Nevada’s limited exceptions for multijurisdictional practice, when the activity is limited and incidental to the lawyer’s representation of clients in his home state.

            Here, consideration of the key principle—exercise of legal judgment on a client’s behalf, together with ample authority from other jurisdictions faced with similar facts, demonstrates that Lerner’s employee without doubt engaged in the practice of law.  Also, the employee worked in Lerner’s Las Vegas office for Nevada clients, so he was not engaged in limited, incidental, multijurisdictional practice related to his representation of clients in Arizona, where he is licensed.  Consequently, the employee’s practice of law was unauthorized.  The employee’s activities were further performed as part of his regular duties, in conformity with the policies and practices of Lerner’s firm, and thus, Lerner assisted in the unauthorized practice of law.  We therefore conclude that clear and convincing evidence supports the violation of RPC 5.5.  We further agree with the hearing panel’s recommendation of a public reprimand as the appropriate discipline.

The employee met with potential clients, determined whether or not the firm would take the case , negotiated claims and was the client's sole contact at the firm. The court notes that the attorney sanctioned here had been the subject of three prior non-public reprimands for the identical conduct.  (Mike Frisch)

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