It's a crime for someone to practice law in Nevada if he or she is not legally authorized to do so. Penalties for unlawful practice of law (“UPL”) rarely involve incarceration…but it looks terrible on the person's record. Furthermore, UPL prosecutions are usually accompanied by related criminal charges, civil lawsuits and disciplinary actions.
On this page, Las Vegas defense attorneys explain the Nevada offense of the unauthorized practice of law. They include examples involving loan modification schemes as well as “notorio fraud.” Continue reading learn the law, defenses, and penalties for UPL.
Definition of Unlawful Practice of Law
In order to become a lawyer in Nevada, the person needs to apply to the State Bar of Nevada and pass the Bar Exam. Then in order to remain a lawyer in the state, the person must abide by various professional rules such as:
- Paying annual Bar dues, and
- Submitting annual reports to the Bar, and
- Completing annual quotas for Continuing Legal Education (“CLE”) in Nevada, and
- Following the Nevada Supreme Court's Rules of Professional Conduct for Attorneys. In other words, the attorney is obligated to act ethically.1
People who don't meet these requirements to become or remain a lawyer in Nevada may not provide legal services. Consequently, the legal definition of the Nevada crime of the “unauthorized practice of law” is when someone practices law under either of the following conditions:2
- The person is disbarred as an attorney by the Nevada State Bar. (This also includes situations where the person received a “disciplinary resignation” from the Nevada State Bar.)
- The person's law license is currently suspended by the Nevada State Bar.
- The person is currently an inactive member of the Nevada State Bar, which means that the attorney has voluntarily waived his/her authority to practice law in the state. This often happens if the person retires or moves to another state.
- The person has never been a member of the Nevada State Bar.
Aiding UPL in Nevada
Note that a licensed, active attorney may violate NRS 7.285 by helping
non-attorneys engage in the unauthorized practice of law. Henderson criminal defense attorney Michael Becker gives a common example involving loan modification scams:
John is a struggling Henderson attorney looking to make more money. He then agrees to allow his non-lawyer friend Max to open a loan modification office in John's name and to share the legal fees this office brings in.
However, John lets Max do all of the legal services and consult with clients without John's supervision. Meanwhile, the clients are misled into thinking John is in charge of their loan modifications. If caught, both John and Max could be booked at the Henderson Detention Center for the unauthorized practice of law (as well as for fraud charges relating to the loan modification).
In the above example, both Max and John are equally liable: Max for the unauthorized practice of law, and John for letting Max do all the legal work and defrauding clients into believing John was helming their cases.
Another common UPL case in Nevada involves immigration consulting fraud, also known as “notorio fraud.” “Notorios” are people who hold themselves out as immigration consultants to non-citizens seeking lawful residency or citizenship in the U.S. Las Vegas criminal defense attorney Neil Shouse gives an example:
In an effort to make money, Sid sets up an immigration consulting firm in Las Vegas that targets non-citizens looking to get Visas, green cards or citizenship in the U.S. Although Sid isn't a lawyer, he holds himself out as one and performs legal services for clients who believe his false advertising. If caught, Sid could be booked at the Clark County Detention Center for UPL as well as fraud.
Most notorio cases in the news involve unscrupulous scammers who charge hefty fees for services they never provide. And often their fraud causes permanent damage to their victim's cases, such as denial of lawful status and deportation. But even “competent” immigration consultants may face UPL charges if they perform legal services without being a licensed attorney.
Out of State Attorneys
Note that the Nevada Bar does not have “reciprocity” with other states. This means that out-of-state attorneys may not automatically become Nevada lawyers. Instead, they're required to apply to the Bar, pass the bar exam, and follow the rules of professional conduct like every other Nevada attorney.
However, note that there are rare circumstances where an attorney licensed in another state may temporarily engage in limited law practice in Nevada. These attorneys often need to seek permission from the Nevada State Bar first. And they have to follow Nevada's ethics rules regarding out-of-state attorneys. North Las Vegas criminal defense attorney Neil Shouse provides an illustration:
Jack is sued for medical malpractice in Nevada. He wants to hire Howard, a renowned California attorney, who specializes in medical malpractice cases. Howard contacts the Nevada State Bar and applies for “Pro Hac Vice,” asking permission to associate with a Nevada lawyer in order to represent Jack on the medical malpractice case in Nevada. If the application is granted, then Howard may practice law as Jack's attorney in his Nevada medical malpractice case without fear of breaking the law.
In the above example, Nevada Pro Hac Vice laws authorize Howard to practice law only as Jack's defense attorney for the pendency of the medical malpractice case. If he's caught practicing law for anyone else or in any other case, then he could face prosecution for unlawful practice of law in Nevada.
Other circumstances where out-of-state lawyers may legally practice law in Nevada are the following:3
- The lawyer participates in a Nevada investigation and discovery incident to litigation that is pending in another jurisdiction where the lawyer is admitted to practice. An example would be a California case involving Nevada corporations – a California attorney working on the case may be able to make evidence requests from Nevada.
- The lawyer is an employee of a client and is acting on behalf of the client in matters related to the client's business, provided that the lawyer is acting in Nevada on an occasional basis and not as a regular or repetitive course of business in this jurisdiction. An example would be a non-Nevada attorney who is “in-house counsel” for a company doing business in Nevada.
- The lawyer is acting with respect to a matter that is incident to work being performed in a jurisdiction in which the lawyer is admitted, provided that the lawyer is acting in Nevada on an occasional basis and not as a regular or repetitive course of business in this jurisdiction. An example would be a California attorney who won a California construction defect case against a Nevada company. If the Nevada company refuses to pay damages, the California attorney may then try to enforce a judgment against the Nevada company in Nevada.
- The lawyer is engaged in the occasional representation of a client in association with a lawyer who is admitted in Nevada and who has actual responsibility for the representation and actively participates in the representation, provided that the out-of-state lawyer's representation of the client is not part of a regular or repetitive course of practice in Nevada. An example is a California attorney who collaborates or “associates” with a Nevada attorney on a Nevada case as long as the California attorney remains behind the scenes, doesn't have final say, and doesn't sign off on legal documents.
- The lawyer is representing a client, on an occasional basis and not as part of a regular or repetitive course of practice in Nevada, in areas governed primarily by federal law, international law, or the law of a foreign nation. And example is a non-Nevada lawyer representing a party to a federal class-action lawsuit in Nevada Federal Court.
- The lawyer is acting as an arbitrator, mediator, or impartial third party in an alternative dispute resolution proceeding. An example is a non-Nevada attorney mediating a dispute between a landlord and a tenant trying to resolve their legal issues out of court.
Note that out-of-state lawyers and ex-Nevada lawyers aren't the only people susceptible to violating NRS 7.285. Anybody who provides legal services without authorization may be prosecuted, whether or not they have previous attorney experience.
Defenses to the Unauthorized Practice of Law
The most effective defenses to fight charges of the unlawful practice of law depend on the specifics of the case. Potential defenses include the following:
- Attorney supervision. Non-attorneys employed in law firms (such as law student associates and administrative assistants) may be able to perform limited law-related services as long as an attorney directs all the non-lawyers' writing, actions, and client communication. So if the defense attorney in a UPL case can show that no non-lawyer performed legal services without an attorney's regular oversight, supervision and approval, the charges may be dropped.
- No legal advice. People do not need an attorney's license to communicate legal information to others…in fact, may law professors are not licensed to be attorneys in the states where they teach. However, only attorneys may convey legal advice to clients or potential clients seeking legal counsel. If the prosecution in a UPL case can't prove beyond a reasonable doubt that the defendant conveyed any legal advice, the case should be dismissed.
- Attorneys unnecessary. Some law-related activities do not require a licensed attorney to do them. For instance, it's not a NRS 7.285 violation for a paralegal or investigator to take a sworn factual statement from a witness (as long as it didn't involve the exercise of professional legal judgment).4 If a court determines that the defendant didn't perform any service that could only be carried out by licensed attorneys, the defendant should not be held liable for UPL.
Note that it is not the unauthorized practice of law for a non-lawyer to represent him/herself in court. However, it is illegal for a non-lawyer to represent someone else in court.
Penalties for Unauthorized Practice of Law
The punishment for committing unlawful practice of law in Nevada depends on whether the defendant has previous UPL convictions:5
|Defendant's UPL Offense||Class of Crime||Criminal Sentence|
|1st offense within the last 7 years||misdemeanor in Nevada||· up to $1,000 in fines, and/or
· up to 6 months in jail
|2nd offense within the last 7 years||gross misdemeanor in Nevada||· up to $2,000 in fines, and/or
· up to 364 days in jail
|3rd or subsequent offense within last 7 years||category E felony in Nevada||· 1 to 4 years in Nevada State Prison, and
· maybe up to $5,000 in fines
Note that the judge may suspend the sentence and instead impose probation, which may include a jail sentence of up to 1 year.
Depending on the circumstances, people arrested for the unlawful practice of law may also face other criminal charges related to the case such as obtaining money by false pretenses in Nevada or federal bank fraud in Nevada. These penalties can involve several years in Nevada State Prison.
Nevada attorneys alleged to have committed the unauthorized practice of law also face disciplinary penalties from the Nevada State Bar. There are four different forms of possible punishments:6
- a reprimand letter kept on permanent file with the Nevada State Bar and a possible fine or restitution payment of up to $1,000, or
- a public reprimand published in local newspapers and official Nevada State Bar publications such as the Nevada Lawyer, or
- bar license suspension, or
- disbarment, which is permanent
Predictably, the more serious the ethics violation, the more serious the punishment.
Note that attorney disciplinary procedures are entirely separate from criminal cases. A hearing is conducted in front of the Nevada State Bar Disciplinary Board, which decides whether the attorney committed misconduct. However, the Nevada Supreme Court has jurisdiction to review cases where the attorney's license is suspended or revoked.
Victims in alleged cases of unauthorized practice of law may try to collect monetary damages through bringing a civil lawsuit. Possible civil causes of action include:
- breach of contract,
- unjust enrichment, and
- legal malpractice
Note that only attorneys may be sued for legal malpractice.
Arrested for UPL? Help is available…
If you are facing charges for the “unauthorized practice of law” in Nevada, phone our Nevada Criminal Defense Attorneys at 702-DEFENSE (702-333-3673) for a free phone meeting. We'll do everything to try to fight the charges so that your record stays clean and you keep your bar license.
We represent clients throughout Nevada, including Las Vegas, Henderson, Washoe County, Clark County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.
To learn about the California crime of unauthorized practice of law, go to our page on the California crime of the unauthorized practice of law.
2 NRS 7.285(1).
3 NV SCR 5.5(b).
4Jackson v. United Artist Theatre Circuit, Inc., 278 F.R.D. 586 (2011).
5 NRS 7.285(2).