The Nevada Professional Conduct Rules
The Nevada Rules of Professional Conduct serve as the cornerstone of ethical and professional conduct for attorneys in the Silver State. Adopted in 2006 to align with the ABA Model Rules, these rules govern the practice of law and insulate the public and clients from any professional twist and/or impropriety. The rules impose upon legal professionals a core set of ethical responsibilities, such as competence, diligence, communication, and confidentiality, as well as compliance with the statutory and regulatory requirements of both the Nevada Supreme Court and Nevada legislature.
The Nevada Rules of Professional Conduct, along with Nevada Revised Statutes 7.105 and 7.1055, and other relevant statutes and rules, are designed to preserve the professionalism and integrity of the legal system, which has at its core the rule of law. As such, the Nevada Rules of Professional Conduct require lawyers to be ethical and respect their fellow lawyers and the judiciary in performing their professional responsibilities as officers of the court .
The Nevada Rules of Professional Conduct are necessarily broad. Their provisions are flexible and, in certain situations, allow a lawyer to act honestly and in good faith, such as under the doctrine of in re Lim. However, the Rules are not all-consuming. Look only at the Rules pertaining to conflicts of interest, for example, which are wide ranging in their interpretation and application. It is impossible to cite all the various examples of the application and interpretation of the Rules of Professional Conduct. See also Nevada Abuse of the Legal Process, applicable case law, and legal articles.
When the practical application and interpretation of the Nevada Rules of Professional Conduct are unclear, interpretation is left up to the discretion of the courts. The Nevada Supreme Court has the final say and politically may yield movements and/or influence in favor of one or another interpretation.
The Development of the Rules
The Nevada Rules evolved from 1976, when the state adopted the Code of Professional Responsibility until 2008 when the state adopted the Rules. The Nevada State Bar was formed in 1916 to consolidate the "admission, governance and discipline of the practice of law," prior to which these matters had been within the jurisdiction of the Nevada Supreme Court. In 1976, the handling of these functions was placed under the control of the State Bar, and a mandatory membership model was established, requiring all attorneys admitted to the bar to join the State Bar. It is important to note that the State Bar is not a unit of government or an agency of the State of Nevada, but rather is a non-profit corporation made up of lawyers practicing in Nevada. In the early years of the State Bar, there was little attention directed to the rules governing lawyers. The Rules were largely modeled after the American Bar Association’s green "Canons of Professional Ethics" adopted in 1908. The 1960 Model Code of Professional Responsibility supplanted the Canons in Nevada in 1971. Subsequent changes to the Rules were made in 1979, 1990, 1991, 1992, and 1993. In 1996 the Model Rules of Professional Conduct developed by the American Bar Association serving as the model for changes to the Nevada Rules of Professional Conduct. With the exception of the choice of law provisions and the provisions relating to changes in the rules, the text of the current Nevada Rules of Professional Conduct is identical to the corresponding Model Rules, incorporating the comments of the ABA Model Rules and the Comment thereon. (By contrast, there are subtle differences as between the ABA Model Rules and the Nevada Rules with respect to shall. See Model Rule 1.7 in comparison to NRPC 1.7). The 1994 revisions to this rule were not in response to a perceived need for change but rather were largely as a result of the need to transform language used in the rules as a result of the revisions to the Model Rules in 1993 that allowed for the use of the term "a lawyer" who may not be a partner or associate in a law firm. Rather, it was the intent of the committee to ensure that the Nevada Rules were internally consistent, and that the changes it did make to the words of the Model Rules were made deliberately not because of a perceived need for change but rather that the committee wished to be complete and consistent in all situations. The Nevada Rules of Professional Conduct remained unchanged until 2008. In 2007 a committee was established to review the State Bar’s ethical rules and study the relationship among the bar, the courts and the public. An extensive comment process was undertaken, with many problems and issues being addressed. After receiving numerous comments and hearing from numerous people in attendance at six public hearings, an Revised set of rules were developed, filed with the Nevada Supreme Court on November 17, 2008 and approved by the court on December 19, 2008 and became effective in 2009. Amendments to the Nevada Rules of Professional Conduct are made by the Supreme Court of Nevada, upon recommendation of the State Bar. The recommendations may come from the Standing Committee on Ethics and Professional Responsibility, the State Bar Professional Responsibility and Fee Disputes Committee, or from a special committee appointed by the State Bar Board of Governors.
The Foundations of Professional Conduct
While every jurisdiction has some version of a rules of professional conduct, the theme in Nevada, and all other states, is simply that lawyers must represent their clients with integrity. Nevada Rule 206 of Professional Conduct is in alignment with the American Bar Association Model Rules of Professional Conduct ("ABA") and their core values: the client has to be given loyal representation, competence, diligence, confidentiality, respect for the rights of third persons and the right to make decisions regarding the purpose of the representation. The six has to be balanced by the good lawyer. For instance, without the ability to act with reasonable diligence or competence (as defined in the rules), you will have no clients and no business.
Here are the six core values:
Integrity The foremost core value and the essence of the legal profession is integrity. Integrity must always be the cornerstone of your actions. You want to be credible and trustworthy, and the only way to have integrity is to be honest with yourself and others; this also means keeping your emotional distance away from the case and the parties involved.
Competence Your clients deserve to have you be competent in what you do. Being competent means that you know the law and the facts of your client’s case as well as the rules of procedure to properly represent them. This means that you have to do the necessary research if you do not know the law and you are comfortable in telling the Court that you are unfamiliar. Doing this gives the Court the correct perception that you know the applicable law. Otherwise, you will have lost your credibility.
Diligence Diligence speaks to the imperatives of a lawyer to act with commitment. You must pursue a matter with diligence and zeal. To do this effectively, you need to communicate with your clients so that they know and can appreciate your efforts.
Confidentiality This is probably the strongest rule in communications, and breaks down to be the attorney-client communication, and the attorney-bad communication. The first one, when as a lawyer you communicate a privileged communication between yourself and your client. Your client reasonably expects that their communications are going to be confidential; otherwise, they are not going to share all their information with you, and that will defeat the purpose of representing them. It’s important to clarify with your clients what is confidential and what is not. The second one is when a lawyer discloses client information to the bad guys. For example, if you have their computer and there is credit card information in there about a hundred of their clients. You cannot disclose that information that would reveal the identities of the clients unless they give you permission.
Respect for the rights of third persons As a lawyer, you are a zealous advocate for your client, but you have to be respectful of third personas rights. You cannot cause unnecessary harm that would damage them. You have to follow all court rules and judicial procedures.
Moral rectitude As lawyers, we have to be the moral compass for society. Because we understand the rule of law better than the average person, it is our duty to be the moral leaders in our society.
The Process of Discipline and Punishment
Violations of the Rules of Professional Conduct can result in serious consequences for Nevada lawyers, clients and the public. The Nevada Supreme Court is entrusted with the responsibility of regulating the practice of law in the state. To that end, under Supreme Court Rule 105, violations of the Rules of Professional Conduct are grounds for discipline, including disbarment, suspension, public reprimand or private reprimand.
The power to impose sanction is held solely by the Supreme Court. The State Bar of Nevada, Office of Bar Counsel, is responsible for investigating and processing lawyer discipline cases filed against lawyers practicing in Nevada.
Most discipline cases are opened with a Request for Investigation made by a lawyer, client or interested third party. An investigation of the allegations is conducted. If a violation is deemed to have occurred, a formal complaint alleging a violation of the Nevada Rules of Professional Conduct will be filed and the lawyer charged may file an Answer. Even if the lawyer admits to the charges, an Answer must be filed. A Hearing Panel of at least two Bar Counsel and a lay person will be convened to hear the evidence in the case and will render a decision on the merits. In cases where disbarment is the result, or where aggravating factors exist, the Supreme Court is the final panel of decision making pursuant to SCR 105. Also, the Supreme Court has the final jurisdiction over lawyer discipline as codified under SCR 109 through SCR 121.
Any disciplinary sanction imposed by the Bar Counsel/Hearing Panel is for the public only; the Nevada Supreme Court has final jurisdiction over suspension, disbarment and reinstatement of lawyers to the Bar.
Lawyers facing charges of ethical violations are strongly encouraged to seek legal representation and advice before responding to any allegations.
The Role of the Nevada Bar
The Nevada State Bar plays a pivotal role in enforcing and updating the Rules of Professional Conduct for lawyers in the state. The state bar is tasked with aiding in the education of legal professionals, while also ensuring that lawyers adhere to the established professional standards. The bar takes these responsibilities seriously, seeking to provide continuing legal education (CLE) programs to help attorneys understand the Rules of Professional Conduct and the ethical standards they are expected to follow.
These CLE programs help lawyers stay informed and compliant with the rules and state regulations, and they must be taken as a condition of maintaining a license to practice law. Counselors must complete 12 credit hours of state-approved CLE programs within one-year timeframes, including two hours of ethics training. In addition, attorneys should remain informed on updates to the Rules of Professional Conduct, including recent amendments to Nevada’s rules regarding marketing and advertising from 2011 . In general, the state of Nevada has been strict in its adherence to the ABA Model Rules, with only minor nuances that differ from those espoused by the ABA.
Lawyers who fail to comply with the Rules of Professional Conduct, its opinions and its updated amendments may face discipline from the Nevada State Bar. In the case of serious ethical violations, lawyers may even be subjected to disbarment or suspension. The state bar will proceed with a disciplinary hearing to evaluate evidence of professional misconduct against the attorney in question. These hearings are separate from civil or criminal proceedings, as the bar will not act on misdemeanor offenses or infractions.
The board of governors of the state bar approves all lawyer discipline matters, and the bar’s disciplinary counsel will prosecute the charges against the lawyer. In addition, the state bar will appoint a hearing panel to conduct the hearing and make any recommended findings of fact and conclusions of law pursuant to the evidence. It will then make any recommendations for disciplinary actions to the board of governors based on the hearing panel findings.
Limitations and Critiques
For critics, the Nevada RPC are not without their challenges. Lack of awareness of the RPC may lead lawyers to violate them, not necessarily due to cavalier approaches to the practice, but simply out of ignorance. The RPC are not easy to digest, and not readily accessible to the general public. Available through the Supreme Court’s website, the RPC are not organized into chapters or otherwise cataloged, so that they may be perused in a logical fashion. There is no annotated version of the RPC available online. Links to the RPC are not provided on the State Bar of Nevada’s website, which is very much focused on the attorney-client relationship.
Traditional legal ethics codes are often criticized for their rigidity, especially in uncomfortable cases. In a recent scholarly article, Rebecca Hanner White at the University of Arkansas School of Law argues that the definition of the "practice of law" in the RPC as the provision of legal services to a client lacks flexibility, and that the RPC are in need of reform. Such changes might include changing the definition of what constitutes the "practice of law." Under the RPC, the "practice of law" is defined as "providing legal services." Similarly, the RPC defines the role of the "client" as a person or entity "to whom a lawyer provides legal services." Keeper of the Corporations Division of the Secretary of State’s Office, Lesley Cummings, claims that the approval of filing fees for the electronic submission of documents over the internet could expose Nevada lawyers who file documents electronically to liability under this definition. Particularly with regards to potentially deceptive entities such as shell corporations, this could subject Nevada lawyers to censure proceedings.
The RPC’s provisions on mediation also received criticism. They state that, in addition to the normal standard of an adequate amount of preparation for a mediation, counsel have a duty to be "reasonably competent to handle the matter" and to "consider the economic interests involved." This was deemed to be too vague, especially when compared to other guidelines in the RPC, which were deemed to contain more specificity. In addition, the RPC do not contain provisions on advocacy before administrative tribunals, as other state RPC do. Admittedly, the RPC only governs the conduct of lawyers in Nevada, so it is largely outside the scope of administrative tribunals.
Violations in Practice
In practical terms, Nevada lawyers should consider regularly reviewing the Nevada Rules of Professional Conduct as well as the available Nevada bar publications on ethics for guidance on their individual practices. The Supreme Court of Nevada issues Formal Opinions which are "designed to furnish a lawyer with an analysis of a specific situation involving potential disciplinary issues, and to offer an informed opinion on professional conduct." The ink on the Nevada Rules of Professional Conduct is far from dry, and these publications and the well-reasoned arguments presented provide lawyers with invaluable insight into how the rules may be applied in practice. Nevada lawyers should also consider developing and using a system to help improve compliance with the Nevada Rules of Professional Conduct. This is perhaps the most important tip. Every lawyer should consider keeping a "cheat sheet" of the Nevada Rules of Professional Conduct on hand for reference purposes. The cheat sheet could be organized by category (e.g . , trust accounts, competence, conflicts) with the applicable rules and sample questions for self-assessment or a short explanation of the rule. While reading through the rules can seem daunting, the cheat sheet can serve as a convenient reminder of which rules may not be at the forefront of the reader’s mind. Leverage your own network of Nevada lawyers for useful tips and advice. While formal settings—such as MCLEs or roundtable discussions—can be very helpful, informal discussions with fellow Nevada lawyers can provide practical and specific examples of the how rules are applied in practice rather than theory. Consider asking your social and professional network how they maintain Nevada Rules of Professional Conduct compliance. As with anything in life, balancing the rules of professional conduct with real-world practice can be difficult. However, the Legal Ethics and Malpractice Blog are a valuable resource for an understanding of ethics and the Nevada legal profession generally. In particular, readers should check out the Rule-of-the-Month series to stay current on the latest ethics-related news and developments.