ADOPTED
BY THE
SUPREME COURT OF NEVADA
____________
Effective May 1, 2006
and Including
Rules Current Through September 1, 2007
Rule 1.0. Terminology. As used in these Rules, the following terms shall have the meanings ascribed:
(a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.
(b) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
(c) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.
(d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.
(e) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
(f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
(g) “Partner” denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.
(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
(j) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
(l) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.
(m) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.
(n) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A “signed” writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
(o) “Organization” when used in reference to “organization as client” denotes any constituent of the organization, whether inside or outside counsel, who supervises, directs, or regularly consults with the lawyer concerning the organization’s legal matters unless otherwise defined in the Rule.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.0 is the same as ABA Model Rule 1.0 except that it includes a definition of “organization.”
Rule 1.0A. Guidelines for Interpreting the Nevada Rules of Professional Conduct. The preamble and comments to the ABA Model Rules of Professional Conduct are not enacted by this Rule but may be consulted for guidance in interpreting and applying the Nevada Rules of Professional Conduct, unless there is a conflict between the Nevada Rules and the preamble or comments. The following guidelines for interpreting and applying the Nevada Rules of Professional Conduct are hereby adopted:
(a) The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role.
(b) For purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as the duty of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
(c) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
(d) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.0A is a Nevada-specific Rule. The language at the beginning of the Rule is based on former Supreme Court Rule 150(2). Paragraphs (a)-(d) incorporate language from paragraphs 14, 17, 19, and 20 of the Scope section of the ABA Model Rules.
CLIENT-LAWYER RELATIONSHIP
Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.1 (formerly Supreme Court Rule 151) is the same as ABA Model Rule 1.1.
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.2 (formerly Supreme Court Rule 152) is the same as ABA Model Rule 1.2.
Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.3 (formerly Supreme Court Rule 153) is the same as ABA Model Rule 1.3.
Rule 1.4. Communication.
(a) A lawyer shall:
(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required by these Rules;
(2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) Keep the client reasonably informed about the status of the matter;
(4) Promptly comply with reasonable requests for information; and
(5) Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
(c) Lawyer’s Biographical Data Form. Each lawyer or law firm shall have available in written form to be provided upon request of the State Bar or a client or prospective client a factual statement detailing the background, training and experience of each lawyer or law firm.
(1) The form shall be known as the “Lawyer’s Biographical Data Form” and shall contain the following fields of information:
(i) Full name and business address of the lawyer.
(ii) Date and jurisdiction of initial admission to practice.
(iii) Date and jurisdiction of each subsequent admission to practice.
(iv) Name of law school and year of graduation.
(v) The areas of specialization in which the lawyer is entitled to hold himself or herself out as a specialist under the provisions of Rule 7.4.
(2) Upon request, each lawyer or law firm shall provide the following additional information detailing the background, training and experience of each lawyer or law firm, including but not limited to:
(i) Names and dates of any legal articles or treatises published by the lawyer, and the name of the publication in which they were published.
(ii) A good faith estimate of the number of jury trials tried to a verdict by the lawyer to the present date, identifying the court or courts.
(iii) A good faith estimate of the number of court (bench) trials tried to a judgment by the lawyer to the present date, identifying the court or courts.
(iv) A good faith estimate of the number of administrative hearings tried to a conclusion by the lawyer, identifying the administrative agency or agencies.
(v) A good faith estimate of the number of appellate cases argued to a court of appeals or a supreme court, in which the lawyer was responsible for writing the brief or orally arguing the case, identifying the court or courts.
(vi) The professional activities of the lawyer consisting of teaching or lecturing.
(vii) The names of any volunteer or charitable organizations to which the lawyer belongs, which the lawyer desires to publish.
(viii) A description of bar activities such as elective or assigned committee positions in a recognized bar organization.
(3) A lawyer or law firm that advertises or promotes services by written communication not involving solicitation as prohibited by Rule 7.3 shall enclose with each such written communication the information described in paragraph (c)(1) of this Rule.
(4) A copy of all information provided pursuant to this Rule shall be retained by the lawyer or law firm for a period of 3 years after last regular use of the information.
[Added; effective May 1, 2006; as amended; effective September 1, 2007.]
Model Rule Comparison—2007
Rule 1.4 (formerly Supreme Court Rule 154) is the same as ABA Model Rule 1.4, except that the 2007 amendments include language in paragraph (c) that was previously part of repealed Rule 7.2A(a) through (d) and (f) (formerly Supreme Court Rule 196.5) which is Nevada-specific language and has no counterpart in the Model Rules.
Rule 1.5. Fees.
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing, signed by the client, and shall state, in boldface type that is at least as large as the largest type used in the contingent fee agreement:
(1) The method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
(2) Whether litigation and other expenses are to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated;
(3) Whether the client is liable for expenses regardless of outcome;
(4) That, in the event of a loss, the client may be liable for the opposing party’s attorney fees, and will be liable for the opposing party’s costs as required by law; and
(5) That a suit brought solely to harass or to coerce a settlement may result in liability for malicious prosecution or abuse of process.
Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
(2) A contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) Reserved;
(2) The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
(3) The total fee is reasonable.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.5 (formerly Supreme Court Rule 155) is the same as ABA Model Rule 1.5 with two exceptions. First, unlike the Model Rule, paragraph (c) of the Nevada Rule is divided into subparagraphs. The provisions in subparagraphs (4) and (5) are specific to the Nevada Rule; there is no Model Rule counterpart to those provisions. Second, subparagraph (1) of paragraph (e) of the Model Rule has not been adopted. This subparagraph is reserved to maintain consistency with the Model Rules format. Compare Model Rules of Prof’l Conduct R. 1.5(e)(1) (2004) (“the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation”).
Rule 1.6. Confidentiality of Information.
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraphs (b) and (c).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) To prevent reasonably certain death or substantial bodily harm;
(2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer’s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action;
(3) To prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action;
(4) To secure legal advice about the lawyer’s compliance with these Rules;
(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(6) To comply with other law or a court order.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent a criminal act that the lawyer believes is likely to result in reasonably certain death or substantial bodily harm.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.6 (formerly Supreme Court Rule 156) is the same as ABA Model Rule 1.6 with three exceptions. First, paragraph (b)(2) addresses the same subject matter as paragraph (b)(2) of the Model Rule, but the language is Nevada specific and is based on former Supreme Court Rule 156(3)(a). Second, paragraph (b)(3) addresses the same subject matter as paragraph (b)(3) of the Model Rule, but the language is Nevada specific and is the same as former Supreme Court Rule 156(3)(a), with the addition of the word “mitigate.” Third, paragraph (c) is Nevada specific and mandates disclosure under circumstances covered by paragraph (b)(1) when a criminal act is involved.
Rule 1.7. Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) The representation is not prohibited by law;
(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) Each affected client gives informed consent, confirmed in writing.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.7 (formerly Supreme Court Rule 157) is the same as ABA Model Rule 1.7.
Rule 1.8. Conflict of Interest: Current Clients: Specific Rules.
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client gives informed consent;
(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) Information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) Settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) Acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
(2) Contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. This paragraph does not apply when the client is an organization.
(k) A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person whom the lawyer knows is represented by the other lawyer except upon informed consent by the client after consultation regarding the relationship.
(l) A lawyer shall not stand as security for costs or as surety on any appearance, appeal, or other bond or surety in any case in which the lawyer is counsel.
(m) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs, with the exception of paragraph (j), that applies to any one of them shall apply to all of them.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.8 (formerly Supreme Court Rule 158) is the same as ABA Model Rule 1.8 with three exceptions. First, paragraph (j) is the same as the Model Rule except that its prohibition does not apply when the client is an organization. Second, paragraph (k) is specific to the Nevada Rule, retained from former Supreme Court Rule 158(9), and has no counterpart in the ABA Model Rule. Third, paragraph (l) is specific to the Nevada Rule, retained from former Supreme Court Rule 158(11), and has no counterpart in the ABA Model Rule. Like the ABA Model Rule, the Nevada Rule specifies that the prohibitions in the Rule, except for the prohibition on sexual relationships, also apply to all lawyers associated in a firm with the personally prohibited lawyer. This provision appears in paragraph (m) of the Nevada Rule and paragraph (k) of the Model Rule.
Rule 1.9. Duties to Former Clients.
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) Whose interests are materially adverse to that person; and
(2) About whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
(3) Unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.9 (formerly Supreme Court Rule 159) is the same as ABA Model Rule 1.9.
Rule 1.10. Imputation of Conflicts of Interest.
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.9, or 2.2, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) Reserved.
(e) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless:
(1) The personally disqualified lawyer did not have a substantial role in or primary responsibility for the matter that causes the disqualification under Rule 1.9;
(2) The personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(3) Written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.10 (formerly Supreme Court Rule 160) is the same as ABA Model Rule 1.10 with two exceptions. First, the Rule does not include paragraph (d) of the Model Rule. That paragraph is reserved to maintain consistency with the format of the Model Rule. Second, paragraph (e) of the Rule permits screening of lateral attorney hires to avoid imputed disqualification. The Model Rule does not permit screening in that situation.
Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees.
(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) Is subject to Rule 1.9(c); and
(2) Shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) Is subject to Rules 1.7 and 1.9; and
(2) Shall not:
(i) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) Negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by, and subject to the conditions stated in, Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) Any other matter covered by the conflict of interest rules of the appropriate government agency.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.11 (formerly Supreme Court Rule 161) is the same as ABA Model Rule 1.11.
Rule 1.12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral.
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.12 (formerly Supreme Court Rule 162) is the same as ABA Model Rule 1.12.
Rule 1.13. Organization as Client.
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information related to a lawyer’s retention by an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer’s actions taken pursuant to paragraphs (b) or (c) or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal.
(f) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client to the constituent and reasonably attempt to ensure that the constituent realizes that the lawyer’s client is the organization rather than the constituent. In cases of multiple representation such as discussed in paragraph (g), the lawyer shall take reasonable steps to ensure that the constituent understands the fact of multiple representation.
(g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
[Added; effective May 1, 2006; as amended; effective January 1, 2007.]
Model Rule Comparison—2006
Rule 1.13 (formerly Supreme Court Rule 163) is the same as ABA Model Rule 1.13 with four exceptions. First, paragraph (b) of the Rule covers the same subject matter as paragraph (b) of the Model Rule but is substantively different from the Model Rule. The Rule includes factors that the lawyer should consider in determining how to proceed under the Rule, specifies that any “measures taken shall be designed to minimize disruption of the organization and the risk of revealing” confidential information “to persons outside the organization,” and identifies some specific measures that may be taken. Second, paragraph (c) of the Rule addresses the same subject matter as paragraph (c) of the Model Rule—what the lawyer should do if the lawyer’s efforts under paragraph (b) are unsuccessful—but the text is different from the Model Rule. Whereas the Model Rule permits the lawyer to then reveal confidential information in certain circumstances whether or not Rule 1.6 permits the disclosure, the Nevada Rule provides that the lawyer may resign in accordance with Rule 1.16. The Nevada lawyer would only be permitted to make disclosures allowed by Rule 1.6. Third, paragraph (d) of the Model Rule has not been included. The paragraph has been reserved to maintain consistency with the Model Rules format. Fourth, paragraph (e) of the Model Rule has not been included. The paragraph has been reserved to maintain consistency with the Model Rules format.
Model Rule Comparison—2007
Rule 1.13 is amended, effective January 1, 2007, to conform to ABA Model Rule 1.13 with only one exception. Paragraph (f) includes Nevada-specific language. The Model Rule provides that when dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, the lawyer has to explain the identity of the client “when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” The former Nevada Rule was consistent with the Model Rule. The amended Nevada Rule, however, departs from the Model Rule on this point by deleting the above-quoted language and requiring that the lawyer explain the identity of the client to the constituent “and reasonably attempt to ensure that the constituent realizes that the lawyer’s client is the organization rather than the constituent.” The final sentence of the paragraph is also Nevada-specific language.
Rule 1.14. Client With Diminished Capacity.
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.14 (formerly Supreme Court Rule 164) is the same as ABA Model Rule 1.14.
Rule 1.15. Safekeeping Property.
(a) A lawyer shall hold funds or other property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. All funds received or held for the benefit of clients by a lawyer or firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts designated as a trust account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property in which clients or third persons hold an interest shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of seven years after termination of the representation.
(b) A lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.
(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of funds or other property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the funds or other property as to which the interests are not in dispute.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.15 (formerly Supreme Court Rule 165) is the same as ABA Model Rule 1.15 with modifications in paragraph (a) to specify that client trust accounts must be designated as such.
Rule 1.16. Declining or Terminating Representation.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) The representation will result in violation of the Rules of Professional Conduct or other law;
(2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) The lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) Withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) The client has used the lawyer’s services to perpetrate a crime or fraud;
(4) A client insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement;
(5) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) Other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.16 (formerly Supreme Court Rule 166) is the same as ABA Model Rule 1.16.
Rule 1.17. Sale of Law Practice. A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, in the geographic area or jurisdiction in which the practice has been conducted for a reasonable period of time, in no case less than 6 months, to be set forth in the written agreement for the sale of the practice. In the event a specific term is not set forth in writing, a term of 6 months shall apply for the purposes of this Rule;
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller’s clients regarding:
(1) The proposed sale;
(2) The client’s right to retain other counsel or to take possession of the file; and
(3) The fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within 90 days of receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 1.17 is a new rule. It is the same as ABA Model Rule 1.17 except for the language added to the end of paragraph (a) of the Nevada Rule regarding the 6-month time period.
Rule 1.18. Duties to Prospective Client.
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) Both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) Written notice is promptly given to the prospective client.
(e) A person who communicates information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, or for purposes which do not include a good faith intention to retain the lawyer in the subject matter of the consultation, is not a “prospective client” within the meaning of this Rule.
(f) A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.
(g) Whenever a prospective client shall request information regarding a lawyer or law firm for the purpose of making a decision regarding employment of the lawyer or law firm:
(1) The lawyer or law firm shall promptly furnish (by mail if requested) the written information described in Rule 1.4(c).
(2) The lawyer or law firm may furnish such additional factual information regarding the lawyer or law firm deemed valuable to assist the client.
(3) If the information furnished to the client includes a fee contract, the top of each page of the contract shall be marked “SAMPLE” in red ink in a type size one size larger than the largest type used in the contract and the words “DO NOT SIGN” shall appear on the client signature line.
[Added; effective May 1, 2006; as amended; effective September 1, 2007.]
Model Rule Comparison—2007
Rule 1.18 is the same as ABA Model Rule 1.18 except for the addition of two provisions—paragraphs (e) and (f). The first clause of paragraph (e) regarding communications “without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship” is based on comment 2 to the Model Rule. The second clause of paragraph (e) regarding “purposes which do not include a good faith intention to retain the lawyer in the subject matter of the consultation” is Nevada specific. Paragraph (f) is taken from comment 5 to the Model Rule. The 2007 amendment added paragraph (g). The language in this paragraph was previously part of repealed Rule 7.2A(e) (formerly Supreme Court Rule 196.5) which is Nevada-specific language and has no counterpart in the Model Rules.
COUNSELOR
Rule 2.1. Advisor. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 2.1 (former Supreme Court Rule 167) is the same as ABA Model Rule 2.1.
Rule 2.2. Intermediary.
(a) A lawyer may act as intermediary between clients if:
(1) The lawyer consults with each client concerning the implications of the common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client’s consent to the common representation;
(2) The lawyer reasonably believes that the matter can be resolved on terms compatible with the clients’ best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and
(3) The lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in subsection 1 is no longer satisfied. Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 2.2 (formerly Supreme Court Rule 168) is based on 1983 Model Rule 2.2. The ABA House of Delegates deleted Model Rule 2.2 and incorporated it into the comments to Model Rule 1.7 in 2002. The Rule has been retained in Nevada because Nevada has not adopted comments to the Rules and the Rule provides some guidance in clarifying conflict of interest concerns.
Rule 2.3. Evaluation for Use by Third Persons.
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 2.3 (formerly Supreme Court Rule 169) is the same as ABA Model Rule 2.3.
Rule 2.4. Lawyer Serving as Third-Party Neutral.
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 2.4 is the same as ABA Model Rule 2.4.
ADVOCATE
Rule 3.1. Meritorious Claims and Contentions. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.1 (formerly Supreme Court Rule 170) is the same as ABA Model Rule 3.1.
Rule 3.2. Expediting Litigation.
(a) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
(b) The duty stated in paragraph (a) does not preclude a lawyer from granting a reasonable request from opposing counsel for an accommodation, such as an extension of time, or from disagreeing with a client’s wishes on administrative and tactical matters, such as scheduling depositions, the number of depositions to be taken, and the frequency and use of written discovery requests.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.2 (formerly Supreme Court Rule 171) is the same as ABA Model Rule 3.2 with the exception of paragraph (b). Paragraph (b) is a Nevada-specific provision with no Model Rule counterpart.
Rule 3.3. Candor Toward the Tribunal.
(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.3 (formerly Supreme Court Rule 172) is the same as ABA Model Rule 3.3.
Rule 3.4. Fairness to Opposing Party and Counsel. A lawyer shall not:
(a) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) The person is a relative or an employee or other agent of a client; and
(2) The lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.4 (formerly Supreme Court Rule 173) is the same as ABA Model Rule 3.4.
Rule 3.5. Impartiality and Decorum of the Tribunal and Relations With Jury.
(a) A lawyer shall not seek to influence a judge, juror, prospective juror or other official by means prohibited by law.
(b) A lawyer shall not communicate ex parte with a judge, juror, prospective juror or other official except as permitted by law.
(c) Subject to the limitations imposed by this Rule or by law, it is a lawyer’s right, after the jury has been discharged, to interview the jurors to determine whether their verdict is subject to any legal challenge. A lawyer shall not communicate with a juror or prospective juror after discharge of the jury if the juror has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress or harassment. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror or to influence his or her action in any subsequent jury service.
(d) A lawyer shall not engage in conduct intended to disrupt a tribunal.
(e) Before the jury is sworn to try the cause, a lawyer may investigate the prospective jurors to ascertain any basis for challenge, provided that a lawyer or the lawyer’s employees or independent contractors may not, at any time before the commencement of the trial, conduct or authorize any investigation of the prospective jurors, through any means which are calculated or likely to lead to communication with prospective jurors of any allegations or factual circumstances relating to the case at issue. Conduct prohibited by this Rule includes, but is not limited to, any direct or indirect communication with a prospective juror, a member of the juror’s family, an employer, or any other person that may lead to direct or indirect communication with a prospective juror.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.5 (formerly Supreme Court Rule 174) is the same as ABA Model Rule 3.5 with two exceptions. First, paragraph (c) of the Rule addresses the same general subject matter as paragraph (c) of the Model Rule—communications with a juror after discharge of the jury—but the Nevada provision emphasizes the lawyer’s “right . . . to interview the jurors” for certain purposes and prohibits communications with a juror after discharge of the jury only if the juror “has made known to the lawyer a desire not to communicate, or the communication involves misrepresentation, coercion, duress or harassment.” Second, paragraph (e) is Nevada specific and there is no Model Rule counterpart. The language in paragraph (e) is based on former Supreme Court Rule 176(4)(a) and (b).
Rule 3.5A. Relations With Opposing Counsel. When a lawyer knows or reasonably should know the identity of a lawyer representing an opposing party, he or she should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer’s intention to proceed.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.5A (formerly Supreme Court Rule 175) is a Nevada-specific Rule. It has no counterpart in the ABA Model Rules.
Rule 3.6. Trial Publicity.
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) The claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) Information contained in a public record;
(3) That an investigation of a matter is in progress;
(4) The scheduling or result of any step in litigation;
(5) A request for assistance in obtaining evidence and information necessary thereto;
(6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) In a criminal case, in addition to subparagraphs (1) through (6):
(i) The identity, residence, occupation and family status of the accused;
(ii) If the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) The fact, time and place of arrest; and
(iv) The identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by that paragraph.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.6 (formerly Supreme Court Rule 177) is the same as ABA Model Rule 3.6.
Rule 3.7. Lawyer as Witness.
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.7 (formerly Supreme Court Rule 178) is the same as ABA Model Rule 3.7.
Rule 3.8. Special Responsibilities of a Prosecutor. The prosecutor in a criminal case shall:
(a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) The information sought is not protected from disclosure by any applicable privilege;
(2) The evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) There is no other feasible alternative to obtain the information;
(f) Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.8 (formerly Supreme Court Rule 179) is the same as ABA Model Rule 3.8.
Rule 3.9. Advocate in Nonadjudicative Proceedings. A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 3.9 (formerly Supreme Court Rule 180) is the same as ABA Model Rule 3.9.
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1. Truthfulness in Statements to Others. In the course of representing a client a lawyer shall not knowingly:
(a) Make a false statement of material fact or law to a third person; or
(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 4.1 (formerly Supreme Court Rule 181) is the same as ABA Model Rule 4.1.
Rule 4.2. Communication With Person Represented by Counsel. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 4.2 (formerly Supreme Court Rule 182) is the same as ABA Model Rule 4.2. While the text of the two rules is identical, the rules are applied differently in two respects. First, Nevada has adopted the managing-speaking agent test to determine which constituents of an organization are covered by the no-contact rule. Palmer v. Pioneer Inn Assocs., Ltd., 118 Nev. 943, 59 P.3d 1237 (2002). The comments to the Model Rule adopt a different test. Model Rules of Prof’l Conduct R. 4.2 cmt. 7 (2004). Second, Nevada has interpreted the Rule to prohibit a lawyer who is representing himself from contacting a represented person in the matter. In re Discipline of Schaefer, 117 Nev. 496, 25 P.3d 191, as modified, 31 P.3d 365 (2001). The comments to the Model Rule suggest that it may not prohibit contact when the lawyer represents himself. See Model Rules of Prof’l Conduct R. 4.2 cmt. 4 (2004) (“Parties to a matter may communicate directly with each other . . . .”); Pinsky v. Statewide Grievance Committee, 578 A.2d 1075 (Conn. 1990) (holding that Connecticut rule based on Model Rule 4.2 does not prohibit contact when lawyer represents himself). But see Runsvold v. Idaho State Bar, 925 P.2d 1118 (Idaho 1996) (holding that Idaho rule based on Model Rule 4.2 applies when lawyer represents himself).
Rule 4.3. Dealing With Unrepresented Person. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 4.3 (formerly Supreme Court Rule 183) is the same as ABA Model Rule 4.3.
Rule 4.4. Respect for Rights of Third Persons.
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 4.4 (formerly Supreme Court Rule 184) is the same as ABA Model Rule 4.4.
LAW FIRMS AND ASSOCIATIONS
Rule 5.1. Responsibilities of Partners, Managers, and Supervisory Lawyers.
(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.1 (formerly Supreme Court Rule 185) is the same as ABA Model Rule 5.1.
Rule 5.2. Responsibilities of a Subordinate Lawyer.
(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.2 (formerly Supreme Court Rule 186) is the same as ABA Model Rule 5.2.
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants. With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) A partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.3 (formerly Supreme Court Rule 187) is the same as ABA Model Rule 5.3.
Rule 5.4. Professional Independence of a Lawyer.
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) An agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) A lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement;
(4) A lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter; and
(5) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) A nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.4 (formerly Supreme Court Rule 188) is the same as ABA Model Rule 5.4 with one exception. Paragraph (a)(5) of the Rule is Nevada specific and is retained from former Supreme Court Rule 188(1)(b).
Rule 5.5. Unauthorized Practice of Law.
(a) General rule. A lawyer shall not:
(1) Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(2) Assist another person in the unauthorized practice of law.
(b) Exceptions. A lawyer who is not admitted in this jurisdiction, but who is admitted and in good standing in another jurisdiction of the United States, does not engage in the unauthorized practice of law in this jurisdiction when:
(1) The lawyer is authorized to appear before a tribunal in this jurisdiction by law or order of the tribunal or is preparing for a proceeding in which the lawyer reasonably expects to be so authorized;
(2) The lawyer participates in this jurisdiction in investigation and discovery incident to litigation that is pending or anticipated to be instituted in a jurisdiction in which the lawyer is admitted to practice;
(3) The lawyer is an employee of a client and is acting on behalf of the client or, in connection with the client’s matters, on behalf of the client’s other employees, or its commonly owned organizational affiliates in matters related to the business of the employer, provided that the lawyer is acting in this jurisdiction on an occasional basis and not as a regular or repetitive course of business in this jurisdiction;
(4) 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 this jurisdiction on an occasional basis and not as a regular or repetitive course of business in this jurisdiction;
(5) The lawyer is engaged in the occasional representation of a client in association with a lawyer who is admitted in this jurisdiction 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 this jurisdiction;
(6) The lawyer is representing a client, on an occasional basis and not as part of a regular or repetitive course of practice in this jurisdiction, in areas governed primarily by federal law, international law, or the law of a foreign nation; or
(7) The lawyer is acting as an arbitrator, mediator, or impartial third party in an alternative dispute resolution proceeding.
(c) Interaction with Supreme Court Rule 42. Notwithstanding the provisions of paragraph (b) of this Rule, a lawyer who is not admitted to practice in this jurisdiction shall not represent a client in this state in an action or proceeding governed by Supreme Court Rule 42 unless the lawyer has been authorized to appear under Supreme Court Rule 42 or reasonably expects to be so authorized.
(d) Limitations.
(1) No lawyer is authorized to provide legal services under this Rule if the lawyer:
(i) Is an inactive or suspended member of the State Bar of Nevada, or has been disbarred or has received a disciplinary resignation from the State Bar of Nevada; or
(ii) Has previously been disciplined or held in contempt by reason of misconduct committed while engaged in the practice of law permitted under this Rule.
(2) A lawyer who is not admitted to practice in this jurisdiction shall not:
(i) Establish an office or other regular presence in this jurisdiction for the practice of law;
(ii) Solicit clients in this jurisdiction; or
(iii) Represent or hold out to the public that the lawyer is admitted to practice law in this jurisdiction.
(e) Conduct and discipline. A lawyer admitted to practice in another jurisdiction of the United States who acts in this jurisdiction pursuant to paragraph (b) of this Rule shall be subject to the Nevada Rules of Professional Conduct and the disciplinary jurisdiction of the Supreme Court of Nevada and the State Bar of Nevada as provided in Supreme Court Rule 99.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.5 (formerly Supreme Court Rule 189) addresses the same subject matter as ABA Model Rule 5.5, but the text of the Rule is different.
Rule 5.5A. Registration of Private Lawyers Not Admitted to Nevada in Extra-Judicial Matters.
(a) Application of rule.
(1) This Rule applies to a lawyer who is not admitted in this jurisdiction, but who is admitted and in good standing in another jurisdiction of the United States, and who provides legal services for a Nevada client in connection with transactional or extra-judicial matters that are pending in or substantially related to Nevada.
(2) This Rule does not apply to work performed by a lawyer in connection with any action pending before a court of this state, any action pending before an administrative agency or governmental body, or any arbitration, mediation, alternative dispute resolution proceeding, whether authorized by the court, law, rule, or private agreement.
(b) Definitions. For purposes of this Rule, a “Nevada client” is a natural person residing in the State of Nevada, a Nevada governmental entity, or a business entity doing business in Nevada.
(c) Annual report. Notwithstanding any other provision of law, a lawyer who is subject to this Rule shall file an annual report, along with a reporting fee of $150, with the State Bar of Nevada at its Las Vegas, Nevada, office. The annual report shall encompass January 1 through December 31 of a single calendar year and shall be filed on or before January 31 of the following calendar year. The report shall be on a form approved by the State Bar of Nevada and include the following information:
(1) The lawyers’ residence and office address;
(2) The courts before which the lawyer has been admitted to practice and the dates of admission;
(3) That the lawyer is currently a member in good standing of, and eligible to practice law before, the bar of those courts;
(4) That the lawyer is not currently on suspension or disbarred from the practice of law before the bar of any court; and
(5) The nature of the client(s) (individual or business entity) for whom the lawyer has provided services that are subject to this Rule and the number and general nature of the transactions performed for each client during the previous 12-month period. The lawyer shall not disclose the identity of any clients or any information that is confidential or subject to attorney-client privilege.
(d) Failure to file report. Failure to timely file the report described in paragraph (c) of this Rule may be grounds for discipline under applicable Supreme Court Rules and prosecution under applicable state laws. The failure to file a timely report shall result in the imposition of a fine of not more than $500.
(e) Discipline. A lawyer who must file an annual report under this Rule shall be subject to the jurisdiction of the courts and disciplinary boards of this state with respect to the law of this state governing the conduct of lawyers to the same extent as a member of the State Bar of Nevada. He or she shall familiarize himself or herself and comply with the standards of professional conduct required of members of the State Bar of Nevada and shall be subject to the disciplinary jurisdiction of the State Bar of Nevada. The Nevada Supreme Court Rules shall govern in any investigation or proceeding conducted by the State Bar of Nevada under this Rule.
(f) Confidentiality. The State Bar of Nevada shall not disclose annual reports filed under this Rule to any third parties unless necessary for disciplinary investigation or criminal prosecution for the unauthorized practice of law.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.5A (formerly Supreme Court Rule 189.1) is a Nevada-specific Rule. There is no counterpart in the ABA Model Rules.
Rule 5.6. Restrictions on Right to Practice. A lawyer shall not participate in offering or making:
(a) A partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 5.6 (formerly Supreme Court Rule 190) is the same as ABA Model Rule 5.6.
Rule 5.7. Reserved.
Model Rule Comparison—2006
Nevada has not adopted ABA Model Rule 5.7. The Rule is reserved to maintain consistency with the Model Rules format.
PUBLIC SERVICE
Rule 6.1. Pro Bono Publico Service.
(a) Professional responsibility. Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 20 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
(1) Provide a substantial majority of the 20 hours of legal services without compensation or expectation of compensation to:
(i) Persons of limited means; or
(ii) A public service, charitable group, or organization in matters that are designed primarily to address the needs of persons of limited means; and
(2) Provide any additional services through:
(i) Delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
(ii) Participation in activities for improving the law, the legal system, or the legal profession; or
(iii) Delivery of services in connection with law-related education sponsored by the State Bar of Nevada, the Nevada Bar Foundation, a county bar association, or a court located in Nevada.
(3) As an alternative to rendering at least 20 hours of pro bono publico legal services per year as provided in subparagraphs (1) and (2), a lawyer may discharge the professional responsibility to provide legal services to those unable to pay by:
(i) Providing at least 60 hours of professional services per year at a substantially reduced fee to persons of limited means; or
(ii) Contributing at least $500 per year to an organization or group that provides pro bono legal services to persons of limited means.
(4) When pro bono legal service is performed for an individual without compensation or at a substantially reduced fee, the fee shall be agreed to in writing at the inception of the representation and refer to this Rule.
(5) The following do not qualify as pro bono legal service under this Rule:
(i) Legal services written off as bad debts;
(ii) Legal services performed for family members; and
(iii) Activities that do not involve the provision of legal services, such as serving on the board of a charitable organization.
(b) Reporting; discharge of professional responsibility.
(1) All members shall complete an Annual Pro Bono Reporting Form, indicating services performed under this Rule, to be submitted to the state bar annually on a form to be provided by the state bar with the members’ fee statements. If a member fails to file the report required by this Rule, the state bar shall notify the member that a fine of $100 will be imposed unless the member files the report within a specified period of time not less than 30 days after the notice.
(2) The professional responsibility to provide pro bono services as established under this Rule is aspirational rather than mandatory in nature. Accordingly, the failure to render pro bono services will not subject a member to discipline.
(c) Voluntary pro bono plan. The purposes of the voluntary pro bono plan are to make available legal services to those Nevadans who cannot otherwise afford them and to expand the present pro bono programs. To accomplish these goals the following committees are hereby created.
(1) District Court Pro Bono Committees. In each judicial district, the Chief Judge of the District Court shall appoint a Pro Bono Committee consisting of representatives of various members of the bench and bar as well as pro bono services and community organizations of that judicial district. The responsibility of these committees is to determine and address the specific unmet legal needs of that jurisdiction by way of a plan to be submitted to the Supreme Court. Pursuant to paragraph (d) of this Rule, the Pro Bono Committee may establish a foundation. The foundations are authorized to receive funds paid in satisfaction of an order of any court entered in accordance with paragraph (e) of this Rule and to determine the allocation and use of such funds in a manner consistent with this Rule. If no foundation is established, the Pro Bono Committee is authorized to receive such funds and determine their allocation and use in a manner consistent with this Rule.
(2) Access to Justice Section. The board of governors shall have the power to establish a permanent Statewide Access to Justice Section that shall assist in the implementation of this Rule as well as facilitate and support local efforts to improve the public’s access to justice. The initial officers of the Access to Justice Section shall be the currently serving officers of the Access to Justice Committee. Thereafter, elections for officers shall be held as provided in the Access to Justice Section’s bylaws, as approved by the board of governors. The Access to Justice Section shall be composed of regular members who are licensed to practice law in Nevada and laypersons who may become auxiliary members.
(d) Foundations. A district court Pro Bono Committee may establish a local foundation to actively promote the provision of civil legal services to disadvantaged persons and households within the district. A foundation established pursuant to this Rule shall be created as a Nevada nonprofit corporation and is authorized to:
(1) Actively promote the observance of this Rule within the district;
(2) Receive donations from members of the State Bar of Nevada and monies from the courts as provided in this Rule;
(3) Distribute such funds to providers of pro bono and free or reduced fee civil legal services in the district and to public law libraries;
(4) Develop other new sources of funding and support for delivery of civil legal services;
(5) Support existing legal services and pro bono efforts and foster new projects to broaden the existing range of civil legal services; and
(6) Serve as an educational facilitator to make the community as a whole aware of the efforts being made to provide all Nevadans within the district with full access to the justice system.
(e) Payment of civil sanctions to fund pro bono programs or libraries. Subject to the limitations of this Rule, a court may direct that sanctions or fines imposed under NRS 1.210, NRAP 38, NRCP 11, JCRCP 11, or like authority be paid to a nonprofit entity or law library specified below. The court’s discretion to direct payment of sanctions or fines to a nonprofit entity or law library, however, is limited to civil sanctions imposed against counsel, parties, witnesses or others appearing before the court and expressly excludes sanctions or fines imposed against a defendant in any criminal case. Payment may be directed only to the following:
(1) A nonprofit entity or committee designated pursuant to a voluntary pro bono plan described in paragraph (c) to serve the pro bono and access to justice needs either for the judicial district in which the judicial officer presides or, if serving outside his or her judicial district, where the case is heard; or
(2) A public law library or nonprofit entity associated with a public law library located either in the judicial district in which the judicial officer presides or, if serving outside his or her judicial district, where the case is heard; or
(3) To the Nevada Law Foundation or other statewide nonprofit entity designated by the state bar to serve pro bono and access to justice needs.
(4) The supreme court may also direct payment to such nonprofit entities or public law libraries located in the judicial district in which the matter before the supreme court originated or to any other public law library in the state.
(f) Limitation on authority to specify use of funds. A judicial officer who orders payment of a sanction or fine pursuant to paragraph (e) must not participate in the specific determination of which entity will receive the sanction or fine or of how that sanction or fine will be used by the nonprofit entity or law library designated to receive the funds. The judicial officer may, however, serve on the board or as an officer of a nonprofit entity created pursuant to this Rule, or of a law library or nonprofit entity associated with a law library, provided that he or she does not participate in specific decisions regarding the use of any sanction or fine directed to the nonprofit entity or library by that judicial officer.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 6.1 (formerly Supreme Court Rule 191) addresses the same subject matter as ABA Model Rule 6.1, but the text of the Rule is different.
Rule 6.2. Accepting Appointments. A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) Representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) Representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) The client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 6.2 (formerly Supreme Court Rule 192) is the same as ABA Model Rule 6.2.
Rule 6.3. Membership in Legal Services Organization. A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) If participating in the decision or action would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or
(b) Where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 6.3 (formerly Supreme Court Rule 193) is the same as ABA Model Rule 6.3.
Rule 6.4. Law Reform Activities Affecting Client Interests. A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
[Added; effective May 1, 2006.]
Model Rule Comparison—2006
Rule 6.4 (formerly Supreme Court Rule 194) is the same as ABA Model Rule 6.4.
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs.
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expe