Bar Association Embarrassed
By Its Own Legislative Proposal

by Steve Miller
copyright 1997, Electric Nevada

The Nevada Bar Association has legal egg all over its face and the way it happened could not have been more embarrassing for the group.

Claiming the public needed protection from bad advice by non-lawyers, the attorneys' group got state senator Ernie Adler, D-Carson City, to introduce Senate Bill 203. If passed, it would greatly expand the range of activities prohibited to everyone but members of the lawyers' association. Actual text of the proposed legislation
However, immediately after its March 10 introduction, the bill ran into a flood of criticism and hostile mail, faxes and email. And last week, Adler, after consulting with bar association president Robert Crowell, sued for peace. In a fax sent out statewide, the assistant senate minority leader announced that the bill would not be heard and would just die in the senate judiciary committee.
Now, the lawyers not only don't have the legislation they wanted, but their proposal -- described by opponents as a bid to outlaw competitors and force people to hire attorneys more often -- seems to have confirmed the worst stereotypes of lawyer venality.
"It's a pretty blatant piece of work," said the Reno-Sparks Chamber of Commerce legislative




director, David Howard. "I don't know how they can do it and then sleep at night. But then, attorneys are like that."
Howard said Friday he got inquiries about the Nevada bill from the East Coast that same day. But he indicated he doesn't take the bill too seriously.
In this session, he says, "we have a bill that regulates float-tube fishermen; we also have a bill that's trying to designate the state nut of Nevada. I put [SB 203] in the same category."
In Howard's view, the bill fell of its own weight. But while he does not expect it to go anywhere, he still points out that once a bill has been put on the table, it can be used for anything.
"Once it's got a bill number, it's a live item. You've always got to keep an eye on them."
If SB 203 does surface again, he says, the Reno-Sparks Chamber of Commerce will actively oppose it, working closely with the Las Vegas Chamber of Commerce.
Another embarrassment for the bar association, in the view of critics, is that the group's proposed legislation was unconstitutional on its face, and thus an example of shoddy legal work


 
-- precisely what the lawyers had said a bar association monopoly was to protect the public from.
Was the bill, as charged, blatantly unconstitutional? While arguments will rage, section 1(a) of the proposed law does say that "furnishing advice or counsel, in any form or manner, to another person concerning the interpretation of any law or regarding any legal right, duty, obligation or remedy available by law" would be classified as practicing law without a license if the individual speaking was not an active member of the Nevada Bar Association.
"There's just a lot in there that's ... just unconstitutional," says Libby Herlihy, a Las Vegas paralegal who helped organize opposition.
In her view, the bill was so broad that it essentially obliterated the First Amendment to the U.S. Constitution.
"If someone has a gun to your head," she argued, "you can't say, 'Please don't shoot; you're breaking the law and you don't want to go to jail for that.' You can't say that because you're breaking the law."
Herlihy says she saw the bill as mainly an attempt by the bar association to exclude providers of paralegal services and other competitors from the marketplace, so that consumers




don't have an alternative to paying a lawyer.
"And most people cannot afford an attorney, you know, to help them fill out a form. A lot of the paralegals do it for 20 bucks, and give a little guideline or so. [That's] instead of [the consumer] paying $150 for an hour with an attorney, and then he turns it over to his paralegal."
Even though 98 percent of the clients of her own firm, Corporation Services of Nevada, are attorneys from outside the state, says Herlihy, it was the issue of freedom of choice that energized her.
"I think it's going to affect a lot of people, and that's really a shame. And once you lose your rights, you never get them back; it's very difficult to get them back. I've traveled around the world many times, and lived overseas for many, many years, and know what it's like to live under that type of rule, and I don't want to live under that type of rule."
Wayne Blevins, the Nevada Bar Association's executive director, says that the bar association's legislation, though pigeonholed now, will probably be back in a modified form.
"Our committee that's been working on that is still discussing it and trying to find ways that we can strengthen


 
the statute without, you know, causing a lot of heartburn for some folks," he told Electric Nevada.
"We do have some concern if people are out there giving the public bad advice, and advice that is costing some of our citizens a lot of money in the long run," he said.
In regard to the particular provisions of SB 203, Blevins




said he didn't know the source.
"I don't know," he said. "I was told ... the rudiments of that bill came out of a bill that was drafted two years ago."
Sources in the Legislative Counsel Bureau confirmed that such a bill was drafted for the 1995 session of the state legislature but said it was never introduced.


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