The Sierra Crest Business Law Group welcomes opportunities to serve as local Nevada counsel. We assist out-of-state counsel in becoming admitted pro hac vice in a specific Nevada case. We also share our knowledge and experience of local rules and practice.
What is consumer fraud in Nevada?
One of the Nevada statutes I turn to frequently is NRS 41.600, entitled “Actions by Victims of Fraud.” This statute allows any person who is a victim of “consumer fraud” to recover his or damages, equitable relief (which can include “rescinding” or unwinding the bad deal), and attorney’s fees. The statute gives a specialized definition of “consumer fraud.” The most important part of this definition is that “consumer fraud” includes any “deceptive trade practice” described in NRS 598.0915 to 598.0925.
Turning to the statutory definition of “deceptive trade practice” reveals multiple lists of conduct that counts as a deceptive trade practice and, therefore, consumer fraud. Some of the items are fairly specific and some are general. There are more than 57 separate items.
Whenever I encounter any kind of fraud or consumer dispute, I will review theses lists to see if one or more of the items match the situation with which I am dealing. Some particularly potent items on the statutory list of deceptive trade practices include:
Knowingly making any false representation in a transaction, NRS 598.0915(15);
failing to make delivery of goods or services for sale or lease within a reasonable time, NRS 598.092(4);
knowingly misrepresenting the legal rights, obligations or remedies of a party to a transaction, NRS 598.092(8);
conducting a business or occupation without all required state, county or city licenses, NRS 598.0923(1);
failing to disclose a material fact in connection with the sale or lease of goods or services, NRS 598.0923(2); and
violating a state or federal statute or regulation relating to the sale or lease of goods or services, NRS 598.0923(3).
Investors and those who market investments should pay particular attention to NRS 598.092(5), which says that a deceptive trade practice includes advertising or offering an opportunity for investment and:
representing that the investment is guaranteed, secured or protected in a manner which he or she knows or has reason to know is false or misleading;
representing that the investment will earn a rate of return which he or she knows or has reason to know is false or misleading;
making any untrue statement of a material fact or omits to state a material fact which is necessary to make another statement, considering the circumstances under which it is made, not misleading;
failing to maintain adequate records so that an investor may determine how his or her money is invested;
failing to provide information to an investor after a reasonable request for information concerning his or her investment;
failing to comply with any law or regulation for the marketing of securities or other investments; or
representing that he or she is licensed by an agency of the State to sell or offer for sale investments or services for investments if he or she is not so licensed.
So when you are a consumer or investor with a question about your rights, check the statutory list of deceptive trade practices. If you are a business, please be aware that some of your customers may check this list as well. As always, I am more than happy to discuss with you any questions you might have about Nevada consumer fraud.
As an Out-of-State Attorney, How Do I Make an Appearance in Nevada Federal Court?
An out-of-state attorney may not appear in a Nevada federal court case without the court’s permission. Local Rule IA 11-2(a) and (b) outline the requirements for such an appearance. The out-of-state attorney files a Verified Petition for Permission to Practice in this Case Only by Attorney Not Admitted to the Bar of this Court and Designation of Local Counsel using the court’s form. To apply for permission, the out-of-state attorney must meet the following conditions:
- The attorney is not a member of the State Bar of Nevada
- The attorney is not a resident of the State of Nevada
- The attorney is not regularly employed in the State of Nevada;
- The attorney is a member in good standing and eligible to practice before the bar of another jurisdiction of the United States; and
- The attorney associates an active member in good standing of the State Bar of Nevada as attorney of record in the action or proceeding.
Per Local Rule IA 11-2(d), the resident attorney must have authority to sign binding stipulations. Unless the court orders otherwise, the resident attorney need not personally attend all proceedings in court.
As an Out-Of-State Attorney, May I Sign a Complaint or Answer in Nevada Federal Court Prior to Obtaining Nevada Local Counsel?
Per Local Rule IA 11-2(c), “[a]n attorney whose verified petition is pending must not take action in this case beyond filing the first pleading or motion. The first pleading or motion must state the attorney “has complied with LR IA 11-2” or “will comply with LR IA 11-2 within ___ days.” Until permission is granted, the clerk must not issue summons or other writ. Local IA 11-2(e) states that in civil cases, an attorney must comply with all provisions of the rule within 45 days of his or her first appearance.
What are the consequences of failing to associate local counsel and properly apply for permission to appear pro hac vice in Nevada federal court?
As stated in Local Rule IA 11-2(j), failure to comply timely with the rule may result in the striking of any and all documents previously filed by the out-of-state attorney, the imposition of other sanctions, or both.
As an Out-of-State Attorney, am I permitted to participate in a Nevada arbitration or mediation?
Nevada Supreme Court Rule 42(1)(a)(3) dictates that an out-of-state attorney must be admitted pro hac vice to participate in “all arbitration, mediation, or alternative dispute resolution procedures in this state that are court annexed or court ordered, or that are mandated by statute or administrative rule.” Likewise, pro hac vice admission is necessary for “all services incident to any of these proceedings including, but not limited to, discovery and settlement negotiations.” SCR 42(1)(a)(4).
Nevertheless, “this rule does not apply to arbitration, mediation, or alternative dispute resolution procedures in which the parties engage voluntarily or by private agreement.” SCR 42(1)(b). Although the rule and exception have some ambiguity, I believe that, at a minimum, an attorney desiring to participate in a Nevada arbitration or mediation that has been ordered by a court should apply for pro hac vice admission.
As an Out-of-State Attorney, How Do I Make My Appearance in a Nevada State Court or Administrative Proceeding?
An out-of-state attorney may not appear in a Nevada state court case without the court’s permission. Obtaining such permission requires a two step process. First, the attorney submits a completed Verified Application for Association of Counsel Under Nevada Supreme Court Rule 42 to the Nevada State Bar together with the attorney’s certificate(s) of good standing, and requests a Statement from the Nevada State Bar. Second, after receiving the requested Statement, the attorney’s local counsel files with the state court or administrative agency a Motion to Associate Counsel. The Motion to Associate Counsel includes a copy of the foregoing verified application, State Bar of Nevada Statement, and the attorney’s certificate(s) of good standing. The State Bar of Nevada Supreme publishes a form SCR 42 Pro Hac Vice Application.
To apply for permission, the out-of-state attorney must meet the following conditions:
(a) The lawyer is not a member of the State Bar of Nevada;
(b) The lawyer is not a resident of the State of Nevada;
(c) The lawyer is not regularly employed in the State of Nevada;
(d) The lawyer is not engaged in substantial business, professional, or other activities in the State of Nevada;
(e) The lawyer is a member in good standing and eligible to practice before the bar of any jurisdiction of the United States; and
(f) The lawyer associates an active member in good standing of the State Bar of Nevada as counsel of record in the action or proceeding.
The granting or denial of a motion to associate counsel under SCR 42 rule is discretionary. And The court, arbitrator, mediator, or administrative or governmental hearing officer may revoke the authority of the person permitted to appear as counsel under SCR 42 to make continued pro hac vice appearances. SCR 42(6).
During the proceeding, the out-of-state attorney must renew his or her pro hac vice admission annually by paying the applicable fee to the State Bar of Nevada. SCR 42(9).
SCR 42(16) states that “[t]he Nevada attorney of record shall be responsible for and actively participate in the representation of a client in any proceeding that is subject to this rule.” In addition, “[t]he Nevada attorney of record shall be present at all motions, pre-trials, or any matters in open court unless otherwise ordered by the court.”
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