Opinion
No. ADKT 438.
December 16, 2009.
ORDER AMENDING SUPREME COURT RULES 205-215
WHEREAS, on July 2, 2009, the Honorable Chief Justice James W. Hardesty filed a petition requesting this court to direct the Board of Continuing Legal Education to submit a report with findings and recommendations regarding amendments to Supreme Court Rules 205-215 and the Board's bylaws; and
WHEREAS, on July 7, 2009, this court entered an order directing review of the rules and bylaws pertaining to the Board of Continuing Legal Education; and
WHEREAS, on October 2, 2009, the Board of Continuing Legal Education submitted its comprehensive written report regarding proposed amendments to Supreme Court Rules 205-215 governing continuing legal education; and
WHEREAS, on October 6, 2009, the Board of Continuing Legal Education requested an extension of time to complete its review of its bylaws; and
WHEREAS, on October 12, 2009, this court granted the Board of Continuing Legal Education a 90-day extension to submit its written report regarding the bylaws and set this matter for a public hearing; and
WHEREAS, this court conducted a public hearing regarding this matter on December 1, 2009, at which remarks were presented regarding the proposed rule amendments and opportunity was given for public comment; and
WHEREAS, this court has considered the petition, the report, the remarks, and the public comments; and
WHEREAS, it appears to this court that amendment of the rules is warranted; accordingly,
IT IS HEREBY ORDERED that Supreme Court Rules 205-215 shall be amended as set forth in Exhibit A.
IT IS FURTHER ORDERED that these rule amendments shall be effective 30 days from the date of this order. The clerk of this court shall cause a notice of entry of this order to be published in the office publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendments.
Dated this 16th day of December, 2009.
BY THE COURT
RON D. PARRAGUIRRE Associate Justice
MICHAEL L. DOUGLAS Associate Justice
MICHAEL A. CHERRY Associate Justice
NANCY M. SAITTA Associate Justice
MARK GIBBONS Associate Justice
KRISTINA PICKERING Associate Justice
EXHIBIT A AMENDMENTS TO SCR 205-215 PART III. GOVERNMENT OF THE LEGAL PROFESSION * * * H. CONTINUING LEGAL EDUCATION FOR ACTIVE MEMBERS OF THE STATE BAR Rule 205. Definitions. [As used in Rules 205 to 215, inclusive,] In these rules, unless the context or subject matter otherwise requires[ the following terms have the following meanings] :
1. "Board" means the [ beard ] State of [ continuing legal education ] Nevada Board of Continuing Legal Education. 2. "Court" means the Supreme Court of the State of Nevada. 3. "Board of Governors" means the Board of Governors of the State Bar of Nevada. [ 2. ] 4. "Active member" means an active member of the State Bar of Nevada. It also means any attorney who is subject to the same rules and regulations as an active member. [ 3. ] 5. "Inactive member" means a member of the State Bar of Nevada in good standing but who is not an active member [, as defined in these Rules ],
6. "Limited practice" means an attorney who does not qualify for active membership in the State Bar of Nevada but who is subject to continuing legal education requirements. 7. "Attorney subject to these rules" means any active, limited practice, or other attorney who is subject to continuing legal education requirements and who is not otherwise exempt pursuant to Rule 214. [ 4. ] 8. "These [ Rules ] rules" means Supreme Court Rules [ 205 to ] 205-215, inclusive, or any part thereof. Rule 206. Purpose. It is of primary importance to the state bar and to the public that [active members] attorneys continue their legal education throughout the period of their practice of law or judicial service. Failure to do so constitutes grounds for action by the board, the court, and the state bar as provided herein. It is the purpose of these [ Rules ] rules to establish minimum requirements of continuing legal education for [ active members, with exceptions hereinafter set forth,] attorneys subject to these rules and the means by which those requirements are to be enforced.
Rule 207. Creation of board.
1. The board of continuing legal education is hereby created.
2. The board [consists of five] shall consist of seven (7) members, each of whom must be an active member. At least one (1) member must be concurrently serving as a member of the board of governors. One (1) member must be concurrently serving as a member of the state judiciary. Each member of the board shall have one (1) vote.
3. [ The board of governors shall appoint four members of the board and shall select its chair. ] Six (6) members of the board shall be appointed by the board of governors. The court shall appoint the member of the judiciary. The board shall select its own chair. The board may, in its discretion, appoint nonvoting ex officio members to serve in an advisory capacity only.
4. The terms of the members of the board are as follows:
(a) [One member of the board must be appointed for an initial term of 1 year, two members, including the member of the judiciary, for initial terms of 2 years, and two for initial terms of 3 years. (b) Upon expiration of the initial term of each member of the board, the ] The term of each member shall be [ 3 ] three (3) years; however, to ensure that no more than three (3) members' regular terms expire at once, the board of governors may, in its discretion, designate that an appointee's initial term shall be less than three (3) years. [(e)] (b) The term of each member expires on December 31 of [ its ] the final year of the member's term. Rule 208. Powers and duties of board. The board shall administer these [ Rules ] rules. Without limiting the generality of this duty, the board has the following specific powers and duties:
1. To accredit individual courses and all or portions of programs of continuing legal education which, in the judgment of the board, will satisfy the educational requirements of these [ Rules ] rules, according to regulations adopted by the board.
2. To grant accredited sponsorship status to certain sponsors of continuing legal education courses or programs, on such terms or conditions as the board may deem appropriate, according to regulations adopted by the board.
3. To determine the number of hours of credit each participant shall be entitled to receive for attendance or participation in each accredited course or educational activity, according to regulations adopted by the board.
4. To discover and encourage the offering of courses and programs which will satisfy the educational requirements of these [ Sides ] rules, whether offered within or without the State of Nevada.
5. To adopt, publish, and enforce regulations pertinent to these powers and duties.
6. To adopt and publish forms to facilitate compliance with these rules and the board's regulations. [ 6. ] 7. To adopt bylaws to govern the internal conduct of its affairs.
[ 7. ] 8. [With the Approval of the board of governors, to establish] To make recommendations to the court concerning these rules. 9. To maintain its own offices and employ an executive director and other such persons as the board deems necessary for the proper administration of these [ Rules ] rules. [ 8. ] 10. To report at least annually to the board of governors and to the court concerning its activities [and, from time to time, to make recommendations to ]. On the application of the board of governors or on its own motion, the court may order the board to review these rules or any of its regulations, forms, or bylaws and to report to the court concerning [these Rules ] any proposed amendments thereto. Absent such a court order, the board may amend its regulations, forms, or bylaws without prior court approval. [ 9. ] 11. To collect an annual fee from each [ active member execpt from any active member entitled] attorney subject to [ on exemption under Rule 214(1) or any active member serving in the state judiciary. The amount of the annual fee is $40, unless otherwise ordered by the court. The foe must be paid ] these rules, and to [ the board on or before March 1st of the calendar year] assess fees and other penalties for [ which the fee is required to be paid. Failure to pay the foe when due subjects the delinquent member to the same sanctions as if the member failed to comply ] noncompliance with [ Rule 210 or 211. The fee ] these rules. All fees collected must be utilized for the cost of administration by the board of these [ Rules ] rules. [ 10. ] 12. To sue and be sued in its own name, and to carry out and defend the purposes, duties, and powers imposed upon or granted to the board in these [ Rules ] rules. Individual members of the board, its executive director, and all staff persons assisting them shall have absolute immunity from civil liability for all acts undertaken in the course of their official duties pursuant to these rules. [ On the application of any member of the state bar or on its own motion, the court may disapprove or modify any regulations and bylaws adopted by the board and forms utilized by the board. ] 13. To refer to the state bar for appropriate disciplinary action any attorney who engages in perceived illegal or unethical conduct in response to any of the requirements of these rules. Rule 209. Expenses of board. Members of the board shall serve without compensation, but each member is entitled to reimbursement by the board for actual and necessary expenses incurred in the performance of the member's duties.
Rule 210. Minimum continuing legal education requirements. To meet the annual minimum continuing legal education requirements imposed by these rules, each attorney subject to these rules must timely: submit an annual fee, complete the requisite number of credit hours, and submit an annual compliance report.
1. Annual fee. The amount of the annual fee is $40, made payable to the Nevada Board of Continuing Legal Education, and must be postmarked on or before March 1 of the year for which the fee is required to be paid. 2. Credit hours. [ 1. ] (a) Subject to the carry forward provisions of subparagraph [ 2 hereof, each active member, including each active member who is also a member of the judiciary of the State of Nevada, who is not entitled to an exemption under Rule 214, shall complete, during each calendar year ] (b), a minimum of [ 12 ] twelve (12) hours of accredited educational activity, as defined by the regulations adopted by the board[-], must be completed by December 31 of each year. Of the [ 12 ] twelve (12) hours, at least [ 2 ] two (2) shall be exclusively in the area of ethics and professional conduct.
[ 2. Commencing with the 1999 calendar year, any active member ] (b) Any attorney subject to these rules who completes more than [ 42 ] twelve (12) hours of accredited educational activity in any calendar year may carry forward [ 15 ] up to twenty (20) hours of [ such ] excess credit and apply the same to [ such member's] the attorney's general educational requirement for the next [ 2 ] two (2) calendar years. [ Commencing with the 1999 calendar year, any active member may also carry over ethics and professional conduct educational credit hours ] Likewise, any attorney subject to these rules who completes more than two (2) hours of ethics and professional conduct credit in any calendar year may carry forward up to four (4) hours of excess credit and apply the same to [ such member's] the attorney's ethics and professional conduct educational requirement for the next [ 2] two (2) calendar years. [Each active member desiring to carry forward credit hours shall report in advance the intent of the active member to carry forward such credit hours by stating that intent in the form required to be filed annually with the board under Rule 211.] 3. [The board may grant, under such conditions as the board may pre scribe, a program or course sponsor the status of an accredited sponsor. The effect of having the status of an accredited sponsor is that any active member attending or participating in any course or program sponsored by an accredited sponsor, under such conditions as the board may prescribe, may automatically be entitled to receive credit for such attendance or participation in such course or program. ] Annual compliance report. A properly completed and verified written compliance report must be submitted to the board, and must be postmarked on or before March 1 each year. The report must be submitted on a form to be provided by the board. The board shall, no later than six (6) weeks prior to the due date, send a compliance report form to each attorney subject to these rules. The report shall include the attorney's mailing address and shall state the attorney's compliance with the credit hour requirements during the preceding calendar year. It shall not be a defense to noncompliance that the attorney did not receive the compliance report form.
Rule 211. [ Reporting requirements.] Reserved. [ 1. On or before January 15 of each calendar year, the board shall mail to each active member, who is not entitled to an exemption under Rule 214, a form on which to submit a verified written report concerning compliance by that member with the minimum requirements of continuing legal education set forth in Rule 210 during the preceding calendar year. 2. Each active member required to complete the form under subparagraph 1 hereof shall return the form, properly completed and verified, to the board on or before March 1 of the calendar year. 3. The board may grant, upon written request by an attorney, an extension of time to March 15 to obtain credits to cure the deficiency from the preceding calendar year. The request must be accompanied by on extension fee of $25. — The extension fee is separate from the board's annual fee. ]
Rule 212. [Procedure in event of] Penalties for noncompliance. [ 1. If an active member fails to file the report required under Rule 211, or the report filed by the member reveals that the member has not met the minimum requirements of continuing legal education set forth in Rule 210, the procedure set forth in subsections 2 to 5, inclusive, must be followed. 2. The board shall, on or before April 1, give written notice of non-compliance to the member, by certified or registered moil, at the member's last known address as shown on the roll of membership of the state bar ] 1. Procedure in event of noncompliance. An attorney who is subject to these rules and who fails to timely comply with their provisions shall be subject to the following: (a) Extension fee for additional time to complete requisite continuing education credit hours. In the event that an attorney subject to the requirements of Rule 210(2) fails to complete the requisite continuing education credit hours by December 31, the board may grant, upon written request, an extension of time to March 1 to obtain credits to cure the deficiency from the preceding calendar year. The request for an extension of time must be accompanied by an extension fee of $50. The fee for an extension of time is separate from and in addition to the annual fee. (b) Late fee for failure to timely pay annual fee or submit compliance report: notice of noncompliance. In the event that an attorney subject to the requirements of Rule 210 fails to meet the March 1 deadline for paying the annual fee and/or submitting the annual compliance report, the board shall assess a late fee of $100. The late fee is separate from and in addition to the annual fee and any other fees owed. The late fee shall be assessed in a notice of noncompliance, which shall be mailed by the board via first-class mail to the attorney's last known address on or about April 1. The notice of noncompliance [ must contain ] shall: [(a) A statement of ] (1) state the manner in which the [ member ] attorney has failed, or appears to have failed, to comply with the requirements of Rule 210 [ or Rule 211 or both ] resulting in a deficiency; [ (b) A notice that the member must file with the board a report on or before June 1 of the year in which the notice is given, showing that the member has cured the failure specified, accompanied by a late fee of $30 made payable to the board; and (c) A notice of the consequences provided in subsections 5 and 6. 3. At any time prior to 5 p.m. on the first Monday in June, of the year in which compliance is required, the member may request a hearing before the board. The request must be filed with the board in writing. The request shall be verified and must specify: (a) That the member has in fact complied with Rules 210 and 211; or (b) That the member is entitled to an exemption under Rule 214, and the nature of the exemption to which the member is entitled. 4. Within 30 days after receipt by the board of the request, the board-, or a panel designated by the chairman of the board consisting of no less than three of its members, shall hold a hearing. The judicial member of the board shall sit on any hearing panel convened as a result of such a request by any member of the judiciary. At this hearing, the member has the burden, by a preponderance of the evidence, to show cause why the member should not be suspended for noncompliance. Within 30 days after the date of the hearing, the board shall make its findings of fact and conclusions of law, as well as proposed orders or recommendations pursuant to such findings and conclusions. If the board finds and concludes that the member should be suspended for noncompliance, the member may, within 30 days after service of such findings and conclusions by the board upon the member by mail, request the court to review the factual and legal sufficiency of the findings and conclusions. This request must be made by filing a verified petition for review with the clerk of the court, and service of the petition upon the board. The court, after its review, may suspend the member for noncompliance, make such a suspension conditional as the court deems appropriate, or determine that no suspension is warranted. 5. If the member fails to comply as required in the notice within the time specified in the notice, or the member fails to file o report of compliance, or the member fails to pay the fee required concurrently with the filing of the report of compliance, and the member does not request a hearing pursuant to subsection 3 the board may, on notice to the member, move the court to suspend the member for noncompliance. If the board gives notice to the member under this subsection, a penalty of $60 payable to the board shall be added to the $30 late fee imposed by subsection 2(b). 6. A member who is suspended for noncompliance pursuant to these rules] (2) advise the attorney that to cure the deficiency the attorney must comply with the applicable rules and pay all applicable fees including late fees; and (3) advise the attorney that to avoid being the subject of a petition for suspension, the deficiency must be completely cured on or before May 1. It shall not be a defense to noncompliance that the attorney did not receive the notice of noncompliance. 2. Petition for suspension. Failure to timely comply with the provisions of these rules shall result in the board placing the attorney's name on a petition to be filed with the court to have the attorney's status changed to CLE suspended and to be barred from practicing law in the State of Nevada until such time as the attorney is reinstated pursuant to Rule 213. The petition shall conform, to the extent practicable, to the requirements of NRAP 21 and shall be served on the attorney via certified mail to the attorney's last known address on or about June 1. It shall not be a defense to noncompliance that the attorney did not receive the petition. 3. Order to show cause. The court, after reviewing the petition, may order the attorney to show cause why the attorney's status should not be changed to CLE suspended and why the attorney should not be barred from practicing law in the State of Nevada until such time as the attorney is reinstated pursuant to Rule 213. 4. Consent to dismissal; increased penalties for repeat offenders. (a) Consent to dismissal. In the event that an attorney who has been placed on a petition pursuant to subsection 2 demonstrates compliance with these rules prior to suspension by the court, the board may consent to dismissal of the petition with prejudice as to that attorney, subject to the payment of the requisite fee. (b) Fee: penalties for repeat offenders. The fee for processing the consent to dismissal shall be as follows: (1) $250 the first time an attorney has been placed on petition in the preceding five-year period. (2) $350 the second time an attorney has been placed on petition in the preceding five-year period. (3) $550 the third time an attorney has been placed on petition in the preceding five-year period. (4) $850 the fourth time an attorney has been placed on petition in the preceding five-year period. (5) $1,250 the fifth time an attorney has been placed on petition in the preceding five-year period. The consent to dismissal fee is separate from and in addition to any other fees owed. 5. Order of CLE suspension; publication required; other requirements. If an attorney placed on petition and ordered to show cause under this rule fails to demonstrate cause as ordered, the court may order the attorney suspended for noncompliance with these rules. The order of suspension shall be published in the state bar's official publication. In the event that the court suspends an attorney for noncompliance with these rules, the attorney is not entitled to engage in the practice of law in the State of Nevada until such time as the [ member ] attorney is reinstated [ to the status of an active member. A member ] under Rule 213. An attorney who is suspended for noncompliance with these rules must comply with Rule 115. If the [ member ] attorney fails to comply with Rule 115, then the board shall proceed under Rule 118. The board shall also comply with Rule 121.1.
6. Multiple suspensions; referral to state bar. In the event that an attorney is suspended by the court for noncompliance with all or any portion of these rules more than once within a five-year period, that attorney shall be referred by the board to the state bar for appropriate disciplinary action. Rule 213. Reinstatement to active status. [ If a member ] 1. Application for reinstatement. If an attorney has been suspended as a result of noncompliance with all or any portion of these rules, the [ member may be reinstated by filing ] attorney may apply for reinstatement as follows: (a) Application. The attorney must file with the board a reinstatement application, properly verified and fully and accurately completed, in a form approved by the board [, stating that the suspended member has completed n minimum of 13 hours of accredited educational activity, at least 2 of which must be in the area of ethics and professional responsibility, within the period of 12 months immediately preceding the filing of the application with the board ]. (b) Reinstatement fee. The reinstatement application must be accompanied by a fee of $[ 250 ]500. The reinstatement fee is separate from and in addition to the annual fee required to be paid for the year in which reinstatement is sought. [ If the ] (c) Reinstatement credits. The reinstatement [ report ] application must be accompanied by proof that the attorney has completed a minimum of fifteen (15) hours of accredited educational activity, at least six (6) of which must be exclusively in the area of ethics and professional conduct within the period of twelve (12) months immediately preceding the filing of the application with the board. This requirement is separate from and in addition to the annual credit requirement of Rule 210(2). 2. Approval by the board. If the application f or reinstatement appears satisfactory to the board, the board shall notify the clerk of the court and the state bar that the suspended [member ] attorney has completed the requirements for reinstatement, and, so long as the sole condition of reinstatement is compliance with Rule 213, the suspended [ member] attorney shall become automatically reinstated upon receipt by the clerk of the court of the notice from the board stating that the [member] attorney has complied with the requirements of this rule.
Rule 214. Exemptions.
1. The following [persons ] attorneys are entitled to an exemption from the requirements of Rule [ s ] 210 [and 211 ]:
(a) Any active member who has successfully completed the Nevada state bar examination in the present calendar year. The exemption shall be for the remainder of the calendar year in which the examination was successfully completed and the first full calendar year thereafter. Commencing on January 1 of the second [ full ] calendar year after the successful completion of the examination, the active member becomes subject to these [ Rules .
[ (i) ] rules. Notwithstanding [Rule 21 4 (1)(n) ] this exemption, each active member of the state bar, within the first year following the successful completion of the Nevada state bar examination, shall complete the [ Bridge the Gap] Introduction to Nevada Practice and Procedure program. [ The Bridge the Gap program shall be offered at a charge designed to cover the expenses of the seminar. ]
(b) Any active member who is [ also ] a full-time member of the federal judiciary.
(c) Any member of the state bar who, while not in default of the obligations imposed by these [ Rules ] rules, has been voluntarily placed on inactive status; provided, however, that such voluntary placement must have been given in writing to the state bar and the board prior to the expiration of the applicable calendar year for which the exemption is claimed.
(d) Any active member who has attained the age of 70 years.
(e) Any active member who is deployed on full-time active duty in the armed forces of the United States, until the member's release from active military service and resumption of the practice of law. 2. The board, in its discretion, may [ afford ] grant an [ active member] attorney subject to these rules an exemption upon circumstances constituting exceptional, extreme and undue hardship unique to the [ member ] attorney, subject to the following:
(a) The [ active member ] attorney seeking the exemption shall promptly file with the board a verified application, specifying in detail the circumstances which the [active member] attorney believes afford a basis for an exemption;
(b) The board may, but need not, exempt the [member ] attorney from all or a portion of these [ Rules ] rules; and
(c) The board may condition the exemption upon such terms and conditions, and limit the exemption or partial exemption to such period of time, as the board may deem appropriate [; and ]. [ (d) The member may petition the court, within 30 days of the dote of determination by the board on the application, to review the determination by the board.] Rule 215. [ Petitions for relief. ] Reporting change of address; penalty for failure to timely report. [Petitions for relief under the s e Rules s hall conform, so far as practicable, to the procedure proscribed in N.R.A.P. 211 Should a member of the bar and the board consent to the dismissal of any petition to the court, the member s hall pay to the board, in addition to any fees owed to the court and any fee s owed to the board under Rule 212, a fee of $100 to process a consent for the applicable year.] 1. Duty to notify of change of address. Every attorney subject to these rules shall maintain a permanent mailing address with the board to which all communications to the attorney shall be addressed. The attorney must advise the board of any change of address within thirty (30) days after such change. The obligations under this rule are separate and distinct from the requirements of Rule 79; therefore, compliance with Rule 79 is not deemed compliance with this rule. 2. Penalty for failure to timely report change of address. Failure to timely advise the board of a change of address pursuant to this rule shall result in assessment of a penalty of $150. The penalty for failure to timely report the attorney's change of address is separate from and in addition to any other fees collected by the board. It is also separate and distinct from any fees collected by the state bar under Rule 79. Failure to comply with the provisions of this rule is also a basis for the attorney's name being placed on a petition for suspension pursuant to Rule 212(2).