Tuesday, April 10, 2001 | 10:14 a.m.
The State Bar of Nevada has been sued by a second out-of-state law firm seeking approval to practice in Nevada using its deceased founding members' names -- even though they weren't members of the Nevada Bar.
Phoenix-based Snell & Wilmer LLP and its two Las Vegas-area attorneys, Patricia Curtis and Greg Walker, sued Rob Bare, Bar Counsel to the State Bar of Nevada, in U.S. District Court last week.
Snell & Wilmer hopes to win an order like that won last year by Lewis and Roca LLP, another Phoenix law firm, that would allow the firm to practice in Nevada using its deceased founding members' names.
Snell & Wilmer, like Lewis and Roca, is challenging the constitutionality of Nevada Supreme Court Rule 199, which prohibits a law firm from using the names of partners who aren't members of the Nevada Bar. Snell & Wilmer calls this a violation of its First Amendment rights to conduct business in Nevada using its 51-year-old name.
Snell & Wilmer, which said it has seven attorneys who have been admitted and are members in good standing with the Nevada Bar, argued it would be impossible to comply with Rule 199 because its founding partners, Frank Snell and Mark Wilmer, are both dead and neither was ever a member of the Nevada Bar.
A hearing on Snell & Wilmer's request for a temporary restraining order is scheduled for Wednesday in U.S. District Court.
Snell & Wilmer, which has opened offices in three other states using its trade name, filed the lawsuit after Bare issued a warning to the firm on March 26 when it announced its plan to open its first Las Vegas branch office on April 2.
In response to Bare's warning that the State Bar would bring disciplinary proceedings against the firm if it violated Rule 199, the plaintiffs said they haven't used the name "Snell & Wilmer LLP" to date and are operating their Las Vegas office under the name, "Curtis & Associates, affiliated with Snell & Wilmer LLP."
An attorney for Bare declined comment on the lawsuit.
Lewis and Roca also sued Bare after he threatened disciplinary action against the firm for violating Rule 199, forcing it to operate under the name, "Ashcraft and Heinz." Marti Ashcraft and Von Heinz, both attorneys in the office, are long-time members of the Nevada Bar.
The Nevada Bar in 1994 concluded after a study on the constitutionality of Rule 199 that "this rule infringes upon the constitutional rights of an out-of-state law firm which desires to practice law in the state of Nevada through members who are duly licensed Nevada attorneys," the suit said.
The Nevada Bar, at that time, recognized that the public is "not misled by rules which allow law firms to practice law under the same name in different states, even after the death of the firm's name partners," the suit said.
The Nevada Bar also recognized that firms in other industries such as accounting and securities operate in Nevada with "national names tied to individuals outside of Nevada without concern of deception," the suit said.
But in 1996, without any written explanation, the Nevada Supreme Court declined to change Rule 199 and instead directed the Nevada Bar to "take any action necessary to enforce the terms of the rules with respect to law firms maintaining a law office or practicing law within the state of Nevada," the suit said.
Meanwhile, Bare had appealed the federal court's ruling on the Lewis and Roca suit to the 9th U.S. Circuit Court of Appeals. But the ruling was affirmed.
The federal court, in its preliminary order, rejected the Nevada Bar's efforts to rely on two other Nevada Supreme Court rules, 188 and 189, to save Rule 199, Lewis and Roca said in its latest pleadings on April 6.
Rule 188 prohibits Nevada lawyers from sharing legal fees with a non-lawyer. Rule 189 prohibits "direct or indirect unauthorized practice of law and prevents Nevada lawyers from subjecting their professional judgment to direction, regulation or control of persons not members of the Nevada Bar."
The federal court ruled last April that "attorneys in partnership with or employed by ... Lewis and Roca do not violate the provision of Rule 188 because lawyers at Lewis and Roca who are not admitted to practice law in Nevada are not considered to be non-lawyers."
The court's ruling also said the Bar does not explain how Nevada lawyers with Lewis and Roca are violating Rule 189 if only Nevada lawyers with the firm practice law in Nevada.
But Norman Kirshman, Bare's attorney, in court papers filed March 15, disagreed with the court's ruling.
"The issue of direction or control of the professional judgment of the Nevada lawyers by the non-Nevada lawyers, prohibited by Rule 188 and therefore, Rule 189, was not addressed by the District Court ... Evidence of such direction or control would provide support consistent with the First Amendment, for the application of Rule 199 to preclude the use of the name Lewis and Roca LLP in Nevada."
Kirshman said evidence of such alleged control by non-Nevada lawyers is seen in the "imbalance in experience between the non-Nevada and Nevada lawyers, Lewis and Roca's financial strength, and the fact that Ashcraft ... and Heinz are recently acquired employees of Lewis and Roca, who in all likelihood, are required to practice law in conformance with policies etc. established by the senior and controlling non-Nevada licensed members of that firm."
Lewis and Roca, in its April 6 court papers, is seeking a federal order to make permanent the injunction to stop the enforcement of Rule 199 and to declare the rule unconstitutional.
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