Can a certified law student appear in court for a client without the supervising lawyer physically present, if the client, the lawyer, and the judge all agree?
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This page answers the general question as of 2011. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A recent law school graduate, now a Nevada-licensed lawyer not employed by the Boyd School of Law clinical program, asked about the scope of "supervision" under SCR 49.5, Nevada's student practice rule. Specifically, where a law student holds level 2 certification under SCR 49.5, may the supervising lawyer be excused from being physically present during a court or administrative appearance if the client, the supervising lawyer, and the presiding judge approve? The opinion limited itself to the physical-presence requirement for a supervising lawyer who is not part of the Boyd clinical program.
The Committee answered no. Under SCR 49.5, the physical-presence requirement for a non-clinical supervising lawyer cannot be circumvented, even with the approval of the client, the lawyer, and the judge. The opinion explains that SCR 49.5 defines "supervising lawyer" and "supervision" to include a presence requirement when the student is before a tribunal, and that the Boyd clinical program operates under a separate "continuously personally present" standard adopted by a 2008 amendment that does not extend to non-clinical supervisors. The opinion reinforces this with parallel authorities: U.S. District Court for the District of Nevada Local Rule IA 10-5 requires the supervising lawyer to appear with the student at all oral presentations; the Ninth Circuit's student-practice rule (Circuit Rule 46-4) requires the supervising lawyer to appear with the student, assume personal professional responsibility, and supplement the student's work; and Eighth Judicial District Court Rule 7.44 requires associated Nevada counsel even for lawyers admitted pro hac vice.
The opinion then addresses the ethical consequences. For law students, filing an application under the student-practice rule is consent to be subject to all disciplinary processes of the State Bar (SCR 49.5(1)(d)), and the potential result includes suspension or forfeiture of the privilege of taking the bar examination and being licensed to practice. For supervising lawyers, failure to supervise may be evidence of breach of the standard of care owed the client and of breach of NRPC 5.3 (reasonable efforts to ensure the nonlawyer student's conduct is compatible with the lawyer's professional obligations, and responsibility for the student's misconduct if the lawyer orders, ratifies, or fails to take remedial action) and NRPC 5.5 (assisting the unauthorized practice of law). The Committee concluded that, under the plain language of SCR 49.5, non-clinical supervising lawyers must be continuously personally present whenever the student is before a court or administrative tribunal, a requirement shared by most other student-practice rules.
In practice
The opinion holds that, under the Nevada rules, a certified law student may not appear before a court or administrative tribunal unless a non-clinical supervising lawyer is physically present, and that the parties' and the judge's consent cannot waive that requirement. A supervising lawyer who allows an unsupervised appearance risks discipline under NRPC 5.3 and 5.5 and a malpractice standard-of-care claim, and the student risks losing the privilege to sit for the bar exam.
Common questions
Q: Can a certified law student handle a court hearing alone if everyone consents?
A: No. The opinion concluded that under SCR 49.5 the physical-presence requirement for a non-clinical supervising lawyer cannot be circumvented even with the approval of the client, the supervising lawyer, and the judge.
Q: Does the Boyd clinical program follow the same rule?
A: The opinion notes the Boyd clinical program operates under a separate "continuously personally present" standard adopted by a 2008 amendment; the opinion addresses only supervising lawyers who are not part of that program.
Q: What happens to a lawyer who does not properly supervise the student?
A: Per the opinion, the lawyer may face discipline under NRPC 5.3 (responsibility for a nonlawyer's conduct) and NRPC 5.5 (assisting the unauthorized practice of law), and may have breached the standard of care owed the client.
Q: What is the risk to the law student?
A: The opinion explains the student consents to all State Bar disciplinary processes under SCR 49.5(1)(d), and may face suspension or forfeiture of the privilege of taking the bar exam and being licensed.
Background and rules framework
The opinion interprets SCR 49.5 (Nevada's student practice rule and its supervision/physical-presence requirements) and the related court rules (D. Nev. LR IA 10-5, Ninth Circuit Rule 46-4, and EDCR 7.44), together with the lawyer's supervisory duties under NRPC 5.3 (responsibilities regarding nonlawyer assistance) and NRPC 5.5 (unauthorized practice of law).
Citations and references
Rules of Professional Conduct:
- Model Rule 5.3 / Nev. RPC 5.3 (responsibilities regarding nonlawyer assistance)
- Model Rule 5.5 / Nev. RPC 5.5 (unauthorized practice of law)
Court rules:
- Nev. SCR 49.5 (student practice rule)
- D. Nev. Local Rule IA 10-5; Ninth Circuit Rule 46-4; EDCR 7.44
See also
- NV Ethics Op. 43: out-of-state lawyer associating with a Nevada firm; unauthorized practice
- NV Ethics Op. 40: out-of-state lawyer representing Social Security claimants in Nevada
Source
- Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
- Original PDF: https://nvbar.org/wp-content/uploads/Ethics_Op_50.pdf
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