Mississippi

Differences from ABA Model Rules

Rule 1.2(c) Limited Scope Significant Changes
Rule 5.4(a) Fee-SharingSignificant Changes
Rules 5.4(b)-(d) Non-Lawyer OwnershipSignificant Changes
Rule 5.5. Unauthorized Practice of LawSignificant Changes
Rule 5.7 Law Related ServicesDoes Not Have
Rule 6.5 Limited ScopeSignificant Changes
Rule 7.2(b) Lawyer ReferralSignificant Changes
Cloud Computing AdvisoryNo
Technology Competency RulesNo

ABA Rule 1.2(c) (Limited Scope)

RULE 1.2 SCOPE OF REPRESENTATION

(c) A lawyer may limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

Relevant Comments:

Services Limited in Objectives or Means. The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may befor a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage.

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Limited scope representation is an important means of providing access to justice for all persons regardless of financial resources. Lawyers are encouraged to offer limited services when appropriate, particularly when a client’s financial resources are insufficient to secure full scope of services. For example, lawyers may provide counsel and advice and may draft letters or pleadings. Lawyers may assist clients in preparation for litigation with or without appearing as counsel of record. Within litigation, lawyers may limit representation to attend a hearing on a discrete matter, such as a deposition or hearing, or to a specific issue in litigation.

Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example,a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation,the limitation is a factor to be considered when determining the legal knowledge, skill,thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

Modified By:

Mississippi State Bar Op. 176 (1990; Amended 2013) (An attorney may participate in a counseling service sponsored by a Chamber of Commerce in which business owners receive free legal counseling on a limited basis.)

Hartford Accident & Indem. Co. v. Foster, 528 So. 2d 255 (Miss. 1988) (insurance policy may not contain provisions limiting ethical obligations owed by insurance company lawyers to insured clients)

ABA Rule 5.4(a) (Fee-sharing)

RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;

(2) a lawyer who purchases the practice of law of a deceased, disabled or disappeared lawyer may pursuant to the provisions of Rule 1.17, pay to the estate o other representative of that lawyer the agreed-upon purchase price; and

(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement

Relevant Comments:

The provisions of this Rule express traditional limitations on sharing fees. These imitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.

ABA Rule 5.4(b – d) Non-lawyer ownership

RULE 5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer

ABA Rule 5.5 (UPL)

RULE 5.5 UNAUTHORIZED PRACTICE OF LAW

A lawyer shall not:

(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.

Relevant Comments:

The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

Modified By:

Am. Express Centurion Bank v. Hendrix, 411 B.R. 539 (N.D. Miss. 2009).

Other Definitions:

Mississippi Com’n on Judicial Performance v. Jenkins, 725 So.2d 162 (Miss. 1998)

This Court defined the practice of law to include “… the drafting or selection of documents, the giving of advice in regard to them, and the using of an informed or trained discretion in the drafting of documents to meet the needs of the person being served. So any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession. Oregon State Bar v. Security Escrows, Inc., 233 Or. 80, 377 P.2d 334 (1962).” Darby v. Mississippi State Bd. of Bar Admissions, 185 So.2d 684, 687 (Miss.1966).

Darby v. Mississippi State Board of Bar Admissions, 185 So.2d 684, 688 (1966).

The acts designated in Section 8682 as constituting the practice of law are not all-exclusive nor all-inclusive. Manifestly there are many others which might be performed by an unlicensed person which may also constitute the practice of law. Section 8682 (Miss. Code Ann.) simply provides that the designated acts under the defined circumstances constitute the unlawful practice of law, but it does not encroach on the constitutional power of the judiciary to determine that other acts may also do so.

Mississippi Code Annotated §73-3-55. Unlawful to practice law without license; certain abstract companies may certify titles.

It shall be unlawful for any person to engage in the practice of law in this state who has not been licensed according to law. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be punished in accordance with the provisions of section 97-23-43. Any person who shall for fee or reward or promise directly or indirectly write or dictate any paper or instrument of writing to be filed in any cause or proceeding pending or to be instituted in any court in this state or give any counsel or advice therein or who shall write or dictate any bill of sale deed of conveyance deed of trust mortgage contract or last will and testament or shall make or certify to any abstract of title or real estate other than his own or in which he may own an interest shall be held to be engaged in the practice of law. This section shall not however prevent title or abstract of title guaranty companies incorporated under the laws of this state from making abstract or certifying titles to real estate where it acts through some person as agent authorized under the laws of the State of Mississippi to practice law; nor shall this section prevent any abstract company chartered under the laws of the State of Mississippi with apaid up capital of fifty thousand dollars ($50,000.00) or more from making or certifying to abstracts of title to real estate through the president secretary or other principal officer of such company.

ABA Rule 5.7 (Law Related Services)

Does not have.

ABA Rule 6.5 (Court annexed/Non-profit limited scope)

RULE 6.5 NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited pro bono legal services without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

Relevant Comments:

[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services – such as advice or the completion of legal forms – that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such a legal-advice hotlines, advise-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7,1.9 and 1.10.

[2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including the duty of confidentiality set out in Rule 1.6 and 1.9(b) are applicable to the limited representation.

[3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflict of interest, paragraph (a)requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in a matter.

[4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10when the lawyer knows that the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. The lawyer participating in the pro bono representation is disqualifiedfrom continued representation of the pro bono client or from participating in his firm’s representation of a client with interests adverse to the pro bono client. However, his personal disqualification will not be imputed to other lawyers in his firm.

[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7,1.9(a) and 1.10 become applicable.

ABA Rule 7.2(b) (Lawyer referral)

RULE 7.2 ADVERTISING

(i)The lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or a written or recorded communication permitted by these Rules and may pay the usual charges of a lawyer referral service or to other legal service organization.

Relevant Comments:

Paying Others to Recommend a Lawyer. A lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices.Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs. Paragraph (i) does not prohibit paying regular compensation toan assistant, such as secretary or advertising consultant, to prepare communications permitted by this Rule.

Modified By:

Emil v. Miss. Bar, 690 So. 2d 301 (Miss. 1997) (lawyer suspended for using paid investigator to find prospective personal injury clients)

Cloud Computing

No opinions available.

Technology Competency    

Does not require.