In Re: Rules of Professional Conduct
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Serial: 167564
IN THE SUPREME COURT OF MISSISSIPPI
No. 89-R-99018-SCT
IN RE: RULES OF PROFESSIONAL
CONDUCT
CORRECTED ORDER
This matter is before the Court en banc on the recommendation of the Mississippi Access
to Justice Commission to create rule 6.5, and to amend rules 1.1, 1.2, and 1.16 of the Rules of
Professional Conduct. After due consideration, the Court finds that the amendments set forth in
Exhibit “A” will promote the fair and efficient administration of justice.
IT IS THEREFORE ORDERED that the recommendation of the Mississippi Access to
Justice Commission to amend the Rules of Professional Conduct is hereby approved by this Court.
Rules 1.1, 1.2, and 1.16 are hereby amended as set forth in Exhibit “A”. Further, Rule 6.5 is hereby
adopted as set forth in Exhibit “A”. These amendments are effective on July 1, 2011.
IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the
minutes of the Court and that a true certified copy be forwarded forthwith to West Publishing
Company for publication in Southern Reporter Third Series (Mississippi Edition) and the Mississippi
Rules of Court.
SO ORDERED, this the
28th day of January, 2011.
/s/ William L. Waller, Jr.
WILLIAM L. WALLER, JR.,
CHIEF JUSTICE
EXHIBIT A
M.R.P.C. 1.1 COMPETENCE
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.
Comment
Thoroughness and Preparation. Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners. It also includes adequate preparation.
The required attention and preparation are determined in part by what is at stake; major litigation
and complex transactions ordinarily require more elaborate treatment than matters of lesser
consequence. An agreement between the lawyer and the client regarding the scope of the
representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).
M.R.P.C 1.2 SCOPE OF REPRESENTATION
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation,
subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they
are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of
settlement of a matter. In a criminal case, a lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or activities.
(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.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that a lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of
Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant
limitations on the lawyer's conduct.
Comment
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 be for a specifically defined
purpose. Representation provided through a legal aid agency maybe 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.
M.R.P.C. 1.16 DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if
withdrawal can be accomplished without materially adverse effect on the interests of the client, or
if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers repugnant or
imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the obligation
is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time
for employment of other counsel, surrendering papers and property to which the client is entitled and
refunding any advance payment that has not been earned. The lawyer may retain papers relating to
the client to the extent permitted by other law.
Comment
A lawyer should not accept representation in a matter unless it can be performed competently,
promptly, without improper conflict of interest and to completion. Representation in a matter is
completed when the agreed-upon assistance has been concluded.
...
Optional Withdrawal. A lawyer may withdraw from representation in some circumstances.
The lawyer has the option to withdraw if it can be accomplished without material adverse effect on
the client's interests. Withdrawal is also justified if the client persists in a course of action that the
lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated
with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's
services were misused in the past even if that would materially prejudice the client. The lawyer also
may withdraw where the client insists on a repugnant or imprudent objective.
A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the
representation, such as an agreement concerning fees or court costs or an agreement limiting the
objectives or scope of the representation.
MODEL 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 to a client 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.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation
governed by this Rule.
Comment
[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 as legal-advice hotlines, advice-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 Rule 1.2(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 conflicts 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 the 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 1.10 when 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 disqualified from 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.
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