Miss. R. Prof. Conduct Scope

The Rules of Professional Conduct are rules of reason. They should be interpreted

with reference to the purposes of legal representation and of the law itself. Some of the

Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct

for purposes of professional discipline. Others, generally cast in the term "may," are

permissive and define areas under the Rules in which the lawyer has professional discretion.

No disciplinary action should be taken when the lawyer chooses not to act or acts within the

bounds of such discretion. Other Rules define the nature of relationships between the lawyer

and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and

descriptive in that they define a lawyer's professional role. Many of the Comments use the

term "should." Comments do not add obligations to the Rules but provide guidance for

practicing in compliance with the Rules.

The Rules presuppose a larger legal context shaping the lawyer’s role. That context

includes court rules and statutes relating to matters of licensure, laws defining specific

obligations of lawyers and substantive and procedural law in general. The Comments are

sometimes used to alert lawyers to their responsibilities under such other law. Compliance

with the Rules, as with all laws in an open society, depends primarily upon understanding and

voluntary compliance, secondarily upon reinforcement by peer and public opinion and

finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do

not, however, exhaust the moral and ethical considerations that should inform a lawyer, for

no worthwhile human activity can be completely defined by legal rules. The Rules simply

provide a framework for the ethical practice of law.

Furthermore, for purposes of determining the lawyer's authority and responsibility,

principles of substantive law external to these Rules determine whether a client-lawyer

relationship exists. Most of the duties flowing from the client-lawyer relationship attach only

after the client has requested the lawyer to render legal services and the lawyer has agreed

to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may

attach when the lawyer agrees to consider whether a client-lawyer relationship shall be

established. Whether a client-lawyer relationship exists for any specific purpose can depend

on the circumstances and may be a question of fact.

Under various legal provisions, including constitutional, statutory and common law,

the responsibilities of government lawyers may include authority concerning legal matters

that ordinarily reposes in the client in the private client-lawyer relationships. For example,

a lawyer for a government agency may have authority on behalf of the government to decide

upon settlement or whether to appeal from an adverse judgment. Such authority in various

respects is generally vested in the attorney general and the state’s attorney in state

government, and their federal counterparts, and the same may be true of other government

law officers. Also, lawyers under the supervision of these officers may be authorized to

represent several government agencies in intra governmental legal controversies where a

private lawyer could not represent multiple private clients. These Rules do not abrogate any

such authority.

Failure to comply with an obligation or prohibition imposed by a Rule is a basis for

invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a

lawyer's conduct will be made on the basis of the facts and circumstances as they existed at

the time of the conduct in question and in recognition of the fact that a lawyer often has to

act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose

that whether or not discipline should be imposed for a violation, and the severity of a

sanction, depend on all the circumstances, such as the willfulness and seriousness of the

violation, extenuating factors and whether there have been previous violations.

Violation of a Rule should not give rise to a cause of action nor should it create any

presumption that a legal duty has been breached. The Rules are designed to provide guidance

to lawyers and to provide a structure for regulating conduct through disciplinary agencies.

They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules

can be subverted when they are invoked by opposing parties as procedural weapons. The fact

that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under

the administration of a disciplinary authority, does not imply that an antagonist in a collateral

proceeding or transaction has standing to seek enforcement of the Rule. Accordingly,

nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or

the extra-disciplinary consequences of violating such a duty.

Moreover, these Rules are not intended to govern or affect judicial application of

either the attorney-client or work product privilege. Those privileges were developed to

promote compliance with law and fairness in litigation. In reliance on the attorney-client

privilege, clients are entitled to expect that communications within the scope of the privilege

will be protected against compelled disclosure. The attorney-client privilege is that of the

client and not of the lawyer. The fact that in exceptional situations the lawyer under the

Rules has a limited discretion to disclose a client confidence does not vitiate the proposition

that, as a general matter, the client has a reasonable expectation that information relating to

the client will not be voluntarily disclosed and that disclosure of such information may be

judicially compelled only in accordance with recognized exceptions to the attorney-client and

work product privileges.

The lawyer's exercise of discretion not to disclose information under Rule 1.6 should

not be subject to reexamination. Permitting such reexamination would be incompatible with

the general policy of promoting compliance with law through assurances that

communications will be protected against disclosure.

The Comment accompanying each Rule explains and illustrates the meaning and

purpose of the Rule. The Preamble and this note on Scope provide general orientation. The

Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

Research notes were prepared to compare counterparts in the Mississippi Code of

Professional Responsibility (adopted 1971, as amended) and to provide selected references

to other authorities. The notes have not been adopted, do not constitute part of the Rules and

are not intended to affect the application or interpretation of the Rules and Comments.