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									 The Mississippi Bar - Professionalism Handbook (Ethics & Professionalism)



                                  Professionalism Handbook
        The Handbook on Professionalism was prepared by professionals to provide general information
about professionalism. It is provided with the understanding that the publisher, editors and authors are not
rendering specific legal advice. Although prepared by professionals, this information should not be
utilized as a substitute for professional advice in specific situations. If legal advice or other expert
assistance is required, the service of a professional should be sought.

        The authors, editors and publishers, specifically disclaim any liability, loss or risk incurred as a
result of the use and application of, either directly or indirectly, any advice or information presented in
the Handbook.

       Any statement included in the Handbook is believed to accurately reflect the state of the law
concerning professionalism as of the date the chapters were written. However, the law is not static and
changes on a regular basis. Therefore, a review of all applicable rules, statues, decisions and other
authority should be made depending upon the specific circumstances involved in each situation.

                         Preface, Table of Contents, Chapters 1, 2, 3, 4, 5, 6, 7, 8, Appendix A



                                                                   Preface
The centerpiece of the Handbook on Professionalism is the Mississippi Rules of Professional Conduct.
The book presents the Rules as they pertain to a lawyer's functional roles.

In general, lawyers operate in three spheres that overlap at many points. First, lawyers represent clients.
Second, lawyers are obliged to implement and improve our legal system. Third, lawyers of necessity
must concern themselves with the mundane minutiae of making a living. The Mississippi Rules of
Professional Conduct permeate all three aspects of practicing law. The handbook is intended to
demonstrate just how it does so, with heavy emphasis on the genuine ethical dilemmas that challenge us
all.

Mere adherence to the Rules, however, is not always enough to ensure that we will continue to uphold the
exacting standards of professionalism that have characterized the practice of law in Mississippi. Thus, the
handbook will emphasize not simply what the Rules require, but also what is additionally necessary if we
are to preserve the right to call ourselves professionals.

The practice of law has never been a business in the traditional sense. Lawyers must undergo rigorous
formal training and then be qualified by a state licensing authority. By common consent and tradition, we
regulate ourselves. Our Rules of Professional Conduct balance many important interests, but exclude self-
interest. As professionals, we must subordinate financial reward to social responsibility, and we should


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aspire to conduct ourselves with honor and civility.

The authors have been drawn from among the best of our judges and lawyers. They are a diverse group.
They are united, however, by their deep commitment to the principles that underlie the Rules of
Professional Conduct and the ideals that inspire professionalism in the practice of law.




                                          Professionalism Handbook
                                                               Table of Contents

                                                              Chapter One:
                                                       Major Disciplinary Problems

                                                         Chapter Two:
                                          Business Development and Fee Arrangements

                                                           Chapter Three:
                                                  Handling Client Funds and Property

                                                                Chapter Four:
                                                              Undivided Loyalty

                                                 Chapter Five:
                     Competence; Maintaining Clients; Terminating Employment; Confidences

                                                            Chapter Six:
                                               Duty to Court; Obligation to Good Faith

                                                  Chapter Seven:
                        Relationships With Attorneys and Others Involved in the Legal System

                                                          Chapter Eight:
                                            Obligation to Profession and to Community

                                                                   Appendix A




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                                    Special Thanks from The Mississippi Bar
A special note of appreciation goes to attorney Mike Ulmer who served as Chair of the Professionalism
Committee of The Mississippi Bar from 1993-95. During this time, this handbook was developed under
                                             his leadership.




                                      Special Thanks to Contributing Authors
The Mississippi Bar and the Professionalism Committee are indebted to the following attorneys for their
    generous donation of time, energy and expertise in writing the materials for the Professionalism
                                             Handbook.

                                                    Alex A. Alston, Jackson
                                                 Rueben V. Anderson, Jackson
                                                  Tom Bourdeaux (deceased)
                                                      Luke Dove, Jackson
                                                   Tommy E. Furby, Jackson
                                                 E. Evelyn Gandy, Hattiesburg
                                                    Billie J. Graham, Laurel
                                         Retired Chief Justice Armis Hawkins, Houston
                                                   Michael B. Martz, Jackson
                                                 Charles M. Merkel, Clarksdale
                                                    Joe Sam Owen, Gulfport
                                                 L. F. Sandy Sams, Jr., Tupelo
                                                W.C. Cham Trotter, III, Belzoni
                                                  Michael W. Ulmer, Jackson
                                                  Sherwood W. Wise, Jackson



                                                                   Main Menu




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 Chapter One

                                                               Chapter One


                                  Major Disciplinary Problems

                                                            I. Introduction

It is essential that Mississippi lawyers recognize that compliance with the requirements of the Mississippi
Rules of Professional Conduct (the MRPC) requires more than honesty and a general ability to discern
right from wrong. It is occasionally observed that the study of legal ethics is no more than an olfactory
engagement with the established precepts of right and wrong: "if it doesn't smell right, don't do it." If
legal ethics is so simple, however, how does one explain the dramatic increase in the number of
complaints filed each year against attorneys or the increase in the sanctions imposed against attorneys? A
suggested response is that professional responsibility comprises a body of substantive law just as other
fields of law. If this premise is correct, a lawyer's ability to comply with the requirements of the MRPC
will depend upon his or her diligence in studying the Rules and Ethics Opinions, and his or her careful
application of those requirements to his or her everyday practice. The MRPC deal with legally required
conduct, prohibiting conduct which is not just malum in se (prohibited because it is inherently or morally
wrong), but also which is malum prohibitum (acts which are not inherently wrong in themselves but
which are prohibited by law).

This outline will introduce the patterns of misconduct most frequently cited in ethical complaints filed
with The Mississippi Bar. The specific Rule violations involved in each of these patterns will be the
subject of detailed discussion in other outlines of this publication.

                                II. Patterns of Misconduct and Complaint Avoidance

A.
        Introduction

        For many years, The Mississippi Bar has maintained records of the complaints filed with it. These
        records reveal the frequency with which clients and others have complained about certain lawyer
        conduct and the areas of law involved in those complaints. Familiarity with these patterns of
        alleged misconduct may afford lawyers an opportunity to take appropriate steps to avoid the filing
        of complaints against them.

B.
        Complaints by Area of Law

        1.
                  Frequency


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                  Complaints of lawyer misconduct filed with The Mississippi Bar have consistently been
                  concentrated in certain subject matter areas of practice. For instance, complaints occur
                  with much greater frequency in the areas of (a) Criminal Law, (b) Divorce & Family Law;
                  (c) Real Estate; (d) Personal Injury; (e) Collections; (f) Estate Planning/Administration;
                  and (g) Bankruptcy. On the other hand, matters involving (a) Banking; (b) Corporations;
                  (c) Environmental; (d) Insurance; (e) Professional Malpractice; (f) Securities; (g) Tax Law;
                  (h) Patent and Trademark; and (i) Pension & Profit Sharing are much less frequently (if at
                  all) the basis of ethical complaints.

                  It should be noted that the incidence of complaints filed to initiate disciplinary proceedings
                  in those areas of practice does not also reflect the incidence of professional malpractice
                  actions or the relative risk of civil liability in each of those areas of practice.

2.
        Observations

        A number of factors may influence the frequency of complaints arising out of a particular area of
        practice, particularly in those areas of practice where the frequency of complaints is very high.
        Among these factors are the following:

        a.
                  Profile of Clients

                  The practice areas most frequently giving rise to complaints are traditionally thought to
                  involve clients who are less educated, less sophisticated and also less likely to have
                  personal experience with the particular legal issues involved than clients in other practice
                  areas, thereby increasing the likelihood that the client will blame his or her lawyer for
                  undesired results or be unable to assess the competency with which services were
                  rendered.

        b.
                  Continuing Versus Limited Relationship

                  The practice areas frequently giving rise to disciplinary proceedings generally involve
                  limited attorney-client relationships, relating to single transactions or isolated proceedings.
                  On the other hand, the practice areas infrequently involved in ethics complaints typically
                  involve continuing, and often long-standing, attorney-client relationships. Factors which
                  may be significant in this regard are (1) increased loyalty on both parts, (2) better
                  knowledge and understanding of clients needs and (3) better lawyer responsiveness (i.e.,
                  client seen as important).

        c.

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                 Circumstances

                 It is noteworthy that the areas most often giving rise to complaints are those in which
                 clients are traditionally perceived to be more emotional, thereby increasing the likelihood
                 that the client will have difficulty effectively assisting counsel and understanding
                 communications from counsel, and that the client may transfer his or her emotions from
                 the situation to the lawyer personally. For instance, a husband who feels that he has been
                 betrayed by his wife and that she is trying to "take him for everything" may be more prone
                 to distrust his attorney (or opposing counsel) and allege conflict of interests, excessive fees
                 or other misconduct on the lawyer's part.

       d.
                 Common Complaints Against Lawyers

                 (1) Failure to keep a client informed about the status of the representation;
                 (2) Failure to meet deadlines;
                 (3) Misunderstandings regarding legal fees and costs;
                 (4) Incompetent legal services;
                 (5) Attorney/client conflict with personal interest;
                 (6) Attorney conflict with present/former client;
                 (7) Improper handling of trust funds;
                 (8) Disingenuous conduct with regard to a client, an adversary, or a court;
                 (9) Improper or prejudicial withdrawal as counsel; and,
                 (10) Improper communications with adverse party.

       e.
                 What Can One Do To Avoid Complaints?

                 There is no guarantee that a lawyer will successfully conclude his or her legal career
                 without a complaint being filed against him or her with the bar. Nevertheless, the
                 following are some "tried and true" suggestions which should greatly reduce the possibility
                 of a complaint. As an aside, these suggestions may also aid the lawyer in developing a
                 reputation for competency and professionalism.

                 (1)
                           Maintain an open line of communication with your clients.

                           (a)
                                     Establish a clear understanding with the prospective client at the initial
                                     interview regarding (a) the scope of the representation and (b) the fees and
                                     costs associated with the engagement. See Rule 1.4, MRPC.
                           (b)


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                                     Use non-and disengagement letters. Remember: Contingency fee contracts
                                     must be in writing. See Rule 1.5(c), MRPC.
                           (c)
                                     Consult with clients on all significant matters in the case. Remember that the
                                     experience may be "old hat" to you, but will probably be unique to your
                                     client. When in doubt as to what may be significant, communicate. See Rule
                                     1.2(a), MRPC.
                           (d)
                                     Clients do not like to feel that they are being ignored. If you cannot return
                                     calls, delegate the calls to your assistant.
                           (e)
                                     Inform clients of realistic and achievable goals, time expectations and your
                                     authority as an attorney; recognize your limitations and share those with
                                     your client. Do not make promises you cannot keep.

                 (2)
                           Clearly explain your fees, costs, and billing practices at the inception of the
                           engagement.

                           (a)
                                     Use written and detailed fee arrangements. As soon as feasible after a lawyer
                                     has been employed, it is required that he or she reach a clear understanding
                                     with his or her client as to the basis of the fee charges to be made. Such a
                                     course will not only prevent late misunderstanding but will also work for
                                     good relations between the lawyer and the client. It is usually very beneficial
                                     to reduce to writing the understanding of parties regarding the fee. See Rule
                                     1.5(b), MRPC.
                           (b)
                                     Maintain proper trust account records, expense records, and properly
                                     account to your client for fees, costs and client funds placed in the trust
                                     account. Remember that the client is entitled to an adequate explanation of
                                     the fees and costs incurred during the engagement. See Rule 1.15(b & c),
                                     MRPC.
                           (c)
                                     Maintain detailed and adequate time records, and bill clients regularly with
                                     itemized bills when employed on an hourly basis.
                           (d)
                                     Do not withhold services simply because your client has an outstanding bill.
                                     There are ways in which one may ethically withdraw from representation,
                                     but one surely asks that a complaint be filed if the attorney simply refrains
                                     from working until the bill is paid. See Rules 1.15(b and c), MRPC: Ethics
                                     Opinion 144.
                           (e)

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                                     If there are questions regarding your bill, be available to discuss them with
                                     your client.

                 (3)
                           Accept employment only in those areas of law in which you are competent.

                           Rule 1.1 provides:
                           The lawyer shall provide competent representation to a client. Competent
                           representation requires the legal knowledge, skill, thoroughness and preparation
                           reasonably necessary for the representation. Either decline employment in which
                           you are not competent or associate a competent practitioner to assist you.
                           Remember that the client must know of, and approve, the employment of additional
                           counsel. See Rule 1.5(e)(2), MRPC.

                 (4)
                           Do not compromise your independent professional judgment.

                           (a)
                                     Problems frequently arise when an attorney agrees to represent several
                                     clients in a matter when they have differing, or potentially differing,
                                     interests. Examples that come to mind are (i) partnership formations; (ii)
                                     driver/passenger automobile accidents; (iii) uncontested divorces with
                                     stipulated settlement agreements; and (iv) multiple criminal defendants.
                                     Although Rule 1.7, MRPC, allows an attorney to represent multiple clients
                                     following full disclosure of the conflict by the attorney and informed consent
                                     by the client, and provided that it is obvious that the lawyer can adequately
                                     represent the interest of each, such representation is fraught with potential
                                     peril.
                           (b)
                                     Use a system to screen prospective clients for actual and potential conflicts
                                     of interest. A conflict gone bad will mean that not only must the lawyer
                                     withdraw from the latter representation, but the attorney generally must
                                     withdraw from the existing representation as well.
                           (c)
                                     If you do represent clients whose interests conflict, be sure to reduce the
                                     disclosure or conflict to writing and have the client sign it.
                           (d)
                                     Avoid business and personal financial dealings with your client.
                           (e)
                                     It is advisable to avoid personal relationships with clients while the
                                     representation is ongoing.



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                  (5)
                            Be honest with your client, opposing counsel and the courts.

                            (a)
                                      Respond honestly to questions posed by your client. Do not tell the client
                                      that a suit has been filed when you have not yet even drafted the necessary
                                      documents.
                            (b)
                                      Do not file frivolous claims, motions, defenses. See Rule 3.1, MRPC.
                            (c)
                                      Avoid improper discovery.
                            (d)
                                      Do not threaten to file or pursue criminal charges or disciplinary complaints
                                      to achieve a civil goal.
                            (e)
                                      Avoid improper communication with unrepresented or represented adverse
                                      parties. See Rules 4.2 and 4.3, MRPC.
                            (f )
                                      Do not engage in unnecessary delay tactics or discourteous behavior to
                                      opposing counsel or the court.
                            (g)
                                      Be candid and honest with a tribunal; material omissions and half truths are
                                      considered lies. See Rule 3.3, MRPC.

                  (6)
                            Bring the representation to a conclusion.

                            (a)
                                      At the conclusion of the representation, return all client property and any
                                      unearned fees or unused costs. It is also wise at this point to send a
                                      disengagement letter. See Rules 1.15(b & c), 1.16(d), MRPC.
                            (b)
                                      If you have been discharged during the course of the representation, consult
                                      Rule 1.16. You must take all necessary measures to avoid foreseeable harm
                                      to the client. This admonition holds true if you have withdrawn as counsel.

                                                            III. Conclusion

Honesty and general personal integrity are certainly essential attributes of every good Mississippi lawyer.
However, as the other outlines in this publication emphasize, the MRPC place a substantial premium
upon knowledge of the Disciplinary Rules, Ethics Opinions and the careful application of those
requirements by Mississippi lawyers to their daily practice. Lawyers who are diligent in these areas will


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experience not only the personal satisfaction of playing a role in maintaining our profession as one which
we are proud to be a member, but will also find that the discipline and professionalism demanded by the
MRPC have provided the attorney with a foundation upon which a strong and rewarding practice may be
built.

                               Table of Contents / Chapters 2, 3, 4, 5, 6, 7, 8, Appendix A




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                                                              Chapter Two


               Business Development and Fee Arrangements
                                                 I. Getting and Keeping Clients

A. The Traditional Ways

        1.
                  Professional Notices, Letterheads, Offices and Law Lists (MRPC 7.5).

        2.
                  Friends, Family and Acquaintances.

                  a.
                            Building a Reputation and Getting Exposure.

                            (1)
                                      Through community activities including service clubs, churches and
                                      synagogues and charitable works (MRPC 6.1).
                            (2)
                                      Through educational and public relations programs about our legal system
                                      (MRPC 6.1).

        3.
                  Former Clients.

                  Through demonstrated professional competence including thorough preparation,
                  familiarity with applicable law and timely delivery of services (e.g., returned phone calls).

        4.
                  Other Lawyers.

        5.
                  Through Specialization.

B.
        Advertising and Marketing of Services

        1.
                  A Phenomenon of the Last Decade.

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                  a.
                            Bates v. State Bar of Arizona, 433 U.S. 350 (1977), declaring lawyer advertising
                            within the category of constitutionally protected commercial speech.

                            (1)
                                      Blanket suppression of advertising by attorneys violates the free speech
                                      clause of the First Amendment.
                            (2)
                                      False, deceptive or misleading advertising can be restrained (MRPC 7.1).

                  b.
                            Economic considerations underlying Bates.

                            (1)
                                      Restrictions on advertising serve to perpetuate market position of established
                                      lawyers. Proper advertising is now allowed so as to aid the new competitor-
                                      attorney in penetrating the market.
                            (2)
                                      Proper advertising serves to inform the public of the availability, nature and
                                      price of professional services.
                            (3)
                                      By informing the public, lawyer advertising allocates resources in the free
                                      enterprise system.

C.
        Difference Between Advertising Availability and Soliciting Retention

        1.
                  There is an important distinction between advertising or solicitation which is appropriate
                  and in good taste versus that which, while it can't be legally restrained, is repugnant to the
                  concept of law as a learned profession.

                  a.
                            Bates v. Arizona, supra, involved a newspaper advertisement that the attorneys were
                            operating a "legal clinic" offering "legal services at very reasonable fees."

                  b.
                            Zanderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), upheld the
                            attorney's right to place newspaper copy advertising his availability to handle DWI
                            criminal cases and Dalkon Shield civil cases. Such advertising was held not to
                            involve prohibited pressure or coercion on a prospective client. Because it


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                            contained truthful, non-deceptive information regarding the legal rights of
                            prospective clients, it could not be restrained.

                            (1)
                                      However, the Court upheld the State's reprimand of counsel for stating "full
                                      legal fee [would be] refunded" if the client was convicted of drunk driving
                                      because

                                                (a)
                                                         Ad implied a contingent fee based on outcome of criminal
                                                         case.
                                                (b)
                                                         Ad did not mention likelihood of plea bargain in which client
                                                         would not be convicted of "drunk driving," hence would owe
                                                         full fee.

                            (2)
                                      Court upheld reprimand because the civil ad failed to mention that "costs"
                                      would be owed by client in Dalkon Shield case, even if no fees payable.

                  c.
                            Shapero v. Kentucky Bar Association, 56 U.S. L.W. 4537 (1988), held that direct
                            mail solicitation, targeted to persons with specific legal problems (property about to
                            be foreclosed upon) was constitutionally protected. Shapero held that a State is
                            prohibited from categorically prohibiting lawyers from soliciting business for
                            pecuniary gain by mailing truthful and non-deceptive letters to prospective clients
                            known to the Attorney to be confronted by specific legal problems. The Court held
                            that such advertising is constitutionally protected commercial speech.

                  d.
                            Ethics Opinion 158--After the Shapero decision, Opinion 158 was issued that held
                            that Mississippi attorneys would no longer be bound by Rule 7.3 as it relates to
                            direct solicitation by mail, and that Rule 7.3 would be modified by the Shapero
                            decision. However, no specific language for such solicitation letters was endorsed
                            and the Opinion also noted that Shapero left states with the ability to regulate
                            advertising abuse. (MRPC 7.3).

D. In-Person Solicitation

        1.
                  The State or the Bar constitutionally may discipline a lawyer for soliciting a client in
                  person under circumstances likely to pose dangers that the state has a right to prevent.


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                 Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 56 L.Ed.2d 444 (1978). In Ohralik, the
                 lawyer contacted the parents of one of the drivers injured in an automobile accident after
                 hearing about the accident from another source. He approached the daughter in the hospital
                 and offered to represent her. He subsequently entered into a contract to represent her.
                 Upholding Ohio's suspension of the lawyer, the Court held:

                 a.
                           A lawyer's solicitation of business through direct, in-person communication with a
                           prospective client has long been viewed as inconsistent with the profession's ideal
                           of the attorney-client relationship and as posing a significant potential of harm to
                           the prospective client. Ohralik, at 454.

                 b.
                           The state does not lose its power to regulate commercial activity deemed harmful to
                           the public simply because speech is a component of that activity. Id. at 455-56.

                 c.
                           A lawyer's procurement of remunerative employment is only marginally affected
                           with First Amendment concerns. While entitled to some constitutional protection,
                           appellant's conduct is subject to regulation in furtherance of important state
                           interests. Id. at 457-59.

                 d.
                           The state bears a special responsibility for maintaining standards among members
                           of licensed professions, especially members of the Bar. Protection of the public
                           from those aspects of solicitation that involve fraud, undue influence, intimidation,
                           overreaching and other forms of "vexatious conduct" is a legitimate and important
                           state interest. Id. at 460-62.

                 e.
                           The absence of proof of harm or injury to the person solicited is immaterial. The
                           application of the Disciplinary Rules to appellant, who solicited employment for
                           pecuniary gain under circumstances likely to result in the adverse consequences the
                           state seeks to avert, does not offend the Constitution. Id. at 462-68.

       2.
                 MRPC has adopted no blanket rules prohibiting in-person solicitation.This is governed by
                 Rule 7.3 as modified by Shapero, See E.O. 158 which states "This Opinion does not
                 address other forms of solicitation of business by Attorneys. These would include in-
                 person solicitation, which the Supreme Court has said a state may prohibit, Ohralik v. Ohio
                 State Bar Assn., 436 U.S. 447 (1988), and generally distributed written advertising
                 material offering non-deceptive legal advice to prospective clients which do not pose the


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                 same threats of coercion, intimidation, undue influence, overreaching, or invasion of
                 privacy that justify prohibition of in-person solicitation, Zanderer v. Office of Disciplinary
                 Counsel, 471 U.S. 626 (1985).
                 The Committee must also point out that Shapero does not leave potential abuses of its
                 ruling without remedies and points out that states can so regulate abuses by "...less
                 restrictive and more precise means, the most obvious of which is to require the lawyer to
                 file any solicitation letter with a State Agency... giving the state ample opportunity to
                 supervise mailings and penalize actual abuses."

       3.
                 In-person solicitation for pecuniary gain is seen as having much greater potential for
                 ethical abuse than direct mail contact. The attorney must be sensitive to the difference and
                 act in a way consistent with those Disciplinary Rules, because in-person solicitation is:

                 a.
                           More likely to involve exertion of pressure;

                 b.
                           Often demands an immediate response without opportunity for comparison or
                           reflection on important issues, such as need for counsel, nature of services to be
                           rendered or availability and cost of attorney's services;

                 c.
                           May provide one-sided presentation to encourage speedy and uninformed decision-
                           making;

                 d.
                           May be an inherent conflict of interest; and

                 e.
                           Usually involves a witness other than the client and lawyer as to what took place.

       4.
                 Attorneys are not just "self-employed businessmen," but "trusted agents of their clients and
                 assistants to the Court in search of a just solution to disputes." Cohen v. Hurly, 36 U.S.
                 117, 124 (1961).

       5.
                 Risk of overreaching and undue influence is enough to support State's interest in regulating
                 in-person contact because state and federal laws have recognized abuse inherent in "direct
                 selling" and have regulated to a recognized degree: cooling off periods, bait and switch
                 laws, disclosure laws.

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        6.
                  Attorney solicitation is onerous particularly where the prospective client is seriously ill,
                  physically or mentally, or is a grieving family member.

                                 II. Rule 7 Mississippi Rules of Professional Conduct

On June 23, 1994, the Mississippi Supreme Court entered an order amending Rule 7 of the Mississippi
Rules of Professional Conduct which controls lawyer advertising.

On September 29, 1995 the United States District Court for the Southern District of Mississippi entered
an Order striking most, but not all, of the rules adopted by the Mississippi Supreme Court.

Consequently, what follows are highlights of the rules which currently apply to advertisements and
public communications.

A.
        No advertisement may contain any communication that is false, misleading, deceptive or
        unfair.

B.
        Advertisements may use recorded messages that the public can access by dialing a telephone
        number.

C.
        All advertisements and written communications must include the name of at least one
        lawyer or lawyer referral service that is responsible for the content of the advertisement.

D.
        A lawyer who advertises a specific fee or range of fees for a particular service shall honor
        the advertised fee or range of fees for at least ninety (90) days unless the advertisement
        specifies a longer period. If the advertisement appears in the Yellow Pages of the telephone
        book or other media not published more frequently than annually, the advertised fee or
        range of fees shall be honored for not less than one (1) year following publication.

E.
        No lawyer shall directly or indirectly pay all or any part of an advertisement by a lawyer not
        in the same firm unless the advertisement discloses the name and address of the
        nonadvertising lawyer, the relationship between the advertising lawyer and the
        nonadvertising lawyer, and whether the advertising lawyer may refer any case received
        through the advertisement to the nonadvertising lawyer. This prohibits "ghosting" of
        lawyer advertising.


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F.
        Copies or recordings of all advertisements must be maintained for five (5) years after their
        last use along with a record of when and where the advertisement was used. A copy of the
        advertisement or a recording shall be submitted to the Bar upon request.

G.
        A lawyer shall not give anything of value to a person recommending a 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.

H.
        In-person or live telephone contact with prospective clients with whom the lawyer has no
        family, close personal or prior professional relationship is prohibited when a significant
        motive for the lawyer's doing so is the lawyer's pecuniary gain.

I.
        Solicitation of a prospective client by written or recorded communication or by in-person or
        telephone contact solicitation is prohibited regardless of whether there is a family, close
        personal or prior professional relationship if the prospective client has made known to the
        lawyer his or her desire not to be solicited by the lawyer or where the solicitation involves
        coercion, duress or harassment.

J.
        All written or recorded communications from the lawyer soliciting professional employment
        from a prospective client known to be in need of legal services in a particular matter with
        whom the lawyer has no family, close personal or prior professional relationship shall
        include the words, "SOLICITATION MATERIAL" on the outside envelope or at the
        beginning and ending of any recorded communication.

K.
        Participation with a prepaid or group legal service plan operated by an organization not
        owned or directed by the lawyer which uses in-person or telephone contact to solicit
        memberships or subscriptions for the plan from persons who are not known to need legal
        services in a particular matter covered by the plan is permitted.

L.
        Every lawyer or law firm that advertises must have available in written form for delivery to
        any potential client the following: (a) A factual statement detailing the background,
        training, and experience of each lawyer or law firm; (b) If the lawyer or law firm claims
        special expertise in their representation of clients and special matters or publicly limits the
        lawyer's or law firm's practice to special types of cases or clients, the written information

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        shall set forth the factual details of the lawyer's experience, expertise, background or
        training in such matters. In addition, any advertisement or any written communication shall
        advise any potential client of the availability of this information by prominently displaying
        all such advertisements and communications the following notice: "FREE BACKGROUND
        INFORMATION AVAILABLE UPON REQUEST."

M.
        A copy of all information furnished to clients by the advertising lawyer shall be retained by
        the lawyer or law firm for five (5) years after the last regular use of the information.

N.
        A lawyer may obtain an advisory opinion concerning whether the advertisement complies
        with Rule 7 by submitting the material and a $25 processing fee to the Office of General
        Counsel of the Bar. General Counsels Office has 45 days to issue an opinion.

O.
        A lawyer shall not practice under a trade or fictitious name or a name that is misleading as
        to the identity of the lawyer or lawyers practicing under such name. However, a lawyer in
        private practice may use the term "legal clinic" or "legal services" in conjunction with the
        lawyer's own name if the lawyer's practice is devoted to providing routine legal services for
        fees that are lower than the prevailing rate in the legal community for those services.

P.
        The name of a lawyer holding a public office shall not be used in the name of the law firm or
        in communications on its behalf during any substantial period in which the lawyer is not
        actively and regularly practicing with the firm.

Q.
        Lawyers may state or imply that they practice in a partnership or other legal organization
        only when that is the fact.

                                         III. Who Is The Lawyer For This Client?

A variety of situations involving practice arrangements as well as litigation necessities may cause the
client to ask: "Who is my lawyer in this case?"

A.
        Office-Sharing, Actual Partnerships and Other Relationships

        Office-sharing and other practice arrangements often create deceiving appearances for the client.
        Given the particular circumstances, the lawyer should make the client aware of his relationship
        with other lawyers and non-lawyers in the office or law firm.


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       1.
                 When the lawyer shares office space with one or more other lawyers but has no partnership
                 arrangement with them, he should be aware of circumstances which may suggest a
                 different relationship to the client, including:

                 a.
                           The sign on the door, the letterhead, business cards and the greeting by the
                           receptionist should not suggest a partnership arrangement. MRPC 7.1 and 7.7.
                 b.
                           If the lawyers cover motions or other legal proceedings for each other, the client
                           may assume a partnership exists.
                 c.
                           The retainer agreement should clearly set forth the retention of only Lawyer A or,
                           in the event other counsel is involved, that only Lawyer A is responsible for the
                           management and oversight of the case.
                 d.
                           The lawyer may not share office space with a prosecuting attorney and represent
                           defendants in the same court. Mississippi State Bar Ethics Committee, Op. 134
                           (1987).

       2.
                 When the lawyer is employed by a professional corporation or a partnership, he should
                 consider the effect of his practice arrangement on the client, including:

                 a.
                           The lawyer should explain to the client that other lawyers within the firm may work
                           on his case.
                 b.
                           The lawyer principally and ultimately handling the case should be clearly identified
                           to the client.
                 c.
                           The lawyer should explain to the client that non-lawyers such as paralegals and law
                           clerks may perform services on the case.

       3.
                 When the lawyer is retained by an insurance carrier to represent the insured, the lawyer
                 should explain to the client that he represents the client and not the insurance carrier. Smith
                 v. Anderson-Tulley Co., 608 F. Supp. 1143, 1146-47 (S.D.Miss. 1985), affd, 846 F.2d 751
                 (5th Cir. 1988).

       4.
                 When the lawyer shares office space with non-lawyers, the lawyer should have definable

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                  office space that maintains nonaccess of the nonlawyers to files, records, research and
                  other information related to representation of a client. MSB Ethics Comm., Op. 172
                  (1990).

        5.
                  If the lawyer retains a lawyer outside his firm to perform legal research and writing, the
                  lawyer must consider issues of confidentiality and conflicts of interest arise, including:

                  a.
                            The lawyer is not required to disclose the retention of the researcher to the client if
                            the lawyer does not release the clients identity or information that would lead to the
                            identification of the client.

                  b.
                            The lawyer is required to disclose the retention of the researcher and obtain consent
                            of the client if the lawyer intends to substitute the judgment of the researcher for his
                            own or if the lawyer must release the clients identity or information that would lead
                            to the identification of the client. MSB Ethics Comm., Op. 177 (1990).

B.
        Lawyers Licensed in Different Jurisdictions

        Often a client will need a lawyer who is licensed to practice in another jurisdiction. Both the law
        firm and solo practitioner may have several options available in order to serve that client.

        1.
                  The client approaches a lawyer in Louisiana who is not licensed in Mississippi, but whose
                  law firm has other lawyers who are licensed in Mississippi. The Louisiana lawyer may
                  represent the client in a matter in Mississippi if he is admitted pro hac vice with his
                  associate who is licensed in Mississippi as local counsel. Miss. Sup. Ct. R. 46(b).

        2.
                  The lawyer in Louisiana has no partners or associates licensed to practice in Mississippi.
                  He retains local counsel in Mississippi. What are the responsibilities of the lawyers as
                  foreign and local counsel, respectively, in the case?

                  a.
                            The Louisiana lawyer must be in good standing with his local Bar. Upon admission
                            pro hac vice, the lawyer is subject to the jurisdiction of the Mississippi courts and
                            to the ethical and disciplinary rules in Mississippi. Miss. Sup. Ct. R. 46(b)(2);
                            MRPC 8.5.



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                  b.
                            The Mississippi lawyer is required to personally appear and participate in all
                            proceedings unless specifically excused by the court. The local counsel accepts
                            joint and several responsibility for all matters arising from the case. Miss. Sup. Ct.
                            R. 46(b)(3).

C.
        Partnership with or Influence by a Non-Lawyer

        A lawyer may not engage in a practice arrangement that violates the ethical prohibition against the
        practice of law by non-lawyers, such as paralegals, investigators and law clerks. In order to
        properly utilize the services of non-lawyers, the lawyer must adhere to rather strict ethical
        standards.

        1.
                  The lawyer may not form a partnership with a non-lawyer if any of the activities consist of
                  the practice of law. MRPC 5.4(b).

        2.
                  The non-lawyer is not permitted to engage in the practice of law, as prohibited by MISS.
                  CODE ANN. ñ 73-3-55 (1989):

                  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 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.

                  Thus, a non-lawyer may not counsel clients about legal matters, appear in court or make
                  any representation in writing or otherwise that he is a lawyer.

        3.
                  The lawyer is obligated to assure that the activities of the non-lawyer are in compliance
                  with the Rules of Professional Conduct. MRPC 5.3(a) and (b).

        4.
                  The lawyer may not practice in an association with a non-lawyer where the non-lawyer has
                  the right to direct or control the professional judgment of the lawyer. MRPC 5.4(c) and
                  (d)(3). Thus, a lawyer providing services under prepaid legal services plans, through non-
                  profit organizations, or as house counsel or internal counsel to corporations and insurance
                  companies, owes a duty to the client that is not subject to the direction or supervision by

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                  the non-lawyer agency.

        5.
                  The lawyer who is retained by an insurance carrier to represent its insured may not agree to
                  delegate the insurance carrier or any of its agents his duty to exercise independent
                  judgment for the benefit of his client. MSB Ethics Comm., Op. 211 (1993).

        6.
                  The lawyer may not employ as a paralegal or legal assistant or otherwise associate a
                  lawyer who is disbarred or suspended from the practice of law. MRPC 5.5(b); MSB Ethics
                  Comm., Op. 96 (1984).

                                       IV. Financial Arrangements with the Client

One of the most difficult aspects of practicing law is managing the financial arrangements with the client.
The lawyer is bound to ethical guidelines in the management of such matters as retainer and contingent
agreements, time-keeping, billing and collections.

A.
        Explanation of Fees

        No single area of the financial relationship between lawyer and client has generated as much
        controversy, conflict and misunderstanding as the failure of the lawyer and client to reach a
        prompt agreement as to the fees and costs to be incurred in the prosecution or defense of the
        client's matter.

        1.
                  The lawyer's interest in recovering payment for his services is subservient to his "duty to
                  assume that every person in substantial need of legal service receives that service without
                  regard to ability to pay." Allison v. State, 436 So.2d 792, 796 (Miss. 1983).

        2.
                  Lawyers practicing in federal court are likewise bound by ethical precepts to represent
                  clients who are unable to pay. The Fifth Circuit, frustrated by the inability to find an
                  attorney willing to take appointments in civil rights cases, stated: "If the court continues to
                  have difficulty in obtaining the voluntary service of counsel despite their ethical
                  responsibilities, it may wish to limit the compensated practice by members of its bar to
                  those willing to accept their share of indigent cases." Branch v. Cole, 686 F.2d 264, 266
                  (5th Cir. 1982).

        3.
                  If the lawyer does not regularly represent the client, the fee agreement should be presented

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                  to the client, preferably in writing, before or within a reasonable time after beginning the
                  representation. MRPC 1.5(b).

        4.
                  The fees must be reasonable and the lawyer must adequately explain the fee arrangement
                  to the client. MRPC 1.5(b) and (c).

        5.
                  The factors upon which the reasonableness of the lawyer's fees may be determined include:

                  a.
                            The time, skill and labor required;
                  b.
                            The novelty and difficulty of the issues;
                  c.
                            Whether the case will preclude the lawyer from taking on other representation;
                  d.
                            Customary fees in the area;
                  e.
                            The amount in controversy and the results obtained;
                  f.
                            The lawyer's relationship with the client;
                  g.
                            The experience, reputation and skill of the lawyer or his law firm; and
                  h.
                            Whether the fee is fixed or contingent.
                            Central Soya Co., Inc. v. Cox Towing Corp., 431 F.Supp. 502, 506 (N.D. Miss.
                            1977) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
                            1974)); MRPC 1.5(a).

B.
        Contingent Fees v. Flat Fees

        Regardless of the type of fee arrangement, the lawyer should address several concerns regarding
        the actual amount of the fee to be paid to the lawyer.

        1.
                  If the lawyer charges a flat fee, the fee or portions of it must be refundable in the event it is
                  not fully earned. In re Viscount Furniture Corp., 133 B.R. 360, 364-65 (Bankr. N.D. Miss.
                  1991); MRPC 1.16(d).

        2.


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                 If the lawyer charges an hourly rate, the lawyer should advise the client of the hourly rates
                 to be charged by each of the lawyers and non-lawyers who may work on the clients case.

       3.
                 The retainer agreement should identify the types of costs that will be billed to the client,
                 i.e. copying, telephone charges, word processing expense, investigation, etc.

       4.
                 The lawyer must not misrepresent the number of hours expended on a case for purposes of
                 increasing fees. Goeldner v. Mississippi State Bar Ass'n, 525 So.2d 403, 406-07 (Miss.
                 1988).

       5.
                 If the fees are contingent, the agreement should clearly state and the lawyer should
                 adequately explain to the client the amount upon which the contingent fee is to be
                 calculated, i.e. on the gross amount received by way of judgment or settlement.

       6.
                 The case must be the type for which contingent fees are proper.

                 a.
                           In Mississippi, a lawyer generally may not receive a contingent fee in a domestic
                           relations case. Avant v. Whitten, 253 So.2d 394, 396-97 (Miss. 1971); MRPC
                           1.5(d)(1).
                 b.
                           However, a lawyer may receive a contingent fee in a domestic relations case based
                           on past due child support or alimony payments. MSB Ethics Comm., Op. 88
                           (1983).
                 c.
                           In Mississippi, a lawyer may not receive a contingent fee in a criminal case. MRPC
                           1.5(d)(2).
                 d.
                           Contingency fee should not exceed 50% of the net recovery: Koehring Co. v. Hyde
                           Construction Co., 236 So.2d 377 (Miss. 1970).

       7.
                 The contingent agreement should describe how the contingent fee is to be determined in
                 the event of a structured settlement or payout.

                 a.
                           The contingent agreement should specify whether the fee is to be calculated
                           according to the present value of the future income stream and whether the


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                            calculation will be based on all guaranteed or nonguaranteed monies. If the
                            agreement does not make these specifications, the lawyer should make an earnest
                            effort to resolve the fee calculation to the clients satisfaction. However, a resolution
                            of the issue becomes a legal, not an ethical one if the lawyer and client cannot
                            agree. MSB Ethics Comm., Op. 92 (1984).

                  b.
                            The contingent agreement should specify whether the fee is to be calculated
                            according to the cost of procuring any annuity to secure the future payment. This
                            should be determined with two things in mind:

                            (1)
                                      The defendant may not be obligated to disclose its cost of procuring the
                                      annuity.
                            (2)
                                      The cost of the annuity may be significantly less than the present value of
                                      the annuity and the clients interest in the difference may be significant.

        8.
                  The contingent fee should be based on either the present value of the settlement or the cost
                  of it to the defendant, whichever the lawyer and the client agreed upon. However, the
                  lawyer cannot share in later payments made pursuant to a structured settlement because the
                  lawyer should not expect to share in the clients future income. Mississippi State Bar v.
                  Blackmon, 600 So.2d 166, 172 (Miss. 1992).

        9.
                  If the adverse party obtains a judgment against the client, the client is under no obligation
                  to his lawyer as a result of a contingent fee contract to prosecute an appeal and he may
                  dismiss or compromise his case. Collier v. Necaise, 285 So.2d 778, 782 (Miss. 1973).

        10.
                  The lawyer may charge interest on a fee balance with the clients consent. MSB Ethics
                  Comm., Op. 100 (1985).

        11.
                  The lawyer may not disburse a minor's share of any judgment or settlement, even to the
                  minor's parent, without seeking court approval and taking steps to set up a guardianship to
                  administer the funds. Mississippi State Bar v. Attorney Y, 585 So.2d 768, 772-73 (Miss.
                  1991).

C.
        Advancement of Litigation Expenses


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        In addition to the lawyer's fees, a case will normally require the expenditure of related expenses
        for items such as long-distance telephone calls, photocopying, investigation, etc. The retainer or
        contingent agreement should clearly indicate how and by whom the costs are to be paid.

        1.
                  The lawyer may advance court costs and expenses for the client, but the client, unless he is
                  indigent, must be ultimately responsible for their payment or reimbursement. MSB Ethics
                  Comm., Op. 136 (1987).

        2.
                  However, the lawyer may ethically advance court costs and expenses contingent on the
                  outcome of the case. MRPC 1.8(e)(1).

        3.
                  Attorney may not make loans to indigent client for personal maintenance pending
                  resolution of personal injury claim. The Mississippi Bar v. Attorney HH, 671 So.2d 1293
                  (Miss. 1996).

        4.
                  The lawyer may require a workers' compensation claimant to pay expenses above the
                  statutory maximum, if such is not prohibited by statute. MSB Ethics Comm., Op. 107
                  (1985).

        5.
                  The lawyer has a duty, both legally and ethically, to pay for medical reports, depositions or
                  other evidence requested by him even though the client is ultimately responsible for such
                  costs. MSB Ethics Comm., Op. 40 (1977).

D.
        Division of Fees

        When two or more lawyers from different firms represent one client, the method of dividing the
        fees should be specified in the retainer agreement.

        1.
                  The lawyer's fees may be divided between lawyers not in the same firm only if:

                  a.
                            The client consents to the employment of additional counsel;
                  b.
                            Both lawyers expressly assume responsibility to the client;


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                  c.
                            The terms of the fee division are disclosed to the client; and
                  d.
                            The client consents to the fee division. MRPC 1.5(e).

        2.
                  The lawyer may not divide fees with a non-lawyer except where:

                  a.
                            Paid to the estate of a deceased lawyer over a reasonable period of time or for fees
                            actually earned prior to his death. MRPC 5.5 (b)(1) and (2); MSB Ethics Comm.,
                            Op. 81 (1983); or
                  b.
                            Non-lawyers are included in a compensation or retirement plan, even if the plan is
                            based on profit-sharing. MRPC 5.4(b)(3).

        3.
                  A lawyer may retain on a contingent fee basis a medical consultant who will not serve as a
                  witness. However, the consultant's fee should be distinct from and not a part of the
                  lawyer's fee. MSB Ethics Comm., Op. 91 (1984); MSB Ethics Comm., Op. 190 (1991).

        4.
                  The lawyer may not divide fees with a non-lawyer who assisted in a loan closing
                  transaction. MSB Ethics Comm., Op. 33 (1976).

        5.
                  The lawyer may not divide fees with a non-lawyer client referral service that previously
                  entered into a contingent fee contract with the client. MSB Ethics Comm., Op. 209 (1993).

E.
        Fees Owed When the Client Prematurely Terminates the Relationship

        A client may, for whatever reasons, release the lawyer from the representation prior to the
        conclusion of the case. To avoid unnecessary complications in what may already be a tenuous
        situation, the lawyer should include terms in the retainer or contingent agreement providing for
        recovery upon termination of fees earned.

        1.
                  The fees owed should be those earned to the date of termination.

        2.
                  If the matter was on a contingent basis, recovery of the fee may be had on quantum meruit.

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                 Newman v. Melton Truck Lines, Inc., 443 F.2d 896, 897 (5th Cir. 1971).

       3.
                 As a matter of law, a lawyer has a lien on all papers of his client which come into his
                 possession in the course of his professional employment which entitles him to retain
                 possession until all fees are paid. Federal Land Bank v. Federal Interm. Credit Bank, 127
                 F.R.D. 473, 475 (S.D.Miss. 1989); Ethics Comm., Op. 144 (1988). However, the lawyer
                 should not enforce a retaining lien unless such is necessary to prevent fraud or gross
                 imposition by the client. MSB Ethics Comm., Op. 144 (1988).

       4.
                 While the ownership of files is a legal question, ethically, a lawyer may not retain a clients
                 file if it would harm the case. The lawyer should turn over to a client all papers and
                 property of the client which were delivered to the lawyer, the results of the lawyer's work
                 and reports paid for by the client. The lawyer is under no ethical obligation to turn over
                 work product. Id.

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                                                             Chapter Three


                         Handling Client Funds and Property
                                                            I. Introduction

An attorney owes a duty to a client of the utmost loyalty and good faith. This obligation extends also to
the safekeeping by the attorney of the funds and property of the client. In addition to intentional
misappropriation, an attorney may be subject to severe sanctions for actions and omissions with regard to
a client's funds and property. The purpose of this chapter is to make the attorney aware of the duties and
obligations of the attorney with regard to client funds and property so as to avoid an unwitting violation
of ethics or commission of a legal transgression.

                                                          II. Trust Accounts

A.
         Obligation to Maintain.

         The general obligation to maintain funds and other property of a client separate from that of the
         attorney, and the general administration of those funds and other property, is found at Mississippi
         Rules of Professional Conduct (MRPC) 1.15 Safekeeping Property, copy at the end of this
         chapter. This Rule requires an attorney to keep client funds separate from that of the attorney's.
         Client funds must be placed in an account identifiable as a client trust account. See Haimes v.
         Mississippi State Bar, 551 So.2d 910, 913 (Miss. 1989). If non-interest bearing, only one account
         is required, not one for each client. Furthermore, such identification protects the funds from liens
         by most creditors of the attorney. (The Internal Revenue Service takes the position that trust funds
         accessible by an attorney without the need of client authorization are subject to IRS liens against
         the attorney). Additionally, the attorney must keep the funds in the state where the attorney's
         office is situated, or elsewhere with the consent of the client.

         The attorney is obligated to notify the client upon the receipt of funds and must promptly deliver
         the same to the client and, upon request, render a full accounting to the client regarding the funds.
         The attorney is obligated to deliver such funds to the client even if the matter in controversy is on
         appeal, Ethics Opinion ("E.O.") 121, and the failure of an attorney to deliver funds to a client
         subjects the attorney to liability to the client for the same. Grayson v. Wilkinson, 13 Miss. 268
         (1845).

B.
         Record Keeping.

         Pursuant to MRPC 1.15(a), an attorney is required to keep complete records of trust accounts for a


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         period of seven years after the termination of the representation. Note that the seven years does
         not begin at the time of the payment of the funds to the client, but at the termination of the
         representation. Also, MRPC 1.15(b) states that upon request of a client, the attorney must render a
         full accounting to the client regarding any funds held by the attorney.

C.
         Unclaimed Property.

         The comment to MRPC 1.15, under "Unclaimed Property," states that an attorney holding funds
         belonging to a client with whom he has lost contact must retain and account for the funds subject
         to the Mississippi Uniform Disposition of Unclaimed Property Act, MISS. CODE ANN. SEC. 89-
         12-1 et seq. (1972). This Act states that property held in a fiduciary capacity is presumed
         abandoned five years after it becomes payable if the owner has not accepted payment of principle
         or interest or has not communicated with the fiduciary. Actions required of the fiduciary to locate
         the owner and dispose of the funds are outlined in the Act.

         Both E.O. 104 and 178 require an attorney to comply with the Unclaimed Property Act. E.O. 178
         states that it is unethical for an attorney to retain for himself funds held by the attorney in trust for
         which the attorney cannot account. In light of the accounting requirements of MRPC 1.15, an
         attorney should never have money in a trust account and not know to whom it belongs.

D.
         Payment to Third Parties.

         MRPC 1.15(b) states that an attorney receiving funds in which a third party has an interest must
         notify the third party and deliver to the third party any funds to which the third party is entitled.
         Such a situation arises, for example, when an insurance company has paid a claim for a client and
         has put the attorney on notice of its subrogation rights. Upon request by the third party, the
         attorney must render a full accounting regarding such funds. E.O. 184 makes clear that an
         attorney's obligation to a third party for payment of funds is contingent not upon a claim by a third
         party, but by a legal interest a third party has in the funds held by the attorney.

         If indeed a third party has a legal interest in client funds held by the attorney, the attorney is
         obligated to protect the third party interest against wrongful interference by the client and to
         refuse to surrender the funds to the client. As set forth in the comment to MRPC 1.15, the attorney
         should not unilaterally assume to arbitrate a dispute between the client and a third party claimant.

E.
         Disputes.

         MRPC 1.15(c) addresses the situation where the attorney is holding client funds to which both the
         attorney and either the client or a third person claim an interest. If a dispute arises concerning

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         those interests, the portion in dispute is to be kept separate by the attorney until the dispute is
         resolved. While an attorney is under no obligation to remit any portion of client funds held by the
         attorney which represent all or part of the attorney's fees, the attorney may not hold funds not in
         dispute to coerce a client into accepting the attorneys conditions concerning the fee.

         The disputed portion of the funds should be kept in trust and the attorney should recommend
         means for the expeditious resolution of the disagreement, and should in any event distribute the
         undisputed portion of the funds. The Resolution of Fee Dispute Committee of The Mississippi Bar
         provides an expeditious procedure for resolution of those types of fee disputes.

         Mississippi has long recognized an attorney's lien on funds recovered by the attorney for his fees
         and expenses in recovering the fund. E.g., Cage v. Wilkinson, 11 Miss. 223 (1844). However, this
         lien extends only to fees and expenses associated with the fund recovery, and not other debts
         owed by the client to the attorney. Id. Further, the lien may be imposed only on funds collected
         and in the possession of the attorney, and not on other property such as real estate. Tuggle v.
         Williamson, 450 So.2d 93, 95 (Miss. 1984).

F.
         Attorney Liability.

         The attorney's obligation to maintain in trust client funds and to fully account to the client for
         those funds is absolute. An attorney is subject to liability to a client for failure to deliver funds to
         that client. Grayson v. Wilkinson, 13 Miss. 268 (1845). When an attorney deposits into his client
         trust account an amount less than the amount received by the attorney for that client, then fraud on
         the part of that attorney is presumed. Reid v. Mississippi State Bar, 586 So.2d 786, 788 (Miss.
         1991). When an attorney appropriates client trust funds, that attorney is unfit for the practice of
         law. Mississippi State Bar v. Odom, 566 So.2d 712, 716 (Miss. 1990). An attorney's conduct with
         regard to trust funds may be subject to discipline even if no attorney-client relationship exists.
         Haimes v. Mississippi Bar, 601 So.2d 851, 855 (Miss. 1992). MISS. CODE ANN. SEC. 11-49-3
         (1972) sets forth a judicial process which may be followed when an attorney fails to pay money
         over to a client. See MISS. CODE ANN. SEC. 9-7-89 (1972).

                                                      III. Interest on Trust Accounts

A.
         General.

         MRPC 1.15(d), (e), (f) and (g) set forth the circumstances in which an attorney may place client
         funds in an interest bearing trust account. These sections pertain only to the IOLTA Program,
         discussed next. However, it is permissible for an attorney to place client funds in an interest
         bearing account which accrue to the benefit of the client pursuant to court order or instructions of
         a client. The attorney may not keep any part of the interest earned and must deliver the funds to


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         the rightful owner at any given time. E.O. 183.

B.
         Interest on Lawyer Trust Accounts (IOLTA) Program.

         Using interest earned on client trust funds which are nominal in amount and held for short periods
         of time for the benefit of programs established by the Bar was recognized in the decision of In Re:
         Interest on Trust Accounts, 356 So.2d 799 (Fla. 1978). The procedure was acknowledged by The
         Mississippi Bar as early as May, 1979 (E.O. 50), and adopted by Order of the Supreme Court on
         May 30, 1984. The IOLTA Program requires that the attorney may not keep any part of the
         interest earned, the account must include all client funds which are nominal in amount and are to
         be held for a short period of time, the account must be in a financial institution insured by the
         FDIC at a rate of interest comparable to non-lawyer deposits, the account must be subject to
         withdrawals without delay and the interest must be paid at least quarterly to The Mississippi Bar
         Foundation, Inc. Note that trust accounts of this nature do not need client approval, nor does the
         interest accrue to the benefit of either the attorney or the client. Initially, the IOLTA Program, an
         entirely voluntary program, was created so that attorneys had to "opt in" in order to participate. By
         Order of the Supreme Court dated June 10, 1993, the program now requires attorneys to "opt out"
         if they choose not to participate. A copy of the Mississippi IOLTA program and Notice of
         Election is at the end of this Chapter.

                                                              IV. Other Property

         In addition to funds held by the attorney for a client, MRPC 1.15 requires the same fiduciary
         responsibilities from the attorney for client property other than funds. Since property other than
         funds cannot be deposited into trust accounts, such property must be identified as client property
         and "appropriately safeguarded," which would of course depend upon the nature of the property.
         For example, the Comment states that securities should be kept in a safe deposit box, except when
         special circumstances warrant other treatment. Otherwise, property belonging to a client are to be
         kept, maintained and administered in the same manner as are funds.


                                                                 Exhibit A

Amendment Converting IOLTA to "Opt-Out"
Rule 1.15 Safekeeping Property (new material in italics)

(a)
         A lawyer shall hold property of clients or third persons that is in a lawyer's possession in
         connection with a representation separate from the lawyer's own property. Funds shall be kept in a
         separate account maintained in the state where the lawyer's office is situated, or elsewhere with
         the consent of the client or third person. Other property shall be identified as such and


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         appropriately safeguarded. Complete records of such account funds and other property shall be
         kept by the lawyer and shall be preserved for a period of seven years after termination of the
         representation.

(b)
         Upon receiving funds or other property in which a client or third person has an interest, a lawyer
         shall promptly notify the client or third person. Except as stated in this Rule or otherwise
         permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or
         third person any funds or other property that the client or third person is entitled to receive and,
         upon request by the client or third person, shall promptly render a full accounting regarding such
         property.

(c)
         When in the course of representation a lawyer is in possession of property in which both the
         lawyer and another person claim interests, the property shall be kept separate by the lawyer until
         there is an accounting and severance of their interests. If a dispute arises concerning their
         respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is
         resolved.

(d)
         Nothing in these Rules shall prohibit a lawyer or law firm from placing clients' funds which are
         nominal in amount or to be held for a short period of time in one or more interest-bearing
         accounts for the benefit of the charitable purposes of a court-approved Interest on Lawyer Trust
         Accounts (IOLTA) program.

(e)
         Unless an election not to do so is submitted in accordance with the procedures set forth in
         subsection (g) of this Rule, a lawyer or law firm with which the lawyer is associated who receives
         client funds shall maintain a pooled interest-bearing depository account for the deposit of client
         funds that are nominal in amount or expected to be held for a short period of time. Such an
         account shall comply with the following provisions:

         (1)
                  No earnings from such an account shall be made available to a lawyer or firm.

         (2)
                  The account shall include all clients' funds which are nominal in amount or to be held for a
                  short period of time.

         (3)
                  An interest-bearing trust account may be established with any bank or savings and loan
                  association authorized by federal or state law to do business in Mississippi and insured by


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                  the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance
                  Corporation or any successor thereof. Funds in each interest-bearing trust account shall be
                  subject to withdrawal upon request and without delay.

         (4)
                  The rate of interest payable on any interest-bearing trust account shall not be less than the
                  rate paid by the depository institution to regular, nonlawyer depositors. Higher rates
                  offered by the institution to customers whose deposits exceed certain time or quantity
                  minima, such as those offered in the form of certificates of deposit, may be obtained by the
                  lawyer or law firm on some or all of deposit funds so long as there is no impairment of the
                  right to withdraw or transfer principal immediately.

(f)
         Lawyers or law firms depositing clients' funds which are nominal in account or to be held for a
         short period of time in an interest-bearing depository account under subsection (e) of this Rule
         shall direct that a depository institution:

         (1)
                  To remit interest or dividends, net of any service charges or fees, on the average monthly
                  balance in the account, or as otherwise computed in accordance with an institution's
                  standard accounting practice, at least quarterly, to the Mississippi Bar Foundation, Inc.;

         (2)
                  To transmit with each remittance to the Foundation a statement showing the name of the
                  lawyer or law firm for whom the remittance is sent and the rate of interest applied; and

         (3)
                  To transmit to the depositing lawyer or law firm at the same time a report showing the
                  amount paid to the Foundation, the rate of interest applied, and the average account
                  balance of the period for which the report is made.

(g)
         A lawyer or law firm that elects not to maintain the account described by subsection (e) of this
         Rule shall on or before ___________________, make such election on a Notice of Election form
         provided by The Mississippi Bar. A lawyer admitted to The Mississippi Bar after
         ___________________, who elects not to maintain such an account shall submit an appropriate
         Notice of Election within ninety (90) days after admission to the Bar.

         (1)
                  If a notice of Election is not submitted within the applicable time, the lawyer or law firm
                  shall be required to maintain the account described in subsection (e) of this Rule.



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         (2)
                  Any lawyer or law firm may withdraw from participation in the program effective August 1
                  of any year by submitting an appropriate Notice of Election during the preceding month
                  of___________________. A lawyer who wishes to change a previous election not to
                  participate may do so at any time by notifying the Executive Director of the Mississippi
                  State Bar.

         (3)
                  Notwithstanding any provisions to the contrary herein, the Mississippi Bar may for good
                  cause permit withdrawal from participation in the program at any time.


                                                                 Exhibit B

Mississippi IOLTA Program Notice of Election
This is an official notice. Your response is required to comply with the Mississippi Rules of Professional
Conduct, Rule 1.15 as amended by the Supreme Court of Mississippi, _____________, 1993.

The Supreme Court of Mississippi recently adopted an opt out Interest On Lawyers Trust Accounts
(IOLTA) Program effective _____________, 1993. The undersigned attorney hereby declares
compliance with the IOLTA rule by completing Parts I, II and, if applicable, Part III and returning on or
before _____________, 1993.

Part I (All attorneys must complete),

Name _______________________________________ Bar #__________________________

Firm _______________________________________________________________________

Mailing Address ______________________________________________________________

City, State & Zip Code ________________________________________________________

Telephone (______) _______________________ Fax (______) ________________________

Date: _______________________ Signature _______________________________________

Name (type or print) of person signing _____________________________________________

NOTE: If you are a member of a firm of two or more, please provide the names of all lawyers in the firm.
A firm letterhead listing all the lawyers may be enclosed to provide the names.


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Part II (All attorneys must complete),

q    1.
            I presently have a non-interest bearing account(s) with the financial institution(s) listed below and
            hereby direct said institution(s) to convert the non-interest-bearing client trust account(s) listed
            below to an IOLTA account governed by the customer rules and procedures governing NOW
            (negotiable orders of withdrawal) accounts with interest payable to the Mississippi Bar
            Foundation, Taxpayer I.D. # 64 6029087. (Please complete Part III)

q    2.
            I am currently a member of the Mississippi Bar Foundation IOLTA Program, having heretofore
            elected to participate. My current interest-bearing trust account(s) with interest payable to the
            Mississippi Bar Foundation is/are listed below. (Please complete Part III )

q    3.
            I certify that I do not have a client trust account containing nominal or short term funds which is
            subject to the IOLTA Rule because of my professional standing (retired, judiciary, not in the
            practice of law, no legal activities in Mississippi, public sector attorney, other). I further attest I
            will notify The Mississippi Bar at such time as I establish a trust account containing nominal or
            short term client funds which is properly subject to the IOLTA Rule. (Do not complete Part III)

q    4.
            I hereby opt out of participation in the Mississippi IOLTA Program. (Do not complete Part III)

Part III (Complete only if you checked items 1 or 2 in Part II),

Complete for each trust account maintained.

1) Name of Account______________________ Account Number(s)______________________

Name & Branch of Financial Institution _____________________________________________

2) Name of Account _____________________ Account Number(s)_____________________

Name & Branch of Financial Institution _____________________________________________

Authorized Signature(s):
      ___________________________________________

            ____________________________________________



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         ____________________________________________

Please keep the pink copy for attorney records and return white and yellow copies to:
                                        Mississippi Iolta Program
                                              P O Box 2168
                                         Jackson MS 39225-2168

Thank you for your cooperation. For additional information or assistance in completing this form, contact
                                 the IOLTA Coordinator at 948-4471.

                               Table of Contents / Chapters 1, 2, 4, 5, 6, 7, 8, Appendix A




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                                                              Chapter Four


                                                Undivided Loyalty
                                                            I. Introduction

The relationship between lawyer and client is unique. It differs from that of priest and penitent or doctor
and patient because it is so much broader in scope. The priest hears confession, prescribes appropriate
penance and grants absolution. The doctor receives private information regarding patient's health, treats
the disorder and discharges her.

The lawyer, on the other hand, receives a wide variety of personal information from the client, is called
on to give advice upon a myriad of matters - not exclusively legal. The lawyer, unlike the priest and
physician, represents the client to the world and advocates his cause. To be entrusted with this grave
responsibility is a high privilege which requires the lawyer's undivided loyalty. This is the reason that
ethical standards under the general rubric of attorney-client conflicts have been established. Lawyering is
a high-ego profession and many lawyers have supreme confidence in their own ability to judge when a
potential conflict exists and in their ability to represent the conflicting interests even-handedly. This
confidence is misplaced. Self-assessment is at best suspect. Nearly every lawyer holds his own judgment
and integrity in high regard but is likely to misjudge his ability to avoid divided loyalties without the aid
of some standard to guide him.

The areas where conflicts are most likely to be found are these: multiple representations, positional
conflicts, financial dealings with clients, the lawyer-insurer-insured triangle, the lawyer-witness, and the
public employee to private lawyer tango. Of course, the lawyer may also have personal interests or other
clients, present or former, that create conflict.

A.
         Personal Conflicts

         A lawyer should never let his own interests create a conflict with the client. Examples are:

         1.
                  A lawyer should not be the beneficiary of a clients' will prepared by the lawyer or by his
                  firm, except where the lawyer is related to the testator. Rule 1.8(c) MRPC. Likewise, a
                  lawyer should not permit a client to bestow upon the lawyer any substantial gift without
                  the client having independent advice. Lowrey v. Will of Smith, 543 So. 2d 1155 (Miss.
                  1989).

         2.
                  A lawyer should not enter into a business relationship with a client unless the client is


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                  advised to seek independent legal advice and the client consents in writing to the lawyer's
                  financial involvement. Rule 1.8(a) MRPC.

         3.
                  While representing a client, a lawyer should not attain literary or media rights to an
                  account based on information relating to the representation. Rule 1.8(d) MRPC.

         4.
                  A lawyer must not use information obtained as a result of representation of a client to the
                  lawyer's own advantage without the clients consent. Rule 1.89(b) MRPC. For an example
                  of such prohibited conduct see Entente Mineral Co. v. Parker, 956 F.2d 524 (5th Cir.
                  1992).

                  5. A lawyer may not acquire a proprietary interest in the subject matter of litigation.
                  Disclosure and consent will not cure the problem. An exception is provided for acquiring a
                  lien to secure the lawyer's fee and contingent fee contracts in civil matters. Rule 1.8(j)
                  MRPC

B.
         Litigation Conflicts

         Obviously, the same lawyer cannot represent both plaintiff and defendant in the same lawsuit and
         even fully informed consent by both parties would not make such an arrangement permissible.
         While other litigation conflicts may not be so patent, they are just as proscribed. Some examples
         are:

         1.
                  A lawyer may not represent co-plaintiffs or co-defendants if the lawyer's duty of
                  unswerving loyalty to each client would in anyway be impaired. Rule 1.7(b) MRPC. Such
                  duel representation is permitted if the lawyer reasonably believes that the representation of
                  either will not be adversely affected and both clients have given informed consent after
                  consultation which includes explanation of the risk, etc., involved.

                  A tricky problem arises when a lawyer is called on to defend the employer and employee
                  where the employer is alleged to be vicariously liable. The inquiry the lawyer must make is
                  "does there exist a reasonably probable factual scenario where either defendant could be
                  legally liable to the plaintiff and the other not be so liable?" If the answer is "yes," then the
                  lawyer should only represent one defendant.

                  A similar situation arises when the suit is against the manufacturer and the retail vendor of
                  a product, and the question the lawyer should ask is the same.1



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         2.
                  Even if a husband and wife freely agree for the same lawyer to handle their "no-fault"
                  divorce, this is a "no-no" for the lawyer. The potential for conflict is too great.2 See E.G.
                  #80.

         3.
                  A lawyer should not represent a client in a matter adverse to another existing client even
                  though the matters are totally unrelated. Rule 1.7(a). This rule is relaxed when the lawyer
                  reasonably believes that her relationship with client A will not be adversely affected and
                  both clients consent after being fully advised.

C.
         Positional Conflicts

         A "positional conflict" can arise when a lawyer has two clients who have different interests. For
         example,3 a lawyer who represents a trade association which has a strong position favoring strict
         enforcement of the states bad check "law" is called on to represent a person charged with violating
         the bad check law and sees a loophole which, if successfully established, would weaken the law.

         The lawyer confronted with this or a similar problem cannot guarantee that if he represents the
         second client with the zeal expected of him, the trade association would continue to retain him.

         Informed consent by both clients would relieve the lawyer's ethical problem but realistically he
         should not expect to get such consent.

         What is a lawyer to do when called on to argue opposing sides of the same legal question before
         the same court for different clients in unrelated cases? The answer is get both clients' informed
         consent, if obtainable.4

D.
         Business Dealings with Clients

         A lawyer will often find himself called on to preside at the creation of a new commercial
         enterprise - to organize the entity, to draw the contract between participants and perform other
         similar duties. He may be offered a piece of the action either as payment for his fee or as a
         separate investment on his part. Rule 1.8(a) MRPC provides a fairly explicit standard. A lawyer
         shall not enter into a business relationship with a client unless: (a) the terms are fair and are
         carefully explained to the client in writing; (b) the client has the opportunity to seek independent
         legal advice and (c) the client consents in writing. The lawyer ought to explain to the client that if
         the lawyer enters into the venture, he will do so as an investor and that the client should not look
         for the lawyer for legal advice vis:a:vis the clients relationship with the entity.


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E.
         Insurance Company Problem

         A lawyer is contacted by a liability insurance company to defend its insured. The company is
         going to pay the lawyer's fee and other expenses of the defense. It may impose on the lawyer
         certain reporting requirements. The lawyer will have to give to the company an opinion about
         whether the case can be successfully defended or an opinion about settlement value. The company
         may also reserve to itself all settlement negotiations. In spite of all of this, the company is not the
         lawyer's client. The insured is the client. Hartford Accident & Indemnity Company v. Foster, 528
         So. 2d 255 (Miss. 1988).5

         Otherwise, the lawyer whose presence in the case is imposed upon the insured by the company
         will find his duty of loyalty seriously tested if investigation of accident facts reveals information
         which would provide the insurance company with a policy defense. If the insured provides this
         information to the lawyer, she would breach her obligation of confidentiality if she told the
         insurer. Furthermore, as demonstrated in Hartford v. Foster, supra, the insurance company which
         is paying the lawyer may not want to tender enough of its policy's limit to accomplish settlement
         while the insured does not want to be put at risk for a judgment in excess of the policy limit. This
         tension can only be relieved by acceptance of the condition that the lawyer has only one client -
         the insured.

F.
         Former Clients

         A lawyer may not handle a matter directly adverse to the interest of an existing client, even
         though the matter is unrelated to any representation being provided by the lawyer to the existing
         client. However, he may be adverse to a former client in a matter unrelated to the prior
         representation. But, if the matter at issue relates to the subject of the former representation, then
         the former clients informed consent should first be obtained. Rule 1.9 MRPC

         It is sometimes difficult to determine whether an attorney-client relationship has been terminated
         so that the client becomes "former." If the terminated relationship has been broad and of long
         standing then the lawyer may still be prohibited from undertaking an adverse representation.
         International Business Machines Corp. v. Levin, 579 F.2d 271 (3rd Cir. 1978).

G.
         Multiple Representations

         A lawyer accepts employment to represent three passengers injured in a motor vehicle accident. Is
         this appropriate? Yes, so long as the lawyer is conscious of the problems inherent in multiple
         representation, discusses these problems with the clients jointly and obtains their consent. Rule
         1.7(b)(2) MRPC; 1 Hazard & Hodes, Sec. 1.8:101. A major problem arises when there is only a

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         limited fund available out of which all claims are to be satisfied. Rule 8(g) MRPC attempts to
         address the problem by requiring a lawyer who makes an aggregate settlement for multiple clients
         to consult with them, obtain unanimous consent after disclosing the terms of the settlement after
         each client's participation.

         It has been suggested as being appropriate for a lawyer to obtain at the beginning of the
         representation a written agreement with all the clients that an aggregate settlement approved by an
         agreed number of the client group would be binding on all.6 Such an arrangement is more likely
         to be obtained when the quantum of each plaintiff's claim is the same.

         A similar type of conflict can arise in the criminal defense law practice and the representation of
         co-defendants in a criminal case should be approached with great caution. Because of the
         circumstances of many persons charged with commission of a crime, the voluntariness of any
         consent for a lawyer to represent two such persons has got to be suspect. In every criminal case
         when called on to defend co-defendants the lawyer should warn the clients about conflict
         potential. He should be alert to the possibility that later the clients would turn on each other or that
         one could dominate the other. 1 Hazard & Hodes, Sec. 1.7:205.

H.
         Law Firm Conflicts.

         It should go without saying that if one member of a law firm is conflicted, then so is the firm. The
         matter is not quite that simple, primarily because of lawyers lateral mobility. Therefore, a variety
         of scenarios are possible.

         To simplify, these are the rules to follow:

         1.
                  The conflict of one lawyer in a firm is imputed to all lawyers of that firm.

         2.
                  If a lawyer leaves the firm and joins a new one, then his old firm may not handle a matter
                  in conflict with a client which follows the lawyer to the new firm if the matter is the same
                  or substantially related to that in which the departing lawyer represented the client and any
                  lawyer in the firm has confidential material and information as a result of the firm's former
                  representation of the client. Rule 1.10(b) MRPC

         3.
                  A lawyer leaving a firm may not handle a matter adverse to the interest of a client of the
                  firm if the lawyer had personally represented the client or was "sufficiently involved to
                  have learned the clients confidences."7 This restriction necessarily applies to other
                  members of the new firm as well.

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                  The affected client may waive the lawyer's or the firm's disqualification after consultation.

I.
         Miscellany.

         1.
                  Consent. Many of the strictures of the rules may be waived by the client and consent given
                  to a lawyer to proceed with representation which otherwise is proscribed. The consent can
                  only be effectively given if it is informed, that is, after consultation between the lawyer
                  and the client in which the lawyer is completely forthright in explaining the advantages
                  and disadvantages to the client in undertaking or continuing the conflicted representation.
                  Oftentimes a client should have the benefit of independent legal counsel. Prudence dictates
                  that the consent always be in writing.

         2.
                  The Lawyer's Belief. In some instances a lawyer may handle a matter for the client when
                  there is a conflict if the lawyer "reasonably believes the representation will not be
                  adversely affected." Rule 1.7(b)(1) MRPC. The inquiry the lawyer must make can only be
                  answered by himself. Only he can know if the quality of his representation will be
                  affected. An honest answer to this question provides the measure of the lawyer.
                  Recognition must be given to the fact that a lawyer's reliance on his honest belief is likely
                  to be challenged and if so, then the lawyer would have the burden of establishing that his
                  belief was reasonable. Again, there must be full disclosure and discussion with the client.
                  While the Rules does not address the question, care should be taken that the personal
                  interest of other members of the lawyer's firm are not in conflict.

J.
         Lawyers and Government.

         Rule 1.11 MRPC recognizes and attempts to address some of the problems created by the practice
         of lawyers moving in and out of government service. The rule is broken down into five
         subsections and they will be discussed seriatim.

         Subsection (a) deals with a lawyer employed by the government who leaves that service and takes
         up private practice. He cannot represent any private client in a matter that he was involved in
         while in government service absent governmental consent. However, this lawyer's firm can
         become involved in a matter the lawyer handled while in government service provided an
         effective chinese wall can be built around the lawyer.

         Subsection (b) prohibits a lawyer from using confidential government information he obtained
         while in government service for the benefit of a private client whose interests are opposed to the


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         person that is the subject matter of the confidential information. In fact, a lawyer cannot even
         represent such a private client. However, his firm can do so but it cannot use the information. In
         such instance, the former government lawyer must be effectively screened out of the matter and
         cannot even participate in the fee earned.

         Subsection (c) provides that a lawyer in government service cannot participate in any matter in
         which he was involved personally and substantially while in private practice. Subsection (c) also
         prohibits a lawyer in government service from negotiating for private employment with anybody
         involved in a matter that the lawyer is personally and substantially involved in on behalf of the
         government. There is an exclusion to this prohibition regarding a law clerk to a judge or other
         adjudicative officer or arbitrator.

         Subsection (d) defines the term "matter" as follows: "(1) Any judicial or other proceeding,
         application, request for a ruling or other determination, contract, claim, controversy, investigation,
         charge, accusation, arrest or other particular matter involving a specific party or parties; and (2)
         any other matter covered by the conflict of interest rules of the appropriate government agency."


Endnotes

        1--Under Miss. Code Ann. Sec. 11-1-63 (1994 Supp.) the manufacturer of a defective and
unreasonably dangerous product must indemnify the seller of the product against loss sustained because
of the defect unless the seller participated in the product's design, manufacture, testing, labeling or
modification, unless the seller made representations about the product or knew of the defect before sale.
The mere listing of the exceptions to the seller's right to indemnity describes a large, fertile field for
conflict and oftentimes a lawyer should refuse to represent both.
        2--Some conflict experts disagree, arguing that if the couple wants just "to do what is right" and
the lawyer believes them, then joint representation is all right. 1 Hazard & Hodes, The Law of
Lawyering, Sections 1.7: 202, 1.7: 306, 2nd Edition (1990). Hereinafter, Hazard & Hodes.
        3--Hazard & Hodes, Sec. 1.7:105 provides the suggestion for this example.
        4--Hazard & Hodes, Sec. 1.7:106.
        5--See also Rules 1.7(b) and 1.8(f) M.R.P.C.
        6--1 Hazard & Hodes, Sec. 1.8:802.
        7--1 Hazard & Hodes, Sec. 1.9:301.

                               Table of Contents / Chapters 1, 2, 3, 5, 6, 7, 8, Appendix A




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 Chapter Five

                                                              Chapter Five


                         Competence; Maintaining Clients;
                       Terminating Employment; Confidences
                                                 I. Competence--The First Rule

A.
         The first rule of the Miss. Rules of Professional Conduct mandates competent
         representation for each client of every lawyer. Rule 1.1.

B.
         Rule 1.1 explains the level of competence mandated is the amount of "legal knowledge, skill,
         thoroughness and preparation reasonably necessary for the representation."

C.
         Legal Knowledge and Skill

         1.
                  Must a lawyer decline employment if he or she has no experience in the area of practice?
                  Certainly, the answer to this question is "No," for the practicing lawyer will have many
                  "first" cases. But with these "first" cases come special responsibilities.

                  a.
                            A lawyer may undertake representation in an area of the law in which he or she is
                            not qualified if, in good faith, he or she expects to become qualified through study
                            and investigation. Additionally, such preparation should not result in unreasonable
                            delay or expense to the client. The burden of attaining competence is to be placed
                            upon the lawyer, without financial or other negative consequences to the client. EC
                            6-3.8

                  b.
                            A lawyer who is not qualified to undertake representation in a particular area of the
                            law may accept employment by associating with an attorney who is competent.
                            Consent of her client must be obtained, after full disclosure. EC 6-3.

         2.
                  Incompetence may be a basis upon which an attorney must decline a court appointment.
                  State v. Gasen, 356 N.E.2d 505 (Ohio 1976). Two attorneys were appointed "on the spot"
                  to represent two defendants at a preliminary hearing. The attorneys refused the


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                  appointment because they had not reviewed the files nor met with the clients. The
                  attorneys were cited for contempt and jailed. On appeal, the conviction was reversed, and
                  it was held that the ethics of the profession demand that an attorney refuse appointment if
                  he or she cannot fully and adequately prepare his or her client's case.

         3.
                  Ensuring Knowledge and Skill.

                  a.
                            The need for continuing legal education has been recognized by the Bar and
                            imposed by the Mississippi Supreme Court in the form of Mandatory Continuing
                            Legal Education. The requirement of 12 hours per year of approved course work
                            (including 1 hour in ethics) is relatively modest.

                  b.
                            The ethical considerations of the profession call upon the lawyer to aspire to higher
                            standards than the mere minimum requirements, therefore, the lawyer should aspire
                            to meet more than the minimum CLE requirements.

                            Some suggestions for ensuring one's own knowledge and skill are:

                            (1)
                                      subscribe to and read legal literature in the field in which you practice or
                                      aspire to practice.
                            (2)
                                      consider concentrating on a manageable few areas of practice.
                            (3)
                                      seek assistance from more experienced counsel. (Sole practitioners may
                                      wish to consider the Bars "Silent Partner" program assistances.) One of the
                                      highest traditions of the Bar is the willingness to assist a fellow lawyer in his
                                      or her service to the public. It is a part of every lawyers obligation to strive
                                      at all levels to aid the legal professional in advancing the highest possible
                                      standards of integrity and competence.

D.
         Thoroughness and Preparation

         1.
                  The ABA Comment to Rule 1.1 instructs that competency includes adequate preparation.
                  The required "preparation and attention are determined in part by what is at stake; major
                  litigation and complex transactions ordinarily require more elaborate treatment than
                  matters of lesser consequence." See also Miss. Rules of Professional Conduct Rule 1.1,


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                  comment.

         2.
                  "Adequate preparation" includes becoming competent, but it also includes the devotion of
                  time and resources necessary to carry out professional responsibilities to the client. Often
                  the subject of "adequate preparation" is addressed in the context of "neglect" rather than
                  "competence."

E.
         Examples of Disciplinary Proceedings

         1.
                  Cases of "incompetence" are rarely addressed as such. Usually these cases are presented in
                  terms of "neglect" of a matter entrusted to the attorney. However, the following cases are
                  illustrative of the issue of competence.

         2.
                  Attorney Grievance Commission v. Bailey. 408 A.2d 1330 (Md. 1979). An attorney
                  undertook to handle a residential real estate conveyance for friends. Unfortunately, the
                  attorney was not approved by any title companies, was not familiar with trust account
                  requirements and did not record the deed, deed of trust and release of prior mortgage for
                  10 months following the closing. The attorney's license was suspended for 3 years, with all
                  but 30 days suspended on the condition the attorney would agree to limit his practice to
                  criminal law, the area of his competence.

         3.
                  Dayton Bar Association v. Timen, 405 N.E.2d 1038 (Ohio 1980). An attorney accepted a
                  court appointment to represent an indigent in federal court. During the representation, the
                  attorney filed motions and memoranda without supporting authorities, and demonstrated
                  an absence of "a fundamental knowledge of proper representation." A public reprimand
                  was imposed.

F.
         Public Perception and the Lawyer's Dilemma

         1.
                  The practicing lawyer must contend with and carefully survive in an atmosphere which
                  includes:

                  a.
                            Financial pressures upon the profession previously not experienced;
                  b.

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                            An increasing rate of malpractice actions against lawyers;
                  c.
                            Sanctions imposed by state and federal judges;
                  d.
                            More active and vigilant disciplinary processes of the Bar acting under the auspices
                            of the Mississippi Supreme Court;
                  e.
                            An increasingly specialized profession with rapid change in many substantive areas
                            of the law.

         2.
                  The lawyer must resist the understandable instinct to become defensive or to strive only to
                  meet minimum standards of conduct.

                                   II. Maintaining The Relationship With The Client

A.
         Communications: The Vital Ingredient

         1.
                  One of the most serious areas of complaints against attorneys is the simple failure to
                  maintain communications with the client. Often the attorney is competent and is diligently
                  pursuing the clients interests; however, the client is not informed and presumes the worst.

         2.
                  Rule 1.4 requires the lawyer to keep the client reasonably informed about the status of a
                  matter and promptly to comply with reasonable requests for information. Miss. Rules of
                  Professional Conduct Rule 1.4(a). That same rule requires the lawyer to explain matters to
                  the extent reasonably necessary to permit the client to make informed decisions regarding
                  the representation.

         3.
                  The comment to Rule 1.4 outlines specific instances and the amount of communication
                  required in each.

                  a.
                            A lawyer should advise the client of settlement offers unless prior discussions with
                            the client make it clear the settlement would be acceptable.
                  b.
                            A lawyer should fulfill reasonable client expectations for information consistent
                            with his/her duty to act in the client's best interests.
                  c.


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                           Practical exigency may, in some instances, require a lawyer to act for a client
                           without prior consultation.
                 d.
                           A lawyer may delay transmission of information when the client would be likely to
                           act imprudently to an immediate communication.
                 e.
                           A lawyer may not withhold information to serve his/her own interest or
                           convenience. Court rules or court orders may forbid disclosure in some instances.

        4.
                 A complete breakdown of communications resulted in disbarment where an attorney failed
                 to meet with a client, failed to return the client's telephone calls, failed to write to the client
                 to advise of the status of the case or communication in any other means. Fifth District
                 Committee v. Williamson, Va. State Bar Disc. Bd. Nos. 80-22, 81-01, 81-02.

        5.
                 Where an attorney settled a case for less than the amount generally discussed by the
                 attorney and client, without knowledge and consent of the client. The attorney's license
                 was suspended for 18 months. Tenth District Committee v. Anthony, Va. State Bar Disc.
                 Bd. No. 78-14.

        6.
                 The significance attached to good communications with clients is suggested in EC 7-8
                 which provides in part:
                 A lawyer should exert his or her best efforts to insure that decisions of his or her client are
                 made only after the client has been informed of relevant considerations. A lawyer ought to
                 initiate this decision-making process if the client does not do so and he should advise his
                 client of the possible effect of each legal alternative. A lawyer should bring to bear upon
                 this decision-making process the fullness of his or her experience as well as his or her
                 objective viewpoint. In assisting his or her client to reach a proper decision, it is often
                 desirable for a lawyer to point out those factors which may lead to a decision that is
                 morally just as well as legally permissible. He or she may emphasize the possibility of
                 harsh consequences that might result from assertion of legally permissible positions. In the
                 final analysis, however, the lawyer should remember that the decision whether to forego
                 legally available objectives or methods because of nonlegal factors is ultimately for the
                 client and not for himself.

        7.
                 Helpful hints for better communication:

                 a.
                           have all phone calls returned by the attorney or someone on his or her behalf within


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                            24 hours.
                  b.
                            Consider the practice of routinely sending photocopies of correspondence and
                            prepared documents to the client. It is slightly more expensive but well worth the
                            investment.
                  c.
                            Develop a diary or "tickler" system and utilize it to remind the lawyer to
                            periodically contact the client.

B.
         Neglect: What It Is; What It Is Not

         1.
                  A lawyer shall act with reasonable diligence and promptness in representing a client.
                  MRPC 1.3.

         2.
                  One act or instance of inadvertence or negligence by an attorney does not necessarily
                  constitute misconduct as defined in the Model Rules. Breach of a rule does not constitute
                  negligence per se. In fact, the preamble to the Rules specifically notes that a breach does
                  not create a cause of action. Some courts have held a breach of an ethical rule may
                  constitute some evidence of breach of duty.

         3.
                  Neglect has generally been regarded as indifference and consistent failure to carry out the
                  contract of employment. ABA Informal Opinion 1273 (Nov. 20, 1973).

C.
         Common Complaints Regarding Neglect

         1.
                  Procrastination: Amid the stress and demands of practice, an attorney must make choices
                  among competing demands for his or her time. However, at some point the failure to
                  attend to a particular matter amounts to misconduct.

                  a.
                            Wilder v Third District Committee, 219 Va. 175 (1978). An attorney allowed two
                            years to pass after being retained by the client before filing suit. The attorney then
                            allowed the action to abate and another two years passed before he filed a second
                            complaint. The Supreme Court observed that the case required "no extraordinary
                            legal expertise, only diligence and promptness," and imposed a public reprimand.



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                 b.
                           In another case, a private reprimand was imposed on an attorney for failing to file
                           divorce proceedings for six months following employment, even though grounds
                           for divorce existed at the time of his or her employment and the client desired the
                           attorney to proceed immediately.

        2.
                 Improper Supervision

                 Delegation of responsibilities does not relieve the attorney of ultimate responsibility to the
                 client and to the profession. A private reprimand was imposed in a Virginia case wherein
                 the attorney delegated the responsibility for preparing and filing estate inventory and
                 accountings to an inexperienced non-lawyer employee who failed to execute properly such
                 responsibilities. See Rule. 5.1.

        3.
                 Failure to Perform Under Third Party Entrustment

                 Some courts have held a lawyer's duty not to neglect matters entrusted to him or her in
                 some instances may extend to third parties with whom he or she may not perceive to be in
                 a true attorney-client relationship. Pickus v. Virginia State Bar, 232 Va. 5, 348 S.E.2d 202
                 (1986). In that case, a lawyer providing real estate settlement services for a client in
                 several transactions was instructed by lending institutions involved in the transactions to
                 satisfy prior deeds of trust and obtain mortgagee title insurance policies insuring that the
                 new loans constituted first liens. Once title insurance commitments were obtained by the
                 lawyer, the lending institutions delivered substantial funds with which to pay off the prior
                 deeds of trust. Relying upon the client's assurance that he would use the proceeds to pay
                 off the liens, the lawyer delivered the funds to his client rather than satisfying the deeds of
                 trust himself. However, the client did not satisfy the liens. Accepting his client's
                 representation that the liens had been satisfied and without examining the land records
                 himself, the lawyer advised the title insurance company and the lending institutions that
                 the loans were secured by a first deed of trust. The title insurance company then issued a
                 policy certifying that fact. The Virginia Supreme Court rejected the attorney's argument
                 that the professional rules of that state were not violated since the lawyer did not neglect a
                 legal matter entrusted to him by his client, and since his client was not injured by his
                 actions. The Court stated that the lawyer's duties encompassed neglect of legal matters
                 entrusted to a lawyer, whether entrusted by a client or a third party. The court held,
                 however, that the lending institutions were also clients of the lawyer since they were not
                 represented by other counsel and he acted alone in closing the loans. Recently, the
                 Mississippi Supreme Court expanded attorney responsibility to a non-client in a real estate
                 context.



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D.
         Reasons for Neglect

         Disciplinary proceedings have involved one or more of the following causes of neglect:

         1.
                  Overworked Lawyers

                  Neglect is frequently caused by a lawyer simply being overworked. Whether his or her
                  overload is due to poor judgment in initially agreeing to represent the client in question or
                  due to unexpected complications which have arisen in other matters, it is imperative that
                  every lawyer make a realistic assessment of his or her ability to handle promptly and
                  competently his or her case load at all times.

                  An overworked lawyer must

                  a.
                            seek assistance from other lawyers in his or her firm,
                  b.
                            make an accurate status report to the client and obtain the client's consent to delay
                            taking action,
                  c.
                            associate outside co-counsel, or
                  d.
                            withdraw as permitted by the Rules.

         2.
                  Inadequate Compensation

                  It is a natural tendency of lawyers to want to place the needs of prompt and well-paying
                  clients ahead of those who are either unwilling or unable to pay what the lawyer considers
                  to be fair compensation. This is particularly a problem in instances where the lawyer
                  initially agrees to accept a fee or quotes a fee to a client which later proves to be
                  inadequate due to the lawyer's lack of familiarity with the subject matter involved or his
                  misjudgment as to the amount of time which would be required to discharge competently
                  his or her duties. Here again, good judgment is critical.

         3.
                  Nature of a Client

                  A number of characteristics of the client may affect whether a lawyer chooses to neglect
                  the client's needs. These characteristics include basic things, such as

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                  a.
                            the demeanor of the client,
                  b.
                            whether the client is critical or expresses appreciation for the lawyer's efforts,
                  c.
                            whether the client exhibits confidence in the lawyer or whether the client is the type
                            who appears to question the judgment or motivation of self-interest of the lawyer,
                            and
                  d.
                            whether the lawyer and client are peers or otherwise have a good rapport with one
                            another.

E.
         Special Duties to Unique Clients

         1.
                  The responsibilities of a lawyer may vary according to the intelligence, experience, mental
                  condition or age of the client, or the nature of a particular proceeding. EC 7-11.

         2.
                  If a client under disability has no legal representative, his or her lawyer may be compelled
                  in court proceedings to make decisions on behalf of the client. All possible aid should be
                  sought from the client; however, the lawyer may be compelled to make certain decisions
                  on the client's behalf. These decisions should always be made in the best interests of the
                  client and preferably with the express approval of the court.

         3.
                  It is appropriate for a lawyer who represents a client who is under a disability to seek
                  appointment of a guardian for the client.

F.
         Limitation of Liability

         Rule 1.8(h) provides a lawyer shall not limit his liability to this client for his or her personal
         malpractice. Any such attempts would be of questionable efficacy.

                               III. Substance Abuse and The Lawyer's Responsibility

A.
         The Problem



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         1.
                  Abuse of alcohol and chemical substances is a national epidemic. The National Institute of
                  Alcohol and Substance Abuse reports that incidents of alcoholism and/or chemical
                  dependency for the legal profession are above the national average.

         2.
                  Often a deteriorating legal practice and the neglect of legal matters are symptomatic of a
                  substance abuse problem. Many bar associations have determined that a large number of
                  ethical violations, disciplinary procedures, and disbarment procedures can be attributed to
                  chemical dependency.

         3.
                  Obviously, chemical dependency and substance abuse may adversely affect a lawyer's
                  competence. Additionally, each lawyer has the responsibility to report to the appropriate
                  professional authority any violations of the disciplinary rules that raise a substantial
                  question as to a lawyer's fitness to practice law. Rule 8.3(a). The understandable reluctance
                  to report a fellow lawyer upon suspicion of substance abuse, however, has resulted in
                  benign neglect of a growing problem.

B.
         A Partial Solution

         1.
                  The Mississippi Bar sponsors a substance abuse program entitled "The Lawyers and
                  Judges Assistance Program."

         2.
                  The objectives of the program include:

                  a.
                            A desire to separate the program from the state disciplinary forces to encourage the
                            chemically dependent to come forward.
                  b.
                            A dedication to confidentiality to give each participant assurance that the
                            information is private and to encourage honesty and trust.
                  c.
                            Utilization of a group of highly motivated, responsible lawyers who serve on a
                            voluntary basis to implement the program and to aid others in the profession.

         3.
                  Help is available. The call will not threaten a legal career. It might save one.



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         4.
                  Hot Line: 1-800-593-9777 or 960-9573, ask for the Lawyers and Judges Assistance
                  Program.

         5.
                  For more information concerning programs available, call The Mississippi Bar at 601-948-
                  4471.

                                                 IV. Terminating Employment

A.
         Introduction

         Just as the Rules of Professional Responsibility regulate the formation of the attorney-client
         relationship, the Rules also specify the proper procedures for withdrawal from the representation
         of a client.

B.
         Duties of an Attorney Prior to Termination

         Before attempting to terminate the attorney-client relationship at any stage of the proceedings, the
         lawyer has three general responsibilities:

         1.
                  Obtain Permission from Court or Tribunal

                  a.
                            If permission for withdrawal is required by the rules of the tribunal, such
                            permission must be obtained after notice to the client as to the time and place of a
                            motion to withdraw.
                  b.
                            If is insufficient merely to reach an agreement to withdraw with the client, the
                            attorney's duty to represent continues until he is relieved from such duty by the
                            court. Myers v. Miss. State Bar, 480 So.2d 1093 (Miss. 1985).
                  c.
                            The attorney has a duty to pursue an appeal in a criminal case until he is released by
                            the court. Allison v. State, 436 So. 2d 792 (Miss. 1983).

         2.
                  Protect the Client

                  a.

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                           The lawyer must take whatever reasonable steps necessary, regardless of the need
                           for the withdrawal, to avoid foreseeable prejudice to the rights of the client. Rule
                           1.16(b). Such steps include due notice, the allowance of time to employ other
                           counsel, delivery to the client of all papers and properties to which the client is
                           entitled and compliance with applicable laws and rules. Rule 1.16(d).

        3.
                 Return of Unearned Fees

                 a.
                           The attorney must return any part of the fee that has been paid in advance that has
                           not been earned at the time of termination.
                 b.
                           When the file is returned to a client or turned over to the lawyer designated by the
                           client to receive the file, it should include all of the pleadings, original papers
                           belonging to the client, as well as letters from the client to the lawyer. Anything the
                           client has entrusted to the lawyer should be returned in the original form, but other
                           material may be copied at the lawyers expense.

        C.
                 Mandatory Withdrawal

                 Withdrawal from representation of a client is mandatory (after obtaining permission from
                 the tribunal as required by its rules) if:

                 1.
                           continuing the representation will result in a course of conduct by the lawyer that is
                           illegal or inconsistent with the Rules;

                 2.
                           the lawyer's physical or mental condition materially impairs the lawyer from
                           adequately representing the client; or

                 3.
                           the lawyer is discharged by the client. Rule 1.16.

        D.
                 Permissive Withdrawal

                 Withdrawal is permitted (after compliance with relevant court procedures) if:

        1.

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                  withdrawal can be effected without material prejudice to the client (Rule 1.15(b)); or

         2.
                  the client persists in a course of conduct involving the lawyer's services that the lawyer
                  reasonably believes is illegal or unjust (Rule 1.16(b)(i)); or

         3.
                  the client fails to fulfill an obligation to the lawyer regarding the lawyer's services and such
                  failure continues after reasonable notice to the client (Rule 1.16(b)(4); or

         4.
                  the representation will result in an unreasonable financial burden on the lawyer or has been
                  rendered unreasonably difficult by the client. For example, when the client fails to follow
                  the lawyer's advice, the attorney may seek to withdraw. Also, an attorney may move to
                  withdraw from representation of a client who repeatedly breaches agreements to pay
                  agreed-upon fees and to reimburse the attorney for out-of-pocket expenses. Rule
                  1.16(b)(5).

E.
         Court Denies Motion to Withdraw

         A lawyer shall continue to represent a client notwithstanding good cause for termination of the
         relationship, when ordered to do so by a tribunal. Rule 1.16(c).

                                                            V. Confidences

A.
         Introduction

         Rule 1.6(a) of the Mississippi Rules of Professional Conduct imposes upon a lawyer the duty to
         preserve the confidences of his client. If it were not generally known that lawyers are required to
         preserve the confidences and secrets of clients, persons with legal problems would be reluctant to
         seek legal help and confide in lawyers. See EC 4-1.

B.
         Confidences

         A confidence includes all matters protected by the evidentiary rule known as the "attorney-client
         privilege," and also protects matters beyond the evidentiary privilege to include anything a client
         tells his or her lawyer in private.

         In most instances, confidences cannot be disclosed without first obtaining the consent of the

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         client. Rule 1.6(a). Some exceptions to this rule do exist:

         1.
                  A confidence may be disclosed to prevent the client from committing a criminal act. (ABA
                  Model Rules permit disclosing a confidence to prevent a crime which might result in
                  imminent death or serious bodily harm. The Mississippi Rules allow disclosure to prevent
                  a "criminal act".) Miss. Rules of Professional Conduct Rule 1.6(b)(1).

         2.
                  Confidences may also be disclosed to establish a claim or defense of the client or to
                  respond to allegations in any proceeding concerning the lawyer's representation of the
                  client. Rule 1.6(b)(2).

         3.
                  The duty of confidentiality is owed even after the client's death, but may be disclosed if the
                  personal representative of the decedent consents or a court orders disclosure. Miss. State
                  Bar Ethics Op. 119, 124 (1986).

         4.
                  Lawyers should make it a practice not to discuss their clients or their client's business
                  outside the office except in the course of said representation.

         5.
                  The names of the clients should be kept confidential. For example, a client comes to you
                  and states that he or she has been involved in a hit-and-run accident and has retained you
                  to negotiate a plea agreement with the District Attorney. You should not disclose the name
                  of the client if you are unsuccessful in your negotiations.

         6.
                  Examples of communications that are confidential:

                  a.
                            past crimes;
                  b.
                            future business decisions, for example, acquisitions, or purchases of real estate
                            where third parties might obtain advantage.

C.
         The Principle of Non-Disclosure

         1.
                  The General Rule

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                 Absent consent, and the exceptions thereto contained in Section C below, a lawyer shall
                 not knowingly reveal, use to the disadvantage of the client, or use to the advantage of
                 himself/ herself or a third person, a confidence or secret of the client. Rules 1.6(a)(b),
                 1.8(b), 1.9(b). The rule requires a steadfast refusal to divulge client matters. Even a
                 lawyers obligation to report attorney misconduct under Rules 5.1 and 8.3 is limited by the
                 ethical responsibility to preserve the client's confidences. It is important to remember that
                 the mere fact of representation as well as the name of a client are confidential and that the
                 disclosure of this information alone can be detrimental to a client.

        2.
                 Time of Application and Extent of Coverage

                 The obligation of non-disclosure applies in every situation and not solely in judicial
                 proceedings. Furthermore, the duty of non-disclosure covers all periods including those
                 prior to and subsequent to the creation of the attorney-client relationship. A lawyer must
                 protect confidential information given by a potential client even if he or she is not hired to
                 represent the person. Similarly, after the employment terminates, the lawyer must continue
                 to protect all confidential information and secrets divulged during the course of the
                 relationship.

        3.
                 Duty Extends Beyond Mere Non-Disclosure

                 Not only must the attorney himself protect a disclosure of confidential information but also
                 disclosure of information or use of the information by others for their own purposes must
                 be prevented.

                 a.
                           Employees and Associates

                           At all times, the lawyer must take care to prevent employees and fellow firm
                           members from disclosing or utilizing confidential information obtained from a
                           client. Rules 5.1(a) and (b), 5.3(a) and (b). A lawyer shall exercise reasonable care
                           to prevent employees or associates and others whose services are utilized by him or
                           her from disclosing or using confidences of a client. A lawyer should not associate
                           another lawyer in a case absent consent of the client. EC 4-2. Also, a lawyer should
                           not seek counsel from another lawyer, absent consent of the client, if there is a
                           reasonable possibility that the identity of the client or his or her confidences or
                           secrets would be revealed to such lawyer. EC 402.

        4.


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                  Disclosure Necessary for Administrative Purposes

                  It is not improper, however, for a lawyer to give limited, necessary information to an
                  outside agency for such purposes as banking or bookkeeping, provided he or she warns the
                  agency that the information must be kept confidential. However, such conduct is improper
                  where the client directs otherwise. EC 4-3.

         5.
                  Personal Use of Information Obtained from a Client

                  Information acquired in the course of representing a client may not be used to the
                  disadvantage of the client or even by a lawyer for the lawyer's own purposes, absent full
                  informed consent by the client. See EC 4-5.

         6.
                  Business Relationships

                  A lawyer should be careful in entering into business deals with clients because that
                  relationship is fraught with potential problems. A conflict of interest may occur for an
                  attorney who while a member of the business enterprise acts as an attorney representing
                  personal interests.

         7.
                  Fee Payment

                  It is important to remember that the attorney-client relationship is not contingent upon a
                  lawyer's being paid.

D.
         Exceptions to the General Rule

         1.
                  Discretionary Exceptions

                  A lawyer may reveal the confidences of the client in a limited set of circumstances under
                  Rule 1.6. These include:

                  a.
                            If the client consents after full disclosure.

                            A lawyer must be sure that the client fully understands the benefits and detriments
                            that may arise from such a disclosure.

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                 b.
                           When Required by Law or Court Order.

                           Without this exception, a lawyer would be in an impossible situation if the law or a
                           court order required him or her to reveal information. This exception does not
                           require disclosure, but merely relieves the lawyer of any obligation under Rule
                           1.6(c) to preserve the confidences and secrets of the client. Thus, if the lawyer
                           chooses not to reveal in this situation, he or she may be punished for violating the
                           law or court order.

                 c.
                           A lawyer may disclose client confidences to prevent the client from committing a
                           criminal act. Rule 1.6(b)(1).

                 d.
                           Attorney's Fees

                           (1)
                                     Reasonableness of Fees

                                     If a lawyer's fee is questioned, rules of confidentiality should not prevent
                                     proof of the reasonableness of the fee. Rule 1.6(b)(2). However, the lawyer
                                     should not sue the threat of disclosing a confidence as a lever in a fee
                                     discussion. Generally, the amount of the fee paid by a client is not
                                     confidential information, and there are many cases on the subject, especially
                                     from the federal courts.

                           (2)
                                     Source of Fees

                                     For example, under certain circumstances a lawyer may be forced to disclose
                                     whether fees were paid by a third party. A lawyer should bear this in mind
                                     when accepting a fee from third parties.

                           (3)
                                     Large Cash Payments

                                     Federal law requires a lawyer to report a cash fee in excess of $10,000.00 or
                                     a series of payments which exceed $10,000.00 in related transactions. The
                                     identity of the source must be reported as well as the source's tax
                                     identification number. It is a criminal offense to fail to do this. In addition, it

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                                     is a felony to conspire with a client to launder money or to engage actively
                                     in the laundering of money yourself, even if you are a lawyer. 18 U.S.C.
                                     Secs.; 371 & 1956; 31 U.S.C. Secs. 5322 & 5324. This law is subject to
                                     ethical concerns.

                 e.
                           To Defend Against an Accusation of Misconduct

                           (1)
                                     If a client accuses the lawyer's employees or associates of misconduct, the
                                     lawyer has a right to refute such accusations even though it may be
                                     necessary to disclose the client's confidences and secrets in the process. Rule
                                     1.6(b)(2).

                           (2)
                                     There must be an actual controversy in which the client is the aggressor and
                                     the lawyer is defending himself or herself. Meyerhofer v. Empire Fire and
                                     Marine Ins. Co., 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998
                                     (1974); Application of Friend, 411 F.Supp. 776 (S.D.N.Y. 1975). In general,
                                     there is no exception for making such disclosure to refute accusations made
                                     by third parties, unless the clients' conduct or representation is also
                                     implicated.

        2.
                 Lawyer's Duty of Candor to a Tribunal

                 a.
                           Rule 3.3 requires attorneys to act with candor toward the tribunals before which
                           they practice.

                 b.
                           Rule 3.3 forbids

                           (1)
                                     false statements of material facts or law to a tribunal;
                           (2)
                                     failure to disclose a material fact to a tribunal when disclosure is necessary
                                     to avoid assisting a criminal or fraudulent act by the client;
                           (3)
                                     failure to disclose legal authority in the controlling jurisdiction known to the
                                     lawyer to be directly adverse to the position of the client and not disclosed
                                     by opposing counsel;


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                           (4)
                                     offering evidence that the lawyer knows to be false. When a lawyer offers
                                     evidence and later learns of its falsity, the lawyer shall take reasonable
                                     remedial measures.

                 c.
                           A lawyer may at times face a conflict between Rule 1.6, which requires the keeping
                           of client confidences, and Rule 3.3, which requires candor toward a tribunal.

                 d.
                           When someone other than the client offers false evidence, the attorney must refuse
                           to offer it regardless of the client's wishes.

                 e.
                           When the client wishes to offer false evidence, the attorney should seek to persuade
                           the client not to offer the evidence. If this persuasion is ineffective, the lawyer must
                           take remedial measures. Rule 3.3, comment.

                 f.
                           What remedial measures must be taken?

                           (1)
                                     the attorney should attempt to persuade the client to undo the falsehood
                                     he/she has committed;
                           (2)
                                     if this fails, the attorney should seek to withdraw as counsel, if that will
                                     remedy the situation;
                           (3)
                                     if permission to withdraw is denied, counsel should disclose the falsity to the
                                     tribunal.
                           (4)
                                     then it is up to the tribunal to decide how to remedy the falsity. (See
                                     Comment).

                 g.
                           Although constitutional considerations may impinge on the lawyer's actions in a
                           criminal case, the lawyer may never assist or encourage presentation of false or
                           misleading evidence to the tribunal.

                 h.
                           Generally, the practical temporal limitation of the obligation is contemporaneous
                           with the termination of the proceeding. (See Comment). It may be asserted that the


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                            obligation extends beyond the proceeding.


Endnotes

       8 -- "Ethical considerations" are a part of the Code of Professional Responsibility, which was the
predecessor to the Rules of Professional Conduct. However, the "ethical considerations" are not the
Rules but they may provide some information even though the EC's have been replaced by the various
Comments to the Rules.

                              Table of Contents / Chapters 1, 2, 3, 4, 6, 7, 8, Appendix A




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                                                               Chapter Six


                     Duty to Court; Obligation of Good Faith
                                                            I. Introduction

A.
         Definition of Tribunal

         Both the Mississippi Rules of Professional Conduct and its predecessor, the Mississippi Code of
         Professional Responsibility (adopted 1971, as amended), include obligations of candor toward the
         "tribunal." See MRPC 3.3. However, neither the MRPC nor the MCPR defines tribunal. The
         Virginia Code of Professional Responsibility defines tribunal to include all courts and other
         adjudicatory bodies. See Virginia Code of Professional Responsibility, Section II, Definitions.

B.
         Duties of an Officer of the Court

         1.
                  The Attorney's Oath: I do solemnly swear (or affirm) that I will demean myself, as an
                  attorney and counselor of this court, according to the best of my learning and ability, and
                  with all good fidelity as well to the court as to the client; that I will use no falsehood nor
                  delay any persons cause for lucre or malice, and that I will support the constitution of the
                  State of Mississippi so long as I continue a citizen thereof. So help me God. MISS. CODE
                  ANN. SEC. 73-3-35 (1973)

         2.
                  A lawyer's primary duty is to assist judges and all court staff in the operation of the court
                  system and administration of justice.
                  An attorney owes his or her first duty to the court. He or she assumed his or her obligations
                  toward it before he or she ever had a client. His or her oath requires him or her to be
                  absolutely honest even though his or her clients interests may seem to require a contrary
                  course. The [lawyer] cannot serve two masters and the one undertaken to serve primarily is
                  the court.
                  In re Integration of Nebraska State Bar Association, 133 Neb. 283, 289, 275 N.W. 265, 268
                  (1937).

         3.
                  This duty extends to all contacts with the Court, not just presentations at a formal hearing,
                  including pleadings and other papers, see Miss. R. Civ. P. 11. It also includes not
                  "[engaging] in conduct which is prejudicial to the administration of justice." MRPC 8.4(d).


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         4.
                  Lawyers have an overreaching duty to obey and enforce the Disciplinary Rules and the
                  Mississippi Rules of Professional Conduct. See MRPC 8.3(a); 8.4(a).

         5.
                  In Mississippi federal district courts, lawyers can be censured or reprimanded "for conduct
                  unbecoming a member of the Bar or for failure to comply with [the Uniform Local Rules]
                  or any rule of the Court." Uniform Local Rule 1(c)(1). The right to practice before the
                  federal district courts can be revoked or suspended for flagrant conduct, and courts will
                  refer attorneys to the Mississippi State Bar if conduct warrants suspension or disbarment.

                       II. Conflicting Duties of Disclosure: Officer of the Court/Preservation
                                         of Client Confidences and Secrets

A.
         Policy Considerations of Conflict

         1.
                  Duty as officer of court:

                  "The advocate's task is to present the client's case with persuasive force. Performance of
                  that duty while maintaining confidences of the client is qualified by the advocate's duty of
                  candor to the tribunal. However, an advocate does not vouch for evidence submitted in a
                  cause; the tribunal is responsible for assessing its probative value." Comment, MRPC 3.3.

         2.
                  Duty to client:

                  a.
                            "[P]reserving client confidences ordinarily serves the public interest because people
                            are more likely to seek legal advice, and thereby heed their legal obligations, when
                            they know their communications will be private." Preamble, Mississippi Rules of
                            Professional Conduct. Also, this ethical duty "facilitates the full development of
                            facts essential to the proper representation of the client." Comment, MRPC 1.6.

                  b.
                            Ethical precept, unlike evidentiary rule governing attorney-client privilege, exists
                            without regard to nature or source of information or fact that others share
                            knowledge. Id.

                  c.
                            Obligation to preserve confidences continues after termination of employment. Id.


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                            The obligation also exists after the client's death. Ethics Opinion Nos. 119 and 123
                            of the Mississippi State Bar.

B.
         Court Ordered Disclosure

         A lawyer may reveal confidences or secrets when required by law or court order. MRPC 1.6(c).

         1.
                  It is not improper for a lawyer to reveal otherwise confidential information if ordered to do
                  so by a court, even if the information has nothing to do with the litigation in which the
                  disclosure order is issued. Ethics Opinion No. 95 of the Mississippi State Bar. However, the
                  lawyer should raise the confidentiality issue prior to disclosure.

         2.
                  It is not improper for a lawyer to reveal otherwise confidential information if ordered to do
                  so by a court under circumstances where the client has accused the lawyer of wrongful
                  conduct. Ethics Opinion No. 124 of the Mississippi State Bar. Nor is it improper for a
                  lawyer to disclose confidential information to a third party in response to charges by that
                  party of complicity by the lawyer in wrongful conduct by the client. See Comment, MRPC
                  1.6. The disclosure should be limited by the lawyer's need to defend himself, and the client
                  should be advised in advance of the accusation of misconduct and requested to rectify the
                  situation.

         3.
                  If the lawyer is called as a witness, he must invoke the privilege prior to testifying
                  regarding information otherwise protected by the attorney-client privilege or the Rules of
                  Professional Conduct, unless the client has waived the privilege or consented to disclosure
                  after consultation. Comment, MRPC 1.6.

C.
         Disclosure that Client Intends to Commit a Crime

         1.
                  A lawyer may reveal confidential information "to the extent the lawyer reasonably believes
                  necessary to prevent the client from committing a criminal act." MRPC 1.6(b)(1).
                  The lawyer's exercise of discretion requires consideration of such factors as the nature of
                  the lawyer's relationship with the client and with those who might be injured by the client,
                  the lawyer's own involvement in the transaction and factors that may extenuate the conduct
                  in question. Where practical, the lawyer should seek to persuade the client to take suitable
                  action. In any case, a disclosure adverse to the client's interest should be no greater than the
                  lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take
                  preventive action permitted by paragraph (b)(1) does not violate this Rule. Comment,

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                  MRPC 1.6.

         2.
                  Prior to disclosure, the lawyer should, where feasible:

                  a.
                            Advise the client of the possible legal consequences;
                  b.
                            Urge the client not to commit the crime;
                  c.
                            Advise the client of the lawyer's decision to reveal criminal intention unless
                            abandoned; and,
                  d.
                            Advise the client that if the crime involves perjury by the client, that the attorney
                            shall seek to withdraw as counsel.

         3.
                  An attorney must report instances of admitted perjury to the tribunal before which it
                  occurred, whether or not the perjurer is the lawyer's client. Ethics Opinion No. 205 of the
                  Mississippi State Bar. The obligation of the perjurer's lawyer in this respect emanates from
                  MRPC 3.3(a)(2), which prohibits knowing failure to disclose a material fact when
                  necessary to avoid assisting a criminal or fraudulent act. The obligation of other lawyers
                  emanates from MRPC 8.4(d), which makes it professional misconduct to engage in conduct
                  prejudicial to the administration of justice.

         4.
                  By contrast, a lawyer is not obligated to reveal criminal conduct of a non-client which does
                  not threaten the administration of justice. In fact, if that information relates to the lawyer's
                  representation of a client (e.g., if it is learned during a deposition of a non-client during the
                  representation), the lawyer cannot reveal the information except as otherwise provided in
                  the Rules of Professional Conduct (e.g., if the client consents after consultation, or if the
                  court orders disclosure or disclosure is mandated by law). Formal Interpretive Opinion No.
                  213 of The Mississippi Bar.

D.
         Fraud On the Court

         1.
                  "A lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure
                  is necessary to avoid assisting a criminal or fraudulent act by the client." MRPC 3.3(a)(2).

         2.


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                  Distinguish the following situations:

                  a.
                            The lawyer must not offer false evidence provided by a non-client, regardless of the
                            client's wishes. If the client insists, the lawyer must withdraw. MRPC 1.16(a)(1).

                  b.
                            If false evidence has been offered by the client, the lawyer must try to persuade the
                            client to rectify the situation. "Except in the defense of a criminal accused, the rule
                            generally recognized is that, if necessary to rectify the situation, an advocate must
                            disclose the existence of the client's deception to the court or to the other party."
                            Comment, MRPC 3.3.

                  c.
                            If the lawyer is representing a criminal accused who insists on testifying
                            perjuriously, he must withdraw if it is feasible to do so. If withdrawal is impossible,
                            a conflict arises between the lawyer's ethical responsibility not to suborn perjury and
                            the criminal accused's constitutional rights. Some have suggested that the client's
                            constitutional rights authorize more or less active acquiescence in the perjury by the
                            lawyer. These theories ignore that constitutional rights don't exist in a vacuum; they
                            depend for their preservation upon a system of judicial administration which cannot
                            condone perjury and survive. If the system fails, the Constitution is mere parchment.

E.
         Perpetration of Fraud Upon a Third Party by Client During Representation

         1.
                  "In the course of representing a client a lawyer shall not knowingly fail to disclose a
                  material fact to a third person when disclosure is necessary to avoid assisting a criminal or
                  fraudulent act by a client." MRPC 4.1(b).

         2.
                  Disclosure under this rule is subject to the confidentiality requirements of MRPC 1.6. See
                  II(C)(1), supra.

                                         III. Attorney Conduct Toward the Court

A.
         Contact with Officials

         1.
                  Communications with Court


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                 a.
                           "A lawyer shall not communicate ex parte with [a judge or other official] except as
                           permitted by law." MRPC 3.5(b).

                 b.
                           Exceptions:

                           (1)
                                    Communications with the court in the course of official proceedings;
                           (2)
                                    Communications with the court in writing if promptly delivered to opposing
                                    counsel or unrepresented party;
                           (3)
                                    Communications orally with the court upon adequate notice to opposing
                                    counsel or unrepresented adverse party; or,
                           (4)
                                    Communicate otherwise as authorized by law.

                 c.
                           Communications with the clerk's office about the mechanics of filings, subpoenas,
                           fees, etc. are permitted.

        2.
                 Ex Parte Proceedings

                 a.
                           Lawyers in ex parte proceedings have a broader duty to inform the court of all
                           material facts known to the lawyer, even if they are adverse to the client. MRPC
                           3.3(d). Examples of such proceedings include:

                           (1)
                                    Patent Applications - Beckman Instruments v. Chemtronics, 428 F.2d 555
                                    (5th Cir. 1970) (patent applicant has duty to disclose similar prior art to
                                    Patent Office)
                           (2)
                                    Default judgments - Hutton v. Fisher, 359 F.2d 913 (3d Cir. 1966) (ex parte
                                    default judgment overturned on basis of lawyer's withholding relevant
                                    material information).
                           (3)
                                    Preliminary Injunctions - Miss. and Fed. R. Civ. P. 65(a)(1) (no injunction
                                    shall issue without notice to the adverse party).
                           (4)


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                                     Temporary restraining orders - Miss. and Fed. R. Civ. P. 65(a)(1)(may be
                                     granted without written or oral notice to adverse party or counsel only if: (1)
                                     it is clear from specific facts in affidavit or verified complaint that immediate,
                                     irreparable injury or loss will result before the adverse party can be heard;
                                     and, (2) applicant's attorney certifies to court in writing the efforts which
                                     were made to give notice and reasons supporting claim that notice is not
                                     required).

B.
         Gifts or Loans to Court or Individuals Associated with Court

         1.
                  "A lawyer shall not seek to influence a judge, juror, prospective juror or other official by
                  means prohibited by law." MRPC 3.5(a).

         2.
                  The Mississippi Code of Judicial Conduct provides that judges may receive "ordinary social
                  hospitality," gifts from relatives, wedding or engagement gifts, and loans from lending
                  institutions on standard terms. As to "any other gift, bequest, favor or loan," the judge shall
                  not receive them from "a party or other person whose interests have come or are likely to
                  come before him;" and, if such "other gift, bequest, favor or loan" exceeds $100 in value, he
                  must report it. Mississippi Code of Judicial Conduct, Canon 5(C)(3).

C.
         Respect for Law - General Principles

         1.
                  Courtesy and Consideration

                  "In representing a client, a lawyer shall not use means that have no substantial purpose
                  other than to embarrass, delay, or burden a third person, or use methods of obtaining
                  evidence that violate the legal rights of such a person." MRPC 4.4.

         2.
                  Decorum of the Tribunal

                  "A lawyer shall not engage in conduct intended to disrupt a tribunal." MRPC 3.5(C).

                                   IV. General Obligations as an Officer of the Court

A.
         Lawyer As A Witness


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         1.
                  "A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a
                  necessary witness except where the testimony relates to an uncontested issue, the testimony
                  relates to the nature and value of legal services rendered in the case, or disqualification of
                  the lawyer would work a substantial hardship on the client." MRPC 3.7(a).

                  a.
                            "The opposing party has a proper objection where the combination of roles may
                            prejudice that partys rights in the litigation. A witness is required to testify on the
                            basis of personal knowledge, while an advocate is expected to explain and comment
                            on evidence given by others. It may not be clear whether a statement by an advocate-
                            witness should be taken as proof or as an analysis of the proof." Comment, MRPC
                            3.7. The rule recognizes that testimony on an uncontested issue does not implicate
                            this concern.

                  b.
                            As for the substantial hardship exception, the rule requires a balancing of the
                            interests of the opposing party and the lawyer's client. Relevant in this calculus is
                            whether it was foreseeable that the lawyer would be needed as a witness, but
                            principles of imputed disqualification do not weigh into this factor.

                  c.
                            Example: A lawyer who drafts a will for a long-time client may defend and testify
                            on behalf of the executrix in a will contest if there is no conflict between their
                            testimony, and if his withdrawal would work a substantial hardship on the client.
                            Even if withdrawal is proper, the lawyer's partner may continue representing the
                            executrix. Opinion No. 195 of The Mississippi Bar.

         2.
                  "A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is
                  likely to be called as a witness unless precluded from doing so by [the conflict of interest
                  rules]." MRPC 3.7(b).

         3.
                  If it becomes clear that the lawyer will be called as a witness under circumstances other
                  than those permitted by the rules, the lawyer shall withdraw unless doing so would work a
                  substantial hardship on the client. If the reason for withdrawal is that the lawyer's testimony
                  will be adverse to the client, imputed disqualification principles preclude any other lawyer
                  in the lawyer's firm from assuming the representation.

B.
         Lawyer May Not Threaten Criminal or Disciplinary Charges

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         1.
                  "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
                  unless there is a basis for doing so that is not frivolous, which includes a good faith
                  argument for an extension, modification or reversal of existing law. A lawyer for the
                  defendant in a criminal proceeding, or the respondent in a proceeding that could result in
                  incarceration, may nevertheless so defend the proceeding as to require that every element of
                  the case be established." MRPC 3.1.

         2.
                  Rationale - Threatening to use or using criminal process to coerce adjustment of private
                  civil claims in a subversion of the civil adjudicative process. Improper use of criminal
                  process tends to diminish public confidence in the legal system.

C.
         Trial Conduct

         1.
                  General Knowledge of Rules of Court

                  a.
                            Rationale - Respect for rulings is essential to proper administration of justice;
                            however, a lawyer may in good faith and within the bounds of the law, take steps to
                            challenge a ruling.

                  b.
                            Know the local rules in the jurisdiction in which you are appearing. For example, the
                            Uniform Local Rules and the Civil Justice Reform Act Uniform Plan have almost as
                            much impact on litigation in Mississippi federal district courts as the Federal Rules
                            of Civil Procedure.

         2.
                  "A lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe
                  is relevant or that will not be supported by admissible evidence, assert personal knowledge
                  of facts in issue except when testifying as a witness, or state a personal opinion as to the
                  justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt
                  or innocence of an accused." MRPC 3.4(e). Neither shall a lawyer "knowingly disobey an
                  obligation under the rules of a tribunal except for an open refusal based on an assertion that
                  no valid obligation exists," MRPC 3.4(c); "falsify evidence, counsel or assist a witness to
                  testify falsely, or offer an inducement to a witness that is prohibited by law," MRPC 3.4(b);
                  "offer evidence that the lawyer knows to be false," MRPC 3.3 (a)(4); or "make a false
                  statement of material fact or law to a tribunal." MRPC 3.3(a)(1).


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D.
         Trial Publicity

         1.
                  "A lawyer shall not make an extrajudicial statement that a reasonable person would expect
                  to be disseminated by means of public communication if the lawyer knows or reasonably
                  should know that it will have a substantial likelihood of materially prejudicing an
                  adjudicative proceeding." MRPC 3.6(a). An extrajudicial statement is substantially likely to
                  materially prejudice an adjudication if it relates to:

                  a.
                            The identity, expected testimony, character or credibility of a party or witness;
                  b.
                            The likelihood of a criminal accused's guilty plea or the existence or contents of his
                            confession or admission against interest;
                  c.
                            A description of potential physical evidence, or a statement as to any examinations
                            or tests which may or may not have been performed;
                  d.
                            Information which the lawyer knows or should know will be inadmissible and, if
                            disclosed, substantially likely to prejudice an impartial trial; or,
                  e.
                            Any opinion as to a criminal accused's guilt or innocence. MRPC 3.6(b).

         2.
                  The goal of our legal system is that each party shall have his or her case, criminal or civil,
                  adjudicated before an impartial tribunal. The rules regarding trial publicity are designed to
                  enhance the likelihood of that occurring.

         3.
                  Case Law Regarding Trial Publicity

                  a.
                            Near v. Minnesota, 283 U.S. 697 (1931). The power of the courts actively to restrain
                            media coverage of litigation has been limited.
                  b.
                            Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). A court may have some
                            power to restrict pretrial publicity where it is clearly shown that the publicity would
                            interfere with the right to a fair trial.

E.
         Investigation of Jurors


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         1.
                  "A lawyer shall not seek to influence a . . . juror [or] prospective juror . . . by means
                  prohibited by law." MRPC 3.5(a).

         2.
                  "It is unprofessional and highly improper for a lawyer to curry favor with juries by fawning,
                  flattery or pretended solicitude for their personal comfort." Ethics Opinion No. 7 of the
                  Mississippi State Bar. For example, statements in closing argument like "I appreciate your
                  patience, attentiveness, etc.," or "you have been an excellent jury," while common, are
                  highly unprofessional.

         3.
                  A mass-mailed questionnaire to the jury venire or potential jurors which contains
                  inadmissible evidence and improper argument is prohibited. Opinion No. 160 of the
                  Mississippi State Bar.

F.
         Contact with Witnesses

         1.
                  "A lawyer shall not request a person other than a client to refrain from voluntarily giving
                  relevant information to another party unless (1) the person is a relative or an employee or
                  other agent of a client; and (2) the lawyer reasonably believes that the person's interests will
                  not be adversely affected by refraining from giving such information." MRPC 3.4(f). This is
                  a corollary of the rule that "a lawyer shall not unlawfully obstruct another party's access to
                  evidence" or "counsel or assist another person to do any such act." MRPC 3.4(a).

         2.
                  "In representing a client, a lawyer shall not communicate about the subject of the
                  representation with a party the lawyer knows to be represented by another lawyer in the
                  matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do
                  so." MRPC 4.2.

                  a.
                            "In the case of an organization, this rule prohibits communications by a lawyer for
                            one party concerning the matter in representation with persons having a managerial
                            responsibility on behalf of the organization, and with any other person whose act or
                            omission in connection with that matter may be imputed to the organization for
                            purposes of civil or criminal liability or whose statement may constitute an
                            admission on the part of the organization." Comment, MRPC 4.2.

                  b.


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                            But, this rule does not preclude communications with former employees of an
                            organization, so long as the lawyer does not ask for privileged information,
                            knowingly misrepresent material facts to the person, mislead the person into
                            believing the lawyer is disinterested or give legal advice to the person. Opinion No.
                            FIO #215 of The Mississippi Bar.

         3.
                  A lawyer may advance statutory witness fees, mileage and expenses necessarily incurred in
                  attending trial to anyone subpoenaed to give fact testimony, provided the witness
                  previously has agreed to repay the lawyer. Opinion No. 145 of The Mississippi Bar.

         4.
                  "In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
                  shall not state or imply that the lawyer is disinterested. When the lawyer knows or
                  reasonably should know that the unrepresented person misunderstands the lawyer's role in
                  the matter, the lawyer shall make reasonable efforts to correct the misunderstanding."
                  MRPC 4.3.

G.
         Avoiding the Implication of Improper Influence

         "It is professional misconduct for a lawyer to state or imply an ability to influence improperly a
         government agency or official." MRPC 8.4(e).

                             V. Conflict Between Zealous Representation of Client and
                                             Being Officer of the Court

A.
         Suits, Motions and Defenses Meant to Harass or Delay

         1.
                  "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
                  unless there is a basis for doing so that is not frivolous, which includes a good faith
                  argument for an extension, modification or reversal of existing law." MRPC 3.1.

         2.
                  "The filing of an action or defense or similar action taken for a client is not frivolous merely
                  because the facts have not first been fully substantiated or because the lawyer expects to
                  develop vital evidence only by discovery. Such action is not frivolous even though the
                  lawyer believes that the client's position will not ultimately prevail. The action is frivolous,
                  however, if the client desires to have the action taken primarily for the purpose of harassing
                  or maliciously injuring a person or if the lawyer is unable either to make a good faith


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                  argument on the merits of the action taken or to support the action taken with a good faith
                  argument for an extension, modification or reversal of existing law." Comment, MRPC 3.1.

         3.
                  Miss. R. Civ. P. 11 proscribes pleadings for which there are no good supporting grounds, or
                  which are interposed only for delay. Fed. R. Civ. P. 11 is more demanding, requiring that
                  the pleading or other paper (1) not be presented for an improper purpose, including delay or
                  the desire to increase the cost of the litigation; (2) be warranted by existing law or a good
                  faith argument for its extension, reversal or modification; and, (3) have evidentiary support.
                  A similar rule underlies discovery responses and disclosures. See Fed. R. Civ. P. 26(g).

         4.
                  28 U.S.C. Section 1927 authorizes the imposition of sanctions for vexatiously multiplying
                  proceedings.

B.
         Concealment or Failure to Disclose

         1.
                  "A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the
                  controlling jurisdiction known to the lawyer to be directly adverse to the position of the
                  client and not disclosed by opposing counsel." MRPC 3.3(a)(3). This does not require the
                  lawyer to take a disinterested view of the law before a tribunal, nor to disclose authorities
                  which are adverse only in dicta.

         2.
                  Of course, the rules of civil procedure and the federal Uniform Plan require disclosure of
                  discoverable information, evidence and witnesses, i.e., that which is relevant or reasonably
                  likely to lead to the discovery of relevant, admissible evidence. "A lawyer shall not
                  unlawfully . . . conceal a document or other material having potential evidentiary value," or
                  "counsel or assist another person" to do so. MRPC 3.4(a).

         3.
                  In dealing with an unrepresented person, a lawyer shall not fail to disclose his status when it
                  is or should be clear that the person is unaware of it. MRPC 4.4.

C.
         Use of Perjured Testimony or False Evidence

         "A lawyer shall not knowingly offer evidence that [he] knows to be false." MRPC 3.3(a)(4). If the
         false evidence is offered by the client in a civil case, the lawyer must take reasonable remedial
         measures, including withdrawal, if the client does not offer to disclose the falsehood. Comment,


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         MRPC 3.3. Also, "[a] lawyer may refuse to offer evidence that [he] reasonably believes to be
         false." MRPC 3.3(c).

D.
         Making False Statements of Law or Fact

         "A lawyer shall not knowingly make a false statement of law or fact to a tribunal." MRPC
         3.3(a)(1).

E.
         Participation in the Creation or Preservation of False Evidence

         "A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an
         inducement to a witness that is prohibited by law." MRPC 3.4(b).

                                    Table of Contents / Chapters 1, 2, 3, 4, 5, 7, 8, Appendix A




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                                                             Chapter Seven


                   Relationships With Attorneys and Others
                         Involved in the Legal System
                                                            I. Introduction

The respect of the Court and other members of the Bar is extremely helpful in the delivery of legal
services to your client. Furthermore, much of your law practice will come from attorney referrals. You
gain the respect of your fellow professionals by handling each matter with competence and courtesy. A
deterioration of the relationship among lawyers is a source of concern to the public and to many
members of the Bar who find the practice less satisfying. Discourtesy and incivility among lawyers
damages the reputation of lawyers as hardworking, fair-minded professionals, and Rambo litigation
tactics generally dispense misery, not results.

At a minimum, we are required to adhere to the Mississippi Rules of Professional Conduct (Rules of
Conduct). As members of an honored profession, however, we must strive for more than mere adherence
to minimum standards of conduct. We should aspire to go beyond what we are required to do in every
circumstance. Being a lawyer is special!

                                II. Fairness to Opposing Party and Counsel--Rule 3.4

A.
        A lawyer shall not:

        1.
                  Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or
                  conceal a document or other material having potential evidentiary value. A lawyer shall
                  not counsel or assist another person to do such an act;

        2.
                  Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a
                  witness that is prohibited by law;

        3.
                  Knowingly disobey an obligation under the rules of a tribunal except for an open refusal
                  based on an assertion that no valid obligation exists;

        4.
                  In pretrial procedures, make a frivolous discovery request or fail to make a reasonably


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                  diligent effort to comply with a legally proper discovery request by an opposing party;

        5.
                  In trial, allude to any matter the lawyer does not reasonably believe is relevant or that will
                  not be supported by admissible evidence, assert personal knowledge of facts in issue
                  except when testifying as a witness, or state a personal opinion as to the justness of a
                  cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or
                  innocence of an accused; or

        6.
                  Request a person other than a client to refrain from voluntarily giving relevant information
                  to another party unless:

                  a.
                            the person is a relative or employee or other agent of a client; and
                  b.
                            the lawyer reasonably believes that the person's interest will not be adversely
                            affected by refraining from giving such evidence.

B.
        Practical Observations

        1.
                  Fair competition in the adversary system is secured by prohibitions against destruction or
                  concealment of evidence, improperly influencing witnesses, obstructive tactics in
                  discovery procedure, and the like.

        2.
                  Think about long-term consequences.

        3.
                  Don't help or permit a client or witness to lie.

        4.
                  Avoid gamesmanship in discovery.

C.
        Examples

        1.
                  During discovery, you learn of a witness whose testimony, if believed by the jury, would
                  prove that your client's version of the crucial transaction is false. You have a duty to notify

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                  your client of the witness. When you do, your client suggests that you "forget" the witness
                  and that you not list him or her in the discovery response. You must refuse to participate in
                  or condone such an effort. You may not refuse to reveal evidence to your adversary if he or
                  she has asked for it through discovery. Conversely, in the absence of an appropriate
                  discovery request, you have no obligation to "spill your guts" and help your opponent. The
                  Mississippi Bar v. Land, 653 So. 2d 899 (Miss 1995).

        2.
                  Your opponent has punished your client with numerous discovery requests which you
                  think are intended to harass your client. Don't get down in the discovery gutter with your
                  opponent. Propound only the discovery to your opponent reasonably needed to prepare the
                  case for trial.

        3.
                  At trial, you know that you can't get into evidence a particular piece of damaging evidence,
                  so you decide to ask the question, knowing that an objection will be sustained, with the
                  idea of getting the evidence before the jury through your question. This is improper and
                  will more likely than not, backfire with the Court and jury. Your credibility is at stake and
                  such an approach will generally bring an admonishment from the Court that hurts your
                  credibility with the Court and jury.

        4.
                  Through your hard work, you have found a witness that will give testimony very favorable
                  to your client. You do not want to expose this witness to the other side through deposition
                  or informal conference. You cannot ask the witness to "not talk" to the other lawyer when
                  he calls.

                                        III. Candor Toward the Tribunal--Rule 3.3

A.
        A lawyer shall not knowingly:

        1.
                  Make a false statement of material fact or law to a tribunal;

        2.
                  Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting
                  a criminal or fraudulent act by the client;

        3.
                  Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
                  lawyer to be directly adverse to the position of the client and not disclosed by opposing

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                  counsel; or

        4.
                  Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence
                  and comes to know its falsity, the lawyer shall take reasonable remedial measures.

B.
        Practical Observations

        1.
                  Credibility is essential to the effective representation of clients. Remember that judges talk
                  to each other. Once you have lost credibility, it is difficult to regain it.

        2.
                  A lawyer may refuse to offer evidence that he reasonably believes is false.

        3.
                  The duties stated in Rule of Professional Conduct 3.4 continue to the conclusion of the
                  proceeding and apply even if compliance requires disclosure of information otherwise
                  protected by Rule of Conduct 1.6.

C.
        Examples

        1.
                  Through exceptional diligence on your part, you discovered a case from the controlling
                  jurisdiction directly adverse to your client's position. The opposing lawyer, not nearly so
                  diligent, did not uncover the case. You must disclose the case to the Court and do your
                  very best to distinguish it.

        2.
                  In an ex parte proceeding, you advocate your client's position but do not tell the Court
                  about material facts that prevent the Court from making an informed decision. Your
                  actions violate Rule of Professional Conduct. 3.3.

                              IV. Impartiality and Decorum of the Tribunal--Rule 3.5

A.
        A lawyer shall not:

        1.
                  Seek to influence a judge, juror, prospective juror, or other official by means prohibited by

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                  law;

        2.
                  Communicate ex parte with such a person except as permitted by law; or

        3.
                  Engage in conduct intended to disrupt a tribunal.

B.
        Practical Observations

        1.
                  The Courtroom is not a theatrical audition.

        2.
                  Show respect for the judge and jury at all times.

        3.
                  No gamesmanship.

        4.
                  No personal attacks on counsel or witness.

        5.
                  For objections, don't address counsel directly; speak to the Court.

        6.
                  Don't cater to the jury by pretending to be concerned about their physical comfort during
                  the trial. This is the duty of the trial judge.

        7.
                  Be respectful to the Court at all times, but do not pretend to be in great awe. An advocate
                  is expected to be polite to the Court but firm in his conviction for his clients cause.

C.
        Example

        During a jury trial, opposing counsel asks his third leading question in a row and you have good
        reason to think he is doing it deliberately. The right response is to interpose yet another objection,
        but the wrong response is to call your opponent an idiot who is incapable of asking a non-leading
        question on direct examination.


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                                                           V. Trial Conduct

A.
        In appearing in his professional capacity before a tribunal, a lawyer shall not:

        1.
                  Allude to any matter that he has no reasonable basis to believe is relevant to the case or
                  that will not be supported by admissible evidence;

        2.
                  Ask any question that he has no reasonable basis to believe is relevant to the case and that
                  is intended to improperly influence the proceedings or degrade a witness or other person;

        3.
                  Assert his personal knowledge of the facts in issue, except when testifying as a witness.

        4.
                  Assert his personal opinion as to the justness of a cause, as to the credibility of a witness,
                  as to the culpability of a civil litigant or as to the guilt or innocence of an accused; but he
                  may argue, on his analysis of the evidence, for any position or conclusion with respect to
                  the matters stated herein.

        5.
                  Intentionally or habitually violate any established rule or procedure or of evidence, where
                  such conduct is disruptive of the proceedings.

B.
        Practical Observations

        1.
                  Offer only admissible evidence.

        2.
                  If no admissible evidence exists, don't mention the fact.

        3.
                  If your sole purpose is to embarrass, don't do it.

        4.
                  It is wrong to say to the jury "I am convinced," "I believe," "I am satisfied," or "I think."



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        5.
                  It is okay to say "the evidence proves," "the evidence is clear" or "the facts establish."

        6.
                  It is improper to object without foundation.

        7.
                  The name of the game is credibility. The lawyer that loses his, very often loses the case.

                                          VI. Meritorious Claims and Contentions

A.
        A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
        unless there is a basis for doing so that is not frivolous, which includes a good faith
        argument for an extension, modification, or reversal of existing law. A lawyer for the
        defendant in a criminal proceeding, or the respondent in a proceeding that could result in
        incarceration, may nevertheless so defend the proceeding as to require that every element of
        the case be established.

B.
        Practical Observations

        1.
                  Mere lack of personal conviction is not grounds to fail to make an argument.

        2.
                  Don't be afraid to challenge in good faith.

C.
        Examples

        1.
                  Your client's position is upheld by only a small minority of courts, and you have some
                  trouble with the position personally. You must put aside your personal belief that the
                  argument is a long shot so that your presentation will be forceful and will not reveal any
                  doubt about the correctness of the minority view.

        2.
                  A rich oil man comes to you and wants you to sue a competitor. In your view, after careful
                  analysis, the oil man with plenty of money to pay attorney's fees, is primarily motivated by
                  hatred of his competitor. You should decline to file an action with such an underlying
                  motivation.

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        3.
                  You are asked by your biggest insurance client to defend an "arson case." Your
                  investigation reveals that there is a great likelihood that the insurance claim is valid. Your
                  options are to give the insured hell or reasonably seek to settle the case. The better course
                  would be to seek a prompt resolution of the matter.

                                                  VII. Scope of Representation

A.
        A lawyer

        1.
                  A lawyer shall abide by a client's decisions concerning the objectives of representation and
                  shall consult with the client as to the means by which they are to be pursued. A lawyer
                  shall abide by the client's decision whether to accept an offer of settlement. In a criminal
                  case, a lawyer shall abide by the clients decision, after consultation with the lawyer, as to
                  the plea to be entered, whether to waive jury trial, and whether the client will testify.

        2.
                  May limit the objectives of the representation if the client consents after consultation.

        3.
                  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 the 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.

B.
        Practical Observations

        1.
                  A lawyer does not violate Rule 1.2, however, by acceding to reasonable requests of
                  opposing counsel which do not prejudice the rights of his client, by being punctual in
                  fulfilling all professional commitments, by avoiding offensive tactics or by treating with
                  courtesy and respect all persons involved in the legal process.

        2.
                  If the objective is lawful, your job is to pursue it.

        3.
                  Needless trips to court cost money and often backfire. You may not assist the client in

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                  illegal conduct or in taking a frivolous legal position.

        4.
                  If an issue affects the merits or substantive rights, the client alone has the final say.

C.
        Example

        You represent the plaintiff in a civil case. Counsel for defendant calls on the day the answer is due
        and asks for a one-week extension, saying that the suit papers arrived while he was in trial. Your
        client urges you to seek default. You should grant defense counsels request; its the right thing to
        do and the court will grant it anyway.

                                                   VIII. Misconduct--Rule 8.4

A.
        It is professional misconduct for a lawyer to

        1.
                  Violate or attempt to violate the rules of professional conduct, knowingly assist or induce
                  others to do so, or do so through the acts of another;

        2.
                  Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
                  fitness of the lawyer in other respects;

        3.
                  Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;

        4.
                  Engage in conduct which is prejudicial to the administration of justice;

        5.
                  State or imply an ability to influence improperly a government agency or official; or

        6.
                  Knowingly assist a judge or judicial officer in conduct that is a violation of applicable
                  rules of judicial conduct or other law.

B.
        Practical Observations


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        1.
                  You are how you act. Good behavior must be part of your habit and good behavior must
                  not depend on easy circumstances.

        2.
                  You represent the legal profession -- even after working hours.

        3.
                  Fitness to practice law equates with being scrupulously honest.

        4.
                  Violation of law tarnishes public perception.

C.
        Example

        1.
                  Because of a busy schedule, you miss a deadline for filing a brief. Your client suggests that
                  you back date the certificate of service and "blame it on the mail." You should tell your
                  client no, and notify the Court and opposing counsel and candidly request an extension of
                  time.

        2.
                  You regularly hunt and fish with the trial judge handling an important personal injury
                  action in which you are counsel for plaintiff. The judge will be called on to make some
                  crucial evidentiary rulings. In settlement negotiations, you suggest that you have some
                  degree of control over the judge because of a personal relationship and that because of this,
                  the judge will likely rule against the defense. This is improper.

                                   IX. Reporting Professional Misconduct--Rule 8.3

A.
        A lawyer having knowledge

        1.
                  That another lawyer has committed a violation of the rules of conduct that raises a
                  substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer, in
                  other respects, shall inform the appropriate professional authority.

        2.
                  That a judge has committed a violation of applicable rules of judicial conduct that raises a
                  substantial question as to the judge's fitness for office shall inform the appropriate

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                  authority.

                                       X. Avoiding the Infliction of Needless Harm

A.
        The duty of a lawyer to represent his client with enthusiasm does not militate against his
        concurrent obligation to treat with consideration all persons involved in the legal process
        and to avoid the infliction of needless harm.

B.
        Practical Observations

        1.
                  Tough litigation/negotiation does not change the rules of conduct.

        2.
                  Avoid getting down in the gutter with your opponent.

                                                             XI. Courtesy

A.
        A lawyer should be courteous to opposing counsel and should accede to reasonable requests
        regarding court proceedings, settings, continuances, waiver of procedural formalities and
        similar matters which do not prejudice the rights of his client. A lawyer should understand
        that being courteous is not only the proper thing to do; it is generally best for the client. A lawyer
        should follow local customs of courtesy or practice, unless he gives timely notice to opposing
        counsel of his intention not to do so. A lawyer should be punctual in fulfilling all professional
        commitments.

B.
        Practical Observations

        1.
                  Incurring needless costs in order to prove a point is not in the client's best interests. If the
                  court will grant it, save the trip.

        2.
                  Scare tactics don't work.

        3.
                  Lawyers reflect their clients.


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        4.
                  What would you do if the tables were turned?

        5.
                  One aspect of professionalism is the judicious use of whatever power the lawyer holds.
                  Truly great lawyers are very discriminating in their use of power.

                                          XII. Threatening Criminal Prosecution

A.
        A lawyer shall not present, participate in presenting or threaten to present criminal or
        disciplinary charges solely to obtain an advantage in a civil matter. The civil adjudicative
        process is primarily designed for the settlement of disputes between parties, while the criminal
        process is designed for the protection of society as a whole. Threatening to use, or using, the
        criminal process to coerce adjustment of private claims or controversies is a subversion of that
        process; further, the person against whom the criminal process is so misused may be deterred
        from asserting his or her legal rights and thus the usefulness of the civil process in settling private
        disputes is impaired.

B.
        Practical Considerations

        1.
                  Resist temptation to threaten an opponent.

        2.
                  Beware of the danger of perceived extortion.

C.
        Example

        Your client asks you to collect on a bad check. In a letter requesting payment, you may not state
        your intent to seek criminal prosecution and penalties if payment is not made.

                                     XIII. Avoiding the Appearance of Impropriety

A.
        Every lawyer owes a duty to uphold the integrity and honor of the profession; to encourage
        respect for the law and the courts and the judges thereof; to observe the Code of Conduct; to act as
        a member of the learned profession, one dedicated to public service; to cooperate with his fellow
        lawyers in supporting the organized Bar through the devotion of his time, efforts, and financial
        support as his or her professional standing and ability reasonably permits; to conduct himself so as

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        to reflect credit on the legal profession; to inspire the confidence, respect, and trust of his clients
        and of the public; and to strive to avoid not only professional impropriety but also the appearance
        of impropriety.

                                                XIV. Ex Parte Communications

A.
        All litigants and lawyers should have access to tribunals on an equal basis. Generally, in
        adversary proceedings, a lawyer should not communicate with the judge relative to a matter
        pending before, or which is to be brought before, a tribunal over which he or she presides in
        circumstances which might have the effect or give the appearance of granting undue advantage to
        one party. For example, lawyers should not communicate with a tribunal by writing unless a copy
        thereof is promptly delivered to opposing counsel or to the adverse party if he or she is not
        represented by a lawyer. Ordinarily, an oral communication with a lawyer with a judge or hearing
        officer should be made only upon adequate notice to opposing counsel or, if there is none, to the
        opposing party. A lawyer should not condone or lend himself to private importunities by another
        with a judge or hearing officer on behalf of himself or his client.

B.
        Practical Observations

        1.
                  The Bar must keep a certain distance from the judiciary.

        2.
                  There must be no informal talk about pending cases.

        3.
                  There must be no unilateral contact with the Court.

        4.
                  Always copy opposing counsel promptly (simultaneously) on written communications.

C.
        Examples

        1.
                  A lawyer communicates with the Court by letter but does not copy opposing counsel.
                  Opposing counsel, while in the Judges chambers, sees the letter, removes it without
                  permission from the Judge's desk, makes a photocopy and returns the letter to the Judge's
                  desk. Which lawyer got in the most trouble with the Court?


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        2.
                  You have conducted a lengthy Bench trial, the Court has taken the matter under
                  advisement, and you are waiting for the opinion. At a Bar function, you encounter the trial
                  judge, who shakes your hand, and begins conversation. Do not bring up the pending matter
                  or comment on the trial. If the matter is broached by the Judge, politely move the
                  conversation to another area. Your adversary is not present and you should not discuss the
                  case.

                                                      XV. Deposition Conduct

A.
        Some General Guidelines

        1.
                  Alert counsel of your intent to bring a non-party (expert) to a deposition. Don't just appear
                  and risk an argument or postponement. The same is true of videotaping a deposition.

        2.
                  Try to stay out of your opponent's deposition, and do not make objections which are
                  designed to "help" the witness.

        3.
                  Do not schedule unilaterally; consult all counsel and the deponent.

        4.
                  Don't be unprofessional at a deposition. The Judge is not there, but could read the
                  deposition and administer proper sanctions.

        5.
                  Hot tempers and profanity are unprofessional and counter-productive.

                     XVI. Communication with Person Represented by Counsel--Rule 4.2

A.
        In representing a client, a lawyer shall not communicate about the subject of the
        representation with a party the lawyer knows to be represented by another lawyer in the
        matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do
        so.

B.
        Practical Observations


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        1.
                  Inability to reach lawyer is no cause for direct contact.

        2.
                  Client may talk directly to opponent only with permission of counsel.

        3.
                  The fact that the adverse party's attorney is wrongfully withholding information from that
                  party is not an exception to the rule. For instance, if you believe that settlement offers are
                  not being conveyed, that does not justify direct contact with a represented party.

        4.
                  It is improper for plaintiff's personal injury attorney to contact defendant's insurer directly
                  if defendant is represented by counsel. More likely than not, counsel is representing the
                  insured and the insurer.

C.
        Examples

        1.
                  Improper to communicate indirectly with adverse party through your client by telling him
                  what to say to that party.

        2.
                  Improper to communicate with any witness or employee of a party corporation represented
                  by counsel who are within the "control group" as discussed in Upjohn Company v. U.S.,
                  101 S.Ct. 667 (1981).

                                 XVII. Dealing With Unrepresented Person--Rule 4.3

A.
        In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
        shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably
        should know that the unrepresented person misunderstands the lawyer's role in the matter, the
        lawyer should make reasonable efforts to correct the misunderstanding.

B.
        Practical Observations

        1.
                  Do not give advice to an unrepresented person other than the advice to obtain counsel.


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        2.
                  "If I were you" advice is improper. See Att. Q. v. Mississippi Bar, 587 So 2d. 228 (Miss.
                  1991).

        3.
                  Must suppress desire to be an advocate; explain the facts and the reasons for your call
                  objectively. No lying about who you are and what you want.

                                XVIII. Respect for Rights of Third Persons--Rule 4.4

In representing a client, a lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal
rights of such a person.

                                                  XIX. Contact with Witnesses

A.
        A lawyer shall not

        1.
                  Suppress any evidence that he/she or his/her client has a legal obligation to reveal or
                  produce;

        2.
                  Advise or cause a person to secrete himself/ herself or to leave the jurisdiction of a tribunal
                  for the purpose of making him or her unavailable as a witness therein.

        3.
                  Pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent
                  upon the content of his or her testimony or the outcome of the case. A lawyer may
                  advance, guarantee, or acquiesce in the payment of (a) expenses reasonably incurred by a
                  witness in attending or testifying; (b) reasonable compensation to a witness for his or her
                  loss of time in attending or testifying; (c) a reasonable fee for the professional services of
                  an expert witness.

B.
        Practical Observations

        1.
                  You can't hide a witness unknown to your opponent; interrogatory answers must be
                  truthful and complete.


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        2.
                  No difference between telling witness to be out of town and hinting or suggesting same.

        3.
                  Some lawyers are forthcoming with information in response to discovery that is helpful to
                  their case but act as if they do not have to reveal information that is harmful. The discovery
                  rules don't care whether the information is helpful or harmful. If the information is called
                  for, it must be provided without gamesmanship, even if the information is harmful to your
                  case.

C.
        Examples

        1.
                  In conducting pretrial investigation, you uncover a witness whose testimony would be
                  damaging to your case. While you do not have an obligation to notify your opponent of the
                  witness, unless called for by discovery, you may not suggest "off the record" that the
                  witness plan a vacation during trial and/or avoid attempts to contact him or her by
                  opposing counsel.

        2.
                  You are involved in a hotly contested matter and you receive an anonymous phone call in
                  which the caller states that for a fee, he can provide facts that will destroy the other side's
                  case. You should tell the caller that you cannot pay for his testimony but that you can
                  reimburse him for expenses and financial loss (lost wages) incident to his being a witness.

                                 XX. Communication With or Investigation of Jurors

A.
        Juror Contact

        1.
                  Before or during the trial of a case, a lawyer connected therewith shall not, directly or
                  indirectly, communicate with a juror or anyone he or she knows to be a member of the
                  venire for which the jury will be selected for the trial of the case, except as permitted by
                  law.

        2.
                  After discharge of the jury from further consideration of the case with which the lawyer
                  was connected, the lawyer shall not ask questions of or make comments to a member of
                  that jury that are calculated merely to harass or embarrass the juror or to influence his or
                  her actions in future jury service.

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        3.
                  A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct
                  a vexatious or harassing investigation of either a venireman or a juror.

        4.
                  A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or
                  by another toward a venireman or a juror or a member of his or her family, of which the
                  lawyer has knowledge.

B.
        Practical Observations

        1.
                  Post-trial contact proper under some circumstances. See Gladney v. Clarksdale Beverage
                  Co., 625 So. 2d 407 (Miss. 1993).

        2.
                  If juror refuses to talk, don't press.

        3.
                  Don't go fishing for improper conduct by juror.

C.
        Examples

        1.
                  Improper to communicate with jurors to thank them for serving as jurors; this creates the
                  appearance of an effort to influence jurors' actions in future service.

        2.
                  Requests to interview jurors post trial to determine if verdict was tainted by extraneous
                  information or pressure are disfavored; a threshold showing of improper outside influence
                  is required. Id.

                                                   XXI. Some Final Thoughts

A.
        Don't procrastinate.

B.
        Do not take advantage of a young lawyer. Young lawyers grow up and they have a real long

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        memory. Remember, the name of the game is credibility, credibility, credibility.

C.
        Your word is your bond. Other lawyers, judges, witnesses and clients must be able to rely on
        you. Never lie to or mislead any of them. Forget the notion that consent to a reasonable request
        from opposing counsel means weakness or worse. It does not. Relax and be nice.

D.
        Don't burn bridges with other lawyers. Most of us will deal with many of the same lawyers
        frequently during our careers. Never unnecessarily embarrass another lawyer.

E.
        Avoid personalizing your complaints or arguments. Even if your complaint is with opposing
        counsel, refer to the other side as plaintiff or defendant.

F.
        Don't ask for sanctions in every motion that you file. In fact, it should be an extremely rare
        occurrence to seek sanctions.

G.
        Do not use inflammatory language like absurd, preposterous, cheat, lie, fraud, ridiculous,
        dumb, or stupid.

H.
        Talented, honest and fair lawyers win without resort to perversion of the rules or dirty
        tricks. Good guys do not finish last in this business.

I.
        Avoid quick, emotional reactions to surprising developments. Force yourself to delay your
        response until all of the facts are known. If at all possible, consult others with greater experience.

J.
        Do not fault opposing counsel for requiring adherence to court rules or established local
        customs. Even if you might do otherwise, a lawyer is entitled to follow the rules and insist that
        you do likewise.

K.
        Taking advantage of technical mistakes is a risky business. Put yourself in the other lawyers
        shoes and act accordingly.

L.
        It is essential that the schedules of other lawyers, witnesses and non-parties be respected,

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       within reason. Don't depend on favors from opposing counsel, but conduct yourself so you can
       get one if you need it. No case or client is worth bending your ethics or crossing the line in hopes
       of winning. Strive for improvement in your personal and working relationships with other
       lawyers.

M.
       Learn to be gracious in defeat, especially to an opposing counsel and the Court. Fight the
       good fight and put it behind you. Don't hold grudges, become bitter, or lash out at the system in
       public.

                                  Table of Contents / Chapters 1, 2, 3, 4, 5, 6, 8, Appendix A




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                                                              Chapter Eight


                 Obligation to Profession and to Community
                                                             I. Introduction

The practice of law is a form of public service, carrying with it the substantial obligation to aid in the
administration of justice and to uphold the integrity and dignity of the Court and Bar. With this obligation
is the responsibility to render public service. A lawyer is a representative of clients, an officer of the legal
system, and a public citizen having special responsibility for the quality of justice. MRPC, Preamble: A
Lawyer's Responsibility (1987).

The legal profession's relative autonomy carries with it special responsibility of self-government. The
profession has a responsibility to assure that its regulations are conceived in the public interest and not in
furtherance of parochial or self-interested concerns of the Bar. MRPC, Preamble (1987).

One of the highest traditions of the Bar has been the contribution of services to the profession and to the
community. Participation in civic activities and accepting the responsibility of serving the poor, needy
and under-represented is a special obligation of every lawyer.

                                                   II. Obligation to Profession

A.
         Maintaining and Improving the Standards of Professionalism

         1.
                  The privilege of practicing law carries with it the obligation not only to maintain our legal
                  system, but to constantly seek to improve the law, the administration of justice, and the
                  quality of service rendered by the legal profession. As a member of a learned profession, a
                  lawyer should cultivate knowledge of the law beyond that needed merely to serve the
                  interests of clients, employ that knowledge in reform of the law, and work to strengthen
                  legal education. A lawyer should be mindful of deficiencies in the administration of justice
                  and of the fact that the poor, and sometimes persons who are not poor, cannot afford
                  adequate legal assistance, and a lawyer should therefore devote professional time and civic
                  influence in their behalf. A lawyer should aid the legal profession in pursuing these
                  objectives and should help the Bar to regulate itself in the public interest. A lawyer should
                  strive to attain the highest level of skill, to improve the law and the legal profession, and to
                  exemplify the legal profession's ideals of public service. MRPC, Preamble (1987).

B.
         Service


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         1.
                  Changes in human affairs and imperfections in human institutions make necessary constant
                  efforts to maintain and improve our legal system. Lawyers must assume a major
                  responsibility to work for improvements in the quality of our law and the judicial and extra-
                  judicial systems through which it is administered and vindicated. Lawyers are in a unique
                  position to identify unjust and outdated laws and to seek reforms. A lawyer knows the
                  strengths and weaknesses of our courts, their personnel, their structures, and their
                  procedures. They are in a position to evaluate and contrast the relative merits of the judicial
                  process, the administrative process, the legislative process, as well as arbitration and other
                  alternative methods of dispute resolution. A lawyer should contribute his insights and his
                  time toward improvements in the quality of our law and our system. Robertson, The
                  Lawyer as Hero, 53 Miss. L.J. 432 (1983).

C.
         Improving the Profession

         1.
                  Judges and administrative officials having adjudicatory powers ought to be persons of
                  integrity, competence, and suitable temperament. Generally, lawyers are qualified, by
                  personal observation and investigation, to evaluate the qualifications of persons seeking or
                  being considered for such public offices, and for this reason they have a special
                  responsibility to aid in the selection of only those who are qualified. Adjudicatory officials,
                  not being wholly free to defend themselves, are entitled to receive the support of the Bar
                  against unjust criticism. While a lawyer as a citizen has a right to criticize such officials
                  publicly, he or she should be certain of the merits of his or her complaint, use appropriate
                  language, and avoid petty criticisms, for unrestrained and intemperate statements tend to
                  lessen public confidence in our legal system. Criticisms motivated by reasons other than a
                  desire to improve the legal system are not justified.

         2.
                  Lawyers should advocate adequate support of the courts. Our professional function is
                  derivative of the judiciary's function. We should strive to see that the judiciary is properly
                  funded and that our judges are properly supported and wisely selected. Lawyers should
                  strive to promote legislation or other reforms to insure the independence, integrity and
                  competence of our judges. See Case, In Search of an Independent Judiciary: Alternatives to
                  Judicial Elections in Mississippi, 13 Miss. College L. Rev. 1 (1992).

D.
         Support of the Organized Bar

         1.
                  Every lawyer owes a solemn duty to uphold the integrity and honor of the profession; to


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                  encourage respect for the law, the courts and the judges thereof; to observe the Rules of
                  Professional Conduct; to act as a member of a learned profession, one dedicated to public
                  service; to cooperate with other lawyers in supporting the organized bar through the
                  devoting of his time, efforts, and financial support as his/her professional standing and
                  ability reasonably permit; to conduct himself so as to reflect credit on the legal profession,
                  and to inspire the confidence, respect, and trust of clients and of the public; and to strive to
                  avoid not only professional impropriety but also the appearance of impropriety. See also
                  Rule 6.3, MRPC (1987).

E.
         Conduct Toward Other Lawyers

         1.
                  Lawyers should strive to restore civility in civil litigation by dealing with fellow members
                  of the Bar with a fundamental sense of integrity and fair play. Effective advocacy does not
                  mean that any tactic is acceptable. Lawyers should not abuse the system or the profession
                  by pursuing or opposing discovery through arbitrariness or for the purposes of harassment
                  or undue delay. In a lawyer's dealing with the court and with fellow counsel, his/her word
                  should be his bond. The lawyer should recognize that effective advocacy does not require
                  antagonistic or obnoxious behavior, and the lawyer should pledge to adhere to the highest
                  standard of conduct, which the public and the Bar have a right to expect. MCPC, adopted
                  by Mississippi State Bar, March 16, 1990.

                                                     III. Obligation to Society

A.
         Providing Access to the Legal System

         1.
                  A lawyer is obligated to render public interest legal service. A lawyer may discharge this
                  responsibility by providing professional services at no fee or a reduced fee to persons of
                  limited means or to public service or charitable groups or organizations, by service and
                  activities for improving the law, the legal system or the legal profession, and by financial
                  support for organizations that provide legal service to persons of limited means. Rule 6.1,
                  MRPC (1987).

         2.
                  The rights and responsibilities of individuals and organizations in the United States are
                  increasingly defined in legal terms. As a consequence, legal assistance in coping with the
                  weight of statutes, rules and regulations is imperative for persons of modest and limited
                  means, as well as for the relatively well-to-do.



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        3.
                 The basic responsibility for providing legal services for those unable to pay ultimately rests
                 upon the individual lawyer, and personal involvement in the problems of the disadvantaged
                 can be one of the most rewarding experiences in the life of a lawyer. Every lawyer,
                 regardless of professional prominence or professional workload, must find time to
                 participate in or otherwise support the provision of legal services to the disadvantaged. The
                 provision of free legal services to those unable to pay reasonable fees continues to be an
                 obligation of each lawyer as well as the profession generally, but the efforts of individual
                 lawyers are often not enough to meet the need. Thus, it has been necessary for the
                 profession and government to institute additional programs to provide legal services.
                 Accordingly, legal aid offices, lawyer referral services and other related programs have
                 been developed, and others will be developed by the profession and government. Every
                 lawyer should support all proper efforts to meet this need for legal services. Comment,
                 Rule 6.1, MRPC (1987).

        4.
                 Attorneys have an affirmative duty of assuring that our legal system is accessible to all
                 persons in our society. In Mississippi, an important way to fulfill this obligation is to
                 participate in the work of the Mississippi Volunteer Lawyers Project, which is recognized
                 as one of the best such projects in the nation. See Corlew, Preserving the Professional
                 Tradition, 60 Miss. L.J. 589, 616 (1990).
                 Rule 6.1 Voluntary Pro Bono Public Service
                 A lawyer should aspire to render at least (50) hours of pro bono publico legal services per
                 year. In fulfilling this responsibility, the lawyer should:

                 (a)
                           provide a substantial majority of the (50) hours of legal services without fee or
                           expectation of fee to:

                           (1)
                                     persons of limited means, or

                           (2)
                                     charitable, religious, civic, community, governmental and educational
                                     organizations in matters which are designed primarily to address the needs of
                                     persons of limited means; and

                 (b)
                           provide any additional services through:

                           (1)
                                     delivery of legal services at no fee or substantially reduced fee to individuals,
                                     groups or organizations seeking to secure or protect civil rights, civil liberties

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                                      or public organizations in matters in furtherance of their organizational
                                      purposes, where the payment of standard legal fees would significantly
                                      deplete the organization's economic resources or would be otherwise
                                      appropriate;

                            (2)
                                      delivery of legal services at a substantially reduced fee to persons of limited
                                      means; or

                            (3)
                                      participation in activities for improving the law, the legal system or the legal
                                      profession. In addition, a lawyer should voluntarily contribute financial
                                      support to organizations that provide legal services to persons of limited
                                      means.

B.
         Providing Education to the Public

         1.
                  The need of members of the public for legal services is met only if they recognize their
                  legal problems, appreciate the importance of seeking assistance, and are able to obtain the
                  services of competent legal counsel. Accordingly, the lawyer has a major educational
                  responsibility. The vast majority of our citizens have little understanding of the true nature
                  of our law and our legal system. They have little understanding of the role of the lawyer
                  within that system. The law can never effectively achieve its potential if it is not
                  understood, and legal rights and opportunities are often lost through ignorance. Lawyers
                  have an obligation to educate persons to recognize legal rights and opportunities and to
                  rationally decide whether their exercise is appropriate. Lawyers should participate in
                  educational and public relations programs concerning our legal system with particular
                  reference to legal problems that frequently arise. Robertson, The Lawyer as Hero, 53 Miss.
                  L.J. 431, 443 (1983).

         2.
                  In giving information about legal services, a lawyer shall not make a false, deceptive or
                  misleading communication about the lawyer or the lawyers services. Rule 7.1, MRPC
                  (1987).

C.
         Providing Service to Community

         1.
                  Lawyers have traditionally provided service to their community, county and state. Lawyers


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                  should be encouraged to do so and to utilize their special talents and their responsibilities to
                  do all within their power to enhance the community within which they live. Opportunities
                  to play a leadership role in one's community, state and nation regularly devolve upon the
                  lawyer. Public service through political office, elective or appointive, is one major role the
                  lawyer is often called upon to take. Though not strictly legal in nature, this form of public
                  service thrusts a lawyer into a major leadership role in the shaping of the public policy of
                  society, as well as bringing good government to our citizenry. Leadership roles in
                  charitable, civic, religious and other non-profit organizations are very much in need of the
                  abilities and services lawyers have to offer. Robertson, The Lawyer as Hero, 53 Miss. L.J.
                  431, 442 (1983).

         2.
                  The obligation of loyalty to his or her client applies only to a lawyer in the discharge of his
                  or her professional duties and implies no obligation to adopt a personal viewpoint favorable
                  to the interests or desires of his or her client. While a lawyer must act always with
                  circumspection in order that his/her conduct will not adversely affect the rights of a client
                  in a matter he/she is then handling, he/she may take positions in public issues and espouse
                  legal reforms he/she favors without regard to the individual views of any client.

D.
         Providing Affordable Legal Services

         1.
                  Special Considerations

                  a.
                            A lawyer's fee must be reasonable. Rule 1.5, MRPC (1987).

                  b.
                            When the lawyer has not regularly represented the client, the basis or rate of the fee
                            shall be communicated to the client, preferably in writing, before or within a
                            reasonable time after commencing the representation. Rule 1.5(b), MRPC (1987).

                  c.
                            A contingent fee agreement must be in writing, must state the method by which the
                            fee is to be determined, including the percentage or percentages that shall accrue to
                            the lawyer in the event of settlement, trial or appeal, litigation and other expenses to
                            be deducted from the recovery, and whether such expenses are to be deducted
                            before or after the contingent fee is calculated. Upon conclusion of a contingent fee
                            matter, the lawyer must provide the client with a written statement stating the
                            outcome of the matter and, if there is a recovery, showing the remittance to the
                            client and the method of its determination. Rule 1.5(c), MRPC (1987).


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         2.
                  Pro Bono Representation

                  a.
                            A lawyer is obligated to render pro bono publico service. Rule 6.1, MRPC (1987).
                            This is no longer merely laudatory but is required of all lawyers.

                  b.
                            Lawyers have an affirmative duty to assure that the legal system is accessible to all
                            persons in society. It is a duty that the Bar and governing authorities have long
                            acknowledged in the requirement that lawyers accept assignment of representation
                            of indigent defendants in criminal cases, that they provide assistance to the
                            defenseless and oppressed, and in the encouragement of public interest legal service
                            or pro bono work at reduced or no fee for persons of limited means. Corlew,
                            Preserving the Professional Tradition, 60 Miss. L.J. 589, 616 (1990).

                  c.
                            When a lawyer is appointed by a court or requested by a bar association to
                            undertake representation of a person unable to obtain counsel, whether for financial
                            or other reasons, he or she should not seek to be excused from undertaking the
                            representation except for compelling reasons. Compelling reasons do not include
                            such factors as the repugnance of the subject matter of the proceeding, the identity
                            or position of a person involved in the case, the belief of the lawyer that the
                            defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the
                            merits of a civil case.

                  d.
                            Competing with the responsibility for providing pro bono service to the public and
                            active participation in the affairs of the local and state bars is the reality of the
                            economics of law practice. Economic pressure has prompted law firms to increase
                            the demand for more "billable hours" and for "increased billing rates." While
                            economic pressure does not justify ignoring professional responsibilities, it
                            undoubtedly provides a reasonable and not surprising explanation for the increase in
                            lawyer reluctance to participate in pro bono services or in bar activities. However,
                            the lawyer's objective of accumulating economic gain from the practice of law
                            should not be incompatible with his or her professional obligation to participate
                            actively in local and state bar affairs and to provide pro bono service to the
                            disadvantaged and those unable to afford access to quality legal services.

                            IV. Obligation to Assist in Making Legal Counsel Available

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under-represented by working for increased funding for legal aid programs, providing leadership for pro
bono services, thoughtful participation in selection of and willingness to serve on boards of directors of
legal aid societies, and support of organized bar programs which provide pro bono services.

                               Table of Contents / Chapters 1, 2, 3, 4, 5, 6, 7, Appendix A




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 Appendix A

                                                        Appendix A
                                              American College of Trial Lawyers


                                          Code of Trial Conduct
"I hold every man a debtor to his profession; from the which, as men of course do seek to receive
countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and
ornament thereto." --Sir Francis Bacon

Introduction
The American College of Trial Lawyers first approved a Code of Trial Conduct in 1956. It has since
been adopted by many federal and state courts in our country, and by other professional organizations.
Following a two-year study by its Legal Ethics Committee, which took into consideration intervening
developments, the Board of Regents of the College enacted the revised version of the Code that follows
this introduction.

I hope that the Code will receive careful and conscientious consideration by every lawyer who engages in
trial work. It sets forth the duties owed by trial lawyers to their clients, to opposing counsel, to the courts,
and to the administration of justice. As pointed out, the Code expresses only minimum standards.

Both as Chief Justice, and as an Honorary Fellow of the College, I take pleasure in commending the
Code to the trial bar and judiciary of our nation.

William H. Rehnquist,
Chief Justice of the United States
July, 1994

          Code of Trial Conduct of the American College of Trial Lawyers

                                                          Table of Contents




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q   Preamble                                                       q   Upholding the Honor of the Profession
q   Employment in Civil Cases                                      q   Lawyer as a Witness
q   Continuance of Employment in and Conduct                       q   Relations with Opposing Counsel
         of Civil Cases                                            q   Relations with Witnesses
q   Court Appointments and Employment in                           q   Communicating with One of Adverse Interest
         Criminal Cases                                            q   Relations with the Judiciary
q   Pro Bono Publico                                               q   Courtroom Decorum
q   Continuance of Employment in and Conduct                       q   Trial Conduct
         of Criminal Cases                                         q   Relations with Jurors
q   Confidentiality of Information                                 q   Diligence and Punctuality
q   Differing Interest-Conflicts                                   q   Competence
q   Professional Colleagues and Conflicts of                       q   Honesty, Candor and Fairness
         Opinion                                                   q   Publicity Regarding Pending Litigation
q   Fees                                                           q   The Trial Lawyers Duty in Summary
q   Relations with Clients                                         q   Scope of the Code of Trial Conduct


Preamble

        Lawyers who engage in trial work have a specific responsibility to strive for prompt, efficient,
ethical, fair and just disposition of litigation. The American College of Trial Lawyers, because of its
particular concern for the improvement of litigation proceedings and trial conduct of counsel, presents
this Code of Trial Conduct for trial lawyers, not to supplant, but to supplement and stress certain portions
of the rules of professional conduct in each jurisdiction. Generally speaking, the purposes and objectives
of this Code are embodied in the following considerations:

        To a client, a lawyer owes undivided allegiance, the utmost application of his or her learning, skill
and industry, and the employment of all appropriate legal means within the law to protect and enforce
legitimate interests. In the discharge of this duty, a lawyer should not be deterred by any real or fancied
fear of judicial disfavor, or public unpopularity, nor should a lawyer be influenced directly or indirectly
by any considerations of self-interest.

      To opposing counsel, a lawyer owes the duty of courtesy, candor in the pursuit of the truth,
cooperation in all respects not inconsistent with the clients interests and scrupulous observance of all
mutual understandings.

        To the office of judge, a lawyer owes respect, diligence, candor and punctuality, the maintenance
of the dignity and independence of the judiciary, and protection against unjust and improper criticism and
attack, and the judge, to render effective such conduct, has reciprocal responsibilities to uphold and
protect the dignity and independence of the lawyer who is also an officer of the court.


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       To the administration of justice, a lawyer owes the maintenance of professional dignity and
independence. A lawyer should abide by these tenets and conform to the highest principles of
professional rectitude irrespective of the desires of the client or others.

        This Code expresses only minimum standards and should be construed liberally in favor of its
fundamental purpose, consonant with the fiduciary status of the trial lawyer, and so that it shall govern
all situations whether or not specifically mentioned herein.

1. Employment in Civil Cases

        It is the right of a lawyer to accept employment in any civil case unless such employment is likely
to result in violation of the rules of professional conduct or other law. The lawyer should decline to
prosecute a cause or assert a defense obviously devoid of merit, or which is intended merely to inflict
harassment or injury, or to procure an unmerited settlement, or in which the lawyer or the lawyers firm or
associates have conflicting interests. Otherwise it is the lawyers right and duty to take all proper action
and steps to preserve and protect the legal merits of the clients position and claims and he or she should
not decline employment in any case because of the unpopularity of the clients cause or position.

2. Continuance of Employment In and Conduct of Civil Cases

        After acceptance of employment a lawyer, unless discharged, should diligently pursue the matter
to an expeditious conclusion. Subject to the rules of the tribunal, a lawyer may withdraw at any time with
the consent of the client but if the clients consent cannot be obtained then the lawyer should obtain the
approval of the tribunal to withdraw. A lawyer should withdraw from any litigation for reasons which
would require refusing employment under paragraph 1 of this Code, or when differing or conflicting
interests with the client arise or if continued representation of the client will involve participation in
client conduct which the lawyer reasonably believes is criminal or fraudulent, and the lawyer may
withdraw if continuing representation of the client will involve participation in client conduct which has
as its objective a goal which the lawyer considers repugnant or imprudent. The lawyer shall take
reasonable and practicable steps to protect the clients interests from the consequences of withdrawal,
such as giving reasonable notice to the client, allowing time for employment of other counsel, conveying
to the client papers and property to which the client is entitled and refunding any advance fee which has
not been earned. When the lawyer withdraws he or she should render a prompt accounting of all the
clients funds and other property in the lawyers possession.

3. Court Appointments and Employment in Criminal Cases

       A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good
cause. Nor should a lawyer decline to undertake the defense of a person accused of a crime merely
because of either the lawyers personal or the communitys opinion as to the guilt of the accused or the
unpopularity of the accuseds position, because every person accused of a crime has a right to a fair trial,


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including persons whose conduct, reputation or alleged violations may be the subject of public
unpopularity or clamor. This places a duty of service on the legal profession and, even though a lawyer is
not bound to accept particular employment, requests for services in criminal cases should not lightly be
declined or refused merely on the basis of the lawyers opinion concerning the guilt of the accused, or his
or her repugnance to the crime charged or to the accused.

4. Pro Bono Publico

        A lawyer should render public interest legal service personally and by supporting organizations
that provide services to persons of limited means.

5. Continuance of Employment In and Conduct of Criminal Cases

       (a) Having accepted employment in a criminal case, a lawyers duty, regardless of his or her
personal opinion as to the guilt of the accused, is to invoke the basic rule that the crime must be proved
beyond a reasonable doubt by competent evidence. The lawyer should raise all valid defenses and, in
case of conviction, should present all proper grounds for probation, or in mitigation of punishment. A
confidential disclosure of guilt alone does not require a withdrawal from the case, but the lawyer should
never offer testimony which the lawyer knows to be false.

       (b) The crime charged should not be attributed to another identifiable person unless evidence
introduced or inferences warranted therefrom raise at least a reasonable suspicion of such persons
probable guilt.

        (c) The prosecutors primary duty is not to convict, but to see that justice is done. A public
prosecutor or other government lawyer should not institute or cause to be instituted criminal charges
when he or she knows or it is obvious that the charges are not supported by probable cause, and shall
make timely disclosure to counsel for the defendant, or to the defendant if the defendant has no counsel,
of the existence of evidence, known to the prosecutor or other government lawyers or agencies, that tends
to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment.

6. Confidentiality of Information

        (a) It is the duty of a lawyer to preserve his or her clients confidences and secrets and this duty
outlasts the lawyers employment. The obligation to represent the client with undivided fidelity and not to
divulge the clients confidences or secrets forbids also the subsequent acceptance of employment from
others in matters adversely affecting any interests of the former client and concerning which he or she
has acquired confidential information, unless the consent of all concerned is obtained.

      (b) A lawyer shall not reveal information relating to representation of a client unless the client
consents after consultation, except for disclosures that are impliedly authorized in order to carry out the

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representation, and except as stated in paragraph (c).

        (c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

                (1) to prevent the client from committing a criminal act that the lawyer believes is likely to
        result in imminent death or substantial bodily harm; or

               (2) to establish a claim or defense on behalf of the lawyer in a controversy between the
        lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer
        based upon conduct in which the client was involved, or to respond to allegations in any
        proceeding concerning the lawyers representation of the client.

7. Differing Interests Conflicts

        (a) Differing interests include every interest that will adversely affect the judgment or the loyalty
of the lawyer to a client, whether it be a conflicting, inconsistent, diverse or other interest.

        (b) A lawyer should not represent clients with differing interests, nor should a lawyer represent a
client in a matter as to which the clients interests are materially adverse to the interests of a former client
whom the lawyer represented in the same or a substantially related matter, unless the clients involved
consent after consultation.

       (c) A lawyer should not accept or continue multiple employment if the exercise of the lawyers
independent professional judgment in behalf of a client will be or is likely to be adversely affected by
representation of another client, except that lawyer may represent multiple clients with respect to the
same matter if:

                  (1) it is obvious that the lawyer can adequately represent the interests of each client;

               (2) the lawyer reasonably believes that the matter can be resolved on terms compatible
        with the clients best interests, that each client will be able to make adequately informed decisions
        in the matter and that there is little risk of material prejudice to the interests of any of the clients if
        the contemplated resolution is unsuccessful;

               (3) the lawyer consults with each client concerning the implications of the common
        representation, including the advantages and risks involved, and the effect on the attorney-client
        privilege, and obtains each clients consent to the common representation; and

                (4) the lawyer reasonably believes that the common representation can be undertaken
        impartially and without improper effect on other responsibilities the lawyer has to any of the
        clients.


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        (d) If a lawyer is required to decline employment or to withdraw from employment under this
rule, no partner or associate of the lawyer or the lawyers firm should accept or continue such
employment.

       (e) When a lawyer has left one firm and joined another, the lawyer and the lawyers new firm are
disqualified from representing a client in a matter adverse to a client of the former firm if the lawyer
acquired confidential information material to the matter while with the former firm.

       (f) When a lawyer has terminated an association with a firm, the lawyers former firm is not
prohibited from thereafter representing a client with interests materially adverse to those of a client
represented by the departed lawyer and not currently represented by the firm, unless:

               (1) the matter is the same or substantially related to that in which the formerly associated
        lawyer represented the client; and

                  (2) any lawyer remaining in the firm has confidential information material to the matter.

       (g) The affected client may waive any conflict arising under subparagraphs (e) and (f) (1) and (2)
next above.

        (h) Generally judges, arbitrators, or other adjudicative officers should not seek employment with
parties or attorneys with matters pending before them, and a former judge, arbitrator, or other
adjudicative officer should not represent any person in connection with a matter in which the judge or
arbitrator formerly participated personally and substantially as a judge or arbitrator.

8. Professional Colleagues and Conflicts of Opinion

       (a) A clients proffer of assistance of additional counsel should not be regarded as evidence of
want of confidence, but the matter should be left to the determination of the client. Either the original
counsel or additional counsel may decline association as colleagues if it is objectionable to either, but if
the lawyer first retained is relieved, another may come into the case.

        (b) When lawyers jointly associated in a cause cannot agree as to any matter vital to the interests
of a client, the conflict of opinion should be frankly stated to the client for final determination. The
clients decision should be accepted unless the nature of the difference makes it impracticable or
inappropriate for the lawyer whose judgement has been overruled to cooperate effectively; in this event it
is the lawyers duty to ask to be relieved.

        (c) Efforts, direct or indirect, in any way to interfere with the professional employment of another
lawyer are improper. However, a lawyer should not decline to pursue a claim against another lawyer on a
clients behalf merely because the prospective defendant is a member of the same profession.

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9. Fees

      No division of fees for legal services is proper except with other lawyers. Division of legal fees
among lawyers not in the same firm is proper only if

      (a) The division complies with, and is permitted by, the applicable law or rules governing the
lawyers conduct; and

       (b) The client is informed in writing and does not object to the participation of all the lawyers
involved; and

       (c) The total fee charged is reasonable and, unless the additional lawyer adds value to the
representation, not more than the client would have been charged if such division of legal fees had not
occurred.

10. Relations with Clients

        (a) A lawyer should not purchase or otherwise acquire a proprietary interest in the cause of action
or subject matter of the litigation the lawyer is conducting for a client, except that the lawyer may acquire
a lien granted by law to secure the lawyers fee or expenses and contract with a client for a reasonable
contingent fee in those civil cases in which a contingent fee is permitted.

       (b) While representing a client in connection with contemplated or pending litigation, a lawyer
should not advance or guarantee financial assistance to the client except that the lawyer may advance or
guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical
examination, and costs of obtaining and presenting evidence the repayment of which may be contingent
on the outcome of the matter.

       (c) A lawyer representing an indigent client may pay the court costs and litigation expenses on
behalf of such client.

      (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an
agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on
information relating to the representation.

        (e)
                  (1) A lawyer who represents two or more clients should not make or participate in the
                  making of an aggregate settlement of the claims of or against his clients, unless each client
                  has consented to the settlement after being advised of the existence and nature of all the
                  claims involved in the proposed settlement, of the total amount of the settlement and of the
                  participation of each client in the settlement. (2) A lawyer who represents two or more

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                  criminal defendants should not participate in an aggregated plea agreement as to guilty
                  pleas unless each defendant is informed about the existence and nature of all the pleas
                  being offered and the participation of each defendant in each plea agreement and each
                  defendant consents to such an aggregated plea agreement.

11. Upholding the Honor of the Profession

       (a) It is the duty of every lawyer to protect the Bar against the admission to the profession of
persons who are unfit because of morals, character, education or traits of character. A lawyer should
affirmatively assist courts and other appropriate bodies in promulgating, enforcing and improving the
requirements for admission to the Bar.

      (b) Lawyers should strive at all times to uphold the honor and dignity of the profession and to
improve the administration of justice, including the method of selection and retention of judges.

        (c) Every lawyer has the duty to protest by all proper means the appointment or election to the
bench of persons whom the lawyer believes are not fully qualified by character, temperament, ability and
experience. If the lawyer is unable to reach a considered and informed judgment about the persons
qualifications for appointment or election to the bench, the lawyer must then refrain from writing,
speaking or taking any other action in favor of or in opposition to that individuals appointment or
election to the bench.

       (d) A lawyer cannot knowingly condone perjury or subornation of perjury before any tribunal. A
lawyer should report such perjury or subornation of perjury to the tribunal in which such conduct
occurred.

        (e) Subject only to applicable law governing disclosure of confidential information between
lawyer and client, a lawyer having information that another lawyer has violated the applicable
disciplinary rules must report such wrongful conduct to the appropriate professional disciplinary
authority.

12. Lawyer As A Witness

       (a) A lawyer should not act as advocate at a trial in which the lawyer is likely to be a necessary
witness except where:

                  (1) the testimony relates to an uncontested issue;

                  (2) the testimony relates to the nature and value of legal services rendered in the case; or

                  (3) disqualification of the lawyer would work substantial hardship on the client.

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       (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyers firm is likely to
be called as a witness unless precluded from doing so because subject to a conflict of interest prohibited
by Rule 1.7 or Rule 1.9 of the ABA Model Rules of Professional Responsibility.

      (c) A lawyer should never conduct or engage in experiments involving any use of the lawyer's
own person or body except to illustrate in argument what has been previously admitted in evidence.

13. Relations with Opposing Counsel

        (a) The lawyer, and not the client, has the sole discretion to determine the accommodations to be
granted opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the
clients rights, such as extensions of time, continuances, adjournments, and admission of facts.
Consequently, the lawyer need not accede to a clients demand that the lawyer act in a discourteous or
uncooperative manner toward opposing counsel.

       (b) A lawyer should adhere strictly to all express promises to, and agreements with, opposing
counsel, whether oral or in writing, and should adhere in good faith to all agreements implied by the
circumstances or by local custom. When a lawyer knows the identity of a lawyer representing an
opposing party, the lawyer should not take advantage of the opposing lawyer by causing any default or
dismissal to be entered without first inquiring about the opposing lawyers intention to proceed.

      (c) A lawyer should not participate in offering or making an agreement in which a restriction on a
lawyers right to practice is part of the settlement of a controversy between private parties.

       (d) A lawyer should avoid disparaging personal remarks or acrimony toward opposing counsel,
and should remain wholly uninfluenced by any ill feeling between the respective clients. The lawyer
should abstain from any allusion to personal peculiarities and idiosyncrasies of opposing counsel.

       (e) A charge of impropriety by one lawyer against another in the course of litigation should never
be made except when relevant to the issues of the case; provided, however, that if the impropriety
amounts to a violation of applicable disciplinary rules, the lawyer should report such wrongful conduct to
the appropriate professional disciplinary authority. See paragraph II (e) hereof.

14. Relations with Witnesses

        (a) A lawyer should thoroughly investigate and marshal the facts. Subject to the provisions of
paragraph 15 hereof and to constitutional requirements in criminal matters, a lawyer may properly
interview any person, because a witness does not belong to any party. A lawyer should avoid any
suggestion calculated to induce any witness to suppress evidence or deviate from the truth. However, a
lawyer may tell any witness that he or she does not have any duty to submit to an interview or to answer
questions propounded by opposing counsel unless required to do so by judicial or legal process.

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       (b) A lawyer should not suppress any evidence that the lawyer or the client has a legal obligation
to reveal or produce. A lawyer should not advise or cause a person to secrete himself or herself or to
leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness. However, except
when legally required, it is not a lawyers duty to disclose any evidence or the identity of any witness.

       (c) A lawyer should not pay, offer to pay, or acquiesce in the payment of compensation to a
witness contingent upon the content of the witnesses testimony or the outcome of the case. A lawyer,
however, may advance, guarantee or acquiesce in the payment of:

                  (1) expenses reasonably incurred by a witness in attending or testifying,

                  (2) reasonable compensation to a witness for the witnesss loss of time in attending or
                  testifying;

                  (3) a reasonable fee for the professional services of an expert witness.

        (d) A lawyer may advertise for witnesses to a particular event or transaction but not for witnesses
to testify to a particular version thereof.

        (e) A lawyer should never be unfair or abusive or inconsiderate to adverse witnesses or opposing
litigants, or ask any question intended not legitimately to impeach but only to insult or degrade the
witness. A lawyer should never yield in these matters to contrary suggestions or demands of the client or
allow any malevolence or prejudices of the client to influence the lawyers action.

15. Communicating with one of Adverse Interest

        During the course of representation of a client, a lawyer should not:

        (a) Communicate about the subject of the representation with a party the lawyer knows to be
represented by another lawyer in that matter, unless the lawyer has the prior consent of the lawyer
representing such other party or is authorized by law to do so. Opposing parties themselves may
communicate directly with each other without the consent of their lawyers, and a lawyer may encourage
the client to do so, although the lawyer may not use the client as a surrogate to engage in misconduct

        (b) In case of an organization represented by a lawyer in the matter, the lawyer should not
communicate concerning the matter with persons presently having a managerial responsibility on behalf
of the organization, or with any person whose act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability, or whose statement may constitute
an admission on the part of the organization. Unless otherwise provided by law, this rule does not
prohibit communications with former employees of the organization, but during such communications


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the lawyer should be careful not to cause the former employee to violate the privilege attaching to
attorney-client communications.

        (c) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that he or she is disinterested, but should identify the lawyers client. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the
matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

16. Relations with the Judiciary

        (a) A lawyer should be courteous and may be cordial to a judge but should never show marked
attention or unusual hospitality to a judge, uncalled for by their personal relations. A lawyer should avoid
anything calculated to gain or having the appearance of gaining special personal consideration or favor
from a judge.

        (b) Subject to the foregoing and to the provisions of paragraph 23 hereof, a lawyer should defend
or cause to be defended judges who are subjected to unwarranted and slanderous attacks, for public
confidence in our judicial system is undermined by such statements concerning the character or conduct
of judges. It is the obligation of lawyers, who are also officers of the court, to correct misstatements and
false impressions, especially where the judge is restrained from defending himself or herself.

17. Courtroom Decorum

        (a) A lawyer should conduct himself or herself so as to preserve the right to a fair trial, which is
one of the most basic of all constitutional guarantees. This right underlies and conditions all other legal
rights, constitutional or otherwise. In administering justice, trial lawyers should assist the courts in the
performance of two difficult tasks: discovering where the truth lies between conflicting versions of the
facts, and applying to the facts as found, the relevant legal principles. These tasks are demanding and
cannot be performed in a disorderly environment. Unless order is maintained in the courtroom and
disruption prevented, reason cannot prevail and constitutional rights to liberty, freedom and equality
under law cannot be protected. The dignity decorum and courtesy which have traditionally characterized
the courts of civilized nations are not empty formalities. They are essential to an atmosphere in which
justice can be done.

       (b) During the trial, a lawyer should always display a courteous, dignified and respectful attitude
toward the judge presiding, not for the sake of the judges person, but for the maintenance of respect for
and confidence in the judicial office. The judge, to render effective such conduct, has reciprocal
responsibilities of courtesy to and respect for the lawyer who is also an officer of the court. A lawyer
should vigorously present all proper arguments against rulings or court demeanor the lawyer deems
erroneous or prejudicial, and see to it that a complete and accurate case record is made. In this regard, the
lawyer should not be deterred by any fear of judicial displeasure or punishment.


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        (c) In advocacy before a court or other tribunal, a lawyer has the professional obligation to
represent every client courageously, vigorously, diligently and with all the skill and knowledge the
lawyer possesses. It is both the right and duty of the lawyer to present the clients cause fully and
properly, to insist on an opportunity to do so and to see to it that a complete accurate case record is made
without being deterred by any fear of judicial displeasure or punishment. But it is steadfastly to be borne
in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law.
The office of the attorney does not permit, much less does it demand of a lawyer for any client, violation
of law or any manner of fraud or chicanery. The lawyer must obey his or her conscience and not that of
the client.

        (d) In performing these duties, a lawyer should conduct himself or herself according to law and
the standards of professional conduct as defined in codes, rules and canons of the legal profession and in
such a way as to avoid disorder or disruption in the courtroom. A lawyer should advise the client
appearing in the courtroom of the kind of behavior expected and required of the client there, and prevent
the client, so far as lies within the lawyers power, from creating disorder or disruption in the courtroom.

18. Trial Conduct

        (a) In appearing in a professional capacity before a tribunal, a lawyer should not:

                  (1) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or
                  conceal a document or other material having potential evidentiary value. A lawyer shall
                  not counsel or assist another person to do any such act;

                  (2) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to
                  a witness that is prohibited by law;

                  (3) knowingly disobey an obligation under the rules of a tribunal except for an open refusal
                  based on an assertion that no valid obligation exists;

                  (4) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
                  diligent effort to comply with a legally proper discovery request by an opposing party;

                  (5) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
                  that will not be supported by admissible evidence, assert personal knowledge of facts in
                  issue except when testifying as a witness, or state a personal opinion as to the justness of a
                  cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence
                  of an accused; or

                  (6) request a person other than a client to refrain from voluntarily giving relevant
                  information to another party unless:


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                            (i) the person is a relative or an employee or other agent of a client; and

                            (ii) the lawyer reasonably believes that the persons interests will not be adversely
                            affected by refraining from giving such information.

                  (7) fail to comply with known local customs of courtesy or practice of the bar or a
                  particular tribunal without giving to opposing counsel timely notice of the lawyers intent
                  not to comply;

                  (8) engage in undignified or discourteous conduct which is degrading to a tribunal.

        (b) A lawyer shall not in an adversary proceeding communicate ex parte with a judge or other
official before whom the proceeding is pending except as permitted by law.

       (c) A question should not be interrupted by an objection unless the question is then patently
objectionable or there is reasonable ground to believe that matter is being included which cannot
properly be disclosed to the jury.

       (d) A lawyer should not engage in acrimonious conversations or exchanges involving
personalities with opposing counsel. Objections, requests and observations should be addressed to the
court. A lawyer should not engage in undignified or discourteous conduct which is degrading to a court
procedure.

        (e) Where a court has already made a ruling in regard to the inadmissibility of certain evidence, a
lawyer should not seek to circumvent the effect of that ruling and get the evidence before the jury by
repeated questions relating to the evidence in question, although a lawyer is at liberty to make a record
for later proceedings of the basis for urging the admissibility of the evidence in question.

      (f) Examination of jurors and of witnesses should be conducted from the counsel table or from
some other suitable distance except when handling documentary or physical evidence, or when a hearing
impairment or other disability requires that the lawyer take a different position.

        (g) A lawyer should not attempt to get before the jury evidence which is improper. In all cases in
which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made
for leave to approach the bench and obtain a ruling out of the jurys hearing, either by propounding the
question and obtaining a ruling or by making an offer of proof.

       (h) A lawyer should arise when addressing or being addressed by the judge except when making
brief objections or incidental comments. A lawyer should be attired in a proper and dignified manner in
the courtroom, and abstain from any apparel or ornament calculated to call attention to himself or herself.



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19. Relations with Jurors

       (a) Before the trial of a case, a lawyer connected therewith should not communicate with or cause
another to communicate with anyone the lawyer knows to be a member of the venire from which the jury
will be selected for the trial of the case.

       (b) Before the jury is sworn to try the cause, a lawyer may investigate the prospective jurors to
ascertain any basis for challenge, provided there is no communication with them, direct or indirect, or
with any member of their families. But a lawyer should not conduct or cause, by financial support or
otherwise, another to conduct a vexatious or harassing investigation of either a venireman or a juror.

        (c) A lawyer should disclose to the judge and opposing counsel any information of which the
lawyer is aware that a juror or a prospective juror has or may have any interest, direct or indirect, in the
outcome of the case, or is acquainted or connected in any manner with any lawyer in the case or any
partner or associate or employee of the lawyer, or with any litigant, or with any person who has appeared
or is expected to appear as a witness, unless the judge and opposing counsel have previously been made
aware thereof by voir dire examination or otherwise.

       (d) During the trial of a case a lawyer connected therewith should not communicate with or cause
another to communicate with any member of the jury and a lawyer who is not connected therewith
should not communicate with or cause another to communicate with a juror concerning the case.

       (e) The foregoing rules do not prohibit a lawyer from communicating with veniremen or jurors in
the course of official proceedings.

       (f) Subject to any limitations imposed by law, it is the lawyers right, after the jury has been
discharged, to interview the jurors to determine whether their verdict is subject to any legal challenge.
After discharge of the jury from further consideration of a case with which the lawyer was connected, the
lawyer should not ask questions or make comments to a member of that jury that are calculated merely to
harass or embarrass the juror or to influence the jurors actions in future jury service.

       (g) All restrictions imposed herein upon a lawyer should also apply to communications with or
investigation of members of a family of a venireman or a juror.

       (h) A lawyer should reveal promptly to the court improper conduct by a venireman or a juror or
by another toward a venireman or a juror or a member of the jurors family of which the lawyer has
knowledge.

       (i) A lawyer should scrupulously abstain from all acts, comments and attitudes calculated to curry
favor with any juror, such as fawning, flattery, actual or pretended solicitude for the jurors comfort or
convenience or the like.


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20. Diligence and Punctuality

        (a) Every effort consistent with the legitimate interests of the client should be made to expedite
litigation and to avoid unnecessary delays, and no dilatory tactics should be employed for the purpose of
harassing an adversary or of exerting economic pressure on an adversary or to procure more fees.

       (b) A lawyer should be punctual in fulfilling all professional commitments, including all court
appearances and, whenever possible, should give prompt notice to the court and to all other counsel in
the case of any circumstances requiring his tardiness or absence.

      (c) A lawyer should make every reasonable effort to prepare thoroughly prior to any court
appearance.

        (d) A lawyer should comply with all court rules and see to it that all documents required to be
filed are filed promptly. A lawyer should, in civil cases, stipulate in advance with opposing counsel to all
non-controverted facts; should give opposing counsel, on reasonable request, an opportunity in advance
to inspect all non-impeaching evidence of which the law permits inspection; and, in general, should do
everything possible to avoid delays and to expedite the trial.

       (e) A lawyer should promptly inform the court of any settlement, whether partial or entire, with
any party, or the discontinuance of any issue.

21. 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. A
lawyer should never attempt to handle a legal matter without preparation adequate in the circumstances
nor neglect a legal matter entrusted to him or her. Similarly, if a lawyer knows or should know that he or
she is not competent to handle a legal matter, the lawyer should not attempt to do so without associating
with a lawyer who is competent to handle it.

22. Honesty, Candor and Fairness

       (a) The conduct of a lawyer before the court and with other lawyers should at all times be
characterized by honesty, candor and fairness.

       (b) A lawyer should never knowingly misquote the contents of a paper, the testimony of a
witness, the language or the argument of opposing counsel, or the language of a decision or a textbook. A
lawyer should not in argument assert as a fact that which has not been proved, or, in those jurisdictions in
which a side has the opening and closing arguments, mislead an opponent by concealing or withholding
positions in an opening argument upon which the lawyers side then intends to rely.

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       (c) In presenting a matter to a tribunal a lawyer should not cite authorities known to have been
vacated or overruled or cite a statue that has been repealed without making a full disclosure to the
tribunal and counsel, and the lawyer should disclose legal authority in the controlling jurisdiction known
to be directly adverse to the position of the client and which is not disclosed by opposing counsel, and,
the identities of the clients the lawyer represents and, when required by court rule, of the persons who
employed him or her.

       (d) A lawyer should be extraordinarily careful to be fair, accurate and comprehensive in all ex
parte presentations and in drawing or otherwise procuring affidavits.

       (e) A lawyer should never attempt to place before a tribunal, jury, or public evidence which the
lawyer knows is clearly inadmissible, nor should the lawyer make any remarks or statements which are
intended improperly to influence the outcome of any case.

       (f) A lawyer should not propose a stipulation in the jurys presence unless the lawyer knows or has
reason to believe the opposing lawyer will accept it.

        (g) A lawyer should never file a pleading or any other document known to be false in whole or in
part.

       (h) A lawyer should not disregard or circumvent or advise a client to disregard or circumvent a
standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but a lawyer may
take appropriate steps in good faith to test the validity of such rule or ruling.

       (i) A lawyer who receives information clearly establishing that the client has, in the course of the
representation, perpetrated a fraud upon a tribunal should promptly call upon the client to rectify the
same, and if the client refuses or is unable to do so, the lawyer should reveal the fraud to the affected
tribunal. If a lawyer receives information clearly establishing that a person other than the client
perpetrated a fraud upon a tribunal, the lawyer should promptly reveal the fraud to the tribunal.

23. Publicity Regarding Pending Litigation

       Because a lawyer should try the case in court and not in the newspapers or through other media, a
lawyer should not make an extrajudicial statement that a reasonable person would expect to be
disseminated by means of public communication if the lawyer knows or reasonably should know that it
will have substantial likelihood of materially prejudicing an adjudicative proceeding.

24. The Trial Lawyers Duty in Summary

        No client, corporate or individual, however powerful, nor any cause, civil or political, however


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important, is entitled to receive, nor should any lawyer render, any service or advice encouraging or
inviting disrespect of the law, whose ministers we are, or of the judicial office, which we are bound to
uphold. Much less should a lawyer sanction or invite corruption of any person or persons exercising a
public office or private trust, nor should a lawyer condone in any way deception or betrayal of the public.
When indulging in any such improper conduct, the lawyer invites stern and just condemnation.
Correspondingly, a lawyer advances the honor of the profession and the best interests of the client when
he or she encourages an honest and proper respect for the law, its institutions and ministers. Above all, a
lawyer will find the highest honor in a deserved reputation for fidelity to private trust and to public duty,
as an honest person and as a patriotic and loyal citizen.

25. Scope of the Code of Trial Conduct

        This Code of Trial Conduct is intended to provide guidance for a lawyers professional conduct
accept insofar as the applicable law, code or rules of professional conduct in a particular jurisdiction
require or permit otherwise. It is a guide for trial lawyers and should not give rise to cause of action,
create a presumption that a legal duty has been breached, or form the basis for disciplinary proceedings
not called for under the applicable disciplinary rules.

Code of Trial Conduct
1994 Revision
American College of Trial Lawyers
8001 Irvine Center Drive, Suite 960
Irvine, California 92718
Phone: (714) 727-3194

                                      Table of Contents / Chapters 1, 2, 3, 4, 5, 6, 7, 8




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