Can a Mississippi lawyer provide legal research and writing services to other lawyers outside the firm, and must the arrangement be disclosed to the client?

Plain-English summary

The Committee addressed an attorney who was considering a business providing legal research and writing for other attorneys who were not members of, or associated with, his firm. The question was whether attorneys who use such an outside researcher have an ethical obligation to disclose the arrangement to their client.

The opinion concluded a lawyer may ethically provide research and writing to outside lawyers, provided he does not violate Rule 1.7 on a particular matter by serving a lawyer for the benefit of a client with whom the researcher has a conflict of interest. The opinion reasoned that unless the relationship with the researcher was disclosed to the client, the lawyer engaging the researcher would be unaware of conflicts that might exist between his client and the researcher. The opinion noted that Rule 1.6 bars revealing information relating to a representation without the client's consent after consultation, and that its comment permits disclosure to lawyers within the firm but not, by implication, to an outside researcher.

The opinion added that Rule 1.5 requires disclosure of all lawyers involved where fees are divided, and that Rule 1.4 requires keeping the client reasonably informed and explaining matters enough for informed decisions. The opinion concluded the engagement must be disclosed to the client unless the client's identity cannot reasonably be learned by the researcher; but if the requesting attorney intends to substitute the researcher's judgment as his own, or intends to give the researcher the client's identity or facts disclosing it, then disclosure of the agreement and the client's consent must be obtained.

Currency note

This opinion was issued in 1990, before the adoption of the Mississippi Rules of Professional Conduct effective June 22, 1994 (amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer hire an outside lawyer to do legal research and writing?

A: The opinion concluded yes, a lawyer may both provide and use such services, as long as the work does not create a Rule 1.7 conflict of interest on the particular matter.

Q: Must the client be told that an outside researcher is being used?

A: Per the opinion, the engagement must be disclosed to the client unless the client's identity cannot reasonably be learned by the researcher. Where the researcher would receive the client's identity, or the requesting lawyer would adopt the researcher's judgment as his own, disclosure and the client's consent are required.

Q: How do confidentiality and conflicts rules apply to an outside researcher?

A: The opinion explained that Rule 1.6 protects information relating to the representation and permits sharing within the firm but not automatically with an outside researcher, and that without disclosure the engaging lawyer cannot check for conflicts between his client and the researcher under Rule 1.7.

Background and rules framework

The opinion interprets several Mississippi Rules of Professional Conduct together: Rule 1.7 (conflicts of interest), Rule 1.6 (confidentiality of information), Rule 1.5 (fees, including division of fees), and Rule 1.4 (communication with the client). These correspond to Model Rules 1.7, 1.6, 1.5, and 1.4. The opinion treated the disclosure and consent question as turning on whether the outside researcher would learn, or could reasonably learn, the client's identity.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7 (conflicts of interest) (cf. Model Rule 1.7).
• MRPC 1.6 (confidentiality of information) (cf. Model Rule 1.6).
• MRPC 1.5 (fees; division of fees) (cf. Model Rule 1.5).
• MRPC 1.4 (communication) (cf. Model Rule 1.4).

See also

• ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Services
• DC Bar Ethics Op. 284: Advising and Billing Clients for Temporary Lawyers

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/177/
• Original PDF: https://www.msbar.org/media/1445/35a_et_op_177.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 177

OF THE MISSISSIPPI BAR

RENDERED December 07, 1990

A Lawyer may engage in the business of providing legal research and legal writing for other lawyers who do not practice in his firm. A lawyer using such services must disclose the arrangement to the client, and obtain the consent of the client, unless the identity of the client, and facts which could reasonably lead to the identity of the client, are withheld from the researcher.

The Ethics Committee of the Mississippi State Bar has been asked to render an opinion on the following facts:

An attorney is considering providing legal research and writing for other attorneys who are not members of, or associated with, his firm.

The attorney wishes to know whether attorneys who use his services as a researcher or writer have an ethical obligation to disclose the arrangements to the client.

If a lawyer chooses to provide legal research and writing to other lawyers who are not members or associates of his firm, he may ethically do so, provided he does not, on a particular matter, violate the provisions of Rule 1.7 related to conflicts of interest. The lawyer should make certain that he is not providing services to a lawyer for the use and benefit of a client with whom he has a conflict of interest. Unless the relationship with the lawyer was disclosed to the client, the lawyer engaging the services of the researcher would be unaware of conflicts which might exist between his client and the researcher.

Rule 1.6 requires that a lawyer "shall not reveal information relating to representation of a client unless the client consents after consultation. . ." The comment to Rule 1.6 indicates that it is permissible for an attorney to disclose information related to a client to other attorneys in the firm without the consent of the client, unless the client has instructed otherwise. Additionally, a lawyer is obligated by Rule 1.5 to disclose the participation of all the lawyers involved in his or other case, where the fees are to be divided. It is assumed that the researching lawyer will be paid by either a division of fees, or an expense passed on to the client. In either case, the lawyer is required by Rule 1.4 to keep his client "reasonably informed about the status of a matter. . .," and to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

Thus, where a lawyer engages the services of another lawyer for purposes of researching issues, and writing legal memoranda, the engagement must be disclosed to the client, unless the identity of the client cannot reasonably be learned by the researcher. But if the requesting attorney intends to substitute the proposed judgment of the researcher as his opinion or unless the attorney intends to give the researcher the client's identity or facts which would disclose identity, then, disclosure of the agreement and consent of the client must be obtained.