Can a Mississippi lawyer participate in a for-profit prepaid legal services plan that pays a set amount per subscriber for defined services?

Plain-English summary

The Committee addressed a Mississippi attorney who wanted to participate in a for-profit prepaid legal services plan that paid a set amount per subscriber per year to provide defined services: a legal opinion letter, contract review, 2.5 hours of consultation, advice in a small-claims action, and drafting one letter. The plan gave subscribers the name of a participating attorney and provided for alternate representation if a conflict arose.

The opinion relied on ABA Formal Opinion 87-355, which generally approves a lawyer's participation in such plans if the plan lets the attorney exercise independent professional judgment, maintain client confidences, avoid conflicts, and practice competently, and does not involve improper advertising, solicitation, or fee sharing, and complies with applicable law, with the participating attorney responsible for ensuring the plan's compliance.

The opinion concluded nothing in the plan violated the Mississippi Rules of Professional Conduct. It found the plan did not let the sponsor interfere with the lawyer's independent judgment (Rule 5.4), did not require revealing client confidences (Rule 1.6), made provision for alternate representation if conflicts arose (Rules 1.7, 1.8, 1.9, 1.10), required attorney competence in the covered areas (Rule 1.1), and raised no advertising or solicitation problems (Rules 7.1 through 7.4). It agreed with the ABA opinion that there was no improper fee sharing with a non-lawyer under Rule 5.4, because the participating attorney's independent judgment and freedom of action were preserved. The opinion concluded the lawyer may participate provided the plan comports with the rules mentioned, Section 83-41-1 et seq. of the Mississippi Code, and the opinion's guidelines.

Currency note

This opinion was issued in 1992, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and 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 Treat this page as historical context, not current guidance.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 Mississippi lawyer join a for-profit prepaid legal services plan?

A: The opinion concluded yes, provided the plan preserves the lawyer's independent judgment and client confidences, avoids conflicts and improper advertising or solicitation, does not involve improper fee sharing, and complies with the rules and applicable law.

Q: Is paying the for-profit sponsor a per-subscriber fee improper fee sharing with a non-lawyer?

A: Per the opinion, no; agreeing with ABA Formal Opinion 87-355, it concluded there was no improper fee sharing under Rule 5.4 because the attorney's independent judgment and freedom of action for the client were preserved.

Q: Whose job is it to make sure the plan follows the rules?

A: The opinion, following the ABA opinion, placed responsibility on the participating attorney to ensure the plan complies with the ethical rules.

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 5.4 (professional independence and fee sharing), 1.6 (confidentiality), the conflict rules 1.7 through 1.10, 1.1 (competence), and the advertising rules 7.1 through 7.4, which correspond to the same-numbered Model Rules, and reads them against Section 83-41-1 et seq. of the Mississippi Code and ABA Formal Opinion 87-355.

Citations and references

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

• MRPC 5.4 (professional independence; fee sharing with non-lawyers) (cf. Model Rule 5.4)
• MRPC 1.6 (confidentiality) (cf. Model Rule 1.6)
• MRPC 1.7, 1.8, 1.9, 1.10 (conflicts of interest) (cf. Model Rules 1.7-1.10)
• MRPC 1.1 (competence); MRPC 7.1-7.4 (advertising and solicitation)

Statutes:

• Miss. Code Section 83-41-1 et seq. (prepaid legal services plans).

Other opinions cited:

• ABA Formal Opinion 87-355 (Dec. 14, 1987): participation in for-profit prepaid legal service plans.

See also

• MS Bar Ethics Op. 216: In-Person Plan Solicitation
• MS Bar Ethics Op. 211: Insurer Control of Defense Counsel
• MS Bar Ethics Op. 209: Fee-Sharing With Referral Service

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/199/
• Original PDF: https://www.msbar.org/media/1455/35a_et_op_199.pdf

Original opinion text

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

ETHICS OPINION NO. 199

OF THE MISSISSIPPI BAR

RENDERED April 11, 1992

LAWYER-CLIENT RELATIONSHIP- A lawyer may participate in a for-profit prepaid legal service plan provided the plan complies with Mississippi Rules of Professional Conduct and the applicable laws.

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

A Mississippi attorney wishes to know if it is ethically permissible to participate in a for-profit prepaid legal service plan where the attorney agrees with a legal service group to be paid a set amount per subscriber to the plan per year to provide the following services to a subscriber: a legal opinion letter, review of a contract, two and one half (2-1/2) hours of consultation, legal advice in a small claims action, and drafting of one ( l ) letter. The plan provides to subscribers the name of a participating attorney who can be contacted during normal business hours. The attorney agrees to notify the plan if a conflict of interest arises and agrees to handle other matters where conflicts may have arisen with other subscribing attorneys.

In response to numerous inquiries concerning ethical issues as to for-profit prepaid legal service plans, the American Bar Association, on December 14, 1987, issued Formal Opinion No. 87-355 which generally approves participation of a lawyer in such plans under the ABA Model Rules of Professional Conduct, provided the plan complied with guidelines of that Opinion, which must allow the attorney to exercise independent professional judgment on behalf of the client, to maintain client confidence, to avoid conflict of interest, and to practice competently. The operation of the plan must not involve improper advertising or solicitation or improper fee sharing and must comply with applicable laws. The ABA Opinion further made it incumbent upon the participating attorney to insure that the plan complied with the ethical rules.

It is noted at the outset that the plan in question appears similar to most for-profit prepaid legal service plans in that they are owned and operated by sponsors who have a small monthly charge, offer and subscribe certain "covered" legal services for no

additional costs. The services are provided by participating lawyers and this plan does not require participating attorneys to be in conflict with each other.

The Committee is of the opinion that nothing in the questioned for-profit prepaid legal service plan violates the Mississippi Rules of Professional Conduct. Nothing in the plan authorizes the sponsor to interfere with the lawyer's exercise of independent professional judgment or allows the sponsor to direct or regulate the lawyer's professional conduct. Rule 5.4. Next, nothing in the plan would require the participating attorney to reveal confidences of a client. Rule 1.6. Also, the plan in question specifically makes provision for alternative representation should conflict of interests arise. Rules 1.7, 1.8, 1.9 and 1.10. Under the proposed plan, an Attorney must, of course, be competent to handle referrals in the areas mentioned. Rule 1.1. Further, the questioned plan makes no mention of the attorney being involved in any advertising or solicitation which would give rise to problems concerning Rules 7.1, 7.2, 7.3, and 7.4. Finally, this Committee agrees with the ABA Opinion that there is no violation of Rule 5.4 concerning sharing of legal fees with a non-lawyer. None of the problems meant to be prohibited by not allowing fee sharing with non-lawyers are put in this for-profit prepaid legal service plan, since the participating attorney's independent judgment and freedom of action on behalf of the client are preserved. As the ABA Opinion observed:

It is likely that the total fee will not be unreasonable in light of the goal of prepaid legal service plans, to make legal services more widely available at a lower cost to persons of moderate means. Prepaid legal service plans are seen by many to be a way to deliver legal services in non-complex matters to a underrepresented client community.

In conclusion, the Committee finds that a lawyer may participate in a for-profit prepaid legal service plan such as that in this opinion, provided such plan comports with the Rules mentioned in Section 83-41-1 et. seq., Mississippi Code of 1972, as Amended, and the guidelines of this opinion.