If a Mississippi lawyer knows an out-of-state lawyer is practicing law in Mississippi without a license, must the lawyer report it, and to whom?

Plain-English summary

The Committee was asked about a Mississippi Bar member with personal knowledge that an individual licensed in another state, but not in Mississippi, was practicing law in Mississippi, and who had recently worked for a Mississippi state agency and now represented a client in a matter in which that person participated personally and substantially as a public employee. The question was whether the Mississippi lawyer had an ethical duty to report the matter to the regulatory authority in the state where the other lawyer was licensed.

Assuming the Mississippi lawyer had personal knowledge that the other lawyer was actually practicing law in Mississippi in violation of Mississippi statutes regulating the practice of law, the opinion concluded that Rule 8.3 applies: a lawyer who knows another lawyer has committed a violation raising a substantial question as to honesty, trustworthiness, or fitness must inform the appropriate professional authority. It noted that Rule 8.3(c) does not require disclosure of information protected by Rule 1.6, and that a measure of judgment is required. It explained that practicing law in a jurisdiction where doing so violates that jurisdiction's regulation of the profession violates Rule 5.5, so an out-of-state lawyer practicing in violation of Mississippi statutes would be violating both Mississippi law and Rule 5.5.

The opinion concluded that the appropriate professional authority in Mississippi is the Mississippi Bar, which would handle the investigation and any subsequent report to the bar in the state where the other lawyer is licensed. Accordingly, the reporting obligation is satisfied by a report to the Mississippi Bar; the Mississippi lawyer has no obligation to report directly to the other state's bar (assuming the Mississippi lawyer is not also a member there) but may do so.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Must a lawyer report another lawyer's unauthorized practice of law?

A: The opinion concluded that a lawyer with actual knowledge of a violation raising a substantial question as to another lawyer's honesty, trustworthiness, or fitness must report it under Rule 8.3, and unauthorized practice in violation of Mississippi statutes violates Rule 5.5.

Q: Who does the lawyer report to when the other lawyer is licensed elsewhere?

A: Per the opinion, the duty is satisfied by reporting to the Mississippi Bar, which will handle the investigation and make any appropriate report to the state where the other lawyer is licensed.

Q: Does confidentiality limit the duty to report?

A: Yes. The opinion noted that under Rule 8.3(c) the duty does not require disclosing information protected by Rule 1.6, and that a measure of judgment is required in complying with the rule.

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 8.3 (reporting professional misconduct), 5.5 (unauthorized practice of law), and 1.6 (confidentiality, as the limit on the reporting duty), which correspond to the same-numbered Model Rules, and reads them against Mississippi statutes regulating the practice of law.

Citations and references

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

• MRPC 8.3 (reporting professional misconduct; 8.3(c) confidentiality limit) (cf. Model Rule 8.3)
• MRPC 5.5 (unauthorized practice of law) (cf. Model Rule 5.5)
• MRPC 1.6 (confidentiality of information) (cf. Model Rule 1.6)

See also

• MS Bar Ethics Op. 247: Reporting Misconduct
• NY State Bar Op. 822: Where to Report Misconduct
• AL Ethics Op. 1992-09: Duty to Report a Judge

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/221/
• Original PDF: https://www.msbar.org/media/1468/35a_et_op_221.pdf

Original opinion text

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

ETHICS OPINION NO. 221

OF THE MISSISSIPPI BAR

RENDERED November 17, 1994

ETHICAL OBLIGATION TO REPORT THE UNAUTHORIZED PRACTICE OF LAW --A lawyer has an ethical duty to report professional misconduct and the unauthorized practice of law.

The Ethics Committee of the Mississippi Bar has been requested to issue an opinion as to the ethical considerations concerning the following situation:

A member of the Mississippi Bar is aware, and has personal knowledge, that an individual who is a member of the Bar of another State, but is not a member of the Mississippi Bar, is engaging in the practice of law in the State of Mississippi. Additionally, this same individual was recently employed by an agency of the Mississippi State Government and presently represents a client in connection with a matter in which this person participated personally and substantially as a public employee.

Specifically, the Committee has been requested to address the following question:

Do I, as a member of the Mississippi Bar, have an ethical duty to report this matter to the entity in the state [in which the non-Mississippi lawyer is licensed] which regulates its attorneys?

The Committee assumes that the Mississippi Bar member has personal knowledge of this non-Mississippi Bar member's actually practicing law in the State of Mississippi in a manner which violates Mississippi statutes which regulate the practice of law. Although the request is not clear, we also assume that the non-Mississippi Bar member, who was recently employed by an agency of the Mississippi State Government, is actually practicing law in the State of Mississippi and not simply acting as a public official in a non-legal capacity.

Assuming these facts, it appears clear that: "a lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority." (Rule 8.3, Mississippi Rules of Professional Conduct.)

The comment to Rule 8.3 clearly says that "self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct." Rule 8.3(c) provides: "this rule does not require disclosure of information otherwise protected by Rule 1.6." The comment states that: "a report about misconduct is not required when it would involve a violation of Rule 1.6." However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interest. This comment further states that "this rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of the rule."

Rule 5.5, MRPC provides that "a lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. . . ." The comment to Rule 5.5 provides that "the definition of the practice of law is established by law and varies from one jurisdiction to another." Thus, if the non- Mississippi Bar member is engaged in the practice of law in violation of the Mississippi statutes, the non-Mississippi Bar member would be violating the laws of the State of Mississippi and Rule 5.5, MRPC. Under Rule 8.3(a), a lawyer having actual knowledge that another lawyer has committed a violation of the Rules of Professional 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. In the State of Mississippi, this would be the Mississippi Bar. That body would then handle the investigation and subsequent issues involved in the fact situation stated. Accordingly, any ethical obligation to report such misconduct is satisfied by a report to the Mississippi Bar, which in turn will make any appropriate report to the Bar in the state in which the non-Mississippi lawyer is licensed. The Mississippi Bar member has no obligation to report such misconduct directly to the Bar in the state in which the other lawyer is licensed,(This assumes that the Mississippi lawyer is not a member of the Bar of the state in which the other lawyer is licensed.) but may do so.