Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Mississippi |
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| (United States) Firm Butler Snow LLP Updated 10 Sep 2021 | |
| Is the ACP recognized in your jurisdiction? | Yes. Mississippi recognizes the attorney-client privilege under the Mississippi Rule of Evidence 502. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. Mississippi recognizes the attorney-client privilege. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | Generally, Mississippi law does not distinguish between applying the ACP in civil and criminal proceedings. Mississippi does, however, recognize that the ACP does not extend to communications had in furtherance of criminal or fraudulent conduct. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Mississippi law extends the privilege to communications between the client’s representative and the client’s lawyers. Rule 502(a)(2) defines the following individuals as client representatives: 1) “an employee of the client with information the lawyer needs to render legal service to the client,” 2) individuals authorized to “obtain professional legal services on behalf of the client,” or 3) individuals authorized to “act on behalf of the client on the legal advice rendered.” The Advisory Committee’s Notes to Rule 502 discuss the Upjohn approach in the corporate setting and say that the “group of employees who may be a client’s representatives is larger than the ‘control group.’” |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. Both in-house and outside counsel must meet the same burden to establish that the ACP applies to their respective communications. The “privilege does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.” Williamson v. Edmond, 880 So.2d 310, 319 (Miss. 2004). |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable. |
| Is the common interest doctrine recognized in your jurisdiction? | Under Rule 502(b)(3), the ACP extends to communication by the client, the client’s lawyer, or representatives of each party’s lawyer or representative in a pending case if the communication concerns a matter of common interest. |
| How is the doctrine articulated in your jurisdiction? | Under Rule 502(b)(3), the ACP extends to communication by the client, the client’s lawyer, or representatives of each other party’s lawyer or representative in a pending case if the communication concerns a matter of common interest. |
| Must a common interest agreement be in writing? | No. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Are there any professional rules in this respect? No. Mississippi Code § 97-9-11 prohibits litigation funding. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not applicable. Litigation funding is not permitted under Miss. Code § 97-9-11. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Mississippi Rule of Evidence 502(d) states that the ACP does not apply if the “lawyer’s services were sought or obtained to enable or aid anyone to plan or commit what the client knew—or reasonably should have known—was a crime or fraud.” |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. Mississippi Rule of Civil Procedure 26(b)(3) is analogous to the corresponding federal rule. |
| What are the elements of the protection in your jurisdiction? | Rule 26(b)(3) protects against disclosure of documents and tangible things prepared in anticipation of litigation or trial unless the requesting party shows “a substantial need of the materials” and “that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” |
| Does your jurisdiction recognize an accountant-client privilege? | No. Mississippi Rule of Evidence 501 states that no privilege exists unless provided by the federal or state constitution or rules. Based on Rule 501, a federal court sitting within Mississippi held that an accountant-client privilege does not exist under Mississippi law. Lott v. AXA Equitable Life Insurance Co., 2019 WL 2550324, at *3-4 (N.D. Miss. 2019). |
| Does your jurisdiction recognize a mediation privilege? | Yes. Rule 8 of the Mississippi Rules of Mediation for Civil Litigation provides for the confidentiality of mediation and protects participants from being required to testify “in any proceedings relating to matters occurring during the mediation session.” |
| Does your jurisdiction recognize a settlement negotiation privilege? | Generally, yes. Mississippi Rule of Evidence 408 is analogous to the corresponding federal rule and precludes admission of statements made during settlement negotiations to prove liability or damages. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. Mississippi recognizes the attorney-client privilege under the Mississippi Rule of Evidence 502.
Not applicable. Mississippi recognizes the attorney-client privilege.
Generally, Mississippi law does not distinguish between applying the ACP in civil and criminal proceedings. Mississippi does, however, recognize that the ACP does not extend to communications had in furtherance of criminal or fraudulent conduct.
Mississippi law extends the privilege to communications between the client’s representative and the client’s lawyers. Rule 502(a)(2) defines the following individuals as client representatives: 1) “an employee of the client with information the lawyer needs to render legal service to the client,” 2) individuals authorized to “obtain professional legal services on behalf of the client,” or 3) individuals authorized to “act on behalf of the client on the legal advice rendered.” The Advisory Committee’s Notes to Rule 502 discuss the Upjohn approach in the corporate setting and say that the “group of employees who may be a client’s representatives is larger than the ‘control group.’”
No. Both in-house and outside counsel must meet the same burden to establish that the ACP applies to their respective communications. The “privilege does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.” Williamson v. Edmond, 880 So.2d 310, 319 (Miss. 2004).
Not applicable.
Not applicable.
Under Rule 502(b)(3), the ACP extends to communication by the client, the client’s lawyer, or representatives of each party’s lawyer or representative in a pending case if the communication concerns a matter of common interest.
Under Rule 502(b)(3), the ACP extends to communication by the client, the client’s lawyer, or representatives of each other party’s lawyer or representative in a pending case if the communication concerns a matter of common interest.
No.
Are there any professional rules in this respect? No. Mississippi Code § 97-9-11 prohibits litigation funding.
Not applicable. Litigation funding is not permitted under Miss. Code § 97-9-11.
Yes.
Mississippi Rule of Evidence 502(d) states that the ACP does not apply if the “lawyer’s services were sought or obtained to enable or aid anyone to plan or commit what the client knew—or reasonably should have known—was a crime or fraud.”
Yes. Mississippi Rule of Civil Procedure 26(b)(3) is analogous to the corresponding federal rule.
Rule 26(b)(3) protects against disclosure of documents and tangible things prepared in anticipation of litigation or trial unless the requesting party shows “a substantial need of the materials” and “that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”
No. Mississippi Rule of Evidence 501 states that no privilege exists unless provided by the federal or state constitution or rules. Based on Rule 501, a federal court sitting within Mississippi held that an accountant-client privilege does not exist under Mississippi law. Lott v. AXA Equitable Life Insurance Co., 2019 WL 2550324, at *3-4 (N.D. Miss. 2019).
Yes. Rule 8 of the Mississippi Rules of Mediation for Civil Litigation provides for the confidentiality of mediation and protects participants from being required to testify “in any proceedings relating to matters occurring during the mediation session.”
Generally, yes. Mississippi Rule of Evidence 408 is analogous to the corresponding federal rule and precludes admission of statements made during settlement negotiations to prove liability or damages.