The Better Chancery Practice Blog

Up for comment at this link are some new rules proposed to redefine the practice of law in Mississippi vis a vis unauthorized practice and “interloping” by lawyers from other states. Your comments are welcome through March 28, 2016.

One salutary goal is to clarify who may come into Mississippi from other states to handle legal matters here, including litigation, arbitrations, mediations, etc., and the myriad other transactions that have lawyers flitting from state to state, and dipping into our jurisdiction.

An important provision, as I see it, is Section 2(f), which reiterates longstanding Mississippi law that preparation of agreements, contracts, pleadings, deeds, and the like does constitute the practice of law. The obvious reason is that selection of the proper documents, their terms, and when and how to use them require legal judgment and analysis beyond the skill level conferred by Google searches.

We all have seen far too many dreadful computer-generated pleadings and documents that people purchase online from papermills. Likewise, it seems that every county has one or several backwoods, shadowy characters who, for a “modest” fee, will prepare the paperwork parties need to file ID divorces and simple matters. In most cases, the likelihood of damage is small, but there are no ethical bounds on those document-preparers, and there is always the possibility that some legal issue with later, larger ramifications, will go overlooked.

Whether these changes will do the job remains to be seen. It seems to be an elusive problem.

The MSSC is seeking comments on a proposal to amend MRCP 81 to clarify it, and moving its process provisions to R4.

You can access the proposed changes at this link.

These changes were recommended by the Conference of Chancery Judges in 2013, and then analyzed and studied by the MSSC’s Civil Rules Advisory Committee, which passed them on to the MSSC, which has been considering them since.

If you have any comments, pro or con, it will help the process if you will follow the instructions at the link. Deadline is April 1, 2016.

After the  legislature made it legal a couple of years ago to carry firearms in courthouses, except for courtrooms, some judges reacted by extending the protection of the courtroom out into external areas.

Now the legislature is responding with an amendment to HB 571, which has passed the House and is on the way to the Senate. It limits the definition of courtroom to ” … the actual room in which a judicial proceeding occurs, including any jury room, witness room, judge’s chamber, office housing the judge’s staff, or similar room” The law specifically allows firearms in ” … hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

If you agree this is good policy, then you may do nothing and see whether the Senate concurs.

If, however, you wonder what effect this will have on the safety of litigants involved in heated domestic matters who have to wait their turn in the hallways and corridors of our outdated and crowded courthouses, then you might consider contacting your Senator(s).

“This and no other is the root from which a tyrant springs; when he first appears he is a protector.”  —  Plato

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”  —  James Madison

“Tyranny is always better organized than freedom.”  —  Charles Péguy

Back in April, 2015, the MSSC amended the MRCP to add a new R5.1 imposing privacy protections for court filings in both paper- and electronic-filing districts. Consternation among bar, bench, and clerkdom ensued, and the high court suspended R5.1 pending further study. A committee was appointed to study the issue, and a new R5.1 was proposed, with application limited to electronic filings. On February 11, 2016, the new R5.1 went into effect. Here it is in its entirety:

Rule 5.1. Privacy Protection for Filings Made with the Court

Beginning July 1, 2016, all courts and offices of a circuit or chancery clerk that maintain electronic storage or electronic filing of documents, as defined under section 9-5-51 of the Mississippi Code, and make those documents accessible online must conform with the privacy provisions of the Administrative Procedures for Mississippi Electronic Courts — specifically, Sections 5 and 9 therein.

Even if MEC has not reached your particular district yet, if you file in an MEC county you will be bound by its rules. You can find them at this link.

Here are some highlights:

• You must not include in documents filed with the court, and must redact, any personal data identifiers.
• If Social Security numbers appear, only the last four digits may be shown.
• Only the initials of minor children, and not their full names, may be used.
• When stating a date of birth, only the year may be used.
• Only the last four digits of financial account numbers may be stated.
• No street addresses or apartment numbers may be stated; only city and state are listed.
• “The responsibility for redacting these personal identifiers rests solely with counsel and the parties. The clerk will not review pleadings for compliance with these provisions.”
• Failure to comply can subject one to R11 sanctions.

It’s not just in the pleadings you draft that you will find sensitive information; it’s also in the documents you attach as exhibits to your pleadings, and in discovery filings. Almost every day, I have to admonish an attorney to redact Social Security numbers, birth dates, and financial account information. In fact, I directed the chancery clerk to keep a china marker — one of the best redaction tools I have found — in her desk for lawyers to use.

In my court, I extend the privacy protection practice to exhibits in evidence. I make the lawyers redact personal information from documents in evidence. Tax returns, financial documents, 8.05’s, pay stubs, credit card statements, and many other documents are chock-full of sensitive information that can be used for identity theft and other nefarious purposes.

You have a duty to your clients to protect them from being harmed by the information you put into the record. Now MRCP 5.1 makes that duty official.

Back in 2013, I posted about the MSSC’s decision in Memorial Hospital v. Proulx, which held that medical providers do not have a lien against the proceeds of a minor’s settlement. I think I aptly described that case as a “curveball for minor’s settlements.” You can revisit that post at this link.

Then last week, when I reprised “An Outline for Minor’s Settlements,” Randy Wallace picked it up, linked it, and did a nice piece on ERISA and subrogation that you should read and have in your minor’s settlement arsenal. You can access it at this link. His piece, which is well-researched and supported by authority, adds another dimension to the law of minor’s settlements, which on the surface appear simple, but can prove to be deceptively complex.