Initially, the Bar Association acknowledged Crowley v. Germany, 268 So.3d 1277, 1278-1279 (Miss. 2018), in which the Mississippi Supreme Court ruled that the circuit court abused its discretion by forcing lawyers representing the plaintiffs to sign a release; the Court ruled that if the attorneys representing the plaintiffs signed the release then it could be interpreted as making them a party to the contract, which could subject them to personal liability and/or indemnity obligations. Then the Association went on to analyze the situation under the Professional Rules:
Requiring a lawyer to sign a release for “approval” or “agreement” of the terms can put that lawyer in direct conflict with the desires or wishes of their client. Rule 1.2(a) requires a lawyer to “abide by a client’s decisions…” If the client wants to settle their case, but their lawyer does not want to sign the release to “approve” or “agree to” the terms because of fears of being bound by any of the terms of the release then the attorney cannot abide by Rule 1.2(a).
“Agreeing to” or “approving” a release by a lawyer would also make it difficult for said lawyer to abide by Rule 2.1, which requires lawyers to “exercise independent professional judgment and render candid advice.” If lawyers in Mississippi have to be concerned with whether they could face the threat of litigation for “approving” or “agreeing to” a release then it is likely the advice they give their clients could be affected, which could be to the detriment of the client. A lawyer prosecuting a case should not be asked to indemnify the other party if a subrogation claim is brought – the lawyer is not a party, and the responsibility should fall on the parties only. Any settlement agreement/release that makes settlement conditioned on the lawyer signing the release is asking said lawyer to violate Rules 1.2(a) and 2.1 of the Mississippi Rules of Professional Conduct. Defense counsel’s insistence on such a release would be a violation of Rule 8.4(a).
Lawyers signing releases would also create a clear conflict of interest between the attorney and their client pursuant to Rules 1.7(b) as the lawyer’s own interests could be affected. Lawyers should not be in the business of having to decide whether a release is going to negatively affect his relationship with his client in the future. If a release were entered into by a client (Releasor) and his lawyer that required the lawyer and client to indemnify the Releasee, and a future claim is brought against the Releasee, then the Releasor and his lawyer could be contractually obligated to indemnify the Releasee. Since the client (Releasor) actually received the benefit of the settlement then the lawyer and client would likely have a conflict about who should pay or indemnify – the client or the lawyer.
Mississippi Bar Association Ethics Opinion No. 266 (Nov. 3, 2022).
The Bar Association also noted that: “There are 23 state and local bar associations in the United States that have issued ethics opinions stating that it is a violation of their ethical rules for a lawyer to sign a release that calls for the lawyer to agree or approve an indemnification agreement. These include Tennessee, Georgia, South Carolina, Virginia, and Florida.”