Supreme Court adopts rule allowing medical exams, revises rule governing attorneys from other states

Jan. 17, 2003

The Mississippi Supreme Court on Thursday adopted a rule that allows trial judges to order a physical or mental examination when a person's condition is at issue in a civil case.

The Supreme Court in an unrelated action revised a rule governing the practice of law by attorneys who are not licensed in Mississippi.

Mississippi was the only state in the nation that did not have a rule allowing a judge to order a party to submit to a physical or mental examination in civil litigation in which the person's medical condition or mental health was at issue.

The new rule, designated as Rule 35 of the Mississippi Rules of Civil Procedure, is similar to Rule 35 of the Federal Rules of Civil Procedure.

In commentary attached to the rule, the court said: "Previously, the omission in the Mississippi Rules of Civil Procedure of a counterpart to Federal Rule 35 was held to preclude a court from ordering an examination under any circumstances."

Mississippi Supreme Court Chief Justice Edwin L. Pittman said Friday that a law firm requested that the court adopt a rule allowing medical examinations.

"The reason we adopted the rule on medical examinations is that rule has always been in the federal rules," Pittman said. "We just brought ourselves in line with other states and the federal courts."

Pittman last year asked the Mississippi Bar to study the practice of law by out of state attorneys and to make recommendations. The Supreme Court revised the rules governing out of state attorneys in response to a petition filed by the Mississippi Bar.

Under the revised Rule 46 of the Mississippi Rules of Appellate Procedure, a lawyer licensed in another state may obtain permission of the Supreme Court to represent a client in a Mississippi trial court or appellate court without having to be admitted to the Mississippi Bar. The process is known as being admitted to practice pro hac vice.

One of the revisions to Rule 46 clarifies language about the number of pro hac vice admissions permitted before an attorney is deemed to be carrying on a general law practice in the state and is required to be licensed to practice in Mississippi. The revision limits pro hac vice appearances to five within a year.

The revised rule says, in part, "Appearances before the courts or administrative agencies of this state in more than five (5) separate unrelated causes or other matters within the twelve (12) months immediately preceding the appearance in question shall be deemed the general practice of law in this state, which may be performed only by an attorney properly admitted and in good standing as a member of the Mississippi Bar."

Under the revisions, an attorney licensed in another state but having an office in Mississippi may be admitted pro hac vice only if the Mississippi office is staffed full time by an attorney licensed to practice in Mississippi.

The revision establishes the office of the Clerk of the Supreme Court as the entity responsible for tracking pro hac vice appearances, and requires that a trial court obtain a report from the Supreme Court before granting a pro hac vice appearance.

The revision states that any attorney who violates attorney advertising rules set out in Rule 7.2 of the Mississippi Rules of Professional Conduct, or who is employed by or is a member of a firm which has committed a violation, shall not be permitted to appear pro hac vice.

Pittman called the revision to Rule 46 "an effort to bring some order to the out of state lawyer practice chaos."

Referring to toll free 800 telephone numbers listed in advertisements for some out of state lawyers, Pittman said, "We don't know who they are, where they are from."

Pittman said, "It's not an effort to keep people out. It's an effort to manage what's here."

Pittman said the changes in Rule 46 will not limit advertising. However, possible revisions to lawyer advertising rules are being studied by the Supreme Court Rules Committee.

Copies of the newly adopted revisions are available on the Supreme Court's web site, courts.ms.gov, under the Jan. 16, 2003, "Decisions" list or under "Rules."

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