82-F-38 - Representation against Corporation when partner is registered agent

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 82-F-38

 

Inquiry is made concerning the propriety of an attorney representing the plaintiff in a claim of damages for personal injuries against a corporate defendant that was incorporated by the attorney's associate who is also registered agent for service of process for the corporation.

The two issues presented in this inquiry are whether or not the inquiring attorney has a continuing attorney-client relationship with the corporate defendant and whether or not the interests of the inquiring attorney and the associate are differing interests.

The Code of Professional Responsibility defines "Differing Interests" as including every interest that will adversely affect the judgment or loyalty of an attorney to a client, whether it be a conflicting, inconsistent, diverse, or other interest.

In this instance, it appears that the associate has continuing obligations and responsibilities to the corporate client by serving as its resident agent for service of process. In addition, it appears that the inquiring attorney will serve process on his associate to institute litigation against the corporate defendant and, therefore, the interests of each arise from matters that are substantially related and are diverse and differing interests.

Therefore, the vicarious disqualification rule of Disciplinary Rule 5-105(D) of the Code of Professional Responsibility which applies to attorneys who are associated or affiliated prohibits the inquiring attorney from representing the plaintiff while his associate serves as registered agent for service of process for the defendant.

This 16th day of December, 1982.

ETHICS COMMITTEE:

W. J. Flippin
Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD