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

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