Can a lawyer sue a corporation for personal-injury damages when the lawyer's associate is that corporation's registered agent for service of process?

Currency note

This opinion was issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

An attorney asked about representing a plaintiff in a personal-injury damages claim against a corporate defendant that the attorney's own associate had incorporated, where the associate also continued to serve as the corporation's registered agent for service of process.

The opinion framed two issues: whether the inquiring attorney had a continuing attorney-client relationship with the corporate defendant, and whether the interests of the inquiring attorney and the associate were "differing interests" under the Code of Professional Responsibility, which defines that term to include every interest that will adversely affect the judgment or loyalty of an attorney to a client, whether conflicting, inconsistent, diverse, or otherwise. The opinion found that the associate had continuing obligations and responsibilities to the corporate client by serving as its registered agent, and that because the inquiring attorney would need to serve process on the associate to institute the litigation, the interests of the two lawyers arose from substantially related matters and were diverse and differing.

The opinion concluded that the vicarious disqualification rule of Disciplinary Rule 5-105(D), which applies to associated or affiliated attorneys, prohibits the inquiring attorney from representing the plaintiff while the associate serves as the corporate defendant's registered agent for service of process.

Common questions

Q: Can a lawyer sue a corporation when the lawyer's law-firm associate is that corporation's registered agent?

A: No. The opinion holds "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."

Q: Why does the registered-agent role create a conflict?

A: Because it is a continuing obligation to the corporation. The opinion reasons that "the associate has continuing obligations and responsibilities to the corporate client by serving as its resident agent for service of process," and since the inquiring attorney would serve process on the associate to start the suit, "the interests of each arise from matters that are substantially related and are diverse and differing interests."

Background and rules framework

The opinion applied the Code of Professional Responsibility's definition of "differing interests" and the vicarious disqualification rule of Disciplinary Rule 5-105(D), which imputes a disqualifying conflict to associated or affiliated attorneys. The modern correlates are Model Rule 1.7 (conflicts of interest: current clients) and Model Rule 1.10 (imputation of conflicts of interest), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D) (vicarious disqualification), Tennessee Code of Professional Responsibility
• Model Rule 1.7 (conflicts of interest) and Model Rule 1.10 (imputation of conflicts), modern correlates

See also

• Tennessee Op. 83-F-41: County Attorney May Not Defend Criminal Cases Prosecuted by the County's Own Officers (same DR 5-105(D) vicarious disqualification rule)
• Tennessee Op. 87-F-111: Vicarious Disqualification of a District Attorney's Staff

Source

• Landing page: https://www.tbpr.org/ethic_opinions/82-f-38

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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