Opinion 2007-5
(March 2007)

The inquirer represents a tenant in regard to potential claims by and cross-claims against the inquirer’s client’s landlord. The landlord is also represented. Negotiations were conducted between counsel which failed to result in a settlement, with each counsel stating his/her intention to bring litigation. While the inquirer was in the process of finalizing the inquirer's client's complaint, a complaint was filed by the landlord’s counsel, a copy of which was forwarded to the inquirer by facsimile.

The inquirer has never agreed to accept service of original process on behalf of the inquirer's client, and in fact, does not have permission to do so.

The inquirer's investigation reveals that opposing counsel has taken no action to cause service of the complaint upon the inquirer's client.

According to the letter of enclosure attaching the complaint, the landlord has limited his/her claims to those which would be covered by the tenant’s insurer. In the inquirer's professional opinion, the statute of limitations on those claims runs in May 2007. Further, in the inquirer's opinion, the filing of the complaint will not toll the statute because of opposing counsel’s failure to act to effectuate proper service. The inquirer has thoroughly discussed the situation with the inquirer's client who has declined to give the inquirer authority to accept service of the complaint or authority to advise opposing counsel of the inquirer’s lack of authority. The Committee presumes that the client's instructions to this effect are the product of informed consent as required by Pennsylvania Rule of Professional Conduct (the "Rules") 1.0(e). The discussion required under that Rule should include, but should not necessarily be limited to, the analysis of the advantages of obtaining a statute of limitations defense versus the liability and cost disadvantages of a potential default proceeding and the implication of either for the inquirer's client's insurer, which the inquirer indicates she has already contacted and asked to take over the defense of the lawsuit.

The inquirer seeks the Committee's advice as to whether she is required to inform opposing counsel that the inquirer is not authorized to accept service of the complaint.

Rule 4.1 governing truthfulness in statements to others provides in relevant part:

In the course of representing a client a lawyer shall not knowingly: ...

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Clearly, the choice as to whether to authorize one's lawyer to accept original process is simply a prerogative of the client which involves no criminal or fraudulent act. Further, subject to exceptions not relevant here, Rule 1.6 governing confidentiality, prohibits a lawyer from revealing information relating to the representation of a client. As a result, in the absence of permission from the client, the inquirer would commit a violation of Rule 1.6 by notifying opposing of the inquirer’s lack of authority to accept service.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.