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OBA Ethics Counsel

Ethics Opinion No. 171

Adopted September 16, 1953

QUERY

A lawyer has made the following inquiry:

"I own an interest in the Blank Insurance Agency, which is a local soliciting agency for the purpose of writing insurance of all kinds upon property, also bonds and liability insurance contracts. The agency solicits and writes insurance for several different companies. I have nothing to do with the management of the agency, as it is operated exclusively by Mr. C. of Blank, Oklahoma.

Recently a lawyer from Neosho, Missouri, employed me to assist him in the filing of a law suit against a resort on Grand Lake by reason of personal injuries which a client had received in a fall alleged to have been due to the negligence of the resort owners. The Insurance Company of Tulsa, Oklahoma, carried the liability insurance, which fact was ascertained by the Neosho lawyer through a check of the records by the G. R. D. A.

The Insurance Company upon learning that I had been employed in the case advised me that the liability policy had been written by the Blank Insurance Agency, and that since I was a partner in that venture. I should be disqualified in handling the suit in question. I would like to point out the only interest the Blank Insurance Agency has in the matter is the small commission they earned for the writing of the policy. They are in no wise obligated to the Insurance Company for any losses suffered.

I would appreciate being advised under these circumstances whether or not I am disqualified in handling this litigation."

ANSWER

Canon 6 reads in part

"It is unprofessional to represent conflicting interests, .... Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."

Since the lawyer does not represent the insurance company in the capacity of a lawyer under the above quoted portion of Canon 6, there is no conflict of interest and the lawyer is not disqualified from handling the litigation. To be a conflict of interest there must be a relationship of attorney and client. Here no relationship of attorney and client ever existed, and no disqualification can result.

As said in Ferguson v. Alexander, Tex. Civ. App., 122 S.W.2d 1079, at page 1081:

"The doctrine seems to be well settled that, 'The objection that an attorney is disqualified by reason of his representing adverse interests, is available only to those as to whom the attorney in question sustains or has sustained the relation of attorney and client * * *.' 7 C.J.S. Attorney and Client § 47, p. 826. To the same effect see: Harvey v. Harvey, 202 Wis. 553, 231 N.W. 580, 583; Michel v. McKenna, 199 Wis. 608, 227 N.W. 396: Van Veen v. Van Veen, 213 Iowa 323, 236 N.W. 1, 8, 238 N.W. 718."

See also Almon et al. v. American Carloading Corp., 312 Ill.App.2d 225, 38 N.E.2d 362.