Legal Ethics Opinion No. 1404

     Misconduct--Representing Client Within Bounds of the Law

You have presented a hypothetical situation in which a North
Carolina attorney, who represented a plaintiff, employed an
off-duty deputy sheriff to serve process on a defendant in a
diversity action.  In an attempt to serve additional papers on
the defendant, the attorney discovered that the off-duty officer
had been contacted by the defendant's attorney, a member of the
Virginia Bar.  The communication involved a payment of $250 to
the officer to refrain from effecting any further services upon
the defendant in the officer's off-duty capacity.

You have asked the committee to opine whether, under the facts of
the inquiry, it is unethical for an attorney to pay monies to
prevent service of papers on his client.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 1-102(A)(3) and DR 7-102(A)(1).  Disciplinary
Rule 1-102(A)(3) provides, in pertinent part, that a lawyer shall
not commit a deliberately wrongful act that reflects adversely on
the lawyer's fitness to practice law.  In addition, DR
7-102(A)(1) provides, in pertinent part, that in his
representation of a client, a lawyer shall not delay a trial or
take other action on behalf of his client when he knows or when
it is obvious that such action would serve merely to harass or
maliciously injure another.  

The committee directs your attention to Legal Ethics Opinion #305
in which the committee opined that a client liable for debt and
avoiding service of process, when his whereabouts are known to
the attorney, should be advised to either pay the debt or accept
service of process if a valid defense exists.  See also, West
Virginia State Bar Legal Ethics Opinion #85-3 (1985), ABA/BNA
Law. Man. on Prof. Conduct, 801:9006  (A lawyer may not interfere
with or delay the service of civil process.  Following the custom
or practice of bar members in a given locality is not a
substitute for adherence to standards set forth in the Code).     
The committee believes that by intentionally preventing service
of process on a client, an attorney is interfering with the
effectiveness of judicial procedure.  Paying monies to a process
server to refrain from effecting further services unduly delays
trial proceedings and such action may provide an unfair advantage
to one party.  These actions are equivalent to making a client
unavailable for litigation in derogation of the principle found
in Ethical Consideration 7-24.

Furthermore, the committee believes that this conduct is in
violation of DR 1-102(A)(3) in that it involves the commission of
a deliberately wrongful act which adversely reflects on a
lawyer's fitness to practice law.  The committee is of the
opinion that, by paying a process server, an attorney is engaging
in a practice designed to mislead others and attempting to
manipulate the judicial process.  

Although this conduct may not be expressly prohibited by the
established rules of procedure, violation of which would be perse improper under DR 7-105(C)(5), it is not necessarily
acceptable.  The Virginia Supreme Court has held that "...[m]ore
is expected of lawyers than mere compliance with the minimum
requirements [of the Code of Professional Responsibility]
...conduct may be unethical...even if it is not unlawful." 
Gunter v. Virginia State Bar, 238 Va. 6l7, 621 (l989). 

It is the opinion of the committee, therefore, that an attorney's
payment of monies to prevent service of papers on his client
constitutes a deliberately wrongful act that serves to delay and
interfere with the judicial process.

Committee Opinion 
March 12, 1991