After closing a mortgage for the borrower, can the same lawyer later update the title, file a lis pendens, or handle the foreclosure for the lender?

Plain-English summary

A lawyer had closed a mortgage. The inquiry asked whether the same lawyer could later, for the lender contemplating foreclosure, (1) update the title, (2) update the title and file a lis pendens, and (3) represent the lender in a foreclosure action on the loan.

The committee framed the answer around who the lawyer had represented at the closing, and analyzed the case where the lawyer had represented the borrower or all parties. On those facts it concluded that updating the title would not violate Rule 1.9, because the lawyer would merely be reporting matters of public record, revealing or misusing no confidences and taking no position adverse to the former client. Filing a lis pendens or handling the foreclosure, however, would directly contravene Rule 1.9: both require interpreting and enforcing the loan documents against the former borrower, which is a position adverse to a former client in a substantially related matter, and the foreclosure and the loan transaction had already been treated as substantially related (citing SC Bar Advisory Opinion 84-24 (9/86)). The committee reasoned that representing a client at closing necessarily involves reviewing the loan documents and advising on the client's obligations, so later pursuing foreclosure against that client breaches both confidentiality concerns and the duty of loyalty. The only way the lawyer could file the lis pendens or handle the foreclosure was to obtain the former client's consent after consultation under Rule 1.9(a).

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the closing lawyer update the title for the lender?

A: The committee said yes, assuming the lawyer had represented the borrower or all parties. Updating the title only reports public record, so it revealed no confidences and took no adverse position under Rule 1.9.

Q: Could the lawyer file a lis pendens or handle the foreclosure?

A: The committee said not without the former client's consent after consultation. Both require interpreting and enforcing the loan documents against the former borrower, a position adverse in a substantially related matter under Rule 1.9.

Q: Why are the closing and the foreclosure "substantially related"?

A: The committee said representing a client at closing involves reviewing the loan documents and advising on the client's obligations under them, so foreclosing on that loan later is substantially related to the closing.

Background and rules framework

The opinion applied Rule 1.9(a) (duties to former clients), corresponding to Model Rule 1.9, quoting the bar on representing a person in a substantially related matter materially adverse to a former client absent consent after consultation. It drew on the Rule 1.9 comments, Hazard & Hodes' The Law of Lawyering (1986), and the ABA/BNA Lawyers' Manual on Professional Conduct for the loyalty and confidentiality concerns.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(a) / Model Rule 1.9: a lawyer may not represent another in the same or a substantially related matter materially adverse to a former client without the former client's consent after consultation.

Other opinions and authorities cited:

• SC Bar Advisory Opinion 84-24 (9/86): foreclosure and the underlying loan transaction are substantially related.
• G. Hazard & W. Hodes, The Law of Lawyering (1986); ABA/BNA Lawyers' Manual on Professional Conduct, 51:202.

See also

• SC Bar Ethics Op. 90-20: A City Councilman's Firm and Conflicts
• SC Bar Ethics Op. 90-26: Government Board Member Representing a Juvenile

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-22/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-22

An attorney has closed a mortgage.

Questions:

1. May this attorney later update the title for the lender, who is considering foreclosure?
2. May this attorney update the title and file a lis pendens?
3. May this attorney represent the lender in a foreclosure action upon the loan?

Summary:
To properly assess whether there is a conflict it would be necessary to determine who the lawyer represented at the closing. If the lawyer represented the borrower or all parties then the following would apply:

(1) There would be no conflict of interest in the lawyer updating the title as he would merely be reporting what is a matter of public record. Therefore, there would be no danger of using or revealing any confidences obtained during the prior representation, which is forbidden by Rule 1.9. Neither would there be a violation of loyalty to the former client as the lawyer would not be taking an adverse position to the former client. Rule 1.9.

(2) The lawyer may not file a lis pendens, unless the former client consents after consultation as this would necessitate taking a position adverse to a former client in a related or substantially related transaction. Rule 1.9. The reason for this is that the lawyer would have to interpret the loan documents for the lender to ascertain if there had been a breach by the borrower before a lis pendens could be properly filed.

(3) The lawyer may not handle the foreclosure for the lender for the same reasons enumerated above unless the former client consents after consultation.

Opinion:
Rule 1.9 (a) states: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest are materially adverse to the interest of the former client unless the former client consents after consultation. Rule 1.9 (a). The comments to Rule 1.9 state, "When a lawyer has been directly involved in a specific transaction subsequent representation of other clients with materially adverse interests is clearly prohibited." "Rule 1.9 concerns loyalty to the client in cases of serial representation; it's protections are for the benefit of the former clients." G. Hazard and W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (1986) at 174.

"The concerns underlying this proscription are the potential for violation of the lawyers duty of loyalty, as well as the risks that confidential information gained in a prior representation will be used to the disadvantage of the former client." ABA/BNA Lawyers Manual on Professional Conduct, 51:202.

For the lawyer to update the title for the lender after he has represented the borrower in the closing would not violate the concerns intended to be protected by Rule 1.9 in that no confidences would be revealed or misused; nor would the lawyer be taking a position adverse to the former client. The lawyer would merely be reporting that which is already a matter of public record.

However, to file a lis pendens or to handle the foreclosure for the lender would be in direct contravention of Rule 1.9. To do either of these activities would be to take a position adverse to the former client as such activity would necessitate the interpretation of and the enforcement of the loan documents against the former client. It has already been stated that the foreclosure and the loan transaction are substantially related. (SC Bar Advisory Opinion 84-24 ((9/86)). Representing the client at a closing necessitates a review of the loan documents and advice to a client as to his responsibilities and liabilities thereunder. For a lawyer later to pursue the foreclosure against the client would be taking a position adverse to a former client in a substantially related matter and would also be a violation of loyalty.

The only way that the lawyer could handle the foreclosure or file a lis pendens would be to obtain the consent of the client after consultation. Rule 1.9 (a).

It is recommended that one also refer to the text of SC Bar Advisory Opinion 84-24 (9/86). (See Comment to Rule 1.9 - "Adverse Positions").