Can a lawyer file a lis pendens against a parcel of land when he knows the client has no lien on or valid claim to it, in a suit asserting no lien?

Plain-English summary

In a suit on an open account brought by a lawyer for a client, a lis pendens was filed against a parcel of land even though the pleadings asserted no claim of a lien and no attachment issued. The question was whether filing the lis pendens violated the canons.

The Committee said the question was difficult, both because it could not decide the scope of the lis pendens statute and because Texas had not adopted the part of A.B.A. Canon 15 defining the advocate's duty as doing everything permitted by law but acting wholly within the law. To give a helpful answer it assumed the attorney knew his client had no lien on or valid claim to the land and filed the lis pendens merely to cloud title. On that assumption, the attorney stepped outside the bounds of law by committing the intentional tort of abuse of process, citing Prosser on Torts (the Committee did not pass on the question of law), which would be unethical under A.B.A. Canon 15. The Committee read Texas Canon 27, which requires a member to decline to conduct a civil cause or make a defense intended merely to harass, injure, or work oppression, as requiring a lawyer to act within the bounds of the law, so the assumed conduct violated Canon 27. It added that even if no canon were violated and the conduct could not subject the lawyer to discipline under Article XII, Section 8 of the State Bar Rules, it still did not meet the general standards of professional responsibility. The Committee ruled 9-0.

Currency note

This opinion was issued in 1963, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a lawyer file a lis pendens to pressure a defendant when there is no lien claim?

A: Under this opinion, if the lawyer knows the client has no lien or valid claim to the land, filing a lis pendens merely to cloud title is improper and violates Canon 27.

Q: On what reasoning did the Committee reach that result?

A: It assumed the lawyer knew there was no valid claim and filed only to cloud title, treated that as the intentional tort of abuse of process taking him outside the bounds of law, and read Canon 27's bar on harassing or oppressive litigation to require acting within the law.

Q: Did the Committee decide the legal questions about lis pendens or abuse of process?

A: No. It expressly declined to decide the scope of the lis pendens statute or to pass on the abuse-of-process question of law, deciding the matter on an assumed set of facts.

Background and rules framework

The opinion interprets former Texas Canon 27, which required a lawyer to decline to conduct a civil cause intended merely to harass, injure, or oppress, and references A.B.A. Canon 15. The modern analogs are ABA Model Rule 3.1, on meritorious claims and contentions, and Model Rule 4.4, on respect for the rights of third persons.

Citations and references

Rules of Professional Conduct:

• MR 3.1 (meritorious claims and contentions), as the modern analog
• MR 4.4 (respect for rights of third persons), as the modern analog
• Texas Canon 27 (former canon), and A.B.A. Canon 15 referenced

Other authorities:

• Prosser, Torts pp. 667-669, Sec. 100 (2nd Ed.), on abuse of process
• 39 Texas L. Rev. 391
• Article XII, Section 8, State Bar Rules

See also

• TX Ethics Op. 278: Prosecutor's Post-Acquittal Letters to the Jurors
• TX Ethics Op. 281: Delinquent-Tax Attorney Representing a Defendant in His Own Tax Suit
• TX Ethics Op. 279: Collection Letter Enclosing a Copy of a Petition Prepared for Filing

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-271/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_271.pdf

Original opinion text

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

QUESTION PRESENTED

In connection with a suit on an open account brought by a member for a client, a lis pendens was filed. The pleadings in the case assert no claim of a lien, and no attachment of any kind was issued. Does this action violate the Canons of Ethics?

18 Baylor L. Rev. 344 (1966)

JUSTIFIABLE AND UNJUSTIFIABLE LITIGATION
If a member knows that, under the law, his client has no lien on or valid claim to a certain parcel of land, it is improper for him to file a lis pendens merely to cloud title to the land in question.

Canon 27.

This question is difficult for two reasons: (1) The committee cannot decide the scope and extent of the lis pendens statute; and, in order to render a helpful opinion, it must be assumed that the attorney knew that, under the law, his client had no lien on the land in question or had no valid claim to the land in question and that he filed lis pendens merely to cloud title (which may or may not be the actual situation inquired about); and (2) Texas, unfortunately, has not yet adopted that portion of the A.B.A. Canon No. 15 which in effect defines the advocate's duty to client as a duty to do everything which is permitted by law but to act wholly within the law.

Based on the arbitrary factual assumption made above, it appears that the attorney stepped outside the bounds of law by committing the intentional tort of abuse of process. See Prosser, Torts pp 667-669, Sec. 100 (2nd Ed.) (the committee does not pass on this question of law). If so, his conduct would be unethical under A.B.A. Canon 15. And see 39 Texas L. Rev. 391. Such conduct should be unethical in Texas though, as stated, the Texas canons have no provisions corresponding to the above mentioned portion of A.B.A. Canon 15. Texas Canon 27 provides that "a member must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass, or to injure the opposite party, or to work oppression or wrong." If this can be interpreted as meaning that the lawyer, in conducting litigation, must act within the bounds of the law (and the committee believes it can), the conduct in question violates Texas Canon 27 and thus does not conform to the minimum requirements of professional responsibility. But, even if the conduct in question violates no canon and cannot well be said to be prohibited by the general provisions of Art. XII, Sec. 8, State Bar Rules, and therefore could not subject the lawyer to disciplinary action, such conduct does not measure up to the general standards of professional responsibility with which all Texas lawyers should comply, although not forced to do so. (9-0.)

Tex. Comm. On Professional Ethics, Op. 271 (1963)