Can a firm that earlier gave a buyer a title opinion later represent the lender foreclosing on that same property against the former client?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-85-9 asked whether a lawyer may represent a lending institution in a foreclosure action against a former client for whom the lawyer had been retained to render a title opinion on the same premises. The committee drew on its earlier Formal Opinions E-76-4 and E-85-8, which stated that a lawyer cannot represent a party opposing a former client in a related matter even if the lawyer acquired no knowledge in the former representation that might later disadvantage the former client (citing Marketti v. Fitzsimmons and Model Rule 1.9(a)). The concerns underlying the prohibition are the lawyer's continuing duty of loyalty after the relationship ends and the potential appearance of impropriety (former SCR 20.21(6), 20.23, and 20.48).
The committee explained that the issue turns on whether the subject matter of the former relationship is substantially related to the subject matter of the present representation, a determination that depends on the particular facts (citing ABA Informal Opinion 1322 and the Model Rule 1.9 comment). Applying that test, the committee concluded that a lawyer who was retained to render a title opinion for a purchaser may thereafter represent the lending institution in a foreclosure action in those situations where the issues raised in the title opinion are unrelated to the merits of the foreclosure.
Currency note
This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Duties to former clients and the substantial-relationship test are now governed by SCR 20:1.9 / Model Rule 1.9. 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 Treat this page as historical context, not current guidance.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 ever sue a former client?
A: The committee applied the substantial-relationship test: a lawyer may not oppose a former client in a matter substantially related to the former representation, but may do so where the matters are unrelated.
Q: Does it matter that the lawyer learned nothing harmful in the title work?
A: The committee noted that the prohibition can apply even if the lawyer acquired no harmful knowledge, because the concern is the continuing duty of loyalty; the controlling question is whether the matters are substantially related.
Q: So could the firm take the foreclosure here?
A: The committee concluded yes, in situations where the issues raised in the title opinion are unrelated to the merits of the foreclosure action.
Background and rules framework
The opinion interpreted the former Code's duties to former clients (SCR 20.21(6), 20.23, 20.48) and Model Rule 1.9(a), applying the substantial-relationship test to a firm that rendered a title opinion and later sought to act for the foreclosing lender. The analysis is now governed by SCR 20:1.9 / Model Rule 1.9 (duties to former clients).
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.21(6), 20.23, 20.48 / Model Rule 1.9 (duties to former clients) (former Code provisions)
Cases:
- Marketti v. Fitzsimmons, 373 F. Supp. 673 (W.D. Wis. 1974)
Other opinions cited:
- Wisconsin Formal Ops. E-76-4, E-85-8
- ABA Informal Opinion 1322 (March 31, 1985)
- Michigan Informal Opinion 211, 57 Mich. St. B.J. 320 (1978)
See also
- WI Ethics Op. E-87-3: Former House Counsel Against a Former Corporate Employer
- WI Ethics Op. E-89-4: Suing a Former Joint Client in Divorce
- WI Ethics Op. EF-20-02: Examining a Current or Former Client as an Adverse Witness
- WI Ethics Op. E-88-2: Successive Government Employment and Related Lawyers
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-9.pdf
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