USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1559

ONE NATIONAL BANK,

Plaintiff - Appellant,

v.

JOSEPH M. ANTONELLIS,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Circuit Judge,

_____________

and Skinner,* Senior District Judge.

_____________________

_____________________

Dale R. Harger,
______________

with whom Mountain, Dearborn & Whiting and

_____________________________

Howard J. Potash were on brief for appellant.

________________
George A. Berman,
_________________
Riedel and
______

with

whom Cynthia C. Smith, Susan S.

__________________ _________

Posternak, Blankstein & Lund

_______________________________

were

on

brief

for

appellee.

____________________

April 3, 1996
____________________

____________________

Of the District of Massachusetts, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

In

this legal

malpractice

action,

appellant-plaintiff One

National

Bank

("ONB" or

"One

National") appeals the district court's entry of summary judgment

for appellee-defendant Joseph M. Antonellis ("Antonellis").

principal

issues

nonclient can
_________

are

raised

on

maintain an action

attorney negligently certifies to

good,

and

the mortgagee

mortgage, and all

action

for negligent

whether

against an attorney

when that

a mortgagee that the

title is

assigns

the title

certificate,

nonclient in good

the mortgagee's assignee can maintain

title

certification

Massachusetts title certification statute,

70.

first,

associated documents to the

faith; and second, whether

an

then

appeal:

Two

the

Mass. Gen. L. ch. 93,

For the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

pursuant to

In

late 1987,

$100,000 to Thomas J.

Milford Savings

Bank ("Milford")

lent

Milani and Thomas Chamberlin, individually

and as trustees of T & T Realty Trust, and to Jaqueline Wojnowski

and Cathy A.

Milani, individually.

Bellingham, Massachusetts

mortgage").

Cathy

A.

A mortgage

served as security

on property

in

(the "first Milani

A few months later, in April of 1988, Thomas J. and

Milani

mortgage

on

$150,000

loan

represented in

(together,

the same

(the

the

"Milanis")

property, also

"second

the 1988

to

executed

Milford, to

Milani mortgage").

transaction by appellee

-2-

another

secure a

Milford

was

Antonellis, an

attorney.

Some

issued

months later,

certification

mortgagors

encumbrances,

held

of

title

and the

to

on

August

title,

which

the

property

mortgagee

[held] a

record first mortgage to the property."2

the first Milani

mortgage.

10, 1988,1

certified

"free

good and

No mention

The certification

Antonellis

that

from

the

all

sufficient

was made of

also included

disclaimer,

which stated:

FOR

INSURANCE

TITLE

PERMISSION OF

"THIS

PURPOSES

CERTIFICATE IS NOT

WITHOUT

THE

JOSEPH M. ANTONELLIS, ESQUIRE."

TO BE USED

EXPRESS

WRITTEN

While Antonellis

was preparing the title certificate, according to his deposition,

a Milford bank

official called

Milani mortgage

was executed.

of

the

first

subordinated to

Milani mortgage,

him around the

The

and

time the

second

official informed Antonellis

stated

that

it would

the April 1988 second Milani mortgage.

be

However,

it appears that Milford never subordinated the mortgage.

In the meantime, ONB purchased a package of eighty-five

adjustable rate

one-year first mortgages from

2, 1988, including the second Milani

an attorney

to check

mortgage.

Milford on August

ONB did not hire

these mortgages' certifications

of title.

____________________

The district court noted that

several months to

Antonellis claimed that it took

prepare the formal certificate

because he was

too busy.

Antonellis' certification is made up of two documents:

entitled
second

"Certification of
form

Mortgagee
document

entitled

Title,"

"Attorney's

dated May

Certification

and Mortgagor[s]," dated August 10,

was

attached

to

the

reference.

-3-

3,

latter

and

a form

1988, and
of

1988.

Title

to

The former

incorporated

by

Subsequently,

Milford was

declared insolvent

1990, and the

Milanis defaulted

in early

on both their

mortgages.

Federal Deposit Insurance Corporation ("FDIC")

and

was

appointed

its

receiver.

The

July of

The

took over Milford

FDIC

repudiated

the

One

National

sued

The district

court

agreement between Milford and ONB.

Faced

Antonellis,

granted

National

the

with

this

FDIC,

and the

situation,

Milanis.

summary judgment to defendants Antonellis and FDIC.

dismissed

its action

against

the

Milanis, and

One

here

appeals the summary judgment only as to appellee Antonellis.

DISCUSSION
DISCUSSION

After reciting the standard

of review, we address each

issue in turn.

A.

Standard of Review

A.

Standard of Review
__________________

This court reviews a

judgment de novo.
__ ____

See, e.g.,
___ ____

district court's grant of summary

Rhode Island Depositors Economic

_________________________________

Protection Corp. v. Hayes, 64 F.3d 22, 25 (1st Cir. 1995).

________________
_____

presented

with

'pierce the

a motion

for

summary

"When

judgment, courts

boilerplate of the pleadings and

should

assay the parties'

proof in order to determine whether trial is actually required.'"

Rivera-Cotto v. Rivera, 38 F.3d 611, 613 (1st Cir. 1994) (quoting

____________
______

Wynne v. Tufts Univ. Sch. of Medicine, 976

_____
______________________________

Cir.

1992),

cert.
_____

denied,
______

507

U.S.

F.2d 791, 794

1030 (1993)).

(1st

Summary

judgment is therefore appropriate "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

-4-

any material

fact and

judgment as a matter

material

if

outcome of the

that the moving

of law."

it "carries

party is

entitled to

Fed. R. Civ. P. 56(c).

with it

the

potential to

suit under the applicable law."

v. Tirado-Delgado, 990 F.2d 701, 703

______________

A fact is

affect the

Nereida-Gonz lez
________________

(1st Cir. 1993).

We review

the

record

in

the

light

most

favorable

indulging all reasonable inferences in that

e.g., Flanders & Medeiros, Inc.

____ __________________________

(1st

Cir. 1995);

Corp.,
_____

any

the

nonmovant,

party's favor.

v. Bogosian, 65
________

See,
___

F.3d 198,

201

Rhode Island Depositors Economic Protection

______________________________________________

64 F.3d at 25.

facts that

to

Here,

could affect

because the parties do not dispute

the suit's

outcome, our

confines itself to whether Antonellis is entitled to

analysis

judgment as

a matter of law.

B.
B.

Both

applies.

"[w]here the

Applicable Law
Applicable Law
______________

parties share

Accordingly, we

parties agree

the

view

will apply

that Massachusetts

that state's

what substantive law

law

law, since

controls in

diversity case,

concession."

we can -- and ordinarily should -- accept such a

Moores v.
______

Greenberg, 834 F.2d 1105, 1107

_________

n.2 (1st

Cir. 1987); see Sheinkopf v. Stone, 927 F.2d 1259, 1264 (1st Cir.
___ _________
_____

1991) (accepting the parties'

contention that Massachusetts

law

applied to allegation of implied attorney-client relationship).

C.
C.

One National

failure

to

certificate.

record

See
___

the

The Negligence Claim

The Negligence Claim
____________________

claims Antonellis is liable to it for his

first

Milani

Republic Oil Corp.

___________________

-5-

mortgage

on

v. Danziger,
________

the

title

400 N.E.2d

1315, 1317 (Mass. App. Ct. 1980) (finding attorney negligent

failure

to

interest

disclose

in a

existence

certification of

attorney-client

Antonellis

the

relationship

owed ONB must

of

title).

between

be based

perfected

security

Because there

the

parties,

on Massachusetts'

for

any

was no

duty

theory of

foreseeable reliance, which states that a lawyer may be liable to

a non-client.3

not

owe

One

As

discussed below, we find that

National a

reliance exception.

duty

of

Therefore, we

care

Antonellis did

under the

foreseeable

will not address the parties'

dispute as to

e.g., Lamare
____ ______

whether Antonellis

v. Brisbanes, 636
_________

(affirming summary

had no duty to

was in fact

negligent.

N.E.2d 218, 219-20

judgment in favor of

(Mass. 1994)

attorney where attorney

third party nonclient); Logotheti v.

_________

N.E.2d

1015, 1018

(Mass. 1993)

failed

where attorney

had

no

(finding that

duty

of

See,
___

care

Gordon, 607
______

negligence claim

to

third

party

nonclient).

1.
1.

The Foreseeable Reliance Exception

The Foreseeable Reliance Exception
__________________________________

In order to

sustain a claim of

legal malpractice, ONB

must show that Antonellis owed One National a duty of

Spinner
_______

v. Nutt,
____

Arter, 622 N.E.2d

_____

631 N.E.2d

542, 544

604, 608 (Mass. 1993).

(Mass. 1994);

The issue

care.

See
___

DaRoza v.
______

of whether

such

a duty

exists is

a question

of law.

Id.
___

at 381.

The

____________________

The parties

do not argue on

appeal that there was

express or implied attorney-client relationship.

927 F.2d at 1265-66;

either an

See Sheinkopf,
___ _________

Falherty v. Baybank Merrimack Valley, N.A.,

________
______________________________

808 F. Supp. 55, 60 (D. Mass. 1992); DeVaux v. American Home Ins.
______
__________________
Co., 444 N.E.2d
___
solely

355, 357

on whether

(Mass. 1983).

Antonellis'

Accordingly, we

liability extends

to ONB

focus

under

Massachusetts' theory of liabilitybased on foreseeable reliance.

-6-

general

rule is

that

"an attorney's

arises out of a duty owed to

liability for

a client."

Norman v. Brown, Todd &

______
_____________

Heyburn,
_______

693 F. Supp. 1259, 1265 (D. Mass. 1988).

case law

has crafted

an exception

not

'absolutely

insulated

Spinner, 631 N.E.2d at

_______

from

Massachusetts

to this general

based on foreseeable reliance, however,

negligence

proposition

so that "an attorney

liability

to

is

nonclients.'"

544 (quoting Page v. Frazier,

____
_______

445 N.E.2d

148, 154 (Mass. 1983)).

As defined

in the

case law, the

foreseeable reliance

exception demands that two requirements be met.

only owed to nonclients "who the attorney

services rendered."

First, a duty is

knows will rely on the

Robertson v. Gaston Snow & Ely Bartlett, 536

_________
__________________________

N.E.2d 334, 350 (Mass.),

cert. denied, 493 U.S. 894

_____ ______

(1989); see
___

Spinner, 631 N.E.2d at 544; DaRoza, 622 N.E.2d at 608.

_______
______

enough

shown

that a plaintiff claims

that

the

attorney

should reasonably

nonclient will

rely upon him

n.7.

"the court will

Second,

actual reliance:

"[i]t must be

foresee

for legal services."

not impose a

It is not

that

Id.
___

the

at 608

duty of reasonable

care on an attorney if such an independent duty would potentially

conflict with

Lamare,
______

the duty the attorney owes

636 N.E.2d

at 219;

see Robertson,
___ _________

Kirkland Constr. Co. v. James,

_____________________
_____

Ct.

1995).

question" as

Here,

to the

to his or her client."

the district

536 N.E.2d

658 N.E.2d 699,

court

first, foreseeable

701 (Mass. App.

found there

reliance

at 350;

was

prong of

"some

the

test,

but

that

there

potentially conflicting

was

"no

duties.

question"

(District

that

there

were

Court Memorandum and

-7-

Decision, p. 15).

court

below

that

Reviewing the issue de novo, we agree with the

__ ____

there

was

potential

conflict

between

Antonellis' duty to Milford and his alleged duty to One National,

so

that

ONB

cannot

meet

the

test's

second

requirement.

Accordingly,

we need

not

determine whether

Antonellis

should

reasonably have foreseen ONB's reliance on the title certificate.

2.
2.

Potential Conflict
Potential Conflict
__________________

The conflict requirement of the

test

does not

demand that

an actual

reasonably foreseeable

conflict arise.

Rather,

Massachusetts and federal case law has consistently found that

potential

conflict between

client and the

alleged duty

an

attorney's duty

to the nonclient

defeat the nonclient's malpractice claim.

for conflict

Spinner,
_______

MAP,

that prevents the

to

his or

is sufficient

her

to

"[I]t is the potential

imposition of

a duty .

. .

."

631 N.E.2d at 545; see Schlecht v. Smith, No. 92-30099___ ________

_____

1994 WL 621594 at * 5 (D.

Mass. 1994); Page, 445 N.E.2d at

____

153; see, e.g., DaRoza, 622 N.E.2d at 608 (employee's interest in

___ ____ ______

worker's

compensation

insurer's).

duty to

suit

could

Thus, any potential

Milford and

his

have

differed

from

conflicts between

alleged duty

to ONB

client

Antonellis'

will defeat

One

National's claim.

Before addressing the potential conflicts, we note that

the facts in

from

the present

the Massachusetts

case differ in

cases

foreseeable

reliance

transaction

is generally

we have

exception.

at

In

issue, the

-8-

several material

ways

found

that address

the

those

cases,

one

only

potential third

party

nonclient's identity is known from the start of the

transaction,

and often, the nonclient and client are in an adversary position.

See,
___

e.g., Page, 445 N.E.2d

____ ____

699-700.

Here, there

certificate

of

identity

that

was

were two

of title prepared

second Milani

sale

at 149-50; Kirkland,
________

mortgage --

mortgage.

not

known

rendered, and the nonclient

independent transactions:

for the first

was relied on

Also, the

until

658 N.E.2d at

after

the

transaction -- the

in the second

third

the

party

legal

-- the

nonclient's

service

is attempting to stand in

was

the shoes

of the client as mortgagor in

adverse

position

ourselves

as buyer

facing

the

the first transaction, not in

in the

dilemma

of

second.

having

In short,

to

its

we find

apply the

fact-

dependant Massachusetts foreseeable reliance test to factors that

have not yet come before the state courts.

One National argues that

conflict

between

Antonellis' duty

allegedly owed ONB.

It

with respect to

to Milford

and the

Antonellis owed Milford:

report accurately the state of

the 1988 mortgage.

conflict with

It argues

each other

if they

no

duty he

asserts that the duty on which

its claim is the same duty

search properly and to

in this context there was

it rests

the duty to

the title

that two

duties

cannot

be in

are identical.

Unlike

in Page, ONB argues, where the attorney faced a potential

____

conflict

between duties

nonclient because

to the

mortgagee client

and mortgagor

they may have had different concerns about the

state of the title, Page, 445 N.E.2d at 153, both ONB and Milford
____

simply wanted an accurate certificate of title.

That is true, as

-9-

far as it goes.

However,

One National

misconstrues the

scope of

the

duty to

the client that

"[A]n isolated

Milford

instance identity

have focused

of interests" between

does not suffice to impose duty on Antonellis.

631 N.E.2d at 545.

may

Massachusetts courts

not

be

appropriate

Malpractice

ONB and

Spinner,
_______

"Although the particular activity in question

adverse,

and

may

inquiry concerns

representation."

on.

1 Ronald E.

7.11,

at

actually

the

be

beneficial,

purpose of

the entire

Mallen & Jeffrey

387 (3d

ed.

1989).

the

legal

M. Smith, Legal

Antonellis

owed

Milford not only an obligation to report on the title, but also a

concurrent

federal

exception

duty

courts

of

confidentiality.

that

have

applied

The

the

Massachusetts

foreseeable

and

reliance

have repeatedly drawn on the importance of the duty of

confidentiality in

finding the potential for a conflict, so that

"an attorney's duty to third parties is circumscribed and limited

by

the

law

conduct."

and

the

disciplinary

Schlecht, 1994 WL 621594

________

rules

governing

attorney

at * 5; see, e.g., Austin v.

___ ____ ______

Bradley, Barry & Tarlow, P.C., 836

_______________________________

F. Supp.

36, 38

(D. Mass.

1993); Logotheti, 607 N.E.2d at 1018; Spinner, 631 N.E.2d at 545;

_________
_______

see also
________

Mallen & Smith,

supra, at
_____

considerations against implying a

so would detract from the

7.11 at 388

("The policy

duty are strongest where doing

attorney's ethical obligations to

the

client.").

In Logotheti
_________

framed the

and

attorney's duty

Spinner the
_______

Supreme Judicial

of confidentiality in

-10-

terms of

Court

the

Massachusetts disciplinary rules'

preserve

the secrets

and confidences

representing a client."

Rule 3:07, Canon

Secrets

of a

621594

gained in

S.J.C. Rule

3:07,

impose on a

Canon 7,

of

see S.J.C.
___

("Preservation of Confidences

Client Zealously"); see also

________

at * 5 ("To

attorney

the course

Spinner, 631 N.E.2d at 545;

_______

4, DR 4-101

Client");

("Representing a

requirement "that an

DR

and

7-101

Schlecht, 1994 WL
________

borrower/mortgagor's attorney a

duty to

the lender/mortgagee can create

to

disciplinary

the

rules which

Logotheti, 607 N.E.2d at

_________

attorney

conduct.");

1018; Harris v. Magri, 656

______
_____

N.E.2d 585,

586 n.4 (Mass. App. Ct. 1995).

more general

Supp.

to

38 (citing

govern

Other cases posit the obligation

of confidentiality in

at

situations antithetical

terms.

attorney's

See
___

Austin, 836
______

F.

"concurrent obligation

of

confidentiality" to his client).

Here,

contrary

to

ONB's

claim,

there

is

clear

potential conflict rooted in Antonellis' duty of confidentiality.

Milford knew

reported.

shoulders,

error.

that there was

Given

this, if we place a duty

we put

That

a first mortgage that

on him

mistake was

the obligation

made

in

the

had not been

to ONB on Antonellis'

to inform

it of

first transaction,

his

transaction to which One

National was not a party.

Antonellis'

purported

therefore

the

duty

transaction,

Hendrickson
___________

(holding

title

to

ONB

where that

v.

Sears,
_____

that cause

accrues

upon

of

bank

310

arose

actually

N.E.2d

action for

discovery).

-11-

131,

only

was

135-36

in

second

party.

(Mass.

Cf.
___

1974)

negligent certification

Ostensibly,

having

of

already

produced the

certificate, his

duty

would be

to check

whether

Milford subordinated the

debt, remind

it of his

Milford

it, to do so

himself by informing ONB.

did not rectify

Clearly,

would

if

at that point a conflict in the duty of confidentiality

arise:

if

his

client

information and Antonellis did

his duty of confidentiality.

4-101(B)

error, and

(stating that

"a

decided

not

to

so in its stead, he

on

lawyer shall

not

knowingly .

his client.").

pass on the

breach his duty

information, he would

him in that position.

the

would breach

See S.J.C. Rule 3:07, Canon

___

[r]eveal a confidence or secret of

refuse to place

pass

4, DR

If he did not

to ONB.

Therefore, we find

We

that

the potential for conflicts in Antonellis' duty to Milford and to

ONB bars

liability in this case.4

Cf. Austin, 836

___ ______

F. Supp. at

____________________

The court below relied

there was

in finding that

a clear potential for conflict in this case.

that ONB and

Milford were in the adverse positions

seller in August 1988.

on

on a different basis

It found

of buyer and

Since the courts have found that reliance

an adverse party's legal counsel in a business transaction is

unreasonable as a matter of law, see Schlecht, 1994 WL 621594

___ ________
* 7; Robertson,
_________
55, the

536 N.E.2d at 350 n.6; Page,

____

445 N.E.2d at 154-

court found that there was a potential for conflict.

found that Antonellis

would be under

at

different pressures if

It

he

were representing both Milford and ONB than if he represented ONB

alone.

The court also commented on One National's failure to use

its own counsel in the sales transaction.

One National

contests that Antonellis was

party adverse to it, because he did

ONB-Milford
mortgage.

sales transaction,
When

he rendered

but
the

not representing a

not represent Milford in the

only in

the second

title certificate

at

Milani

issue,

Milford and ONB were not yet adverse parties.

Because

we

conflicts prong
grounds,

find

that

of the

One

National

fails

the

foreseeable reliance exception

we do not address

here whether the

potential

on other

district court was

correct in finding that

ONB sought to rely on

the legal counsel

of an adverse party.

-12-

38 (refusing to infer a duty to disclose a client's insolvency to

nonclient

investors

where

duty would

directly

conflict

with

concurrent obligation of confidentiality to client).

ONB contests that potential conflicts would

if

Antonellis

had

represented

Milford as

the

only arise

seller

of the

mortgages

in

the

second

transaction,

Antonellis had intended to deceive ONB.

these additional

arise.

first

transaction

replacement in the

--

if

Milford

We disagree.

facts are necessary for

First, ONB is relying

and

and

Neither of

potential conflicts to

on the work Antonellis did for the

whether

we

consider

first transaction

ONB

or as a

as

Milford's

party adverse

Milford in the second is irrelevant to this analysis.

to

Second, as

the district court noted, there is no allegation that Milford and

Antonellis colluded to deceive

Milford

could fail to inform

ONB.

There are many

ONB of the

reasons why

faulty title.

Indeed,

even if it did tell ONB about the problem, Antonellis could still

face

any

error

a conflict in his

duty of confidentiality

misrepresentations about the

was made,

i.e. that it
____

if Milford made

circumstances under

too knew

of the

which the

omission of the

first

Milani mortgage.

Thus

we do not

accept ONB's contention

that there was no potential conflict.

3.
3.

Kirkland Construction Co. v. James

Kirkland Construction Co. v. James
_________________________
_____

One

National points

to Kirkland Construction Co.

__________________________

v.

James, 658 N.E.2d 699 (Mass. App. Ct. 1995), the Appeals Court of
_____

Massachusetts'

reliance

most recent

exception to

the

decision addressing

no duty

-13-

rule,

the foreseeable

as support

for

its

position.

There, the court faced a challenge to a lower

court's

grant of a 12(b)(6) motion under the Massachusetts Rules of Civil

Procedure.

Kirkland,

contractor, was

retail space for an office supply firm.

letter from

his

performed under the

pay.

Kirkland sued James and

Id.
___

at

James, assuring that

supply firm failed

the partners of his

to

law firm for

court granted the defendants' 12(b)(6)

699-700.

Kirkland was entitled to

However, after Kirkland had

contract, the office

negligence, and the lower

motion.

work.

to renovate

He sought and received a

the firm's attorney, defendant

client could pay for the

asked

The

court reversed,

finding

seek relief from the attorneys

that

under a

theory of foreseeable reliance.

An

examination of

Id. at 701.
___

the

factors the

court weighed

in

Kirkland in comparison with the facts of the instant case reveals

________

that the circumstances here are sufficiently different from those

in

Kirkland that
________

we

should affirm

the court

benefit

from

the letter:

readily

found where, as here, the service is intended to benefit

client as

well

as

the

Restatement (Second) of Torts

letter,

contained

who was

independent

third party."

intended

its

Kirkland
________

"an

on

In

analysis, the

the

Court focused

below.

duty will

Id.
___

552(2)(a) (1977)).

to

be more

(citing

the

Examining the

which was addressed to Kirkland, the court noted that it

unqualified

representations

and

that

the

typical

hedging phrases were absent.

616 F. Supp. 1381,

Id. at 702; cf. Jurgens v. Abraham,

___
___ _______
_______

1386 (D. Mass. 1985) (holding

that nonclient

stated a claim where attorney told him he attached a sum of money

-14-

for

nonclient's

certificate

of

benefit).

title

representations were made

was

That

not

is

not

addressed

true

here:

to

in boilerplate language with

ONB,

the

the

standard

exceptions

listed,

and

there

was an

express

disclaimer,

in

capital letters, on one of the two pages.

The Kirkland court also

________

listed a series of allegations

in the plaintiff's complaint that, if proven, would be "the stuff

of liability."

658 N.E.2d at 701.

allege that the representations

plaintiffs make the

red

were false.

herring, because

letter

arrangements

stated

to

The fact

same allegation, however,

if

there were

there would be no basis for suit.

the

First, both Kirkland and ONB

that

ensure

the

no false

that both

is somewhat of

representations,

Second, Kirkland alleged

office

payment,

and

supply

that

firm

the

had

that

made

attorneys'

"objective was to induce Kirkland to enter into a contract."

Id.
___

We cannot say that Antonellis' objective was to induce ONB into a

contract, since ONB was not a party to the

the certificate

of title

complaint maintained

Kirkland

would

infer

rely

that

was performed.5

Third,

that the attorneys "knew

on

reliance was reasonable.

if we

transaction for which

the

and intended that

representations,"

Id.
___

Again, ONB was

Antonellis should

have

the Kirkland
________

and

that

not a party.

suspected

the

Even

that

the

____________________

Nor can ONB argue that the purpose of Antonellis' work was

induce

the Milanis

into

the mortgage,

unreasonable for a mortgagee

because

to rely on mortgagor's

mortgagee and mortgagor are adverse parties.

See
___

WL

at

621594

at

5;

by law

Lamare,
______

636

N.E.2d

Pucciarelli, 441 N.E.2d 1035, 1040 (Mass. 1982).

___________

-15-

it

to

is

counsel, as

Schlecht, 1994
________
218;

Beecy
_____

v.

mortgage would be

and

sold, however, the

nonclient here

are

Kirkland,
________

where

plaintiff

nonclient

Finally, Kirkland

the

nowhere

letter

and

near

at

as

issue

expressly

alleged that

ties between the

close

was

certificate

of

addressed

it was seeking

title

is a

those

in

to

the

addressed

its

legal

concerns.

information, not

legal advice, from the lawyers about their client.

Antonellis'

as

attorney

Id.
___

opinion

Whether

proves

irrelevant, however,

"the

since the

Kirkland court also

________

stated that

likelihood of liability would not be greater" if the letter

were an opinion letter.

In

Antonellis'

the

duty to

light

his

Id. at 702 n.7.

___

of

the

client and

potential

his

conflict

alleged duty

between

to

One

National, and the differences between the factors that led to the

court's reversal in Kirkland

________

we

find

upon

de novo
__ ____

and the facts of the

review

that

as

instant case,

matter of

law

One

National's legal malpractice claim fails the foreseeable reliance

test.

As a consequence,

meet the foreseeability

we need not determine

requirement.

See DaRoza,
___ ______

whether ONB can

622 N.E.2d at

609.

D.

Assignability of Certificate of Title

D.

One

proceed

Assignability of Certificate of Title

_____________________________________

National contends

against

certificate.6

Antonellis

Specifically,

that it

acquired the

through

assignment

it states

that

right to

of

because

the

Milford

____________________

6
of

In

fact, it proves difficult to determine

ONB's

assignment

argument.

the intended scope

Before the

court

below,

it

contended that as assignee of the mortgage it "had all the rights

of Milford Savings Bank
recorded

. . which

once the mortgage was assigned

would

include

-16-

all

rights

and duly

against

the

entered into a contract

with Antonellis for the issuance

of the

title certificate and then assigned the fruits of the contract to

ONB, ONB has the right

of

the

issue,

it

to proceed against Antonellis.

claims,

transferrable by Milford to

is

ONB.

whether

the

was

assigned the

certificate that

attorney-client relationship.

reliance

by a

although

the

hold

insurer, not

transferability

apparently not

would

title

Noting

of

the assignment

valid.

was

that we

client merely because

was

the product

of the

that the disclaimer barred

assignment,

a certificate

been addressed by the

crux

certificate

Essentially, ONB asks

allow it to step into Milford's shoes as a

it

The

it argues

of

title

that

has

Massachusetts courts, they

ONB

makes its

argument by

analogy

to

the law's

contracts and

analogy

favor

contract rights,

allows assignments

damages.

general

of many

of

and the fact

that Massachusetts

types of claims,

including contract

See Mass. Gen. L. ch. 106

___

to

towards assignability

other jurisdictions'

2-210(2).

acceptance

It also makes an

of

assignments of

____________________

certifying attorney Antonellis."

(Appdx.

specify which rights it referred to.

ONB

argued that the

the

lawyer's breach of contract,

malpractice
Milford's
malpractice

claim

assignment to

ONB is

claim, the

Supreme

assignment valid."
ONB did

the

and that ONB

certificate,
treated as

a claim that a

Smith, 823
_____

Cir.

its reply brief ONB

that the action

"if

an assignment

of a

would hold

Of course, since

1994); Clauson v.
_______

1987) (collecting

states that it was

involved an assignment

the

See Ondine Shipping Corp.

___ ______________________

355 (1st Cir.

However, in

that

legal malpractice claim

v. United States, 24 F.3d 353,

______________
666 (1st

acquired a legal

stating

Judicial Court

was assigned, they cannot do so here.

F.2d 660,

not

of legal malpractice is

(Brief of Appellant at 27).

not raise below

It did

In its brief to this court,

"gist" of the tort

with

at 50).

cases).

not arguing

of a malpractice

claim,

but

rather the

transferable.

"real

issue" was

whether

the certificate

was

Since we deem that this "real issue" was included

within the scope of its argument below, we address their claim.

-17-

legal malpractice claims.

See, e.g., Oppel v. Empire Mutual Ins.

___ ____ _____
__________________

Co.,
___

1306-07 (S.D.N.Y.

517 F.

Supp. 1305,

1981); Thurston
________

v.

Continential Casualty Co., 567 A.2d 922, 923 (Me. 1989).

_________________________

One National

recognizes

that others

might object

to

selling

personal

the product of

and

legal services as

fiduciary

relationship.

attorney and client).

ONB

contends

"inherently weak

merely

the

attorney-client

"highly fiduciary" relationship between

Without citing any direct authority in its

that

the

assignment

nature" of the relationship

plays a standardized role

public records.

N.E.2d

of

See Dunne v. Cunningham, 125 N.E. 560, 561 (Mass.

___ _____
__________

1920) (commenting on the

support,

character

inconsistent with the

App. Ct. 1984)

state of the

v. Callahan,
________

the process and describing

463

(noting the standardized

nature of passing on a title); 1 Mallen & Smith, supra, at

_____

(setting out

the

where the attorney

of reporting the

See Fall River Savings Bank

___ ________________________

555, 561 (Mass.

illustrates

25.8

potential liabilities).

Thus, since the purpose of the relationship is not to give advice

or

counselling

maintains, the

but

to

produce

transfer would

formal

certificate,

not jeopardize any

ONB

public policy

favoring the attorney-client relationship.

The

contention

ch.

court

addressed

ONB's

assignment

within the context of its discussion of Mass. Gen. L.

93,

assignee

district

70.

It rejected

should have

assignor's attorney

enjoyed, on

the same

as

two bases.

One

National's position

fiduciary relationship

the assignor,

the

original

that

an

with the

mortgagee,

We address the first, which draws on the

-18-

language of section 70, in our discussion of that section, infra.

_____

The district

was

court's second

that ONB's argument

governing

basis for rejecting

does not

arise out

the unique attorney-client

relationship,

voluntarily

disciplinary rules.

assumed,

ONB's position

of the

common law

relationship -- a personal

which

Under de novo review, we

__ ____

is

governed

by

also find that the

attorney-client relationship between Antonellis and Milford plays

crucial

role

in

determining

whether

the

certificate

was

transferable.

Massachusetts

case law offers little specific guidance

on this issue, but we find that an analysis of their treatment of

the

attorney-client relationship

negligent certification of title

was noted above, the

including the

the

rules,

Massachusetts courts

631 N.E.2d at 545.

context of

claims for

proves illustrative.

First, as

nature of the attorney-client relationship,

obligation of

disciplinary

in the

has

confidentiality and

consistently been

within this

context.

See,
___

application of

cited

by

e.g., Spinner,
____ _______

This indicates that the courts do not see the

attorney-client relationship in this context as inherently

as ONB suggests.

involved

a suit

the

Significantly, in Hendrickson
___________

by the

attorney they hired

purchasers of

for the

differences between legal and

v. Sears, which
_____

real estate

title search, the

weak,

against the

Court noted

the

medical malpractice actions in its

analysis, 310 N.E.2d at 134, and commented that

[t]he client is not an expert;

be

expected

to

negligence if
not

be

recognize

he sees it,

expected

to

he cannot

professional
and he should

watch

over

the

-19-

professional

or

professional to

to
do so.

attorney and client

in its nature.

retain

second

The relation of

is highly

fiduciary

Id. at
___

135.

Nowhere does the

fiduciary relationship

because

the

of an

services

standardized.

the

Similarly,

in

Court's language suggest that the

attorney and client

is diminished

attorney

were

rendered

Schlecht v.
________

Smith, the
_____

highly

district

court addressed the attorney's failure to record the mortgage, at

his

client's request,

rules.

within

the context

Schlecht, 1994 WL 621594 at * 5.

________

of the

disciplinary

Again, nothing suggests

that the rules' force is somehow diminished.

Second,

Appeals Court

of Massachusetts noted the

title searches.

rules

which

deposition

in Fall River Savings Bank v.

_________________________

463 N.E.2d

prescribe

but

at 561

right

certain rules

or

have

Callahan, the
________

standardized nature of

("There may be

wrong

evolved

way

to

no definite

conduct

for passing

on

title.").

The court found that fact significant in deciding that

a court may use commentaries to establish the standard of care in

the

land

conveyance

context, since

practice "which lends itself

decisional

law

procedures."

and

Id.
___

of this area, the

as it would

that

is

an

area of

law

particularly to formulation through

commentary

as

to

what

are

appropriate

But even as it recognized the standardization

Court treated the attorney-client relationship

in any other

context, as carrying

attendant duties and responsibilities.

This approach

the

Id.
___

makes intuitive sense.

practices for searching title

with it all

Even though the

are standardized, the disciplinary

-20-

rules apply

and

as they

would in any

the attorney is subject

duties

attendant

to

the

to liability for

fiduciary

attorney and

client are in full

561

that

(noting

fiduciary

duties

amplitude.").

ONB tells us

attorney-client relationship,

relationship

force.

the

principles

"are

recognized

malpractice.

See Dunne,
___ _____

relating

as

the

125 N.E. at

to

an

attorney's

binding

in

all

Thus the unspecified public

would not be jeopardized --

between

The

their

policy concerns that

presumably, protecting

the

attorney's

ability

confidentiality, the

ethical

matters of

general

the

justice, see
___

670-71 (Mass. 1923)

more

function

integrity of

administration of

N.E. 667,

to

effectively,

bench and

Berman v.
______

bar, and

the

the

Coakley, 137
_______

("Public policy hardly

concern than

client

can touch

maintenance

of

an

untarnished standard of conduct by the attorney at law toward his

client."); 1 Mallen & Smith, supra, at

_____

11.5, 11.12, 12.4, 13.2

-- are still implicated.

In sum, since

the case law clearly indicates

Massachusetts courts do not consider

that the

the fiduciary nature of the

attorney-client relationship to be attenuated in this certificate

of title context, and in the absence of further guidance from the

Massachusetts courts, we refuse

to allow a third party,

of whom

the attorney does

not know,

to assume

the rights

of a

client

through

assignment.

We therefore find that One National did not

acquire

the

to

right

proceed

against

Antonellis

assignment of the certificate of title.

E.
E.

General Law Chapter 93, Section 70

General Law Chapter 93, Section 70
__________________________________

-21-

through

One

liable

attorney

National's final

argument is

under Mass. Gen. L. ch. 93,

70.

that Antonellis

is

Under that section, an

rendering a certificate of title for a mortgagee may be

subject to liability to the mortgagor as well:

The

liability

rendering

such

certification

limited

to

the

consideration

shown

respect

to the

of

on

the

Said

of

the

deed

with

for

shall be

with respect to

certification shall
the

mortgagor

so long as

title

the

to

be

principal amount

by the mortgage

effective

shall

mortgagor, and

the mortgagee.
be

attorney

amount

limited to the original

secured

any

benefit

of

the

said mortgagor has

mortgaged

premises,

and

shall be effective for the benefit of the

mortgagee

so long

as the

original debt

secured by the mortgage remains unpaid.

Mass. Gen. L.

ch. 93,

70.

The loan or credit

secured by the

purchase money first mortgage must be on real estate with between

one and four dwellings, to be occupied by the mortgagor.

ONB argues that because it

within the scope of

in a

manner analogous

provides that

long as

when a

debt

to a

statute of

debt is

to argue that

mortgage is sold,

is unpaid.

and that

Noting that section 70 operates

the title certification

the original

unreasonable

holds the mortgage it falls

"mortgagee" as used in section 70,

Antonellis is thus liable to it.

Id.
___

limitations in that

will remain in

unpaid,

ONB argues

the attorney's

it would

be

not the original

that the sale of a mortgage

neither enlarges

the attorney's liability,

the statute, nor

changes the nature

states, one bank

is simply

as it is

of the liability.

substituted for another:

-22-

effect so

liability disappears

no matter whether or

Further, ONB notes

it

limited by

As

all

ONB

else

remains

constant.

Thus

the

attorney

remains liable

on

the

certificate until the mortgage debt is paid.

that,

Upon

de novo review, we agree

__ ____

while One

National's argument

eventually fails.

plain language

It

First, like the

of the statute

is a basic tenet

with the district court

makes intuitive

sense, it

court below, we find that the

does not support

of statutory interpretation

ONB's position.

that where the

plain language

of a statute

is clear,

it governs.

See United
___ ______

States v. Rutherford, 442 U.S. 544, 551 (1979) ("If a legislative

______
__________

purpose

is expressed in 'plain

the . . . duty

its

and unambiguous language,

of the courts is

to give it effect according

terms'" (quoting United States v.

_____________

Co., 232 U.S. 399,

___

here, the

statute's

liability

to

transferred.

the

409 (1914)).

text does

mortgagee

. . .

ONB

not

to

Lexington Mill & Elevator

_________________________

correctly points out

state that

terminates when

the

the

that

attorney's

mortgage

is

However, we refuse to read the opposite inference -

- that the liability is not extinguished upon transferral -- into

the statute when it is not warranted by the plain language of the

text.

The language of section

70 focuses on mortgagees, not, as

One National would

have us believe,

on their assignees.

See
___

Falmouth Ob/Gyn Assoc. Inc. v. Abisla, 629 N.E.2d 291, 293 (Mass.
___________________________
______

1994),

("A term

employed in

a statute

customary meaning, taking into

and

history."); Page,
____

70's

the

445

should be

afforded its

account the legislation's purpose

N.E.2d at

application to mortgagors

152

(refusing to

purchasing unimproved

extend

land in

absence of suggestions or implications in the clear language

-23-

of the statute).

"Exceptions

implied

only

to

clearly

where essential

consequences

obviously

at

delineated

to

prevent

variance

with

statutes

'absurd results'

the

policy

enactment as a whole."

Rutherford, 442 U.S. at 552.

__________

such

here.

exception arises

section

70

results."

to mortgagees'

As

addresses "the

prevent

unfair

Memorandum

the

Constraining

assignees

court below

regulation of trade

practices against

at

variance"

with

of

Clearly, no

not create

93

or

the

the application

noted, Chapter

and Decision, p. 8).

not "obviously

does

will be

"absurd

as a

and enterprises in

of

whole

order to

consumers."

(District Court

Our reading of

the statute is

that policy,

even

if

this

reading does not extend the policy to assignees of mortgagees.

Second,

legislature, in

the

like

the

its amendments to

legislature desired

have

done

to extend the

so.

Instead,

note

section 70, has

that the

not expanded

intend for

neither

section 70

paid

for

contact with the attorney,

provisions of section

only

purchase

See
___

had the

70, it

money

first

up to four families, occupied

by the

mortgagor, fall within the section.

which

we

As the district court stated,

mortgages, of dwellings of

not

in Page,
____

class of mortgagors it protects to encompass assignees.

Page, 445 N.E.2d at 152.

____

could

court

Clearly, the legislature did

to provide

the attorney's

that a

commercial bank,

services

nor

be entitled to the protection

section merely because it was assigned the mortgage.

had any

of the

In the face

of the

plain language

of the

statute,

and in

the absence

of

-24-

legislative

action to

the

contrary, we

reject One

National's

argument that Antonellis is liable to it under section 70.

CONCLUSION
CONCLUSION

In

this case, as in

all cases involving an allegation

that an

attorney failed in

tension between

a duty

two concerns.

On one hand,

extend liability so widely that an

an

indeterminate

indeterminate

amount

class.'"

to a nonclient,

for

we do not

want to

attorney faces "'liability in

an

Craig
_____

there is

indeterminate

time

to

v. Everett M. Brooks Co.,

_______________________

an

222

N.E.2d 752, 755 (Mass. 1967) (quoting Ultramares Corp. v. Touche,

________________
_______

Niven & Co., 174 N.E. 441, 444 (1931)).

___________

not

On the other hand, we do

want to reward an attorney's carelessness.

N.E.2d

at 545

(noting policy considerations

attorney's negligence

finding

that

National, we

protecting

from suit

against sheltering

in will-drafting context).

Antonellis'

liability

are cognizant

that on

him from suit for

See Spinner, 631

___ _______

does

not

the surface

his negligence.

extend

we seem

to

In

One

to be

However, we note

that ordinarily, ONB would have

faulty

against

title, and Milford in turn could bring a negligence claim

Antonellis, as its lawyer.

beneficiaries could

not directly

deciding

transaction.

not

It

(noting that trust

and the trustees

in turn

against their attorneys, but beneficiaries

sue trustees'

failed, ONB has lost

in

See id.
___ ___

sue the trustees,

could bring an action

could

recourse against Milford for the

attorneys).

that option.

to

get

was a

its

Because Milford

ONB, essentially, took a risk

own

title

insurance

calculated

risk,

and

-25-

for

it required

the

complicated

chain

Milanis' default,

of

events

--

Antonellis'

Milford's failure, and the

negligence,

FDIC's repudiation

of the claim -- to make that risk fail to pay off.

spot

ONB's choice

negligence

154-55

to take that

risk with

claim against Antonellis.

("Where, as here, a

client's interests

Cf.
___

We

refuse to

the safety

net of a

Page, 445
____

N.E.2d at

nonclient takes the

are in harmony with

the

chance that the

his own, and

does so in

the face of an express warning that the interests may differ, his

claim of

foreseeable reliance cannot be

rescued simply because,

in retrospect, the interests are shown not to have differed.").

For the

court

granting

affirmed.
affirmed.
________

foregoing reasons,

summary

judgment

in

the order of

favor

of

the district

Antonellis

is

-26-