After a lawyer certifies a title as clear of liens for one client, can the lawyer take on a second client to file a lien that predated that certification?

Plain-English summary

The committee considered a situation in which Client A employed an attorney to examine the title to a property, and the attorney certified to A that the property was free and clear of all recorded liens or encumbrances. Client B then asked the same attorney to file a lien on that property for materials furnished to the owner before the certification, and to file suit to collect. The committee was asked whether the attorney could accept B's employment, and answered no.

The committee's stated holding was brief: in the circumstances outlined, the attorney may not accept B's offer of employment. The new engagement would have the attorney assert a lien that existed before, and would be at odds with, his own certification of clear title to Client A.

Currency note

This opinion was issued in 1978 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the lawyer take the second client's lien case after certifying the title as clear for the first client?

A: No. The committee concluded the lawyer may not accept that employment.

Q: Why is the second engagement a problem?

A: It would have the lawyer assert a lien that predated, and would contradict, the lawyer's own title certification to the first client.

Background and rules framework

Although the opinion cites no specific rule, it rests on conflict-of-interest principles barring a lawyer from taking a matter adverse to work the lawyer performed for a client. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• Modern analogs Model Rule 1.7 (concurrent conflicts) and Model Rule 1.9 (former-client duties)

See also

• KBA Ethics Op. E-178: Representing a Broker Against a Helped Owner
• KBA Ethics Op. E-316: Adverse Representation After Prospective-Client Inquiry

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-186.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-186
Issued: July 1978

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

Client A employs an attorney to examine the title to Blackacre. The attorney certifies to Client A that Blackacre is free and clear of all recorded liens or encumbrances. B subsequently goes to the attorney, and asks him to file a lien on Blackacre for materials furnished to the owner of Blackacre prior to the certification and to file a lawsuit to collect for said materials. May the attorney accept B’s offer of employment?

Answer:

No.
OPINION

In the circumstances outlined in the question, the attorney may not accept B’s offer of employment.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.