NUMBER 210 1922

Question. 1. A deeds lands to B and later sues to foreclose a purchase money mortgage. B disaffirms the sale and defends for breach of covenants of seizin and clear title in A’s deed, alleging title to be in a number of unidentified persons of a specified class so situated that B is charged with notice of their claims, who cannot be made parties to the foreclosure suit. B believes A financially irresponsible, and the existence and validity of the outstanding title depends partly on disputed facts. B’s counsel believes and advises B that in preparing his case for trial it is necessary for his protection that he ascertain the identity of these claimants and the facts on which their claims individually rest; that to protect himself against the contingency that the court in the foreclosure suit may find his title good, while a jury on a subsequent suit by the other claimants may hold it bad, he should request such persons as assert claim to the property to bring immediate suit and have their claims adjudicated in advance of, or concurrently with, the foreclosure judgment.

The claim and title of these third parties being already properly raised and at issue in the foreclosure suit, does that advice violate the Canon of Ethics against needlessly stirring up litigation?

2. B finds several such claimants, brings them to his counsel, to whom they state the nature and evidence of their claims and their wish to press the same but are financially unable to employ counsel. B’s counsel advises them that although their suit must be in form against B, it will be in fact against A, and the suits will be turned over to A to defend as soon as brought; that the same evidence and preparation necessary to defend the foreclosure will likewise establish their claim, and that B will bear the entire cost of such preparation and put it at their disposal and join with them in establishing their title. These claimants are illiterate and unacquainted with the relative standing of counsel, and request B’s counsel to act himself and secure competent counsel to represent them. It being the wish and to the interest of B that these claimants establish their claim, is B’s attorney justified in procuring competent counsel to represent them at their request?

Answer. The Committee is of the opinion that the direct interest of B in a prompt adjudication of claims against A as bearing upon one of his defenses in the foreclosure suit takes the case out of Canon 28, of the American Bar Association, and justifies B’s lawyer in advising him that for his protection and as part of his defense, he should ascertain the identity of the claimants and investigate the facts upon which the claims rest. The answer to the first question is therefore “no”


The Committee is also of the opinion that since B is interested in having the claimants represented by counsel of character and ability to insure proper consideration by the Court, there is nothing objectionable in B’s lawyer selecting and procuring such counsel. The answer to the second question is therefore “yes.”