

                  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  &amp; Whiting and                                                                       
Howard J. Potash were on brief for appellant.                          
     George  A. Berman,  with  whom Cynthia  C.  Smith, Susan  S.                                                                           
Riedel and  Posternak,  Blankstein  &amp;  Lund  were  on  brief  for                                                     
appellee.

                                           

                          April 3, 1996
                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

          TORRUELLA,  Chief Judge.    In  this legal  malpractice                    TORRUELLA,  Chief Judge.                                           

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").   Two

principal  issues  are  raised  on  appeal:    first,  whether  a

nonclient can  maintain an action  against an attorney  when that                   

attorney negligently certifies to  a mortgagee that the  title is

good,  and  the mortgagee  then  assigns  the title  certificate,

mortgage, and all  associated documents to the  nonclient in good

faith; and second, whether  the mortgagee's assignee can maintain

an  action  for negligent  title  certification  pursuant to  the

Massachusetts title certification statute,  Mass. Gen. L. ch. 93,

  70.  For the reasons stated herein, we affirm.

                            BACKGROUND                                      BACKGROUND

          In  late 1987,  Milford Savings  Bank ("Milford")  lent

$100,000 to Thomas J.  Milani and Thomas Chamberlin, individually

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

and Cathy A.  Milani, individually.   A mortgage  on property  in

Bellingham, Massachusetts  served as security  (the "first Milani

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

Cathy  A.  Milani  (together,  the  "Milanis")  executed  another

mortgage  on  the same  property, also  to  Milford, to  secure a

$150,000  loan  (the  "second  Milani mortgage").    Milford  was

represented in  the 1988  transaction by appellee  Antonellis, an

                               -2-

attorney.

          Some  months later,  on  August  10, 1988,1  Antonellis

issued  a  certification  of  title,  which  certified  that  the

mortgagors   held  title   to   the  property   "free  from   all

encumbrances,  and the  mortgagee  [held] a  good and  sufficient

record first mortgage to the property."2  No mention  was made of

the first Milani  mortgage.   The certification  also included  a

disclaimer,  which stated:  "THIS  CERTIFICATE IS NOT  TO BE USED

FOR  TITLE   INSURANCE  PURPOSES  WITHOUT  THE   EXPRESS  WRITTEN

PERMISSION OF  JOSEPH M. ANTONELLIS, ESQUIRE."   While Antonellis

was preparing the title certificate, according to his deposition,

a Milford bank  official called  him around the  time the  second

Milani mortgage  was executed.  The  official informed Antonellis

of  the  first  Milani mortgage,  and  stated  that  it would  be

subordinated to  the April 1988 second Milani mortgage.  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  Milford on August

2, 1988, including the second Milani  mortgage.  ONB did not hire

an attorney  to check  these mortgages' certifications  of title.

                                                  

1  The district court noted that  Antonellis claimed that it took
several months to  prepare the formal certificate  because he was
too busy.

2  Antonellis' certification is made up of two documents:  a form
entitled  "Certification of  Title,"  dated May  3,  1988, and  a
second  form  entitled  "Attorney's  Certification  of  Title  to
Mortgagee  and Mortgagor[s]," dated August 10,  1988.  The former
document  was   attached  to  the  latter   and  incorporated  by
reference.

                               -3-

Subsequently,  Milford was  declared insolvent  in early  July of

1990, and the  Milanis defaulted  on both their  mortgages.   The

Federal Deposit Insurance Corporation ("FDIC")  took over Milford

and  was  appointed  its  receiver.    The  FDIC  repudiated  the

agreement between Milford and ONB.

          Faced   with   this   situation,  One   National   sued

Antonellis,  the  FDIC,  and the  Milanis.    The district  court

granted  summary judgment to defendants Antonellis and FDIC.  One

National  dismissed  its action  against  the  Milanis, and  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  district court's grant of summary

judgment de novo.   See, e.g.,  Rhode Island Depositors  Economic                                                                           

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

presented  with  a motion  for  summary  judgment, courts  should

'pierce the  boilerplate of the pleadings and  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  F.2d 791, 794  (1st                                                 

Cir.  1992),  cert.  denied,  507  U.S.  1030 (1993)).    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  that the moving  party is  entitled to  a

judgment as a matter  of law."  Fed. R. Civ. P. 56(c).  A fact is

material  if  it "carries  with it  the  potential to  affect the

outcome of the  suit under the applicable law."  Nereida-Gonz lez                                                                           

v. Tirado-Delgado, 990 F.2d 701, 703  (1st Cir. 1993).  We review                           

the  record  in  the  light  most  favorable  to  the  nonmovant,

indulging all reasonable inferences in that  party's favor.  See,                                                                          

e.g., Flanders &amp;  Medeiros, Inc.  v. Bogosian, 65  F.3d 198,  201                                                       

(1st  Cir. 1995);  Rhode  Island  Depositors Economic  Protection                                                                           

Corp.,  64 F.3d at 25.  Here,  because the parties do not dispute               

any  facts that  could affect  the suit's  outcome, our  analysis

confines itself to whether Antonellis is entitled to  judgment as

a matter of law.

                        B.  Applicable Law                                  B.  Applicable Law                                                    

          Both  parties share  the  view  that Massachusetts  law

applies.    Accordingly, we  will apply  that state's  law, since

"[w]here the  parties agree  what substantive law  controls in  a

diversity case,  we can -- and ordinarily should -- accept such a

concession."  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.  The Negligence Claim                               C.  The Negligence Claim                                                       

          One National  claims Antonellis is liable to it for his

failure  to  record  the  first  Milani  mortgage  on  the  title

certificate.   See  Republic Oil  Corp.  v. Danziger,  400 N.E.2d                                                              

                               -5-

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

failure  to  disclose  the  existence  of  a  perfected  security

interest  in a  certification of  title).   Because there  was no

attorney-client   relationship  between  the  parties,  any  duty

Antonellis  owed ONB must  be based  on Massachusetts'  theory of

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

a non-client.3  As  discussed below, we find that  Antonellis did

not  owe  One  National a  duty  of  care  under the  foreseeable

reliance exception.  Therefore, we  will not address the parties'

dispute as to  whether Antonellis  was in fact  negligent.   See,                                                                          

e.g., Lamare  v. Brisbanes, 636  N.E.2d 218, 219-20  (Mass. 1994)                                    

(affirming summary  judgment in favor of  attorney where attorney

had no duty to  third party nonclient); Logotheti v.  Gordon, 607                                                                      

N.E.2d  1015, 1018  (Mass. 1993)  (finding that  negligence claim

failed  where attorney  had  no  duty  of  care  to  third  party

nonclient).

          1.   The Foreseeable Reliance Exception                    1.   The Foreseeable Reliance Exception                                                           

          In order to  sustain a claim of  legal malpractice, ONB

must show that Antonellis owed One National a duty of  care.  See                                                                           

Spinner  v. Nutt,  631 N.E.2d  542, 544  (Mass. 1994);  DaRoza v.                                                                        

Arter, 622 N.E.2d  604, 608 (Mass. 1993).   The issue  of whether               

such  a duty  exists is  a question  of law.   Id.  at 381.   The                                                            
                                                  

3  The parties  do not argue on  appeal that there was  either an
express or implied attorney-client relationship.   See Sheinkopf,                                                                          
927 F.2d at 1265-66;  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  355, 357  (Mass. 1983).   Accordingly, we  focus             
solely  on whether  Antonellis'  liability extends  to ONB  under
Massachusetts' theory of liabilitybased on foreseeable reliance. 

                               -6-

general  rule is  that  "an attorney's  liability for  negligence

arises out of a duty owed to  a client."  Norman v. Brown, Todd &amp;                                                                           

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

case law  has crafted  an exception  to this general  proposition

based on foreseeable reliance, however,  so that "an attorney  is

not  'absolutely   insulated  from  liability   to  nonclients.'"

Spinner, 631 N.E.2d at  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.  First, a duty is

only owed to nonclients "who the attorney  knows will rely on the

services rendered."  Robertson v. Gaston Snow &amp; 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.  It is not                                            

enough  that a plaintiff claims  actual reliance:   "[i]t must be

shown  that  the  attorney  should reasonably  foresee  that  the

nonclient will  rely upon him  for legal services."   Id.  at 608                                                                   

n.7.   Second,  "the court will  not impose a  duty of reasonable

care on an attorney if such an independent duty would potentially

conflict with  the duty the attorney owes  to his or her client."

Lamare,  636 N.E.2d  at 219;  see Robertson,  536 N.E.2d  at 350;                                                     

Kirkland  Constr. Co. v. James,  658 N.E.2d 699,  701 (Mass. App.                                        

Ct.  1995).   Here,  the district  court  found there  was  "some

question" as  to the  first, foreseeable  reliance  prong of  the

test,  but  that  there   was  "no  question"  that   there  were

potentially conflicting  duties.  (District  Court Memorandum and

                               -7-

Decision, p. 15).  Reviewing the issue de novo, we agree with the                                                        

court  below   that  there  was  a   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.   Potential Conflict                    2.   Potential Conflict                                           

          The conflict requirement of the  reasonably foreseeable

test  does not  demand that  an actual  conflict arise.   Rather,

Massachusetts and federal case law has consistently found that  a

potential  conflict between  an  attorney's duty  to  his or  her

client and the  alleged duty  to the nonclient  is sufficient  to

defeat the nonclient's malpractice claim.  "[I]t is the potential

for conflict  that prevents the  imposition of  a duty .  . .  ."

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

MAP,  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  suit  could  have  differed  from  client

insurer's).   Thus, any potential  conflicts between  Antonellis'

duty to  Milford and  his  alleged duty  to ONB  will defeat  One

National's claim.

          Before addressing the potential conflicts, we note that

the facts in  the present  case differ in  several material  ways

from  the Massachusetts  cases  we have  found  that address  the

foreseeable  reliance  exception.    In  those  cases,  only  one

transaction  is generally  at  issue, the  potential third  party

                               -8-

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  at 149-50; Kirkland,  658 N.E.2d at                                                           

699-700.   Here, there  were two  independent transactions:   the

certificate  of title prepared  for the first  transaction -- the

second Milani  mortgage --   was relied on  in the second  -- the

sale  of  that  mortgage.    Also, the  third  party  nonclient's

identity  was  not  known  until  after  the  legal  service  was

rendered, and the nonclient  is attempting to stand in  the shoes

of the client as mortgagor in  the first transaction, not in  its

adverse  position  as buyer  in the  second.   In short,  we find

ourselves  facing  the  dilemma  of  having  to  apply the  fact-

dependant Massachusetts foreseeable reliance test to factors that

have not yet come before the state courts.

          One National argues that  in this context there was  no

conflict  between  Antonellis' duty  to Milford  and the  duty he

allegedly owed ONB.  It  asserts that the duty on which  it rests

its claim is the same duty  Antonellis owed Milford:  the duty to

search properly and to  report accurately the state of  the title

with respect to  the 1988 mortgage.   It argues  that two  duties

cannot  be in  conflict with  each other  if they  are identical.

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

conflict  between duties  to the  mortgagee client  and mortgagor

nonclient because  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  Massachusetts courts  have focused  on.

"[A]n isolated  instance identity  of interests" between  ONB and

Milford  does not suffice to impose duty on Antonellis.  Spinner,                                                                          

631 N.E.2d at 545.  "Although the particular activity in question

may  not  be  adverse,  and  may   actually  be  beneficial,  the

appropriate  inquiry concerns  the  purpose of  the entire  legal

representation."   1 Ronald E.  Mallen &amp; Jeffrey  M. Smith, Legal

Malpractice    7.11,  at  387 (3d  ed.  1989).   Antonellis  owed

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

concurrent  duty  of  confidentiality.    The  Massachusetts  and

federal   courts  that  have  applied  the  foreseeable  reliance

exception  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  and   the  disciplinary  rules  governing  attorney

conduct."  Schlecht, 1994 WL 621594  at * 5; see, e.g., Austin v.                                                                        

Bradley, Barry  &amp; 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 &amp; Smith,  supra, at    7.11 at 388  ("The policy                                          

considerations against implying a  duty are strongest where doing

so would detract from the  attorney's ethical obligations to  the

client.").

          In Logotheti  and  Spinner the  Supreme Judicial  Court                                              

framed the  attorney's duty  of confidentiality in  terms of  the

                               -10-

Massachusetts disciplinary rules'  requirement "that an  attorney

preserve  the secrets  and confidences  gained in  the course  of

representing a client."   Spinner, 631 N.E.2d at 545;  see S.J.C.                                                                    

Rule 3:07, Canon  4, DR 4-101  ("Preservation of Confidences  and

Secrets  of a  Client");  S.J.C. Rule  3:07,  Canon 7,  DR  7-101

("Representing a  Client Zealously"); see also  Schlecht, 1994 WL                                                                  

621594  at * 5 ("To  impose on a  borrower/mortgagor's attorney a

duty to  the lender/mortgagee can create  situations antithetical

to  the  disciplinary  rules which  govern  attorney  conduct.");

Logotheti, 607 N.E.2d at  1018; Harris v. Magri, 656  N.E.2d 585,                                                         

586 n.4 (Mass. App. Ct. 1995).   Other cases posit the obligation

of confidentiality in  more general  terms.  See  Austin, 836  F.                                                                  

Supp.  at  38 (citing  to  attorney's  "concurrent obligation  of

confidentiality" to his client).

          Here,  contrary  to  ONB's  claim,  there  is  a  clear

potential conflict rooted in Antonellis' duty of confidentiality.

Milford knew  that there was  a first mortgage that  had not been

reported.  Given  this, if we place a duty  to ONB on Antonellis'

shoulders,  we put  on him  the obligation  to inform  it of  his

error.    That  mistake was  made  in  the  first transaction,  a

transaction to which One  National was not a party.   Antonellis'

purported  duty  to  ONB  therefore  arose  only  in  the  second

transaction,  where that  bank  actually  was  a  party.      Cf.                                                                           

Hendrickson  v.  Sears,  310  N.E.2d  131,  135-36  (Mass.  1974)                                

(holding  that cause  of  action for  negligent certification  of

title  accrues  upon  discovery).    Ostensibly,  having  already

                               -11-

produced the  certificate, his  duty  would be  to check  whether

Milford subordinated the  debt, remind  it of his  error, and  if

Milford  did not rectify  it, to do so  himself by informing ONB.

Clearly,  at that point a conflict in the duty of confidentiality

would  arise:    if  his  client  decided  not  to  pass  on  the

information and Antonellis did  so in its stead, he  would breach

his duty of confidentiality.   See S.J.C. Rule 3:07, Canon  4, DR                                            

4-101(B)  (stating that  "a  lawyer shall  not  knowingly .  .  .

[r]eveal a confidence or secret of  his client.").  If he did not

pass on the  information, he would  breach his duty  to ONB.   We

refuse to place  him in that position.   Therefore, we find  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                                                         

                                                  

4   The court below relied  on a different basis  in finding that
there was  a clear potential for conflict in this case.  It found
that ONB and  Milford were in the adverse positions  of buyer and
seller in August 1988.  Since the courts have found that reliance
on  an adverse party's legal counsel in a business transaction is
unreasonable as a matter of law, see Schlecht, 1994 WL 621594  at                                                       
* 7; Robertson,  536 N.E.2d at 350 n.6; Page,  445 N.E.2d at 154-                                                      
55, the  court found that there was a potential for conflict.  It
found that Antonellis  would be under  different pressures if  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  not representing a
party adverse to it, because he did  not represent Milford in the
ONB-Milford  sales transaction,  but  only in  the second  Milani
mortgage.   When  he rendered  the  title certificate  at  issue,
Milford and ONB were not yet adverse parties.

   Because  we  find  that   One  National  fails  the  potential
conflicts prong  of the  foreseeable reliance exception  on other
grounds,  we do not address  here whether the  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  only arise

if  Antonellis  had  represented  Milford as  the  seller  of the

mortgages  in   the  second  transaction,  and   if  Milford  and

Antonellis had intended to deceive ONB.  We disagree.  Neither of

these additional  facts are necessary for  potential conflicts to

arise.  First, ONB is relying  on the work Antonellis did for the

first  transaction  --  whether  we  consider  ONB  as  Milford's

replacement in the  first transaction  or as a  party adverse  to

Milford in the second is irrelevant to this analysis.  Second, as

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

Antonellis colluded to deceive  ONB.  There are many  reasons why

Milford  could fail to inform  ONB of the  faulty title.  Indeed,

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

face  a conflict in his  duty of confidentiality  if Milford made

any  misrepresentations about the  circumstances under  which the

error  was made,  i.e. that it  too knew  of the  omission of the                                

first  Milani mortgage.  Thus  we do not  accept ONB's contention

that there was no potential conflict.

          3.   Kirkland Construction Co. v. James                    3.   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'  most recent  decision addressing  the foreseeable

reliance  exception to  the  no duty  rule,  as support  for  its

                               -13-

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,  a  contractor, was  asked  to renovate  a

retail space for an office supply firm.  He sought and received a

letter from  the firm's attorney, defendant  James, assuring that

his  client could pay for the  work.  However, after Kirkland had

performed under the  contract, the office  supply firm failed  to

pay.   Kirkland sued James and  the partners of his  law firm for

negligence, and the lower  court granted the defendants' 12(b)(6)

motion.   Id.  at  699-700.   The  court reversed,  finding  that                       

Kirkland was entitled to  seek relief from the attorneys  under a

theory of foreseeable reliance.  Id. at 701.                                              

          An  examination of  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  below.   In  its                      

analysis, the  Kirkland  Court focused  on  who was  intended  to                                 

benefit  from  the letter:   "an  independent  duty will  be more

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

the  client as  well  as  the  third party."    Id.  (citing  the                                                             

Restatement (Second) of Torts   552(2)(a) (1977)).  Examining the

letter,  which was addressed to Kirkland, the court noted that it

contained  unqualified  representations  and  that   the  typical

hedging phrases were absent.  Id. at 702; cf. Jurgens v. Abraham,                                                                          

616 F. Supp. 1381,  1386 (D. Mass. 1985) (holding  that nonclient

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

                               -14-

for   nonclient's  benefit).    That  is  not  true  here:    the

certificate   of   title   was   not  addressed   to   ONB,   the

representations were made  in boilerplate language with  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.  First, both Kirkland and ONB

allege that the representations  were false.  The fact  that both

plaintiffs make the  same allegation, however,  is somewhat of  a

red  herring, because  if  there were  no false  representations,

there would be no basis for suit.  Second, Kirkland alleged  that

the   letter  stated  that  the   office  supply  firm  had  made

arrangements  to   ensure  payment,   and  that  the   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  transaction for which

the certificate  of title  was performed.5   Third,  the Kirkland                                                                           

complaint maintained  that the attorneys "knew  and intended that

Kirkland  would  rely  on  the  representations,"  and  that  the

reliance was reasonable.  Id.  Again, ONB was  not a party.  Even                                       

if we  infer  that  Antonellis should  have  suspected  that  the

                                                  

5  Nor can ONB argue that the purpose of Antonellis' work was  to
induce  the Milanis  into  the mortgage,  because  by law  it  is
unreasonable for a mortgagee  to rely on mortgagor's  counsel, as
mortgagee and mortgagor are adverse parties.  See  Schlecht, 1994                                                                     
WL   621594  at  *  5;  Lamare,  636  N.E.2d  at  218;  Beecy  v.                                                                       
Pucciarelli, 441 N.E.2d 1035, 1040 (Mass. 1982).                     

                               -15-

mortgage would be  sold, however, the  ties between the  attorney

and  nonclient here  are  nowhere  near  as  close  as  those  in

Kirkland,  where  the  letter  at  issue  was  addressed  to  the                  

plaintiff  nonclient  and   expressly  addressed  its   concerns.

Finally, Kirkland  alleged that  it was seeking  information, not

legal advice, from the lawyers about their client.   Id.  Whether                                                                  

Antonellis'  certificate  of  title  is a  legal  opinion  proves

irrelevant, however,  since the  Kirkland court also  stated that                                                   

"the  likelihood of liability would not be greater" if the letter

were an opinion letter.  Id. at 702 n.7.                                      

          In   the  light  of   the  potential  conflict  between

Antonellis'  duty to  his  client and  his  alleged duty  to  One

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

court's reversal in Kirkland  and the facts of the  instant case,                                      

we  find  upon  de novo  review  that  as  a  matter of  law  One                                 

National's legal malpractice claim fails the foreseeable reliance

test.   As a consequence,  we need not determine  whether ONB can

meet the foreseeability  requirement.  See DaRoza,  622 N.E.2d at                                                           

609.

            D.  Assignability of Certificate of Title                      D.  Assignability of Certificate of Title                                                               

          One  National contends  that it  acquired the  right to

proceed    against   Antonellis   through   assignment   of   the

certificate.6    Specifically,  it states  that  because  Milford
                                                  

6  In  fact, it proves difficult to determine  the intended scope
of  ONB's  assignment  argument.    Before the  court  below,  it
contended that as assignee of the mortgage it "had all the rights
of Milford Savings Bank  once the mortgage was assigned  and duly
recorded  .  . . which  would  include  all  rights  against  the

                               -16-

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  to proceed against Antonellis.  The  crux

of  the  issue,   it  claims,  is  whether  the  certificate  was

transferrable by Milford to  ONB.  Essentially, ONB asks  that we

allow it to step into Milford's shoes as a  client merely because

it  was  assigned the  certificate that  was  the product  of the

attorney-client relationship.  Noting  that the disclaimer barred

reliance  by a  title  insurer, not  assignment,  it argues  that

although  the  transferability  of  a certificate  of  title  has

apparently not  been addressed by the  Massachusetts courts, they

would  hold  the assignment  valid.   ONB  makes its  argument by

analogy  to  the law's  general  favor  towards assignability  of

contracts and  contract rights,  and the fact  that Massachusetts

allows assignments  of many  types of claims,  including contract

damages.  See Mass. Gen. L. ch. 106   2-210(2).  It also makes an                       

analogy  to  other jurisdictions'  acceptance  of  assignments of
                                                  

certifying attorney Antonellis."   (Appdx.  at 50).   It did  not
specify which rights it referred to.  In its brief to this court,
ONB  argued that the  "gist" of the tort  of legal malpractice is
the  lawyer's breach of contract,  and that ONB  acquired a legal
malpractice  claim  with   the  certificate,  stating  that   "if
Milford's  assignment to  ONB is  treated as  an assignment  of a
malpractice  claim, the  Supreme  Judicial Court  would hold  the
assignment valid."  (Brief of Appellant at 27).  Of course, since
ONB did  not raise below  a claim that a  legal malpractice claim
was assigned, they cannot do so here.  See Ondine Shipping  Corp.                                                                           
v. United  States, 24 F.3d 353,  355 (1st Cir.  1994); Clauson v.                                                                        
Smith, 823  F.2d 660,  666 (1st  Cir.  1987) (collecting  cases).               
However, in  its reply brief ONB  states that it was  not arguing
that the action  involved an assignment  of a malpractice  claim,
but  rather the  "real  issue" was  whether  the certificate  was
transferable.   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.,  517 F.  Supp. 1305,  1306-07 (S.D.N.Y.  1981); Thurston  v.                                                                       

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

          One National  recognizes  that others  might object  to

selling  the product of  legal services as  inconsistent with the

personal   and  fiduciary   character   of  the   attorney-client

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

1920) (commenting on the  "highly fiduciary" relationship between

attorney and client).  Without citing any direct authority in its

support,  ONB  contends  that  the   assignment  illustrates  the

"inherently weak  nature" of the relationship  where the attorney

merely  plays a standardized role  of reporting the  state of the

public records.   See Fall  River Savings Bank  v. Callahan,  463                                                                     

N.E.2d  555, 561 (Mass.  App. Ct. 1984)  (noting the standardized

nature of passing on a title); 1 Mallen &amp; Smith, supra, at   25.8                                                                

(setting out  the process and describing  potential liabilities).

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

or  counselling   but  to  produce  a   formal  certificate,  ONB

maintains, the  transfer would  not jeopardize any  public policy

favoring the attorney-client relationship.

          The   district   court   addressed   ONB's   assignment

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

ch.  93,   70.    It rejected  One  National's position  that  an

assignee  should have  the same  fiduciary relationship  with the

assignor's attorney  as  the assignor,  the  original  mortgagee,

enjoyed, on  two bases.  We address the first, which draws on the

                               -18-

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

The district  court's second  basis for rejecting  ONB's position

was  that ONB's argument  does not  arise out  of the  common law

governing  the unique attorney-client  relationship -- a personal

relationship,  voluntarily   assumed,   which  is   governed   by

disciplinary rules.  Under de novo review, we  also find that the                                            

attorney-client relationship between Antonellis and Milford plays

a  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  in the  context of  claims for

negligent certification of title  proves illustrative.  First, as

was noted above, the  nature of the attorney-client relationship,

including the  obligation of  confidentiality and  application of

the  disciplinary  rules,  has  consistently been  cited  by  the

Massachusetts courts  within this  context.  See,  e.g., Spinner,                                                                          

631 N.E.2d at 545.  This indicates that the courts do not see the

attorney-client relationship in this context as inherently  weak,

as ONB suggests.   Significantly, in Hendrickson  v. Sears, which                                                                    

involved  a suit  by the  purchasers of  real estate  against the

attorney they hired  for the  title search, the  Court noted  the

differences between legal and  medical malpractice actions in its

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

            [t]he client is not an expert;  he cannot
            be  expected  to  recognize  professional
            negligence if  he sees it,  and he should
            not  be  expected   to  watch  over   the

                               -19-

            professional  or  to   retain  a   second
            professional to  do so.   The relation of
            attorney and client  is highly  fiduciary
            in its nature.

Id. at  135.  Nowhere does the  Court's language suggest that the             

fiduciary relationship  of an  attorney and client  is diminished

because   the  services   the  attorney   rendered  were   highly

standardized.   Similarly,  in  Schlecht v.  Smith, the  district                                                            

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

his  client's request,  within  the context  of the  disciplinary

rules.  Schlecht, 1994 WL 621594 at * 5.  Again, nothing suggests                          

that the rules' force is somehow diminished.

          Second,  in Fall  River Savings  Bank v.  Callahan, the                                                                      

Appeals Court  of Massachusetts noted the  standardized nature of

title searches.   463 N.E.2d  at 561  ("There may be  no definite

rules  which  prescribe  a  right  or  wrong  way  to  conduct  a

deposition  but  certain rules  have  evolved  for passing  on  a

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  that  is  an  area of  law

practice "which lends itself  particularly to formulation through

decisional  law  and  commentary   as  to  what  are  appropriate

procedures."   Id.  But even as it recognized the standardization                            

of this area, the  Court treated the attorney-client relationship

as it would  in any other  context, as carrying  with it all  the

attendant duties and responsibilities.  Id.                                                     

          This approach  makes intuitive sense.   Even though the

practices for searching title  are standardized, the disciplinary

                               -20-

rules apply  as they  would in any  attorney-client relationship,

and  the attorney is subject  to liability for  malpractice.  The

duties  attendant  to  the  fiduciary  relationship  between  the

attorney and  client are in full  force.  See Dunne,  125 N.E. at                                                             

561  (noting  that  the  principles  relating  to  an  attorney's

fiduciary  duties  "are  recognized   as  binding  in  all  their

amplitude.").   Thus the unspecified public  policy concerns that

ONB tells us  would not be jeopardized --  presumably, protecting

the   attorney's   ability   to  function   effectively,   client

confidentiality, the  integrity of  the  bench and  bar, and  the

ethical  administration of  justice, see  Berman v.  Coakley, 137                                                                      

N.E. 667,  670-71 (Mass. 1923)  ("Public policy hardly  can touch

matters of  more  general  concern than  the  maintenance  of  an

untarnished standard of conduct by the attorney at law toward his

client."); 1 Mallen &amp; Smith, supra, at    11.5, 11.12, 12.4, 13.2                                            

-- are still implicated.

          In sum, since  the case law clearly indicates  that the

Massachusetts courts do not consider  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  right   to  proceed   against  Antonellis   through

assignment of the certificate of title.

             E.   General Law Chapter 93, Section 70                       E.   General Law Chapter 93, Section 70                                                              

                               -21-

          One  National's final  argument is  that Antonellis  is

liable  under Mass. Gen. L. ch. 93,   70.  Under that section, an

attorney  rendering a certificate of title for a mortgagee may be

subject to liability to the mortgagor as well:

               The   liability    of   any   attorney
            rendering  such  certification  shall  be
            limited    to    the   amount    of   the
            consideration  shown  on  the  deed  with
            respect  to the  mortgagor, and  shall be
            limited to the original  principal amount
            secured  by the mortgage  with respect to
            the mortgagee.  Said  certification shall
            be  effective  for  the  benefit  of  the
            mortgagor  so long as  said mortgagor has
            title  to  the  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.  Id.                                                                       

          ONB argues that because it  holds the mortgage it falls

within the scope of  "mortgagee" as used in section 70,  and that

Antonellis is thus liable to it.  Noting that section 70 operates

in a  manner analogous  to a  statute of  limitations in that  it

provides that  the title certification  will remain in  effect so

long as  the original  debt is  unpaid,  ONB argues  it would  be

unreasonable  to argue that  the attorney's  liability disappears

when a  mortgage is sold,  no matter whether or  not the original

debt  is unpaid.  Further, ONB notes  that the sale of a mortgage

neither enlarges  the attorney's liability,  as it is  limited by

the statute, nor  changes the nature  of the liability.   As  ONB

states, one bank  is simply  substituted for another:   all  else

                               -22-

remains  constant.   Thus  the  attorney  remains liable  on  the

certificate until the mortgage debt is paid.

          Upon  de novo review, we agree  with the district court                                 

that,  while One  National's argument  makes intuitive  sense, it

eventually fails.  First, like the  court below, we find that the

plain language  of the statute  does not support  ONB's position.

It  is a basic tenet  of statutory interpretation  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  and unambiguous language,  . . .

the . . . duty  of the courts is  to give it effect according  to

its  terms'" (quoting United States v.  Lexington Mill &amp; Elevator                                                                           

Co., 232 U.S. 399,  409 (1914)).  ONB  correctly points out  that             

here, the  statute's  text does  not  state that  the  attorney's

liability  to  the  mortgagee  terminates when  the  mortgage  is

transferred.  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  should be  afforded its

customary meaning, taking into  account the legislation's purpose

and  history."); Page,  445  N.E.2d at  152  (refusing to  extend                               

  70's  application to mortgagors  purchasing unimproved  land in

the  absence of suggestions or implications in the clear language

                               -23-

of the statute).

          "Exceptions  to  clearly  delineated  statutes  will be

implied  only  where essential  to  prevent  'absurd results'  or

consequences  obviously  at  variance  with  the  policy  of  the

enactment as a whole."  Rutherford, 442 U.S. at 552.  Clearly, no                                            

such  exception arises  here.   Constraining  the application  of

section  70  to mortgagees'  assignees  does  not create  "absurd

results."   As  the  court below  noted, Chapter  93  as a  whole

addresses "the  regulation of trade  and enterprises in  order to

prevent  unfair  practices against  consumers."   (District Court

Memorandum  and Decision, p. 8).   Our reading of  the statute is

not "obviously  at  variance"  with  that policy,  even  if  this

reading does not extend the policy to assignees of mortgagees.

          Second,  like  the  court  in Page,  we  note  that the                                                      

legislature, in  its amendments to  section 70, has  not expanded

the  class of mortgagors it protects to encompass assignees.  See                                                                           

Page, 445 N.E.2d at 152.   As the district court stated,  had the              

legislature desired  to extend the  provisions of section  70, it

could  have  done  so.    Instead,  only  purchase  money   first

mortgages, of dwellings of  up to four families, occupied  by the

mortgagor, fall within the section.  Clearly, the legislature did

not  intend for  section 70  to provide  that a  commercial bank,

which  neither  paid  for  the attorney's  services  nor  had any

contact with the attorney,  be entitled to the protection  of the

section merely because it was assigned the mortgage.  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  a duty  to a nonclient,  there is  a

tension between  two concerns.   On one hand,  we do not  want to

extend liability so widely that an  attorney faces "'liability in

an  indeterminate   amount  for  an  indeterminate   time  to  an

indeterminate  class.'"   Craig  v. Everett  M.  Brooks Co.,  222                                                                     

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

Niven &amp; Co., 174 N.E. 441, 444 (1931)).  On the other hand, we do                     

not  want to reward an attorney's carelessness.  See Spinner, 631                                                                      

N.E.2d  at 545  (noting policy considerations  against sheltering

attorney's negligence  from suit  in will-drafting context).   In

finding  that  Antonellis'  liability  does  not  extend  to  One

National, we  are cognizant  that on  the surface  we seem  to be

protecting  him from suit for  his negligence.   However, we note

that ordinarily, ONB would have  recourse against Milford for the

faulty  title, and Milford in turn could bring a negligence claim

against  Antonellis, as its lawyer.   See id.  (noting that trust                                                       

beneficiaries could  sue the trustees,  and the trustees  in turn

could bring an action  against their attorneys, but beneficiaries

could  not directly  sue trustees'  attorneys).   Because Milford

failed, ONB has lost  that option.  ONB, essentially, took a risk

in   deciding  not  to  get  its  own  title  insurance  for  the

transaction.    It  was a  calculated  risk,  and  it required  a

                               -25-

complicated  chain  of  events  --  Antonellis'  negligence,  the

Milanis' default,  Milford's failure, and the  FDIC's repudiation

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

spot  ONB's choice  to take that  risk with  the safety  net of a

negligence  claim against Antonellis.   Cf.  Page, 445  N.E.2d at                                                           

154-55  ("Where, as here, a  nonclient takes the  chance that the

client's interests  are in harmony with  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  foregoing reasons,  the order of  the district

court  granting  summary  judgment  in  favor  of  Antonellis  is

affirmed.          affirmed.                  

                               -26-
