
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,  with  whom Cynthia  C.  Smith, Susan  S.               _________________              __________________  _________          Riedel and  Posternak,  Blankstein  &  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 & 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 &  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 &                                                    ______    _____________          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 & 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 & 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  & 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    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 & 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 & 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 & 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 & 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-
