October 1963

 JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONIf a member knows that, under the law, his client has no lien on or valid claim to a certain parcel of land, it is improper for him to file a lis pendens merely to cloud title to the land in question.

 Canon 27.


In connection with a suit on an open account brought by a member for a client, a lis pendens was filed. The pleadings in the case assert no claim of a lien, and no attachment of any kind was issued. Does this action violate the Canons of Ethics?


This question is difficult for two reasons: (1) The committee cannot decide the scope and extent of the lis pendens statute; and, in order to render a helpful opinion, it must be assumed that the attorney knew that, under the law, his client had no lien on the land in question or had no valid claim to the land in question and that he filed lis pendens merely to cloud title (which may or may not be the actual situation inquired about); and (2) Texas, unfortunately, has not yet adopted that portion of the A.B.A. Canon No. 15 which in effect defines the advocate’s duty to client as a duty to do everything which is permitted by law but to act wholly within the law.

Based on the arbitrary factual assumption made above, it appears that the attorney stepped outside the bounds of law by committing the intentional tort of abuse of process. See Prosser, Torts pp 667-669, Sec. 100 (2nd Ed.) (the committee does not pass on this question of law). If so, his conduct would be unethical under A.B.A. Canon 15. And see 39 Tex. L. Rev. 391. Such conduct should be unethical in Texas though, as stated, the Texas canons have no provisions corresponding to the above mentioned portion of A.B.A. Canon 15. Texas Canon 27 provides that "a member must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass, or to injure the opposite party, or to work oppression or wrong." If this can be interpreted as meaning that the lawyer, in conducting litigation, must act within the bounds of the law (and the committee believes it can), the conduct in question violates Texas Canon 27 and thus does not conform to the minimum requirements of professional responsibility. But, even if the conduct in question violates no canon and cannot well be said to be prohibited by the general provisions of Art. XII, Sec. 8, State Bar Rules, and therefore could not subject the lawyer to disciplinary action, such conduct does not measure up to the general standards of professional responsibility with which all Texas lawyers should comply, although not forced to do so. (9-0)