Dual Representation of Trustee and Secured Creditor in Contested Foreclosure [Proposed 2014 Formal Ethics Opinion 2]

Photo Courtesy of the North Carolina State Bar

View proposed ethics opinion in full here

The Ethics Committee voted to publish 2014 Formal Ethics Opinion 2 for comment at its meeting on January 23, 2014.  This proposed opinion examines the ethics of representing both the trustee and the secured creditor in a contested foreclosure proceeding.

The proposed opinion holds that a lawyer or law firm may not concurrently represent (1) the corporation serving as the trustee in a contested foreclosure proceeding and (2) the secured creditor in the same proceeding.

First, the opinion refers to previous ethics opinions (e.g. 2008 FEO 11) as establishing that a lawyer may not serve as trustee in a contested foreclosure proceeding while also representing the debtor or secured creditor.  By extension, then, the lawyer may not represent the trustee in a contested foreclosure proceeding while also representing the debtor or secured creditor.  The proposed opinion cites 2008 FEO 11, Opinion #5, which considered precisely that scenario (law firm representing secured creditor had created corporate trustee specifically to serve in trustee capacity).

The proposed opinion notes one limited exception to the general prohibition: the joint representation may be ethically permissible outside of the contested foreclosure proceeding.  For example, the proposed opinion refers to 2004 FEO 3, which “holds that the lawyer may represent both the secured creditor and the trustee as codefendants in [a] separate, tangential lawsuit brought by the borrower if the lawyer determines that his representation will not be impaired, and both the secured creditor and the trustee give informed consent.”

If you wish to respond or otherwise offer a guest contribution discussing this proposed ethics opinion, please contact the ethics editor at cu***********@em***.edu.