Breach of Fiduciary Duty in the Lawyer's Professional Liability Claim

• Publication year: 2000
• Pages: 101
• Citation: Vol. 29 No. 11 Pg. 101

29 Colo.Law. 101 Colorado Lawyer 2000.

2000, November, Pg. 101. Breach of Fiduciary Duty in the Lawyer's Professional Liability Claim

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101

Vol. 29, No. 11, Pg. 101

The Colorado Lawyer
November 2000
Vol. 29, No. 11 [Page 101]

Specialty Law Columns
Tort and Insurance Law Reporter
Breach of Fiduciary Duty in the Lawyer's Professional Liability Claim
by Chris Little

There continues to be a growing trend in the number of legal malpractice cases in which the claimant asserts some form of a breach of a fiduciary duty as a distinct claim. This rash of claims raises questions about the viability of this type of claim as distinct from the more common professional negligence claim. Commenting on the tactical combination of negligence and breach of fiduciary duties claims based on sexual misconduct against an attorney, the Rhode Island Supreme Court stated, "A plaintiff should not get additional bites of the apple by demanding multiple forms of relief for the same injury or by cloaking a single claim in a variety of legal theories."1

Over the past several years, there has been a proliferation of claims against attorneys alleging breach of the standard of care and breach of a fiduciary duty. These comingled claims confuse the proceeding, and, in most circumstances the breach of fiduciary duty claim is dismissed. This article discusses the differences between the two claims

Distinguishing Breach Of Fiduciary Duty

All attorney-client relationships contain attributes of fiduciary responsibilities, which are an integral part of the attorney's duties to the client. As described by a Massachusetts appellate court

The relation of attorney and client is highly fiduciary in its nature. The attorney is not permitted to take any advantage of his client. The principles holding him to a conspicuous degree of faithfulness and forbidding him to take any personal advantage of his client are well established and have [long] been fully stated and rigorously applied.2

Moreover, the duties of confidence, loyalty, trust, and competence are inherent obligations of every attorney/client relationship. Justice Story wrote, "It is obvious that this relation must give rise to great confidence between the parties, and to very strong influences over the actions and rights and interests of the client."3 Under any law, it is clear that a lawyer owes his or her client a fiduciary duty. It is simply part and parcel of the relationship.4

Today, a complaint against a lawyer asserting professional liability frequently includes a separate claim for breach of fiduciary duty. Nevertheless, the majority of these claims never involve the attorney's breach of duties that would be characterized as distinct fiduciary obligations - that is, the duties of confidence, loyalty, trust, and secrecy. Courts increasingly seem to dismiss these separate claims on a demurrer or Rule 12-type motion to dismiss.

The courts recognize that both professional negligence and breach of fiduciary duty claims are "at root, malpractice claims."5 Courts have coined "legal malpractice" as a generic term for claims against the attorney for negligence.6 Absent special circumstances, a breach of fiduciary duty claim against an attorney is intrinsic in the professional liability claim against the lawyer. It is usually confined and "included within the rubric of legal malpractice."7

The true and viable claim for breach of a fiduciary duty and the claim for breach of the standard of care are conceptually different.8 The distinction should appear in the pleading The breach alleged in the professional negligence claim usually states...