Fiduciary Principles in Legal Representation

Abstract

This chapter examines the fiduciary duties of lawyers, and especially how such duties shape—and are shaped by—their other professional responsibilities. It begins with a discussion of the legal basis of lawyers’ fiduciary duties as well as the circumstances that trigger a lawyer-client fiduciary relationship. It then considers the lawyers’ fiduciary duty of loyalty, focusing on the duty to avoid conflicts of interest, the duty of confidentiality owed by a lawyer to a client, the duty of candor, and the duty to communicate to the client information that the latter needs to make informed decisions about the subject matter of the representation. It also explores the lawyer’s fiduciary duty of care, including the duty to familiarize himself with the client’s affairs and to safeguard confidential information; the relationship between fiduciary duties and other duties of professional responsibility; cases where lawyers are subject to the specific duties of a common law trustee; and two types of mandatory rules to which lawyers, as professional fiduciaries, are subject and that cannot be waived with client consent: mandatory rules of professional responsibility and generally applicable laws. The chapter concludes with an analysis of remedies available when a lawyer commits a breach of fiduciary duty, along with the unique challenges faced by lawyers when they also become trustees for their clients or third persons.