|Fiduciary duties, the heart and soul of the legal profession, are ancient
in origin. Although alluded to in the Rules of Professional Conduct, and sort of mentioned
in Business and Professions Code §6067 (requiring lawyers to faithfully discharge their
duties), they are not explicitly listed or expressly delineated. Nonetheless, they are the
stainless structure upon which the rules are built.
"The scope of an attorney's
fiduciary duty may be determined as a matter of law based on the Rules of Professional
Conduct which, together with statutes and general principles relating to other
fiduciary relationships, all help define the duty component of the fiduciary duty which an
attorney owes to his [or her] client.'" Stanley v. Richmond (1995) 35 Cal.App. 4th
of fiduciary duties, which modernly could be characterized as the "evil twin" in
the framework of legal malpractice cases, has pyrotechnic capabilities that can enflame
lawyers because it will impugn their integrity with hints of dishonesty or outright
allegations of deceit. A verdict against an attorney with these allegations is very
serious. It denigrates the profession in the eyes of the public (not to mention the
client's wounds), which can justify putative damages and denial of fees, as well as
prompting State Bar discipline.
Loyalty is a hallmark of the legal profession and a principal fiduciary duty. Clients
have an unequivocal right to trust their lawyers. The duty of loyalty can be violated in
numerous situations, some of which are apparent and others more obscure.
Obviously, you cannot sue your existing client (Anderson v. Eaton (1930) 211 Cal. 113.)
You must withdraw from representing the client before the initiation of litigation. And
remember, the surest way to be sued for malpractice is to aggressively pursue your former
client for fees.
Even a lawyer's exacting delineated duties regarding the safekeeping of client property
or funds derive from the duty of loyalty.
Misappropriation of client funds (rule 4-100) is an overtly disloyal act, as is the
failure to maintain the
client's file and, upon termination of representation, failure to release the file to
the client (rule 3-700).
Impairment of a lawyer's duty of loyalty exists if the lawyer's allegiance is divided,
absent fully informed client consent in the framework of a conflict of interest, based
upon the representation of multiple clients (rule 3-310 (C)) or the lawyer's own interest
(rule 3-300 or 3-310 (B)).
Loyalty requires that we attorneys support our clients' causes with all of our energy,
and absolutely believe that they are candid and honest. Until we are presented with hard
facts, corroborating information or absolute documentary proof, we believe that our
clients are truthful.
This suspension of disbelief is one of the most amazing characteristics of lawyers.
Armed with our historic knowledge of past betrayals, we nevertheless loyally and honestly
go forward with all our heart and soul.
Diane L. Karpman of Los Angeles represents
attorneys at the State Bar.