California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 1999
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News
Legal specialist exam set Aug. 19
Sullivan to take reins at Stanford Law School
Only two appointed members remaining on State Bar board
Legal services board has five vacancies
Davis taps Michael Kahn
State Bar honors Justice Mosk with Witkin Medal
Board tentatively approves budget based on dues of $384
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Opinion
If it distracts, so be it
Let's cut back on jury service
Limit bar to admissions and discipline
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From the President - Door to justice must be open
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Letters to the Editor
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Law Practice - Preparing for a successful mediation
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Appointments - Apply to serve on a bar committee
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Legal Tech - DSL speeds up Internet - at a reasonable price
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New Products & Services
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MCLE Self-Study
Taxes and long-term care
Self-Assessment Test
MCLE Calendar of Events
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Trials Digest
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Discipline
Ethics Byte - Fiduciary duties basis for all rules
Attorney nabbed at State Bar offices for soliciting murders
Attorney Discipline
Ethics for the 21st Century - A canon for the future
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Public Comment

ETHICS BYTE

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Fiduciary duties basis for all rules
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By DIANE KARPMAN
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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 1070, 1086.

Diane KarpmanViolation 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.