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Lawyer-as-priest: always be honest

By Diane Karpman

Diane Karpman
Karpman

Justice is supposed to be fair, impartial and unbiased. However, we are all aware of circumstances when it is not.

How can it be fair for the welfare mother of a 12-year-old who downloads music to be sued by the record industry? How do you fairly compensate a victim of sexual abuse by a trusted adult?

On an entirely different plane, often the relationship between the attorney and the client is unfair, due to the inescapable fact that the attorney is a fiduciary.

Fiduciaries are required to put the interests of their clients above their own. This is known as the duty of preference (an entirely foreign concept to any other lawyers reading this who are only children). Other fiduciary duties include confidentiality, loyalty, independent judgment and safekeeping of property and funds.

“The breach of the fiduciary obligations, sometimes characterized as ‘constructive’ fraud . . . is distinct and independent from professional negligence but still [comprises] legal malpractice.” Buehler v. Sbardellati (1995) 34 Cal. App. 4th 1527, 1544, fn. 9, quoting from 1 Mallen & Smith, Legal Malpractice (3d. Ed. 1989) (See Mallen, 5th Ed., §14.2). Constructive fraud is exclusively vested in the fiduciary relationship and is not your typical garden variety fraud, requiring the knowing misrepresentation of a material fact that induces reliance.

The intentionality requirement is unnecessary to constructive fraud. All that is required is an act or omission. Therefore, inadvertent conduct or negligence can support an allegation of constructive fraud, since fiduciaries have affirmative duties, including disclosure. Lawyers must advise their clients of both the good and bad, the benefits and detriments of events and facts involving the representation.

Since lawyers advise and encourage clients to disclose everything and ask them to trust us, a client’s reliance is justified. Lawyers are “[g]ranted the priest-like license to receive the most intimate and damning disclosures of the client [and] the sanctity of the professional privilege . . . .” General Dynamics Corp. v. Superior Ct. (1994) 7 Cal. 4th 1164, 1186. The origin of these principles is ancient Rome. They are not new or novel.

Anything you tell clients must be true, due to the higher bar for lawyers. Attorneys are not omniscient, and it is perfectly fine to tell the client that you are uncertain and will get back to them. Clients like to know that lawyers are human. Even if the sky is falling in your professional or personal life, do not make reckless or cavalier statements to clients.

What is unfair, you may ask, in the attorney-client paradigm? How about the fact that lawyer conduct is regulated by the Rules of Professional Conduct and Business & Professions Code, but clients have no rules regulating their behavior?

Lawyers have absolute duties of honesty and candor. Clients, however, (now sit down, because this may be shocking) have on occasion, once in a great while, been known to lie to their lawyers. So, clients can lie but lawyers have to be scrupulously honest. How is that fair?

Ethics expert Diane Karpman can be reached at karpethics@aol.com.

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