Distinguishing between the standards
By DIANE KARPMAN
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Karpman |
Gentle reader, sometimes it is important to make sure everyone is on the same
page, even if it means going back to basics. The distinction between the standard
of care and the standard of conduct is an area where ideas are sometimes conflated
but should be distinguished.
Injured clients can assert two types of claims against their lawyers to achieve
recovery: garden-variety legal malpractice and the more exotic breach of fiduciary
duty.
Everyday or ordinary legal malpractice exists when a lawyer’s activity
falls below the standard of care. This could be blowing a statute; failing
to conduct appropriate research or a proper factual investigation; or failing
to obtain a client’s goal due to careless document preparation. This
is a traditional tort claim and requires duty, breach, causation and damages.
The standard of care (practice) involves competency, usually in a specific
area of legal practice. It’s what tax lawyers, bond lawyers or family
law lawyers would do in a particular situation. The remedy is compensation
for the economic harm caused by the error.
Breach of fiduciary duty claims address acts that fall below the standard
of conduct. In Mirabito v. Liccardo (1992) 4 Cal. App. 4th 41, the court
held that the Rules of Professional Conduct help define the “duty” element
that an attorney owes to her client. All lawyers swear to adhere to the same
standards of conduct when they are admitted. These factors do not involve particular
areas of legal practice. Special remedies are available for breach of fiduciary
duty, many of which are equitable in nature. Some of these are fee forfeiture
(or disgorgement), constructive trusts, injunctions and sometimes (rarely)
punitive damages.
Authorities disagree on the number of fiduciary duties. Some suggest that
there are five basic fiduciary duties. In addition to loyalty, they include
confidentiality, safekeeping of property and funds, independent judgment and
communication. Others suggest that all can be subsumed into the rubric of loyalty.
Lawyers are fiduciaries as a matter of law, and fiduciary duties must be performed
with absolute candor.
The problem is that often in legal malpractice claims, the same conduct is
pled as being below the standard of care and below the standard of conduct.
That’s duplicative and demonstrates “stacking on.” Violations
of the standard of care (competency) are different than the standard of conduct
(honesty and loyalty). A violation of the standard of care, such as blowing
a statute, can metastasize into a violation of the standard of conduct. For
example, the lawyer might attempt to cover up the blown statute or engage in
some other dishonest act.
Failing to obtain a spousal modification or a shoddy contract involve competency
as differentiated from dishonesty. Of course, lawyers can face liability for
breach of contract or even breach of warranty if promises were made (which
is never a good idea). The distinctions between care and conduct, for legal
malpractice and breach of fiduciary duty, are special concepts just for lawyers.
Of course, lawyers, like anyone else, can also be liable for intentional acts,
but that is another story for another day.
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