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Distinguishing between the standards


Diane 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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