What is a Fiduciary Duty – Breach of Fiduciary Duty
Breach of Fiduciary Duty California
Protecting The Interests Of Legal Malpractice Victims
“In your best interest” is a crucial term to know in the context of legal malpractice. Your attorney has a fiduciary duty to act in your best interest at all times. This ironclad standard exists because the consequences of an attorney failing to act in a client’s best interest – even for a moment – can result in lasting damage to that client’s legal interests, financial well-being and the legal profession as a whole.
What Does “Fiduciary” Mean?
First things first, fiduciary describes someone who is in a position of authority and is obligated to act on behalf of another. In the legal context, the lawyer is a fiduciary who is bound by legal ethics to pursue actions that are in the best interest of their client. They are expected to pursue such actions in good faith and to the best of their ability. Failing to do so for any reason is considered to be a “breach of fiduciary duty.”
What Is a Fiduciary Duty?
A fiduciary duty is a legal obligation imposed upon a person with authority over assets that do not belong to them.
What Is A Fiduciary Relationship?
A fiduciary relationship exists where one party has a duty to act with the utmost good faith and reasonable care for the benefit and interests of the other party. An example would we partners in a business. It is a relationship of undivided loyalty, the fiduciary having a duty to refrain from seizing any opportunity at the expense of the other party, or from taking any action in competition with the other party. Any form of self-dealing is strictly prohibited. A fiduciary relationship is one of complete trust and disclosure, a fiduciary having a duty to protect all confidences and make full disclosure of all material information to the other party.
Traditional examples of fiduciary relationships include attorney/client, trustee/beneficiary, real estate broker/client and other principal/agent relationships. In the business context, fiduciary duties are imposed on directors, officers and majority shareholders of a corporation, as well as partners, LLC managers and joint venturers.
Breach of Fiduciary Duty California
In California, the responsibility for proving a breach of fiduciary duty falls on the plaintiff (i.e. beneficiary, ward, advisee, client). There are many different types of fiduciary relationships, and there are exceptions to all. It is vital to work with an attorney experienced in handling fiduciary duty civil claims.
Understanding how fiduciary relationships work, what establishes them, and how they are enforced is important for navigating these murky waters. Reviewing the following information before contacting our experienced litigation attorneys in California will help you know if you may have a breach of fiduciary duty claim and what to expect from the process.
Breach Of Fiduciary Duty Or Legal Malpractice?
Why not both?
The line between breach of fiduciary duty and legal malpractice can be extremely blurry. An action could theoretically be both a breach of fiduciary duty, an act of negligence that rises to the level of malpractice, neither, or both.
THE 3 ELEMENTS OF A BREACH OF FIDUCIARY DUTY IN LEGAL MALPRACTICE
The requirements for a legal action for breach of fiduciary duty include proof of:
- The existence of a fiduciary duty;
- Breach of the duty; and
- Damages caused by the breach.
A successful plaintiff may recover all damages caused by the defendant’s breach of fiduciary duty. In addition, due to the seriousness of the offense, punitive damages are often appropriate and may be awarded for a breach of fiduciary duty.
Many professional relationships involve a fiduciary obligation on the part of one individual performing a service for another. The fiduciary obligation requires the person who is giving the service to act in the best interests of the client or give advice and recommendations in the best interest of the client. When the fiduciary acts in a way that hurts the client — and especially when it is done to benefit or enrich the service provider — a breach of fiduciary duty has likely occurred.
From the perspective of an attorney-client relationship, breach of fiduciary duty is a common issue that comes up in the litigation of a legal malpractice claim. Let’s take a look at the three most important elements required to establish that a breach of fiduciary duty has occurred between a lawyer and his or her client:
A clear duty was present: In a legal malpractice case that includes a breach of fiduciary duty, the plaintiff needs to show that the lawyer owed a “duty” to the client. This duty relates to the expectation of good faith and fair dealing, the duty to fully disclose information and the duty to be loyal to the client. The clearest way to establish that the lawyer owed a duty to his or her client is through the existence of a signed contract between the plaintiff and the lawyer. However, this may not always be required.
A breach of the fiduciary duty has occurred: The breach relates to the lawyer’s failure to fulfill fiduciary obligations to the plaintiff through actions or inactions. Perhaps the lawyer utilized his or her influence over the client to achieve a benefit for him- or herself.
The victim suffered damages: A breach or failure relating to fiduciary duties alone is not enough for a plaintiff to prevail in a legal action. The plaintiff also needs to show that the breach caused him or her to suffer damages. With proof of damages, the plaintiff will not have an actionable claim against one’s attorney.
Were you harmed by a lawyer’s fiduciary failures, malpractice or negligence? By learning more about the duties and obligations owed by an attorney to a client, you can better evaluate whether you can pursue a legal malpractice action in court.
Identifying and Proving a Breach of Fiduciary Duty
Fiduciary relationships are more complex than hiring someone to perform simple tasks, such as yardwork or housekeeping. Because we share sensitive information and data with the fiduciary, there is an added level of trust implicit in these relationships. For instance, we hire a business attorney to provide capable representation and guidance for our legal matter. We trust our accountant to manage our money responsibly and make good decisions for our bottom dollar.
A breach of fiduciary duty refers to more than a simple breach of contract. Because of the added component of loyalty and trust, an intentional breach of fiduciary duty can include punitive damages for harm done under California state law. If you were harmed financially or legally by a professional or company you rightfully expected to make good decisions on your behalf, you may have a claim for breach of fiduciary duty.
Breach of Fiduciary Duty Consequences
Under California law, a plaintiff can ask for compensatory damages for all the ways a breach impacted their business or livelihood. Punitive damages are also possible. They are used to punish a defendant and send the message that such practices will not be tolerated. Quantifying damages in these types of cases is not a straightforward process, as every situation is unique. Your business attorney will review your case and assess potential damages. source
THE IMPORTANCE OF KNOWING WHO IS, AND WHO IS NOT, MY CLIENT
CALIFORNIA LAWYERS ASSOCIATION
How to Sue Your Lawyer for Legal Malpractice click here to learn more
Lawyers must be able to identify who is, and who is not, their client in order to comply with their professional obligations. Lawyers owe fiduciary duties to their clients,i including the duties of loyalty and confidentiality, which the California Supreme Court considers to be the most fundamental qualities of the attorney-client relationship.ii These duties to the client are embodied in the California Rules of Professional Conduct (the “Rules”), most notably in Rule 1.6 (Confidential Information of a Client) and Rule 1.7 (Conflict of Interest: Current Clients).
Rule 1.6, together with Business and Professions Code section 6068(e)(1), obligates a lawyer “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,”iii “unless the client gives informed consent.”iv In order to comply with this mandate, a lawyer must be able to identify who is the client, so as to ensure whose confidences and secrets are to be protected, and to ensure that the proper person has authorized any disclosure of such information.v
Rule 1.7 provides that “a lawyer shall not, without informed written consent from each client […], represent a client if the representation is directly adverse to another client in the same or a separate matter [or] if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”vi In order to comply with Rule 1.7, and avoid impermissible conflicts of interest, lawyers must be able to properly identify who their clients are.vii
Similarly, the conflict of interest rule pertaining to former clients, Rule 1.9 (Duties to Former Clients), requires that a lawyer be able to identify who is a former client of the lawyer: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.”viii
Other Rules also require a lawyer to be able to properly identify the client. For example: Rule 1.8.10 (Sexual Relations with Current Client) generally provides that “a lawyer shall not engage in sexual relations with a current client” subject to certain specified exceptions; Rule 1.4 (Communication with Clients) requires that a lawyer “keep the client reasonably informed about significant developments relating to the representation;” Rule 1.8.1 (Business Transactions with a Client) provides that “a lawyer shall not enter into a business transaction with a client” unless certain specified conditions are satisfied; and Rule 1.8.3 (Gifts from Client) generally provides that “a lawyer shall not […] solicit a client to make a substantial gift, including a testamentary gift, to the lawyer.”ix
Certain Rules also require a lawyer to be able to identify who is not a client of the lawyer. For example: Rule 1.8.6 (Compensation from One Other than Client) mandates that “a lawyer shall not […] accept compensation for representing a client from one other than the client” unless certain specified conditions are satisfied;x Rules 4.2 (Communication with a Represented Person) and 4.3 (Communicating with an Unrepresented Person) generally restrict a lawyer’s communications with a non-client; and Rule 7.3 (Solicitation of Clients) generally provides that “a lawyer shall not solicit professional employment” from a non-client unless certain specified conditions are satisfied.
So how does a lawyer properly identify who is (or was) a client of the lawyer? In most instances, this is a relatively simple inquiry: the lawyer and client enter into a retention agreement that evidences an attorney-client relationship for a specific matter.xi But sometimes it is not entirely clear whether an attorney-client relationship has been established. And, even if an attorney-client relationship has been established, it may not be entirely clear who is the client.
California courts have held that an attorney-client relationship can only be created by contract.xii However, the formation of an attorney-client relationship does not require an express contract; such a relationship can be formed implicitly, as evidenced by the intent and conduct of the parties.xiii While the lawyer and the purported client may have their own subjective views as to whether or not an attorney-client relationship has been formed and with which client(s), courts generally will apply an objective test. Thus, despite the subjective view of the lawyer to the contrary, the reasonable perception of the purported client may determine that such person is a client of the lawyer.xiv
The question as to who is, and who is not, the client is further complicated when the lawyer is associated with a law firm, and when the client is an organization or associated with an organization.
When a lawyer is associated with a law firm, a client of any lawyer in the law firm is generally considered, from a practical perspective, to be a client of all of the lawyers in the law firm, at least with respect to conflicts of interest. In accordance with Rule 1.10 (Imputation of Conflicts of Interest: General Rule): “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9,” unless certain specified exceptions apply. The attorney-client relationship, and resulting potential conflict of interest, of one lawyer in the firm is essentially imputed to all lawyers in the firm.
The imputation of an attorney-client relationship also applies with respect to certain other prohibitions under the Rules. For example, the limitation on business transactions with a client set forth in Rule 1.8.1 applies not just to the lawyer who has an attorney-client relationship with the client, but to all other lawyers associated in the same law firm. By application of Rule 1.8.11 (Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9), a prohibition under Rule 1.8.1 “that applies to any one of them shall apply to all of them.”
Imputation under Rule 1.8.11, however, does not extend to the prohibition on sexual relations with a client “since the prohibition in [Rule 1.8.10] is personal and is not applied to associated lawyers.”xv But it is important to note that the term “client” has a unique meaning in the context of Rule 1.8.10 when the client is an organization. Solely for purposes of prohibited sexual relations under Rule 1.8.10, “a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters” is deemed to be a client of the lawyer – even if the lawyer has no attorney-client relationship with that individual.xvi
When a lawyer is working with an organization, the analysis as to the identity of the client may be further complicated by such factors as the working relationship and the ownership and structure of the organization. When a lawyer is retained by an organization, Rule 1.13 (Organization as Client) mandates that the lawyer “conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized […] constituents overseeing the particular engagement.” Further, when dealing with such constituents, the lawyer must “explain the identity of the lawyer’s client whenever the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituent(s) with whom the lawyer is dealing.”xvii But even when the lawyer has an attorney-client relationship with an organization, the lawyer may also have an attorney-client relationship with any of its constituents (subject to the Rules pertaining to conflicts of interest).xviii
As a result, when working with organizations, a lawyer should clearly delineate, both to himself or herself and to the various constituents, who is, and who is not, the client of the lawyer. This may be particularly challenging in a number of common situations. For example, when the organization is closely held, the owner(s) may be so closely identified with the organization itself, that either the owner(s) or the lawyer or both may have difficulty distinguishing who is, and who is not, the client. This can be especially difficult if the lawyer is working with the owner(s) of a to-be-formed business: although the owner(s) and the lawyer may expect and agree that the organization will be the client of the lawyer, the identity of the client for the preformation work (before the organization exists) may well be the owner(s) (because the formation work is being done for the benefit, and at the direction, of the owner(s)). Even with respect to established business organizations, with multiple subsidiaries and affiliated entities, the determination of which entities are, and which are not, clients of the lawyer may be unclear.
The fiduciary duties owed by lawyers to their clients, as well as the protections afforded under the Rules to clients, require that lawyers at all times be able to clearly answer the question: Who is, and who is not, my client?
i See, e.g., Lee v. State Bar (1970) 2 C3d 927.
ii See Flatt v. Sup.Ct. (Daniel) (1994) 9 C4th 275 (“One of the principal obligations which bind an attorney is that of fidelity” [internal quotes and citation omitted]). See also Rule 1.7, Comment [1] (“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”); Cal. State Bar Form Opn. 1984-83 (“Perhaps the most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client.”).
iii California Business & Professions Code § 6068(e)(1) [italics added].
iv Rule 1.6(a) [italics added]. See also Rule 1.8.2 (Use of Current Client’s Information) (“A lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent” [italics added]).
v In addition, the existence of an attorney-client privilege pursuant to California Evidence Code § 954 depends upon the existence and identity of a client. The term “client” is defined in Evidence Code § 951 as “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.”
vi Italics added. See also Rule 1.18 (Duties to Prospective Client), which extends, to the extent set forth therein, the protections of Rule 1.6 and Business & Professions Code § 6068(e)(1) to a “prospective client” (as defined).
vii See ABA Model Rule 1.7 (Conflict of Interest: Current Clients), comment [2] (“Resolution of a conflict of interest problem under this Rule requires the lawyer to […] clearly identify the client or clients.”).
viii Italics added.
ix Italics added.
x Italics added.
xi It is good practice for a retention agreement to be in writing. In fact, certain engagements must be evidenced in a writing. See Business & Professions Code §§ 6146 (with respect to contingency fees) and 6148 (where reasonably foreseeable attorney fees and expenses exceed $1,000 and the client is not a corporation).
xii See, e.g., Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719.
xiii See, e.g., Lister v. State Bar (1990) 51 C3d 1117 (“No formal contract or arrangement or attorney fee is necessary to create the relationship of attorney and client.” [internal quotes and citation omitted]); Hecht v. Superior Court (Ferguson) (1987) 192 Cal.App3d 560 (“It is the intent and conduct of the parties which is critical to the formation of the attorney-client relationship.”). See also Restatement, Third, The Law Governing Lawyers, §14(1) (“A relationship of client and lawyer arises when […] a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services”).
xiv See Responsible Citizens v. Superior Court (Askins) (1993) 16 Cal.App.4th 1717 (“one of the most important facts involved in finding an attorney-client relationship is the expectation of the client based on how the situation appears to a reasonable person in the client’s position.” [internal quotes and citation omitted]). See also Sky Valley Ltd. Partnership v. ATX Sky Valley, Ltd. (ND CA 1993) 150 F.R.D. 648 (“the courts have focused on whether it would have been reasonable, taking into account all the relevant circumstances, for the person who attempted to invoke the joint client exception [to the attorney-client privilege] to have inferred that she was in fact a ‘client’ of the lawyer.”).
xv Rule 1.8.11, Comment.
xvi Rule 1.8.10, Comment [2].
xvii Rule 1.13(f). See also Upjohn Company et al. v. United States et al. (1981) 449 U.S. 383.
xviii Rule 1.13(g).
By Neil J Wertlieb source
How to Determine When an Attorney is Responsible for a Breach of Fiduciary Duty
Breach of fiduciary duty is often confused with legal malpractice. A breach of fiduciary duty and legal malpractice both fall under the capacity of tort law. A breach of fiduciary duty, however, is not the same as an attorney committing a legal malpractice or other form of professional negligence. Importantly, where a claimant asserts both a breach of fiduciary duty and a legal malpractice, the breach of fiduciary duty claim may be dismissed if it is based on a breach of the duty of care which is the standard for a legal malpractice. However, a breach of fiduciary duty will carry a separate tort and will also implicate different remedies than what is typically required for legal malpractice cases so long as the claim is based on one of the fiduciary duties owing to the client beyond a breach of a duty of care.
Understanding the Elements Needed to File a Claim for a Breach of Fiduciary Duty
In effort of demonstrating that a lawyer breached a fiduciary duty that was owed to a client, the claimant will need to demonstrate the following:
- The lawyer has a lawfully recognized fiduciary duty to the claimant;
- The lawyer violated, or breached, that owed duty;
- The claimant sustained legally recognized damage or grievances; and
- The lawyer’s breach of duty was the lawfully recognized reason behind the claimant’s damage or grievances.
Identifying the Fiduciary Duties an Attorney Owes His or Her Clients
The California Rules of Professional Conduct as well as general California statutes and applicable federal laws govern and define the extent of fiduciary duties of which an attorney owes to the client. The relation between an attorney and a client is a fiduciary relation of the very highest character. A few duties owed to a client, under certain circumstances, may involve the following:
- A duty of undivided loyalty to a client
- A duty of confidentiality
- A duty to use reasonable care
- A duty to not engage in conflicts of interest
- A duty to obtain the clients informed consent
- A duty to reasonably charge the client a fair and conscionable fee
- A duty to charge the client for a service that was in fact rendered or a work that was in fact performed
- A situation where the lawyer has handled a client’s legal documents and/or money
- All other situations in which a lawfully recognized fiduciary relationship is established
If you have reason to believe that you lawyer owed you or owed you a fiduciary duty and that this duty has been violated, seek the an experienced legal professional as soon as possible in order to protect your legal rights.
The Aftermath of a Breached Fiduciary Duty Can Be Complex
A violation of a fiduciary duty is usually evaluated as a question of fact. This means that the investigation, and eventually the legal conclusion, will be contingent on the facts and circumstances of each case. In effort of demonstrating that a violation has occurred, the claimant may need to provide expert testimony.
Furthermore, a claim filed for a breach of fiduciary duty is subject to the same state’s statute of limitations applicable to all legal malpractice cases. This means that the claimant has only a small window of time to file a claim in order for the case to be heard. Failing to file the claim in a timely manner can result in a rejected case.
Remedies for Breach of Fiduciary Duty Can Be Different than Remedies for Legal Malpractice
While certain remedies are available for both a breach of fiduciary duty and legal malpractice, there are some distinct differences for certain remedies available. For instance, in a legal malpractice claim, emotional distress damages generally are not recoverable except in extraordinary circumstances. However, emotional distress damages may be recoverable for breach of fiduciary duty claims, such as with a claim for breach of loyalty. Additionally, punitive damages are generally not available for legal malpractice claims, however under certain circumstances punitive damages are available for breach of fiduciary duty claims.
If you or someone you know has reason to believe that there was a violation of fiduciary duty in a case, it is important to not delay in seeking professional legal support. Delaying the claim can often cause the claimant the missed opportunity to obtain compensation, even if there is a valid claim. source
How to Sue Your Lawyer for Legal Malpractice
§49. Breach of Fiduciary Duty–Generally
In addition to the other possible bases of civil liability described in §§48 [professional negligence] 55[breach of contract and equitable relief] and 56 [liability to a non-client], a lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client set forth in §16(3) and if that failure is a legal cause of injury with the meaning of §53, unless the lawyer has a defense within the meaning of §54.
§16 Lawyer’s Duties to a Client–Generally
To the extent consistent with the lawyer’s other legal duties and subject to other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:
(1) proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation;
(2) act with reasonable competence and diligence;
(3) comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client;
(4) fulfill valid contractual obligations to the client.
The Lawyer’s Fiduciary Duties: “The 4 C’s”:
- 1. Communicate
RLGL §20 A Lawyer’s Duty to Inform and Consult with a Client- (1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer…
- (2) A lawyer must promptly comply with a client’s reasonable requests for information.
- (3) A lawyer must notify a client of decisions to be made by the client…and must explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representation.
RPC 1.4 Communication- (b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
- (c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representattion.
Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). (duty to disclose settlement offers to client)
FDIC v. Clark, 978 F.2d 1541 (10th Cir.1992) (duty to inform board of directors of a corporate officer’s fraud).
- 2. Conflict Avoidance (duty of loyalty)
Maritrans v. Pepper Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992)
Matter of Silverman, 113 NJ 198 (1988) (doing business with clients) - 3. Confidentiality
Profit Sharing Trust v. Lampf Lipkind, 267 NJ Super 174 (Law Div. 1993) - 4. Competence
Starron v. Weinstein, 305 N.J.Super. 263, 701 A.2d 1325
Various courts have used other terms synonymous or encompassed by the “4 C’s” to describe the fiduciary duty, or at least, the context within which various allegations of the breach of fiduciary duty has arisen. You should be familiar with these terms and recognize them as examples of breaches of the fiduciary duty: “self-dealing”; “failure to exercise independent professional judgment”; “duty of loyalty”; “duty of candor”; “abuse of a position of trust”; “putting the interests of the lawyer ahead of the clients”; “misuse or abuse of client’s confidential information”. source
5 WAYS YOUR TRIAL LAWYER MAY HAVE BREACHED THEIR FIDUCIARY DUTY
These five common situations are clear violations of your trial lawyer’s fiduciary duty to you:
SELF-DEALING
The fiduciary duty to act in your best interests extends to situations in which your best interests conflict with your attorney’s. He is still required to do what is best for you, even if there is a cost – financial or otherwise – to him. For example, if your lawyer is working on a contingent-fee basis – paid a percentage of the funds recovered from the other party – encouraging you to accept an unfavorable settlement could be for his benefit, not yours.
ACTING IN GOOD FAITH
Every trial is a competition between two or more parties, and your lawyer is doing his best to outsmart and outmaneuver the opponent. Unfortunately, this doesn’t always happen. Your attorney’s strategy may simply not be enough to win the case. After the verdict, you will have the opportunity to reflect on any strategic errors, and it is common to imagine the outcome would have been better if your lawyer had done a few things differently.
If your attorney did his best to create a winning strategy and fell short, the next step is to regroup and consider appeal options. However, if the strategy fell short because your attorney wasn’t acting in good faith, that is an entirely different issue.
ATTORNEY-CLIENT PRIVILEGE
One of the most fundamental elements of the US judicial system is attorney-client privilege. Information shared with your attorney cannot be used against you, and disclosure of this information is a serious breach of professional conduct. This relationship goes beyond the length of the trial. Your lawyer must keep your secrets forever, even after your death, unless you specifically waive this right. Any actions that result in releasing information told to your lawyer in confidence can be considered a breach of fiduciary duty.
CONFIDENTIALITY
Maintaining the confidentiality of information you provide isn’t the only responsibility your lawyer has. Litigation strategies and key components of your case must remain confidential as well. Disclosing these secrets gives opposing counsel an advantage in the courtroom, and your attorney’s behavior constitutes a breach of the duty to act in your best interests.
CONFLICT OF INTEREST
The world gets smaller every day, and it is not uncommon for attorneys to discover that current clients and cases intersect with others – past and present. Your lawyer must examine such situations carefully and disclose these relationships to you to ensure that conflicts of interest don’t compromise your case. An example comes up when attorneys move from firm to firm. As the lawyer gets involved in your case, he discovers that the other party is a client of his former employer. While this situation doesn’t automatically disqualify attorneys from working with you, they must carefully consider the extent of their involvement with the other client.
Your attorney is your guide in the complicated judicial system, and your confidence in his ability to act in your best interests is key to a successful relationship. The five situations listed are breaches of your trial lawyer’s fiduciary duty to you.
How to Sue Your Lawyer for Legal Malpractice
Duties of the Government Lawyer – aka the DISTRICT ATTORNEY
Thompson v. Clark – Maliciou$ Prosecution claim under § 42 U.S.C. 1983
20-659 Thompson v. Clark (04-04-2022) – Suing the Government
In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.
This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the other party. Such a relation ordinarily arises when a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”
An attorney may not seek, accept or continue employment where it is not substantiated by probable cause, thus an attorney may not prosecute any case that is not well - 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964); Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); see also Coulello v. State of California, 45 Cal.2d 57 (1955); Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). Clearly, this duty applies not only with reference to the client but also with regard to the court, opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code
-
6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal
system which requires both that the attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, burden, delay or violate legal rights. Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)
Casebook – Chapter 1 – Section D. Duties of the Government Lawyer
RULES OF PROFESSIONAL CONDUCT
Chapter 1. Lawyer-Client Relationship (Rules 1.1 – 1.18)
CACI No. 4106. Breach of Fiduciary Duty by Attorney – Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2022 edition)
DISTRICT ATTORNEY & PAUL TOEPEL PLAY THESE VIDEOS
Rule 1.1 – Competence (DA REPRESENTS THE STATE)
Rule 1.2 – Assisting in a Crime
Rule 3.1 – Meritorious Claims & Contentions
Rule 3.4 – Fairness to Opposing Party and Council
PAUL TOEPEL PLAY THE NEXT VIDEO REMEMBER SUGGESTING ME TO BE MADE A VEXATIOUS LITAGANT YOU PUNK FUCK
Model Rule 3.8 pt.2 – Special Duties of Prosecutors
Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct
Model Rule 4.1 – Truthfulness in Statements to Others
PAUL TOEPEL PLAY THE NEXT VIDEO
Model Rule 4.4 – Respect for the Rights of Others
PAUL & Mathew TOEPEL LISTEN TO THE NEXT VIDEO
Model Rule 5.2 Responsibilities of a Subordinate Lawyer
Model Rule 8.1 Bar Admission & Disciplinary Matters
Model Rule 8.2 – Judicial & Legal Officials
Model Rule 8.3 – Reporting Professional Misconduct
Model Rule 8.4 pt.1 – Lawyer Misconduct
PAUL TOEPEL LISTEN TO THE NEXT VIDEO
ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application
Model Rule 8.4 pt.2 – Discrimination & Harassment
ECONOMIC STATUS ATTACKS!
Attorney Ethics Rules – FOX 17 Know the Law
Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence
California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests
City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Employer$ Beware: La $upreme Court Open$ Line for Direct Negligence Claim$ from Employee Action$
Malicious Prosecution / Prosecutorial Misconduct – Know What it is!
New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE
To Learn More…. Read MORE Below and click the links Below
Abuse & Neglect – The Mandated Reporters (Police, D.A & Medical & the Bad Actors)
Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here
To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here
Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse
ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN:
Click Here Officers and DA’s for (Procedure to Follow)
It Only Takes a Minute to Make a Difference in the Life of a Child learn more below
You can learn more here California Child Abuse and Neglect Reporting Law its a PDF file
Learn More About True Threats Here below….
We also have the The Brandenburg v. Ohio (1969) – 1st Amendment
CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment
We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment
We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment
We also have the Watts v. United States – True Threat Test – 1st Amendment
We also have the Clear and Present Danger Test – 1st Amendment
We also have the Gravity of the Evil Test – 1st Amendment
We also have the Elonis v. United States (2015) – Threats – 1st Amendment
Learn More About What is Obscene…. be careful about education it may enlighten you
We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment
We also have the Obscenity and Pornography – 1st Amendment
Learn More About Police, The Government Officials and You….
$$ Retaliatory Arrests and Prosecution $$
Anti-SLAPP Law in California
Freedom of Assembly – Peaceful Assembly – 1st Amendment Right
We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address
We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address
We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests
We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests
We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment
We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment
Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1$t Amendment – Learn More Here
Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech
We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment
We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment
Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment
ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!
Penal Code 118 PC – California Penalty of “Perjury” Law
Federal Perjury – Definition by Law
Penal Code 132 PC – Offering False Evidence
Penal Code 134 PC – Preparing False Evidence
Penal Code 118.1 PC – Police Officer$ Filing False Report$
Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment
Penal Code 148.5 PC – Making a False Police Report in California
Penal Code 115 PC – Filing a False Document in California
Sanctions and Attorney Fee Recovery for Bad Actors
FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here
FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here
Awarding Discovery Based Sanctions in Family Law Cases – Click Here
FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here
Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here
Mi$Conduct – Pro$ecutorial Mi$Conduct
Prosecutor$
Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney
What is a Fiduciary Duty; Breach of Fiduciary Duty
The Attorney’s Sworn Oath
Malicious Prosecution / Prosecutorial Misconduct – Know What it is!
New Supreme Court Ruling – makes it easier to sue police
Possible courses of action Prosecutorial Misconduct
Misconduct by Judges & Prosecutor – Rules of Professional Conduct
Functions and Duties of the Prosecutor – Prosecution Conduct
Criminal Motions § 1:9 – Motion for Recusal of Prosecutor
Pen. Code, § 1424 – Recusal of Prosecutor
Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case
Mi$Conduct – Judicial Mi$Conduct
Judge$
Prosecution Of Judges For Corrupt Practice$
Code of Conduct for United States Judge$
Disqualification of a Judge for Prejudice
Judicial Immunity from Civil and Criminal Liability
Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge
l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form
How to File a Complaint Against a Judge in California?
Commission on Judicial Performance – Judge Complaint Online Form
Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves
Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case
Misconduct by Government Know Your Rights Click Here (must read!)
Under 42 U.S.C. $ection 1983 – Recoverable Damage$
42 U.S. Code § 1983 – Civil Action for Deprivation of Right$
18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law
18 U.S. Code § 241 – Conspiracy against Right$
Section 1983 Lawsuit – How to Bring a Civil Rights Claim
Suing for Misconduct – Know More of Your Right$
Police Misconduct in California – How to Bring a Lawsuit
How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)
Deprivation of Rights – Under Color of the Law
What is Sua Sponte and How is it Used in a California Court?
Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case
Anti-SLAPP Law in California
Freedom of Assembly – Peaceful Assembly – 1st Amendment Right
How to Recover “Punitive Damages” in a California Personal Injury Case
Pro Se Forms and Forms Information(Tort Claim Forms here as well)
What is Tort?
PARENT CASE LAW
RELATIONSHIP WITH YOUR CHILDREN &
YOUR CONSTITUIONAL RIGHT$ + RULING$
YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK
Family Law Appeal – Learn about appealing a Family Court Decision Here
9.3 Section 1983 Claim Against Defendant as (Individuals) —
14th Amendment this CODE PROTECT$ all US CITIZEN$
Amdt5.4.5.6.2 – Parental and Children’s Rights –
5th Amendment this CODE PROTECT$ all US CITIZEN$
9.32 – Interference with Parent / Child Relationship –
14th Amendment this CODE PROTECT$ all US CITIZEN$
California Civil Code Section 52.1
Interference with exercise or enjoyment of individual rights
Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS
SEARCH of our site for all articles relating for PARENTS RIGHTS Help!
Child’s Best Interest in Custody Cases
Are You From Out of State (California)? FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Learn More:Family Law Appeal
Necessity Defense in Criminal Cases
GRANDPARENT CASE LAW
Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes
Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required
Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf
Distinguishing Request for Custody from Request for Visitation
Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment
S.F. Human Servs. Agency v. Christine C. (In re Caden C.)
9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship
Child’s Best Interest in Custody Cases
When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder
Joinder In Family Law Cases – CRC Rule 5.24
GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center
Motion to vacate an adverse judgment
Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder
When is a Joinder in a Family Law Case Appropriate?
Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848
Punsly v. Ho (2001) 87 Cal.App.4th 1099
Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242
S.F. Human Servs. Agency v. Christine C. (In re Caden C.)
DUE PROCESS READS>>>>>>
Due Process vs Substantive Due Process learn more HERE
Understanding Due Process – This clause caused over 200 overturns in just DNA alone Click Here
Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test
“Unfriending” Evidence – 5th Amendment
At the Intersection of Technology and Law
We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings
Retrieving Evidence / Internal Investigation Case
Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here
Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here
Orange County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below:
APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here
Learn About Policy 814: Discovery Requests OCDA Office – Click Here
Request for Proof In-Custody Form Click Here
Request for Clearance Letter Form Click Here
Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here
Request Authorization Form Release of Case Information – Click Here
Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts
Can I Use Text Messages in My California Divorce?
Two-Steps And Voila: How To Authenticate Text Messages
How Your Texts Can Be Used As Evidence?
California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests
case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government Employees
Public Records Practices After the San Jose Decision
The Decision Briefing Merits After the San Jose Decision
CPRA Public Records Act Data Request – Click Here
Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here
Rules of Admissibility – Evidence Admissibility
Confrontation Clause – Sixth Amendment
Exceptions To The Hearsay Rule – Confronting Evidence
Prosecutor’s Obligation to Disclose Exculpatory Evidence
Successful Brady/Napue Cases – Suppression of Evidence
Cases Remanded or Hearing Granted Based on Brady/Napue Claims
Unsuccessful But Instructive Brady/Napue Cases
ABA – Functions and Duties of the Prosecutor – Prosecution Conduct
Frivolous, Meritless or Malicious Prosecution – fiduciary duty
Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence
First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here
Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation
Cal. Code Civ. Proc. § 1008 Motion to Reconsider
Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case
CACI No. 1501 – Wrongful Use of Civil Proceedings
Penal Code “995 Motions” in California – Motion to Dismiss
WIC § 700.1 – If Court Grants Motion to Suppress as Evidence
Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here
Notice of Appeal — Felony (Defendant) (CR-120) 1237, 1237.5, 1538.5(m) – Click Here
California Motions in Limine – What is a Motion in Limine?
Cleaning Up Your Record
Penal Code 851.8 PC – Certificate of Factual Innocence in California
Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here
SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92 & 1000.4 – 11105 – CARE ACT
Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC
How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC
Seal & Destroy a Criminal Record
Cleaning Up Your Criminal Record in California (focus OC County)
Governor Pardons – What Does A Governor’s Pardon Do
How to Get a Sentence Commuted (Executive Clemency) in California
How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion
Epic Criminal / Civil Right$ SCOTUS Help – Click Here
Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here
Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on
Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors
Family Treatment Court Best Practice Standards
Download Here this Recommended Citation
Please take time to learn new UPCOMING
The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site
The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.
The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.
