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

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

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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

source

Judicial Council of California Civil Jury Instructions (2022 edition)

source

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

​

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.)

Ian J. v. Peter M

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

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