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Lawyer Malpractice Class #5: The Lawyer's Fiduciary Duties

 Hofstra Law School Class #5

Read: Fortney & Johnson, Legal Malpractice Law, Ch. 4, pp. 101-116; 421-424. 


Restatement of Law Governing Lawyers

§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". 

Here’s a question to consider: If a lawyer overcharges a client, are there any circumstances where could be considered a breach of fiduciary duty?  I’d like to hear your thoughts on this. 

Share your comments, questions and input.  Just click the "Comment" button.

Prof. W. 



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Posted in: CLE & Law School Course, Fiduciary Duty