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Breach of Fiduciary Duty

The second most common legal theory brought against attorneys by their clients, after negligence, is breach of fiduciary duty. If the facts underlying both claims are identical, courts will often dismiss the fiduciary breach claim as duplicative of the negligence claim.

A lawyer is a fiduciary to his client, with heightened duties of loyalty, confidentiality, honesty and obedience. An attorney’s fiduciary obligations create a “standard of conduct,” which is analogous to the “standard of care” for negligence.

The most common fiduciary breaches by lawyers that lead to litigation are doing business with a client, fee disputes, handling client funds improperly, acting on behalf of multiple clients in a litigation and favoring the interests of one client, an undisclosed conflict of interest, becoming adverse to a former client. Cases very occasionally arise from betraying client confidentiality and sexual relations with a client.

In addition to proving fiduciary breach, a client also has the burden of proving that the breach itself proximately caused recoverable damages.