What Is a Fiduciary Duty That Your Attorney Owes to You?

The Restatement and a leading treatise state that in every state in the union including Arizona, attorneys have recognized fiduciary duties to their clients. (See, Legal Malpractice Litigation at 4-4, Entrekin, Bloomberg BNA 2018; Restatement of Law (Third) Governing Lawyers, Section 16(3)).

Arizona Attorneys’ Fiduciary Duties to their Clients

These duties include a duty to deal honestly with their clients and to communicate all facts relevant to important decisions that belong to the client. (Id.; Id.)

Attorneys in every state also have a fiduciary duty of loyalty to the client and the classic example is conflict of interest.  An attorney must scrupulously avoid situations where the attorney’s desire to serve the interest of someone else (including the attorney himself or herself) does not interfere with the attorney’s duty to zealously represent the client.

This duty of loyalty requires the attorney not to sacrifice a vital interest of the plaintiff, such as a liberty interest, to the attorney’s interest in increasing the attorney’s compensation. (Id.; Id.; Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 907 P.2d 506 (App. 1995)).

“The right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client…. Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer.” Von Moltke v. Gillies, 332 U.S. 708, 725-26, 68 S.Ct. 316, 324, 92 L.Ed. 309, 331-32 (U.S. 1948) (plurality opinion).

An attorney must also safeguard client confidences and safeguard a client’s property entrusted to the attorney. Restatement of Law (Third) Governing Lawyers, Section 16(3).

Speaking of these fiduciary duties, a state supreme court held: “[n]o deviation from that duty can be permitted.  That principle of conduct is a stern and inflexible rule controlling the relationship of attorney and client…” Bank of Mill Creek v. Elk Horn Coal Corp., 133 W. Va. 639, 57 S.E.2d 736 (W. Va. 1950).