The [Fiduciary] Duty of Fidelity
Law Quarterly Review, Vol. 124, p. 274, April 2008
26 Pages Posted: 14 Mar 2008 Last revised: 8 Mar 2009
It has become common, primarily in the employment context, for judges to assert the existence of a duty of "fidelity" distinct from fiduciary duty. As we will see, however, the duty of fidelity is an invention or development that rests on serial failures to comprehend the course of the case law. A linear progression of inattentive authority recast conventional fiduciary accountability as the supposed independent duty of fidelity. Early cases that spoke of "breach of confidence" were wrongly understood as constituting a distinct doctrinal category. The actual crystallization of that misperception appears to have occurred only recently in the middle of the twentieth century. Coincidentally with that crystallization, the separate recognition of an independent duty of "fidelity" was founded on the same line of cases. In both instances, the breakaway into novel doctrinal categories occurred without any discussion or apparent appreciation of severance or disconnection. The independence of the doctrines was literally assumed. Today, notwithstanding the awkward confusion produced by the taxonomic masking of their functional redundancy, the duties of confidence and fidelity endure essentially as forms of fiduciary accountability. I will examine the developments that produced the [fiduciary] duty of fidelity.
Keywords: fiduciary, fidelity, confidence, breach of confidence, duty of loyalty
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