Legal Malpractice by Any Other Name: Why a Breach of Fiduciary Duty Claim Does Not Smell as Sweet

Abstract

Permitting clients to pursue breach of fiduciary duty claims against their former attorneys is a critical development in the law of lawyering for several reasons. Although an important development in the law, courts have nonetheless, at times, done an inadequate job of creating and applying fiduciary law to the attorney-client relationship. To make matters worse, courts have, at times, failed even to distinguish breach of fiduciary duty claims from traditional professional negligence claims. The failure of the courts to discuss and emphasize the distinctions between the two have led to a sloppy body of law that fails to consider, in any meaningful manner, the impact of these novel theories of recovery on the ever-expanding law of lawyering. Because the ramifications of each of these actions are unique, clearly distinguishing between the two is critical.

This Article argues in favor of a position not previously espoused in the literature – a client should be able to sue her attorney for breach of fiduciary duty only when the attorney has either (1) committed a criminal offense victimizing the client, (2) perpetrated a scheme to defraud the client, or (3) caused actual harm to the client by virtue of the breach of fiduciary duty. This Article will first discuss the evolution and current status of legal malpractice actions based on traditional professional negligence law. It will then discuss the evolution and current status of legal malpractice actions based on breach of fiduciary duty. This Article will then discuss why clients suing their lawyers find breach of fiduciary duty claims attractive. Next, it will consider the recent trend of the courts in permitting breach of fiduciary duty claims against lawyers. Finally, this Article will outline the appropriate application of breach of fiduciary duty claims against lawyers.

Keywords: breach of fiduciary duty, legal malpractice, legal professionalism, attorney liability