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Back to the Future: Fiduciary Duty Then and Now

CENTURY OF LEGAL ETHICS: TRIAL LAWYERS AND THE ABA CANONS OF PROFESSIONAL ETHICS, American Bar Association, 2009

University of Toledo Legal Studies Research Paper

21 Pages Posted: 11 May 2012  

Susan R. Martyn

University of Toledo - College of Law

Lawrence J. Fox

Drinker Biddle & Reath LLP

Andrew S. Pollis

Case Western Reserve University School of Law

Date Written: May 11, 2009

Abstract

The 5 C fiduciary duties governed the conduct of lawyers both one hundred years ago when the ABA Canons of Legal Ethics were produced, and also as far back as two hundred years ago, when the common law was first being articulated in American courts. These duties are more carefully and clearly articulated today, but have been jewels abiding in the mines of agency, tort and evidence law for centuries.

Henry Drinker, in his 1953 Treatise, Legal Ethics, tells us that a major motivation in articulating these obligations in the Nineteenth and early Twentieth century lawyer codes was “the imperative necessity of taking a firm stand against the rising tide of commercialism and the growing influence of those who would turn the profession from a “branch in the administration of justice” into a mere “money getting trade.” I submit we face that same daunting challenge today.

We can respond as did our predecessors, by remembering the centuries old articulation of fiduciary duty in both the common law and lawyer codes. Armed with a renewed sense of back to the future, we should continue to refine and remember the basic 5 C’s: client control of the goals of the representation, communication, conflict of interest resolution, confidentiality and competence. The next century of legal ethics should be premised on the same foundation that has protected clients for the past two.

Suggested Citation

Martyn, Susan R. and Fox, Lawrence J. and Pollis, Andrew S., Back to the Future: Fiduciary Duty Then and Now (May 11, 2009). CENTURY OF LEGAL ETHICS: TRIAL LAWYERS AND THE ABA CANONS OF PROFESSIONAL ETHICS, American Bar Association, 2009; University of Toledo Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2056401

Susan R. Martyn (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419 530-4212 (Phone)
419 530-2821 (Fax)

Lawrence J. Fox

Drinker Biddle & Reath LLP ( email )

One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103
United States

Andrew S. Pollis

Case Western Reserve University School of Law ( email )

Milton A. Kramer Law Clinic Center
11075 East Boulevard
Cleveland, OH 44106-7148
United States

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