Back to the Future: Fiduciary Duty Then and Now

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.