
Contents
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I. Introduction: The Fiduciary Duties of Professionals I. Introduction: The Fiduciary Duties of Professionals
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II. The Legal Basis and Trigger for Lawyers’ Fiduciary Duties II. The Legal Basis and Trigger for Lawyers’ Fiduciary Duties
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III. The Duty of Loyalty III. The Duty of Loyalty
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A. Conflicts of Interest A. Conflicts of Interest
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B. Confidentiality B. Confidentiality
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C. Identifying and Representing the Client C. Identifying and Representing the Client
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D. Communication D. Communication
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IV. The Duty of Care IV. The Duty of Care
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A. Familiarity with the Client’s Affairs A. Familiarity with the Client’s Affairs
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B. Safeguarding Confidentiality B. Safeguarding Confidentiality
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V. The Relationship between Fiduciary Duties and Other Duties of Professional Responsibility V. The Relationship between Fiduciary Duties and Other Duties of Professional Responsibility
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A. Tensions A. Tensions
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B. Congruence B. Congruence
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VI. Lawyers as Trustees VI. Lawyers as Trustees
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VII. Mandatory and Default Rules VII. Mandatory and Default Rules
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A. Duties of Professional Responsibility A. Duties of Professional Responsibility
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B. Generally Applicable Laws B. Generally Applicable Laws
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VIII. Remedies VIII. Remedies
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IX. Conclusion IX. Conclusion
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14 Fiduciary Principles in Legal Representation
Get accessRichard W. Painter is S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School.
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Published:09 May 2019
Cite
Abstract
This chapter examines the fiduciary duties of lawyers, and especially how such duties shape—and are shaped by—their other professional responsibilities. It begins with a discussion of the legal basis of lawyers’ fiduciary duties as well as the circumstances that trigger a lawyer-client fiduciary relationship. It then considers the lawyers’ fiduciary duty of loyalty, focusing on the duty to avoid conflicts of interest, the duty of confidentiality owed by a lawyer to a client, the duty of candor, and the duty to communicate to the client information that the latter needs to make informed decisions about the subject matter of the representation. It also explores the lawyer’s fiduciary duty of care, including the duty to familiarize himself with the client’s affairs and to safeguard confidential information; the relationship between fiduciary duties and other duties of professional responsibility; cases where lawyers are subject to the specific duties of a common law trustee; and two types of mandatory rules to which lawyers, as professional fiduciaries, are subject and that cannot be waived with client consent: mandatory rules of professional responsibility and generally applicable laws. The chapter concludes with an analysis of remedies available when a lawyer commits a breach of fiduciary duty, along with the unique challenges faced by lawyers when they also become trustees for their clients or third persons.
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