St. Denis & Davey, P.A.

Legal Malpractice Issues

Florida legal malpractice: Duty of care and fiduciary duty are distinct

| Mar 25, 2021 | Conflict of Interest, Duty of Care, Fiduciary Duty, Legal Malpractice Law |

Under the umbrella of legal malpractice are two kinds of claims against a lawyer: breach of the duty of care and breach of fiduciary duty. Each duty involves a different professional aspect of the attorney-client relationship.

Broadly, the duty of care concerns attorney competency and the duty of a fiduciary is all about loyalty.

Lawyer’s duty of care

As we explained in an earlier post, when an attorney represents a client, the lawyer owes the client a reasonable duty of care to protect the client’s interests in the matter for which the lawyer was retained. The duty of care concerns the nuts and bolts of the practice of law – does the lawyer have the average or ordinary knowledge, skill and competence an attorney must have to accomplish what they were hired to do?

The duty of care also requires professionalism in the way the lawyer practices law. For example, are they diligent and prudent in how they accomplish the tasks involved? Do they meet deadlines; file the right documents with the correct government office; perform the necessary legal research; and then execute each step on time and adequately to accomplish the client’s goals?

Attorneys are fiduciaries

The concept of a fiduciary duty is easy to understand if you think more broadly. Lawyers are fiduciaries, but so are people serving in other official roles like guardians, trustees, people with powers of attorney, stockbrokers, real estate brokers and others. The common denominator is that these are positions of trust that require loyalty to another person in conducting that person’s business, managing their affairs, protecting their interests or keeping them safe.

You might say that someone with a fiduciary duty must act in the best interest of the person to whom the duty is owed even when no one is looking. As concerns an attorney’s fiduciary duty, one Florida case called Smyrna Developers, Inc., v. Bornstein explained that a lawyer is “under a duty at all times to represent [their] client and handle [their] client’s affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity.”

The fiduciary duty requires acting in good faith and with fairness and trustworthiness – and never in the lawyer’s own personal interest adverse to the client’s. If a conflict of interest develops between legal counsel and their client, the lawyer must fully and fairly disclose this to the client so the client can choose either to consent to representation despite the conflict or to get another attorney.

The two duties are separate theories of legal malpractice

In looking at whether a lawyer committed malpractice, violation of either or both duties would constitute professional negligence or malpractice.