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What Is Fiduciary Duty?
What is fiduciary duty? In the words of Kendrick Lamar, “Loyalty, loyalty, loyalty.” It is that easy.
Judge Posner Describes the Golden Rule
In the words of the United States Court of Appeals, it is, “candor, rectitude, care, loyalty, and good faith–in fact to treat the principal as well as the agent would treat himself.
The common law imposes that duty when the disparity between the parties in knowledge or power relevant to the performance of an undertaking is so vast that it is a reasonable inference that had the parties in advance negotiated expressly over the issue they would have agreed that the agent owed the principal the high duty that we have described, because otherwise, the principal would be placing himself at the agent’s mercy.
An example is a relation between a guardian and his minor ward, or a lawyer and his client. The ward, the client, is in no position to supervise or control the actions of his principal on his behalf; he must take those actions on trust; the fiduciary principle is designed to prevent that trust from being misplaced.” Burdett v. Miller, 957 F.2d 1375 (7th Cir. 1992) (Posner, J.)
Who Does It Apply To?
I have noticed that a lot of legal professionals think that fiduciary duty applies only to attorneys who are working in certain areas of law, such as Mergers & Acquisitions, Estate Planning, etc.
However, all lawyers owe a fiduciary duty to their clients. The Court’s ruling in Burdett v. Miller cited above was regarding a case against a Certified Public Accountant yet in its order the judge expressly used the relationship between a lawyer and his client when stressing the importance of fiduciary duty.
Fulfilling your fiduciary duty to your client is simply maintaining your clients’ best interests at all times. There are times when an attorney has a duty to report something, and that could create a conflict of interest in that respect, but above and beyond that, there should be no situation that would conflict with attorney’s fiduciary duty to their clients.
It’s Easy
It’s that easy, right? It is. And it should be. Paralegals who know and deeply respect that a lawyer’s fiduciary duty to their client contributes a vital service to attorneys as well as the legal field as a whole. I often tell my clients that they should view our relationship as one where I am their big sister. I look after my clients at all times in all ways.
And not the kind of big sister that would swindle you out of your money or get you in trouble at school. The kind of big sister that always has your back. Those are the kind of big sisters I had growing up and that’s exactly how I treat my clients.
Incessantly Ask “Is This In My Client’s Best Interest?”
I am very fortunate to have received my initial paralegal training at Legal Aid of Nebraska where “Is this in my client’s best interest?” was the first question we always asked ourselves while working on our cases.
We never had to see if our client had any money in their trust account before we could ask that question. A situation never presented itself, as it does so often in private practice, where if the case settled we would make less money.
By Proxy
And although these are very real scenarios in private practice when fulfilling our fiduciary duties to our clients, we still have to remember that attorneys are fiduciaries and paralegals are fiduciaries as well by proxy, if nothing else.
I take my fiduciary duty very seriously and I am proud to have built a great reputation because of that. You can ask anyone of my clients that I have served and I am confident they will all attest that at all times I treated them with the utmost care and loyalty. I treated them just as I would myself or one of my siblings, as promised. If you are a like-minded paralegal and would like to join our Paralegal Power Group on Facebook click here to request to join.
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About the Author
Valentina Zapata Harris
Mother | Advocate | Blogger