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Behrens v. Behrens6/22/2005
r, the trial court repeatedly asked for authority that the failure to follow these requirements was a breach of a fiduciary duty. Because no authority was submitted, the trial court declined to instruct on breach of fiduciary duty. As previously mentioned, the trial court did, however, submit the reasonableness of the fee dispute to the jury, instructing them to consider the issue under the factors set forth in Rule of Professional Conduct 1.5.
[ .] In analyzing this issue, we see no legal error because a failure to charge a reasonable fee or a failure to timely communicate the basis of a fee in violation of Rule 1.5 does not automatically establish a breach of a fiduciary duty. Rather:
" violation of a Rule [of Professional Conduct] should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability."
Standish v. Sotavento Corp., 755 A2d 910, 915 (ConnAppCt 2000) (citing Mozzochi v. Beck, 529 A2d 171, 176 n8 (Conn 1987) (quoting the Rules of Professional Conduct, Preamble (1986)). This is not to say that other violations of the rules would not establish a breach of fiduciary duty. On the contrary:
nlike the disciplinary rules governing regarding negligent conduct, the ethics rules concerning the fiduciary obligations commonly are cited by the courts in civil damage actions regarding the propriety of the attorney's conduct. One reason for this difference in usage is that the disciplinary rules concerning the fiduciary obligations often are reasonably accurate statements of the common law........
2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 14.5, 551 (5th ed 2000). Thus, as is explained below, fiduciary rules such as Rule 1.6 regarding confidentiality, Rule 1.7 and 1.8 regarding conflicts of interest, and Rule 1.9 regarding adverse representation may establish a breach of fiduciary duty. See generally id. §§ 14.5-14.7.
[ .] A breach of fiduciary duty in the attorney-client relationship "arises from the representation of a client and involves the fundamental aspects of an attorney-client relationship. The fiduciary obligations are twofold: (1) confidentiality; and (2) undivided loyalty." Id. § 14.2 at 535. Thus, " he phrase ''fiduciary breach''... is no more descriptive than the phrase ''legal malpractice[;]'' [and a] cause of action for fiduciary breach requires a breach of confidence, a breach of loyalty, or both." Id. at 536-537. Therefore, " lthough the attorney functions in a fiduciary relationship, a wrong by an attorney does not thereby become a fiduciary breach." Id. at 537. " he courts have recognized that claims of negligence [breach of duty], which do not implicate thea duty of confidentiality or loyalty, do not support a cause of action for fiduciary breach." Id.
[ .] In this case, Behrens were not entitled to a breach of fiduciary duty instruction because they were unable to establish that the failure to communicate the basis of the fee, or the dispute over the reasonableness of the fee, involved a breach of a fiduciary duty; i.e., one involving confidentiality or loyalty. We note that numerous courts have discussed breach of fiduciary duty when an attorney embezzles, engages in conflicts of interest, or violates obligations of loyalty, thus vviolating the common-law duty of a fiduciary. However, no such facts were presented in this case. Therefore, we believe that, absent some showing of misuse of trust, conflict of interest, breach of loyalty, or other conduct i
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