California Civil Jury Instructions (CACI) (2017)

4106. Breach of Fiduciary Duty by Attorney—Essential Factual Elements

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4106.Breach of Fiduciary Duty by Attorney—Essential Factual
Elements
[Name of plaintiff] claims that [he/she/it] was harmed because [name of
defendant] breached an attorney’s duty [describe duty, e.g., “not to
represent clients with conflicting interests”]. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] breached the duty of an attorney
[describe duty];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised April 2004; Renumbered from CACI No. 605
December 2007
Directions for Use
The existence of a fiduciary relationship is a question of law. Whether an attorney
has breached that fiduciary duty is a question of fact. (David Welch Co. v. Erskine
& Tulley (1988) 203 Cal.App.3d 884, 890 [250 Cal.Rptr. 339], disapproved on
other grounds in Lee v. Hanley (2015) 61 Cal.4th 1225, 1239 [191 Cal.Rptr.3d 536,
354 P.3d 334].)
Sources and Authority
• “To establish a cause of action for breach of fiduciary duty, a plaintiff must
demonstrate the existence of a fiduciary relationship, breach of that duty and
damages.” (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509
[85 Cal.Rptr.3d 268].)
• “ ‘The relation between attorney and client is a fiduciary relation of the very
highest character.’ ” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971)
6 Cal.3d 176, 189 [98 Cal.Rptr. 837, 491 P.2d 421].)
• “[A] breach of fiduciary duty is a species of tort distinct from a cause of action
for professional negligence.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070,
1086 [41 Cal.Rptr.2d 768].)
• “Expert testimony is not required, but is admissible to establish the duty and
breach elements of a cause of action for breach of fiduciary duty where the
attorney conduct is a matter beyond common knowledge.” (Stanley, supra, 35
Cal.App.4th at p. 1087, internal citations omitted.)
• “The scope of an attorney’s fiduciary duty may be determined as a matter of
law based on the Rules of Professional Conduct which, ‘together with statutes
and general principles relating to other fiduciary relationships, all help define
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the duty component of the fiduciary duty which an attorney owes to his [or her]
client.’ ” (Stanley, supra, 35 Cal.App.4th at p. 1087.)
Secondary Sources
1 Witkin, California Procedure (4th ed. 1996) Attorneys, § 118
Vapnek et al., California Practice Guide: Professional Responsibility (The Rutter
Group) ¶ 6:425
3 Levy et al., California Torts, Ch. 32, Liability of Attorneys, § 32.02 (Matthew
Bender)
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, § 76.150 (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§§ 24A.27[3][d], 24A.29[3][j] (Matthew Bender)
CACI No. 4106 BREACH OF FIDUCIARY DUTY
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