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
[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
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
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)