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Claims Against Lawyers for Aiding and Abetting a Client's Breach of Fiduciary Duty

Submitted by Katerina Lewinbuk on Tue, 04-26-2011
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Let's Sue All the Lawyers: The Rise of Claims Against Lawyers for Aiding and Abetting a Client's Breach of Fiduciary Duty
Katerina Lewinbuk
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Prof. Katerina Lewinbuk
South Texas College of Law
1303 San Jacinto Street
Houston, TX 77096
(312)646-2940 (off.)
Arizona State Law Journal
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United States
"Let’s Sue All the Lawyers: the Rise of Claims Against Lawyers for Aiding and Abetting a Client’s Breach of Fiduciary Duty"
If you drive East on Interstate I-10 approximately 60 miles outside of Houston, Texas, you will see a huge billboard on the road stating :
“WE SUE LAWYERS. (713)223-3333. Sears-Crawford, LLP, Houston, Texas.”
Shocking as it may seem, this sign represents a recent trend of going after lawyers using every possible legal theory that exists. The courts are supportive of attorney liability in various contexts thus making these claims possible. As an example, let’s assume attorney A represents client B, who has a business relationship with partner C. During the business transactions involving B, C and their business, Client B breached her fiduciary duty that she owed to C, and C now wants to sue for the breach. In the past, all that C could do was sue B for her breach of fiduciary duty. Today, C will also likely sue attorney A for aiding and abetting B’s breach of fiduciary duty.
The role and responsibilities of a lawyer have changed and expanded significantly in comparison to what they were in the past. As plaintiffs continue to develop a number of legal theories to advance claims against attorneys, lawyers now face a totally different and much more substantial level of exposure to liability when they perform legal services for their clients. In particular, one claim which has been expanded in recent years is the allegation of aiding and abetting a client’s breach of fiduciary duty.
The challenge of aiding and abetting liability in any context is that it extends beyond persons who engage, even indirectly, in a proscribed activity, and reaches individuals who do not take part in such activity at all, but who give a degree of aid to those who do. Thus, a critical distinction between a regular legal malpractice claim and a claim against an attorney for aiding and abetting her client’s breach of fiduciary duty is that a plaintiff need not allege that the attorney actually owed the plaintiff a direct duty of care. This distinction allows for an entirely new class of plaintiffs to bring claims against attorneys.
My article offers a general survey and analysis of such claims, including their historic origin and current status. It also proposes a possible solution that limits a number of meritless aiding & abetting claims against lawyers and offers attorneys a sense of protection by using judicial discretion to pre-screen the applicable complaints.
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