Lawyer of a Society As a Fiduciary
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<strong>Lawyer</strong> <strong>of</strong> a <strong>Society</strong> <strong>As</strong> a <strong>Fiduciary</strong><br />
Chandra Nath ∗<br />
May 3, 2014<br />
∗ nath@computer.org He is an Independent researcher engaged in research in information<br />
security, privacy, law & justice.<br />
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Contents<br />
I Introduction 3<br />
II Aiding and Abetting Standard 3<br />
III Application <strong>of</strong> Aiding and Abetting Liability Standard 4<br />
IV Liability for an Attorney 4<br />
V Mr <strong>Lawyer</strong>: First, Do No Harm; Second, Prevent Harm 5<br />
VI Civil Conspiracy 6<br />
VIIFraudulent Scheme 6<br />
VIIIThird Party Derivative Client 7<br />
IX <strong>Lawyer</strong>s Duty to Client Who is a Trustee 8<br />
X Perpetrating Frauds or Illegal Activity 9<br />
XI <strong>Society</strong> Context 9<br />
XIIConclusion 10<br />
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LAWYER OF A SOCIETY AS A FIDUCIARY<br />
I<br />
Introduction<br />
Attorneys face a variety <strong>of</strong> ethical challenges. While doing the “right”<br />
thing may not always be easy, it should always be clear. Rules <strong>of</strong><br />
pr<strong>of</strong>essional conduct demarcate the line between right and wrong in<br />
some instances. Other areas, however, are left to common law (and judicial<br />
interpretation) to develop. The question is whether (and, if so, under what<br />
circumstances) an attorney (and in our case legal counsel <strong>of</strong> the <strong>Society</strong>) may<br />
be held liable for aiding and abetting a clients breach <strong>of</strong> fiduciary duty and<br />
hence criminal Breach <strong>of</strong> Trust..<br />
II<br />
Aiding and Abetting Standard<br />
The common law <strong>of</strong> torts imposes liability for aiding and abetting another in<br />
commission <strong>of</strong> a wrongful act. The parameters <strong>of</strong> aiding and abetting liability<br />
are laid out in the Restatement (Second) <strong>of</strong> Torts using a three-prong test:<br />
1. the aided party must commit tortious conduct;<br />
2. the aider must know that the aided partys conduct constitutes a breach<br />
<strong>of</strong> duty; and<br />
3. the aider must give substantial assistance or encouragement to the<br />
aided party.<br />
Advice or encouragement to act operates as a moral support to a tortfeasor<br />
and if the act encouraged is known to be tortious it has the same effect upon<br />
the liability <strong>of</strong> the adviser as participation or physical assistance. However,<br />
assistance can be so slight so as to avoid liability; the factors to consider in<br />
determining liability are:<br />
1. the nature <strong>of</strong> the act encouraged;<br />
2. the amount <strong>of</strong> assistance given by the defendant;<br />
3. the presence or absence <strong>of</strong> the defendant at the time <strong>of</strong> the tort;<br />
4. the defendants relation to the other; and<br />
5. the defendants state <strong>of</strong> mind.<br />
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III<br />
Application <strong>of</strong> Aiding and Abetting Liability<br />
Standard<br />
A fiduciary relationship is one in which one person [called a fiduciary] is under<br />
a duty to act for the benefit <strong>of</strong> another [called a beneficiary] on matters<br />
within the scope <strong>of</strong> the relationship. Common examples <strong>of</strong> fiduciary relationships<br />
include guardian-ward, agent-principal, and attorney-client.The fiduciarys<br />
obligation to act for the benefit <strong>of</strong> another is known as a fiduciary duty,<br />
and breach <strong>of</strong> that duty causes the fiduciary to be liable to the beneficiary.<br />
Combining aiding and abetting liability with this breach <strong>of</strong> fiduciary duty<br />
liability creates a straightforward result: one who knowingly provides substantial<br />
assistance or encouragement to another in breaching a fiduciary duty<br />
is liable for aiding and abetting the breach <strong>of</strong> fiduciary duty. <strong>As</strong> explored<br />
above, providing advice or encouragement satisfies the substantial assistance<br />
prong. Therefore, it follows that an attorney who counsels his or her client to<br />
breach a fiduciary duty should be liable for aiding and abetting that breach<br />
<strong>of</strong> fiduciary duty. Aiding in a breach <strong>of</strong> fiduciary duty may also be aiding in<br />
the commission <strong>of</strong> a crime. For example, an attorney may advise a trustee<br />
on how to siphon funds from a beneficiary. In this case, since the breach <strong>of</strong><br />
fiduciary duty is a Criminal Breach <strong>of</strong> Trust by a public servant ( Section<br />
409 in The Indian Penal Code, 1860 and punishable with imprisonment <strong>of</strong><br />
either description for a term which may extend to ten years, and shall also<br />
be liable to fine), the act <strong>of</strong> the lawyer is a clear case <strong>of</strong> aiding and abetting<br />
a crime.<br />
IV<br />
Liability for an Attorney<br />
If an attorney advised that agent or that partner as to how to breach their<br />
fiduciary duty with greater stealth or success, that attorney would have aided<br />
and abetted in a breach <strong>of</strong> fiduciary duty. This begs the question <strong>of</strong> whether<br />
the attorney, who owes a fiduciary duty to his or her own clients, should<br />
be liable to their clients beneficiary. Reynolds sued Schrock and Markely<br />
for breach <strong>of</strong> fiduciary duty for aiding and abetting a breach <strong>of</strong> fiduciary<br />
duty. The lawsuit against Schrock was settled, leaving Markley as the sole<br />
defendant. The court held that summary judgment in the attorneys favor was<br />
proper, recognizing an exception for attorneys from liability for aiding and<br />
abetting a clients breach <strong>of</strong> fiduciary duty. However, the exception created<br />
for attorneys is not unlimited: For a third party to hold an attorney liable for<br />
aiding and abetting a client in breach <strong>of</strong> a fiduciary duty, the burden is on the<br />
third party to prove that the lawyer acted outside the scope <strong>of</strong> the lawyer-<br />
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client relationship. This exception extends liability to attorney conduct that<br />
is unrelated to the representation <strong>of</strong> a client (even if the person is a client), in<br />
the attorneys own self-interest, or within the crime or fraud exception to the<br />
attorney-client privilege. While the court in Granewich 1 did accept as true<br />
the allegations in the complaint pleading that the attorneys acted outside<br />
the scope <strong>of</strong> their legitimate employment, the court did not state that this<br />
fact was determinative to its decision, declaring instead that the defendants<br />
status as lawyers is irrelevant.<br />
V<br />
Mr <strong>Lawyer</strong>: First, Do No Harm; Second,<br />
Prevent Harm<br />
This leads us to the question whether attorneys have an affirmative duty to<br />
prevent their clients from causing harm in the form <strong>of</strong> a breach <strong>of</strong> fiduciary<br />
duty. The argument over whether an attorney must, must not, or may disclose<br />
to a clients beneficiary that the client is acting inappropriately with<br />
regard to the fiduciary relationship presupposes the basic notion that the<br />
attorney should not contribute to the clients malfeasance.<br />
Pr<strong>of</strong>essor Ge<strong>of</strong>frey Hazard, perhaps the primary figure in legal ethics to<br />
day,advocates that where an attorneys client is a fiduciary <strong>of</strong> a third party,<br />
that third party assumes derivative client status and the actual client is<br />
the primary client.(THE LAW AND ETHICS OF LAWYERING 5th ed.<br />
Foundation Press 2010 with Susan P. Koniak, Roger C. Cramton, George M.<br />
Cohen & W. Bradley Wendel) Under this model, the attorney effectively has<br />
two clients: the primary client (the actual client who hired the attorney) and<br />
the derivative client (the beneficiary <strong>of</strong> the primary clients fiduciary duty).<br />
Since the primary client (as a fiduciary) is obligated to work in the interest<br />
<strong>of</strong> the derivative client (as a beneficiary), the attorney is as well. Three<br />
consequences <strong>of</strong> this primary-derivative client model follow:<br />
1. the lawyers obligation to avoid participation in his or her clients fraud<br />
is engaged by a more sensitive trigger than usual;<br />
2. the lawyer must ensure that the fiduciary-primary client volunteers<br />
complete and truthful information to the third party-derivative client;<br />
and<br />
3. the lawyer has a duty to disobey instructions that would wrongfully<br />
harm the third party-derivative client (because a client is not permitted<br />
to use an attorney to harm the clients beneficiary).<br />
1 http://caselaw.findlaw.com/or-court-<strong>of</strong>-appeals/1437855.html<br />
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While the appellate court affirmed the trial court’s dismissal, it is apparent<br />
that the decision was influenced by the monumental stupidity <strong>of</strong> the<br />
plaintiff’s legal theory!<br />
VI<br />
Civil Conspiracy<br />
“Civil conspiracy is a separate cause <strong>of</strong> action that requires, interalia,<br />
1. an underlying tort and a ’meeting <strong>of</strong> the minds’ among the co-conspirator<br />
’on the object or course <strong>of</strong> action’ to be taken. By contrast, a cause <strong>of</strong><br />
action requires only the knowing participation <strong>of</strong> a party in a breach<br />
<strong>of</strong> a fiduciary duty and does not require a conspiratorial agreement.”<br />
2. Second, the breach <strong>of</strong> fiduciary duties or scheme <strong>of</strong> oppression must<br />
involve misrepresentations, failure to disclose, or deceptive conduct so<br />
that breach <strong>of</strong> fiduciary duties constitutes fraudulent conduct.<br />
3. Third, the plaintiff must plead and prove that the attorney had knowledge<br />
<strong>of</strong> the object and purpose <strong>of</strong> the conspiracy; that there was an<br />
understanding or agreement to inflict a wrong against, or injury on,<br />
the third party; that there was a meeting <strong>of</strong> minds on the object or<br />
cause <strong>of</strong> action; and that there was some mutual mental action coupled<br />
with an intent to commit the act that resulted in the injury.<br />
4. Finally, the plaintiff must plead and prove that the attorney’s conduct<br />
went beyond mere fulfillment <strong>of</strong> his pr<strong>of</strong>essional duties to the majority<br />
shareholder.<br />
In the present context <strong>of</strong> the <strong>Society</strong> counsel, all the above are satisfied.<br />
Certainly, personal benefit from the proceeds <strong>of</strong> the fraud would certainly<br />
satisfy this burden. Here in the present context, <strong>Society</strong> counsel benefited<br />
from the appointment as legal counsel <strong>of</strong> the <strong>Society</strong> over a prolonged period.<br />
VII<br />
Fraudulent Scheme<br />
The plaintiff could also plead and prove conduct by the attorney necessary<br />
to the accomplishment <strong>of</strong> the fraudulent scheme, such as meaningless work<br />
designed to convey a false impression. The illegitimate and illegal Rules <strong>of</strong><br />
the <strong>Society</strong> and the <strong>Society</strong>’s insistence on compliance <strong>of</strong> the members <strong>of</strong> the<br />
<strong>Society</strong> to these Rules are sufficient to prove this. The “welfare” facade <strong>of</strong><br />
the <strong>Society</strong> that it is engaged in some noble welfare activity for the veteran<br />
is another fraudulent scheme.<br />
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The attorney will argue that everything done in devising and implementing<br />
a scheme to oppress the members <strong>of</strong> the <strong>Society</strong> over a period <strong>of</strong><br />
3 decades is merely “the rendering <strong>of</strong> legal services”; however the plaintiff<br />
should counter that these particular services are “foreign to the duties <strong>of</strong> an<br />
attorney.” Poole v. Houston & T.C. Ry, 58 Tex. 134, 137 (1882).<br />
VIII<br />
Third Party Derivative Client<br />
Pr<strong>of</strong>essor Hazard advocates that where an attorneys client is a fiduciary <strong>of</strong> a<br />
third party, that third party assumes derivative client status and the actual<br />
client is the primary client. Under this model, the attorney effectively has<br />
two clients:<br />
• the primary client (the actual client who hired the attorney) and<br />
• the derivative client (the beneficiary <strong>of</strong> the primary clients fiduciary<br />
duty).<br />
Since the primary client (as a fiduciary) is obligated to work in the interest<br />
<strong>of</strong> the derivative client (as a beneficiary), the attorney is as well. Three<br />
consequences <strong>of</strong> this primary-derivative client model follow:<br />
1. the lawyers obligation to avoid participation in his or her clients fraud<br />
is engaged by a more sensitive trigger than usual;<br />
2. the lawyer must ensure that the fiduciary-primary client volunteers<br />
complete and truthful information to the third party-derivative client;<br />
and<br />
3. the lawyer has a duty to disobey instructions that would wrongfully<br />
harm the third party-derivative client (because a client is not permitted<br />
to use an attorney to harm the clients beneficiary).<br />
Pr<strong>of</strong>essor Hazard accounts for such problems however, stating that where<br />
the client is openly adverse to the beneficiary, the joint client model is not<br />
viable. Examples <strong>of</strong> such clear cases arise:<br />
1. where the lawyer is retained to represent the fiduciary in litigation<br />
concerning the performance <strong>of</strong> the fiduciary duty;<br />
2. where the lawyer is hired to represent the fiduciary in negotiating the<br />
terms and conditions <strong>of</strong> his or her <strong>of</strong>fice (the duties and compensation<br />
<strong>of</strong> the fiduciary, for example); and<br />
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3. where a lawyer with no prior involvement is hired to negotiate for<br />
the termination or reformation <strong>of</strong> the fiduciary-beneficiary relationship.<br />
However, Hazard argues that in the normal legal relationship between<br />
fiduciary and beneficiary the fiduciary is fulfilling his or her duties and<br />
therefore the joint client model poses no such problems. However, if<br />
the properly functioning fiduciary relationship collapses and becomes<br />
antagonistic, the lawyer would only be able to represent the interests<br />
<strong>of</strong> his or her true (or primary) client.<br />
IX<br />
<strong>Lawyer</strong>s Duty to Client Who is a Trustee<br />
Traditionally, an attorney could only be liable in tort to his or her own<br />
client. However, inroads have reconstructed this maxim, and an attorney<br />
has certain responsibilities to third parties, particularly when the third party<br />
has a relationship with the attorneys client. In the situation where a lawyers<br />
client is also a fiduciary, the lawyer may have a duty to prevent the client<br />
from breaching his or her own duties to the non-client. While argument<br />
exists as to whether an attorney is required to prevent a clients breach <strong>of</strong><br />
fiduciary duty, a lawyer owes a duty <strong>of</strong> care to a nonclient when and to the<br />
extent that:<br />
1. the lawyers client is a trustee, guardian, executor, or fiduciary acting<br />
primarily to perform similar functions for the nonclient;<br />
2. the lawyer knows that appropriate action by the lawyer is necessary<br />
with respect to a matter within the scope <strong>of</strong> the representation to prevent<br />
or rectify the breach <strong>of</strong> a fiduciary duty owed by the client to the<br />
nonclient, where<br />
(a) the breach is a crime or fraud or<br />
(b) the lawyer has assisted or is assisting the breach;<br />
3. the nonclient is not reasonably able to protect its rights; and<br />
4. such a duty would not significantly impair the performance <strong>of</strong> the<br />
lawyers obligations to the client.<br />
<strong>As</strong> laid out in subsections above, this duty does not attach in all circumstances<br />
in which the client is a fiduciary only those in which the client<br />
exercises substantial power over another (as in the case <strong>of</strong> a guardian or<br />
trustee) and the clients beneficiary is not reasonably able to protect its own<br />
rights. (Here the <strong>Society</strong> Members qualify on this as they suffered under this<br />
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for 3 decades) This duty requires attorneys in certain circumstances to clean<br />
up their own mess when they have assisted a clients breach <strong>of</strong> fiduciary duty,<br />
or prevent a mess from being made when the clients breach <strong>of</strong> fiduciary duty<br />
would be illegal or fraudulent. Such affirmative duties imply a fundamental<br />
duty not to aid in a clients breach <strong>of</strong> fiduciary duty at the <strong>of</strong>fset. While<br />
imposing a duty <strong>of</strong> disclosure on the attorney could arguably create conflict<br />
<strong>of</strong> interest problems and chill clients willingness to communicate frankly<br />
with their attorneys, those same problems do not arise by merely barring<br />
the attorney from advising or participating in a clients breach <strong>of</strong> fiduciary<br />
duty . Despite courts conclusions to the contrary, no solid foundation exists<br />
to create an exception for attorneys from liability for aiding and abetting<br />
a clients breach <strong>of</strong> fiduciary duty. Whether created explicitly or by strict<br />
interpretation <strong>of</strong> the elements <strong>of</strong> the tort, such an exception is inappropriate.<br />
X<br />
Perpetrating Frauds or Illegal Activity<br />
In protecting attorneys from lawsuits alleging aiding and abetting a breach<br />
<strong>of</strong> fiduciary duty through the imposition <strong>of</strong> a heightened pleading standard,<br />
requiring the plaintiff to lay out his or her claim in more rigorous detail in<br />
the complaint is especially inappropriate. Pleading with such particularity<br />
is usually reserved for situations in which even the allegation <strong>of</strong> the tortious<br />
activity could damage a potentially innocent defendant (for example, fraud or<br />
mistake). Allegations <strong>of</strong> aiding and abetting a breach <strong>of</strong> fiduciary duty do not<br />
rise to the same level <strong>of</strong> damage in accusation. Any charge <strong>of</strong> tortious activity<br />
inevitably causes some harm to the defendant, but this particular cause <strong>of</strong><br />
action does no more harm to a pr<strong>of</strong>essional reputation than other torts, such<br />
as malpractice, which do not command heightened levels <strong>of</strong> specificity at the<br />
pleading stage.Attorneys who aid or advise clients in perpetrating frauds or<br />
engaging in illegal activity may be held liable for their actions, and indeed<br />
the attorney client privilege is not available for communications regarding<br />
the fraud or crime.<br />
XI<br />
<strong>Society</strong> Context<br />
In the present context, the attorney is the legal counsel <strong>of</strong> the registered <strong>Society</strong><br />
and paid from contributions <strong>of</strong> the contributing members ( and NOT<br />
the members <strong>of</strong> the Board <strong>of</strong> Management) <strong>of</strong> the <strong>Society</strong>. He is fully aware<br />
that the BoM are usurpers and the rules constructed to administer the <strong>Society</strong><br />
are both illegitimate and also illegal to boot. He is aware that that he is<br />
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NOT employed by a Trustee company providing services <strong>of</strong> trusteeship and<br />
his compensation did not come from the trustee company funds! Hence, the<br />
beneficiary members <strong>of</strong> the <strong>Society</strong> are the actual clients <strong>of</strong> the legal counsel<br />
because the funds came from the Members <strong>of</strong> the <strong>Society</strong>! Thus, he decidedly,<br />
deliberately, knowingly and willingly violated his fiduciary duties to his<br />
actual clients.<br />
XII<br />
Conclusion<br />
The acts <strong>of</strong> the legal counsel are hence “unconscionable” from this legal<br />
theory alone.<br />
The reasoning behind such a rule (that a legal counsel is criminally liable)<br />
is that society rightfully wishes to discourage attorneys from making such<br />
suggestions to clients. The same rationale applies to advising clients to breach<br />
fiduciary duties. Since such advice is to be discouraged, attorneys who pr<strong>of</strong>fer<br />
it should be held liable to the extent they cause harm.<br />
Legal counsel <strong>of</strong> the <strong>Society</strong> should prepare to be charged with criminal<br />
liability on the basis <strong>of</strong> this legal theory alone. Where all the counsel from A<br />
to Z from the “legal counsel” are illegal, is it possible that the counsel was<br />
referring to laws unknown or conflicting with the laws <strong>of</strong> the land? Or, could<br />
it be that all the advise <strong>of</strong> the counsel and the decisions <strong>of</strong> the defendant<br />
monumental stupidity <strong>of</strong> his legal theory? One such theory seems to be<br />
that <strong>Society</strong> can be compelled to be compliant to the rule <strong>of</strong> law only if<br />
its aggrieved members take them to the court, not other wise with all the<br />
exhortations to comply with the law. For us, the essence <strong>of</strong> adjudication<br />
is the opportunity to state our case in our own words to some one who is<br />
listening.<br />
**********************************<br />
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