Lawyer of a Society As a Fiduciary

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Contents I Introduction 3 II Aiding and Abetting Standard 3 III Application of Aiding and Abetting Liability Standard 4 IV Liability for an Attorney 4 V Mr Lawyer: First, Do No Harm; Second, Prevent Harm 5 VI Civil Conspiracy 6 VIIFraudulent Scheme 6 VIIIThird Party Derivative Client 7 IX Lawyers Duty to Client Who is a Trustee 8 X Perpetrating Frauds or Illegal Activity 9 XI Society Context 9 XIIConclusion 10 2
LAWYER OF A SOCIETY AS A FIDUCIARY I Introduction Attorneys face a variety of ethical challenges. While doing the “right” thing may not always be easy, it should always be clear. Rules of professional conduct demarcate the line between right and wrong in some instances. Other areas, however, are left to common law (and judicial interpretation) to develop. The question is whether (and, if so, under what circumstances) an attorney (and in our case legal counsel of the Society) may be held liable for aiding and abetting a clients breach of fiduciary duty and hence criminal Breach of Trust.. II Aiding and Abetting Standard The common law of torts imposes liability for aiding and abetting another in commission of a wrongful act. The parameters of aiding and abetting liability are laid out in the Restatement (Second) of Torts using a three-prong test: 1. the aided party must commit tortious conduct; 2. the aider must know that the aided partys conduct constitutes a breach of duty; and 3. the aider must give substantial assistance or encouragement to the aided party. Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. However, assistance can be so slight so as to avoid liability; the factors to consider in determining liability are: 1. the nature of the act encouraged; 2. the amount of assistance given by the defendant; 3. the presence or absence of the defendant at the time of the tort; 4. the defendants relation to the other; and 5. the defendants state of mind. 3
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Lawyer of a Society As a Fiduciary

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