[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

— in other words, it is within at least the penumbra of some common law, statutory, or
other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or
unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other
businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of
unfairness. A practice may be unfair because of the degree to which it meets one of the
criteria or because to a lesser extent it meets all three.” . . .
If the facts as alleged are proven, the plaintiff will have established that Manko violated
Rule 1.7 of the Rules of Professional Conduct. This in turn would satisfy the first prong of
the cigarette rule which requires a determination of whether the practice offends public
policy. In this court’s opinion the Rules of Professional Conduct are a judicially conceived
public policy because “since October 1986, the conduct of attorneys has been regulated . . .
by the Rules. . . .”
Regarding the second and third prongs of the cigarette rule, the court concludes that
the allegations within the complaint, if proven, will establish that the conduct was
unethical, (thereby satisfying the second prong) as well as a practice that caused substantial
injury to consumers and to competitors alike.
C. The Eleventh Count: Breach of a Fiduciary Duty
Manko argues that the plaintiff has failed to allege sufficient facts to support a claim of
a breach of a fiduciary duty. It is his position that the facts as alleged in the complaint do
not implicate his honesty, loyalty or morality, which are the hallmarks of a fiduciary duty.
“Professional negligence alone, however, does not give rise automatically to a claim for
breach of fiduciary duty. . . . Professional negligence implicates a duty of care, while breach
of a fiduciary duty implicates a duty of loyalty and honesty.”
The commentary to Rule 1.7 of the Rules of Professional Conduct states, in relevant
part, that, “Loyalty is an essential element in the lawyer’s relationship to a client.” Here, the
allegations include a claim that an elderly, and ill person was brought to Manko’s office to
sign a deed to her home. She was uncomfortable enough with the situation that she asked
whether she should have her own attorney. Despite the plaintiff’s expression of discomfort,
Manko continued with the transaction, acting in the capacity of her attorney. He also
presumably accepted the proceeds of the sale as her trustee.
As an attorney, Manko possessed a superior skill and expertise to those of the plaintiff.
Pursuant to the Rules of Professional Conduct, he was under a duty of loyalty and trust to
the plaintiff. The court concludes that the plaintiff has pled sufficient facts, as read in the
light most favorable to the plaintiff, to support a claim of breach of a fiduciary duty. . . .
Problem
9-6. Buyer and Seller of real estate come to Martyn & Fox to handle the deal. They
have agreed on the price, date of closing, and identity of the property to be conveyed. Can
Martyn & Fox undertake the engagement?
280