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WPI 107.09 Attorney's Fiduciary Duty

6 WAPRAC WPI 107.09Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 107.09 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 107. Legal Malpractice
WPI 107.09 Attorney's Fiduciary Duty
An attorney owes a fiduciary duty to his or her client. This fiduciary duty requires that all dealings between the attorney and client be characterized by the utmost fairness and good faith by the attorney to the client. The fiduciary duty of an attorney toward his or her client includes a duty to(describe fiduciary duty).
Use this instruction with WPI 107.10 (Breach of Fiduciary Duty—Burden of Proof).
“A fiduciary relationship exists as a matter of law between an attorney and client, and the attorney owes the highest duty of fidelity and good faith to the client.” In re Larson, 103 Wn.2d 517, 520, 694 P.2d 1051 (1985); see also Perez v. Pappas, 98 Wn.2d 835, 840–41, 659 P.2d 475 (1983). The fiduciary duties arising from an attorney-client relationship are generally categorized as involving the duty of preserving confidences and of individual loyalty. Mallen, 2 Legal Malpractice § 15:1 (2017 ed.).
An attorney's violation of the Rules of Professional Conduct is a breach of the attorney's fiduciary duty to the client. Eriks v. Denver, 118 Wn.2d 451, 824 P.2d 1207 (1992). Washington courts have found a breach of fiduciary duty under the following circumstances:
  • • conflicts of interest, Versuslaw, Inc. v. Stoel Rives, LLP, 127 Wn.App. 309, 111 P.3d 866 (2005);
  • • improper modification of a fee agreement after representation began, Perez v. Pappas, 98 Wn.2d at 840–43; Cotton v. Kronenberg, 111 Wn.App. 258, 44 P.3d 878 (2002); see also Ward v. Richards & Rossano, Inc., 51 Wn.App. 423, 434, 754 P.2d 120 (1988) (court noted that improper fee modification could constitute a breach of fiduciary duty, although factual issues precluded a summary judgment on this issue);
  • • mishandling of client funds, Hetzel v. Parks, 93 Wn.App. 929, 971 P.2d 115 (1999);
  • • over-billing, In re Dann, 136 Wn.2d 67, 960 P.2d 416 (1998); and
  • • failure to perform competently, Hansen v. Wightman, 14 Wn.App. 78, 538 P.2d 1238 (1975), overruled on other grounds in Bowman v. Two, 104 Wn.2d 181, 187, 704 P.2d 140 (1985).
In Arden v. Forsberg & Umlauf, P.S., 189 Wn.2d 315, 402 P.3d 245 (2017), the court noted that defendant/counsel's representation of the plaintiff/client under a reservation of rights did not in and of itself constitute a conflict. Additionally, the plaintiff/client was not damaged and therefore there was no actionable malpractice claim.
[Current as of September 2018.]
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