WPI 107.10 Breach of Fiduciary Duty—Burden of Proof

Use this instruction with WPI 107.09 (Attorney's Fiduciary Duty) and WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence). Also use Verdict Forms A and B from WPI 45.20 (General Verdict Forms—Personal Injury/Wrongful Death—Single Defendant—No Contributory Negligence—No “Empty Chairs”—Separate Damage Elements), or other applicable verdict form from WPI Chapter 45 (Forms of Verdicts).

The first element includes two bracketed alternatives, one for use in the standard case in which the plaintiff alleges that the defendant was his or her attorney, the other for use when the plaintiff was a non-client to whom the attorney owed a duty. If the judge has ruled as a matter of law that the plaintiff was a non-client to whom the attorney owed a duty of care, then use the applicable alternative in this instruction and instruct the jury that the element has already been established.

For a discussion of disgorgement of attorney fees, see the Comment below.

Elements. A plaintiff alleging a breach of a fiduciary duty “must prove (1) existence of a duty owed, (2) breach of that duty, (3) resulting injury, and (4) that the claimed breach proximately caused the injury.” Micro Enhancement Int'l, Inc. v. Coopers & Lybrand, LLP, 110 Wn.App. 412, 433–34, 40 P.3d 1206 (2002); see also DeWolf, 29 Washington Practice, Washington Elements of an Action § 12:1 (2016–2017 ed.). The cause of action sounds in tort. Micro Enhancement Int'l, Inc. v. Coopers & Lybrand, LLP, 110 Wn.App. at 433.

Rules of Professional Conduct. The Rules of Professional Conduct (RPC) may be used as the basis for finding that an attorney breached a fiduciary duty. Cotton v. Kronenberg, 111 Wn.App. 258, 264–66, 44 P.3d 878 (2002). This is in contrast to negligence-based malpractice actions, for which the RPCs do not conclusively establish the standard of care. Hizey v. Carpenter, 119 Wn.2d 251, 265–66, 830 P.2d 646 (1992); Hetzel v. Parks, 93 Wn.App. 929, 935, 971 P.2d 115 (1999); see the discussion in the Comment to WPI 107.04 (Legal Malpractice—Negligence—Standard of Care); see also Mallen, 2 Legal Malpractice § 20:11through 20:12 (2017 ed.). See also Schibel v. Eymann, 189 Wn.2d 93, 399 P.3d 1129 (2017) (former client may not maintain a malpractice claim for improper withdrawal from a pending lawsuit on the eve of trial when such withdrawal was allowed by the trial court judge).

Breach of fiduciary duty—Non-clients. An attorney's fiduciary duty to a client may sometimes be owed to non-clients, just as the attorney's standard of care is sometimes owed to non-clients in negligence-based malpractice actions. The same six-part test applies in either circumstance. See Cummings v. Guardianship Servs. of Seattle, 128 Wn.App. 742, 757 fn.42, 110 P.3d 796 (2005) (applying the six-part Trask test to a fiduciary duty case); Hetzel v. Parks, 93 Wn.App. at 935–39 (same holding as in Cummings). The existence of this duty is usually resolved by the judge as a question of law, although occasionally the decision may involve an underlying factual issue. For further discussion of the six-part test, see the Note on Use and Comment to WPI 107.02 (Duty to a Non-Client).

Proximate cause and damages—Disgorgement of fees. A client whose attorney has breached a fiduciary duty may be entitled to disgorgement of attorney fees, even in the absence of proof of proximate cause and damages. See Eriks v. Denver, 118 Wn.2d 451, 462–63, 824 P.2d 1207 (1992). “The general principle that a breach of ethical duties may result in denial or disgorgement of fees is well recognized.” Eriks v. Denver, 118 Wn.2d at 462. Because disgorgement of fees is addressed by a judge as a matter of law, not by a jury, see Eriks v. Denver, 118 Wn.2d 451, jury instructions on this point will not be needed.