This section briefly surveys four other theories of lawyer liability: breach of fiduciary duty, breach of contract, violation of the Washington Consumer Protection Act, and aiding and abetting. It is important to note, however, that these four areas are not an exclusive list of the legal theories that can be directed against lawyers expressly or by way of remedy. For example, depending on the particular activities involved, lawyers may be subject to securities claims. See generally Hines v. Data Line Sys., Inc., 114 Wn.2d 127, 147-51, 787 P.2d 8 (1990) (analyzing law firm liability under Washington State Securities Act). Similarly, lawyer misconduct may be a basis for a court to decline enforcement of
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a contract. See generally LK Operating, LLC v. Collection Grp., LLC 181 Wn.2d 48, 88-90, 331 P.3d 1147 (2014). Finally, business transactions with clients that violate RPC 1.8(a) may also trigger a host of civil liability claims against lawyers under various theories. See generally Mark J. Fucile, Danger Zone Business Deals with Clients, NWLawyer, Feb. 2016, at 37(1) Breach of fiduciary duty
A lawyer owes clients fiduciary duties. See Perez v. Pappas, 98 Wn.2d 835, 840-41, 659 P.2d 475 (1983) ("[T]he attorney-client relationship is a fiduciary one as a matter of law and thus the attorney owes the highest duty to the client."); accord Kelly v. Foster, 62 Wn. App. 150, 155, 813 P.2d 598, review denied, 118 Wn.2d 1001 (1991). A lawyer's breach of a fiduciary duty may form the nucleus of a legal malpractice action. See generally Kelly, 62 Wn. App. at 154-55; see, e.g., Hetzel v. Parks, 93 Wn. App. 929, 935, 971 P.2d 115 (1999) (legal malpractice action by a nonclient based on a breach of fiduciary duty). But, it can also be framed as an independent cause of action. See, e.g., Eriks v. Denver, 118 Wn.2d 451, 456-63, 824 P.2d 1207 (1992) (based on a multiple-client conflict); Cotton v. Kronenberg, 111 Wn. App. 258, 264-72, 44 P.3d 878 (2002) (based on a conflict between the lawyer's financial interest and a client), review denied, 148 Wn.2d 1011 (2003).
Even if a claimant has not sustained a specific financial loss as a result of the lawyer's breach of fiduciary duty, the lawyer may still be ordered to disgorge or return the fees involved as well as to write off any fees that had not as yet been paid. Eriks, 118 Wn.2d at 456-63; Cotton, 111 Wn. App. at 264-72; see also Simburg, Ketter, Sheppard & Purdy, L.L.P. v. Olshan, 97 Wn. App. 901, 910, 988 P.2d 467 (1999) (discussing the return of fees for a lawyer's breach of fiduciary duty), as amended, 109 Wn. App. 436, 33 P.3d 742, review granted, 141 Wn.2d 1001 (2000). Whether a lawyer has breached a fiduciary duty is a question of law. Simburg, 97 Wn. App. at 910. As such, a court—unlike in a legal malpractice case—can specifically consider applicable Rules of Professional Conduct in determining whether a lawyer breached a fiduciary duty. Id.; compare Hizey, 119 Wn.2d at 257-66 (prohibiting specific reference to the Rules of Professional Conduct in testimony or jury instructions in legal malpractice cases).
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| Note: | Paragraph 20 of the Scope section |
