This book is only available in PDF format
Authors: Dr Gerard Curry, Peter Whiteside KC
Published: 8 December 2016
Pages: 70

Introduction

Every second of every day that we lawyers devote to the practice of law, fiduciary duties and a duty of care bind us to the principled conduct of our profession.

This seminar deals with one source of those duties - fiduciary law. Lawyers, as fiduciaries to their clients, and partners as fiduciaries to each other, must know what their fiduciary obligations are. The Lawyers and Conveyancers Act 2006 describes fiduciary duties as a
“fundamental obligation” (Appendix 1).¹ The Act requires lawyers “to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients”.² Consequently, all practising lawyers require a sound knowledge of fiduciary law in order that we not only satisfy our own professional duties but also position ourselves to competently advise clients whether they are susceptible to liability for breach of a fiduciary obligation or whether they have a claim for fiduciary breach. (Continued...)

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¹ Lawyers and Conveyancers Act 2006, s 4.  
² At s 4(3). 

Content outline

• What constitutes a fiduciary relationship?
  • Underlying characteristics of fiduciary law
  • Relationship with other areas of law
  • Relationship with professional ethics
  • Who are fiduciaries?
  • What obligations do fiduciaries owe and to whom?
  • When will fiduciaries be in breach of their obligations?
  • What are the consequences for breach?
  • What can fiduciaries to do protect themselves from liability for breach of fiduciary duty?
• Fiduciary obligations of lawyers
  • Obligation to avoid conflict
  • Conflicts between clients
  • Lawyer acting against former clients
  • The duty of confidence
  • Fiduciary obligation to account
  • Remedies for breach of the duty of loyalty by a lawyer
  • Remedies for breach of confidence
• Partnership – some aspects
  • What is a partnership?
  • What fiduciary duties do partners owe?
  • Appraisals
  • Fiduciary duties after dissolution
  • Scope of duties
• Fiduciary obligations owed by a party in business
  • Facts of the case (Chirnside v Fay)
  • Developments in the cases since Chirnside v Fay  
  • Consequences of the judgment in Chirnside v Fay for parties considering business venture with others
  • Quantum assessment by the supreme court

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