The Florida Bar
The Florida Bar Journal
June, 2011 Volume 85, No. 6

Page 4

Fiduciary Duty
The task of undertaking an in-depth definitional study of fiduciary duty is unquestionably a daunting one, for which the authors of “Understanding Fiduciary Duty” (March 2010) are to be commended. The purpose of the article is to facilitate understanding of fiduciary relationships, provide practical guidance, define the scope and limitations of the duty, and survey available remedies. The focus is, thus, quite broad.

Nonetheless, this work is arguably incomplete in at least two respects. First, there is a failure to differentiate in any meaningful way fiduciary from nonfiduciary relationships. This is an issue requiring elaboration beyond what is obscurely provided in the footnotes. Fortunately, the copious law review material cited in the footnotes includes a theoretical work titled “The Critical Resource Theory of Fiduciary Duty,” 55 Vand. L. Rev. 1399 (2002), where these authors make a compelling case for a unified theory of fiduciary duty in which differentiation of fiduciary from nonfiduciary relationships is a primary goal.

The “critical resource” requirement arises from a need for a workable substitute for the concept of “property” in the analysis of fiduciary duty. These authors contend that nonproperty based theories are too narrow in scope largely because fiduciary duties can arise in contexts which include confidential information and other circumstances in which traditional notions of property play no role. The critical resource theory avoids this construct in favor of development of a framework for categorizing established fiduciary relationships and effective analysis of the nontraditional. It also obviously functions as the necessary link between fiduciary and beneficiary for this purpose. Whether or not one questions the theoretical value of the work, this impressive scholarship is worthy of careful study.

A second criticism of the article is that it entirely omits mention of the duty of confidentiality. Although the majority of claims involve loyalty, Florida clearly recognizes a fiduciary duty of confidentiality implicating both civil liability and exposure of counsel to disciplinary proceedings.

Recent decisions are instructive. In Gracey v. Eaker, 837 So. 2d 348 (Fla. 2007), the court upheld a cause of action against a psychotherapist for breach of the duty of confidentiality. The court further held that the impact rule was inapplicable to the breach. Elkind v. Bennett, 958 So. 2d 1088 (Fla. 4th DCA 2007), involved a claim against a lawyer for breach of confidentiality. Though ultimately decided on procedural grounds, the case discusses and acknowledges the validity of the cause of action and the impact of ethical rules that protect against disclosure of confidential information. The opinion also underscores the fact that the duty of confidentiality continues even after termination of the attorney-client relationship.

On a concluding note, these authors have undertaken a task that is truly massive in scope. This offering, quite modest in contrast, should be understood as a constructive means of continuing this interesting discussion and broadening the issues for Florida lawyers.

James I. Sullivan, Tampa

[Revised: 02-10-2012]