4106 . Breach of Fiduciary Duty by Attorney - Essential Factual
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun /it] was harmed
because [ name of defendant ] breached an attorney’ s duty [ describe duty ,
e.g., “not to r epr esent clients with conflicting inter ests” ]. T o establish this
claim, [ name of plaintiff ] must prove all of the following:
1. That [ name of defendant ] breached the duty of an attorney
[ describe duty ];
2. That [ name of plaintiff ] was harmed; and
3. That [ name of defendant ]’s conduct was a substantial factor in
causing [ name of plaintiff ]’s harm.
New September 2003; Revised April 2004; Renumber ed from CACI No. 605
December 2007; Revised May 2019, May 2020
Directions for Use
The existence of a fiduciary relationship is a question of law . Whether an attorney
has breached that fiduciary duty is a question of fact. ( David W elch Co. v . Erskine &
T ulley (1988) 203 Cal.App.3d 884, 890 [250 Cal.Rptr . 339], disapproved on other
grounds in Lee v . Hanley (2015) 61 Cal.4th 1225, 1239 [191 Cal.Rptr .3d 536, 354
Give CACI No. 430, Causation: Substantial Factor , with this instruction.
The causation standard for an attorney’ s intentional breach of fiduciary duty differs
from that for a negligent breach. If the plaintif f alleges an attorney’ s intentional
breach of duty , do not include the optional last sentence of CACI No. 430,
Causation: Substantial Factor , on “but for” causation. The “but for” causation
standard does not apply to an intentional breach of fiduciary duty . If the plaintif f
alleges an attorney’ s negligent breach of duty , the “but for” (“would have happened
anyway”) causation standard applies. ( Knutson v . Foster (2018) 25 Cal.App.5th
1075, 1093-1094 [236 Cal.Rptr .3d 473]; see V iner v . Sweet (2003) 30 Cal.4th 1232
[135 Cal.Rptr .2d 629, 70 P .3d 1046].) If the plaintif f alleges a negligent breach of
duty , give the optional last sentence of CACI No. 430: “Conduct is not a substantial
factor in causing harm if the same harm would have occurred without that conduct.”
If the plaintif f alleges both negligent breach and intentional or fraudulent breach, the
jury must be instructed on both causation standards and it should be made clear
which causation standard applies to which claim.
If the harm allegedly caused by the defendant’ s conduct involves the outcome of a
legal claim, the jury should be instructed with CACI No. 601, Legal
Malpractice - Causation , for the “but for” standard. (See Gutierr ez v . Girar di (201 1)
194 Cal.App.4th 925, 928, 933-937 [125 Cal.Rptr .3d 210] [discussing circumstances
when a client need not show that they objectively would have obtained a better
result in the underlying case in the absence of the attorney’ s breach (the trial-within-
a-trial method)].)
Sources and Authority
• “ ‘The relation between attorney and client is a fiduciary relation of the very
highest character .’ ” ( Neel v . Magana, Olney , Levy , Cathcart & Gelfand (1971) 6
Cal.3d 176, 189 [98 Cal.Rptr . 837, 491 P .2d 421].)
• “ ‘The breach of fiduciary duty can be based upon either negligence or fraud
depending on the circumstances. It has been referred to as a species of tort
distinct from causes of action for professional negligence [citation] and from
fraud [citation].’ ‘The elements of a cause of action for breach of fiduciary duty
are the existence of a fiduciary relationship, breach of fiduciary duty , and
damages.’ ” ( Knutson, supra , 25 Cal.App.5th at pp. 1093-1094, internal citation
• “Substantial factor causation is the correct causation standard for an intentional
breach of fiduciary duty .” ( Knutson, supra , 25 Cal.App.5th at p. 1094.)
• “The trial court applied the legal malpractice standard of causation to [plaintif f]’ s
intentional breach of fiduciary duty cause of action. The court cited The Rutter
Group’ s treatise on professional responsibility to equate causation for legal
malpractice with causation for all breaches of fiduciary duty: ‘ “The rules
concerning causation, damages, and defenses that apply to lawyer negligence
actions . . . also govern actions for breach of fiduciary duty .” ’ This statement of
the law is correct, however , only as to claims of breach of fiduciary duty arising
from negligent conduct.” ( Knutson, supra , 25 Cal.App.5th at p. 1094, internal
citations omitted.)
• “Expert testimony is not required, but is admissible to establish the duty and
breach elements of a cause of action for breach of fiduciary duty where the
attorney conduct is a matter beyond common knowledge.” ( Stanley , supra, 35
Cal.App.4th at p. 1087, internal citations omitted.)
• “The scope of an attorney’ s fiduciary duty may be determined as a matter of law
based on the Rules of Professional Conduct which, ‘together with statutes and
general principles relating to other fiduciary relationships, all help define the
duty component of the fiduciary duty which an attorney owes to his [or her]
client.’ ” ( Stanley , supra, 35 Cal.App.4th at p. 1087.)
Secondary Sources
1 W itkin, California Procedure (5th ed. 2008) Attorneys, § 87 et al.
V apnek et al., California Practice Guide: Professional Responsibility ¶ 6:425 (The
Rutter Group)
3 Levy et al., California T orts, Ch. 32, Liability of Attorneys , § 32.02[4] (Matthew
7 California Forms of Pleading and Practice, Ch. 76, Attorney Pr ofessional Liability ,
CACI No. 4106 BREACH OF FIDUCIAR Y DUTY
§ 76.150 (Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice ,
§§ 24A.43, 24A.56B (Matthew Bender)
BREACH OF FIDUCIAR Y DUTY CACI No. 4106
Page last reviewed May 2024
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