Court requires allegation of violation of duty of loyalty or confidentiality to support a breach of fiduciary duty claim

The ABA/BNA Lawyers' Manual on Professional Conduct reports on a case that highlights again the debated distinction between claims for malpractice based on negligent conduct and on a breach of a fiduciary duty. The case involved a client who claimed that his former lawyer broke a promise to secure certain witnesses for a post-conviction evidentiary hearing and that the lawyer's lapse doomed any chance of post-conviction success. The Court affirmed the dismissal of the claim because the plaintiff failed to allege that the lawyer breached a fiduciary duty. The Court found it imporntant that the former client did not claim that the lawyer violated client confidences, harbored divided loyalties, or put the interests of others ahead of the client's interests. It held that in a suit for breach of fiduciary suit, it is not enough to charge that a lawyer failed to exercise due care. A claim for breach of fiduciary duty must allege some shortcoming related to the lawyer's obligations of loyalty or confidentiality. The court remanded the case, however, and directed the trial court to allow the former client—a pro se plaintiff sitting in prison—a reasonable opportunity to amend his petition. (Costa v. Allen, Mo., No. SC89177, 11/25/08).