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David Diamond Attorney Review

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Attorney David Diamond Review

A fiduciary duty is a legal responsibility to act in the best interest of another party. The term "fiduciary" comes from the Latin word for trust, and a person with a fiduciary duty has a legal obligation to maintain that trust. For example, lawyers have a fiduciary duty to act in the best interest of their clients.

Fiduciary duties include duties of care, loyalty, good faith, confidentiality, prudence, and disclosure. The person with a fiduciary duty is known as the fiduciary, and the person or persons they are responsible to are referred to as the principal or the beneficiary.

A fiduciary relationship existed where the fiduciary owed a duty to the principal. The fiduciary acted in a manner that contradicted, or breached, their expected duties. The principal suffered damages. The damages incurred were a direct result of the breach of fiduciary duty.

The fiduciary duty of an attorney in California is to act in their client's best interests and keep all information provided confidential.

What Constitutes a Breach of Fiduciary Duty in California?

A breach of fiduciary duty can sometimes be difficult to prove. For a breach of duty to have occurred, the defendant (i.e. attorney, consultant, investment broker, trustee) must have a fiduciary duty to the plaintiff. When there is a fiduciary duty to the plaintiff and the defendant did not act in the best interests of their client, a breach of fiduciary duty exists. https://goodshepherdmedia.net/what-is-a-fiduciary-duty-breach-of-fiduciary-duty/

The Lawyer’s Fiduciary Duties: "The 4 C’s":

•  1. Communicate
  RLGL  §20 A Lawyer’s Duty to Inform and Consult with a Client

  • (1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer…

  • (2) A lawyer must promptly comply with a client’s reasonable requests for information.

  • (3) A lawyer must notify a client of decisions to be made by the client…and must explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representation.
    RPC 1.4 Communication

    • (b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

    • (c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representattion.

 Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). (duty to disclose settlement offers to client)
FDIC v. Clark, 978 F.2d 1541 (10th Cir.1992) (duty to inform board of directors of a corporate officer’s fraud).

• 2. Conflict Avoidance (duty of loyalty)
  Maritrans v. Pepper Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992)
  Matter of Silverman, 113 NJ 198 (1988) (doing business with clients)

• 3. Confidentiality
  Profit Sharing Trust v. Lampf Lipkind, 267 NJ Super 174 (Law Div. 1993)

• 4. Competence
  Starron v. Weinstein, 305 N.J.Super. 263, 701 A.2d 1325 

A fiduciary has several duties, The main liabilities for fiduciary of duties include:

• Duty of Care: The duty to take all due diligence in making decisions, providing counsel, or taking action.

• Duty to sensible care

• Duty of Total Loyalty: The duty of loyalty prevents a fiduciary from representing someone with a conflict in interests.

• Duty of Good Faith: Fiduciaries have a duty to obey the law in their dealings on the client’s behalf.

• Duty of Confidentiality: The fiduciary cannot disclose any information without the client’s consent.

• Duty of Prudence: Similar to the duty of care, the duty of prudence requires the fiduciary to take all due care in identifying risks and weighing options before taking action.

• Duty to Disclose: Fiduciaries must not withhold information that would affect the well-being of the client.

§49. Breach of Fiduciary Duty–Generally

In addition to the other possible bases of civil liability described in §§48 [professional negligence] 55[breach of contract and equitable relief] and 56 [liability to a non-client], a lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client set forth in §16(3) and if that failure is a legal cause of injury with the meaning of §53, unless the lawyer has a defense within the meaning of §54. 

§16  Lawyer’s Duties to a Client–Generally:
To the extent consistent with the lawyer’s other legal duties and subject to other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:
(1) proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation;
(2) act with reasonable competence and diligence;
(3) comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client;
(4) fulfill valid contractual obligations to the client. 

The California Rules of Professional Conduct also include:

• Rule 1.1 Competence: (a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.  For purposes of this rule, “competence” in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.

• Rule 1.3 Diligence : A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.

• Rule 1.4 Communication with Clients (a) A lawyer shall:
  (1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent* is required by these rules or the State Bar Act;
  (2) reasonably* consult with the client about the means by which to accomplish the client’s objectives in the representation;
  (3) keep the client reasonably* informed about significant developments relating to the representation, including promptly complying with reasonable* requests for information and copies of significant documents when necessary to keep the client so informed; (b) A lawyer shall explain a matter to the extent reasonably* necessary to permit the client to make informed decisions regarding the representation.

• Rule 3-500: A member shall keep a client reasonably informed about significant developments relating to the employment or representation.

• Rule 4.1: A lawyer shall not make a false statement of fact or law to a third person.

• Rule 3-110: A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

• Rule 3-700: A member shall not withdraw from employment in a proceeding before a tribunal without its permission.

• 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal system which requires both that the attorney bring only meritorious claims and that they not use inappropriate means in the representation of their client that embarrass, burden, delay or violate legal rights. Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Rule 1.7 Conflict of Interest: Current Clients
(a) A lawyer shall not, without informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter.
(b) A lawyer shall not, without informed written consent* from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person,* or by the lawyer’s own interests.
(c) Even when a significant risk requiring a lawyer to comply with paragraph (b) is not present, a lawyer shall not represent a client without written* disclosure of the relationship to the client and compliance with paragraph (d) where:
(1) the lawyer has, or knows* that another lawyer in the lawyer’s firm* has, a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or
(2) the lawyer knows* or reasonably should know* that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm,* or has an intimate personal relationship with the lawyer.
(d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and: (1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client;

Rule 1.8.2 Use of Current Client’s Information A lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent,*

The warrants I have are not know the public. He was told about them in confidentiality and then went on the internet and told the world and its attached directly to my name which is liable defamation as these warrants are not even legitimate warrants, they were malicious persecution and abuse of process that he was told about to help me fight.

Rule 1.8.6 Compensation from One Other than Client
A lawyer shall not enter into an agreement for, charge, or accept compensation for representing a client from one other than the client unless: (a) there is no interference with the lawyer’s independent professional judgment or with the lawyer-client relationship; (b) information is protected as required by Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6

Rule 1.9 Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person* in the same or a substantially related matter in which that person’s* interests are materially adverse to the interests of the former client unless the former client gives informed written consent.*

(b) A lawyer shall not knowingly* represent a person* in the same or a substantially related matter in which a firm* with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person;* and

(2) about whom the lawyer had acquired information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent.*

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm* has formerly represented a client in a matter shall not thereafter:

(1) use information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client to the disadvantage of the former client except as these rules or the State Bar Act would permit with respect to a current client, or when the information has become generally known;* or

(2) reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 acquired by virtue of the representation of the former client except as these rules or the State Bar Act permit with respect to a current client.

After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against the former client knowledge or information acquired by virtue of the previous relationship. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256]; Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564 [15 P.2d 505].) For example, (i) a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client and (ii) a lawyer who has prosecuted an accused person* could not represent the accused in a subsequent civil action against the government concerning the same matter. (See also Bus. & Prof. Code, § 6131; 18 U.S.C. § 207(a).) These duties exist to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer.

In California, breach of fiduciary duty penalties includes civil remedies, civil penalties, and criminal penalties. If a breach of fiduciary duties was done with oppression, fraud, or malice (proven by clear and convincing evidence under California Civil Code § 3294) then the court may award punitive damages. According to California’s Code of Civil Procedure section 343, the statute of limitations for a breach of fiduciary duty is four years. And violates 15 U.S.C. 80a-35 - Breach of fiduciary duty and liabilities 29 U.S. Code § 1109 - Liability for breach of fiduciary duty. His responsibilities as well are §8477. Fiduciary responsibilities; liability and penalties.