Sunday, November 30, 2008

Not All Lapses Breach Fiduciary Duties

In an appeal of the dismissal of an action brought by a criminal client against his former public defender, the Missouri Supreme Court remanded the action. The allegation involved the failure to call certain witnesses in a post-conviction proceeding. The former client sued on a theory of breach of fiduciary duty, which the court here rejected based on its conclusion that not all lapses by a lawyer violate such duties. The lawsuit did not allege confidentiality or conflicts violations that would establish a basis for such a claim. Nonetheless, remand was required because the pro se plaintiff had not been given adequate opportunity to amend his pleadings. (Mike Frisch)

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