Saturday, June 12, 2021
Robert Flannigan recently published an article entitled, Fiduciary Agency Denied, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.
There is a long running conflict of authority on a fundamental aspect of agency. The conflict is whether every agent, or agent function, is regulated by fiduciary accountability. On one side are numerous conventional cases where agency is described as a status fiduciary relation without qualification. That is, expressly or implicitly, agents are identified as fiduciaries by reason of their status alone in all respects on a default basis. Only through the informed consent of the principal may that accountability be altered or eliminated. On the other side are judicial statements in a variety of cases that deny that every agent is subject to the regulation. Judges have not confronted the evident contradiction of principle. The contradiction has been noted by some modern writers, but the matter generally has received only cursory attention. I will investigate the matter in some depth. I show that there is no historical foundation for the denial of the default accountability. The matter, it should be appreciated, is of considerable importance for both the law of agency and the law of fiduciary accountability. One must understand clearly what might justify any supposed differential treatment for some agents.