Unlike the traditional negligence action (or Gorski v. Smith breach of contract, discussed in previous columns), it is arguable that attorneys may be liable for their breach of fiduciary duty to their client even in the absence of causally related “damages.” An attorney breaching his fiduciary duty may be liable for disgorgement of fees as well as punitive damages.
For example, the 3rd U.S. Circuit Court of Appeals predicted the Pennsylvania Supreme Court would recognize a breach of fiduciary duty claim arising from the failure to make adequate and meaningful (and not form) disclosures regarding a conflict of interest even within a class action.
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