What Fiduciary Duty Your Criminal Lawyer Has to You

July 26, 2016

Eyes may start to glaze over when phrases like “fiduciary duty” are bandied about. Visions of Latin phrases and serpentine word arrangements cause the average citizen to freeze in place and slowly back out of the room. But if you have retained a criminal lawyer, the first thing you need to understand is exactly what fiduciary duty he or she owes you as a client. What does the phrase even mean? Good question! Let’s talk about it.

The Simple Version
Duhaime’s Law Dictionary defines fiduciary duty rather simply: “a legal duty of loyalty and faithfulness towards another.” Fiduciary is a word of Latin origin and centers around the idea of trust. Though perhaps more commonly thought of in relationships related to parties engaged in financial relationships, your criminal lawyer should be well aware of how it applies in the field of law.

Characteristics of a Fiduciary Duty
Does a criminal lawyer fit the definition of fiduciary duty in the relationship with a client? Most definitely! There are three primary characteristics that describe the role. The first characteristic assumes that the fiduciary has the scope to exercise power. Obviously, once a client retains an attorney they have granted him or her, as the resident legal expert, power in that capacity. The second characteristic assumes that the power can be unilaterally exercised to affect the client’s legal interests. Lastly, the beneficiary is vulnerable to the fiduciary’s discretion.

How Serious is this Idea?
In all Canadian courts, the fiduciary duty assumed by a criminal lawyer is the highest duty in the profession. This means that an attorney must hold him or herself accountable to act for the benefit of the beneficiary even to the attorney’s own detriment, if the need arises. This is altruism on high.

Limits of Fiduciary Duty
Beneficiaries of fiduciary duty should realize that, though the duty itself is unbending, it does not include the guarantee of a favorable outcome. In western-based law there are always two opposing sides to the question at stake. While both have the same fiduciary duty to their client, obviously, one will ultimately prevail and one will not. Has the losing attorney breached his fiduciary duty in failing to triumph before the court? Hopefully, also obviously, no attorney who performs to the best of their ability in the courtroom can be held responsible for an adverse decision. Ineffective counsel? That’s a whole different topic that can perhaps be addressed another day. You can find a lot of helpful online resources available at Aswani K. Datt.

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