If you have had legal representation in any situation where the attorney is acting in a fiduciary duty capacity, it is possible for that attorney to breach that fiduciary duty. For example in the administration of an estate, if the attorney has been named as the administrator, and if there is any doubt about his or her actions in the fiduciary handling of the affairs of the estate, he or she could be charged with a breach of that fiduciary duty.
Breach of fiduciary duty could be brought before a judge, and the attorney could be charged with the breach, and, in that case, he or she would have the same rights to due process of the law and would be innocent until proven guilty.
The lawyer could hire a breach of fiduciary duty attorney for a litigation case before the court. The test of whether or not the attorney, acting as the administrator, in this case, breached the standards imposed by law as the fiduciary duty would be tested by the following points:
1) Did the attorney engage in any self-dealing, in other words, were there any transactions that favored the lawyer more than his duty allowed?
2) Did the attorney fail to exercise independent and professional judgment?
3) Did the attorney keep loyalty to the cause and intent of the deceased regarding his or her actions in accordance with the case?
4) Did the attorney exercise due duty of care in administering the estate for the beneficiaries?
If it can be proven the attorney, acting as the administrator acted by any of these precepts, then charges could be brought against the attorney.
If proven guilty, the beneficiaries can bring punitive charges against the offending attorney and he could be removed as the administrator by the beneficiaries.
Charges and penalties will vary from state to state and depending upon how serious the charges are; the penalties could be the removal of the attorney’s license to practice to practice law, possible fines and perhaps jail time if it is a repeat offense, for example.
A lawyer would hire a breach of fiduciary duty attorney, one who would have experience in defending lawyers who find themselves in this type of situation.
When beneficiaries of an estate hire an attorney to act as the administrator of an estate, they expect an attitude of care and efficiency. After all, it is the duty of the administrator to act in accordance with the law and to be forthright in these actions so that the estate can be settled and the beneficiaries of the estate can move on with their lives.
But, if it is found, that there are irregularities in the actual administration by the attorney in charge, then the element of trust is not only lost with that one attorney, but it gives the entire profession a negative view from the standpoint of these beneficiaries. It is of the highest importance for a lawyer acting in a fiduciary capacity act in accordance with the law in the interest of the public trust.