FIDUCIARY DUTY OF LOYALTY IN RELATIONS RELATED TO LEGAL REPRESENTATION

Abstract

The article analyzes fiduciary relations in Ukrainian law, in particular those related to legal representation. It is noted that fiduciary loyalty is not a civil law obligation, since it does not provide for an appropriate form of behavior for the obligated person. Rather, it is a legal standard consisting of a set of rules. The article examines the specifics of fiduciary loyalty in the relationship between lawyers (attorneys) and clients, taking into account various sources of regulation: laws, the Rules of Attorneys’ Ethics and internal documents of organizations. The author analyzes the key aspects of fiduciary loyalty, such as avoidance of conflicts of interest, maintaining confidentiality (including attorney-client privilege and its restrictions), proper client identification and communication. The author emphasizes that fiduciary loyalty is not unlimited, but is restricted by the requirement to comply with the law and professional ethics. It is noted that Ukrainian legislation contains many of the fiduciary principles designed to ensure the duty of fiduciary loyalty in the exercise of legal representation by lawyers or attorneys. The article notes that there is a gap in the regulation of conflicts of interest for non-attorneys, as well as issues related to confidentiality. It is proposed to improve the legislation, in particular, to amend legislation and provide unified rules in the Civil Code of Ukraine on avoiding conflicts of interest and confidentiality, which should be common to both attorneys and non-attorneys.In addition, it is proposed to supplement the Civil Code of Ukraine with a provision stating that breach of fiduciary loyalty is a ground for imposing civil liability on the perpetrator. The author emphasizes the insufficiency of disciplinary liability alone, which currently mostly occurs in the event of a breach of fiduciary loyalty in the area of legal representation of clients.