Fresno Lawyer – Randolf Krbechek

A decision handed down this month involved an all-too-common situation.  In King v.  Johnson, 2009 DJDAR 15871 (Nov. 9, 2009), the husband provided for a testamentary trust.  After the husband’s death in 1991, his widow became the trustee.  The widow later suffered from declining health.  One of the daughters was apparently close to her mother.  The daughter influenced the widow to transfer property out of the trust.

Stop me if this story sounds familiar.  The widow also took out a personal loan secured by the property she transferred out of trust.  When the loan went into delinquency, the lender foreclosed and took title to the property.  Not surprisingly, the daughter benefitted from this arrangement, as she inherited 100% of the widow’s separate property, but held only a 30% interest in the former trust property.

Another child, who was also a beneficiary under the trust, brought an action against daughter based on these facts.  The trial court found that “[daughter] actively participated in [widow’s] breaches of fiduciary duty . . . Specifically, the court found that [daughter] was involved in the transactions that resulted in [widow] transferring property out of the trust without consideration at a time when [widow] was in failing physical and mental health, and that [daughter] exercised undue influence over [widow] with regard to these transactions.”

However, the trial court found that plaintiff lacked standing, because a successor trustee had been appointed.  On appeal, the decision was reversed in favor of the aggrieved beneficiary.

The appellate court explained that, “As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust’s behalf.  Conversely, a trust beneficiary cannot sue in the name of the trust.”

This rule did not preclude the action against the daughter.  Thus, “a trust beneficiary can bring a proceeding against a trustee for breach of trust.  Moreover, it is well established [ ] that a trust beneficiary can pursue a cause of action against a third party who actively participates in or knowingly benefits from a trustee’s breach of trust.”

In this case, a successor trustee had taken office, and he had not sued daughter for her wrongful acts.  The court expressly held that “a beneficiary may bring a claim against a third party who participated in a trustee’s breach of trust, despite the appointment of a successor trustee.”

Explained the court, “Ordinarily, when a third party acts to further his or her own economic interests by participating with a trustee in such a breach of trust, the beneficiary will bring suit against both the trustee and the third party.

“However, it is not necessary to join the trustee in the suit, because primarily it is the beneficiaries who are wronged and who are entitled to sue.  The liability of the third party is to the beneficiaries, rather than to the trustee, and the right of the beneficiaries against the third party is a direct right and not one that is derivative through the trustee.”

Even more, the court held that “evidence of a conspiracy is [not] required in order to hold a third party liable for participating in or benefitting from a trustee’s breach of trust . . . Although the trial court in this case determined that [plaintiff] had not proved the existence of an actual conspiracy between [widow] and [daughter], this is of no consequence to [the beneficiary’s] standing to bring a claim against [daughter] for [her] role as a third-party participant in [widow’s] breach of trust.”

The court also addressed the liability of the daughter for her conduct as de facto trustee after her mother’s death.  During this period, the daughter collected rents for which she did not account.  This conduct also gave rise to a claim against the daughter.

Explained the court, “a trustee de son tort [is] a person who is treated as a trustee because of his wrongdoing with respect to property entrusted to him or over which he exercised authority which he lacked.”

Added the court, “It is a well settled rule in the law of trusts that if a person not being in fact a trustee acts as such by mistake or intentionally, he thereby becomes a trustee de son tort . .  A person may become a trustee by construction, by intermeddling with and assuming the management of property without authority.

“Such persons are trustees de son tort just as persons who  assume to deal with a deceased person’s estate without authority are administrators de son tort.  During the possession and management by such constructive trustees they are subject to the same rules and remedies as other trustees.”

Proof yet again that trusts can be a hotbed for litigation.  The lack of court supervision over an estate can lead family members to take advantage of the situation.  This court drew a firm line against such wrongful conduct.

A growing body of case law during the past 20 years has addressed the issue of whether and when corporate directors owe fiduciary duties to creditors.  A California appellate court has finally weighed in on this issue, and provided clear guidance on the question.  (We can only hope that the California Supreme Court will not to take the case up for review, because they are sure to muddy the waters.)

In Berg & Berg Enterprises, LLC v. Boyle (Oct. 29, 2009) 2009 DJDAR 15513, the court of appeal explained that “Berg & Berg Enterprises, LLC is the largest creditor of the failed Pluris, Inc. . . . The thrust of Berg’s claim, as finally pleaded, was that the individual directors owed a fiduciary duty to Berg and other Pluris creditors on whose behalf Berg is purportedly proceeding.”

The trial court sustained demurrers to the complaint without leave to amend, which ruling was affirmed.  The appellate court gave a good, clear analysis of the issue, explaining that, “it is without dispute that in California, corporate directors owe a fiduciary duty to the corporation and its shareholders and now [ ] must serve ‘in good faith, in a manner as such director believes to be in the best interests of the corporation and its shareholders.’”

The court explained that the potential fiduciary obligations owed by corporate directors to creditors arose from an unpublished 1991 Delaware decision involving the leveraged buyout of MGM, “which laid the ground for the insolvency exception to the general rule that directors owe exclusive duties to the corporation and its shareholders, but not to shareholders.”

The question involves what duties are owed by corporate directors to unpaid creditors when the corporation is insolvent.

The Berg & Berg court squarely held that, “under the current state of California law, there is no broad, paramount fiduciary duty of due care or loyalty that directors of an insolvent corporation owe the corporation’s creditors solely because of a state of insolvency [ ].  And we decline to create any such duties, which would conflict with and dilute the statutory and common-law duties that directors already owe to shareholders and the corporation . . .

“We accordingly hold that the scope of any extra-contractual duty owed by corporate directors to the insolvent corporation’s creditors is limited in California, consistent with the trust-fund doctrine, to the avoidance of actions that divert, dissipate, or unduly risk corporate assets that might otherwise be used to pay creditors’ claims.  This would include action that involves self-dealing or the preferential treatment of creditors.”

The court further held that a finding of actual insolvency is needed to trigger these duties, rather then the amorphous “zone or vicinity of insolvency.”  Thus, the court held that “there is no fiduciary duty prescribed under California law that is owed to creditors by directors of a corporation solely by virtue of its operating in the ‘zone’ or ‘vicinity’ of insolvency.”

(Note that the court also observed that “there are multiple definitions of insolvency,” adding that “a finding of insolvency by the standard of the debtor not paying debts when they become due requires more than merely establishing the existence of a few unpaid debts.”)

Thus, the court held that, “under the trust-fund doctrine, upon actual insolvency, directors continue to owe fiduciary duties to shareholders and to the corporation but also owe creditors the duty to avoid diversion, dissipation, or undue risk to assets that might be used to satisfy creditors’ claims.”

Even more, the court held that decisions of the directors are presumptively entitled to protection under the business judgment rule.  “The rule establishes a presumption that directors’ decisions are based on sound business judgment, and it prohibits courts from interfering in business decisions made by the directors in good faith and in the absence of a conflict of interest.”

Explained the court, “in most cases, the presumption created by the business judgment rule can be rebutted only by affirmative allegations of fact which, if proven, would establish fraud, bad faith, overreaching or an unreasonable failure to investigate material facts . . . The failure to sufficiently plead facts to rebut the business judgment rule or establish its exception may be raised on demurrer, as whether sufficient facts have been so pleaded is a question of law.”

I for one do not support the expanding toward “tortification” of business law.  The decision in Berg & Berg is a step in the right direction.  The court gives clear guidance, holding that the fiduciary obligations of directors to creditors arise only when the corporation is actually insolvent, and then only when the creditors can plead facts showing that the actions of the directors were in violation of the business judgment rule.  The court also held that it will not intervene in the “ill-defined sphere known as the zone of insolvency.”

This case marks the second published appellate opinion driven by the unpaid creditor.  (The prior opinion is Berg & Berg Enterprises, LLC v.  Sherwood Partners (2005) 131 Cal.App.4th 802.)   Considering that legal counsel included O’Melveny & Myers and Winston & Strawn, it is almost certain that the legal fees to date in this dispute exceed $1 million.

Here’s a point that seems somewhat unfair.  The trial judge based his decision on an unpublished 2006 trial court decision from the federal district court for the Northern District of California.

The problem for trial attorneys is that we cannot cite unpublished opinions as authority in our briefs.  It seems incongruous to have a trial court make a decision based on an unpublished federal court ruling, then have that unpublished ruling cited with approval by the California appellate court.

This problem arises because the two major legal publishers – Lexis and West – continue to make unpublished decisions available via their websites.  When these unpublished decisions become part of the database, it becomes very tempting to cite them, notwithstanding the California Rules of Court.  In this case, the trial court and the appellate court found the temptation to great to resist.

The diverse use of trusts is represented in a recent case from the federal Fifth Circuit Court of Appeals.  In Gale v. Carnrite, 559 F.3d 359 (5th Cir. 2009), the dispute involved tax liabilities arising from the sale of membership interests in a Nevada limited liability company.  The underlying facts were as follows:

In 1999, Gale expressed interest in purchasing a condominium unit located in San Jose Del Cabo, Baja California Sur, Mexico.  The condominium was owned by Villa Rayos Del Sol, LLC, a Nevada limited liability company.

After inquiring about the purchase, the Gales learned that legal restrictions affected the transaction.  Specifically, as explained in the decision, “under Article 27 of the Constitution of Mexico, only Mexicans by birth or naturalization or Mexican companies may acquire direct ownership of lands or waters within the zone of 100 kilometers along the frontiers and 50 kilometers along the shores of the country.”

The condominium unit was located within such a restricted area.  In order to proceed with the purchase, the Gales were informed that they could not acquire the condominium directly.  Per the decision, “Instead, they would be required to purchase the outstanding membership interests in the limited liability company (Villa Rayos), which was the beneficial owner of the leasehold interest in the condominium under a Mexican Bank Trust arrangement known as a “fideicomiso.”

The court explained that “a fideicomiso is a property-ownership arrangement complying with Article 27 of the Mexican Constitution under which a Mexican Bank Trust obtains legal title to a piece of real property within the prohibited zone, and a foreigner, as the beneficiary of the trust, enjoys the beneficial interest in the property, including all the usual rights of ownership.”

The limited liability company’s sole asset was the beneficial interest in the condominium.  The only purpose of the limited liability company was to serve as the beneficiary of the fideicomiso.

As to the history of the entity, “Villa Rayos was formed in 1996.  Its original members and owners were the Sonenshine Family Trust.  [The Sonenshines] previously purchased the beneficial interest in the fideicomiso from the condominium’s developer in 1991 for $715,000, and subsequently transferred the beneficial interest [in the condominium to the limited liability company] in 1996.  In February 1999, [defendant] Carnrite purchased all of the outstanding membership interest in [the limited liability company] for $1,725,000.”

In December 1999, the Gales purchased all of the membership interests in the limited liability company from defendant Carnrite.  The purchase price was $2,125,000.  The seller warranted that at the close of escrow, “the LLC has and will have no liabilities of the any nature, including without limitation tax liabilities due or to become come due.”

The sale closed in January 2000.  “Neither [the seller] nor anyone else reported the transaction to the Mexican government; no Mexican income or capital gains taxes were paid on the transfer.”

In September 2005, the Gales sold their interest in the limited liability company to a third party for $2,400,000.  According to the case, “a substantial Mexican capital gains tax liability resulted, determined by using the basis of the fideicomiso from 1991.”

The trial court found that the seller breached the warranty made to the Gales in 1999, on the grounds that “at the time of closing, Villa Rayos had a built-in capital gains tax liability equal to the difference between the Gales’ purchase price and the original adjusted basis.”  At trial, experts presented evidence regarding interpretation of the Mexican tax code.

The court of appeal reversed the decision, holding in favor of the seller.  The court assumed that (i) the 1999 transaction was a taxable event and (ii) “any tax liability initially fell on [defendant] Carnrite.”  The question addressed by the court of appeal was “whether, under Mexican law, the LLC was obligated to pay taxes on the 1999 transaction.”

In holding for the defendant, the court held that “the Gales did not show that [the seller’s] failure to pay such taxes resulted in a liability for [the limited liability company].”

The focus of the appellate decision was whether the individual defendant’s “failure to report or pay taxes on the transfer created a tax liability for [the limited liability company].”  Explained the court, “both under [the experts’] analysis and the language of the [contract] itself, the individual defendants’ failure to pay resulted in a tax liability for the Gales (the buyer), not [the limited liability company].”

The court further explained that, “the warranty provision covered only the tax or other liabilities of the LLC.  [However, limited liability company] was neither the buyer nor the seller in the transaction.  The 1999 transaction altered the ownership of the membership interest of Villa Rayos, but there is no factual or legal basis shown by this record that [the limited liability company, i.e.,] Villa Rayos itself became liable for anything or that it would become liable at the default of others.”

The court added that, “by contrast, in 2005 transfer, [the limited liability company] itself sold the beneficial interest in the fideicomiso to [the new purchaser.  In the disputed transaction], Villa Rayos was the seller.”

The court concluded that, “the seller provided a warranty that the asset being transferred did not itself have any liabilities.  If the act of transferring created liabilities or passed on a pre-existing liability of the seller, that risk was not covered by the warranty.

“A warranty that the buyer was not getting any liabilities of any nature from any source would be a valuable one.  We conclude, though, that this war they did not provides comprehensive protection.  Because Carnrite’s failure to pay taxes for 2000 is the only breach the Gales allege, Carnrite is entitled to judgment on the breach of contract claim.”

The decision seems to apply a narrow interpretation of contract law.  However, it illustrates the thorny tax issues that can arise when trust assets are transferred.

A recent federal case started off with an intriguing headnote – “Lawyer does not breach of fiduciary duty or contracts by advising termination of co-counsel where advice was privileged and protected by agreements.”  From the Ninth Circuit Court of Appeals, no less.  In the end, the court tackled the issues on narrow grounds, giving rise to a puzzling result.

In Crockett & Myers, Ltd. v.  Napier, Fitzgerald & Kirby, LLP (9th Cir. October 21, 2009), the dispute arose between two lawyers, both of whom represented the same client in a personal injury matter.  The decision explains that, in 2001 “Wendi Nostro retained Brian Fitzgerald, a New York lawyer known to her family, to investigate whether the death of her husband in Nevada was due to potential medical malpractice.”

The dispute arose after Mr. Fitzgerald (the New York lawyer) was able to locate a J.R. Crockett, a Nevada lawyer who was apparently skilled in personal injury matters.  The client and the two attorneys entered into a written retainer agreement.  The written retainer agreement with Ms. Nostro expressly provided that  “attorneys fees were to be divided equally between Crockett and Fitzgerald.”

At the end of the day, the court refused to enforce this provision, although its rationale is not clear.  According to the court, Mr. Fitzgerald, the New York lawyer, requested that plaintiff pay her share of the court costs.  This request occurred while the litigation was ongoing.  Plaintiff then contacted her Nevada attorney, Mr. Crockett, “who advised her that ‘it was their policy not to go after client for court costs’ and that ‘she could fire Mr. Fitzgerald.’”

That’s what plaintiff did – she terminated the New York lawyer.  The underlying case later settled, but the Nevada lawyer did not forward 50% of the attorneys fees to Mr. Fitzgerald.  The New York lawyer filed suit against the Nevada lawyer, alleging “breach of an oral referral agreement, breach of the written retainer agreement, breach of the duty of loyalty and as a fiduciary by reason of the joint venture, and breach of fiduciary duties by reason of joint representation.”

Now, that would be an interesting legal issue.  Do attorneys owe each other fiduciary duties when two attorneys jointly represent a client on the same issue?  Unfortunately, the court sidestepped this interesting issue.  Instead, the court held that the claims based on breach of fiduciary duty were barred because, under Nevada law, the communications between the Nevada lawyer and plaintiff were privileged.

Explained the Ninth Circuit, “It is in the public interest attorneys speak freely with their clients, even if attorneys occasionally abuse the privilege . . . Nevada [recognizes a] policy of granting officers of the court the utmost freedom in their efforts to obtain justice for their clients.”

For reasons that are not entirely clear, the court next held that the Nevada lawyer was not liable for breach of the written retainer agreement, specifically, that a breach did not arise out of the failure of the Nevada attorney “to include [the New York lawyer] in the discussion with [plaintiff] regarding [payment of] costs.”

Big question here – why didn’t the New York lawyer set forth a claim based on interference with his contractual expectancy?  The opinion does not address this issue, and it does not seem to have been plead as a cause of action.

Finally, the court held that the New York lawyer was entitled to recover damages under a quantum meruit theory based on “the reasonable value of the services.”  The appellate court remanded the matter for a determination of such reasonable value, but expressly rejected the New York lawyer’s “argument that he was entitled to 50% of the fees as contemplated by the retainer agreement.”

This seems like an unfair result for the New York lawyer.  He helped secure competent local counsel and obtained a written agreement with the client and the other attorney providing for an equal division of attorney’s fees.  What more could he do?  After the local attorney recommended that the New York attorney be fired, the originating lawyer lost his right to recovery of fees.  There must be something missing, because the opinion controverts the contractual expectations of the parties, without good cause.

Trial Skills: What to Say and How to Say It is a new book written by Los Angeles County Superior Court Judge Robert J. Perry.  The book is 175 pages long, broken down into 28 easily-digested chapters.  Explained Judge Perry, “this book is short; because most trial lawyers are too busy to read a lengthy tome on trial practice.  The focus is not on the law, but on improving trial skills.”

As trial attorneys, what we don’t get is direct feedback from the bench on what works and what doesn’t work in the courtroom.  Trial Skills helps fill that gap.

One of the judge’s points repeated throughout the book is that trial lawyers should use visual props in the courtroom, be they PowerPoint presentations or exhibits blown up on the big screen.  In our current media culture, a trial attorney must start thinking about the visual aids that he or she will use the courtroom from the beginning of the case: the attorney can’t wait till the last weeks before trial before getting serious about the visual aids he will use the courtroom.

The chapter on dressing appropriately for the courtroom contains a wonderful anecdote.  According to Judge Perry, “a favorite clothing story was shared by defense attorney Michael Russo, who told his client to ‘dress well’ for court.  At the next court appearance, the client showed up in a rented tuxedo.”

While Trial Skills focuses on criminal trials, there are pointers that will help civil trial lawyers as well.  I particularly valued Chapter 23 on trial objections.  Judge Perry explains why the bench will make rulings on certain questions, which rulings may be based on the way the question is phrased rather than the information that is solicited from the witness.

Every trial lawyer has had situations in which the court sustained an objection and the lawyer shook his head wondering what was wrong with the question.  Trial Skills helps explain some of the reasoning behind these rulings.

Judge Perry reminds us that trial lawyers should enjoy the moment.  Says he, “there are few activities in law more satisfying than composing and delivering an effective closing argument.  When your days of trying jury trials are over, you will fondly recall the times the courtroom when you are on your feet, your adrenaline pumping, your mind racing, as you addressed the jury and argued the merit of your client’s case.”

Concludes Judge Perry, “Enjoy being a real lawyer – a trial lawyer.”

Published by The Rutter Group, Trial Skills is a bargain at $45.00.  I cannot imagine any trial lawyer, no matter how experienced, who could not pick up several good pointers from this title.

Here’s my most recent story, from a will contest trial last week in Tulare County.  One of the matter is in dispute involved the mental competency of the decedent.  I asked a witness for her opinion on an issue.  The other attorney wanted to hear the answer, and didn’t object.

However, the trial judge himself interposed an objection, stating from the bench that the question asked for any improper opinion.  (Remember, there are no juries in trials arising under the Probate Code.)   When I asked the judge to confirm that he was objecting to my question, he smiled and said yes.  What could I do?  I moved on to the next question.

A fiduciary’s liabilities can sometimes arise in unexpected contexts.  A recent decision involving an estate tax liability held that a fiduciary was personally liable for unpaid estate taxes.

In Carroll v. United States, 2009-2 USTC ¶ 60,577 (N.D. Ala. 2009), the taxpayer was denied a bankruptcy discharge for unpaid estate taxes arising from the estate of his deceased father.

George Carroll, Sr. died on March 17, 1998.  The two executors of his estate were the appellant, George Carroll, and his two siblings (Stephen Carroll and Judy Bullington).  At the time of death, the total estate tax owed was $2,554,547.  That’s a big liability.

Federal tax law permits an estate tax to be paid in installments pursuant to 26 U.S.C. section 6166.  The administrators of the estate contracted to pay the estate tax in installments.  The final installment would have been due on December 17, 2012.  However, the estate stopped making payments in 2004.  Through 2004, Mr. Carroll and his sister paid approximately $1.2 million of the tax debt.

Between 1998 in 2006, the executors distributed various assets of the estate to themselves.  Judy Bullington received real property (including her father’s primary residence) and cash.  Stephen Carroll and George Carroll received stock held by the estate in two close corporations: United Gunite, Inc. and Pressure Concrete, Inc.  The brothers “planned to use the profits from these two entities to make the necessary installment payments to the United States.”

Now, I don’t know about the construction industry in Alabama.  However, gunite is used in the pool contracting business.  And pool contracting in Fresno has tanked in the last 18 months.  Tanked to a level that is almost unbelievable.

So the economy didn’t help the Carroll brothers.  Even worse, in 2001 Stephen Carroll pled guilty to a count of “felony bribery of a public official.”  Thus, things went from bad to worse for the Carroll brothers.

Apparently seeing the end, “on February 28, 2004, George Carroll, in his capacity as an executor of his father’s estate, transferred the last of the estate’s liquid assets – $733,613 in cash – to a bank account owned by Pressure Concrete.”  The cash infusion was not sufficient to revive the business, and in 2006, George Carroll bought out his brother’s interest in the company for $29,500.  Shortly thereafter, the company failed.

In 2007, George Carroll filed a bankruptcy petition, along with approximately 1.2 million other Americans.  The government disputed his request for discharge with respect to the unpaid estate taxes.  The court agreed, in a decision affirmed on appeal.

Explained the court, “executors of an estate become personally liable for the estate tax owed to the United States if they distribute property to beneficiaries before fully satisfying the estate’s tax debt.”  The tax regulations add that, “if the executor distributes any portion of the estate before all the estate tax is paid, he is personally liable, to the extent of the payment or distribution, for so much of the estate tax as remains due and unpaid.”

George Carroll attempted to escape liability, arguing that the value of the estate was artificially inflated for tax assessment purposes, and that the corporation failed because he “was not prepared to handle the business that he inherited from his father.”  The court rejected these arguments, instead of focusing on the transfer of $733,613 in cash to the struggling corporation.  The court deemed the transfer to be a “willful” act within the meaning of the bankruptcy laws, such as to deny a bankruptcy discharge to George Carroll.

Thus, the case is a word of caution to all persons who administer an estate, whether by way of probate or pursuant to a trust.  If an estate tax is owed, and if the administrator transfers assets to the beneficiaries before the tax is paid in full, the administrator can be held personally liable, and the estate tax liability will not be discharged in bankruptcy.  Think twice before you distribute assets when an estate tax is unpaid.

(The court adds a humorous aside.  In 2006, the failing corporation, Pressure Concrete, “acting at George Carroll’s direction, issued two separate checks, totaling $25,000, drawn and payable to the University of Alabama athletic department for the purchase of football tickets – a fact proving only (if proof were needed) that, in this State, Alabama football is a secular religion promoting misplaced and false values.”)

Carroll v. United States, 2009-2 USTC ¶ 60,577 (N.D. Ala. 2009)

Some commentators view fiduciary duties through a contractual framework.  Judge Frank Easterbrook and Professor Fischel state, “The fiduciary principle is fundamentally a standard term in the contract.  Fiduciary duties are not special duties; they have no moral footing; they are the same sort of obligations, derived and enforced in the same way, as other contractual undertakings.”

In their view fiduciary law parallels contract law, because the objective is to “promote the parties’ own perception of their joint welfare.”

Profession Scott Fitzgibbon, in his article, “Fiduciary Relationships Are Not Contracts,” 82 Marq. Law Rev. 2 (Winter 1999), criticizes this analysis.  The law of fiduciary duties is all about “gap filling,” meaning that courts are setting forth the terms that were not expressly defined by the parties.  Professor Fitzgibbon then cites from a decision written by Judge Posner as follows:

“The common law imposes a fiduciary duty when the disparity between the parties relevant to the performance of an undertaking is so vast that it is a reasonable inference is that had the parties in advance negotiated expressly over the issue they would have agreed that the agent owed the principal the high duty that we have described, because otherwise the principal would be placing himself at the agent’s mercy.”  Burdett v. Miller, 957 F.2d 1375, 1381 (7th Cir. 1992).

Yet, the traditional contractual analysis does not explain how courts assess fiduciary obligations.  Professor Fitzgibbon explains that, in a contractual gap-filling situation, “Courts usually fill gaps by looking hard at the facts of the transaction before them rather than proceeding ‘generically.’”

Thus, when confronted with missing terms in a contractual setting, the court proceeds narrowly, based on the precise facts of the case.  Yet fiduciary duties are applied using a broad brush, which reflects a critical difference between a contractual approach and the fiduciary law approach when it comes to gap filling – “Fiduciary law usually takes a generic approach insisting that all trustees are subject to a standard panoply of duties.”

This is a major distinction – contracts are interpreted narrowly, fiduciary obligations are applied broadly.  They can’t come from the same root stock, and certainly are not treated the same by courts.

This is the third part of a review of Mary Szto’s article, “Limited Liability Company Morality: Fiduciary Duties in Historical Context,” 23 Quinnipiac Law Review 61 (2004-2005).  This week we get to the heart of the matter – the case law summary.

The author starts by explaining that, “In the Anglo-American tradition, principals of a firm are fiduciaries expected to lay aside self-interests.  A fiduciary’s duties, include a duty of care and a duty of loyalty owed to the firm, other principals, and/or other members of the firm.”

As the author surveys the case law involving fiduciary duties in a limited liability company context, she posits that courts “demonstrate a preference for corporate duty of care and a partnership duty of loyalty.”

Building on her history lessons she states that, “Canonists may never have imagined that the corporate form would become the chief engine for business growth today.  Nevertheless, in the 1800’s, business corporations came into prominence.  Agency, partnership, and trust duties chiefly influenced them, and still do today . . . English and American commentators readily applied agency, trust and partnership law to corporate fiduciary law.  Duties of care and loyalty were also addressed.”

Says Ms. Szto, “The duty of care cases focus on statutory or contractual corporate standards.  Duty of loyalty cases show a slight preference for partnership standards.  Also, enforcing contractual provisions, the courts still find equitable duties.  Even when LLC members ‘opt out’ of loyalty duties, courts find equitable duties that cannot be eviscerated.  This is in agreement with equity.  Many courts, notably Delaware’s and Ohio’s recognize a transcendent selfless standard for LLC fiduciaries.”

As Ms. Szto reviews the case law, she concludes, “In duty of loyalty cases, courts enforce contractual waivers and standards for fiduciary duties.  However, where there was self-serving behavior, they also found equitable duty breaches.  This was the case even when LLC operating agreements modified or limited fiduciary duties.  Of note is approach of Delaware, Ohio, New York, and Indiana.  Duty of loyalty cases may concern usurpation of firm opportunities, the duty to disclose information, conflicts of interests, and the duty not to compete with the firm.”

Ms. Szto states, “Also, when a statutory duty existed, corporate standards were applied using the best interests of the LLC as a main factor.  For example, a Maryland case found that all decisions by the LLC’s board were protected from second guessing by the business rule, which insulated the board from claims unless it ‘acted in bad fath.’  Another Maryland case noted that a majority interest holder owes a fiduciary duty to the LLC’s minority interests holder, which standard is similar to that of closely-held corporations.

The author states, “In sum recent LLC cases illustrate that in duty of care cases, corporate standards prevail.  ‘Best interests of the LLC’ are a primary focus.  In duty of loyalty cases, agency and partnership standards are favored.  Also, courts (Delaware’s chief among them), recognized equitable duties that are transcendent.  Ohio’s court stated that LLC members owe each other the ‘up most trust and loyalty.’”

The author concludes that, “Fiduciary duties are ingrained in Anglo-American jurisprudence in the business association.  They reach back to the biblical tradition, Roman, and ecclesiastical law.  They develop with fidei commissa, utilitas ecclesiae, the use, trusts, and agents.  They constitute partnerships, limited partnerships, and corporations.”

“To the extent that LLC fiduciary duties are true to their equitable roots, the LLC will take its place among enduring business entities and are constituted by a transcendent business morality.  There is promise of this in legislation that affirms equitable standards and in case law that promotes a corporate duty of care and partnership duty of loyalty that is selfless.  This is the rich legacy of fiduciary duties.”

I give this article six stars out of ten.  I would have appreciated more focus on the theories of LLCs and how these theories tie in to the particular fiduciary duties assigned by the courts, and less on the Anglo-Saxon religious roots.  In the end, the title has more sizzle than the article.

I attended the 2009 annual American Agricultural Law Association conference in Williamsburg, Virginia.   The lunch speaker on September 25th was Tom Vilsack, the Secretary of Agriculture.  He’s a good speaker:  he measures his words carefully and is a smart guy.

Mr. Vilsack spent a couple of hours with us and took questions at the end.  I asked for the administration’s view on the estate tax.  Those of us in the estate planning field know that the estate tax law was passed in 2001.  Under current law, there is no estate tax in 2010, but it returns with a vengeance in 2011.

So, Congress needs to provide a long-term fix.  Mr. Vilsack acknowledged that he did not know the official White House position.

I was impressed when Mr. Vilsack (who himself practiced law in Iowa) said he’d check on this issue.  How cool is that – a Cabinet-level guy going back to Washington knowing that we want to know the future of the estate tax?

I think this issue will be on his radar in the future, and may not stay in idle.

The lunch was a highpoint – the best speaker I’ve ever heard at the ag law conference, and we get some good ones.

This is part two of a discussion of an intriguing law review article on fiduciary duties as applied in the context of limited liability companies.  The prior blog considered the theological roots cited by Ms. Szto.  This part examines other roots for fiduciary duties.

Ms. Szto starts again with a religious analysis.  Says she, “Canon lawyers provided the link between Roman legal devices and biblical views of property.  For several centuries, the study of Roman law found a home within the church.  Augustine taught that property must have a spiritual use.”

Now we are introduced to the connection between fiduciary obligations and the church – Ecclesiastical courts handled probate matters.

Says the author, “The Middle Ages saw the development of the use, the forbear of trust and agency law (agency and trust law being the forbears of partnership and corporate law).  This came about mainly through ecclesiastical courts.  It was accomplished through continued clerical adaptation of fidei commissa . . . and the ecclesiastical court’s jurisdiction over probate law.  Eventually, the Courts of Chancery enforced uses.  All these lay the groundwork for high business fiduciary duties, many centuries later.”

In this way, fiduciary relationships evolved from rules limiting inheritances in real property.  Ms.  Szto explains that, “Uses of personalty were enforced in the 1100’s by English common law courts.  However, the Franciscans are credited for the first wide-scale employment.  St. Francis of Assisi founded the Franciscan Order in 1209.  According to Maitland, although the Franciscans had taken vows of property, they employed the ‘ad opus’ to receive the benefits of property ownership, which was akin to the Roman ‘usus.’”

Which is to say, the clergy helped drive the “use,” in which beneficial possession was separated from actual legal title.  Even more, conveyance of fee ownership by will was limited, at least in England.  “Because the common law prohibited the devise of freehold land, the feoffment to uses were popular during the rein of Edward III (1327-1377).  Feoffors would convey land to feoffees, who then conveyed land to third persons – cestui que uses – named in the feoffors’ wills.  The terms use, confidence, and trust were used simultaneously.”

Still, a right without a remedy has little value.  The court must step in when misconduct occurs.   “There is evidence that ecclesiastical courts enforced uses before the Courts of Chancery did.  This is because ecclesiastical courts had jurisdiction over probate matters. . . . Interestingly, records of ecclesiastical enforcement of uses disappear in the last part of the 1400’s, apparently because of the jurisdiction of the Courts of Chancery over uses at that time.”

More next week on the limited liability companies.

Mary Szto, “Limited Liability Company Morality: Fiduciary Duties in Historical Context,” 23 Quinnipiac Law Review 61 (2004-2005).