Informal Fiduciary Relationships
Informal Fiduciary Relationships
This article provides a synopsis of informal fiduciary relationships: their background, their distinct characteristics, and cases in which they arise.
Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.
Background of Fiduciary Law
Courts have long protected persons who enter into relationships wherein they rely upon another party’s superior knowledge and skill. Those persons who possess a superior knowledge or skill, provide advice, or control the affairs of another are called fiduciaries. Fiduciary relationships impose a heavy burden upon the fiduciary to act in the other party’s best interest at all times.
Fiduciary relationships develop in two general ways: 1) formally, such as those specifically created by contract or legal proceeding; and 2) informally, such as those implied in law due to the moral, social, domestic, or personal relationship between the parties. Burkons v. Ticor Title Ins. Co. of Cal., 165 Ariz. 299, 303, 798 P.2d 1308, 1312 (Ct. App. 1989) (citation omitted) vacated, 168 Ariz. 345, 813 P.2d 710 (1991) (en banc); see, e.g., Daniels v. Army Nat. Bank, 249 Kan. 654, 655, 822 P.2d 39, 42 (1991) (“There are two types of fiduciary relationships, those created by contract and those implied in law from the surrounding facts and the relationship of the parties.”); St. John’s Univ. v. Bolton, 757 F. Supp. 2d 144, 166 (E.D.N.Y. 2010) (“[A] fiduciary relationship embraces not only those the law has long adopted—such as trustee and beneficiary—but also more informal relationships where it can be readily seen that one party reasonably trusted another.”); Whittle v. Ellis, 122 So. 2d 237, 239–40 (Fla. Dist. Ct. App. 1960) (“[T]he term fiduciary or confidential relation is recognized as being very broad . . . . It embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another.”); Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wash. App. 732, 741, 935 P.2d 628, 634 (Ct. App. 1997) (“Fiduciary relationships include those historically regarded as fiduciary, and also may arise in circumstances in which “any person whose relation with another is such that the latter justifiably expects his welfare to be cared for by the former.”).
Therefore, fiduciary’s obligations arise not just through contract, but can be created through the party’s relationship and dealings with another party. See, e.g., Barrett v. Freifeld, 64 A.D.3d 736, 739, 883 N.Y.S.2d 305, 308 (App. Div. 2009) (“The creation of a fiduciary duty does not depend upon the existence of an agreement or contract between the parties but results from the relationship between the fiduciary and the beneficiary.”); Herz & Lewis, Inc. v. Union Bank,
22 Ariz. App. 437, 439, 528 P.2d 188, 190 (Ct. App. 1974) (defining a confidential relationship as a “relationship which arises by reason of kinship between the parties, or professional, business, or social relations that would reasonably lead an ordinarily prudent person in the management of his business affairs to repose that degree of confidence in another which largely results in the substitution of that other’s will for his in the material matters involved in the transaction” (quotation omitted)). Informal fiduciary relationships are also termed “confidential relationships.” See, e.g., Fipps v. Stidham, 174 Okla. 473, 476, 50 P.2d 680, 683 (1935) (“Confidential and fiduciary relations are in law synonymous, and exist whenever trust and confidence is reposed by one person in the integrity and fidelity of another.”); Rieger v. Rich, 163 Cal. App. 2d 651, 664, 329 P.2d 770, 778 (Ct. App. 1958) (“[C]onfidential or fiduciary relationship[s] . . . in law are synonymous.”).
Unless a case involves one of the classic relationships that impose fiduciary duties, such as attorney/client, physician/patient, executor/heir, guardian/ward, agent/principal, trustee/beneficiary, or corporate director/ shareholder, defining when someone will owe fiduciary duties to another is often unclear. This article will offer guidance for circumstances in which an informal fiduciary relationship might arise.
The Nature of a Fiduciary Relationship
At its core, “[a] fiduciary relationship is a confidential relationship whose attributes include great intimacy, disclosure of secrets, or intrusting of power.” Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 24, 945 P.2d 317, 335 (Ct. App. 1996) (quotation omitted); see Deborah A. DeMott, "Breach of Fiduciary Duty: On Justifiable Expectations of Loyalty and Their Consequences," 48 Ariz. L. Rev. 925, 940 (2006)(“[T]he course of the parties’ dealings over time should justify an expectation of loyalty when the relationship has deepened into one in which one party is invited to and does repose substantial trust in the other’s fidelity to the trusting party’s interests or joint interests of the parties.”). In a fiduciary relationship, the fiduciary holds a “superiority of position” over the beneficiary, which “may be demonstrated in material aspects of the transaction at issue by a substitution of the fiduciary’s will.” Herz & Lewis, 22 Ariz. App. at 439, 528 P.2d at 190.
To that end, “[a] fiduciary is generally defined as a person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor.” United States v. Milovanovic, 678 F.3d 713, 722 (9th Cir. 2012) (quotation omitted); see, e.g., Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 708 (2001) (“A fiduciary duty is one in which there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence ...” (quotations omitted)).
When Do Informal Fiduciary Relationships Arise?
An informal fiduciary relationship will arise whenever there is a relationship of special trust between the parties. See, e.g., Craggett v. Adell Ins. Agency, 92 Ohio App. 3d 443, 451, 635 N.E.2d 1326, 1331 (Ct. App. 1993) (“A fiduciary relationship is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.” (quotations omitted)); Compagnie de Reassurance d’Ile de France v. New England Reinsurance Corp., 944 F. Supp. 986, 995 (D. Mass. 1996) (“A fiduciary relationship occurs when one party reposes, to the other’s knowledge, trust and confidence under circumstances in which the other’s failure to make disclosure would be inequitable.” (quotation omitted)); Swenson v. Bender, 764 N.W.2d 596, 601 (Minn. Ct. App. 2009) (“Fiduciary relationships arise when one person trusts and confides in another who has superior knowledge and authority.” (citation omitted)); Freifield, 64 A.D.3d at 739, 883 N.Y.S.2d at 308 (“A fiduciary relationship may exist when one party reposes confidence in another and reasonably relies on the other’s superior expertise or knowledge ...”).
A fiduciary duty will not be lightly created, as it imposes “extraordinary duties,” and requires the fiduciary to “put the interests of the beneficiary ahead of its own if the need arises.” FloorsUnltd., Inc. v. Fieldcrest Cannon, Inc.,55 F.3d 181, 188(5th Cir. 1995). Thus, a fiduciary relationship exists only where one party is in fact “accustomed to being guided by the judgment or advice of the other, or is justified in placing confidence in the belief that such party will act in its interest.” San Antonio Garment Finishers, Inc. v. Levi Strauss & Co.,18 F. Supp. 2d 669, 672 (W.D. Tex. 1998). Indeed, in Arizona, a commercial transaction creates a fiduciary relationship “only when one party agrees to serve in a fiduciary capacity.” Urias v. PCS Health Sys., Inc., 211 Ariz. 81, 87, 118 P.3d 29, 35 (Ct. App. 2005).
Indeed, for an informal fiduciary relationship to arise, “[m]ere trust in another’s competence or integrity does not suffice; peculiar reliance in the trustworthiness of another is required.” Price Waterhouse, 190 Ariz. at 24, 945 P.2d at 335 (quotation omitted); see, e.g., Facciola v. Greenberg Traurig, L.L.C., 2011 U.S. Dist. LEXIS 61785, 31–33, 2011 WL 2268950, *10 (D. Ariz. June 9, 2011) (holding that “broadly alleg[ing]” one party owed another party a fiduciary duty because she acted as her manager, agent, and promoter were “conclusory labels” and “too attenuated” and thus, “insufficient to show that a fiduciary relationship existed”); Rhoads v. Harvey Pubs., Inc., 145 Ariz. 142, 149, 700 P.2d 840, 847 (Ct. App. 1984) (“To establish a fiduciary (confidential) relationship there must be something approximating business agency, professional relationship, or family tie.”).
In sum, “[w]here a relation of trust and confidence exists between two parties so that one of them places peculiar reliance in the trustworthiness of another, the latter is under a duty to make a full and truthful disclosure of all material facts and is liable for misrepresentation or concealment.” Rhoads, 145 Ariz. at 148–49, 700 P.2d at 846–47.
Examples of Informal Fiduciary Relationships
As noted, fiduciary duties can be implied when one party relies on another to act on his behalf and to look out for his best interests, regardless of whether contractual relations, formal writings, or a statute imposes such a duty. For this reason, it is difficult to articulate a precise rule that fully jackets all cases in which confidential relationships arise.
Indeed, courts have found the relationships in a countless array of circumstances have the ability to create an informal fiduciary relationship, including:
Worker’s compensation insurance carrier/bank. See SCF Ariz. v. Wachovia Bank, N.A., 2010 U.S. Dist. LEXIS 137146, 20–21, 2010 WL 5422505, *7–8 (S.D.N.Y. Dec. 14, 2010) (applying Arizona law) (denying the bank’s motion to dismiss because the worker’s compensation carrier had a relationship of “trust, confidence, and reliance” dependent upon the bank’s “superior information, knowledge, and experience” and allowed the bank to select investment vehicles, determine appropriate diversification of investments, and decide when market conditions required portfolio adjustments).
Limited liability company members. See Dancesport Videos LLC v. Kunitz, 2012 U.S. Dist. LEXIS 156624, 8 (D. Ariz. Nov. 1, 2012) (denying the defendant members’ motion to dismiss because the plaintiff members alleged the defendants used their superiority of position to place the plaintiffs in a role of “peculiar reliance” upon them for the ongoing viability of the company).
Joint venturers. See, e.g., L. M. White Contracting Co. v. Tucson Rock & Sand Co., 11 Ariz. App. 540, 545–46, 466 P.2d 413, 418–19 (Ct. App. 1970) (reasoning that when two joint venturers “by their concerted action, willingly and knowingly act[] for one another in a manner to impose mutual trust and confidence, [] a fiducial relationship [arises]”); Consol. Gas & Eq. Co. of Am., 405 S.W.2d 333, 337 (Tex. 1966) (reasoning that an informal fiduciary relationship could arise when “over a long period of time, the parties . . . worked together for the joint acquisition and development of property previous to the particular agreement sought to be enforced”); Brown v. Richards, 840 P.2d 143, 153 (Utah Ct. App. 1992) (holding that an understanding between joint venturers can constitute a fiduciary relationship).
Financial advisor/client. See, e.g., S.E.C. v. Rauscher Pierce Refsnes, Inc., 17 F. Supp. 2d 985, 992–95 (D. Ariz. 1998) (holding that a fiduciary relationship existed between a client and his financial advisor because there was an imbalance of knowledge leading the client to rely on the advisor for advice); Lawson v. Haynes, 170 F.2d 741, 744 (10th Cir. 1948) (holding that a small town banker had a fiduciary relationship with “ignorant farmers” who “looked upon the banker as their personal and financial advisor”).
Donor/donee. See, e.g., In re Guardianship of Chandos, 18 Ariz. App. 583, 586, 504 P.2d 524, 527 (Ct. App. 1972) (holding that a donee had a fiduciary relationship with a donor because he was the donor’s “de facto guardian”); Taylor v. Shields, 111 N.E.2d 595, 597, 64 Ohio L. Abs. 193, ¶7–8 (Ct. App. 1951) (holding that a confidential relationship existed between a deceased man and a donee because the parties had a “warm, personal friendship,” the donee had superior business experience, better education, and was financially secure when she convinced the man to leave her most of his estate).
Adoption agency/petitioning parents. See Taeger v. Catholic Family & Cmty. Servs., 196 Ariz. 285, 291, 995 P.2d 721, 727 (Ct. App. 1999) (holding that an adoption agency had a fiduciary relationship with parents petitioning for adoption because the agency’s “will [was] necessarily substituted for that of the parents with regard to the decision as to what background information [was] relevant and should be disclosed to the adoptive parents [and]the agency [was] in a superior position, and the adoptive parents must necessarily rely on the agency to act in the adoptive child’s best interests in providing the information”).
Bank/depositor. See Stewart v. Phx. Nat’l Bank, 49 Ariz. 34, 46, 64 P.2d 101, 106 (1937) (holding that when a depositor alleges “a bank acted as [its] financial adviser . . . for many years, and that the [depositor] has relied upon such advice, it is a sufficient allegation that a confidential relationship in regard to financial matters does exist and that, if it is proved, the bank is subject to the rules applying to confidential relations in general”); Deist v. Wachholz, 208 Mont. 207, 218, 678 P.2d 188, 193–94 (1983) (holding that a depositor and a bank had a fiduciary relationship because the depositor dealt with the bank for 24 years and a bank officer acted as the depositor’s financial advisor after the depositor’s husband died); Barrett v. Bank of Am., 183 Cal. App. 3d 1362, 1369, 229 Cal. Rptr. 16, 20 (Ct. App. 1986) (holding that a bank had a fiduciary relationship with a depositor because the depositor “perceived his relationship” with the bank as “very close” and relied on the bank’s “financial advice implicitly” and due to this “feeling of trust and reliability [the depositor] shared confidential financial information” with the bank).
Bank/borrower. See e.g., First Nat’l Bank & Trust Comp. of the Treasure Coast v. Pack, 789 So. 2d 411, 414–16 (Fla. Ct. App. 2001) (reasoning that a bank had a fiduciary relationship with a borrower because it assumed duties outside of the arm’s length relationship by essentially becoming the borrower’s financial and legal advisor in a construction project); Capital Bank v. MVB, Inc., 644 So. 2d 515, 518–19 (Fla. Dist. Ct. App. 1994) (holding that a bank had a fiduciary relationship with a borrower because it convinced the borrower to buy another borrower’s business even though the bank knew the other borrower was nearing bankruptcy).
Family members. See, e.g., Eagerton v. Fleming, 145 Ariz. 289, 292, 700 P.2d 1389, 1392 (Ct. App. 1985) (holding that a son was in a fiduciary relationship with his father because he controlled his father’s finances and paid his expenses for two years); Johnson v. Reiger, 93 P.3d 992, 997–98, 2004 WY 83, ¶10–23 (2004) (holding that summary judgment for a woman’s children was improper because a confidential relationship had plausibly been created by the parties’ dealings); Tex. Bank & Co. v. Moore,
595 S.W.2d 502, 508–09 (Tex. 1980) (holding that an aunt and her nephew had a confidential relationship because the nephew assisted the aunt and she gave him rights of survivorship in two of her bank accounts); Hamblett v. Coveney, 714 S.W.2d 126, 129 (Tex. App. 1986) (holding that a niece and her uncle had a confidential relationship because the entire family had sustained a close relationship for years, frequently spent holidays together, and the uncle counseled the niece for years).
Homeowner/homeowner’s association. See Johnson v. Pointe Cmty. Ass’n, 205 Ariz. 485, 492, 73 P.3d 616, 622 (Ct. App. 2003) (reversing lower court’s dismissal of fiduciary duty claim by homeowner against homeowner’s association).
Caretaker/invalid. See, e.g., Faulkner v. Beatty, 161 Cal. App. 2d 547, 549, 327 P.2d 41, 42 (Ct. App. 1958) (holding that a caretaker had a confidential relationship with a client because the client relied on the caretaker to prepare, execute, and record a deed conveying property from the client to the caretaker); In re Estate of Masterhan, 2002 Iowa App. LEXIS 1249, 2002 WL 31640607 (Ct. App. 2002) (holding that a caretaker who lived with testator for 16 years and was a joint account owner on his bank accounts had a confidential relationship with testator).
Geologist/oil lease investors. See Hedley v. duPont, 580 S.W.2d 662, 666 (Tex. Civ. App. 1979) (holding that a geologist had a fiduciary relationship with investors after he worked with them for 20 years in the research and acquisition of oil leases and the investors gave him an interest after acquiring a property).
Broker/lessee. See Allred v. Fairchild, 785 So. 2d 1064, 1068 (Miss. 2001) (holding that a fiduciary relationship existed between a broker and a lessee who had done business together for over 20 years “on little more than a handshake”).
Business broker/client. See Bienert v. Dickerson, 276 Ga. App. 621, 623–25, 624 S.E.2d 245, 248–49 (Ct. App. 2005) (holding that a business broker and client had a fiduciary relationship because they had a long-term relationship designed to enable the broker to understand the inner workings of the client’s business).
Licensor/licensee. See Hyde Corp. v. Huffines, 158 Tex. 566, 587–88, 314 S.W.2d 763, 777 (1958) (holding that although a licensor/licensee relationship is not automatically a confidential relationship, disclosure of trade secrets by the licensor to the licensee during licensing negotiations created a confidential relationship).
Personal friends. See, e.g., Tuck v. Miller,
483 S.W.2d 898, 905 (Tex. Civ. App. 1972) (holding that a fiduciary relationship arose between friends after a 15 year friendship and one party represented he had superior knowledge in the areas of buying, selling, and financing land); Horton v. Robinson, 776 S.W.2d 260, 265 (Tex. App. 1989) (holding that a confidential relationship arose between two parties after 24 years of friendship); Holland v. Lesesne, 350 S.W.2d 859, 861–62 (Tex. Civ. App. 1961) (holding a fiduciary relationship arose when “for some years before the transaction, [the parties], as well as their respective families, had been warm, personal friends, . . . had visited each other regularly, . . . dined together, and . . . vacationed together”); Kalb v. Norsworthy, 428 S.W.2d 701, 703–04 (Tex. Civ. App. 1968) (holding that an accountant had a fiduciary relationship with a doctor because the doctor was accustomed to being guided by the accountant in matters related to income taxation as the two had been friends for 20 years, had visited each other on numerous occasions, one was the best man in the others wedding, and the accountant prepared the doctor’s tax returns for 19 of the 20 years).
Insurance company/policyholder. See, e.g., Am. Fidelity & Casualty Co. v. G. A. Nichols Co., 173 F.2d 830, 832 (10th Cir. 1949) (“When a liability insurance company, by the terms of its policy, obtains the power to determine whether an offer of compromise of a claim should be accepted or rejected, it creates a fiduciary relationship between it and its insured.”); Am. Fidelity & Cas. Co. v. All Am. Bus Lines, 179 F.2d 7, 9 (10th Cir. 1949) (“When an insurance company acts on behalf of the insured in the conduct of litigation and the settlement of claims, it assumes a fiduciary relationship.”).
Actuary/insurance company. See United Teachers Ass’n Ins. Co. v. MacKeen & Bailey, Inc., 99 F.3d 645, 649–50 (5th Cir. 1996) (holding that a fiduciary relationship existed between an actuary and insurance company because the actuary served as the sole actuary for the insurer for seven years, the relationship contained a “great deal of trust and confidence,” and the insurer “risked substantial amounts of capital on the accuracy” of the actuary’s calculations).
Insurance company/prospective client. See Meagher v. Metropolitan Life Ins. Co., 119 Misc. 2d 615, 463 N.Y.S.2d 727 (Sup. Ct. 1983) (holding that a confidential relationship between an insurance agent and an elderly prospective client resulted from the agent’s “superior bargaining position”).
Reinsurer/reinsured. See Compagnie de Reassurance, 944 F. Supp. at 997–98 (holding that a reinsurance agency owed fiduciary duties to a reinsured because the relationship was “one of profound vulnerability” wherein the reinsurer became the “silent partner” of the reinsured, the reinsurer “follow[ed] the fortunes” of the reinsured, and the reinsurer was “flying blind” because the agreement placed the reinsurer in the “dominant position”).
Issuer/Underwriting bank. See EBC I, Inc. v. Goldman, Sachs & Co., 832 N.E.2d 26, 31, 5 N.Y.3d 11, 20 (App. Div. 2005) (holding that a fiduciary relationship arose between an issuer and its underwriting bank because the relationship was an “advisory relationship that was independent of the underwriting agreement” in which the client “was induced to and did repose confidence in” the bank’s “knowledge and expertise to advise it as to a fair IPO price and engage in honest dealings with [the client’s] best interests in mind”).
Manufacturer/independent contractor. See Tanksley & Assocs. v. Willard Indus., Inc., 961 F. Supp. 203, 206–07 (S.D. Ohio 1997) (denying defendant’s motion to dismiss because there could have been a fiduciary relationship between a manufacturer and its sales representative based on the parties’ dealings).
Contractor/subcontractor. See McDonnell-Douglas Corp. v. SCI Tech., Inc., 933 F. Supp. 822, 828 (E.D. Mo. 1996) (holding that a contractor had a fiduciary relationship with a subcontractor because of the contractor’s “exclusive knowledge” of the subcontractor’s engineering program and the subcontractor’s monetary investment and trust in the contractor).
Two artists. See Adickes v. Andreoli, 600 S.W.2d 939, 941–46 (Tex. Civ. App. 1980) (holding that two artists had a fiduciary relationship because one artist, who knew nothing about investing in real estate, invested with the second artist, a sophisticated and successful real estate investor, and the second “knew that [the first artist] relied on his ability and experience in the real estate business”).
Disabled student/college. See Bird v. Lewis & Clark College, 303 F.3d 1015, 1023 (9th Cir. 2002) (holding that a disabled student had a fiduciary relationship with her college because the college assured the student that an “overseas program would accommodate her disability” and e-mailed the students parents to assure them the company handling the travel arrangements and the director of the college’s overseas program “commonly handle people both in the field and in home stays that were more physically challenged”).
Student/professor. See Chou v. Univ. of Chi., 254 F.3d 1347, 1356–57 (Fed. Cir. 2001) (holding that a student adequately pled a fiduciary claim against her supervising professor because of the “disparity of their experience and roles and [professor’s] responsibility to make patenting decisions regarding [student’s] inventions”).
Employer/employee. See Kendall/Hunt Pub. Co. v. Rowe,
424 N.W.2d 235, 243 (Iowa 1988) (holding that a publishing company had a fiduciary relationship with a former employee because the company relied on the employee’s “judgment and advice in finding prospective authors and working with existing ones”).
Seller/buyer. See Crabtree v. Tristar Auto. Grp., Inc., 776 F. Supp. 155, 167 (S.D.N.Y. 1991) (holding that because the buyer of a business “trusted in and relied upon” the seller for proper accounting and bookkeeping practices, the parties had a fiduciary relationship).
Public relations firm/client. See Church of Scientology Int’l v. Eli Lilly & Co., 848 F. Supp. 1018, 1028 (D.D.C. 1994) (reasoning that because the relationship between a church and its public relations firm was one of “great sensitivity, based on trust and confidence,” the relationship could be fiduciary in nature).
Auctioneer/landowner. See Red Cardinal Fifteen, Inc. v. Chang, 954 F. Supp. 1111, 1115–16 (D. S.C. 1995) (holding that an auctioneer had a fiduciary relationship with a landowner because the auctioneer admitted to owing the landowner duties of “good faith,” “honest and fair dealing,” and “loyalty”).
Boxing promoter/boxer. See Don King Prods., Inc. v. Douglas,
742 F. Supp. 741, 769 (S.D.N.Y. 1990) (reasoning that a fiduciary relationship will exist between a boxing promoter and a boxer if the boxer can demonstrate the promoter violated “the very limited issue of trust a fighter reasonably reposes in a promoter”).
Architect/client. See Holy Cross Parish v. Huether, 308 N.W.2d 575, 577 (S.D. 1981) (holding that a fiduciary relationship existed between an architect and his client “with regard to the architect’s supervisory functions”).
Pallet manufacturer/purchaser. Hampton Tree Farms, Inc. v. Jewett, 125 Or. App. 178, 190–93, 865 P.2d 420, 428–29 (Ct. App. 1993) (holding that a creditor manufacturing plant had a fiduciary relationship with a debtor purchaser because the creditor exercised such control over the debtor’s decision-making processes by controlling the lumber supply of the debtor that the relationship amounted to a “domination of its will”).
In short, any relationship has the potential to become fiduciary as long as one party impresses a peculiar trust and confidence in another party.
Conclusion
In summary, despite evasive parameters, the fiduciary relationship is fundamentally concerned with persons who assume trustee-like positions with discretionary power over others’ interests. Readers should recognize that fiduciary duties are not strictly legal legend—they can arise in any relationship where “peculiar” reliance on another is shown.