In Anstine v. Alexander, the Colorado Court of Appeals addressed the issue of whether an attorney can be found liable for aiding and abetting his client's breach of fiduciary duty to a non-client. Although the attorneys in question were absolved of legal malpractice liability to the corporation they represented, the defendant-attorneys were found liable for aiding and abetting the president's breach of fiduciary duty to the corporation's creditors. Interestingly, the same piece of advice that was given by the attorneys to the president of the corporation was at the heart of both the malpractice claim and the aiding and abetting claim. Though the Colorado Supreme Court recently overturned Anstine on other grounds, the Court specifically noted that the question of whether an attorney can be liable for aiding and abetting a breach of fiduciary duty to a non-client remains open for review. Given the likelihood that the Colorado Supreme Court will revisit the question in the future, this Casenote critiques the reasoning behind the appellate court's decision, instead arguing for a rule that a claim of aiding and abetting a client's breach of fiduciary duty to a non-client should only be available where it is found that the attorney acted either fraudulently or maliciously in dispensing advice to his client. Following the Court of Appeals' reasoning would open a back door for third party adversaries of an attorney's client to impose a constructive duty upon attorneys who would otherwise owe the third parties no fiduciary duty. Holding attorneys liable on such a claim fatally undermines the foundations of the attorney-client relationship, potentially preventing attorneys from zealously representing the interests of their clients where those interests conflict with those of the potential adversary.
Michael D. Delcour,
Colorado Lawyers Beware: Anstine v. Alexander and the Attorney's New Duty to Non-Clients,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol78/iss3/6