Accepting Fees Which the Lawyer Is Not Entitled to by Contract
In Texas, the Court holds attorneys to the highest standards of ethical conduct in their dealings with their clients. See Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964).
The duty is highest when the attorney contracts with his or her client or otherwise takes a position adverse to his or her client's interests.
As Justice Cardozo observed, "[a fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (N.Y. 1928).
Accordingly, a lawyer must conduct his or her business with inveterate honesty and loyalty, always keeping the client's best interest in mind.
Clearly, a breach of fiduciary duty may arise if a lawyer accepts fees that the lawyer is not entitled to by contract.
But not every breach of contract is necessarily a breach of fiduciary duty.
If a lawyer acts in good faith under a colorable interpretation of a contract, the lawyer does not necessarily act against a client's interest. See Restatement (Third) of Law Governing Lawyers 28 (Proposed Final Draft No. 1, 1996) (limiting professional discipline to intentional failures to fulfill a valid contract).