Comments for Fiduciary Duties http://fiduciarydutiesblog.com A blog about law and fiduciary relationships in a variety of contexts, including real estate, trusts and LLCs - Updated weekly Fri, 17 Dec 2010 06:37:57 +0000 hourly 1 http://wordpress.org/?v=3.3.2 Comment on Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 by Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 - Law Offices of Randolf Krbechek http://fiduciarydutiesblog.com/2010/12/16/vuki-vs-superior-court-%e2%80%93-no-private-right-to-enforce-three-month-negotiation-period-in-civil-code-section-2923-52/comment-page-1/#comment-4646 Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 - Law Offices of Randolf Krbechek Fri, 17 Dec 2010 06:37:57 +0000 http://fiduciarydutiesblog.com/?p=417#comment-4646 [...] three-month “renegotiation” period.  The court swept aside the argument, finding that a violation of the statute was a matter for the regulators to enforce, not an aggrieved [...] [...] three-month “renegotiation” period.  The court swept aside the argument, finding that a violation of the statute was a matter for the regulators to enforce, not an aggrieved [...]

]]> Comment on Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 by Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 « Fresno Attorney – Randolf Krbechek http://fiduciarydutiesblog.com/2010/12/16/vuki-vs-superior-court-%e2%80%93-no-private-right-to-enforce-three-month-negotiation-period-in-civil-code-section-2923-52/comment-page-1/#comment-4645 Vuki vs. Superior Court – No Private Right to Enforce Three-Month Negotiation Period in Civil Code Section 2923.52 « Fresno Attorney – Randolf Krbechek Fri, 17 Dec 2010 06:37:33 +0000 http://fiduciarydutiesblog.com/?p=417#comment-4645 [...] not keen on all the legislative tinkering with the foreclosure process.  It’s just sticking a finger in the dam – it doesn’t address the underlying problems, including the apparent wilful failure of lenders [...] [...] not keen on all the legislative tinkering with the foreclosure process.  It’s just sticking a finger in the dam – it doesn’t address the underlying problems, including the apparent wilful failure of lenders [...]

]]> Comment on A Fiduciary Duty for All Investment Professionals? by Jan Sackley http://fiduciarydutiesblog.com/2010/08/22/a-fiduciary-duty-for-all-investment-professionals/comment-page-1/#comment-2321 Jan Sackley Mon, 23 Aug 2010 22:35:26 +0000 http://fiduciarydutiesblog.com/?p=355#comment-2321 I agree with everything you have stated except for the part where you thought I was suggesting that the standard can be lowered if the principal is an expert. No where did I suggest such a deviation from fiduciary principles. My point is that because one of the hallmarks of a fiduciary is to properly manage conflicts of interest, it does indeed matter whether or not the principal is capable of fully understanding a conflict as disclosed by the fiduciary. If he or she does not understand it, no informed consent to a conflict cannot be given. Thus, for example, it is my opinion that a fiduciary cannot accept compensation such as commissions or other transaction-based compensation except in special circumstances and then only where this prima facie conflict is fully disclosed and consented to by a knowledgeable principal. Best Regards, Jan Sackley Fiduciary Foresight, LLC jan@fiduciaryforesight.com I agree with everything you have stated except for the part where you thought I was suggesting that the standard can be lowered if the principal is an expert. No where did I suggest such a deviation from fiduciary principles. My point is that because one of the hallmarks of a fiduciary is to properly manage conflicts of interest, it does indeed matter whether or not the principal is capable of fully understanding a conflict as disclosed by the fiduciary. If he or she does not understand it, no informed consent to a conflict cannot be given.
Thus, for example, it is my opinion that a fiduciary cannot accept compensation such as commissions or other transaction-based compensation except in special circumstances and then only where this prima facie conflict is fully disclosed and consented to by a knowledgeable principal.

Best Regards,
Jan Sackley
Fiduciary Foresight, LLC
jan@fiduciaryforesight.com

]]> Comment on A Fiduciary Duty for All Investment Professionals? by Randy Krbechek http://fiduciarydutiesblog.com/2010/08/22/a-fiduciary-duty-for-all-investment-professionals/comment-page-1/#comment-2317 Randy Krbechek Mon, 23 Aug 2010 17:16:05 +0000 http://fiduciarydutiesblog.com/?p=355#comment-2317 Ms. Stickley - I think we are going to have to disagree on this point. One of the underpinnings of fiduciary law is trust. Because of the relationship, the law permits the beneficiary to trust the fiduciary. Is an agent held to a lower standard because his principal is skilled? No, the agent is required to discharge his or her duties faithfully and honestly. Same for lawyers. We are not subject to a lower standard because of the skill and knowledge of our clients. That is black letter law, expressed in such familiar treatises as the Restatement of Agency. You are suggesting that the standard of performance is lower when the principal is an expert. Only if so agreed in an express contract. Otherwise, the duty of is not reduced merely because of the knowledge of the principal. The fiduciary principle states that the beneficiary gets to trust his fiduciary, not that the beneficiary has to scrutinize his fiduciary based on the principal's expertise and knowledge. I look forward to hearing from you. Randy Krbechek Attorney Fresno, California Ms. Stickley -

I think we are going to have to disagree on this point. One of the underpinnings of fiduciary law is trust. Because of the relationship, the law permits the beneficiary to trust the fiduciary.

Is an agent held to a lower standard because his principal is skilled? No, the agent is required to discharge his or her duties faithfully and honestly. Same for lawyers. We are not subject to a lower standard because of the skill and knowledge of our clients. That is black letter law, expressed in such familiar treatises as the Restatement of Agency.

You are suggesting that the standard of performance is lower when the principal is an expert. Only if so agreed in an express contract. Otherwise, the duty of is not reduced merely because of the knowledge of the principal. The fiduciary principle states that the beneficiary gets to trust his fiduciary, not that the beneficiary has to scrutinize his fiduciary based on the principal’s expertise and knowledge.

I look forward to hearing from you.

Randy Krbechek
Attorney
Fresno, California

]]> Comment on A Fiduciary Duty for All Investment Professionals? by Jan Sackley http://fiduciarydutiesblog.com/2010/08/22/a-fiduciary-duty-for-all-investment-professionals/comment-page-1/#comment-2315 Jan Sackley Mon, 23 Aug 2010 15:48:49 +0000 http://fiduciarydutiesblog.com/?p=355#comment-2315 I disagree with your statement, "If someone is in a fiduciary relationship, then the expertise or knowledge of the beneficiary matters not one whit." A fiduciary who is properly managing its conflicts of interest must receive informed consent from the client. The knowledge and expertise of the client matters very much because gaining consent from a client who does not understand your disclosure is not an informed consent. I also disagree with your criticism of Commissioner Aguilar's statement about putting the client's interests first...his phrasing is a simple initial litmus test that fiduciaries can use whenever they are recommending or taking a course of action. For you to use this example to claim Comm. Aguilar lacks clarity of thought is disingenuous. Jan Sackley, CFE Fiduciary Foresight, LLC Risk and Regulatory Compliance Consultants www.fiduciaryforesight.com Twitter@FidFore I disagree with your statement, “If someone is in a fiduciary relationship, then the expertise or knowledge of the beneficiary matters not one whit.”

A fiduciary who is properly managing its conflicts of interest must receive informed consent from the client. The knowledge and expertise of the client matters very much because gaining consent from a client who does not understand your disclosure is not an informed consent.

I also disagree with your criticism of Commissioner Aguilar’s statement about putting the client’s interests first…his phrasing is a simple initial litmus test that fiduciaries can use whenever they are recommending or taking a course of action. For you to use this example to claim Comm. Aguilar lacks clarity of thought is disingenuous.

Jan Sackley, CFE
Fiduciary Foresight, LLC
Risk and Regulatory Compliance Consultants
http://www.fiduciaryforesight.com
Twitter@FidFore

]]> Comment on Minority Interest Discount for Breach of Corporate Fiduciary Duties by Naida Flores http://fiduciarydutiesblog.com/2010/03/20/minority-interest-discount-for-breach-of-corporate-fiduciary-duties/comment-page-1/#comment-779 Naida Flores Fri, 28 May 2010 09:30:47 +0000 http://fiduciarydutiesblog.com/?p=242#comment-779 Hello,this is Naida Flores,just found your Blog on google and i must say this blog is great.may I share some of the information found in the weblog to my local students?i'm not sure and what you think?in any case,Many thanks! Hello,this is Naida Flores,just found your Blog on google and i must say this blog is great.may I share some of the information found in the weblog to my local students?i’m not sure and what you think?in any case,Many thanks!

]]> Comment on Change of Property Ownership Triggers Big Tax Bill by Chiriqui Panama http://fiduciarydutiesblog.com/2010/02/20/change-of-property-ownership-triggers-big-tax-bill/comment-page-1/#comment-663 Chiriqui Panama Wed, 12 May 2010 12:57:53 +0000 http://fiduciarydutiesblog.com/?p=222#comment-663 I usually don't usually post on many another Blogs, however I just has to say thank you... keep up the amazing work. Ok regrettably its time to get to school. I usually don’t usually post on many another Blogs, however I just has to say thank you… keep up the amazing work. Ok regrettably its time to get to school.

]]> Comment on Agent Not Liable for Breach of Fidicuary Duty Without Proof of Damages by Leota Uppinghouse http://fiduciarydutiesblog.com/2010/02/12/real-estate-agent-not-liable-for-breach-of-fidicuary-duty-without-proof-of-damages/comment-page-1/#comment-423 Leota Uppinghouse Mon, 12 Apr 2010 21:17:15 +0000 http://fiduciarydutiesblog.com/?p=202#comment-423 I just found this blog recently when a friend recommended it to me. I've been a regular reader ever since. I just found this blog recently when a friend recommended it to me. I’ve been a regular reader ever since.

]]> Comment on Berg & Berg – California Obligations of Corporate Directors to Creditors by Richard Mooney http://fiduciarydutiesblog.com/2009/11/15/obligations-of-corporate-directors-to-creditors/comment-page-1/#comment-70 Richard Mooney Fri, 08 Jan 2010 19:27:06 +0000 http://fiduciarydutiesblog.com/?p=83#comment-70 One minor note that happens to be of interest to me. Although CA "unpublished" opinions may not be cited, and most (but not all) federal circuits have a similar rule, I do not believe that any district courts do (northern district definitely does not), and the circuit rules speak only to the appellate decisions, so practitioners are in fact free to cite "unpublished" district court decisions. Agree with the rest of your points though. One minor note that happens to be of interest to me. Although CA “unpublished” opinions may not be cited, and most (but not all) federal circuits have a similar rule, I do not believe that any district courts do (northern district definitely does not), and the circuit rules speak only to the appellate decisions, so practitioners are in fact free to cite “unpublished” district court decisions.

Agree with the rest of your points though.

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