In search of the nature and function of fiduciary loyalty: Some observations on conaglen's analysis

Abstract

Fiduciary law is in a state of flux. We know that the core obligation of a fiduciary is an obligation of loyalty, but we are less sure what 'fiduciary loyalty' encompasses. We know a fiduciary has duties not to profit or put himself in positions of conflict, but how these duties interact with other non-fiduciary duties (whether tortious or contractual or otherwise) is more difficult to discern. Against this background, Conaglen has made a recent contribution to our understanding of the fiduciary doctrine. He suggests that fiduciary loyalty offers a subsidiary and prophylactic form of protection for non-fiduciary duties. This article considers his analysis, and argues that it is not supported by case law and creates a number of inexplicable implications for the fiduciary doctrine. In view of these difficulties, Conaglen's analysis should be rejected. © The Author 2007. Published by Oxford University Press. All rights reserved.