![]() 1999) (acknowledging the differences among jurisdictions in interpreting knowledge and substantial assistance). The differences arise primarily in each jurisdiction’s interpretation of what constitutes knowledge and substantial assistance or encouragement. As straightforward as this test appears, courts’ applications of the test vary immensely. In reviewing claims of aiding and abetting in civil actions, courts turn to the Restatement (Second) of Torts § 876 and pull three common elements out of subdivision (b), including: (1) a tortious act of a primary actor (2) the secondary actor’s knowledge of the primary actor’s tortious act and (3) the secondary actor’s substantial assistance or encouragement in the primary actor’s commission of the tortious act. 248, 255 (1993) (stating that non-fiduciaries have common-law duty to beneficiaries not to assist in fiduciary’s breach)).Ĭlaims of “aiding and abetting the breach of fiduciary duty” are often brought against non-fiduciary individuals, including attorneys, who despite owing no duty to the plaintiff themselves can be held liable if they “knowingly participated” in the breach of fiduciary duties. By the same token, just as the fiduciary may be liable for breaching his duty, or the “primary duty,” to the beneficiary, the common law has long recognized that one who assists a fiduciary’s breach of duty may be liable to the beneficiary. A fiduciary who fails so to act may find himself liable to the beneficiary, even in the absence of scienter or intent. The relationship involves more than protecting the vulnerable it requires the fiduciary to act in the best interest of the beneficiary, rather than in the fiduciary’s self-interest. ![]() The greatest minds of American jurisprudence have recognized the high responsibility of a fiduciary, which Justice Cardozo characterized as “the punctilio of an honor the most sensitive.” ( Meinhard v. ![]()
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