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4 U.N.B.L. Sch. J. 12 (1950-1951)
The Liability of the Solicitor - Trustee

handle is hein.journals/unblj4 and id is 66 raw text is: 12 U.N.. LAW SCHOOL JOURNAL THE LIABILITY OF THE SOLICITOR - TRUSTEE 1. INTRODUCTION. The subject matter of this essay has not been directly considered by judicial authority, and the cases that we shall cxaininc dcal mostly with such problems'as indmnity, gifts, costs,. undertakings, and rcinun- eration, in transactions bctween soijcitor and client. From these cases we must attempt to find out wlictlier therc is any rule of stricter liability for the solicitor, who is acting as solicitor and trustcc of the one estate, than for the lay trustee. We are here concerned only with express trusts created either inter vivos or by will, and for convcniencc, wc shall refcr only to the trust created b: will, although the propositions w cshall attempt to formulate, will apply equally to trusts created inter v'ivos and by will. Equity has not always adopted a fixed and definite standard to determine the liability of a trustee for breach of trust. During its history, equity has swung from a high standard to a higher and almost intolerable one. Statute law has relieved trustees from 'this rcsponsibil- ity in certain cases, and evcti courts of equity thcmsclves have realized that the high standard they had set may defeat its own purpose by making the trust unpopular; ncvcrthiclcss the precedent for the highei standard remains and may be rcvived in case of need; it will be the subject of this essay to suggest that the court would revive this higher standard in the case of the solicitor trustee. The term Breach of Trust is an elastic one, what may be a breach of trust for one set of facts, may not be so for another. The confines of Breach of Trust arc never closed. (1) 'When a solicitor is acting only as a trustee and not also as solicitor of the trust estate, his liability will be the same as any other profession- al or business man, who suddenly finds himself appointed a trustee. The special case we are considering is that of the solicitor, who is act- ing as the solicitor of, and trustee to, the same trust, and who is advising his beneficiaries, and co-trustecs of their rights, duties and respon- sibilities under the trust. The relation between a solicitor and his client is confidential and fiduciary; so also is the relation between a trustee and his beneficiary. The position of a solicitor-trustee, must merit special consideration by courts of equity. Very often the solicitor will have drawn up the Will or other instrument creating the trust; thus a confidential and fiduciary relation will have preceded, and vcry often will have been responsible for the appointment of the solicitor as a solicitor trustee. This itself would be sufficient to demand the closer scrunitv of the courts. (1) Ilimbtry - Modern Equity 7rd cd. p. 26P1

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