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The who, what, when, where, and why of fiduciary duties in small businesses

Matt McKinney is an attorney at BrownWinick Attorneys at LawMatt McKinney

What is a fiduciary duty?

A fiduciary duty is often regarded as the highest duty recognized by the law. In simplistic terms, a person charged with exercising fiduciary duties (commonly referred to as a fiduciary) must discharge their duties with the utmost good faith, care, and the finest loyalty.

More specifically, the term “fiduciary duty” is often used as an umbrella term describing a number of duties that are collectively referred to as fiduciary duties.  For example, “fiduciary duties” frequently encompass duties such as (1) the duty of care - generally to act with diligence and with the care an ordinarily prudent person in a like position would exercise; (2) the duty of informed judgment - the process of gaining sufficient familiarity with the background facts and circumstances to make an informed judgment before acting; (3) the duty of disclosure - commonly interpreted as a duty to disclose certain information to shareholders or members; including, conflicts of interest; (4) the duty of confidentiality - to protect confidential and non-public information; and (5) the duty of loyalty - customarily meaning to act in the best interests of the corporation, company, partnership, etc...

Who is charged with exercising fiduciary duties?

Generally speaking, persons who exercise control over a corporation, company, partnership or similar entity are held to this higher, fiduciary duty standard. Therefore, and not surprisingly, directors and officers of corporations, who by their very nature exercise control over a corporation, are held to this higher, fiduciary duty standard. Importantly, however, directors and officers are not the only persons held to this higher standard.  In fact, in addition to directors and officers, majority shareholders are also often held to this higher, fiduciary duty standard.  Consequently, even if you do not serve as a director or officer of a corporation, be alert, because if you hold an interest in the business, you may nonetheless be held to this higher, fiduciary duty standard.

Business owners in different business entities are also held to this higher, fiduciary duty standard. For example, partners in both general and limited partnerships are ordinarily required to discharge their duties in a fiduciary manner. And, depending upon applicable laws in different states, members and managers in limited liability companies (LLCs) may also be required to discharge their duties in a fiduciary manner.

When do fiduciary duties apply?

Principally, fiduciary duties apply when a fiduciary takes action or declines to take action that relates to or that could otherwise effect the business entity; including, potential business opportunities not yet realized.

Fiduciary duties are generally not extinguished until the fiduciary is relieved or removed from the position that created the fiduciary duties to begin with. It is important to note, however, that in many jurisdictions fiduciary duties can extend beyond the point in time in which a person is relieved from their position within the business entity.

Where do fiduciary duties come from?

Fiduciary duties were developed through the common law - a body of law originally developed in England and later shaped by our courts. Today, fiduciary duties arise from both the common law and state statutes. For example, the Code of Iowa imposes statutory standards of conduct upon officers and directors in Iowa corporations. As explained above and setforth within Iowa Code Section 490.830, the Iowa Code generally requires directors to act in good faith and in the best interest of the corporation. These statutes often form the basis of a claim or defense for breach of fiduciary duty.

Why do you need to be aware of these fiduciary duties?

Whether you know it or not, if you are a part of a business entity (as a director, officer, member, manager, partner, or majority shareholder) you will likely be held to this higher standard when taking action with or relating to the business entity. Failure to comply with fiduciary duties can result in liability to both the business entity and you.  In fact, failing to fulfill fiduciary duties can be considered oppressive conduct, which can result in the dissolution (termination) of the business entity.

It is important to note that this article serves as an introduction to a legal concept and that fiduciary duties can and do differ from state to state and entity to entity. If you have questions or concerns regarding fiduciary duties, you should consider contacting a licensed attorney.  

For additional reading on the topic of fiduciary duties, visit the following links:

Care, or Beware! Iowa’s Fiduciary Duty of Care

A Deeper Dive into a Director’s Duty to Become Informed

A Director’s Duty to Remain Silent

Oppression, Breach of Fiduciary Duties, Freeze Out, and Judicial Dissolution – An Iowa Court of Appeals 2011 Analysis

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