Fiduciary Duties 101 (2022 Edition)

Joshua Borger | Berliner Cohen LLP.

Mr. Borger practices commercial and civil litigation in a variety of areas, including real estate, unfair business practices, breach of contract, trademarks, trade secrets, employment, and insurance coverage and litigation. Previously, Mr. Borger clerked for the Honorable Margaret B. Seymour in the United States District Court for the District of South Carolina.

Daniel Miske | Husch Blackwell.

Daniel is one of only two Wisconsin attorneys admitted to the national College of Community Association Lawyers, which recognizes excellence in the practice. He represents condominium and homeowners associations (HOAs) throughout the state.

He handles the many issues facing the boards of directors and managers of condominium associations, homeowner associations, cooperatives and timeshares, including document amendments, collections, contracts, rules and governance.

Daniel’s interest in condominium law started when he became a condo owner and, eventually, president of his condominium association. He relates well to his clients because he can identify with the complexities of condo ownership and the diversity of the legal challenges that boards and managers confront.

I. What are Fiduciary Duties – Joshua Borger | 2:00pm – 3:00pm

1. The Duty of loyalty
2. The Duty of Care
3. The Obligation of Good Faith and Fair Dealing

II. What if Someone Violates Her or His Fiduciary Duty

1. A Partner
2. An Officer or Director
3. Some other Fiduciary – e.g., Financial Advisor?

Break | 3:00pm – 3:10pm

III. The Underlying Facts that Lead to Breach of Fiduciary Duty Claims – Daniel Miske | 3:10pm -4:10pm

1. Failing to deal fairly with the entity
2. A violation of criminal law
3. A transaction or series of transactions where the director or officer received personal profit or benefit
4. Willful Misconduct

IV. What Insurance May be Available

1. Directors and Officers Insurance (D&O or E&O)
2. General Liability Policy
3. Fidelity or Crime Policy

V. Practical Steps that Partners, Board Members, and Officers can Take

1. Before becoming a Fiduciary

a) Indemnification Provisions of Relevant Statute
b) Indemnification Provisions of Documents

2. Day 1

a) Conflict of Interest Policy
b) Insurance

3. While Serving as a Fiduciary

a) Open Meetings/Closed Meetings
b) Transparency
c) Abstaining (how and what to do)
d) Records
e) Reliance on Professionals and Experts

4. Other