I noticed today that the California Supreme Court depublished Broadway Victoria, LLC v. Norminton, Wiita & Fuster, 10 Cal. App. 5th 1185, 217 Cal. Rptr. 3d 414 (Ct. App. 2017), review denied and ordered not to be officially published (July 26, 2017), which held that "when the basis for a claim of breach of fiduciary duty arises from the same facts and seeks the same relief as the attorney negligence claim for malpractice, the claim for breach of fiduciary duty is duplicative and should be dismissed."
I wish the Court had not depublished this opinion. The ruling was correct, and would align California with numerous other states that dismiss duplicative claims. The true fiduciary duty is the duty of loyalty, while malpractice corresponds to the duty of care. A claim that alleges self-interested conduct may state a claim for breach of fiduciary duty; a claim of error does not.
Malpractice claims in California often plead the same set of facts three ways: malpractice, breach of contract, and breach of fiduciary duty. I hope our courts eventually will do away with such duplicative pleading. Depublication represents a missed opportunity to do so.