Guardians of Legal Order: The Dual Commissions of Public Fiduciaries

Critics of public fiduciary theory have argued that public officials and institutions cannot properly be considered “fiduciaries” because the duty of loyalty does not permit a fiduciary to serve two masters with conflicting interests. We argue that this critique of public fiduciary theory is overstated because it rests on a false distinction between private and public fiduciary relationships. Conflicts of duty that arise in public fiduciary relationships are not categorically different from those that arise in private fiduciary relationships. In some cases, the fiduciary owes not only discrete “first-order” duties to the beneficiary, but also wider “second-order” duties to the broader public or to public purposes. First-order fiduciary duties are the familiar legal duties that a fiduciary owes to her beneficiary. Second-order fiduciary duties emanate from a separate fiduciary relationship between the fiduciary and public-regarding institutions that have been entrusted to the fiduciary’s administration. Second-order fiduciary duties therefore serve a different and more systemic purpose: they ensure that a fiduciary’s loyalty to her beneficiary does not compromise other institutions entrusted to her care that are designed to provide equal freedom under the rule of law. Part I of our paper uses two examples of fiduciary relationships governed primarily by private law — lawyers and physicians — to illustrate how second-order fiduciary duties operate. While lawyers are required to act in the best interests of their clients (first-order), they also bear a variety of prescriptive and proscriptive duties as officers of the court to promote the just and orderly administration of justice (second-order). Physicians likewise bear both first-order duties to their patients and second-order duties to the broader public, including obligations to prevent serious threats that their patients pose to others. Part II explains how second-order fiduciary duties contribute to the deontic legal structure of public offices and institutions. In particular, clarifying how second-order duties operate in public law helps to explain what kinds of legal obligations public authorities bear to whom and why. Part III demonstrates that national authorities also bear second-order fiduciary duties under international law. As fiduciaries of humanity, states are legally obligated to govern cooperatively so as to protect human rights for the benefit of international society as a whole.