Granewich v. Harding

945 P.2d 1067, 150 Or. App. 34, 1997 Ore. App. LEXIS 1180

• Court: Court of Appeals of Oregon
• Decided: September 17, 1997
• Docket: 9401-00097; CA A88174
• Status: Published

Opinions

EDMONDS, J.

Plaintiff, a minority director/shareholder in defendant corporation, sued the corporation, the corporation’s majority directors/shareholders Harding and AlexanderHergert and the corporation’s attorneys for breach of fiduciary duties. Plaintiff appeals from an order dismissing his complaint against defendant attorneys for failure to state ultimate facts sufficient to constitute a claim.¹ ORCP 21 A(8). We affirm.

Because this case comes to us on appeal from a judgment of dismissal pursuant to ORCP 21 A(8), we accept all well-pleaded allegations of the complaint as true and give plaintiff the benefit of all favorable inferences that could be drawn from the facts alleged. Stringer v. Car Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992). Plaintiffs complaint, insofar as the issues on appeal are concerned, is labeled “Breach of Fiduciary Duties.” It alleges that plaintiff, along with Harding and Alexander-Hergert, each owned one-third of the shares of stock in the corporation. Each shareholder held one of the three positions on the board of directors, each served as a corporate officer, and each was an employee of the corporation.

On May 5, 1993, Harding and Alexander-Hergert informed plaintiff that he had been removed from the board of directors and relieved of his duties as secretary of the corporation. Also, the corporation terminated his employment. Plaintiff objected to these actions on the grounds that he had not received notice of any shareholders’ or directors’ meetings and that his position as director was protected by the cumulative voting requirements of the corporation’s bylaws. Harding and Alexander-Hergert then employed defendant attorneys to represent the corporation in the dispute with plaintiff. According to the complaint, defendant attorneys sent letters to plaintiff containing false statements of fact about his termination as a member of the board of directors and as an officer and “assisted” and furnished “legal advice” to Harding and Alexander-Hergert in their efforts to remove plaintiff from his corporate positions by amending the corporate bylaws to remove the cumulative voting provision, removing plaintiff as a director, and issuing shares of treasury stock to the majority shareholders. That issuance reduced plaintiffs interest in the corporation from one-third to under ten percent. In sum, plaintiff alleges that Harding and Alexander-Hergert’s actions effectively “squeezed” him out of the corporation.

Plaintiffs arguments on appeal contain components that raise three possible theories of liability: (1) that defendant-attorneys, as corporate counsel, are “directly” liable to plaintiff for breach of their own fiduciary duties to him as a director; (2) that they “conspired” with Harding and Alexander-Hergert to breach fiduciary duties that Harding and Alexander-Hergert owed to plaintiff as a minority shareholder; and (3) that defendant attorneys knowingly aided and abetted Harding and Alexander-Hergert in the breaches of their fiduciary duties to plaintiff. We address each theory separately in light of the allegations in the complaint to determine if it constitutes a legally cognizable claim.

Plaintiffs theory of direct liability is dependent on the existence of a fiduciary duty between defendant attorneys and plaintiff. Shareholders of a corporation who act as directors or officers wear more than one hat. They are representatives of the corporation in addition to their personal ownership interest. The Supreme Court held in In re Banks, 283 Or 459, 469, 584 P2d 284 (1978), that, generally, an attorney hired by a corporation to furnish services to the corporation owes a duty of loyalty to the corporation and not to its officers, directors and shareholders in their personal capacity.² In this case, plaintiff, a minority shareholder, does not allege that defendant attorneys were hired to represent him regarding his personal interests. Rather, he alleges that they were “employed * * * to provide legal services to [the corporation.]” Consequently, in the absence of an attorney-client relationship, there is no fiduciary duty owed to plaintiff in his personal capacity as a shareholder by defendant attorneys that could give rise to an action for breach of a fiduciary duty.

The remaining theories present the issue of whether defendant attorneys can be held liable for the tort of breach of a fiduciary duty for their role in rendering legal advice and assistance to the other defendants even though defendant attorneys owed no personal fiduciary duty to plaintiff. According to the allegations in the complaint, defendant attorneys had no direct contact with plaintiff except to write the letters informing him of his status as a director and officer. Although plaintiff alleges that they intended that he rely on the information in the letters, there is no allegation that he did so. In fact, he alleges that he subsequently objected to the efforts of Harding and Alexander-Hergert to remove him, and he does not allege that he was defrauded by defendant attorneys. Thus, the gravamen of plaintiffs complaint for breach of a fiduciary duty against defendant attorneys is that they gave legal advice and assistance to Harding and Alexander-Hergert after their initial action to remove plaintiff from the corporation, and it is those specific allegations that frame our holdings in this opinion.³

In general, a lawyer can be held liable for acting in concert with a client to commit a tort, even though the lawyer does not commit the tort personally. For instance, in Clausen v. Carstens, 83 Or App 112, 730 P2d 604 (1986), we held that a complaint stated a claim for trespass against lawyers who had represented their client in a dissolution of marriage proceeding and had acted with their client to cause a receiver to take legal custody of the plaintiffs’ businesses. We said, “[¿defendants need not have trespassed personally if they caused the receiver to do so.” 83 Or App at 115.

Another general rule is that tort liability is predicated on the breach of a duty owed to the plaintiff that the law implies, and in the absence of such a duty there can be no liability. Zumwalt v. Lindland, 239 Or 26, 396 P2d 205 (1964). The application of that rule is expressed in our holding in Clausen. Every person has a legal duty not to trespass on the property of another, just as everyone has a duty not to subject others to a reasonably foreseeable risk of harm. When the defendant attorneys in Clausen acted in concert with their client to cause a trespass, joint liability for the trespass ensued.

This case differs from cases like Clausen because of the nature of plaintiffs tort theory. The breach of a fiduciary duty is based on the breach of a duty that the law implies from a fiduciary relationship. Georgetown Realty v. The Home Ins. Co., 313 Or 97, n 7, 831 P2d 7 (1991). In this case, a fiduciary relationship does not exist between plaintiff and defendant attorneys. To reiterate: the issue then is whether defendant attorneys could be held liable on the facts alleged in the complaint under a form of joint liability (conspiracy or aiding and abetting) for a tort that they otherwise could not commit against plaintiff.⁴

Under Oregon law, a civil conspiracy is not an independent tort. Rather, it is a theory of mutual agency under which the acts of each of the conspirators are imputed to the other members for purposes of tort liability. The joint liability that arises from the acts of others is predicated on an agreement or meeting of the minds to accomplish an unlawful purpose, or a purpose not in itself unlawful by unlawful means, that results in an injury to another. Bonds v. Landers, 279 Or 169, 174-75, 566 P2d 513 (1977). Thus, in the absence of a statutory violation, a conspiracy is not tortious unless the underlying act itself is tortious. See Bliss v. Southern Pacific Co. et al, 212 Or 634, 642, 321 P2d 324 (1958) (holding that an alleged conspiracy to bring about a termination of a lease was not tortious when an alleged co-conspirator could terminate the lease as a matter of contract right). Thus, any discussion about conspiracy must engage with the elements of the underlying tort.

When the theory of civil conspiracy is superimposed over the tort of breach of a fiduciary duty, the law imputes the acts performed by each conspirator pursuant to their agreement to the other conspirators. Here, the complaint alleges facts from which it can be inferred that Harding and Alexander-Hergert breached their fiduciary duties to plaintiff. The theory of conspiracy serves to impute their actions to defendant attorneys. However, when that occurs, it is of no legal import insofar as defendant attorneys are concerned because they owed no fiduciary duty to plaintiff. Our prior case law illustrates the principle.

In Bergman v. Holden, 122 Or App 257, 857 P2d 217 (1993), the issue was whether the defendant could be held liable for logs obtained as a result of a trespass on the plaintiffs property by another. The evidence was that the defendant knew that some of the logs that he hauled from a landing adjacent to the plaintiffs property belonged to the plaintiff but that he did not know that the logs had been procured through a trespass. We held that the evidence was insufficient to make the defendant jointly liable along with the trespasser for the tort of trespass because he had not violated any duty owed to the plaintiff. In other words, the acts of the trespasser could not be imputed to the defendant because the defendant had not violated an independent duty owed to the plaintiff not to trespass on his property.

In arriving at our holding in Bergman, we relied in part on Restatement (Second) of Torts § 876(a). We said:

“That section requires evidence that defendant committed a tortious act in concert with the other defendants or pursuant to a common design with them. It requires that the acts committed by both defendant and by the other defendants be independently tortious in character.” 122 Or App at 260.

Restatement (Second) of Torts § 876(a) (1977), provides:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

“(a) does a tortious act in concert with the other or pursuant to a common design with him * *

Comment c states:

“In order for the rules stated in Clause (a) to be applicable, it is essential that the conduct of the actor be in itself tortious. One who innocently, rightfully and carefully does an act that has the effect of furthering the tortious conduct or cooperating in the tortious design of another is not for that reason subject to liability.”⁵ (Emphasis supplied.)

Our holding in this case is consistent with the Restatement. Under section 876(a), defendant attorneys’ conduct could not be tortious as to plaintiff because they owed no “fiduciary duty” to plaintiff. In contrast, had defendant-attorneys jointly participated in a fraud with their clients, liability would occur because their conduct would be in itself tortious. Under those circumstances, the acts of the conspirators could be imputed to each other. Thus, because the tort of breach of a fiduciary duty depends on a duty that the law implies from a fiduciary relationship between the parties, it necessarily follows that a fiduciary relationship must exist between the plaintiff and all joint tortfeasors. In this case, plaintiff does not allege facts that demonstrate a fiduciary relationship between him and defendant attorneys. Therefore, they cannot be held liable for Harding’s and AlexanderHergert’s breach.

The dissent relies on language in Still v. Benton, 251 Or 463, 445 P2d 492 (1968), and Crosby v. SAIF, 73 Or App 372, 699 P2d 198 (1985), for the proposition that defendant attorneys can be held liable for conspiring with others to breach the others’ fiduciary duties. We do not understand those cases to hold as the dissent suggests. We read Still to state the general proposition that when a plaintiff alleges and proves that several defendants conspired to commit a tort, all conspirators can be held liable for the tort even though they did not individually commit all of the elements of the tort. In the event that a conspiracy cannot be demonstrated, only those defendants who have personally committed tortious acts against the plaintiff are liable. However, the court in Still was not faced with the issue before us. In Still, the court held that the plaintiff had not proven a conspiracy, and therefore, the alleged conspirators could be held liable only for their individual torts. This case presents the different issue of whether an alleged conspirator can be held liable on a theory of conspiracy when it is legally impossible for that conspirator to commit the tort personally, and no other tort on the part of the conspirator has been alleged.

The dissent misunderstands our position regarding the meaning of Crosby. See 150 Or App at 56 n 4. In that case, the plaintiff alleged that an employer and its workers’ compensation insurer, SAIF, had conspired wrongfully to terminate benefits to which the plaintiff was rightfully entitled from SAIF. According to the complaint, the conspirators conspired to create a light-duty job for the plaintiff to effect the termination of his benefits with the understanding that the employer would discharge him after he had recommenced employment. SAIF argued first that it had discretionary immunity under ORS 30.265(3)(c). The dissent’s quote, 150 Or App at 55, about the relevance of the employer’s hiring and firing authority is in the context of that issue. In context, the statement means that the employer’s discretion is irrelevant to any exercise of discretion that would make SAIF immune under the statute. Of course, that issue is not part of this case.

The dissent blends in another argument made by SAIF in Crosby with the above quotation to arrive at the conclusion that “it is clear that, in Oregon, a person can be held liable for civil conspiracy even if the person does not commit an independently tortious act.” 150 Or App at 55-56. In Crosby, SAIF argued that the plaintiffs complaint did not allege any violation of a statutory or common-law duty that made the plaintiff’s discharge unlawful. In response, we said, “We do not share SAIF’s understanding that a conspiracy, the overt acts of which have produced damage, is not actionable.” 73 Or App at 377. (Emphasis in the original.) The fact that SAIF could point to the employer’s act of discharging the plaintiff does not change the fact that SAIF was obligated to pay benefits as long as they were lawfully owed. The “tort-like” act of wrongfully terminating benefits was a breach of SAIF’s duty under the law that was independently tortious of the conspiracy, even if in furtherance of it.⁶ It is unremarkable that SAIF could be held liable for damages flowing from the breach of the duty that it owed to the plaintiff. In contrast, defendant attorneys in this case had no obligation to plaintiff. Contrary to the dissent’s position, there is nothing in our holding in Crosby that is inconsistent with our holding today.

In summary, we have considered plaintiffs and the dissent’s arguments regarding whether defendant attorneys could be held liable for the breach of a fiduciary duty owed by the other defendants under the theory of conspiracy based on the rendering of legal assistance as alleged in this case. We believe that the better-reasoned approach is not to create a common law tort theory of conspiracy to breach a fiduciary duty under these facts. Our holding is consistent with the policy underlying our holding in Bergman that tort liability is predicated on the breach of duties owed to another. The tort of the breach of a fiduciary duty contemplates a duty arising from a relationship of attorney and client between plaintiff and defendant attorneys that did not exist in this case, and we decline to impose the consequences of such a relationship on these facts.

The third theory on which plaintiff and the dissent rely can be characterized as the “aid and assist” theory. The complaint alleges that defendant attorneys “knowingly assisted” Harding and Alexander-Hergert in their breach of their duties owed to plaintiff. Under Oregon law, it is generally held that

“ ‘all who aid, command, advise, or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner as they would be if they had done the same tort with their own hands.’ ” Perkins v. McCullough, 36 Or 146, 149, 59 P 182 (1899) (quoting from Judson v. Cook, 11 Barbour 642 (N.Y. 1852)). (Emphasis supplied.)

Restatement (Second) of Torts § 876(b) (1977), also reflects the general rule:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:

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“(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himselfl.]”

Section 876(b) has been adopted in substance by the Supreme Court in Sprinkle v. Lemley, 243 Or 521, 414 P2d 797 (1966), and by this court in Solberg v. Johnson, 90 Or App 90, 93, 750 P2d 1190, rev’d in part on other grounds 306 Or 484, 760 P2d 867 (1988), in the context of common-law negligence actions. That adoption is consistent with the general principle that every person owes a duty not to injure another negligently and, thus, that by aiding and assisting another in a breach of such a duty, the actor violates his or her own duty of care. In this case, no fiduciary relationship existed between plaintiff and defendant attorneys. Arguably, in the language of the Perkins court, defendant attorneys could not be held liable for aiding and abetting Harding and Alexander-Hergert because they could not commit “the same tort with their own hands.”

The parties have not cited any Oregon case to us, nor are we aware of any Oregon case, that has applied the general rule of liability for aiding and assisting another in the commission of a tort to the tort of the breach of a duty imposed by a fiduciary relationship. In jurisdictions outside the State of Oregon, the courts are split as to whether to recognize such a claim.⁷ Those courts that have considered the precise question have permitted a cause of action only when the plaintiff alleges that there is: “(1) a breach of a fiduciary duty owed to the plaintiff; (2) the defendant’s knowing participation in the breach and (3) damages.” Future Group, II v. Nations Bank, 478 SE2d 45 (SC 1996).

For instance, in Holmes v. Young, 885 P2d 305 (Colo App 1994), limited partners alleged that a general partner breached its fiduciary duties owed to them and that the partnership’s attorney aided and abetted that breach. The court relied on Restatement (Second) of Torts § 874,⁸ comment c, which states:

“A person who knowingly assists a fiduciary in committing a breach of trust is himself guilty of tortious conduct and is subject to liability for the harm thereby caused. (See § 876.) The measure of his liability, however, may be different from that of the fiduciary since he is responsible only for harm caused or profits that he himself has made from the transaction, and he is not necessarily liable for the profits that the fiduciary has made nor for those that he should have made.”

However, it held that the defendant attorney was not liable because he did not have the requisite knowledge to commit the tort. Other courts have focused on the “substantial assistance” element of section 876(b). See Blow v. Shaughnessy, 364 SE2d 444 (NC App 1988). See also Samuel M. Fienberg Testamentary Trust v. Carter, 652 F Supp 1066, 1082 (SDNY 1987); Holmes v. Young, 885 P2d 305, 308 (Colo App 1994).⁹

In contrast, some states do not recognize tort liability for aiding and assisting another in the commission of a tort or follow § 876(b). See, e.g., FDIC v. S. Prawner & Co., 829 F Supp 453, 457 (D Me 1993) (in Maine, “[i]t is clear * * * that aiding and abetting liability did not exist under the common law, but was entirely a creature of statute”); In re Asbestos School Litigation, 1991 US Dist Lexis 10471, *34 (ED Pa 1991) (cause of action under Restatement § 876 “has not yet been applied as a basis for liability” by Pennsylvania courts); Meadow Limited Partnership v. Heritage Savings and Loan Ass’n., 639 F Supp 643, 653 (ED Va 1986) (aiding and assisting tort based on Restatement § 876 “not expressly recognized by the state courts of the Commonwealth” of Virginia).

Again, under plaintiffs “aid and assist” theory, we are asked to create a tort theory that has not previously existed in the law of the tort of breach of fiduciary duty in Oregon. We recognize that there are competing policy arguments about whether such a theory should exist on these facts. On the one hand, a guiding principle of tort law is to compensate the injured. The giving of assistance and advice to a putative tortfeasor to enable him or her to engage in tortious conduct is contrary to societal mores and that policy. Additionally, proponents for the imposition of liability under these circumstances point out that it serves societal interests for plaintiffs to be able to recover their losses from financially responsible defendants, who are required to procure professional malpractice insurance. Attorneys, the dissent properly argues, should not be immune and should stand on equal footing with everyone else when it comes to liability for aiding and assisting tortious conduct.

On the other hand, it could be argued that to impose liability on attorneys for giving legal advice and acting on behalf of clients in the context of the facts of this case will undermine the attorney-client relationship as well as other professional relationships where highly specialized advice or services are rendered. Inevitably, the advice and assistance rendered to a client as part of such relationships will, for purposes of litigation, constitute “substantial assistance,” thereby creating an issue of fact for the jury. The giving of professional advice will be “chilled” by the knowledge that liability could result to those outside the professional relationship. The litigation of the “knowledge” element of section 876(b) may require clients and their attorneys to disclose confidential communications in defense of claims made against them. Also, the adoption of the dissent’s proposed rule will require that the attorney anticipate client response to his advice and monitor the client’s subsequent actions in order to avoid personal liability. The potential for conflicts between attorney and client regarding issues of confidentiality and client independence would be dramatically enhanced, and the ability of clients to receive legal services would be seriously impeded, as a result of the proposed rule. Ultimately, application of section 876(b) to this case could infringe on the authority of clients to determine the extent and goals of the attorney-client relationship and have the effect of making the attorney a “participant” in the business of the client rather than an advocate and an advisor.¹⁰

Although the above policy concerns are part of the equation, they are, in our opinion, by no means controlling. The holding in this case will have implications for anyone who assists in conduct that breaches a fiduciary duty owed by another. Because of the competing interests involved and the importance of this issue to all individuals who may be involved with fiduciaries, we believe that whether liability for aiding and assisting a fiduciary in the breach of a fiduciary relationship in the absence of a personal duty must necessarily be decided on a case-by-case basis. We therefore reject the dissent’s proposition that Oregon law imposes a generic duty in this context. Rather, we will look to the particular facts alleged to determine if such a duty exists.

In this case, we are mindful that the corporation retained defendant attorneys after Harding and AlexanderHergert, on their own initiative, had already fired plaintiff and removed him from the board of directors and that the assistance that plaintiff alleges that defendant attorneys provided to the corporation consisted of giving legal advice and, possibly, the preparation of documents. It is also important to our analysis that there are no allegations that defendant attorneys acted in a direct, tortious manner. Rather, their actions were directed to their client, the corporation, and the alleged indirect result of their conduct was the further breach of the fiduciary duty owed to plaintiff by Harding and Alexander-Hergert. In that light, we determine as a matter of law whether their conduct was tortious by reference to the intrinsic nature of the tort of breach of a fiduciary relationship and its purpose.

The tort seeks to protect fiduciary relationships and to promote the worthy goal that fiduciary duties be kept and performed. That policy is not furthered by extending it to those who do not owe such a duty in the context of what is alleged here. The obligation to act as a fidúciary and the liability for the breach of such a duty flow out of a fiduciary relationship. Adoption of plaintiffs proposal under these circumstances would require that we imply a fiduciary relationship between plaintiff and defendant attorneys that would be the antithesis of the attorney-client relationship between defendant attorneys and their own client, the corporation. It is uncontrovertible that defendant attorneys could not have ethically represented plaintiff, a potential adversary in the conflict. Thus, it seems incongruous to hold defendant attorneys jointly liable for the breach of a fiduciary duty that would be unethical for them to perform.

Moreover, our reluctance to employ section 876(b) in a wholesale fashion as the expression of a common-law duty in Oregon has precedence. See e.g., Schram v. Albertson’s Inc., 146 Or App 415, 934 P2d 483 (1997) (holding that a claim for common-law wrongful discharge from employment does not lie against a fellow employee because the policy of the law is to hold employers accountable). Also, holding that defendant attorneys are not liable for aiding and assisting the breach of a fiduciary duty owed by another under the facts of this case will not always result in the lack of a remedy for an injured party. Some duties implicating liability for aiding and abetting are imposed by statute,¹¹ and others arise out of applicable rules of ethics or professional rules of responsibility. In addition, the established common-law rules afford remedies for fraud, abuse of process, conversion, trespass, or the direct participation with the fiduciary of a trust in the breach of trust duties. See Restatement (Second) of Trusts, § 326 (1977). In that light, the case for creating additional tort liability in Oregon for aiding and assisting the breach of a fiduciary duty by an attorney under these facts is not compelling.

We conclude, for the reasons expressed, that the law does not impose liability under the facts alleged in plaintiff’s complaint for aiding and assisting other tortfeasors, nor does liability lie under a theory of conspiracy. Accordingly, the trial court did not err in granting defendant attorneys’ Rule 21 motion.

Affirmed.

1 All claims against Harding and Alexander-Hergert and the corporation have been dismissed, and they are not parties to this appeal.

2 In In re Kinsey, 294 Or 544, 562 n 10, 660 P2d 660 (1983), the Supreme Court said:

“The appropriate rule for a corporation with minority stockholders with substantial interests * * * is:

“ ‘As a corporation speaks and acts only through its officers and directors, its counsel is their legal advisor in respect to its affairs, but in performing that duty he is acting as the corporation’s attorney only and not as the attorney of any of its stockholders, directors, or officers as individuals, or any group or faction thereof.’ ” (Quoting ABA Opinion 86 (1932).)

3 The dissent would approach the issues involving an alleged conspiracy more broadly. We disagree with that generic view. This case involves the potential liability in tort of those who are alleged to have done nothing more than to have furnished legal services to their clients that resulted in the breach of a fiduciary duty that their clients owed to another. We believe that those facts require a careful analysis that is confined to the specific facts pled and the particular tort theory on which plaintiff relies.

4 It is critical to an analysis of joint liability for torts that the focus initially center on the requirements of the elements of the underlying tort. For instance, if an attorney acted in concert with a client to misrepresent a material fact or to commit fraud, liability could arise because the law implies and the elements of the tort encompass the duty of all persons not to act fraudulently in their dealings with others.

5 See also Restatement (Second) of Torts § 876(a), illustration 1:

“A, B, C, and D come together to E’s house at night to rob. A breaks E’s front door, B ties E up, C beats E and D steals and carries away E’s jewelry. A, B, C and D are all subject to liability to E for all damages caused by the trespass to land, the false imprisonment, the battery and the conversion.”

6 What is crucial to understanding the holding in Crosby is the recognition that the plaintiff alleged that SAIF had independently violated a duty owed to the plaintiff as well as having participated in a conspiracy with the employer. We said, “Plaintiff does not plead that he was terminated because he filed a claim; he alleges that defendants conspired to divest him unlawfully of his right to workers’ compensation benefits and to terminate him.” 73 Or App at 374-75.

7 An insightful discussion and helpful compilation of case law regarding the issue is found in Comment, Changing the Nature of Corporate Representation: Attorney Liability for Aiding and Abetting the Breach of Fiduciary Duty, 28 St. Mary’s LJ 213 (1996).

8 Restatement (Second) of Torts § 874 (1977), provides:

"One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of a duty imposed by the relation.”

9 The federal courts consider whether “substantial assistance” has been rendered to be an issue of causation. They consider such factors as the nature of the act encouraged, the amount of and kind of assistance, the defendant’s absence or presence at the time of the tort and the relationship, if any, to the primary tortfeasor. See e.g., Halberstam v. Welch, 705 F2d 472, 483-83 (DC Cir 1983).

10 The dissent points to the security laws (e.g., ORS 59.115(3)), in which the same concerns exist. It should be pointed out that the legislature has traditionally closely regulated the sale of securities for the protection of the public. In contrast, the tort of Breach of a Fiduciary Duty is a child of the common law, and there appears to be no similar compelling need to extend its reach to the facts alleged here.

11 For instance, individuals can be held liable under ORS 59.135 for aiding and abetting fraud and deceit with respect to the offer or sale of securities.