Donald Rumsfeld famously offered, “there are: (1) known knowns - things we know that we know; (2) known unknowns - things that we know we don't know; and (3) unknown unknowns -- things we don't know we don't know.” September 15, 2015, seems to be the day that “unknown unknown” fiduciary duties were born in Ohio.

“Known known” responsibilities are commonplace: we all accept the duty to repay an auto loan.

“Known unknown” responsibilities are also common: these are open-ended future duties typically set forth in a written agreement (like a Power of Attorney or a Trust Agreement). When we agree to these “fiduciary” roles we agree to be responsible for future events, whatever they may be, on behalf of someone else. A “fiduciary relationship” is one “in which special confidence and trust is reposed in the integrity and fidelity of another and there is resulting position of superiority or influence, acquires by virtue of this special trust.”

On September 15, the Ohio Supreme Court seems to have created the “unknown unknown” fiduciary in its Hope Academy Broadway Campus v White Hat Management LLC decision. Now, one may be judged based on a fiduciary duty standard unwittingly. Previously, a fiduciary duty could arise from an informal relationship (i.e., with no written agreement). But, in that event, the law required that both parties have an “understanding” that the special relationship of a fiduciary existed. There was no such thing as an unknown fiduciary with unknown liability.

In the Hope Academy decision, a slight majority stated that a 16 page written agreement (negotiated by sophisticated parties) characterizing one party as just an independent contractor would not preclude a court from determining that the person was much more and was in fact a fiduciary. (¶ 41). Thus, a person may not be able rely on a document or an agreement limiting the scope of their role and jeopardy. Instead, a Court can determine that a person’s role is greater (i.e. fiduciary) than the parties themselves agreed. In that event, the actions of the individual who does not know he or she is a fiduciary must satisfy a much higher threshold than agreed by the parties in the written document that initiated their relationship.

Three Justices disagreed with this conclusion and questioned whether Hope Academy has any “certain application in the future.” (¶ 72). They would argue that there should be no unknown unknown fiduciaries in Ohio. But that does not seem to be the law.