5.2 The 1997 Revised Uniform Partnership Act and The 2001 Revised Uniform Limited Partnership Act
Until recently, Justice Cardozo’s “punctilio of an honor” was alive and well: “As a fiduciary, a partner must consider his or her partners’ welfare, and refrain from acting for purely private gain.” The 1997 Revised Uniform Partnership Act and the 2001 Revised Uniform Limited Partnership Act, however, move away from a reliance on this broad fiduciary duty to regulate partner conduct. Instead, these Acts each limit fiduciary duty to a duty of loyalty, which is further limited (“cabined”) to specific conduct instead of being a general concept tailored by courts to cover a broad array of impermissible conduct.  The enumerated categories of conduct “are exclusive and encompass the entire duty of loyalty.” Both model acts are backstopped by an obligation of good faith and fair dealing which “is a contract concept” not a fiduciary duty.
 Wartski v. Bedford, 926 F. 2d 11, 20 (C.A. 1st. Mass. 1991) (quoting from Meehan v. Shaughnessy, 404 Mass. 419, 535 N.E. 2d 1255, 1263 (1989).  The revision of the partnership act is commonly referred to as “RUPA” whereas the revision of the limited partnership act is commonly referred to as “ReRULPA” to distinguish it from the 1982 revision.  The restricted duty of loyalty is problematic because of the essential role that it plays in the fiduciary relationship. Boxx, supra note 7, at 280 (“The duty of loyalty has been called ‘the essence of the fiduciary relationship’ and even has been considered an expression synonymous with fiduciary.”). RUPA § 404 states that the fiduciary duties are limited to that of loyalty and a separate duty of care which duty, in point of fact, is not a fiduciary duty but rather the “duty” not to engage in grossly negligent or reckless conduct, intentional misconduct or knowing violations of law.  RUPA § 404, cmt. Also see RUPA § 103(b)(3)(i) which provides that this truncated duty of loyalty, while not permitted to be eliminated totally, may be further precluded from operating on specific types or categories of conduct identified by the partnership agreement.  RUPA § 404, cmt.