Disclaimer:  “The Treehouse is intended as a source of opinion and information sharing. It is not intended as a source of legal advice, but merely as commentary and opinion on current and timely topics, and its writers are not attorneys nor licensed to practice law in any particular jurisdiction. Nor did any of them stay at a Holiday Inn last night. For advice on legal matters, consult an licensed attorney. Preferably one who is, actually interested, in providing sound advice that results in a solution that is in your best interests”.
Part One:  “It’s Not About the Money”  (Of course not).
The Oxford Dictionary defines the origin of the concept and word “fiduciary” thusly:

late 16th century (in the sense ‘something inspiring trust; credentials’) : from Latin fiduciarius, from fiducia ‘trust’, from fidere ‘to trust’

The online Legal Dictionary defines “Fiduciary” as (emphasis mine):

1) n. from the Latin fiducia, meaning “trust,” a person (or a business like a bank or stock brokerage) who has the power and obligation to act for another (often called the beneficiary) under circumstances which require total trust, good faith and honesty. The most common is a trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators of estates, real estate agents, bankers, stockbrokers, title companies or anyone who undertakes to assist someone who places complete confidence and trust in that person or company. Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled.

A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it. For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings him/her the highest commission. While a fiduciary and the beneficiary may join together in a business venture or a purchase of property, the best interest of the beneficiary must be primary, and absolute candor is required of the fiduciary.

2) adj. defining a situation or relationship in which a person is acting as a fiduciary for another.

Wiki entry: Fiduciary – The Fiduciary Relationship is seen to be based on complete trust, and the Fiduciary is expected to act with complete loyalty and only in the best interests of the client – even if that conflicts with what is in the best interests of the Fiduciary.
In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.
A fiduciary duty is the highest standard of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the “principal”): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents.

So. Now we have a situation, where George Zimmerman has placed all of his faith, his trust, his confidence in Mark O’Mara, to secure not only his freedom but also immunity from further prosecution and legal liability arising from the tragic incident on that rainy night in February. By retaining Mark O’Mara, and by Mark O’Mara agreeing to accept the case, a fiduciary relationship was established. One that demanded that George’s rights and interests be paramount above all else, including the fiduciary’s own feelings, relationships and interests. In fact – a fiduciary is prevented from engaging in any acts which could be considered “self-interest”.
Let’s recap what we know about Mark O’Mara, based on the public record.
Mark O’Mara was a paid legal analyst for CBS affiliate WKMG. In this April 12, 2012 piece, “TV Spy” helpfully notes that George Zimmerman has “dropped one Orlando analyst for another”. Mark O’Mara became a local household name as a paid legal commentator on the Casey Anthony Case.   In this piece, Mark O’Mara is quoted as saying:

“In a WMKG interview on Tuesday night — before he was hired by Zimmerman — O’Mara said Uhrig’s decision to step down presented a serious challenge in the case.“If George Zimmerman came to me tomorrow and said, ‘I want you to represent me,’ I would look at the press conference and say, ‘Mr. Uhrig identified a potential defense. He outlined the facts of what happened, and he cemented what George Zimmerman can now say,’” O’Mara told WKMG’s Lauren Rowe. “And that’s problematic if other evidence comes out that conflicts with it.””

Hmmm.
Mark O’Mara agrees to take the case – which he assumes is going to be essentially, “pro bono” (no fee) work. He states several times, on the record, that he won’t charge a fee. (Remember that).   Why would he do that? If the concept of “fiduciary duty” is upheld, there can be no “self-interest” in Mark O’Mara’s decision to be the attorney of record for George Zimmerman.

(Via Irish Central) “Just like Mason, O’Mara’s motivations are not monetary. When asked by the Sentinel if he was planning on releasing a book on the case, O’Mara said, “Absolutely not.” However, he freely admitted there were benefits to being part of the national audience.

O’Mara said, “I can’t deny the fact that everyone out there seems to think this is going to have future benefits for me. I’ll deal with it when it comes, if it comes.”

At the hearing on Thursday April 12th, Mark O’Mara gives on-the-record interviews to the media, and states he is not charging a fee. (because there will be “other benefits” to being part of the national audience).

 APRIL – “Speaking with media after Thursday’s hearing, O’Mara said he is not taking any legal fees for representing Zimmerman, whom O’Mara described as indigent. “He doesn’t have any money,” O’Mara said.”

To Recap: Remember, on Thursday, April 12th, Mark O’Mara was quite happy to take the case pro bono, because this case was “tailor-made for him”, and he was going to construct the best possible defense for George because money for legal fees was not an issue to Mr. O’Mara.  However, “other benefits” (to Mark O’Mara) were of definite interest, though.
By Wed – April 25th, Mark O’Mara was aware that George Zimmerman had raised about $240,000 in small paypal donations, on his own, through his website, TheRealGeorgeZimmerman.  O’Mara’s first action was to seize control of the funds.

 “O’Mara says he took control over the defense fund on Wednesday”.

Sundance adds:  George was bonded [hearing] on Friday April 20th but not released until Monday night April 23rd.  On Tuesday night April 24th O’Mara tells CNN of the $204,000 known PayPal defense funds; on Wednesday April 25th O’Mara receives a fed-x package from George Zimmerman containing a check from the pay pal account and his 2nd [found] passport in the same fed-x envelope.  He then notifys Judge Lester Wed afternoon.   However,  Lester has already watched O’Mara on CNN.  Lester finds out about the money from watching TV.

Mark O’Mara, once he realizes how much money George Zimmerman has raised in a short period of time, makes the financial decision to buy the bungalow next door to his existing law practice for the “expansion” of the legal team and the defense.   He also states he is no longer willing to do the casework pro bono, even though he acknowledges that George Zimmerman is still, for all intents and purposes, indigent – homeless, unemployed, in hiding and with no prospects to earn a living to support himself and his family.
Many commentators hold the view that Mark O’Mara imperiled his client’s defense by allowing the Fox News Hannity interview on July 18th, 2012.   The state immediately filed to make the interview part of the evidence for the prosecution.
 Why would O’Mara do that?
 “My Client is Broke”.

 “Mark O’Mara said Thursday that Zimmerman stepped in front of the national TV audience in an effort to boost donations to his website.
“He needs he needs money, there is no question about that. He needs to survive from today until the day of his acquittal,” said O’Mara.”

Who is “he” – George – or O’Mara?
Remember, just a few weeks ago, “money” was not the reason for taking the case. “Future benefits” were the lure.
However, once Mark O’Mara became aware of the fund raising potential of the Zimmerman case, “money” suddenly became an issue. Remember – on April 12th, he was happy to work pro bono, simply for the high profile/media exposure it would afford him. On July 6th, a significant change in attitude and tone had taken place. Mark O’Mara posted this shocking statement to https://www.gzlegalcase.com/, the website he set up and controls:

“In the next hours and days the defense team will be working to get George released on bail and on effective strategies for moving forward. Much of our decision making will be based upon the funds available for mounting a defense. In the days surrounding Mr. Zimmerman’s initial arrest, supporters surprised everyone with the strength of their donations.”

Going back to the concept of “fiduciary duty”, Mark O’Mara states in May of 2012 that he is taking the case because:

He told the newspaper he took the case because it was tailor-made for him. He said, “I really felt I had a skill set to address this case better than most people I know. That sounds really egotistical.”

So.   Now Mark O’Mara has decided that he deserves to be paid, he needs to buy a new building for his burgeoning law practice, and he feels (somewhat “egotistically”) that he has a skill set to address this case better than most people he knows.

Really? So the press, naturally, asked him to describe his extensive experience in successfully winning immunity for his clients using the “Stand Your Ground” defense. This is what Mark O’Mara had to say about his “skill set”:

He acknowledged that although he has been in practice for a “long, long time”, he has never tried a case using the SYG (Stand Your Ground) defense.

O’Mara has had a wide-ranging practice throughout his career; he said he hasn’t yet argued a case before a jury that involved a direct invocation of the state’s 7-year-old “Stand Your Ground” law.

However, that is not exactly true. Mark O’Mara did invoke SYG in one case -which resulted in a plea bargain and a “short” jail sentence for his client. But I don’t think you can really call that a “win”.

“When asked by reporters after Thursday’s hearing how many “Stand Your Ground” cases he has handled, O’Mara said: “Self-defense cases, which is really what you’re speaking of, a number of them. It shows up in a lot of personal crimes.”

“I have not had one to a jury since the ‘Stand Your Ground’ statute, but I’ve had a couple that have utilized that as … sort of an impact on it,” he added.

One local high-profile case he handled was that of radio personality Shannon Burke, who shot his wife’s dog in a fit of anger. The bullet also grazed his wife’s head. Flood said O’Mara managed to get a nominal sentence for Burke, who received six months after pleading guilty to animal cruelty and opening fire in a building.”
A law blogger has publicly verbalized what many in the legal community accepted on face value: that Mark O’Mara took the case because it was high visibility, and would enhance his “tv personality” credentials and “future benefits” on the media/book circuit.

“He needs to recognize that his dreams of fame and fortune have turned to dust. There is not going to be any money for him and he needs to get out while the gettin’ is good.”

Mark O’Mara then does something highly unprecedented – he sets up Facebook and Twitter accounts, as well as a fundraising/information website – which we will review in  Part Two – The Social Media Circus.

“He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it”.