Opinion
No. 447919
December 21, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( No. 134)
The motion for summary judgment now before the court arises in a setting of staggering professional incompetence.
The action was commenced by service of process on January 15, 2001, by the plaintiff, Michael Baden, against the defendant, Laura Lee Dorflinger. Baden has been represented throughout the course of the action by Attorney Brian J. Conroy. On September 28, 2004, Dorflinger filed the motion for summary judgment now before the court. The motion was scheduled for hearing on the arguable short calendar on November 15, 2004. At that hearing, counsel for Dorflinger appeared, but Attorney Conroy did not. The Court instead was delivered a faxed letter from Attorney Conroy, dated November 14, 2004, a Sunday. Attorney Conroy stated in the letter that he was "unable to attend oral argument on November 15, 2004" because he had "a client whom [sic] needs to give a recorded statement on November 15, 2004, in Massachusetts." Attorney Conroy did not request a continuance. Rather, he stated, "my objections have been filed and I request that you consider my objections in your decision."
The problem with the latter representation was that no objections to the motion for summary judgment had been filed. The Court granted the motion for summary judgment, noting the absence of objection either in the file or in court.
On December 1, 2004, Attorney Conroy filed a motion to reargue (No. 140). An objection to the motion for summary judgment was attached to the motion to reargue. This event marked the first appearance of an objection to the motion for summary judgment in the file. On December 6, 2004, the court granted the motion to reargue and scheduled reargument for December 20, 2004.
December 20, 2004, resembled the plot of the well-known motion picture, Groundhog Day (1993). Counsel for Dorflinger (again) appeared for argument, but Attorney Conroy (again) did not. Instead, the Court was (again) handed a faxed letter from Attorney Conroy dated December 19, 2004, a Sunday (again). Attorney Conroy (again) stated that he had business in Massachusetts that prevented him from attending the reargument that he had specifically requested. He requested either a continuance or a consideration of his now-filed objections. Dorflinger's long-suffering counsel objected to a continuance. That objection was sustained.
The court will now consider the motion for summary judgment on the papers. In doing so, it will first review the file.
The original complaint, dated January 9, 2001, consists of a single count. (The single count is entitled "First Count," but there are no other counts.) The complaint alleges that Dorflinger was the attorney for one Eugene Gulycz in an action filed against Baden in the United States District Court for the District of Connecticut and filed a Second Amended Complaint in that action alleging that "Baden in his capacity as a New Britain police officer sat by and allowed an [sic] unprovoked an unnecessary battery to occur to . . . Dorflinger's client." On August 2, 2000, The United States District Court granted a motion for directed verdict in Baden's favor in the federal action. Paragraph 7 alleges that "Dorflinger was negligent and or maliciously reckless . . . [(a)] by filing the action against him with the intent to harass, and disturb the plaintiff and to cause emotional and mental injury . . . [and (b)] by filing the action against the plaintiff were [sic] actions that were extreme and outrageous to such an extent that exceeded the reasonable expectations and actions of a reasonable person . . . and caused severe and permanent emotional and mental distress injury to the plaintiff's condition of his mental and emotional health."
On June 7, 2002, Baden filed an Amended Complaint (No. 112), containing both a First and a Second Count. The First Count alleges that Dorflinger was "negligent." The Second Count alleges that she was "maliciously reckless." The circumlocutions of the January 9, 2001 complaint are otherwise retained.
On July 25, 2002, Dorflinger filed a motion to strike both counts of the Amended Complaint. (No. 114.) On December 9, 2002, the court (Zoarski, J.) denied the motion to strike as to the First Count but granted it as to the Second Count. Judge Zoarski understandably found that the First Count had been pleaded "confusingly" but reasoned that "vexatious litigation is the crux of the plaintiff's complaint."
On March 14, 2003, Baden filed a "Substituted and Amended Complaint in Compliance with Decision of December 9, 2002." Like the original complaint of January 9, 2001, the Substituted and Amended Complaint contains only a "First Count." That count alleges that Dorflinger was "negligent." The circumlocutions of the January 9, 2001 complaint are otherwise retained.
Each and every one of the pleadings reviewed — the original complaint of January 9, 2001; the Amended Complaint of June 7, 2002; and the Substituted and Amended Complaint of March 14, 2003 — bears the signature of Attorney Conroy, and each and every one specifically accuses Dorflinger of "filing the action" in question.
As mentioned, Dorflinger filed the motion for summary judgment now before the court on September 28, 2004. The documents attached to the motion for summary judgment conclusively demonstrate that Dorflinger did not "file the action" at all. Rather the underlying action, Gulycz v. City of New Britain, No. 3:97cv587 (JBA) (D.Conn.), was filed in 1997 by the plaintiff in that case, Eugene Gulycz, pro se. On March 12, 1999, the court (Arterton, J.) granted Gulycz's motion for appointment of counsel and directed the Clerk "to appoint counsel from the Civil Pro Bono Panel" to represent the plaintiff. On August 24, 1999, the Clerk appointed attorney W. Martyn Philpot, Jr. to represent Gulycz. Dorflinger, at the time an associate of Attorney Philpot, appeared pursuant to that appointment. On January 14, 2000, she filed a Second Amended Complaint. The Second Amended Complaint alleged, pursuant to 42 U.S.C. § 1983, that on March 31, 1994, Gulycz was beaten by two New Britain police officers and that other officers, including Baden "sat by and allowed the unprovoked and unnecessary battery to occur." Dorflinger does not dispute the allegation that on August 2, 2000, a motion for directed verdict was granted in favor of Baden.
With this factual review in mind, a brief discussion of controlling legal principles is in order. Zoarski, J., in ruling on Dorflinger's motion to strike, noted that "vexatious litigation is the crux of the plaintiff's complaint." That conclusion was eminently sensible, since Attorney Conroy had repeatedly alleged that Dorflinger had been negligent and maliciously reckless "by filing the action" against Baden. But, given the now-established fact that Dorflinger did not file the action but instead appeared as appointed counsel in the action mid-stream, the tort of vexatious litigation has no application to the facts presented under Connecticut law. If there is any tort here (and, as will be seen in a moment, there is none), it is instead the tort of abuse of process. "The distinction between . . . vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is the subsequent proceedings, not in the issue of process but in its abuse." Schaeffer v. O.K. Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930).
Well-established Connecticut law restricts the circumstances under which an action for abuse of process can be commenced against an attorney. The seminal case is Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987). Mozzochi explains that, while an attorney may be sued for abuse of process under certain circumstances, care must be taken to avoid "a chilling and inhibitory effect on would-be litigants of justiciable issues." Id. at 495. (Internal quotation marks and citations omitted.) Accordingly, a third-party action for abuse of process may not be brought against an attorney "unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id. at 497. The plaintiff must specifically show "the use of legal process ` primarily to accomplish a purpose for which it is not designed.'" Id. (quoting Restatement (Second) of Torts § 682 (1977)). (Emphasis added by the Court.)
A comment to Restatement § 682 explicates the meaning of the term "primarily." "The significance of this word is that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant . . . The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it." Restatement (Second) of Torts § 682 cmt. b (1977). In addition to "extortionate methods," Connecticut case law recognizes that the tort of abuse of process may be grounded on the use of "unreasonable force" or "excessive attachments." Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 776, 802 A.2d 44 (2002).
Neither the allegations in the various complaints filed in this case nor the belatedly filed objection to the motion for summary judgment point to any evidence or even suggestion of unreasonable force, excessive attachments, or extortionate methods. The unrebutted documents submitted by Dorflinger establish a situation entirely different from that of the extortion scenario envisioned by § 682 and comment b. Dorflinger appeared as an appointed attorney. The appearance was pro bono. There is absolutely no evidence that her actions were intended to result in personal gain of any description. Rather, in the highest tradition of the bar, she represented an indigent client at the request of the court. Although it is, of course, possible that even a pro bono attorney could, subsequent to her appointment engage in extortionate practices, there is absolutely no evidence of any such practice here.
Upon review of the facts and the law, it is resoundingly established that the present action is utterly without merit and has been a gross waste of public and private resources.
The motion for summary judgment must therefore be granted.
The question remains of what action, if any, must be taken with respect to the behavior of Attorney Conroy.
Meritless actions are, unhappily, not unknown in the legal world. Contrary to popular lore, this is not necessarily the fault of counsel. Any lawyer knows that the way an action looks when it is filed is often quite different from the way it looks after discovery (or, for that matter, trial). In addition, attorneys are ethically required to zealously represent their clients, and courts must be careful not to take actions that chill the vigor of professional representation. Having said this, there is a peculiar combination of circumstances in this case that cause the professional behavior of Attorney Conroy to stand out in conspicuous fashion.
The most appalling feature of this case is that Attorney Conroy repeatedly alleged, in pleadings filed over a span of more than two years, that Attorney Dorflinger had acted tortiously "by filing the action" against Baden. This allegation not only turns out to be completely untrue, but (as discussed above) the untruth is crucial to the merits of the litigation. Under Connecticut law, if Attorney Dorflinger didn't file the action, she couldn't commit the tort of vexatious litigation no matter how hard she tried. Attorney Conroy continued to make the false representation of "filing the action" even after Zoarski, J. had filed a decision denying Dorflinger's motion to strike on the specific ground that a vexatious litigation action had been pled — a judicial decision plainly made on the basis of the (false) allegation that Dorflinger had filed the underlying action. The basis of Attorney Conroy's belatedly filed objection to the motion for summary judgment is that, pursuant to Zoarski, J.'s decision, "the elements of the vexatious litigation are plead." All of these allegations have been made in spite of a public, readily available federal court file conclusively showing that Dorflinger did not "file the action" and that the tort of vexatious litigation therefore has not occurred.
The remainder of Attorney Conroy's actions are serious as well, certainly in their cumulative effect. The various complaints are, to borrow the charitable term of Zoarski, J., "confusingly" drafted. There are obvious problems in filing. Attorney Conroy's November 14, 2004 letter to the court asks the court to consider objections which had not been filed. There are obvious problems in court attendance. Attorney Conroy appears to consistently have business in Massachusetts deemed more important than judicial hearings in Connecticut, even when he has affirmatively requested just such a Connecticut hearing in his own motion to reargue. There are obvious problems in the courtesy owed opposing counsel. Attorney Conroy's faxed letters (dated on Sundays) have been received by the court only after Dorflinger's attorney has taken his own valuable time to appear in court. No reason for the extreme lateness of these notices has been suggested. The cumulative effect of these actions — false allegations which could easily have been checked by reference to a public court file, confusing drafting of court documents, inability to file, inability to attend scheduled court proceedings requested by counsel himself and discourtesy to opposing counsel — has created a perfect storm of unprofessional behavior.
All of this has occurred in the context of an action in which Attorney Conroy accuses another attorney of violating professional norms.
The first rule of professional conduct is competence. Rule 1.1 of the Rules of Professional Conduct provides that, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Assuming that nothing more sinister has transpired, the evidence suggesting that the cardinal rule of competence has been violated in this case simply cannot be ignored by the court.
A copy of this memorandum must therefore be sent to Daniel B. Horwitch, Esq., Statewide Bar Counsel, for whatever investigation he deems appropriate.
The motion for summary judgment is granted. No motion for rehearing may be filed.
Jon C. Blue Judge of the Superior Court