Opinion
FSTCV166028883
11-22-2017
Bridjay CAPONE et al. v. Mark KATZ
UNPUBLISHED OPINION
OPINION
Hon. Charles T. Lee, Judge
This case comes before the court on the motion of defendant Mark Katz (" Attorney Katz") to dismiss the complaint for lack of standing. The action was commenced on or about June 14, 2016 by service of the summons and complaint upon the defendant on behalf of plaintiffs, Bridjay Capone (" Bridjay") and Marie Bongiorno (" Marie"), who are daughter and mother, respectively. As explained below, the court grants the motion to dismiss this action.
The action arises in connection with a bitter and protracted family feud over the rights to commercial property located on the West Side of Stamford, Connecticut and interests in various businesses accumulated over the years by the brothers John and George Bongiorno. The present action alleges that Attorney Katz acted improperly in representing the interests of an opposing faction contrary to the interests of Ms. Capone and Ms. Bongiorno because he allegedly had represented them in the past. The first revised complaint, dated August 31, 2016, which is the operative complaint, alleges a first count of legal malpractice and a second count of breach of fiduciary duty on behalf of both plaintiffs against the defendant. The third, fourth, fifth and sixth counts allege aiding and abetting a breach of fiduciary duty owed to Bridjay Capone by Frank Bongiorno, Maurice Nizzardo, Michelle Nizzardo and John Bongiorno, respectively. The seventh, eighth, ninth and tenth counts repeat these allegations on behalf of Marie Bongiorno.
Defendant Katz filed the present motion to dismiss for lack of standing on February 15, 2017, with an affidavit and a memorandum of law (no. 126). Plaintiffs filed their objection on March 27, 2017 (no. 127), defendant filed a reply memorandum on March 31, 2017 (no. 128), and the court conducted an evidentiary hearing on May 2 and May 9th, 2017. Plaintiffs filed a post-trial memorandum in opposition on May 31, 2017 (No. 138) with various exhibits (nos. 139-42), the parties filed a stipulation as to the use of certain deposition excerpts (no. 143), defendant filed a reply memorandum on June 13, 2017 (no. 144), and plaintiffs filed a sur-reply memorandum on June 23, 2017 (no. 145).
The Parties’ Contentions
The defendant claims that plaintiffs lack standing to bring their claims against him for legal malpractice, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty because an attorney-client relationship never existed between the defendant and the plaintiffs.
Plaintiffs, on the other hand, contend that defendant represented their interests, as well as those of other family members, in a buy-out from the estate of John Bongiorno (John Sr.) in 2004 of his interests in various property and family companies so that George Bongiorno’s children, i.e., Bridjay Capone (Bridjay), Frank Bongiorno (Frank), Michelle Bongiorno Nizzardo (Michelle) and John Bongiorno (John Jr.), would each have a twenty-five percent interest in many of those assets. In the course of that representation, plaintiffs claim that they shared, or defendant came to be privy to, confidential information, thereby creating a fiduciary relationship and duty between them. As a result, they claim defendant breached that duty by failing to inform them and using unspecified confidential information while representing the various family entities and other siblings and their spouses when disputes broke out regarding the management of those companies and assets. In particular, plaintiffs point to a waiver drafted by defendant Katz and signed by themselves and other family members stating that there was a potential for a conflict of interest because defendant had been retained to assist the senior Bongiornos with certain matters where their interests were adverse to other family members. The document provided that the family members were waiving any such conflict, subject to a revocation of the waiver in the future. Plaintiffs claim that they did so revoke the waiver and, indeed, point to their legal efforts in the past to disqualify defendant from representing the family businesses and other family members in disputes with themselves.
In response, defendant Katz claims that 1) the waiver was not a retainer agreement establishing an attorney-client relationship, 2) Marie Bongiorno admitted in her deposition that she never had an attorney-client relationship with him, 3) Bridjay Capone was separately represented in the estate buy-out by Attorney Robert Reeves and not by him, and 4) neither plaintiff had shared confidential information with him. Because no attorney-client relationship existed and no confidential information was shared with him, defendant claims that no action for malpractice can be filed against him by plaintiffs, no fiduciary duty arose to them, and he could not be held liable for aiding and abetting other family members in breaching their fiduciary duties.
Findings of Fact
At the hearings on May 2 and May 9, 2017, the parties called the following individuals to testify: Joseph Capone, Jr. (Bridjay’s husband); Attorney Katz; Attorney Robert Reeves; Maurice Nizzardo (Michelle’s husband); and Frank Bongiorno. The parties also stipulated to the admissibility of excerpts from the depositions of Marie, Bridjay and, apparently, Frank Bongiorno. Upon review of the testimony of the witnesses at the hearing and at deposition, the exhibits submitted therewith, consideration of the credibility of the proffered testimony, and of the pleadings submitted by the parties, the court makes the following findings of relevant fact:
After the close of evidence, plaintiffs submitted four documents labeled Exhibits C through F on May 31, 2017. However, these documents were not admitted into evidence and the court did not consider them.
1. Attorney Katz represented George Bongiorno (George), the patriarch of his side of the family, for forty years until George’s death in 2016. Pl. Surreply, at 3, Transcript of May 2, 2017 hearing, at 12-13, 94, 115, 156. While working for the firm of Macrides Zezima & Christian, in the 1970s, Attorney Katz met George and helped with various assignments. Id. at 107-10. Attorney Katz left the firm in 1979 to start his own practice, and continued to perform various tasks for George, including collection work and corporate matters. Id., at 110, 114; Transcript of May 9, 2017 hearing, at 93.
2. George was married to Marie. Together, they had four children: Bridjay, Frank, Michelle and John (John Jr.). 5/2/17 Tr. at 11.
3. John Bongiorno (John Sr.) was George’s brother and had no children. John Sr. died in 2003. Id., at 12-13.
4. John Sr. and George worked together to amass substantial real estate and business holdings, including a supermarket, gas station, pharmacy, liquor store and other nearby real estate. 5/2/17 Tr. at 11. These assets were held and managed by J&G Realty, LLC and other privately held businesses. Id., at 126.
5. John Sr. allegedly agreed to bequeath many of his assets to George’s children. Id., at 14-15, 111. However, he left most of his property to his wife Wilma, his nephew Ron Sapia and to Wilma’s niece. Id., at 15, 73.
The actual percentages distributed by John Sr.’s will are a matter of dispute, with Maurice Nizzardo testifying that John Sr. left 25% to Michelle, 25% to Frank, 5% to Bridjay, 5% to John Jr., and 40% to Ron Sapia. 5/9/17 Tr. at 37-38. However, the actual distribution percentages are not relevant to the determination of this motion.
6. This led to an intra-family dispute, which was eventually settled in 2004 with a buy-out arranged by George of John Sr.’s interests, which were conveyed to George’s children, with each receiving interests in certain business interests and assets. Id., at 17.
7. Attorney Katz performed limited legal services for George in connection with the buy-out. He was the title agent, issued opinion letters to lenders and was the closing attorney for the transaction. Id., at 119-21.
8. Attorney Robert Reeves of Cummings & Lockwood represented George’s children and their spouses in connection with the buy-out. Id., at 92-94, 118; 5/9/17 Tr. at 3-4. His engagement letter, admitted as Exhibit B, is dated December 11, 2003 and undertakes to provide legal services to Mr. Nizzardo, Frank, John Jr. Michelle, Bridjay and Mr. Capone " with respect to your purchase of the Bongiorno business interests currently held by the Estate of John Bongiorno, Jr." Attorney Reeves met with the Bongiorno children in March 2004 and discussed the transaction and related documents with them. Id., at 4-9, 15.
George and John Sr.’s father was named John Bongiorno. Legally, the individual referred to herein as John Sr. was named John Jr. In order to differentiate him from George’s son John, the parties adopted the nomenclature at the hearing of calling the youngest John " John Jr." and his uncle John, who deceased in 2003, " John Sr." 5/2/17 Tr. at 12.
9. A New York trust and estate attorney named Henry Bubel with the firm of Patterson, Belknap, Webb & Tyler represented the estate of John Sr. and drafted the Transaction Documents, discussed below, in negotiation with the Zezima firm. 5/2/17 Tr. at 96, 117, 123; 5/9/17 Tr. at 16, 28, 68-69.
10. George’s children and Maurice Nizzardo signed documents effectuating the buy-out in January and March 2004. Id., at 67-69. These documents included a Waiver of Notice of Prejudgment Remedy (Exhibit 2) (the PJR Waiver), an Environmental Indemnity Agreement (Exhibit 3), a Promissory Note in the amount of $2, 570, 178.00 from George and Marie’s children to the estate of John Sr. (Exhibit 4), and a Purchase Agreement between the same parties and several commercial entities (Exhibit 5) (collectively, the Transaction Documents). 5/2/17 Tr. at 10.
11. The PJR Waiver contains two Certifications on the last page, the second of which says, " I have represented [Frank, John, Bridjay, Michele and Maurice Nizzardo], some of the individuals and entities in connection with the closing of the Loan. I have explained to each the rights that each of them has waived pursuant to the Agreement." Attorney Katz explained that this representation, which he had never seen before, was demanded by Attorney Bubel and that his side " would sign anything" to close the transaction. 5/2/17 Tr. at 124.
12. The Purchase Agreement also provided that Attorney Katz was to receive notices directed to the family members as the purchasers. 5/2/17 at 17, 121-22. Attorney Katz witnessed and notarized several of the documents. Id., at 47, 61.
13. As a result of the buy-out, the children received equalized interests in various family holdings. 5/2/17 Tr. at 29, 81.
14. In March 2006, Attorney Katz prepared Plaintiff’s Exhibit 1, entitled Waiver of Conflict of Interest (the Conflict Waiver) by and between George and Marie Bongiorno as " parents, " and Frank, John Jr., Michelle and her husband Maurice Nizzardo, and Bridjay and her husband Joseph Capone, Jr. as " children." 5/2/17, at 21. All named parties signed the document on dates ranging from March 30, 2006 through May 15, 2006. Id., at 18.
15. The Conflict Waiver states that Attorney Katz " has represented various Bongiorno family interests for a long period of time" including interests of Mr. Nizzardo and Mr. Capone. The Waiver continues, " Certain circumstances have arisen" including an adjustment of property lines, and " George Bongiorno and Marie Bongiorno have issues that are clearly conflicting with those interests of the other undersigned parties, " including George and Marie’s rights regarding J&G Realty, LLC, and " certain cash flow distributions" which George and Marie were demanding.
16. The Waiver provides that, nevertheless, " various parties as undersigned have requested that Mark F. Katz, Esq., continue to provide legal services and advice to the undersigned regarding family matters, family business matters, conflicting family interrelationships as they relate to family business matters, and otherwise as well."
17. Finally, the Waiver provides that Katz is willing to " continue to provide representation, advice and counseling to the parties hereto provided there is a unanimous acknowledgement of the inherent and potential conflicts of interest between the parties hereto" ... " until such time as any one of the parties hereto give written notice to Mark F. Katz that he is no longer to provide representation to any of the members hereto, whereupon [he] will be unable and barred from providing representation or counseling to any of the parties hereto adverse to the interest of any other party hereto."
18. The purpose of the Conflict Waiver was to permit Attorney Katz to work with family members to discuss George’s estate plans and to assure an income stream for George and Marie. 5/9/17 Tr. at 62-63. However, no evidence was presented that any such discussions occurred involving plaintiffs.
19. In 2009 or 2010, Marie commenced a marital dissolution proceeding with George. 5/2/17 Tr. at 25, 101-2. Attorney Katz represented George and Attorney Mary Badoyannis represented Marie. 5/2/17 Tr. at 25-26, 75, 124. The Zezima and Christiano firm continued to serve as family attorneys in many matters. Id. at 97; 5/9/17 Tr. at 52-53.
20. Starting in 2012, Marie and Bridjay commenced the first of approximately eighteen litigations against family businesses and family members contending that they were not being treated fairly. 5/8/17 Tr. at 52-53. Attorney Katz represented the defendants in those cases. 5/2/17 Tr. at 29-32.
21. On March 11, 2015, Bridjay filed a motion to disqualify Attorney Katz in one of the intra-family litigations, George Bongiorno et al. v. J.G. Realty, LLC, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST 12 6014465, which was denied without opinion by order dated May 5, 2015 (Tierney, J.). 5/2/17 Tr. at 33, 141.
Defendant does not argue for collateral estoppel effect arising out of this ruling. 5/2/17 Tr. at 38. In another intra-family case, the parties agreed to waive any objection to Attorney Katz representing the Bongiorno businesses and certain family members in an arbitration pending before Judge Alan Nevas in exchange for their consent to Attorney Mary Badoyannis representing the claimants. Exhibit A, 5/2/17 Tr. at 33, 159-62.
22. In her deposition taken January 6, 2017, Marie testified that she could not recall any specific item or piece of legal advice that Attorney Katz provided to her at any time. Excerpt of Transcript of 1/6/17 Deposition, at 6-7, submitted as Exhibit C. She also could not recall any information that she would consider confidential that she provided to Attorney Katz at any time. Id., at 7. She said that Attorney Katz " represented my husband way back. [Attorney Katz] was my husband’s lawyer for years and years and years." Id., at 14-15.
23. In her deposition, also taken January 6, 2017, Bridjay said, " My belief was- is to this day you [referring to Attorney Katz] were representing our whole family. You were our family lawyer." Excerpt of Transcript of 1/6/17 Deposition, at 8, submitted as Exhibit E.
Discussion
" [A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41 (2014).
" [S]tanding ... implicates a court’s subject matter jurisdiction, which may be raised at any point in judicial proceedings." Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996). " Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 (2003). Where subject matter jurisdiction, or in this case standing, is challenged, the burden of establishing the court’s jurisdiction rests on the plaintiff. Id., 265 Conn. 430 n.12; see also Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14 (2009) (same).
A. Count One- Legal Malpractice
In Paragraphs 19 and 20 of the first revised complaint, plaintiffs allege,
19. As counsel to the Bongiorno Family Entities and its respective members and/or owners, Attorney Katz has, at all relevant times, been intimately familiar with and had knowledge of, the oppressive and illegal actions as claimed and described in paragraph sixteen (16) of this, the First Revised Complaint.
20. Despite having an existing attorney-client relationship with the Plaintiffs, Attorney Katz neglected his professional responsibilities to the Plaintiffs by failing to inform and adequately advise them of the oppressive and illegal actions as claimed and described in paragraph sixteen (16) of this, the first revised complaint.
As a result of these allegations, the contention that Attorney Katz had an attorney-client relationship with the plaintiffs is fundamental to their claim of legal malpractice. It is well recognized that " attorneys [generally] are not liable to persons other than their clients for the negligent rendering of services." Goodyear v. Discala, 269 Conn. 507, 517 (2004). " In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages." Lee v. Harlow, Adams & Friedham, P.C., 166 Conn.App. 289, 297 (2009).
On this motion to dismiss, the plaintiffs have the burden of establishing the existence of an attorney-client relationship with Attorney Katz. The plaintiffs rest their assertion of an attorney-client relationship on Attorney Katz’s role in the family buy-out in 2004, and on the language of the Conflict Waiver in 2006. The evidence adduced at the hearing is clear that Attorney Katz represented the patriarch, George Bongiorno, in his effort to provide for his family and to correct the unequal effect of his brother’s will. The testimony of Attorney Katz that he represented George and that the children were beneficiaries but not clients is not credibly contradicted. The children and their spouses retained their own counsel in connection with that transaction, i.e., Attorney Robert Reeves of Cummings & Lockwood. Beneficiaries of a client’s actions are not automatically themselves clients. See Guinan v. Block, Superior Court, judicial district of Hartford, Docket No. HHD CV 12 6041243 (January 23, 2015, Sheridan, J.) (facts did not establish attorney-client relationship between defendant attorney and plaintiff beneficiaries of trusts). Plaintiffs point to no engagement letter with Attorney Katz and refer to no legal advice he gave to them. In fact, Marie testified at her deposition that Attorney Katz represented her husband George, and that she could not recall any legal advice Attorney Katz had ever provided to her.
The plaintiffs point to various phrases in the Transaction Documents and argue that the defendant " is rightly understood to have established an attorney-client relationship with [Bridjay] as a result of uncareful draftsmanship." See, e.g., Plaintiffs’ Memorandum dated May 31, 2017, at 5. However, that is not how an attorney-client relationship is established. The fact remains that the defendant’s client in the buy-out was the patriarch, George, and that Attorney Katz was acting at his direction to achieve parity among his children.
Similarly, plaintiffs note that the Conflict Waiver states that Attorney Katz " has represented various Bongiorno family interests for a long period of time" and that Attorney Katz is willing to " continue to provide representation ... to the parties hereto." However, there is no indication that Marie and Bridjay ever requested that Attorney Katz represent them, and it is clear that Attorney Katz had represented other family members in the past, besides the plaintiffs.
As a result, the court concludes, based on the totality of the evidence, that the plaintiffs have not satisfied their burden of proof that an attorney-client relationship existed between themselves and the defendant. Accordingly, the plaintiffs lack standing to bring the first count of the complaint, sounding in legal malpractice.
B. Breach of Fiduciary Duty
In paragraph 23 of the first revised complaint, plaintiffs allege,
As counsel to the Plaintiffs, in their individual capacity and their capacity as members and/or members of the various Bongiorno Family Entities, Attorney Katz owed a fiduciary duty to them.
Further, plaintiffs allege that they " divulged and shared certain personal and confidential information to Attorney Katz" (Paragraph 25) and that Attorney Katz breached his fiduciary duty to them by a) neglecting to inform them of the improper activities of the Bongiomo Family Entities and other members of the family (Paragraph 28), and b) continuing to serve as counsel to the opposing family members and entities while using information entrusted to him by the plaintiffs (Paragraphs 29 and 30).
" Turning to the standard for determining whether a fiduciary relationship exists, this court has recognized that some actors are per se fiduciaries by nature of the functions they perform. These include ‘agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians.’ (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, [281 Conn. 84, 108-09, 912 A.2d 1019 (2007) ].
" Beyond these per se categories, however, a flexible approach determines the existence of a fiduciary duty, which allows the law to adapt to evolving situations wherein recognizing a fiduciary duty might be appropriate. Id. This court has instructed that, ‘[a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ... The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.’ (Internal quotation marks omitted.) Id., at 108, 912 A.2d 1019. With these principles in mind, ‘we have recognized that not all business relationships implicate the duty of a fiduciary.’ Hi-Ho Tower, Inc. v. Com -Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000)." Iacurci v. Sax, 313 Conn. 786, 800 (2014) (no fiduciary duty owed by preparer of tax returns to client).
As established in the previous section, Attorney Katz did not have an attorney-client relationship with the plaintiffs. Marie specifically acknowledged this and the evidence showed that Bridjay and her siblings had their own attorney advising and representing them in connection with the family buy-out. As a result, the defendant cannot be said to be have been in " a relationship characterized by a unique degree of trust and confidence" with plaintiffs.
Alternatively, plaintiffs assert that Attorney Katz had an attorney-client relationship with them in their capacity as owners or members of the various Bongiorno Family Entities to which Attorney Katz provided legal services. However, plaintiffs presented no evidence relating to that claim, or to the distinction between the corporate entities that presumably hired and paid Attorney Katz and the entities’ investors or members.
Finally, plaintiffs correctly point out that Attorney Katz had an extensive and intimate knowledge of the Bongiorno family’s businesses and holdings. However, this was a natural corollary to representing George and the family entities over the course of decades, and not of any interactions with Bridjay or Marie. Marie testified in her deposition that she could not recall any information that she would consider confidential that she had provided to Attorney Katz at any time. As to Bridjay, no evidence was submitted of any confidential information that she had entrusted to Attorney Katz. Accordingly, plaintiffs have failed to meet their burden of proof as to showing the existence of a fiduciary duty owed to them by Attorney Katz.
This conclusion is buttressed by considerations of public policy. " Courts have refrained from imposing a duty on an attorney to a non-client when imposing such a duty would have the potential to interfere with the ethical obligations owed by an attorney to his or her client ... A central dimension of the attorney-client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client ... The Connecticut Supreme Court reasoned that it must take care not to adopt rules which interfere with the attorney’s duty of robust representation of the interests of his or her client ... The duty of entire devotion to the client is not limited to litigation matters as transactions involving contractual negotiations do involve parties with adverse interests." (Citations omitted; internal quotation marks omitted.) First American Title Ins. Co. v. Martucci, Superior Court, judicial district of Windham, Docket No. CV 10 6002278 (Dec. 14, 2011, Vacchelli, J.) ; see also, Weyher v. Cohen, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST CV 15 5014853S (March 10, 2016, Lee, J.), [2016 WL 1397422) (wife’s divorce counsel owed no fiduciary duty to ex-husband).
C. Counts Three through Ten- Aiding and Abetting Breach of Fiduciary Duty
In counts three through ten, the plaintiffs claim in identical language that Attorney Katz aided and abetted family members Frank, Maurice Nizzardo, Michelle and John Jr. in breaching their fiduciary duties by preventing plaintiffs from exercising their rights as members of various family companies and sharing in their profits. Specifically, the counts allege that Attorney Katz represented these companies while the acts complained of were occurring and " [b]y failing to disclose the oppressive and illegal acts of [the family companies and family members] knowingly and substantially assisted [them] against [plaintiff]." See, e.g., Third Count, paragraph 31; Fourth Count, Paragraph 27; Fifth Count, Paragraph 27; Sixth Count, Paragraph 27; Seventh Count, Paragraph 27; Eighth Count, Paragraph 27; Ninth Count, Paragraph 27; and Tenth Count, Paragraph 27.
Under certain circumstances, Connecticut recognizes a civil cause of action for the aiding and abetting of a tort. See Carney v. DeWees, 136 Conn. 256, 262 (1949) (the misconduct of one driver encouraged and incited the misconduct of another). However, our Supreme Court has recently declined to hold that a claim for aiding and abetting a breach of fiduciary duty is actionable. In Flannery v. Singer Asset Fin. Co., LLC, 312 Conn. 286, 296 (2014), the court held,
The Appellate Court assumed, without deciding, " that Connecticut recognizes an action for aiding and abetting in the breach of a fiduciary duty. See Efthimiou v. Smith, 268 Conn. 499, 504-07, 846 A.2d 222 (2004) (discussing claim of aiding and abetting in breach of fiduciary duty)." Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn.App. at 511 n. 4, 17 A.3d 509. In Efthimiou, although recognition of such a cause of action was unnecessary for the disposition of the appeal, this court quoted Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir. 1983), for the proposition that, " [a]iding-abetting includes the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation ..." (Internal quotation marks omitted.) Efthimiou v. Smith, supra, at 505, 846 A.2d 222. Similar to Efthimiou, the present case does not require us to decide whether aiding and abetting a breach of a fiduciary duty is a viable cause of action in Connecticut, and we decline to do so in dicta.
Accordingly, the tort of aiding and abetting a breach of fiduciary duty has not been recognized in Connecticut jurisprudence.
In the context of fraudulent concealment, our Supreme Court held in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 107 (2007), that " although fraudulent concealment generally requires an affirmative act of concealment, nondisclosure is sufficient when the defendant has a fiduciary duty to disclose material facts" [internal quotation marks omitted]).
Without venturing where the Supreme Court has declined to tread, this court concludes that, even if such a cause of action as aiding and abetting a breach of fiduciary duty through non-disclosure were upheld, it is unlikely that such a claim would succeed in the absence of a duty to disclose on the part of the alleged aider and abettor. Here, the gravamen of plaintiffs’ claim is that they were harmed by defendant’s failure to disclose their siblings’ nefarious acts, but it has been established above that defendant did not owe them any duty of disclosure. It defies logic to believe that the defendant could be held liable for aiding and abetting a tort by non-disclosure when he had no duty to disclose anything to plaintiffs, or that such non-disclosure could be held to " substantially assist the principal violation."
Defendant contends that counts three through ten should be dismissed because there was no attorney-client relationship between the plaintiffs and himself. Mem. in Response to P’s Opp. to MTD, Paragraph 1. The court agrees. Because it has been established that Attorney Katz had no attorney-client relationship with plaintiffs and owed them no fiduciary duty, he was under no obligation to disclose anything to plaintiffs. As a result, his failure to disclose the alleged wrongful acts of the Bongiorno business entities and family members cannot support a claim for aiding and abetting their alleged breaches of fiduciary duties, even if such a cause of action were to be recognized by the Supreme Court. Indeed, the complaint alleges fault on the part of Attorney Katz for failure to disclose the thoughts and actions of the parties opposing the plaintiffs, who were and are his clients. Of course, this is precisely what the Rules of Professional Conduct prohibit the defendant from doing, i.e., revealing the confidences of his clients.
Again, public policy supports the dismissal of these counts. To hold otherwise would essentially create precedent for holding lawyers liable for the torts of their clients without any wrongful conduct on the lawyers’ part. Clearly, this would be a destructive and counter-productive result.
Conclusion
For the reasons set forth above, the court grants defendant’s motion to dismiss the complaint in its entirety for lack of standing, thereby depriving the court of subject matter jurisdiction.