Opinion
No. FST CV 07 5005353 S
May 19, 2008
MEMORANDUM OF DECISION
This action is brought by the plaintiff law firm to collect legal fees, expert witness fees and expenses owed by the defendant in connection with unsuccessful litigation brought by the defendant to recover an Andy Wahol painting entitled "Red Elvis." The facts of that litigation were summarized by the Supreme Court in Lindholm v. Brant, 283 Conn. 65 (2007). Presently at issue is the plaintiff's motion to strike the defendant's special defense and counterclaim. (#114.)
The defendant's special defense claims that legal fees charged by the plaintiff were not reasonable because they were the result of "overall excessive handling of every item in the case, the charges are excessive, and the plaintiff exploited the fee arrangement by using wasteful procedures." The special defense further alleged that the plaintiff violated Rule 1.5 of the Rules of Professional Conduct.
In relevant part that rule provides.
Rule 1.5. Fees (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent. (b) The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation . . .
The allegations of defendant's counterclaim mirror those of her special defense and contain an allegation that the plaintiff's actions "constitute unfair and/or deceptive trade practices, in violation of Connecticut General Statutes § 42-110 et seq., and as a result, the defendant has suffered an ascertainable loss of money and/or property."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "A motion to strike challenges the legal sufficiency of a [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [pleading], construed in favor of the [pleading party], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294.
MOTION TO STRIKE SPECIAL DEFENSE
In support of its motion to strike the special defense, the plaintiff argued that violations of Rules of Professional Conduct cannot give rise to a cause of action and may be considered only for the purposes of professional discipline. In its brief filed in support of the motion to strike the plaintiff quotes from the "Scope" of the Rules of Professional Conduct.
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.
The plaintiff also relies on Noble v. Marshall, 23 Conn.App. 227, 231 (1990), in which the court held that violations of Rule of Professional Conduct do not give rise to a cause of action or create a presumption that a legal duty has been breached. The plaintiff also points out that in Ankerman v. Mancuso, 79 Conn.App. 480, 486 (2003), the court extended the holding of Noble, supra, to special defenses.
In her brief filed in opposition to the motion to strike the defendant first points out that the special defense is not grounded solely on her claim that the plaintiff's conduct violated Rule 1.5, but also alleges that the fees that the plaintiff is attempting to collect were unreasonable and were generated by "excessive handling." The defendant also claims that the language from the "Scope" of the Rules relied on by the plaintiff also formed the basis for the Appellate Court's decisions in Noble, supra, and Ankerman, supra. The defendant claims that amendments to the Rule enacted on June 20, 2006, effective January 1, 2007, changed the language upon which the plaintiff and the Appellate Court relied.
"Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability." (Emphasis supplied.)
In Noble, supra, the plaintiff attorney sought to recover fees for services rendered to a client. The defendant client filed a counterclaim asserting a CUTPA violation founded solely on the claim that the attorney's excessive billing in violation Rule 1.5 of the Rules of Professional Conduct, constituted a CUTPA violation. The Appellate Court upheld the decision of a Superior Court striking the counterclaim stating: "[W]e conclude that the Rules of Professional Conduct do not of themselves give rise to a cause of action, even to an attorney's client. The rules that have been adopted by the judges of the Superior Court have the force of law; but they were not intended to create a private cause of action under CUTPA." (Internal citations omitted.) 23 Conn.App. at 231.
In Ankerman, supra, an attorney sued a former client to collect a note secured by a mortgage on property owned by the defendant. The legal services had been rendered by the attorney in connection with litigation involving ownership of the mortgaged property. The trial court held that the note and mortgage were unenforceable because the attorney had violated public policy as embodied in Rule 1.8 of the Rules of Professional Conduct by acquiring a proprietary interest in his client's litigation. The Appellate Court reserves the trial court holding that the holding in Noble, supra, applied to special defenses as well as to counterclaims.
The court does not agree with the defendant's claim that the slight change in wording of the "Scope" provisions of the Rules of Professional Conduct, destroys the rationale for the Appellate Court's decisions in Noble, supra, and Ankerman, supra. However, the court agrees with the defendant's claim that her special defense is not founded entirely on the assertion that the plaintiff's conduct violates Rule 1.5. The special defense alleges that because of the plaintiff's "overall excessive handling of every item in the case, the charges are excessive, and the plaintiff exploited the fee arrangement by using wasteful procedures." Taken as a whole, the allegations of the defendant's special defense are based on the plaintiff's conduct, not on the claim that such conduct constitutes a violation of the Rules of Professional Responsibility. Such conduct may furnish the defendant a basis to defeat the plaintiff's claim in whole or in part. Accordingly, the court denies the motion to strike the defendant's special defense.
MOTION TO STRIKE COUNTERCLAIM
The allegations of defendant's counterclaim are identical to those of the defendant's special defense. The defendant claims that the plaintiff's conduct constitutes an unfair trade practice in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110 et seq., ("CUTPA"). The plaintiff moves to strike the counterclaim relying upon the holding of Noble, supra, and the assertion that the counterclaim does not relate to the entrepreneurial aspects of the practice of law. In Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34 (1997), the Supreme Court held that only the commercial or entrepreneurial aspects of professional practice could form the basis of a CUTPA claim, and that professional negligence or malpractice could not. See also Beverly Hills Concepts, Inc., v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 79 (1998), and Suffield Development Assoc., L.P. v. National Loan Investors, L.P., 260 Conn. 766, 781 (2002).
The defendant's counterclaim fails to allege any wrongdoing on the plaintiff's part other than over-billing. There are no claims that the plaintiff's bill, for example, included time incurred in working for other clients, included time for work actually performed by associates or paralegals but billed at partner rates, or marked up or inflated billing for disbursements. Without such allegations claims of over-billing necessarily involve only the professional judgment of the plaintiff as to how to staff the defendant's case, what pleadings to file, which experts to retain, and how to develop and implement an effective strategy to pursue the defendant's claims. While such matters may be the basis of a claim of professional malpractice, they bear no relationship to the entrepreneurial aspects of professional practice and accordingly, cannot furnish a basis for a CUTPA claim. The court grants the plaintiff's motion to strike the defendant's counterclaim.