VOGG, LAW OFFICES OF
v.
HEINECKE

This case is not covered by Casetext's citator
Connecticut Superior Court Judicial District of Danbury at DanburyJan 28, 2009
2009 Ct. Sup. 2452 (Conn. Super. Ct. 2009)

No. DBD CV 08 5003818S

January 28, 2009


MEMORANDUM OF DECISION


SHABAN, J.

I PROCEDURAL BACKGROUND

On January 2, 2008, the plaintiff filed a complaint alleging that pursuant to an agreement between the parties, it provided legal services to the defendant and that despite demand upon her there remains an outstanding balance for legal fees in the amount of $14,749.84. The defendant filed a pro se appearance and despite several attempts to file an answer, none were sufficient to comply with the rules of practice. Thereafter, a default for failure to plead was entered and the matter was claimed to the hearing in damages list. The action was tried to the court wherein the parties were heard and presented evidence and testimony relative to the claim.

II FACTS

The court finds the following facts. Approximately twelve years ago, in early 1997, the defendant asked the plaintiff to assist in the collection of a debt due the defendant from Yvonne Liebel based on a simple contract. At the hearing, the plaintiff presented testimony relative to the services rendered consisting of the issuance and review of numerous letters as well as the filing and pursuit of a collection action. Also presented was a billing statement showing the services rendered up through August 8, 2002. See Plaintiff's Exhibit 1. That statement, dated September 1, 2007, claimed an amount due of $8,627.50 plus interest from August 1, 2002 through February 2006 in the amount of $3,623.76 for a total of $12,251.26. An hourly billing rate of $175 was reflected on the statement. The statement had no reference for additional charges or interest being due for any unpaid amounts.

The balance of $14,749.84 claimed in the body of the complaint exceeds the amount of the statement presented at the hearing showing $12,251.26 due. This appears to be based on the continued accumulation of interest through the date of the complaint though no documentation was presented to that effect.

Paragraph three of the plaintiff's complaint alleged that the debt due was "[p]ursuant to an agreement between the Plaintiff and the Defendant . . ." The plaintiff presented no testimony either on direct or cross-examination as to whether the agreement was oral or written, but did indicate it was hired for a collection action and that its fee was $175 per hour. After inquiry by the court, the plaintiff testified that the agreement was in writing for an hourly fee but that a written retainer agreement could not be found.

During the course of its representation of the defendant, the plaintiff informed Andrew Monahan, as a representative of the defendant, that its representation would "not cost her a dime" as the plaintiff would recover any fees due from Liebel. Thereafter, upon receiving a statement from the plaintiff showing a balance due in excess of $1,000, the defendant, through Mr. Monahan, orally directed the plaintiff to "pull the plug" (i.e. cease its work). The plaintiff claims that it did not recall such a directive. Mr. Monahan testified that the plaintiff indicated that it had to "beef up" the bill because "the court always knocks down the legal fees." There was no evidence of a written directive provided to the plaintiff from the defendant to cease its work.

At the outset of the hearing the defendant indicated that Andrew Monahan was able to act for her under a power of attorney though none has entered into evidence. The statement was unchallenged by the plaintiff.

III DISCUSSION

The court finds the testimony of the defendant to be credible relative to the series of events relative to the plaintiff's billing statement. The court does not find credible the testimony of the plaintiff that there existed a written retainer agreement but that it could not be found. In this regard the court notes that Rule 1.5(b) of the Rules of Professional Conduct reads as follows: "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, except when the lawyer will charge a regularly represented client on the same basis or rate . . . The use of the verb `shall' carries with it the thrust of the imperative." Kantrovitz Brownstein v. Ruololo, Superior Court, judicial district of New Haven, Docket No. CV 95 0371252 (December 20, 1996, Burns, J.T.R.).

The commentary to Rule 1.5(b) states in relevant part that "[w]hen the lawyer has regularly represented a client, the lawyer and the client ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arguments that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. Absent extraordinary circumstances the lawyer should send the written fee statement to the client before any substantial services are rendered, but in any event not later than ten days after commencing the representation."

"In Gagne v. Vaccuro, 255 Conn. 390, 403 (2001), the court noted a violation of a Rule [of professional conduct] should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached . . . However, the relationship between attorney and client is confidential in nature and results in creating a fiduciary duty upon the attorney. Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 56 (1998). As a fiduciary, the attorney bears a two-fold obligation to the client. First the attorney must prove fair dealing, and, second, the attorney must prove that fair dealing with the client by clear and convincing evidence. Id. Dunham v. Dunham, 204 Conn. 303, 322-3 (1987). The courts particularly scrutinize transactions made between attorney and client during the existence of the relationship with great care and if there are doubts, they will be resolved in favor of the client. DiFrancesco v. Goldman, 127 Conn. 387, 392 (1940). Mahaney, Geghan Roosa v. Baker, CR 970138281, judicial district of Waterbury (May 27, 1999, Vertefeuille, J.) (24 Conn. L. Rptr. 597)." (Internal quotation marks omitted.) Weinstein v. Stuart, Superior Court, judicial district of Hartford, Docket No. CV 02 0816030 (October 12, 2006, Satter, J.T.R.) (42 Conn. L. Rptr. 119). "Most Superior Court cases hold that Rule 1.5(b) is mandatory and violation of it precludes an attorney from recovering fees. Kantrovitz Brownstein, P.C. v. Ruotolo, [Superior Court, judicial district of New Haven, Docket No. CV 95 0371252 (December 20, 1996, Burns, J.T.R.)]; Landino v. Black Tie Limousine, Inc., [Superior Court, judicial district of New Haven, Docket No. CV 98 0408538 (January 26, 1999, Burns, J.T.R.)]; Freccia Plotkin v. Castro, [Superior Court, judicial district of Stamford, Docket No. CV 96015137, (Sept. 19, 1996, D'Andrea, J.)] [17 Conn. L. Rptr. 555]; contra DeSarbo v. Cardow, [Superior Court, judicial district of New Haven, Docket No. CV 94 0360368 (December 5, 1996, Hodgson, J.)] [18 Conn. L. Rptr. 301]." Id., n. 1.

The plaintiff has failed to establish the claims of its complaint. As noted above, the complaint alleges that the amount due is $14,749.84. Neither the testimony of the plaintiff nor the documentary evidence supports this amount. Even the exhibit offered by the plaintiff showed a significantly lesser principal balance due and included charges of interest on top of that balance. Moreover, the exhibit was offered without any evidence of any written agreement between the parties establishing the fee structure or for the assessment of such charges and interest thereon. There was no credible evidence that there were extraordinary circumstances that prevented a written fee agreement from being sent to the defendant prior to the rendering of substantial services, or that one was submitted within ten days after commencing its representation of her. Just as Judge D'Andrea held in Freccia and Plotkin v. Castro, Superior Court, judicial district of Stamford, Docket No. CV 96 0151637, (September 9, 1996, D'Andrea, J.) (17 Conn. L. Rptr. 555), this court too finds that it would violate public policy for the plaintiff to recover fees based upon an agreement which violates the Rules of Professional Conduct.

Consider also Gagne v. Vaccaro, 255 Conn. 390, 405, 766 A.2d 416 (2001) where our Supreme Court noted in dicta that an attorney could not recover attorneys fees against a client where there was no written contingency fee agreement pursuant to General Statutes § 52-251c and Rules of Professional Conduct 1.5(e). Although that case involved a contingency fee agreement, which is dealt with in a different subsection of Rule 1.5, the policy behind it remains the same where an hourly fee is sought.

IV CONCLUSION

The plaintiff has failed to meet its burden of proof in establishing its claim for damages. Accordingly, judgment shall enter for the defendant.