Opinion
No. CV 04-040 97 31 S
February 24, 2005
MEMORANDUM OF DECISION
Before the court is the defendant's motion #112 to strike the third count (violation of the Connecticut Unfair Trade Practices Act) of the plaintiff's amended complaint on the ground that the defendant's conduct is insufficient to support an alleged CUTPA violation.
In March 1999, the plaintiff, Mel Stevenson, hired the defendants, Ian McMillan and the law firm of McMillan Rabinow, to represent him in a discrimination claim against his former employers. The plaintiff had filed suit against his former employers for terminating his employment and for failing to hire him for another position for which he had applied.
On February 17, 2004, the plaintiff filed a two-count complaint against the defendants, alleging legal malpractice and breach of contract, essentially asserting that they mishandled the discrimination claim. On March 25, 2004, the plaintiff filed an amended complaint, which added the count of violation of the Connecticut Unfair Trade Practices Act (CUTPA), Genera] Statutes § 42-110a et seq. In this count, the plaintiff alleges that the defendants represented to him that they were experienced and competent in employment law, age discrimination law and disability discrimination law, he further alleges that the defendants misrepresented the extent of their expertise in the said fields of law and did so to induce him into entering a contract with them. He relied upon these representations when entering into the contract with the defendants. If the defendants had not made such representations to the plaintiff, he would have retained other counsel. The plaintiff claims that these actions by the defendant constitute a violation of CUTPA.
In the first count, the plaintiff alleges that the defendants were negligent in representing him. He provides some examples of their negligence, including the defendants' failure to file a reply to the former employers' responses, their failure to file an appeal to the CHRO's decision to dismiss the claim and their failure to ensure that the court received and reviewed the plaintiff's objection to the motion to dismiss prior to issuing its decision. In the second count, the plaintiff alleges that the defendants breached their contract of representation with him.
On October 14, 2004, the defendants filed a motion to strike count three of the amended complaint. On October 26, 2004, the defendants filed their supporting memorandum, and the plaintiff filed his memorandum in opposition of the defendants' motion. This court heard oral arguments on November 15, 2004.
"[A] motion to strike challenges the legal sufficiency of a pleading [to state a claim upon which relief can be granted] and, consequently, requires no factual findings by the trial court. It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 242 A.2d 1124 (2004). The court "must construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Helm v. California Federal Bank, 78 Conn.App. 351, 359, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
The defendants move to strike count three of the amended complaint on the ground that an action for professional malpractice is insufficient, under established Connecticut law, to support a CUTPA cause of action. In support of their motion, the defendants provide Connecticut case law over the last two decades that demonstrate the Supreme Court's treatment of legal professional malpractice under CUTPA. The plaintiff maintains that a CUTPA action is viable because the allegations in count three involve the entrepreneurial aspects of the practice of law.
CUTPA "provides a remedy for a person who has sustained an ascertainable loss as a result of conduct that is immoral, unethical, oppressive or unscrupulous." Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 343, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002). "The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy . . . CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. General Statutes § 42-110a(4). The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominiun Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).
Applying CUTPA to the practice of law, the Connecticut Supreme Court has held that "CUTPA's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law . . . CUTPA applies to the conduct of attorneys." Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983). "CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — [is] excluded for public policy reasons." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997). While the Supreme Court did bring the field of law within the realm of CUTPA, it also explicitly held that "professional negligence — that is, malpractice — does not fall under CUTPA." (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998).
"Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law." Suffield Development Associates Ltd. Partnership v. National Loan Investors LP, 260 Conn. 766, 781, 802 A.2d 44 (2002). The entrepreneurial aspect of practicing law involves "the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . [defendant]." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36. To determine if the allegations in the third count do involve the entrepreneurial aspect of practicing law, the court "must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a [legal] malpractice claim recast as a CUTPA claim." Id., 38.
"The entrepreneurial aspects of legal practice as those related to: how the price of legal services is determined, billed and collected and the way a firm obtains, retains and dismisses clients." (Internal quotation marks omitted.) Kegeles v. Bergman, Horowitz Reynolds, P.C., Superior Court, judicial district of New Haven, Docket No. 391439 (November 24, 1999, Levin, J.) ( 26 Conn. L. Rptr. 22).
The third count alleges that the defendants represented to the plaintiff that they were experienced and competent in the fields of employment law, age discrimination law and disability discrimination law. The plaintiff relied on these misrepresentations and entered a contract to hire the defendants to represent him. These misrepresentations about the defendants' expertise caused the plaintiff substantial monetary injury and affected his right to select an attorney.
Where a defendant attorney misrepresents to a client about areas such as the size of his firm and his areas of expertise and these misrepresentations affected the client's decision to hire the defendant, "[t]hese allegations do not reference the defendant's legal representation of the plaintiff, and therefore, are not necessarily excluded from CUTPA as claims of legal malpractice." Nosik v. Bowman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0379089 (July 12, 2002, Doherty, J.).
Cf. Farino v. Chiarelli, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0262708 (March 16, 1999, Beach, J.); Roemmele v. Law Offices of John Haymond, Superior Court, judicial district of New London, Docket No. 547182 (May 4, 1999, Hurley, J.T.R.) ( 24 Conn. L. Rptr. 441).
Reading the allegations of the third count in the manner most favorable to sustaining its legal sufficiency, the allegations involve the manner in which the defendants solicited the plaintiff's business. As such, the allegations could support a CUTPA cause of action because they involve the entrepreneurial aspect of the practice of law. Therefore, the defendant's motion to strike is denied.
SKOLNICK, J.