Opinion
No. CV 10 6009309 S
December 15, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#103)
The plaintiff, Citibank (South Dakota) N.A., commenced this action by service of process on the defendant, Gregory Litvyn, on February 1, 2010. In its complaint, dated January 20, 2010, the plaintiff alleges the following facts. Count one alleges that the plaintiff extended credit to the defendant under a credit installment agreement, and the defendant failed to make payments for the credit extended. Count two alleges that the plaintiff rendered monthly statements to the defendant of his indebtedness as a result of the credit extended. The total balance due is $11,465.99.
On July 9, 2010, the defendant filed an answer and counterclaim. The defendant alleges in his counterclaim that his attorney filed an appearance on his behalf on March 23, 2010, and that a notice reflecting the status of appearances for this matter was subsequently mailed from the Superior Court to the counsel for both parties. On May 10, 2010, however, the defendant, personally, received a motion for default for failure to plead directly from the plaintiff's counsel. The defendant alleges that the plaintiff's counsel violated the Rules of Professional Conduct by directly contacting him, and claims that such contact constituted intentional and, negligent infliction of emotional distress.
On July 14, 2010, the plaintiff filed a motion to strike the defendant's counterclaim on the ground that it fails to state a cause of action upon which relief can be granted. The motion is accompanied by a memorandum of law. The defendant filed a memorandum of law in opposition to the motion to strike on August 27, 2010. The plaintiff filed a reply in opposition to the motion to strike on September 8, 2010. The court took the papers on this matter on October 18, 2010.
DISCUSSION
"[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). "A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008).
The plaintiff argues that the defendant's counterclaim is legally insufficient to state a claim because a violation of the Rules of Professional Conduct does not give rise to a civil cause of action. The defendant counters that the facts alleged are sufficient to establish a claim for damages on the ground that a violation of the Rules of Professional Conduct is a basis for civil liability.
Although the defendant failed to cite a statute or code section to support his claim that the plaintiff violated the Rules of Professional Conduct, he is likely referring to Model Rule 4.2, which provides in relevant part: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter . . ." In Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236, 578 A.2d 1075 (1990), the Supreme Court stated: "The purpose of this restriction is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counsel."
In Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001), the Supreme Court explained: "The Rules of Professional Conduct caution those who seek to rely on their provisions. They `provide a framework for the ethical practice of law . . . 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. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.'" (Emphasis added.) Id. In Hultman v. Blumenthal, CT Page 1454 67 Conn.App. 613, 619-20 n. 8, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002), the Appellate Court emphasized that the preamble to the Rules provides that a rule violation neither gives rise to a cause of action nor creates any presumption of a breach of a legal duty. The court further observed that "a violation of the Rules of Professional Conduct is not a basis for an action against an attorney." Id.
In the present case, the defendant's counterclaim attempts to set forth a cause of action based on the Rules of Professional Conduct. Since a violation of the Rules does not constitute a basis for civil liability, however, the defendant's counterclaim fails to state a cause of action. Therefore, the plaintiff's motion to strike should be granted.
The defendant cites to Silver v. Law Offices of Howard Lee Schiff P.C., Civil No. 3309CV9 12 (PCD) (D.Conn. 2010), to support his claim that when opposing counsel communicates directly with an adverse party in violation of the Rules of Professional Conduct, there is a basis for civil liability. The defendant's reliance is misplaced. In Silver, the plaintiff brought an action in part based on a violation of § 1692(c) of the Fair Debt Collection Practices Act, which prohibits debt collectors from directly communicating with an opposing party when the debt collector has actual knowledge that such party is represented by counsel. This is distinct from the present case, however, as the defendant's counterclaim alleges that the plaintiff's counsel violated one of the Rules of Professional Conduct, not a section of the Fair Debt Collection Practices Act. Further, the court in Silver actually held in favor of the defendant on the plaintiff's claim of improper communication. Thus, Silver does not stand for the proposition that there is a basis for civil liability when opposing counsel communicates directly with a represented party in violation of one of the Rules of Professional Conduct.
In addition to its motion to strike, the plaintiff also filed a motion for sanctions against the defendant. The plaintiff argues that sanctions should be imposed because the defendant filed the counterclaim against the plaintiff "[knowing] that there are no civil remedies for violations of professional rules of conduct or that [clients] could not be held accountable for such violations."
"[T]rial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated." (Internal quotation marks omitted.) Millbrook Owners Ass'n., Inc. v. Hamilton Standard, 257 Conn. 1, 9-10, 776 A.2d 1115 (2001). "Moreover, the trial court must `make a specific finding as to whether counsel's [or a party's] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court's inherent powers' to impose attorneys fees for engaging in bad faith litigation practices." Fattibene v. Kealey, 18 Conn.App. 344, 360, 558 A.2d 677 (1989). "At the conclusion of such an inquiry, sanctions can properly be imposed whenever the trial court makes a specific finding, based on clear evidence, that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper reasons." Vallera v. Denny's Restaurant, Inc., Superior Court, judicial district of New Britain, Docket No. CV 91 0393633 (October 7, 1994, Sheldon, J.).
In the present case, the plaintiff argues that sanctions should be imposed because the defendant filed a counterclaim with the intent to delay litigation. The plaintiff, however, does not provide evidence that the defendant or his attorney exhibited bad faith by filing the counterclaim. The plaintiff also does not show that the counterclaim was filed for reasons of harassment, delay, or for other improper reasons. Therefore, sanctions are not appropriate in this case.
CONCLUSION
Accordingly, for the foregoing reasons, the plaintiff's motion to strike the defendant's counterclaim is granted and the plaintiff's motion for sanctions is denied.