Opinion
No. CV07-4031616S
January 31, 2008
MEMORANDUM OF DECISION
The plaintiff, Attorney Martha Dean, has, pursuant to Practice Book § 2-38, appealed the decision of the defendant Statewide Grievance Committee, which on June 22, 2007 affirmed the decision of the reviewing committee. That reviewing committee, after conducting a hearing, issued a decision on April 20, 2007, reprimanding the plaintiff for violating Rule 1.5(a) of the Rules of Professional Conduct.
I. Procedural History
The subject grievance was filed by Remi and Susan Ferreira, who retained plaintiff to represent them concerning the contamination of their property in Plymouth, Connecticut, by gasoline which had leaked from an underground storage tank located on neighboring property owned by Dairy Mart. The Ferreiras and Attorney Dean signed a written fee agreement dated November 15, 1999, wherein plaintiff agreed to pursue recovery for the clients' property damage and personal injury sustained due to the contamination. The parties agreed that plaintiff would be paid on an hourly basis for services rendered. The agreement provided that plaintiff would seek payment of costs the Ferreiras incurred, including legal fees, from a state environmental remediation fund known as the Underground Storage Tank Petroleum Clean-Up Account ("Trust Fund").
The agreement further stated that it was likely that the Trust Fund would reimburse the Ferreiras' legal fees, but also provided that " [p]ayment of our legal fees is not contingent upon trust fund reimbursement" (italics in original).
Plaintiff's representation of the Ferreiras initially involved three broad tasks:
1.) To protect the Ferreira's health and safety, by having the environmental state of their property monitored, by monitoring Dairy Mart's remediation of the contamination;
2.) Negotiating with Dairy Mart for compensation for the Ferreira's physical injuries and property damage; and
3.) Seeking reimbursement by the Trust Fund for costs incurred by the Ferreiras, including their legal fees.
In October 2001, Dairy Mart filed for bankruptcy and was thereafter no longer subject to pursuit by the Ferreiras and their lawyer. Plaintiff then changed the scope of her representation, limiting it to pursuit of reimbursement from the Trust Fund. She did this in a letter dated November 5, 2001, which stated, in pertinent part, that
In the interest of ensuring that [the environmental consultant hired by plaintiff] and we get paid to the extent possible by the Review Board for our work, we will continue to represent you only in seeking reimbursement for costs previously submitted to the Review Board. We will also submit supplemental applications for costs incurred to undertake this effort. But beyond this, you will need to hire another attorney if you wish to obtain compensation for your injuries or additional relief from the Trust Fund.
As of that time, the Ferreiras had outstanding bills from the plaintiff of approximately $92,000.
From November 2001 until May 2005, plaintiff pursued reimbursement from the Trust Fund on behalf of the Ferreiras, and billed her clients an additional $33,000 for these services. During this period, the Trust Fund significantly changed its claim handling procedure twice. In 2001, it changed its procedures to make the claim handling process much more difficult and cumbersome. When the State of Connecticut had budget deficits in 2002 and 2003, the Trust Fund paid no claims.
In June 2005, the General Assembly passed an amendment to the Trust Fund statute to limit legal fee reimbursement to $10,000, and the Department of Environmental Protection took the position that this cap applied retroactively to pending claims such as the Ferreiras.' Plaintiff continued to pursue Fund reimbursement of all of the Ferreiras' outstanding expenses, including her bills for legal fees. She cooperated in efforts to eliminate the retroactive application of the legal fee cap. Ultimately, the Trust Fund agreed to pay $72,047.39 of the Ferreiras' expenses, subject to legislative approval of the payments. On May 10, 2006, plaintiff filed suit against Mr. and Mrs. Ferreira. This grievance followed.
After a hearing, the reviewing committee issued a decision reprimanding Attorney Dean for violating Rule 1.5(a). The committee found that it was unreasonable for plaintiff to have billed her clients $33,000 for her efforts to get the Trust Fund to pay her bill for legal services. The decision states specifically that plaintiff's conduct was unethical because of "the speculative nature of recovering any significant payment of legal fees from the Trust Fund." (R-389-390.) The committee found that Attorney Dean committed a second violation of Rule 1.5(a) when she "billed the Complainants for matters other than reimbursement of her fees from the Trust Fund." The committee dismissed a claim that plaintiff also violated Rule 1.4 by failing to advise the Ferreiras that they would have to pay her legal fees if the Trust Fund did not.
Plaintiff filed a request for review of the decision by the Statewide Grievance Committee, as provided in Practice Book § 2-35(e). On June 22, 2007, after a hearing, the SGC affirmed the reviewing committee's decision. The SGC did dismiss the reviewing committee's finding that plaintiff billed the Ferreiras for work unrelated to reimbursement from the Trust Fund.
II. Standard of Review
In Brunswick v. Statewide Grievance Committee, 103 Conn.App. 601, 613, cert. denied, 284 Conn. 929 (2007), our Appellate Court held that appeals of attorney disciplinary proceedings will be evaluated under the "clearly erroneous" standard. This standard of review provides that "a court's determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made." Id. at 612. The Brunswick court adopted this standard over the "substantial evidence" standard of review because of the SGC's "unique status as an arm of the court," thus requiring a standard of review which, "while deferential," does not "unduly restrict a reviewing court's inherent power `to inquire into the conduct of their own officers, and to discipline them for misconduct.'" Id. at 610.
III. Discussion
The court has thoroughly reviewed the record and finds that the defendant's decision affirming the reviewing committee's decision was clearly erroneous. The reviewing committee found that plaintiff acted unethically, and violated Rule 1.5(a), because she billed her clients $33,000 to collect what she had previously billed them despite "the speculative nature of recovering any significant payment of legal fees from the Trust Fund." (R-389-390.)
Rule 1.5(a) lists eight "factors to be considered in determining the reasonableness of a fee." None of them concerns the "speculative nature" of the attorney's efforts. The defendant contends that the factors enumerated in Rule 1.5(a) are exclusive, and that it was improper for the reviewing committee to consider a factor not set forth therein. The only known decision addressing this issue is Woolf v. Statewide Grievance Committee, No. CV98-0492717 (New Britain J.D., March 23, 1999) 1999 WL 185144. Judge Hartmere therein vacated a reprimand based on a Rule 1.5(a) violation. The reviewing committee reprimanded the plaintiff based on a finding that the fee charged was unconscionable, and the court found that "[u]nconscionability is simply not one of the factors enumerated for determining the reasonableness of a fee."
This court agrees with Judge Hartmere's holding that the factors enumerated in Rule 1.5(a) are exclusive. If the drafters of Rule 1.5(a) had wanted reviewing committees to be able to consider factors other than the eight they specifically set forth, they could easily, and obviously, have stated that "the factors to be considered in determining the reasonableness of a fee include, but are not limited to, the following." The court should not, and will not, read into this rule language which is not there.
Moreover, there is no support in the record for the finding that Attorney Dean's efforts to recover the fee were "speculative." From the outset of her relationship with the Ferreiras until sometime in 2001, there was no reason for anyone involved in the process to believe that there was anything unusual about the Ferreira's claim for Trust Fund reimbursement or that plaintiff would not obtain reimbursement if she could show that those fees were reasonable. In 2001, the Fund started making the collection process more difficult, and state budgetary issues led to no claim payments in 2002 and 2003. None of these developments made Attorney Dean's reimbursement efforts "speculative"; it simply made them more difficult and time consuming. In June 2005, the General Assembly amended the Trust Fund statute to cap legal fee reimbursement to any claimant to $10,000. The Department of Environmental Protection took the position that this cap was to be applied retroactively to claimants such as the Ferreiras. The court finds that there was nothing "speculative" about plaintiff's continued efforts to recover considerably more than $10,000 from the Trust Fund. There was compelling legal support for the contention that retroactive application of this fee cap would not survive judicial scrutiny.
In short, there is nothing in the record to support the conclusion that Attorney Dean was, in pursuing reimbursement from the Trust Fund, engaged in such speculative activity that she was "throwing good money after bad." In resolving this issue, the reviewing committee and the defendant should have considered Rule 3.1, which states, in pertinent part, that "[a] lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." The plaintiff's actions on behalf of her clients were clearly not frivolous within the meaning of that rule. The appeal is sustained, and the reprimand is hereby vacated. It is so ordered.
At oral argument, the court, sua sponte, raised the issue of whether the matter should be remanded to the SGC for further articulation of the basis for its decision. Upon further review of the record, and in view of our Supreme Court's holding in Shelton v. Statewide Grievance Committee, 277 Conn. 99, 112 (2006), the matter should not be remanded.