Opinion
No. CV 03-0475833 S
January 27, 2004
MEMORANDUM OF DECISION ON MOTIONS TO STRIKE BY THE DEFENDANTS GERSTEN CLIFFORD (#130) AND CARMODY TORRANCE, LLP (#133)
These identical motions are addressed to the same claim. The court's decision applies equally to both.
In dealing with a motion to strike a complaint the court must construe its allegations, express or necessarily implied, in the manner most favorable to sustaining its legal sufficiency. If evidence admissible under such allegations would support a cause of action the motion must be denied. Complaints must be construed broadly and realistically rather than narrowly and technically. Gazo v. Stamford, 255 Conn. 245, 260 (2001).
The core claim of the movant law firms is that the respective CUTPA count against each of them must be stricken because a CUTPA claim against an attorney cannot be based on conduct arising from representation of the client even if motivated by an opportunity for increased fees.
The plaintiff counters essentially with the argument that his claims are based on post-representation conduct for fee collection and therefore within the scope of CUTPA.
It is through these murky waters that this court must chart its course. Has the plaintiff alleged conduct sufficient to invade the entrepreneurial exception to the general rule that CUTPA does not apply to professional negligence? Haynes v. Yale New Haven Hospital, 243 Conn. 17 (1997).
The defendants rely principally on three cases. Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48 (1998); Suffield Development Associates LP v. National Loan Investors LP, 260 Conn. 766 (2002); and Noble v. Marshall, 23 Conn. App. 227 (1996). Upon review the court does not find these cases applicable or persuasive in the context at hand and for the foregoing reasons both motions are denied.
These cases do not provide an automatic rule of universal application. Each decision is driven by its own circumstances. Beverly Hills involved the failure of a law firm to file necessary papers for a commercial client to start business. Suffield involved an execution on a judgment on behalf of a client in excess of what was owed.
Central to both Beverly Hills and Suffield is the inquiry by the Supreme Court into whether or not the conduct complained of concerned issues that go to the heart of representation such as competence, strategy or duty. If these factors are not implicated the subject conduct is not automatically shielded from CUTPA. Unlike Beverly Hills the complaint here does not involve a failure to act in the course of providing legal services, Unlike Suffield it does not involve an attempt to collect a judgment on behalf of a client.
Upon the face of the complaint the context at hand is purely post-representation and involves the collection of fees between attorney and client. This is a matter of billing which involves the entrepreneurial aspect of the practice of law and is therefore within the reach of CUTPA. It is critical for this court that the dispute between the parties concerns a bill for services already rendered. This does not encroach upon professional conduct in providing those legal services. The crux here is whether a fee contract has been breached.
The defendants' argument under Suffield that a profit motive does not make otherwise professional conduct subject to CUTPA is misplaced. The concern expressed in Suffield was the blurring of financial and professional considerations in such issues as settlement, taking an appeal or the hiring of experts where oftentimes the interests of both attorney and client are aligned. Suffield, supra, p. 783. There is no risk of such blurring here. The rendering of services has been completed.
The court has not neglected Noble. The movants paint with too broad a brush. That case stands only for the narrow holding that the Rules of Professional Conduct were not intended to create a private cause of action under CUTPA. The movants' attempt to invoke this rule by characterizing the plaintiff's claim to be simply that the subject legal fees were unreasonable. Neither the court or the plaintiff is bound by this forced interpretation. When read in the light most favorable to the plaintiff, the complaint sounds in breach of contract independent of any professional rules. What the contract terms were is a matter of evidence beyond the scope of Noble and of this motion.
Whether or not any proven conduct post-representation in the billing or collection process violated CUTPA is a mixed question of law and fact for the trier.
LICARI, JUDGE.