Opinion
No. CV 02-0816030
October 12, 2006
MEMORANDUM OF DECISION
The plaintiff, an attorney, sues defendant for unpaid attorneys fees in three counts: breach of contract, quantum meruit, and unjust enrichment. Defendant answers with a general denial and interposes the special defense that the amounts sought by the plaintiff exceed the scope of the agreement between the parties. He also raises the following issues: whether an attorney can unilaterally raise the rates he charged after a written agreement; whether he can charge for his own defense in a case brought against the plaintiff and defendant; whether he can charge interest where the agreement does not provide for it; whether the attorney can charge for attorneys fees when he dealt unfairly with the defendant.
The facts are as follows:
On or about January 1996, the defendant engaged the plaintiff to represent him in a case brought against the defendant by Attorney Robert Elliott for unpaid attorneys fees. At that time, defendant signed a memorandum authorizing the plaintiff to represent him in that matter at the rate of $150.00 per hour and advanced to the plaintiff a retainer of $1,500.00. The authorization made no reference to interest or to plaintiff being entitled to attorneys fees for representing himself in an action brought against him.
Plaintiff undertook to represent the defendant in the Elliott matter for the period of January 28, 1996 until August 22, 1996 at rates ranging from $185 per hour to $160 per hour. The plaintiff billed the defendant a total of $5,223.30. The defendant protested the rates in excess of $150 and the plaintiff gave him credit for the excessive rates. All of the bills for the services rendered by plaintiff in the first Elliott matter were paid.
About the time the Elliott matter was pending and over the next four years plaintiff handled at least twelve other matters on behalf of the defendant. Plaintiff sent out bills itemizing his services for each case. At the trial the plaintiff could not recreate those original bills, except as hereinafter stated. Subsequent bills carried forward the amount owed on each matter, without itemization, and totaled the amounts owed on all of the outstanding cases.
Defendant did not pay those monthly bills, but came in occasionally and paid a lump sum amount toward the sum due. When he questioned the rates per hour, plaintiff said they were the result of his computer error and gave the defendant total credits of up to $5,000.00. That credit was not itemized nor was there any evidence as to what matters it pertained. All told the defendant incurred billing totaling over $54,000.00, of which he paid the plaintiff $40,000.00, leaving a balance due and owing, as reflected in plaintiff's last bill of September 27, 2001, of $14,673.61. This is the amount the plaintiff now seeks to recover.
With respect to the appeal of the Elliott matter, as to which plaintiff claims there is owed $2,787.50, defendant testified he never authorized the appeal. The court believes the plaintiff that he discussed the appeal with defendant and defendant said "Do what you need to do."
Plaintiff's bill of January 27, 2004, respecting the Stuart appeal reflects services rendered from December 15, 1997 to November 15, 1999 at rates varying from $160 per hour to $200 per hour and totaling $11,918.06 of which the defendant paid $9,130.00, leaving the difference of $2,788.06, the amount plaintiff claims is due on that matter in his bill of September 27, 2001.
In the case of Mary C. Bevans v. Mark Stuart, filed in Hartford Superior Court, the plaintiff was cited in as a defendant. The plaintiff charged the defendant for that matter (listed on his bill of January 27, 2004 as Smart Schwvs) for the period of March 20, 1999 until January 19, 2000, a total of $5,202.50 at rates of $175.00 per hour except one service at the rate of $185.00 and two at the rate of $200.00 per hour. Plaintiff testified that 25% of his time on that matter was spent representing himself.
After plaintiff's initial authorization to represent defendant in the Elliot fee dispute at $150.00 per hour, which was signed by the defendant, plaintiff sent defendant another authorization on December 19, 1997 in the lawsuit Stuart v. Elliott in which plaintiff set the fee at $160-185 per hour. Defendant didn't sign that authorization. In November 1998, plaintiff sent defendant still another authorization to represent defendant in the matter of National Products Data Bank v. State of Connecticut Health Department, at the rate of $185.00 per hour. The defendant did not sign this authorization either.
Rule 1.5(b) of the Rules of Professional Conduct states that when a lawyer has not regularly represented a client, the basis of rate of the fee, whether and to what extent the client will be responsible for any court costs and expenses, and the scope of the matter to be undertaken "shall be communicated to the client in writing before or within a reasonable time after commencing the representation." The commentary to that rule provides, "When the lawyer has regularly represented the client, they ordinarily would have evolved an understanding concerning the basis or rate of the fee . . . When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be promptly provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding."
In Gagne v. Vaccaro, 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). 1999 W.L. 367, 804 (Conn.Super. 1999). Particularly, changes in the attorney's compensation made during the existence of the attorney/client relationship is regarded by the court with suspicion and "construe them most strongly against the attorney." 7 Am.Jur.2d Attorneys at Law, Section 267, p. 283.
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, 1996 WL 745, 863 (Conn.Sup. 1996); Landino v. Black Tie Limousine, 1999 WL 532, 79 (Conn.Sup. 1959); Freccia Plotkin v. Castro, No. CV 96015137, judicial district of Stamford (Sept. 19, 1996, D'Andrea, J.) contra DeSarbo v. Cardow, 1996 Conn.Super. Lexis, 3227.
In Mahoney, Geghan Roosa v. Baker, supra, where a client had signed a fee agreement providing that the attorneys fees be charged at an hourly rate of $175.00, and the attorney subsequently raised the hourly rate to $225.00, the court held that the attorney had failed to produce clear and convincing evidence that he had made full disclosure of all the facts relevant to the increase and denied fees in excess of $175 an hour.
In the instant case, no evidence was presented of what hourly rate the plaintiffs charged for any of the matters included in his bill of September 27, 2001, totaling $14,673.00, except for the Stuart appeal and the Bevans case. Service for the Stuart appeal covered the period from December 15, 1997 to November 15, 1999 and the Bevans case covered the period from March 20, 1999 to January 19, 2000. The plaintiff sent an authorization to the defendant in December 1997 respecting the Elliott matter stating his hourly rates at $160-185 per hour and another authorization in November 1998 respecting another matter stating his hourly rate at $185. Although the defendant did not sign those authorizations. Before services rendered in the Stuart appeal and Bevans case they were notified of the plaintiff's rates. Since Rule 1.5(b) does not require the client's consent, they fairly apprised defendant of plaintiff's hourly rate of $185. Defendant did not object to that rate at the time.
For his services in the appeal, plaintiff's rates ranged from $160-185 except for six times when he charged $200.00 for services of 5.50 hours. The plaintiff is not entitled to that portion of $200.00 in excess of the $185.00 per hour. As a consequence, the plaintiff's bill for the Stuart appeal of $2,787.50 should be reduced by $15.00 x 5.50 hours, or $77.50.
As for the Bevans case, the plaintiff made two charges of $200.00 an hour for one hour. Since he had established his rate at $185.00 per hour, that bill should be reduced by $15.00. Because the plaintiff was a co-defendant in that action, defendant has raised the question whether plaintiff is entitled to a portion of the Bevans fee for representing himself. Although there is no court opinions on this issue, Informal Opinion 95-29 of the State Grievance Committee, held that an attorney could not charge for legal services to defend a grievance brought by the client against him unless it was part of the "legal service the client asked you to perform and which you agreed to perform pursuant to the written fee agreement." In Informal Opinion 03-05, the attorney sought to recover fees for defending a grievance charge brought by the opposing party in the client's case, and the opinion states "Whether you may bill the client turns on the scope and nature of your existing representation of your client as provided for in your written agreement."
In the instant case there is no evidence that there was any discussion or communication between the plaintiff and the defendant regarding plaintiff defending himself as co-defendant in an action brought against the client and the plaintiff. Plaintiff testified that twenty-five percent of his time was spent defending himself. As a consequence, the amounts owed on the Bevans matter totaling $6,168.00, should be reduced by twenty-five percent, or $1,542.00, leaving a balance owed of $4,626.00.
Plaintiff has not charged interest on his bill so that is not an issue in this case.
Taking all of the evidence into account, the plaintiff did not act unfairly or with unclean hands in dealing with the client, except with respect to the overcharges mentioned above. Based on the foregoing, on all three counts the plaintiff is entitled to $14,673.61, less $77.50 for the excess rate charged on the Elliott appeal, and less $15 and $1,042 for the excess rate and time spent defending himself in the Bevans case, making the sum due plaintiff $13,509.11. Judgment may enter in favor of plaintiff in that amount.