Opinion
No. X05 CV 06 5004726 S
December 21, 2007
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (109.00, 111.00)
In this legal malpractice action the defendants move to strike the second count of the plaintiff's five-count First Amended and Revised Complaint (FARC) which purports to set forth a cause of action based on an alleged breach of fiduciary duty.
I. Background Facts
The complaint in its entirety sets forth a detailed litany of allegations of purported legal malpractice, breaches of various forms of contract and breach of fiduciary duty. The allegations arise out of the representation of the plaintiff Nacholi by Attorney Paul and others in the law firm of Paul Bayer in Nacholi's divorce proceeding. The second count, for breach of fiduciary duty, incorporates the numerous allegations in the first count alleging legal malpractice but specifically alleges that after a settlement was entered into in the divorce case, the defendants temporarily withheld Nacholi's file and important information while seeking a release from liability. It is further alleged that the failure to turn over the file in a timely manner and defendants' withholding of information was for the purpose of benefitting their own self-interest and was a breach of their fiduciary duty toward Nacholi which resulted in "measurable damages" to her.
II. Standard of Review
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "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." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 227 Conn. 238, 246, (2006). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229 (2006).
III. Discussion
The plaintiff contends that her complaint alleges four breaches of fiduciary duty and points to allegations in Paragraphs 32, 32.1 and 32.2 and Paragraphs 35 through 35.6 which deal with allegations concerning $24,000 allegedly held in trust by the defendants for the benefit of Nacholi. These paragraphs are incorporated by reference into the second count, but the specific allegations as to the existence and breach of a fiduciary duty in the second count do not include any reference to the trust account or defendants' actions concerning it. The court concludes that when a count alleging breach of fiduciary duty in a complaint clearly specifies the actions or events which are the factual predicate for the claim, it is improper for the pleader, in response to a motion to strike the count, to claim that other actions or events not specified as breaches of fiduciary duty are also the basis for the claim. Therefore, the court will restrict its analysis to the allegations clearly specified in the second count as breaches of fiduciary duty. As noted above, these are the temporary withholding of the file and the withholding of information.
As an initial matter in their motions to strike the defendants contend that their alleged failure to turn over immediately the plaintiff's file to her and the subsequent withholding of information occurred after the attorney-client relationship had ended. They point to the First Amended and Revised Complaint's allegation that on November 2, 2003 Nacholi informed the defendants that she "had found new counsel" and she was requesting the file. FARC, ¶ 32. They also point to the allegations that the withholding of information took place in March 2004. FARC ¶¶ 33.5-33.7. The defendants contend that since both instances occurred after Nacholi had hired new counsel, and terminated the attorney-client relationship they did not constitute breaches of fiduciary duty because the fiduciary relationship had ended. The only basis alleged by the plaintiff for the existence of a fiduciary relationship was the attorney-client relationship. See FARC, ¶ 41. The plaintiff contends that the attorney-client relationship was in transition, at least in November 2003, but cites no cases or facts to support this contention.
The relationship between an attorney and a client is "highly fiduciary in its nature." Andrews v. Gorby, 237 Connn. 12, 20 (1996) [quoting Matza v. Matza, 226 Conn. 166, 184 (1993)]; see also Beverly Hills Concepts v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 56 (1998). A fiduciary relationship gives rise to a duty of loyalty and honesty whereas an attorney-client relationship per se gives rise to a duty of care Id., 57. The duty of loyalty also encompasses the duty of confidentiality.
While the parties have not cited any Connecticut cases directly on point, a leading commentator states the obvious with substantial case support: "the predicate of the attorney's fiduciary obligations is the existence of an attorney-client relationship. The status must exist at the time of the alleged transaction or wrong and must be alleged." Mallen Smith Legal Malpractice ( 2007 ed.) § 14.3 (footnotes omitted.) While as conceded by the defendants some fiduciary responsibilities, such as the duty of confidentiality, may extend beyond the termination of the attorney-client relationship, breach of the confidentiality duty is not alleged in this case. In addition, as noted by Mallen Smith courts have sometimes been reluctant to draw a fine line as to when an attorney-client relationship terminates. See Id., § 14.3 at n. 20. Here, however, the plaintiff has specifically pleaded that she hired a new lawyer at least by November 2, 2003. In DeLeo v. Nusbaum, the Connecticut Supreme Court held that legal representation of a party can be terminated formally or in a de facto manner. The former occurs when an attorney is discharged by a client, and a de facto termination occurs when a "client takes a step that unequivocably indicates that he has ceased relying on his attorney's professional judgment." 263 Conn. 588, 597 (2003). The allegation in the First Amended Revised Complaint certainly meets the de facto standard and probably the formal discharge standard as well.
The court is going to grant the motion to strike the second count on the grounds that the breaches of fiduciary duty specifically identified in the second count occurred after the attorney-client relationship between Nacholi and defendants had ended. It is possible that an amended complaint could well allege certain breaches of fiduciary duty occurring during the existence of the attorney-client relationship, such as those involving the $24,000 fund, and the court would possibly have to deal with another motion to strike raising arguments which are not dealt with in this memorandum. The court also notes that plaintiff attempted to amend her complaint to deal with certain of the issues raised by the pending motions to strike and that amendment was not allowed initially presumably because of the pendency of those motions. The court will deal with any amendments and motions to strike as they arise.
CT Page 22034
III. Conclusion
The motions to strike the Second Count are granted.