Opinion
No. CV99 035 9479
October 16, 2003
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
This is an action reportedly instituted by plaintiffs Joe Burgos Vega and his mother Iris Vega against the defendant attorney Joseph Mirsky seeking damages in the amount of $1,000.00. The amount sought is allegedly derived from the unused portion of an attorney fee, which Ms. Vega deposited with the defendant to retain his legal services for the benefit of her son, plaintiff, Joe Burgos Vega. The breach of contract complaint was filed in small claims court until the defendant's motion to transfer the case to the regular docket was granted on January 5, 1999. In response to this complaint, the defendant filed a general denial of the allegation. A trial before the court took place on June 6, 2003 and June 18, 2003.
The complaint, which was filed and processed in small claims court, reported Iris Vega as a co-plaintiff. The complaint remained unsigned by Iris Vega. Ms. Vega filed an appearance following the second day of trial. However, for purposes of trial and this opinion, Joe Burgos Vega is the plaintiff.
In January 1996, the plaintiff, Joe Burgos Vega, was arrested on various criminal charges. Shortly thereafter, Mr. Vega contacted his mother, Iris Vega, in New Jersey and explained that he desired counsel outside of the court-appointed public defender. Following the conversation, Ms. Vega came up to Connecticut and sought legal representation for her son.
On June 20, 1996, Ms. Vega met with Attorney Mirsky where she expressed her desire to retain him to represent her son in the criminal proceedings pending. Attorney Mirsky informed Ms. Vega that his fee for defending her son in the criminal matter would be $4,000.00. At the time, Ms. Vega had only $2,000.00. She had borrowed all of this amount, except for $500.00 which belonged to Mr. Vega. However, Ms. Vega assured Attorney Mirsky that she would obtain the remaining $2,000.00 for his representation and they proceeded to execute a retainer agreement. (Trial Exhibit 1).
The terms of the contract are as follows: "It is agreed by and between Iris Vega and Attorney Mirsky that Joseph Mirsky will represent her son, Joe Burgos Vega in a criminal matter pending in the criminal Court in Bridgeport, Connecticut for the total sum of $4000.00. Attorney Mirsky Acknowledges the receipt of $2000.00 on this date of June 20, 1996. The balance of $2000.00 will be paid on or before July 11, 1996. Attorney Joseph Mirsky will proceed to be the attorney when the complete fee is paid in full."
Under the terms of the retainer agreement, Attorney Mirsky would not begin his work until the full $4,000 was paid. However, Ms. Vega was unsure of the criminal charges and was anxious about the status of the criminal proceedings. In response to her concerns, Mr. Mirsky proceeded to contact the Public Defender's office to obtain a copy of the file. Mr. Mirsky testified that he reviewed the file and was prepared to proceed with the representation. There were subsequent telephone consultations between Attorney Mirsky and Ms. Vega concerning the case. Attorney Mirsky did not enter an appearance in the file or contact Mr. Vega.
Sometime after July 11, 1996, Ms. Vega returned to Attorney Mirsky's office and explained that she was unable to obtain the remainder of the fee. During this meeting, Attorney Mirsky and Ms. Vega discussed that he would retain $1000.00 of the retainer because he had obtained the file and reviewed it in preparation for representing the plaintiff in the criminal action. Ms. Vega accepted the refunded check of $1000.00. (Trial Exhibit 5.)
II DISCUSSION A THIRD-PARTY BENEFICIARY AS PLAINTIFF
Defendant raised at trial the issue of whether the plaintiff, Joe Burgos Vega, may maintain a breach of contract action against the defendant because he was not a party to the agreement. Because this issue addresses the ability of Joe Burgos Vega to bring this action, the court will first address this procedural claim of the defendant.
Connecticut law recognizes the right of a third-party beneficiary to pursue a breach of contract claim. "[T]he ultimate test to be applied is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party and that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties." Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 201, 75 A.2d 507 (1950).
In examining the retainer agreement and the circumstances of its execution, there can be no question that Attorney Mirsky's representation was for the direct benefit of Joe Burgos Vega. Although "it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third-party beneficiary . . . the only way a contract could create a direct obligation between a promisor and a third-party beneficiary would have to be . . . because the parties to the contract so intended." Gazo v. City of Stamford et al., 255 Conn. 245, 765 A.2d 505 quoting Knapp v. New Haven Road Construction Co., 150 Conn. 321, 326, 189 A.2d 386 (1963). In this instance, both parties not only contemplated that the services would benefit Joe Burgos Vega, but also it was the clear intention of both parties, as seen in the express language of the agreement itself, that Joe Burgos Vega was the client for those services. The agreement stated that Ms. Vega "retain[ed] his services on behalf of her son." (Trial Exhibit 2.)
It is also well recognized that in a contract for legal services, the client, as holder of the fiduciary duty of the attorney, has the right to enforce the contract. Because Attorney Mirsky's ultimate responsibility would have been a duty of loyalty to Mr. Vega, Mr. Vega can proceed as the plaintiff in this breach of contract action under the third-party beneficiary theory.
In the commentary of Rule 1.7 of the Rule of Professional Conduct, "[a] lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client." (Emphasis added.)
B BREACH OF CONTRACT
The plaintiff claims that the defendant's efforts to obtain a copy of Mr. Vega's file and the subsequent review of the file was a breach of the express terms of the retainer agreement in the contract. "The key elements of a breach of contract action are: (1) the formation of an agreement; (2) performance by one party; (3) breach of the agreement by the other party; and (4) damages." Paglia v. McCue Mortg. Co., Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 11 44 24 (August 11, 1994, Sylvester, J.), quoting Posner v. Minnesota Mining Mfg. Co., 713 F. Sup. 562, 563 (E.D.N.Y. 1989), citing Stratton Group, Ltd. Sprayregen, 458 F. Sup. 1216 (S.D.N.Y. 1978).
The short answer to the plaintiff's claim is that Ms. Vega and Attorney Mirsky orally agreed to modify the terms of the retainer agreement. More specifically, although the retainer agreement stated that Attorney Mirsky would not do any work until the full $4,000 payment was received, at Ms. Vega's express request Mirsky began preliminary work to address her concerns about the status of her son's case and in anticipation of him receiving the full retainer. The law is well established that the parties to an agreement may orally modify the terms of a written contract. Blakeslee v. Water Commissioners, 121 Conn. 163, 182 ("It was competent for the parties to modify the terms of their written agreement by a parol agreement"); accord, Gyro Brass Mfg. Corp. v. United Automobile Workers, 147 Conn. 76, 80, 271 A.2d 327 (1959).
Retainer agreements may be extensive and may delineate at length the scope and conditions of the representation. On the other hand, they may provide a brief outline of the scope of the representation. "A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). In this instance, Ms. Vega's testimony indicates that she informed Mirsky that time was of the essence regarding her son's case. Although the retainer agreement provided that the defendant would "proceed to be the attorney when the complete fee is paid in full," the court also credits the testimony of the defendant when he states that he was urged to proceed forthwith. In summary, based on the uncontroverted testimony, the court finds that Attorney Mirsky performed services requested by Ms. Vega. He performed preliminary work by acquiring and reviewing the file. He talked to Ms. Vega about the case and he was prepared to proceed with the representation, including trial if necessary.
The parties' agreement was not consummated as they contemplated because Ms. Vega was unable to acquire the balance of the fee, and their agreement did not expressly provide for such an eventuality. Nevertheless, under such circumstances, the law is established that the attorney is entitled to reasonable compensation for the services performed at Ms. Vega's specific request. See generally, McKnight v. Gizze, 119 Conn. 251, 175 A.2d 676 (1934).
Thus the court utilizes its discretion in determining a fair, just and reasonable fee for the services performed by the defendant. It was the testimony of the defendant that, while he was uncertain of the exact amount of time that he spent on the matter, he could roughly estimate that he spent approximately 5-7 hours on this case. The defendant also approximated the value of his services because it was, and still is, his practice to charge a flat rate fee. "Our courts have repeatedly held that the reasonableness of an award of attorneys fees may be determined by the exercise of the trier's own expert judgment." Dunn v. Leenson, P.C., 79 Conn. App. 366 (2003). This court finds that the value of Attorney Mirsky's services, given his experience and familiarity in criminal cases at that time, was at least $200.00 per hour. Crediting the defendant's testimony that he spent at least five hours on the file, $1,000 is not an unfair or unreasonable fee. Because the court finds that the reasonable value of the services provided was at least $1,000, the court concludes that the plaintiff's complaint to recover this amount must fail.
III CONCLUSION
Therefore, for the foregoing reasons, judgment enters in favor of the defendant Joseph Mirsky and against the plaintiff Joe Burgos Vega.
So ordered this 16th day of October 2003.
STEVENS, J.