Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ANDREA MEYERS v. LIVINGSTON, ADLER, PULDA,
MEIKLEJOHN AND KELLY, P.C.
(SC 18996)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued October 22, 2013—officially released April 1, 2014
Thomas P. Willcutts, for the appellant (plaintiff).
Proloy K. Das, with whom were Bernard F. Gaffney
and, on the brief, Richard F. Banbury, for the appel-
lee (defendant).
Opinion
ZARELLA, J. The principal issue in this appeal is
whether allegations that a law firm breached its duty
of undivided loyalty to a client and failed to follow
the client’s instructions regarding the prosecution of a
lawsuit sound in breach of contract, to which a six year
statute of limitations applies, or in legal malpractice,
to which a three year statute of limitations applies.
The plaintiff, Andrea Meyers, commenced this action
against the defendant, Livingston, Adler, Pulda, Meik-
lejohn & Kelly, P.C., alleging breach of contract on
the ground that the defendant, a law firm, pursued the
interests of another client in derogation of the plaintiff’s
interests and did not follow the plaintiff’s wishes and
instructions when it represented her in a prior lawsuit
against other parties. Notwithstanding the plaintiff’s
breach of contract allegations, the trial court character-
ized the allegations as sounding in legal malpractice and
granted the defendant’s motion for summary judgment,
reasoning that the action was barred by the three year
statute of limitations applicable to legal malpractice
claims. The plaintiff appealed to the Appellate Court,
which affirmed the trial court’s judgment. Meyers v.
Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134
Conn. App. 785, 793, 41 A.3d 674 (2012). On appeal to
this court, the plaintiff claims that the Appellate Court
improperly affirmed the trial court’s judgment because
her claim sounded in breach of contract, and, therefore,
it was not barred by the three year statute of limitations
applicable to legal malpractice claims. The defendant
responds that the trial court correctly characterized the
plaintiff’s claim as sounding in legal malpractice and
that the Appellate Court properly affirmed the trial
court’s judgment. We agree with the defendant and,
accordingly, affirm the judgment of the Appellate Court.
The following relevant facts are set forth in the Appel-
late Court’s opinion. ‘‘The defendant represented the
plaintiff in an action against Shek Hong, Joanne Hong,
Hontek Corporation and T.C. Specialty Products, Inc.
While representing the plaintiff in that action, the defen-
dant agreed to represent another client, Diane Thibo-
deau, who had similar claims against the same parties.
The defendant joined the claims of the plaintiff and
Thibodeau into a single legal action. On December 14,
1999, a settlement of the litigation was reported on the
record. The terms of the settlement were reviewed in
open court, and the plaintiff was canvassed by the
court.1 In February, 2000, the [Hongs and Hontek Corpo-
ration] filed a motion to enforce the settlement agree-
ment because the plaintiff had declined to sign a release.
By motion dated February 22, 2000, the defendant
sought to withdraw its appearance on behalf of the
plaintiff.2 On February 25, 2000, the plaintiff executed
the settlement agreement and release. The defendant
received the settlement check and, after deducting a
portion for attorney’s fees and/or expenses owed, ulti-
mately remitted the balance to the plaintiff.
‘‘The plaintiff served [the defendant with] a one count
complaint on February 21, 2006. The plaintiff claimed
that the defendant was not entitled to [attorney’s fees]
because its representation was unprofessional. She
alleged that the defendant ‘breached its contract duties’
to her by bringing about a settlement of the prior action
in furtherance of Thibodeau’s interests and against the
interests of the plaintiff. The defendant filed an answer
and special defenses, in which it asserted, inter alia,
that the action was barred by the statute of limitations.
‘‘The defendant filed a motion for summary judgment
on the ground that the plaintiff’s claim sounded in tort
and was barred by the applicable three year statute of
limitations; General Statutes § 52-577; or, in the alterna-
tive, that it was barred by the six year statute of limita-
tions for contract claims. General Statutes § 52-576. The
court initially denied the defendant’s motion, finding
that the action, which was served on February 21, 2006,
was initiated within the statute of limitations for con-
tract claims, which began to run on February 25, 2000,
when the plaintiff executed the settlement agreement
in the underlying action.
‘‘In January, 2010, the court granted the defendant’s
motion to reargue the denial of its motion for summary
judgment. At reargument, the defendant argued that the
plaintiff’s complaint sounded in tort, not contract. The
court vacated its prior ruling in which it had denied the
defendant’s motion for summary judgment and granted
the motion for summary judgment, reasoning that the
complaint sounded in tort and that the three year limita-
tions period applicable to tort actions had run. The
court additionally found that if it were a contract action,
it still [had] not [been] commenced within the six year
statute of limitations because the statute began to run
on December 14, 1999, the date on which the alleged
injury was inflicted, more than six years before the
action was brought in February, 2006.
‘‘In June, 2010, the plaintiff filed a motion to reargue
the court’s granting of the defendant’s motion for sum-
mary judgment. After reconsideration of the parties’
arguments, the court denied the relief requested and
affirmed its decision granting the defendant’s motion
for summary judgment. The court determined that the
complaint claimed both legal malpractice and breach
of contract and that because the plaintiff was fully
aware of her claims by December 14, 1999, but did not
bring the action until 2006, her claim was barred by both
the three year legal malpractice and six year contract
statutes of limitations.’’ (Footnotes altered.) Meyers v.
Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,
supra, 134 Conn. App. 786–88.
The plaintiff appealed to the Appellate Court, which
affirmed the trial court’s judgment. Id., 793. Judge
Beach, writing for the majority, concluded that the trial
court properly had determined that the plaintiff’s claim
did not sound in breach of contract because it was
not based on an allegation that the defendant had not
obtained a specific result or performed a specific task.
Id., 791. Rather, the gravamen of the complaint was
that the defendant had breached its professional duties,
which fit squarely within the definition of a legal mal-
practice claim and thus was governed by the three year
statute of limitations applicable to such claims. Id.,
792–93.
Judge Lavine concurred separately, concluding that
the complaint sounded in legal malpractice and breach
of contract, and that both of the applicable statutes of
limitations had expired. See id., 794 (Lavine, J., concur-
ring). In his view, the contract claim had accrued more
than six years prior to the plaintiff’s commencement
of the action in 2006 because the plaintiff was aware,
prior to December 14, 1999, that Thibodeau had been
joined with her as a plaintiff despite the plaintiff’s objec-
tion, that the plaintiff would be required to settle for
less money even though her case was stronger than
Thibodeau’s, and that the defendant’s awareness of this
conflict of interest had caused it to terminate its repre-
sentation of the plaintiff.3 See id., 793–94 (Lavine, J.,
concurring).
Judge Bishop, like Judge Lavine, concluded that the
complaint sounded in both legal malpractice and breach
of contract and that the statute of limitations had run
on the legal malpractice claim. See id., 796, 797 n.2
(Bishop, J., dissenting). He concluded, however, that
a determination could not be made as to whether the
statute of limitations had run on the contract claim
because a question of fact remained as to when the
claim had accrued. See id., 799–800 (Bishop, J., dis-
senting). Judge Bishop thus concluded that the judg-
ment should be reversed and the case remanded for
further proceedings so that the trial court could make
the factual findings necessary to resolve that issue. Id.,
799–801 (Bishop, J., dissenting).
We subsequently granted the plaintiff’s petition for
certification to appeal from the Appellate Court’s judg-
ment.4 Meyers v. Livingston, Adler, Pulda, Mei-
klejohn & Kelly, P.C., 305 Conn. 920, 920–21, 47 A.3d
881 (2012). On appeal to this court, the plaintiff claims
that the allegations in the complaint, the evidence
adduced in support of the summary judgment motion,
and the applicable case law establish that her claim
sounds in breach of contract rather than in legal mal-
practice and that she commenced the action before the
applicable statute of limitations had run. We disagree
with the plaintiff that her claim sounds in contract, and,
therefore, we do not reach the issue of whether the
claim was brought within the six year statute of limita-
tions applicable to contract claims.
As a preliminary matter, we set forth the standard
of review. ‘‘Summary judgment shall be rendered forth-
with if the pleadings, affidavits and other proof submit-
ted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record. . . .
‘‘In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact.’’ (Internal quotation marks omit-
ted.) Ugrin v. Cheshire, 307 Conn. 364, 389, 54 A.3d
532 (2012). In addition, interpretation of the pleadings,
which is required in the present case, is always a ques-
tion of law over which our review is plenary. See, e.g.,
Grenier v. Commissioner of Transportation, 306 Conn.
523, 536, 51 A.3d 367 (2012).
With respect to the governing legal principles, it is
well established that claims may be brought against
attorneys sounding in contract or in tort, and that
‘‘[s]ome complaints state a cause of action in both con-
tract and tort.’’ Stowe v. Smith, 184 Conn. 194, 199, 441
A.2d 81 (1981); see also Krawczyk v. Stingle, 208 Conn.
239, 245, 543 A.2d 733 (1988). ‘‘[O]ne cannot bring an
action [under both theories, however] merely by couch-
ing a claim that one has breached a standard of care
in the language of contract. . . . [T]ort claims cloaked
in contractual language are, as a matter of law, not
breach of contract claims.’’ (Citations omitted; internal
quotation marks omitted.) Weiner v. Clinton, 106 Conn.
App. 379, 383, 942 A.2d 469 (2008). To ensure that plain-
tiffs do not attempt to convert negligence claims into
breach of contract claims ‘‘by talismanically invoking
contract language in [the] complaint’’; Gazo v. Stam-
ford, 255 Conn. 245, 262, 765 A.2d 505 (2001); reviewing
courts may ‘‘pierce the pleading veil’’ by looking beyond
the language used in the complaint to determine the
true basis of the claim. Id., 262–63.
‘‘Whether [a] plaintiff’s cause of action is one for
malpractice [or contract] depends upon the definition
of [those terms] and the allegations of the complaint.’’
Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221
(1984). ‘‘Malpractice is commonly defined as the failure
of one rendering professional services to exercise that
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of those
services . . . .’’ (Footnote omitted; internal quotation
marks omitted.) Id. The elements of a breach of contract
claim are the formation of an agreement, performance
by one party, breach of the agreement by the other
party, and damages. Maloney v. Connecticut Orthope-
dics, P.C., 47 F. Supp. 2d 244, 249 (D. Conn. 1999); see
also American Express Centurion Bank v. Head, 115
Conn. App. 10, 15–16, 971 A.2d 90 (2009). In other words,
‘‘[a]n action in contract is for the breach of a duty
arising out of a contract . . . [whereas] an action in
tort is for a breach of duty imposed by law.’’ Gazo v.
Stamford, supra, 255 Conn. 263; see also W. Keeton et
al., Prosser and Keeton on the Law of Torts (5th Ed.
1984) § 92, pp. 655–56.
In determining whether a claim sounds in breach of
contract or in tort, we are mindful of the well estab-
lished principle that an independent claim of tortious
conduct may arise in the context of a contractual rela-
tionship. See, e.g., Gazo v. Stamford, supra, 255 Conn.
263 (‘‘[i]t is true, of course, that out of a contractual
relationship a tort liability, as in negligence, may arise’’
[internal quotation marks omitted]); Neiditz v. Morton
S. Fine & Associates, Inc., 199 Conn. 683, 688, 508 A.2d
438 (1986) (‘‘a defendant may be liable in negligence
for the breach of duty which arises out of a contractual
relationship’’); Johnson v. Flammia, 169 Conn. 491, 496,
363 A.2d 1048 (1975) (‘‘[e]ven though there may not be a
breach of contract, liability may arise because of injury
resulting from negligence occurring in the course of
performance of the contract’’); Dean v. Hershowitz, 119
Conn. 398, 409, 177 A. 262 (1935) (‘‘[w]here there is a
precedent relationship, all that is necessary to furnish
a basis for an action of negligence is that there be
present the elements necessary to establish such a
cause of action, and if that is so, that that relationship
is one of contract is no sound reason why the action
should not lie’’). Accordingly, the fact that the contract
in the present case required the defendant to provide
the plaintiff with legal representation and that the plain-
tiff was dissatisfied with the defendant’s performance
does not necessarily mean that her claim of improper
representation sounds in breach of contract.
Although the issue of whether a claim of attorney
misconduct sounds in breach of contract or in tort
appears to be one of first impression for this court, we
previously have concluded that a claim alleging that
the defendant attorney violated the specific instructions
of his client sounded in breach of contract. See Stowe
v. Smith, supra, 184 Conn. 195, 198–99 (allegations that
defendant failed to prepare will in accordance with
decedent’s instructions regarding disposition of prop-
erty to beneficiaries sounded in breach of contract).
Other Connecticut courts similarly have determined
that an attorney’s failure to comply with the specific
provisions of a contract sounded in breach of contract.
See Connecticut Education Assn., Inc. v. Milliman
USA, Inc., 105 Conn. App. 446, 459–60, 938 A.2d 1249
(2008) (allegations that defendant agreed to maintain
plaintiffs’ pension plan in compliance with Internal Rev-
enue Code and Employment Retirement Income Secu-
rity Act but failed to provide competent and pro-
fessional services necessary to maintain pension plan
in good standing as qualified, defined benefit pension
plan sounded in breach of contract because allegations
referred to defendant’s failure to satisfy contractual
obligation to ensure compliance with federal law); Hill
v. Williams, 74 Conn. App. 654, 659–60, 813 A.2d 130
(allegations that defendant agreed to represent plaintiff
in civil action against former husband, in appeal relating
to divorce, in proceedings to obtain support and sole
custody of children, and in legal malpractice action
against her former divorce attorney, but that he failed
to proceed in several of those actions and refused to
take critical steps in others, sounded in breach of con-
tract, in part because defendant’s refusal to perform
actions for which he was retained suggested intentional
rather than negligent conduct), cert. denied, 263 Conn.
918, 822 A.2d 242 (2003); Mac’s Car City, Inc. v.
DeNigris, 18 Conn. App. 525, 527, 529, 559 A.2d 712
(allegations that defendant agreed to represent plaintiff
in lawsuit and entered appearance, but failed to defend
lawsuit and failed to take action to open default judg-
ment following failure to plead or to have judgment set
aside, sounded in breach of contract), cert. denied, 212
Conn. 807, 563 A.2d 1356 (1989). The decisions in these
cases are consistent with the general principle that ‘‘[a]n
action in contract is for the breach of a duty arising
out of a contract’’; Gazo v. Stamford, supra, 255 Conn.
263; because the attorney in each case failed to perform
the tasks that were required under the contract. See 1
R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000)
§ 8.6, p. 818 (‘‘[t]he prevailing rule is that there is no
cause of action for breach of an express contract unless
the wrong sued for is breach of a specific promise’’).
Correspondingly, Connecticut courts have concluded
that claims alleging that the defendant attorney had
performed the required tasks but in a deficient manner
sounded in tort rather than in contract. See, e.g., Weiner
v. Clinton, supra, 106 Conn. App. 384–86 and n.5 (allega-
tions that defendant agreed to use reasonable care, skill
and diligence in providing legal services to plaintiffs
but failed to seek stay of action based on agreement
to arbitrate, failed to seek additional extensions of time
to comply with discovery deadlines, failed to object
to certain discovery requests, failed to comply with
discovery requests in timely manner, and failed to prop-
erly advise defendants of status of proceedings,
resulting in default judgment against plaintiff and mone-
tary damages, sounded in legal malpractice because
complaint contained no allegations that defendant had
failed or refused to perform specific actions required
by contract); Pelletier v. Galske, 105 Conn. App. 77, 79,
83, 936 A.2d 689 (2007) (allegations that parties entered
into contract pursuant to which defendant accepted fee
from plaintiff for assistance in purchasing condomin-
ium unit but that defendant failed to advise plaintiff
that condominium unit was affordable housing unit sub-
ject to resale price limitations for twenty years, failed
to obtain signed statement from plaintiff that defendant
had explained affordable housing covenants applicable
to condominium unit, and failed to explain affordable
housing covenants sounded in legal malpractice
because complaint alleged negligence and breach of
requisite standard of care in performance of legal ser-
vices), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008);
Alexandru v. Strong, 81 Conn. App. 68, 70, 78–80, 837
A.2d 875 (allegations that defendant entered into
retainer agreement providing that he would represent
plaintiff in federal action against former employer but
that he filed negligent infliction of emotional distress
claim in untimely manner, which resulted in federal
court’s granting of motion for summary judgment for
employer on that claim, sounded in legal malpractice
because essence of claim was defendant’s failure to use
due diligence and breach of professional standard of
care), cert. denied, 268 Conn. 906, 845 A.2d 406 (2004);
Caffery v. Stillman, 79 Conn. App. 192, 194, 198, 829
A.2d 881 (2003) (allegations that defendant ‘‘agreed to
pursue vigorously all legal rights and remedies available
to the plaintiff for damages sustained as a result of his
. . . work-related injuries and to diligently represent,
protect and defend the plaintiff’s rights to a full and
fair economic recovery, and to provide the plaintiff with
competent and accurate advice concerning his legal
rights and remedies in connection therewith,’’ but that
defendant incorrectly informed plaintiff in conjunction
with settlement of workers’ compensation claim that
he could bring separate action against city for negli-
gence and promised to help plaintiff do so, constituted
claim of legal malpractice because plaintiff had alleged
damages arising from defendant’s failure to meet mini-
mum standard of care when defendant gave plaintiff
incorrect legal advice, not breach of promise to take
specific action against city [internal quotation marks
omitted]); Shuster v. Buckley, 5 Conn. App. 473, 474,
478, 500 A.2d 240 (1985) (allegations that defendant
was retained to represent plaintiff in pending criminal
matters but failed to file motion to withdraw plaintiff’s
guilty plea prior to imposition of sentence sounded
in legal malpractice, in part because allegations that
defendant failed to use due diligence in performing legal
services were couched in terms of negligent conduct).
The decisions in these cases are consistent with the
well established principle that ‘‘an action in tort is for
a breach of duty imposed by law.’’ Gazo v. Stamford,
supra, 255 Conn. 263.
Having reviewed the foregoing cases, we conclude
that the plaintiff’s allegations in the present case do
not sound in breach of contract. The complaint alleges
that the defendant breached its contractual duties to
the plaintiff when ‘‘(a) it pursued the interests of . . .
Thibodeau in derogation of the interests, wishes and
instructions of the plaintiff in bringing about a settle-
ment of the lawsuit; and/or, (b) it failed and/or refused
to follow the express wishes and instructions of the
plaintiff to reject the settlement offer in the lawsuit and
to continue to prosecute the lawsuit.’’5 Neither allega-
tion, however, refers to the violation of a specific con-
tractual provision. The only substantive provision in
the contract unrelated to compensation states: ‘‘I, [the
plaintiff], do hereby retain the [defendant] law firm . . .
to represent me in connection with my claims against
Hontek Corporation, Shek Hong and Joanne Hong in
litigation in Connecticut Superior Court.’’6 The contract
does not prohibit the defendant from representing any
other person with similar claims against the same par-
ties, does not refer to any details of the litigation over
which the plaintiff wished to establish control, and con-
tains no specific instructions as to how the plaintiff
wanted the defendant to proceed in its representation
of her.
To the extent the plaintiff suggests that her complaint
alleges breach of contract simply because the defendant
did not represent her interests and wishes, this claim
has no legal support. Although we recognize that ‘‘[t]he
modern trend, which is followed in Connecticut, is to
construe pleadings broadly and realistically, rather than
narrowly and technically’’; (internal quotation marks
omitted) Hill v. Williams, supra, 74 Conn. App. 656;
no Connecticut court has deemed an allegation of this
general nature sufficient to constitute a breach of con-
tract claim unless accompanied by specific allegations
that the defendant attorney failed to take action nor-
mally expected of an attorney in furtherance of the
agreed on purpose for which the attorney was hired,
such as failing to prosecute, defend, or take an essential
step in litigating a cause of action.
Finally, with respect to the plaintiff’s claim that the
defendant failed to follow her instructions to reject the
settlement offer and to continue prosecuting the action
after the parties had agreed in open court to accept
the offer, we recognize that when a client instructs an
attorney to perform certain tasks or to perform in a
specified manner, ‘‘[t]he undertaking then becomes
contractual in nature . . . .’’ 1 R. Mallen & J. Smith,
supra, § 8.9, p. 822. ‘‘The basic rule is that an attorney
specifically instructed by the client should follow those
instructions with reasonable care and promptness or
be liable for damages proximately caused by the fail-
ure.’’ Id. ‘‘Because the theory is in contract, [however]
the attorney’s assent is required.’’ Id. In addition, the
client’s instructions ‘‘must be ethically proper and not
offend public policy. Thus, a lawyer must still comply
with court orders and process even if that compliance
is not consistent with a client’s instructions.’’ Id., p. 823.
In the present case, the plaintiff agreed to the settle-
ment in open court following a canvass of the parties.
Only after Hontek Corporation and the Hongs signed
the agreement several weeks later did the plaintiff have
a change of heart, refuse to sign the agreement, and
ask the defendant to resist the provision that required
her to withdraw her workers’ compensation claim. At
that point, the Hongs and Hontek Corporation filed
a motion to enforce the agreement, and the plaintiff
eventually signed the agreement upon the defendant’s
advice. Under these facts, the defendant had no contrac-
tual obligation to follow the plaintiff’s instructions to
resist the agreement because they were not included
in the parties’ contract, the defendant did not consent
to the instructions in its discussions with the plaintiff,
and, in any event, following them would have required
the defendant to engage in a process intended to undo
a legally enforceable agreement that had been reached
by the parties and approved by the court.
We disagree with the plaintiff that the absence of
language in the complaint referring to the defendant’s
conduct as ‘‘negligent’’ or to the fact that the defendant’s
performance ‘‘was below a standard of competence’’
distinguishes this case from other cases in which Con-
necticut courts have concluded that the plaintiff’s
claims sounded in tort. (Emphasis omitted; internal quo-
tation marks omitted.) In addition to the fact that the
complaint contains no allegations that the defendant
breached any specific contract provisions, it relies in
part on language typically used in negligence cases.
This language includes that the defendant ‘‘owed to the
plaintiff a duty of undivided loyalty and a duty to pursue
and follow the plaintiff’s interests, wishes and instruc-
tions in the prosecution of the lawsuit,’’ and that, ‘‘[a]s
a consequence of [the defendant’s] breach of its legal
services contract, the plaintiff suffered a loss of dam-
ages’’ in addition to the fees ‘‘that were paid to or with-
held by [the defendant] as compensation for its legal
services.’’ This language and the remedy of damages is
identical to the language and remedy of damages sought
in connection with causes of action for negligence. See,
e.g., Lutynski v. B. B. & J. Trucking, Inc., 31 Conn.
App. 806, 813, 628 A.2d 1 (1993) (cause of action in
negligence arising from tortious conduct ‘‘subjects the
tortfeasor to responsibility for the payment of money
damages for the injuries sustained by the plaintiff
because of the tortious conduct’’), aff’d, 229 Conn. 525,
642 A.2d 7 (1994). Thus, the plaintiff’s claim that the
parties’ dispute is only a ‘‘simple fee dispute’’ is belied
not only by the lack of allegations concerning the breach
of any contract provisions, but by the language used
and the relief requested in the complaint.
Other allegations also support the conclusion that
the complaint sounds in legal malpractice rather than
in breach of contract. As previously noted, ‘‘[m]alprac-
tice is commonly defined as the failure of one rendering
professional services to exercise that degree of skill
and learning commonly applied under all the circum-
stances in the community by the average prudent repu-
table member of the profession with the result of injury,
loss, or damage to the recipient of those services
. . . .’’ (Footnote omitted; internal quotation marks
omitted.) Barnes v. Schlein, supra, 192 Conn. 735. The
services of Connecticut attorneys are governed by the
Rules of Professional Conduct. Among those rules are
two that speak directly to the principal allegations in
the plaintiff’s complaint, namely, rule 1.7 on conflicts
of interest and rule 1.2 on the allocation of authority
between a client and attorney.
Rule 1.7 (a) of the Rules of Professional Conduct
provides in relevant part: ‘‘[A] lawyer shall not represent
a client if the representation involves a concurrent con-
flict of interest. A concurrent conflict of interest
exists if:
‘‘(1) the representation of one client will be directly
adverse to another client; or
‘‘(2) there is a significant risk that the representation
of one or more clients will be materially limited by
the lawyer’s responsibilities to another client, a former
client or a third person or by a personal interest of
the lawyer.’’
Rule 1.2 (a) of the Rules of Professional Conduct
provides in relevant part: ‘‘[A] lawyer shall abide by a
client’s decisions concerning the objectives of represen-
tation and, as required by Rule 1.4, shall consult with
the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of
the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client’s deci-
sion whether to settle a matter. . . .’’
Although the Rules of Professional Conduct specify
that the ‘‘[v]iolation of a Rule should not itself give rise
to a cause of action against a lawyer nor should it create
any presumption that a legal duty has been breached,’’
they also acknowledge that, ‘‘since the Rules do estab-
lish standards of conduct by lawyers, a lawyer’s viola-
tion of a Rule may be evidence of breach of the appli-
cable standard of conduct.’’7 Rules of Professional Con-
duct, scope. Accordingly, even though the plaintiff does
not rely expressly on the Rules of Professional Conduct
as a basis for her claim, her allegations that the defen-
dant breached its duty of undivided loyalty and its duty
to follow her wishes and instructions in its prosecution
and settlement of the prior lawsuit are consistent with
a claim of legal malpractice that relies on violations of
rules 1.7 (a) and 1.2 (a) of the Rules of Professional
Conduct as evidence of a breach of the applicable stan-
dard of conduct. See Caffery v. Stillman, supra, 79
Conn. App. 197–98 (concluding that complaint alleged
violation of minimum standard of care rather than
breach of contract).
We thus conclude that the plaintiff’s allegations
sound in tort rather than in breach of contract, and, as
a consequence, the plaintiff’s claim is barred by the
three year statute of limitations applicable to tort
claims.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The court engaged in the following colloquy with the parties and their
attorneys:
‘‘The Court: Please be seated everyone. I understand that the parties have
reached a settlement.
‘‘[Attorney Mary Kelly, Counsel for the Plaintiff and Thibodeau]: Yes,
Your Honor.
‘‘The Court: All right. Is there something you want to put on the record?
‘‘[Attorney] Kelly: Yes. We just want to put on the essential terms of the
agreement, just that there is a $110,000 settlement. Of the $110,000, we are
going to allocate—$1000 goes to outstanding medicals for [the plaintiff].
The $109,000 remaining is divided one third for attorney’s fees, one third
for [the plaintiff], one third for . . . Thibodeau. Both [the plaintiff] and
. . . Thibodeau are responsible for one half of the outstanding expenses
of $5000. The money that is being paid to . . . Thibodeau and [the plaintiff],
$10,000, will be treated as workers’ compensation damages, which are not
taxable. The remaining will be treated as nonwage income.
‘‘The Court: As what?
‘‘[Attorney] Kelly: As nonwage income . . . for pain and suffering. And,
in addition, the parties have agreed that [the Hongs] will write a letter of
apology to [the plaintiff and Thibodeau], the essential—the exact wording
of which will be agreed upon by Attorney [Deborah] Etlinger [opposing
counsel] and myself. And this is a global settlement of all of the [plaintiff’s
and Thibodeau’s] claims, including their outstanding workers’ compensa-
tion claims.
‘‘The Court: And Attorney Etlinger, that’s your understanding?
‘‘[Attorney] Etlinger: It is, Your Honor.
‘‘The Court: All right. And I just want to ask . . . if [the plaintiff and
Thibodeau] have any questions about Attorney Kelly’s recitation of the
settlement. Is that your understanding, Miss Meyers [the plaintiff]?
‘‘[The Plaintiff]: Yes.
‘‘The Court: And is that acceptable to you?
‘‘[The Plaintiff]: Yes.
‘‘The Court: And Miss Thibodeau?
‘‘[Thibodeau]: Yes.
‘‘The Court: And as to . . . [Shek] and [Joanne] Hong?
‘‘[Shek] Hong: Yes.
‘‘[Joanne] Hong: Yes.
‘‘The Court: All right. Well, I just want to thank you and actually congratu-
late you all, because, I think, this is a fair resolution of a very difficult case,
and I’m happy to see that you’ve been able to resolve it, and in what appears
to be a very reasonable and fair resolution of these issues in this case. I
hope that you now all can just put it behind you and go on with the rest
of your lives. . . . So I just want to thank you. And we can adjourn.’’
2
The defendant filed a motion to terminate its representation of the plain-
tiff for good cause after she refused to sign the settlement agreement follow-
ing its acceptance by all of the parties in open court and after she instructed
the defendant to resist that part of the agreement requiring her to withdraw
her workers’ compensation claims. The defendant specifically explained:
‘‘[A] conflict has arisen over the settlement agreement. Having concluded
that a conflict of interest now exists between [the plaintiff and Thibodeau],
and that such conflict would prohibit continued representation of both [the
plaintiff and Thibodeau], [the defendant] respectfully requests that the court
grant this request to withdraw its appearance as to [the plaintiff] only.’’
(Emphasis added.)
3
Judge Beach observed in a footnote that Judge Lavine was ‘‘correct in
noting that even if it were a contract claim, summary judgment [was],
nonetheless, appropriate.’’ Meyers v. Livingston, Adler, Pulda, Meiklejohn &
Kelly, P.C., supra, 134 Conn. App. 792 n.6.
4
This court limited the certified questions to whether ‘‘the Appellate Court
properly determine[d] that the allegations of the plaintiff’s complaint against
the defendant . . . failed to set forth a cause of action sounding in breach
of contract’’; Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,
305 Conn. 920, 47 A.3d 881 (2012); and, if the answer to the first question
is no, ‘‘did the Appellate Court properly determine that even if the complaint
could be viewed as a contract action, summary judgment was appropriate
because said action was barred by the six year statute of limitations?’’ Id.,
921. Because two of the three Appellate Court panel members determined,
however, that the plaintiff’s complaint sounded in both breach of contract
and tort, we reframe the certified questions as follows: Do the allegations
of the plaintiff’s complaint against the defendant set forth a cause of action
sounding in breach of contract, and, if the answer to that question is yes,
did the Appellate Court properly determine that summary judgment was
appropriate on the contract claim because that claim was barred by the six
year statute of limitations? See, e.g., Ankerman v. Mancuso, 271 Conn. 772,
777, 860 A.2d 244 (2004) (court may rephrase certified question to render
it more accurate in framing issue presented).
5
In support of these allegations, the complaint also alleges that the defen-
dant ‘‘joined the claims of the plaintiff with those of . . . Thibodeau into
a single legal action and complaint,’’ that, ‘‘[d]uring the course of [the defen-
dant’s] joint representation of the plaintiff and . . . Thibodeau, [their] inter-
ests . . . came into conflict,’’ and that, in response to a joint settlement
offer conditioned on its acceptance by both the plaintiff and Thibodeau,
the defendant ‘‘acted in furtherance of the interests, wishes, and instructions
of . . . Thibodeau and against the interests, wishes, and instructions of the
plaintiff in bringing about a settlement of the lawsuit . . . .’’ The complaint
further alleges that, ‘‘[p]ursuant to the express and/or implied terms of the
contract for legal services to represent the plaintiff in the lawsuit, [the
defendant] owed to the plaintiff a duty of undivided loyalty and a duty to
pursue and follow the plaintiff’s interests, wishes and instructions in the
prosecution of the lawsuit.’’
6
We disagree with the plaintiff that the Appellate Court applied a double
standard in considering evidence of the parties’ contract provisions to deter-
mine whether the plaintiff’s complaint alleged a breach of contract but
rejecting evidence that the defendant filed a motion to withdraw its appear-
ance on behalf of the plaintiff after she expressed reservations about the
settlement agreement. The Appellate Court was not required to consider
evidence of the defendant’s motion to withdraw its appearance because the
basis of the breach of contract claim was the defendant’s alleged violation
of its duty of undivided loyalty by pursuing the interests of Thibodeau in
derogation of the plaintiff’s interests and its duty to follow the plaintiff’s
wishes and instructions to reject the settlement offer and to continue to
prosecute the lawsuit. The complaint contains no allegations regarding the
defendant’s decision to terminate its representation following the parties’
acceptance of the settlement agreement in open court.
7
The relevant passage of the Rules of Professional Conduct provides:
‘‘Violation of a Rule should not itself give rise to a cause of action against
a lawyer nor should it create any presumption that a legal duty has been
breached. In addition, violation of a Rule does not necessarily warrant any
other nondisciplinary remedy, such as disqualification of a lawyer in pending
litigation. The Rules are designed to provide guidance to lawyers and to
provide a structure for regulating conduct through disciplinary agencies.
They are not designed to be a basis for civil liability. Furthermore, the
purpose of the Rules can be subverted when they are invoked by opposing
parties as procedural weapons. The fact that a Rule is a just basis for a
lawyer’s self-assessment, or for sanctioning a lawyer under the administra-
tion of a disciplinary authority, does not imply that an antagonist in a
collateral proceeding or transaction has standing to seek enforcement of
the Rule. Nevertheless, since the Rules do establish standards of conduct
by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the
applicable standard of conduct.’’ Rules of Professional Conduct, scope.