204 Conn. 490 | Conn. | 1987
The principal issue in this case is whether a cause of action for abuse of process may be brought to recover damages from attorneys who allegedly pursued litigation despite their discovery that their client’s claim lacked merit. The plaintiff, Charles J. Mozzochi, filed a five count complaint charging the defendants, attorneys Bruce S. Beck and Kathleen Eldergill and the law firm of Beck & Pagano, with unlawful conduct in the nature of vexatious litigation, abuse of process and malpractice. The trial court, concluding that the plaintiff had failed to state any cause of action, granted the defendants’ motion to strike the complaint and subsequently, at the plaintiff’s request, rendered judgment in favor of the defendants. The plaintiff’s appeal to the Appellate Court was transferred to this court. We find no error.
In an appeal challenging a ruling on a motion to strike, we must take the facts to be those alleged in the plaintiff’s complaint, and must construe the complaint in the manner most favorable to the plaintiff. Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980). According
The trial court determined that these allegations did not suffice to state a cause of action. With respect to a possible claim for vexatious litigation, the court determined that the complaint was defective for failure to allege that the underlying action “was initiated maliciously, without probable cause, and terminated in the plaintiffs favor.” Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). The court held that the complaint did not state a claim for abuse of process because it failed to allege that the defendants had engaged in overt acts for a collateral purpose unrelated to the lawsuit that they were prosecuting. Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112 (1951). Finally, the court concluded that the plaintiffs complaint could not support an action for legal malpractice grounded in the
The plaintiffs appeal does not contest the trial court’s ruling on vexatious litigation. The plaintiff maintains, however, that the trial court erred in holding that his complaint failed to state a claim either for abuse of process or for legal malpractice. These claims of error warrant separate consideration.
I
The plaintiff asserts that he has stated a cause of action for abuse of process by alleging, in his complaint, that the defendants: (1) filed amendments to the pleadings in the Muszynski action when the defendants knew that the allegations of those amendments were false; and (2) refused to withdraw the Muszynski action after learning that it was utterly without merit. This conduct constituted abuse of process, according to the plaintiff, because it was allegedly undertaken for “an unlawful ulterior purpose, to wit: to inflict injury upon the plaintiff and to enrich themselves and their said client although they knew that their said lawsuit was without merit.”
In our assessment of the viability of this complaint, it is useful to note at the outset what the complaint does not allege. There is no claim that the defendants undertook any action outside of the normal course of proceedings in the Muszynski case itself. For example, there is no claim that the defendants used the pleadings or the process in the Muszynski case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation. Similarly, there is no claim that the defendants used unreasonable force, excessive attachments or extortionate methods to enforce the right of action asserted in the Muszynski
An action for abuse of process lies against any person using “a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.” Varga v. Pareles, supra, 667; Schaefer v. O. K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of “a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . . ” (Emphasis added.) Comment b to § 682 explains that the addition of “primarily” is meant to exclude liability “when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121.
We have not previously considered the scope of the potential liability of an attorney for abuse of process arising out of the attorney’s professional representation of the interests of his or her clients. Such a cause of action must be reconciled with our responsibility to assure unfettered access to our courts. Because litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers
State courts in other jurisdictions have undertaken the process of balancing these competing interests,
Accordingly, we conclude that although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.
Our appraisal of the plaintiff’s complaint in light of this holding leads us to conclude that the complaint does not state a cause of action for abuse of process. Its key allegation is that the defendants continued to pursue litigation “for an unlawful ulterior purpose, to wit: to inflict injury upon the plaintiff and to enrich themselves and their said client although they knew that their said lawsuit was without merit.” So general an allegation of abuse does not satisfy the requirement of showing the use of legal process “primarily to accomplish a purpose for which it is not designed . . . .” (Emphasis added.) 3 Restatement (Second), supra, § 682. The complaint in no way distinguishes between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case
II
The plaintiffs alternate claim is that the trial court erred in its ruling that the fifth count of the plaintiff’s complaint does not state a claim for legal malpractice. The fifth count relies on the provisions of the Code of Professional Responsibility
The trial court held that this pleading was legally insufficient for two reasons. It concluded, broadly, that violations of the Code of Professional Responsibility do not give rise to any private cause of action for legal malpractice by anyone, including an attorney’s client. More narrowly, it concluded that even if a client could bring such an action to enforce code obligations, this plaintiff could not bring such a suit because he had not alleged circumstances that would make him the foreseeable beneficiary of the legal services rendered by the defendants to Muszynski. We agree with the trial court’s narrower disposition of the plaintiff’s complaint and hence do not reach the broader one.
The plaintiff maintains that the Code of Professional Responsibility confers upon him the status of a foreseeable beneficiary of the obligations that the code imposes upon the defendants by operation of law. The trial court’s ruling to the contrary, according to the plaintiff, improperly relies on the absence of privity of contract as a defense to malpractice actions. Since courts generally now permit actions for professional malpractice without reference to privity, so long as the plaintiff is the intended or foreseeable beneficiary of the professional’s undertaking; see, e.g., Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 435-42, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); Rosenblum v. Adler, 93 N.J. 324, 352-53, 461 A.2d 138 (1983); the plaintiff contends he should be allowed to proceed to trial on his complaint.
We are left therefore with the question of whether, in the absence of a specific relationship that would make it reasonable for the defendants to foresee the plaintiff’s reliance on their conduct, the plaintiff as a third party may recover damages for malpractice from the defendants. Every court that has examined this question has concluded that the Code of Professional Responsibility does not, per se, give rise to a third party cause of action for damages. See, e.g., Bickel v. Mackie, 447 F. Sup. 1376, 1383 (N.D. Iowa), aff’d, 590 F.2d 341 (8th Cir. 1978); Noble v. Sears, Roebuck & Co., 33 Cal. App. 3d 654, 658-59, 109 Cal. Rptr. 269 (1973); Myers v. Cohen, 687 P.2d 6, 16 (Hawaii App. 1984), rev’d on other grounds, 67 Hawaii 389, 688 P.2d 1145 (1984); Brody v. Ruby, supra, 907-908; Young v. Hecht, 3 Kan. App. 2d 510, 515, 597 P.2d 682 (1979); Hill v. Willmott, 561 S.W.2d 331, 333-35 (Ky. App. 1978); Spencer v. Burglass, supra, 600-601; Sullivan v. Birmingham, 11 Mass. App. 359, 368-69, 416 N.E.2d 528 (1981); Fried
There is no error.
In this opinion the other justices concurred.
One such restraint is the requirement that the action that is the subject of the vexatious litigation suit have terminated in the plaintiff’s favor. See Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).
Our conclusion that the viability of an abuse of process claim turns on the specificity of its allegations accords with our holdings in other areas involving collateral attacks on the validity of proceedings. For example, we have held that to obtain an evidentiary inquiry into competence, for the purposes of challenging the voluntariness of a guilty plea, a defendant must make specific allegations that, if true, would constitute substantial evidence of mental impairment. See State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986).
The Code of Professional Responsibility was redesignated the Rules of Professional Conduct in 1986. For purposes of the plaintiffs claim, the relevant rules are identical.
At the time of the underlying action, the Code of Professional Responsibility EC 7-10 provided: “The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.”
At the time of the underlying action, the Code of Professional Responsibility DR 7-102 (A) (1) provided: “representing a client within the BOUNDS OP THE LAW.
“(A) In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.”
At the time of the underlying action, the Code of Professional Responsibility DR 7-102 (A) (2) provided: “In his representation of a client, a lawyer shall not ... (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”
We recognize that the rules of practice and the codes adopted by the judges of the Superior Court have the force of law. See State v. Cook, 183 Conn. 520, 521-22, 441 A.2d 41 (1981). Courts in other jurisdictions have refused to interpret statutes that govern attorney conduct so as to give rise to actions of malpractice. See, e.g., Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 337, 630 P.2d 840 (1981). Despite its legally binding status in this state, we conclude that the Code of Professional Responsibility does not of itself give rise to a third party cause of action.
In 1986, the Code of Professional Responsibility was amended in this state to include a preamble that clarifies this issue. The new preamble now states: “Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. 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 administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Practice Book, Rules of Professional Conduct, Preamble (1986).