1997 Conn. Super. Ct. 12869 | Conn. Super. Ct. | 1997
I. INTRODUCTION AND FACTUAL BACKGROUND CT Page 12870
The plaintiff, Sydney T. Schulman d/b/a Law Offices of Sydney T. Schulman, commenced the present action against the defendants, Major Help Services ("Major Help") and its president and agent Stuart Grant alleging that they breached a December 1995 contract in which the plaintiff would pay an $11,000 membership fee and the defendant would purchase advertising space on local television networks and would refer personal injury leads to the plaintiff. Major Help guaranteed that the plaintiff would receive a minimum of eight personal injury referrals every month and that if Major Help failed to provide the minimum number of leads for any given month, the contract would be renewed for an additional six month period without additional cost to the plaintiff. The contract also provided that if, after the extension, Major Help's efforts still failed to yield the amount of leads contracted for, then the plaintiff's money would be refunded on a pro-rata basis.
The plaintiff maintains that, despite payment of the $11,000, he did not receive the minimum number of leads as guaranteed in the agreement during any month in which the contract was in force or any extension thereof. Subsequently, although the plaintiff notified Major Help of the shortfall and requested the return of the pro-rata portion of the fees, Major Help failed to return such fees or to answer the plaintiff's letters and telephone calls.
This action was brought on March 17, 1997, and on May 6, 1997, the plaintiff's motion for default for failure to appear was granted. The matter now comes before this court as a hearing in damages. Ordinarily, the only issue at such a hearing is the amount of damages. Practice Book § 364 (a) provides that, "[i]f a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant." "The result of an entry of a default for failure to appear is that liability is conclusively presumed . . . . Therefore, [a] plaintiff [is] relieved of any obligation to prove the allegations of the complaint except as to the damages." (Citations omitted.)Carothers v. Butkin Precision,
This court, however, cannot follow the normal path of review. The plaintiff's claim raises certain ethical problems that must be addressed by this court.
II. DISCUSSION
The Connecticut Bar Association Committee on Professional Ethics has previously ruled that the Rules of Professional Conduct would not be violated where an attorney participates in an advertising program in which the attorney pays an advertising agency to join a program featuring television advertisements coupled with an answering service to answer telephone calls from prospective clients. The answering service, however, may merely forward the name, address and telephone number of the caller to the participating attorney without any further involvement in the process. See Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 14 (1990). Such practice is improper if the actual advertisement could be construed by the caller as an endorsement or recommendation by the answering service of a particular lawyer. "Recommendations ought to be based on one's reputation, not on the recommenders concealed financial interest in the creation of an attorney-client relationship. Allowing the purchase of recommendations would be the functional equivalent of permitting the purchase of reputations, which would be grossly misleading to the public and inherently wrong." Id.
Informal Opinion No. 14 ruled that an advertising effort between an attorney and a third party is permissible if the third party performs merely a ministerial function in CT Page 12872 connecting the attorney with the prospective clients. In the present case, however, the contract entered into by the plaintiff and Major Help, required a $2,000 monthly payment with a start up fee of $1,000 for a total of $13,000. There is absolutely no reference to the cost, method or specifics of the advertising. In its advertisements directed at enrolling attorneys in the program, Major Help states that it will provide only "qualified" leads and that it will "follow up to insure that appointments are kept" and that it will "directly connect the qualified clients `live' into [the attorney's] office." (Plaintiff's Exhibit 1.) It is clear that the role of Major Help in such plan goes beyond the limited function of a telephone operator providing a caller with the name of a participating attorney. This court cannot possibly conclude that the payments are for the "reasonable cost of advertising, or written communication". Rather, the arrangement is a procedure through which a participating attorney pays a third party a sum surely in excess of the cost of advertising involved in exchange for the third party's recommendations. This violates Connecticut Rules of Professional Conduct, Rule 7.2 (c). See also Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 23 (October 5, 1990) (holding that, in the Committee's opinion, a plan involving more than just a ministerial function by the referring organization violates Rule 7.2 (c)). While entering into a contract prohibited by the Rules, is not illegal, it offends the public policy of ensuring ethical conduct by attorneys embodied in the Rules.
Connecticut has the strong public policy of ensuring that CT Page 12873 lawyers act ethically in dealing with the public. See, e.g.,Statewide Grievance Committee v. Glass,
Not only are the Rules of Professional Conduct intended to implement a policy to protect the public from certain attorneys, Statewide Grievance Committee v. Spirer, supra,
Since the contract in this case violates Rule 7.2, the plaintiff's conduct, in violating the Rules of Professional Conduct, contravenes public policy. See, e.g., Ghent v.Zoning Commission,
For the above reasons therefore, even though this case is before the court as a hearing on damages with liability seemingly rendered, this court refuses to enforce the contract. Judgment enters for the defendant. No costs are imposed.
Berger, J.