CHAPTER 9 - 9-8 MISCELLANEOUS DEFENSES

• Jurisdiction: United States

9-8 Miscellaneous Defenses

There are several general defenses that are available in legal malpractice actions. One of the authors used res judicata to dispose of a claim of fraud that could have, and should have been, asserted in previous litigation entitled Byrne v. Burke.⁹⁹ The special defense of accord and satisfaction was rejected in Cusano v. Grudberg, where the defendant tried to argue that the monetary settlement of the underlying claim compromised his claims against the attorney for malpractice.¹⁰⁰ In Idlibi v. Ollennu,¹⁰¹ the Appellate Court held that a claim for legal malpractice fails for lack of standing if the plaintiff never had an attorney client relationship with the defendant. That a client agreed in a fee agreement to arbitrate any and all claims including any claim for malpractice is a valid defense, and the attorney can compel arbitration of the claims asserted. In Asselin & Connolly v. Heath,¹⁰² the court observed that a retainer agreement that requires both parties to submit all disputes arising out of the representation to binding arbitration did not violate public policy. In support, the court cited an opinion from the American Bar Association Committee on Ethics and Professional Responsibility,¹⁰³ where the ABA approved the use of an arbitration clause providing for the binding arbitration of any fee disputes or malpractice claims arising between an attorney and his or her client. In response to an argument that such an arbitration agreement violates the public policies embodied in the Rules of Professional Responsibility, the court found that it "does not contravene any of the policies embodied in the rules."¹⁰⁴ If an attorney or firm use an arbitration provision in the fee agreement, it is imperative pursuant to Rule of Professional Conduct 1.8 to fully advise the client of the scope and effect of the agreement. Moreover, if the attorney or firm seeks to enforce the arbitration agreement, she should do so immediately or else risk waiving that right.

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Notes:

^[99] Byrne v. Burke, No. X03CV065009290S, 2007 WL 2741372 (Conn. Super. Ct. 2007). The plaintiff appealed the trial court's decision to grant the defendants' motions for summary judgment, and the Appellate Court upheld the decision of the trial court. See also Byrne v. Burke, 112 Conn. App. 262 (2009).

^[100] Cusano v. Grudberg, 2003 WL 21771987 (Conn. Super. Ct. July 21, 2003). "A release, compromise or accord and satisfaction with the third party does not exculpate the...