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Hickey v. Scott

September 16, 2010


The opinion of the court was delivered by: John D. Bates United States District Judge


Robert Hickey represented Charlene Scott in a successful sexual harassment suit before the Equal Employment Opportunity Commission ("EEOC") against her former employer, the Department of Energy. After Scott refused to pay her legal bills, Hickey sued her for breach of contract. She counterclaimed. He counterclaimed back. The parties fought over almost everything. Now before the Court are Hickey's motion for summary judgment, Scott's motion for partial summary judgment, Hickey's motion to strike, both parties' motions for sanctions, and Scott's motion to voluntarily dismiss one of her counterclaims.


In November 1997, Hickey agreed to represent Scott in a Title VII action before the EEOC. Compl. ¶ 4. The parties signed a contract providing, among other things, that Scott would pay Hickey $225 per hour for legal services. See Hickey's Mem. in Supp. of Mot. for Summ. J. ("Hickey's Mem.") [Docket Entry 63], Ex. 1 ("Contract"), ¶ 3. With respect to Hickey's legal invoices, the contract provided that Hickey "will render [to Scott] a short summary statement of fees and disbursements for each month containing only the hours and fees spent on these matters along with a summary of disbursements spent during that month along with a reconciliation amount." Id. ¶ 6. As for any disagreements concerning Hickey's representation of Scott, the contract stated that "[a]ny dispute by Ms. Scott regarding the amount of the monthly statement or procedure for handling the case must be made in writing within 30 days of rendering the statement or the existence of a litigation problem or be waived." Id. ¶ 9. Unpaid bills would accrue interest at eight percent. Id. ¶ 7.

In September 2005, an EEOC administrative judge ruled for Scott on her Title VII claim and awarded her over $200,000. See Hickey's Mem., Ex. 13 (EEOC Decision). On Scott's behalf, Hickey then filed a motion for attorney's fees and costs, seeking $186,295.86 -- the amount of his legal bill to Scott. See Scott's Mem. in Supp. of Mot. for Summ. J. ("Scott's Mem.") [Docket Entry 64], Ex. C (Fee Petition). The administrative judge, having identified "a significant portion of hours which appear to have been excessive or inadequately documented," reduced this figure by approximately 25%, and awarded Scott $139,338.27 in attorney's fees and costs. Hickey's Mem., Ex. 15 (EEOC Attorney's Fees Decision), 5.

During Hickey's representation of her, Scott paid Hickey a total of $16,200. Compl. ¶ 10. Soon after receiving the EEOC's attorney's fee award, Scott offered to pay Hickey $123,138.27 (the $139,338.27 fee award minus $16,200) as full consideration for his legal services. See Hickey's Mem., Ex. 40 (July 17, 2007 Letter from Scott to Hickey). Hickey refused, contending that, pursuant to their contract, Scott owed him $170,095.56 ($186,295.86 minus $16,200), plus interest. Hickey, proceeding pro se, then sued Scott for breach of contract and constructive trust.

Compl. ¶¶ 14, 26.*fn1 Scott, also pro se, filed an answer and then an amended answer, and asserted several counterclaims. See Scott's Answer [Docket Entry 3]; Scott's Am. Answer [Docket Entry 7].*fn2

Scott eventually retained counsel, and thereafter filed a second amended answer along with counterclaims for professional negligence, breach of fiduciary duty, and violations of the D.C. Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. See Scott's Second Am. Answer and Counterclaims ("Scott's Second Am. Answer") [Docket Entry 34], ¶¶ 46-68. Hickey then answered and filed his own counterclaims against Scott, alleging fraud, abuse of process, and conversion. See Hickey's First Am. Answer and Counterclaims ("Hickey's Answer") [Docket Entry 36], pp. 12-22. Scott has now moved for summary judgment on Hickey's claims and counterclaims; Hickey seeks summary judgment on his claims and counterclaims, as well as on Scott's counterclaims. Hickey has also moved to strike numerous exhibits attached to Scott's summary judgment briefing. Scott has moved to voluntarily dismiss one of her counterclaims, and has moved for sanctions against Hickey. Hickey has cross-moved for sanctions against Scott.*fn3


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Thus, the non-moving party cannot rely on mere speculation or compilation of inferences to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C. Cir. 2005). Nor can the non-moving party rely on hearsay statements or conclusory statements with no evidentiary basis to establish a genuine issue of material fact. See Assoc. of Flight Attendants v. Dep't of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Moreover, a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322; see also Anderson, 477 U.S. at 252 (summary judgment appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]").


The Court will first address the parties' motions for summary judgment, and will take in turn Hickey's claims, Scott's counterclaims, and Hickey's counterclaims. Finally, the Court will address the parties' motions for sanctions.*fn4

I. Hickey's Claims

Hickey and Scott have each moved for summary judgment on Hickey's claims for breach of contract and constructive trust. The Court will deny both motions.

A. Breach of Contract

Scott does not dispute that, under the contract's express terms, she currently owes Hickey nearly $50,000 plus interest. But "clients may defend a claim by their lawyer for unpaid legal fees by proving that their attorney breached a fiduciary duty." Hendry v. Pelland, 73 F.3d 397, 403 (D.C. Cir. 1996) (citing Griva v. Davison, 637 A.2d 830, 847 (D.C. 1994)). As detailed below, numerous disputes of material fact exist as to whether Hickey breached his fiduciary duty to Scott. Therefore, the Court will deny Hickey's motion for summary judgment on this claim.

The Court will also deny Scott's motion for summary judgment. Scott briefly contends that her contract with Hickey "was modified to a contingency contract whereby Hickey is only entitled to fees and costs that the Administrative Judge awarded" -- an amount that Scott has already paid him. Scott's Mem. at 4. She bases this assertion entirely on Hickey's statement in his fee petition to the EEOC that "[b]ecause of [Scott's] poor financial situation, the case was handled on a partial contingency fee basis with [Scott] paying only a small part of the cost." Scott's Mem., Ex. C (Oct. 5, 2005 Aff. of Robert Hickey), ¶ 5. But Hickey's unilateral and isolated statement to the EEOC -- without any evidence that Scott agreed to alter the contract --does not establish that the parties modified their agreement. See Malone v. Saxony Coop. Apartments, Inc., 763 A.2d 725, 729 (D.C. 2000) (mutual assent is required "to make or modify a contract"). Hence, the Court will deny Scott's motion for summary judgment on Hickey's breach of contract claim.*fn5

B. Constructive Trust

Hickey has also moved for summary judgment on his claim for a constructive trust. Specifically, he seeks to have the remainder of the EEOC's attorney's fees award (plus interest) held in constructive trust for him. See Hickey's Mem. at 9. Such relief is premature. "[A] constructive trust is not an independent cause of action." Macharia v. United States, 238 F. Supp. 2d 13, 31 (D.D.C. 2002). Rather, it "is a remedy that a court devises after litigation." United States v. BCCI Holdings (Lux.), S.A., 46 F.3d 1185, 1190 (D.C. Cir. 1995). Because it is not yet clear whether Scott owes Hickey any money, the Court cannot now determine whether the imposition of a constructive trust is appropriate.*fn6

II. Scott's Counterclaims

Hickey has moved for summary judgment on Scott's counterclaims for professional negligence and breach of fiduciary duty. The Court takes them in turn.*fn7

A. Malpractice

"To establish a prima facie case of attorney malpractice under D.C. law, the plaintiff must establish the applicable standard of care, that the attorney violated the standard, and that the violation caused a legally cognizable injury." Kaempe v. Myers, 367 F.3d 958, 966 (D.C. Cir. 2004) (citing O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982)). "Expert testimony must be presented to establish the standard [of] care 'unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.'" Chase v. Gilbert, 499 A.2d 1203, 1211 (D.C. 1985) (quoting O'Neil, 452 A.2d at 341).

Scott contends that Hickey committed malpractice -- she calls it professional negligence -- in five ways. According to Scott, Hickey (1) failed to request an appropriate attorney's fee award from the EEOC; (2) charged Scott for services he never provided; (3) billed Scott for unnecessary work; (4) did not include in his monthly bills any description of his services rendered; and (5) failed to obtain for Scott all the damages to which she was entitled in the EEOC proceeding. Scott's Second Am. Answer ΒΆΒΆ 48, 50-53. Hickey seeks summary judgment on all five claims. Although the ...

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