Robert Peebles v. Steven Ayres (2011)

MEMORANDUM OF DECISION IN RE:  MOTION TO STRIKE (# 124)

FACTS

The plaintiff, Robert Peebles, filed an amended complaint on March 24, 2011, setting forth claims against the defendant Steven Ayres in counts one, three and four and against the defendant Mead, Bromley & Bishop in counts five, seven and eight.¹  In all of those counts, the plaintiff alleges the following common set of facts.   From February to July 2001, Ayres, an attorney, represented the plaintiff, who was beneficiary and executor of his aunt's estate.   At all times after the beginning of Ayres' representation of the plaintiff, Ayres owed the plaintiff a fiduciary duty.   In late 2002, Ayres informed the United States Attorney's office in Bridgeport that the plaintiff was involved with an estate from which assets possibly had been improperly omitted.   Ayres met with representatives of the IRS and the United States Attorney's office on or about November 2, 2002.   Ayres breached the fiduciary duty he owed the plaintiff by disclosing confidential information obtained during the attorney-client relationship.   As a result of Ayres' disclosure of that information, the IRS initiated an audit of the estate, the United States Attorney's office brought charges against the plaintiff, and the plaintiff sustained damages including the expense of defending against the audit and criminal proceeding and the payment of fines.

In count one, the plaintiff sets forth a claim of breach of fiduciary duty against Ayres.   In count three, labeled “Negligent Infliction of Emotional Distress,” the plaintiff further alleges that Ayres' conduct caused the plaintiff emotional distress and that Ayres knew, or in the exercise of reasonable care should have known, that his conduct would have that effect.   In count four, labeled “Intentional Infliction of Emotional Distress,” the plaintiff further alleges that Ayres' conduct “in pursuing the audit and criminal proceeding without probable cause and with malice was extreme and outrageous” and was intended to and did in fact cause the plaintiff to suffer extreme emotional distress.   Counts five, seven and eight are brought against Mead, Bromley & Bishop and set forth the same causes of action as counts one, three and four, respectively.   The plaintiff further pleads in counts five, seven and eight that Ayres was at all relevant times a partner, employee, servant or agent of Mead, Bromley & Bishop, and that Mead, Bromley & Bishop, through Ayres, breached the fiduciary duty it owed the plaintiff.

On July 14, 2011, the defendants filed a motion to strike counts one, three, four, five, seven and eight of the amended complaint.   Specifically, they move to strike all six counts on the ground that there are no facts alleged to support the conclusion that Ayres lacked probable cause to inform the United States Attorney's office that the plaintiff might have omitted assets from his aunt's estate.   The defendants move to strike counts one and five, the breach of fiduciary duty claims, on the additional grounds that Ayres owed the plaintiff no duty at the time of the alleged breach and that disclosure of the information regarding the plaintiff's management of the estate was permissible under the Rules of Professional Conduct.   Finally, the defendants move to strike counts three, four, seven and eight, which allege infliction of emotional distress, on the ground that they lack allegations of egregious or outrageous conduct.

In their memorandum of law in support of their motion to strike, the defendants set forth additional grounds for the motion to strike.²  Specifically, they move to strike counts three and seven, the negligent infliction of emotional distress claims, on the grounds that the plaintiff has failed to make the following allegations:  that Ayres' conduct created an unreasonable risk of harm;  that the plaintiff's distress was so severe that it might result in physical harm;  and that Ayres anticipated the precise nature of the harm to the plaintiff.

The plaintiff filed an objection to the motion to strike on July 28, 2011.   The defendants filed a reply memorandum on August 19, 2011.³  The motion was heard at the September 6, 2011 short calendar.

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  “We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  Id. “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

Grounds Attacking All Counts

The defendants move to strike all counts brought against them in the amended complaint—counts one, three, four, five, seven and eight—on the ground that there are no facts alleged to support the conclusion that Ayres lacked probable cause to inform the United States Attorney's office that the plaintiff may have omitted assets from his aunt's estate.   The defendants argue as well that the plaintiff's subsequent conviction on criminal charges establishes conclusively that there was probable cause to support allegations of the plaintiff's wrongdoing.   In response, the plaintiff argues that, if the defendants wanted a more specific allegation, they should have filed a request to revise.   The plaintiff further argues that his failure to provide specific allegations regarding lack of probable cause is not fatal to the legal sufficiency of the complaint because lack of probable cause is not a necessary element of any of his causes of action.

As an initial matter, it is noted that the defendants are mistaken in their assertion that all of the plaintiff's claims against them include unsupported conclusions that Ayres lacked probable cause.   In actuality, only in the fourth and eighth counts does the plaintiff allege that Ayres “pursu[ed] the audit and criminal proceeding without probable cause ․” Accordingly, although the defendants seek to strike all of the claims against them on the basis of an unsupported allegation of no probable cause, there is no basis for striking counts one, three, five or seven on that basis.

This leaves only counts four and eight, alleging intentional infliction of emotional distress, for consideration under this ground.   The defendants argue that the plaintiff's conviction on criminal charges is dispositive of the probable cause issue.   The plaintiff, however, does not allege in the amended complaint that he was convicted of any crime, although he did allege in counts two and six of the original complaint that he pleaded guilty “to the previously uncharged misdemeanor of withholding information in violation of 26 U.S.C. § 7203.”   Those two counts have been omitted from the amended complaint.   See footnote 1 of this memorandum.   The amended complaint does not include any allegation that the plaintiff was convicted of any offense.   In ruling on a motion to strike, “[w]e are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Moreover, “[i]t is well settled that [t]he voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting part of the history of the case, can furnish no basis for a judgment ․” (Internal quotation marks omitted.)  Ross v. Forzani, 88 Conn.App. 365, 368, 869 A.2d 682 (2005).   Accordingly, in the context of the present motion to strike, the court cannot take into consideration the plaintiff's previous allegation, in other counts of a superseded complaint, that he pleaded guilty to a criminal offense.   That allegation therefore cannot have any preclusive effective with regard to the probable cause issue, as suggested by the defendants.

The defendants are correct, however, that an allegation of lack of probable cause must be accompanied by supporting facts.   In the recent case of Cadle Co. v. D'Addario, 131 Conn.App. 223, 26, A.3d 682 (2011), the defendants alleged in a counterclaim that the plaintiff had engaged in vexatious litigation by bringing certain actions “without probable cause and with a malicious intent ․” (Internal quotation marks omitted.)  Id., 237.   The Superior Court granted the plaintiff's motion to strike the counterclaim.   Id., 238.   On appeal, the defendants maintained that a lack of probable cause could be inferred from the fact that the actions brought against them were dismissed.  Id., 237.   In affirming the granting of the motion to strike, the Appellate Court noted that “[p]robable cause may be present even where a suit lacks merit”;  (internal quotation marks omitted) id.;   and further stated that “the defendants did not plead any other basis to establish a lack of probable cause.”  Id., 238.   Thus, the defendants' mere allegation that the actions were brought “without probable cause” was insufficient to withstand a motion to strike.   Such a bare allegation of no probable cause is “a legal conclusion unsupported by any factual allegations.”   Vargas v. Labella, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001941 (March 8, 2007, Matasavage, J.) [43 Conn. L. Rptr. 22].

In the present case, the plaintiff, like the defendants in Cadle Co. v. D'Addario, merely allege that Ayres pursued an audit and criminal proceeding “without probable cause ․” The present case differs, however, in that the plaintiff's claim is not one of vexatious litigation, where lack of probable cause is a necessary element of the cause of action;  see id., 237;  but instead is a claim of intentional infliction of emotional distress.  “In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Cassotto v. Aeschliman, 130 Conn.App. 230, 234, 22 A.3d 697 (2011).   The defendants have not cited to any authority establishing that lack of probable cause is a necessary element of a intentional infliction of emotional distress claim, nor has research revealed such a requirement.   Accordingly, although the plaintiff has failed to support his legal conclusion that Ayres lacked probable cause, that factor, standing alone, is not fatal to his claim of intentional infliction of emotional distress because lack of probable cause is not a necessary element of that cause of action.   The motion to strike therefore is not granted on the ground that the plaintiff's allegation that the defendants lacked probable cause is unsupported by specific facts.

Breach of Fiduciary Duty

The defendants move to strike counts one and five, the breach of fiduciary duty claims, on the additional grounds that Ayres owed the plaintiff no duty at the time of the alleged breach and that disclosure of the information regarding the plaintiff's management of the estate was permissible under the Rules of Professional Conduct.   Specifically, the defendants argue that no fiduciary duty existed at the time of the alleged breach because the attorney-client relationship between the plaintiff and Ayres had already terminated at the time of the alleged breach.   In the alternative, the defendants argue that Ayres was permitted to reveal confidential information under rule 1.6(c) of the Rules of Professional Conduct.

The sole authority relied upon by the defendants in asserting that they owed the plaintiff no duty at the time of the breach is Nacholi v. Paul, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 06 5004726 (December 21, 2007, Adams, J.) (44 Conn. L. Rptr. 687).   Specifically, the defendants quote the following language from the Nacholi decision:  “[A] leading commentator states the obvious with substantial case support:  ‘the predicate of the attorney's fiduciary obligations is the existence of an attorney-client relationship.   The status must exist at the time of the alleged transaction or wrong and must be alleged.’   Mallen & Smith, Legal Malpractice (2007 ed.) § 14.3 ․” Nacholi v. Paul, supra, 44 Conn. L. Rptr. 688.   The defendants have failed, however, to include the very next sentence of the Nacholi decision, which states:  “While as conceded by the defendants some fiduciary responsibilities, such as the duty of confidentiality, may extend beyond the termination of the attorney-client relationship, breach of the confidentiality duty is not alleged in this case.”Id.

Indeed, under the Rules of Professional Conduct applicable to all Connecticut attorneys at the time of the alleged breach in the present case, “[t]he duty of confidentiality continues after the client-lawyer relationship has terminated.” ⁴  Rules of Professional Conduct (2002) 1.6, commentary.   Rule 1.9 establishes a general rule of nondisclosure, stating:  “A lawyer who has formerly represented a client in a matter shall not thereafter ․ (2) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”   Rules of Professional Responsibility (2002) 1.9.⁵  Accordingly, there is no merit to the defendants' argument that Ayres owed the plaintiff no duty at the time of the alleged breach.

The defendants nonetheless argue that Ayres was permitted to reveal confidential information under rule 1.6(c) of the Rules of Professional Conduct.   That section provides in relevant part:  “A lawyer may reveal [information relating to representation of a client] to the extent the lawyer reasonably believes necessary to:  (1) Prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another;  (2) Rectify the consequence of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.”  Rules of Professional Conduct (2002) 1.6(c).  As stated previously, rule 1.9 establishes a general rule of nondisclosure.  Rule 1.6, when read in conjunction with rule 1.9(c), provides limited exceptions in which disclosure is permitted.

Here, there are no facts alleged in the complaint that would bring this case within the exceptions enumerated in rule 1.6.   The allegations do not indicate whether the plaintiff had committed or was going to commit a criminal or fraudulent act, nor do they provide any insight into whether Ayres believed disclosure of information was necessary for any of the purposes set forth in rule 1.6.   The defendants therefore seek to have the court assume facts outside the complaint that is challenged by the motion to strike.   As stated previously, in ruling on this motion, the court is “limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, supra, 87 Conn.App. 268 n.9. “A speaking motion to strike is one improperly importing facts from outside the pleadings ․ Speaking motions have long been forbidden by our practice ․” (Internal quotation marks omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).   Because the amended complaint does not set forth facts removing the present case from the general rule that an attorney may not reveal information relating to the representation of a former client to that client's disadvantage, the motion to strike counts one and five, alleging breach of the defendants' fiduciary duties is denied.⁶

Negligent Infliction of Emotional Distress

The defendants move to strike counts three and seven, which allege negligent infliction of emotional distress, on the grounds that there are no allegations of egregious or outrageous conduct.   In their memorandum of law, the defendants further argue that the plaintiff has failed to allege:  that Ayres' conduct created an unreasonable risk of harm;  that the plaintiff's distress was so severe that it might result in physical harm;  and that Ayres anticipated the precise nature of the harm to the plaintiff.   The plaintiff argues in opposition that the violation of an attorney's duty of confidentiality is undoubtedly an egregious action.   He further argues that, because Ayres' disclosures were designed to instigate criminal proceedings, it was foreseeable that the plaintiff would suffer severe emotional distress.

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  (Internal quotation marks omitted.)  Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).   The defendants here claim that the plaintiff must additionally plead egregious or outrageous conduct.   This argument can be traced back to language in the case of Perodeau v. Hartford, 259 Conn. 729, 755, 792 A.2d 752 (2002).   In Perodeau, the Supreme Court held that “an individual municipal employee may not be found liable for negligent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.”  Id., 762–63.   In reaching that conclusion, the court observed:  “[A] termination may give rise to a claim for negligent infliction of emotional distress if the conduct under review involved an unreasonable risk of ․ emotional distress ․ that ․ might result in illness or bodily harm ․ Implicit in this conclusion is a recognition that emotional distress that might result in illness or bodily harm is a foreseeable consequence of particularly egregious conduct involving a termination, which would, in turn, give rise to a duty to avoid such conduct.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Id., 754–55.

Our Appellate Court has rejected the argument that this language in the Perodeau decision creates a general requirement that a plaintiff must plead and prove egregious conduct in order to make out a claim of negligent infliction of emotional distress.   In Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008), the defendant, a provider of wedding services and accommodations, claimed that it could not be held liable for negligent infliction of emotional distress in the absence of a finding of egregious conduct.  Id., 553.   The court recited the language from Perodeau quoted above, and then stated:  “The [defendant] mistakenly interprets this language as adding a requirement that the conduct in question must be unreasonable, egregious or outrageous in the context of this case.   The contractual relationship in this case, however, is distinguishable from the employment relationship discussed in Perodeau ․ A contract for wedding services creates a rigorous expectation for contractual performance.   An employee at will, on the other hand, has no contract, may be terminated at will and, therefore, operates under the assumption that he or she may be terminated at any time without cause.   Thus, only if the manner of termination of an at will employee is unreasonable, outrageous or egregious will the tort of negligent infliction of emotional distress lie in such context.   The plaintiff's contract for [wedding] services was not limited by any similar assumptions.   On the contrary, she had every reason to believe that the [defendant] would perform its role according to the binding contract concerning arrangements for this important life event.”   (Citation omitted.)  Murphy v. Lord Thompson Manor, Inc., supra, 105 Conn.App. 554.

The reasoning of the Murphy court applies equally in the present case.   The duty of confidentiality essential to an attorney-client relationship creates a rigorous expectation that an attorney will not breach the rules governing disclosure of information regarding the representation.   This is fundamentally different from an employment at will situation, where an employee operates under the assumption that termination may occur at any time.   Therefore, as in Murphy, there is no requirement of egregious conduct as a predicate to a claim of negligent infliction of emotional distress.

The defendants are correct, however, that the plaintiff's negligent infliction of emotional distress claim is lacking in other particulars.   Specifically, the defendants argue that the plaintiff has failed to allege the first and third elements of negligent infliction of emotional distress as set forth above:  that Ayres' conduct created an unreasonable risk of causing the plaintiff emotional distress and that the emotional distress was severe enough that it might result in illness or bodily harm.   See Davis v. Davis, supra, 112 Conn.App. 68.   While the plaintiff's allegation that “Ayres knew or in the exercise of reasonable care should have known that his conduct ․ would cause the Plaintiff to suffer emotional distress” arguably satisfies the first of these elements, there is nothing alleged in count three or count seven indicating that the plaintiff suffered severe emotional distress.   Instead, the plaintiff merely alleges that “the conduct of ․ Ayres caused the Plaintiff to suffer emotional distress.” ⁷  Because a claim of negligent infliction of emotional distress must be supported by an allegation of emotional distress so severe that it might result in illness or bodily harm, and the plaintiff has failed to make such an allegation, the motion to strike counts three and seven is granted.

Intentional Infliction of Emotional Distress

The defendants move to strike counts four and eight, alleging intentional infliction of emotional distress, on the ground that they lack allegations of egregious or outrageous conduct.   The plaintiffs argue that, where an attorney's disclosure of confidential information leads to a criminal investigation, the requirement of extreme and outrageous behavior is satisfied.

As previously stated, “[i]n order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe ․ Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’

“Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․ [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.”  (Citations omitted;  internal quotation marks omitted.)   Cassotto v. Aeschliman, supra, 130 Conn.App. 234–35.

Research has not revealed any Connecticut authorities considering whether an attorney or the attorney's firm can be held liable for intentional infliction of emotional distress based on the attorney's breach of the duty of confidentiality.   The District of Columbia Court of Appeals, however, found such a claim to be viable under certain circumstances in the case of Herbin v. Hoeffel, 806 A.2d 186 (D.C.2002).   In that case, the plaintiff “claim[ed] that his former attorney collaborated with prosecutors to ensure his prosecution and disclosed client confidences in the process, which caused him personal distress ․” Id., 196.   The court stated:  “[T]he allegation in the complaint that [the defendant] breached [the plaintiff's] confidences and that she did so to assist in his prosecution, if true, is extremely serious misconduct on the part of an attorney ․ In light of the high value we place on a lawyer's duty of loyalty and to preserve client confidences, we are unwilling to state that the conduct alleged here, if true, is not extreme and outrageous as a matter of law ․ Although not part of the complaint, there are enough conceded circumstances in the pleadings and other submissions ․ that permit us to posit a set of facts that would further aggravate [the defendant's] alleged conduct in the eyes of the jury that she acted not only intentionally in breach of her ethical duties, but that she did so out of personal feelings resulting from her relationship with a former client.”   (Citations omitted;  internal quotation marks omitted.)  Id., 197–98.

In the present case, the court is limited by Connecticut's rules of practice, which, as previously stated, confine the court to considering only the allegations of the complaint when ruling on a motion to strike.  Zirinsky v. Zirinsky, supra, 87 Conn.App. 268 n.9. In contrast to the facts considered by the court in Herbin, there are no facts alleged here indicating any improper personal motive behind Ayres' alleged disclosure of confidential information about the plaintiff.   While the plaintiff does state that the disclosures were made “with malice,” that statement is a mere legal conclusion which is insufficient to establish extreme and outrageous conduct in the absence of specific factual allegations to support it.   See Hopkins v. O'Connor, 282 Conn. 821, 847 n.11, 925 A.2d 1030 (2007) (“the plaintiff must plead specific facts, which, if true, would allow a fact finder to reach the conclusion that the defendant did indeed act with malice”).   While the facts alleged, as previously noted, are sufficient to make out a case of breach of Ayres' fiduciary duty of confidentiality, such a breach, in the absence of aggravating factors, such as those present in Herbin, does not constitute conduct that is atrocious and utterly intolerable in a civilized community.   Accordingly, the plaintiff has failed to state a claim for intentional infliction of emotional distress, and therefore the motion to strike counts four and eight is granted.

CONCLUSION

For the foregoing reasons, the motion to strike counts three, four, seven and eight is granted, and the motion to strike counts one and five is denied.

Wilson, J.

FOOTNOTES

FN1. Counts two and six of the original complaint, filed on December 24, 2009, set forth claims of malicious prosecution against the defendants.   Those counts were not carried over into the amended complaint, but the remaining counts retain their original numbering.   Accordingly, the amended complaint does not contain a count two or count six.Counts nine through twelve of the amended complaint set forth allegations against an additional defendant, John Ackerman.   The claims against Ackerman are not at issue in the present motion to strike.   Accordingly, Ayres and Mead, Bromley & Bishop are referred to collectively as “the defendants” in this memorandum..  FN1. Counts two and six of the original complaint, filed on December 24, 2009, set forth claims of malicious prosecution against the defendants.   Those counts were not carried over into the amended complaint, but the remaining counts retain their original numbering.   Accordingly, the amended complaint does not contain a count two or count six.Counts nine through twelve of the amended complaint set forth allegations against an additional defendant, John Ackerman.   The claims against Ackerman are not at issue in the present motion to strike.   Accordingly, Ayres and Mead, Bromley & Bishop are referred to collectively as “the defendants” in this memorandum.

FN2. Practice Book § 10–41 provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  “Motions to strike that do not specify the grounds of insufficiency are ‘fatally defective’ and, absent a waiver by the party opposing the motion, should not be granted.”  (Emphasis added.)  Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).   The plaintiff here has not objected to the defendants' failure to specify on the face of the motion to strike all of the grounds for the motion.   Therefore, the court deems the defect waived and will address the additional grounds raised in the memorandum of law.   See, e.g., Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 10 6009582 (June 9, 2010, Wilson, J.);   Quality Auto Body, Inc. v. Hartford Omni Automobile, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0284399 (April 13, 2004, Tanzer, J.)..  FN2. Practice Book § 10–41 provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  “Motions to strike that do not specify the grounds of insufficiency are ‘fatally defective’ and, absent a waiver by the party opposing the motion, should not be granted.”  (Emphasis added.)  Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).   The plaintiff here has not objected to the defendants' failure to specify on the face of the motion to strike all of the grounds for the motion.   Therefore, the court deems the defect waived and will address the additional grounds raised in the memorandum of law.   See, e.g., Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 10 6009582 (June 9, 2010, Wilson, J.);   Quality Auto Body, Inc. v. Hartford Omni Automobile, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0284399 (April 13, 2004, Tanzer, J.).

FN3. The defendants filed two different versions of their reply memorandum on August 19, 2011, which are numbered 130.00 and 131.00.   On that same date, the defendants filed a withdrawal of number 130.00.   The only apparent difference between the two versions is that number 131.00 includes three pages missing from number 130.00:  an “ORDER” page;  a “CERTIFICATION” page;  and a page from one of the cases attached as exhibits..  FN3. The defendants filed two different versions of their reply memorandum on August 19, 2011, which are numbered 130.00 and 131.00.   On that same date, the defendants filed a withdrawal of number 130.00.   The only apparent difference between the two versions is that number 131.00 includes three pages missing from number 130.00:  an “ORDER” page;  a “CERTIFICATION” page;  and a page from one of the cases attached as exhibits.

FN4. Some of the cited provisions of the Rules of Professional Conduct have been revised subsequent to the alleged breach in the present case.   The parties cite to the versions of the rules currently in effect.   None of the revisions would alter the analysis set forth in this memorandum..  FN4. Some of the cited provisions of the Rules of Professional Conduct have been revised subsequent to the alleged breach in the present case.   The parties cite to the versions of the rules currently in effect.   None of the revisions would alter the analysis set forth in this memorandum.

FN5. The leading commentator referenced by Judge Adams in Nacholi v. Paul, supra, 44 Conn. L. Rptr. 688, also supports the conclusion that the duty of confidentiality continues after termination of the attorney-client relationship.   Specifically, the treatise cited in that decision, in commenting on the law of professional responsibility nationally, states that “[t]he case law, as the ethics codes, usually recognizes that a client's confidences remain inviolate beyond the expiration of the attorney-client relationship.”   2 R. Mallen & J. Smith, Legal Malpractice (2009) § 18.5, p. 1058..  FN5. The leading commentator referenced by Judge Adams in Nacholi v. Paul, supra, 44 Conn. L. Rptr. 688, also supports the conclusion that the duty of confidentiality continues after termination of the attorney-client relationship.   Specifically, the treatise cited in that decision, in commenting on the law of professional responsibility nationally, states that “[t]he case law, as the ethics codes, usually recognizes that a client's confidences remain inviolate beyond the expiration of the attorney-client relationship.”   2 R. Mallen & J. Smith, Legal Malpractice (2009) § 18.5, p. 1058.

FN6. The defendant are not without recourse to plead any relevant facts that would bring this case within an exception to the general rule.  “Facts which are consistent with [the plaintiff's allegations] but show, notwithstanding, that the plaintiff has no cause of action” may be alleged as a special defense in a defendant's answer.  Practice Book § 10–50..  FN6. The defendant are not without recourse to plead any relevant facts that would bring this case within an exception to the general rule.  “Facts which are consistent with [the plaintiff's allegations] but show, notwithstanding, that the plaintiff has no cause of action” may be alleged as a special defense in a defendant's answer.  Practice Book § 10–50.

FN7. The defendants further argue that the plaintiff has failed to allege that Ayres anticipated the precise nature of the harm to the plaintiff.   This argument is based on language originating in the case of Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), in which the Supreme Court stated:  “We ․ impose a condition for emotional distress recovery that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm ․ This condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even where a breach of duty might otherwise be found ․” (Citations omitted;  internal quotation marks omitted.)  Id., 398.   Accordingly, a defendant's anticipation of the precise nature of the harm to the plaintiff does not constitute an additional requirement for stating a claim of negligent infliction of emotional distress, but is simply an alternative way that the Supreme Court has described the requirement that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”   The defendants' arguments addressed to that requirement are fully addressed in the body of this memorandum..  FN7. The defendants further argue that the plaintiff has failed to allege that Ayres anticipated the precise nature of the harm to the plaintiff.   This argument is based on language originating in the case of Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), in which the Supreme Court stated:  “We ․ impose a condition for emotional distress recovery that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm ․ This condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even where a breach of duty might otherwise be found ․” (Citations omitted;  internal quotation marks omitted.)  Id., 398.   Accordingly, a defendant's anticipation of the precise nature of the harm to the plaintiff does not constitute an additional requirement for stating a claim of negligent infliction of emotional distress, but is simply an alternative way that the Supreme Court has described the requirement that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”   The defendants' arguments addressed to that requirement are fully addressed in the body of this memorandum.

Wilson, Robin L., J.