UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT J. HICKEY,
Plaintiff,
v. Civil Action No. 07-1866 (JDB)
CHARLENE SCOTT,
Defendant.
MEMORANDUM OPINION
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.
BACKGROUND
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
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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.
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Compl. ¶¶ 14, 26.1 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].2
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.3
STANDARD OF REVIEW
1
During this litigation, Scott sent Hickey a check for $123,138.27. See Hickey's Mem.,
Ex. 43. In light of this, Hickey now contends that Scott owes him $46,957.29, plus interest.
2
Hickey filed numerous motions to strike Scott's pro se filings, as well as a motion for
judgment on the pleadings, all of which the Court denied. See May 12, 2008 Order [Docket
Entry 20]. Hickey later filed a motion for a preliminary injunction as well, which the Court
denied. See Dec. 7, 2009 Order [Docket Entry 61].
3
Hickey has retained counsel to defend against Scott's counterclaims. He is proceeding
pro se in all other respects.
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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
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to offer "evidence on which the jury could reasonably find for the [non-movant]").
DISCUSSION
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.4
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.
4
Hickey, in his various memoranda as well as through a separate motion, seeks to strike a
number of Scott's exhibits in this case. Where the disputed documents are relevant to the Court's
analysis of the parties' motions for summary judgment, the Court will address the requests to
strike throughout this Memorandum Opinion. As for the many other exhibits (or portions
thereof) that Hickey seeks to strike, the Court has not considered them in its analysis, and
Hickey's requests will be denied as moot. The Court notes, however, that even a cursory review
of Hickey's arguments reveals that many of them are frivolous. Indeed, Hickey himself has
submitted as exhibits some of the documents that he now seeks to strike. Compare Scott's Mem.,
Ex. D (EEOC Attorney's Fees Decision), with Hickey's Mem., Ex. 15 (same); compare Scott's
Mem., Ex. F (Scott's Third Supplemental Responses to Hickey's First Set of Interrogatories), with
Hickey's Mem., Ex. 44 (same); compare Scott's Mem., Ex. G (June 11, 2008 letter from Scott's
counsel to Hickey), with Hickey's Mem., Ex. 43 (same).
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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.5
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
5
Because the Court cannot yet determine whether Scott is liable to Hickey under the
contract, it will not resolve any questions concerning the appropriate relief for any breach.
Indeed, except as discussed below, all questions concerning the appropriate remedies for the
unlawful conduct alleged by both parties -- including those relating to fee forfeiture -- are
premature.
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not yet clear whether Scott owes Hickey any money, the Court cannot now determine whether the
imposition of a constructive trust is appropriate.6
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.7
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.
6
Scott also seeks summary judgment on this claim, arguing that it is moot because Scott
has already paid Hickey the total amount of the EEOC's fee award. See Scott's Mem. at 5.
Because Hickey also seeks interest on the attorney's fee award, this potential remedy is not moot.
7
Scott initially brought an additional counterclaim accusing Hickey of violating the D.C.
Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. Scott has moved to
voluntarily dismiss this counterclaim with prejudice. See Scott's Mot. to Voluntarily Dismiss
[Docket Entry 78]; see also Fed. R. Civ. P. 41(a)(2) (following a motion for summary judgment,
and except as the parties agree, "an action may be dismissed at the plaintiff's request only by
court order, on terms that the court considers proper"). Hickey, fearing that dismissal will
undermine his counterclaims and his motion for sanctions, seeks to ensure that he will not be
prejudiced by the voluntary dismissal. See Hickey's Opp'n to Mot. to Voluntarily Dismiss
[Docket Entry 81], at 5-8; Johnson v. Wynne, 239 F.R.D. 283, 285-86 (D.D.C. 2006) ("A court
applying Rule 41(a)(2) therefore must consider whether the plaintiff seeks the motion for
voluntary dismissal in good faith, and whether the dismissal would cause the defendant 'legal
prejudice' . . . ."). The Court will grant Scott's motion. The Court finds the motion to be made in
good faith, and because the Court will consider Scott's prior prosecution of this counterclaim in
addressing Hickey's motions for summary judgment and for sanctions, there will be no prejudice
to Hickey in dismissing it.
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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 ¶¶ 48, 50-53. Hickey seeks summary judgment
on all five claims. Although the Court will address these allegations individually, it will first
resolve three of Hickey's arguments that are common to each of Scott's malpractice claims.
First, Hickey contends that Scott cannot sue him for malpractice because she has waived
her right to do so under the parties' contract. See Hickey's Mem. at 30-31. This contract states
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." Contract ¶ 9. Scott does not dispute that she
failed to contest Hickey's billing statements or his handling of her case "within 30 days of
rendering the statement or the existence of a litigation problem." Instead, Scott argues that
paragraph nine of the agreement is unenforceable, at least to the extent that it precludes her from
bringing a malpractice action. See Scott's Opp'n to Hickey's Mot. for Summ. J. ("Scott's Opp'n")
[Docket Entry 67], at 4.8
8
Hickey asks the Court to strike Scott's opposition to his motion for summary judgment
and/or the Statement of Material Facts Scott submitted in support of that opposition.
Specifically, Hickey contends that Scott's response to the Statement of Material Facts Not in
Dispute that Hickey attached to his motion for summary judgment fails to comply with Local
(continued...)
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The Court agrees. "It is accepted law that 'a promise or other term of an agreement is
unenforceable on grounds of public policy if . . . the interest in its enforcement is clearly
outweighed in the circumstances by a public policy against the enforcement of such terms.'" See
Jacobsen v. Oliver, 555 F. Supp. 2d 72, 79 (D.D.C. 2008) (quoting Restatement (Second) of
Contracts § 178 (1981)). Contractual provisions that violate the attorney's rules of professional
conduct undoubtedly fall into this category. See id. ("It certainly is true that the former clause
could not be enforced in light of D.C. Rule of Professional Conduct 1.2(a), while the latter could
not be enforced in light of D.C. Rule of Professional Conduct 1.16(a)(3)."). The D.C. Rules of
Professional Conduct provide that a lawyer shall not "[m]ake an agreement prospectively
limiting the lawyer's liability to a client for malpractice." D.C. Rules of Professional Conduct
1.8(g)(1); see In re Douglass, 859 A.2d 1069, 1083 (D.C. 2004) ("Rule 1.8(g)(1) flatly prohibits a
lawyer from attempting to limit his malpractice liability to a client for services to be rendered in
the future."). Thus, paragraph nine's waiver provision cannot be enforced to preclude Scott's
malpractice claims.9
Hickey's second argument common to each of Scott's malpractice claims is that the Court
8
(...continued)
Civil Rule 7(h). See Hickey's Reply in Supp. of Mot. for Summ. J. ("Hickey's Reply") [Docket
Entry 70], at 1-2; Hickey's Mot. to Strike [Docket Entry 71], at 1-2. Even assuming that Hickey
is correct, "[a] motion to strike is considered an exceptional remedy and is generally disfavored,"
and the Court will deny the request. United States ex rel. K & R Ltd. P'ship v. Mass. Hous. Fin.
Agency, 456 F. Supp. 2d 46, 53 (D.D.C. 2006) (internal quotation marks omitted).
9
Hickey maintains that "[a] plain reading of the Agreement reveals that it does not
prohibit or waive future malpractice claims." Hickey's Reply at 24-25; see also id. at 5. This
statement is disingenuous. Hickey himself contends that paragraph nine precludes Scott's
malpractice claims: "Because Ms. Scott has waived any right to contest Mr. Hickey's invoices,
her claim of professional negligence . . . is fatally flawed . . . ." See Hickey's Mem. at 32.
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should strike the expert report of employment attorney Kristin Alden, which Scott relies on to
support each of her malpractice allegations. See Scott's Mot., Ex. E ("Alden Report"). Over less
than a page of discussion, Hickey offers at least six reasons why the Court should strike Alden's
report. See Hickey's Opp'n to Scott's Mot. for Summ. J. ("Hickey's Opp'n") [Docket Entry 65], at
3. The Court will deny Hickey's request. Some of Hickey's arguments -- that the expert report
"has nothing to do with [Scott's] counterclaims but only with Hickey's claims," "does not reflect
facts set forth in [Hickey's pleadings]," and "is not sworn to," id. -- are meritless on their face.
And his remaining arguments -- that Alden's report "contains opinions not based on personal
knowledge," "contains conclusions, inferences, speculations and assumptions which are not
permitted," and violates an agreement between the parties that Alden would opine only on certain
topics, id. -- are made without a single citation to Alden's report. "Judges are not like pigs,
hunting for truffles buried in briefs," United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991),
and this Court will not scour Alden's twenty-three page report to determine if Hickey's arguments
have merit. See Arizona v. Shalala, 121 F. Supp. 2d 40, 46 n.4 (D.D.C. 2000) (refusing to
consider an "'asserted but unanalyzed'" motion to strike (quoting Secs. & Exchange Comm'n v.
Banner Fund Int'l, 211 F.3d 602, 613-14 (D.C. Cir. 2000))); see also United States ex rel. K & R
Ltd. P'ship, 456 F. Supp. 2d at 53 ("A motion to strike is considered an exceptional remedy and is
generally disfavored, and the proponent of such a motion must shoulder a formidable burden."
(citations and internal quotation marks omitted)).10
10
Hickey also seeks to strike an affidavit submitted by Alden. See Hickey's Mot. to
Strike at 2-3; Scott's Opp'n, Ex. B (Feb. 19, 2010 Alden Aff.). Most of Hickey's myriad
challenges to Alden's affidavit mirror those he makes to Alden's report, and the Court will reject
them for the same reasons. The Court finds Hickey's remaining objections -- for example, that
(continued...)
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Hickey's final argument common to Scott's malpractice claims is that "in a fee dispute
between an attorney and a client, when the issue concerns the reasonableness of the fee with no
complaint about the lawyer's competence, the claim should not be characterized as legal
malpractice." Hickey's Mem. at 27 n.4 (citing, among other sources, Ronald E. Mallen & Jeffrey
M. Smith, Legal Malpractice, § 1:1 at 6 (4th ed. 2006)); see also Hickey's Reply at 22. This case
does not, however, involve only the reasonableness of Hickey's fees. Rather, it concerns whether
Hickey's legal representation fell short of the standard of care he owed to Scott under the
circumstances of her case. Such claims are properly addressed in a malpractice action. The
Court will therefore turn to Scott's individual theories of malpractice.
1. Hickey's attorney's fees petition to the EEOC
Scott contends that Hickey committed malpractice when, in submitting his petition for
attorney's fees to the EEOC administrative law judge, he "failed to request the hourly rate for
attorneys' fees to be set in accordance with the Laffey Matrix -- the prevailing standard for fees in
EEOC cases." Scott's Second Am. Answer at ¶ 48.11 Hickey's fee petition sought fees at his
contractual rate of $225 per hour, see Scott's Mem., Ex. C (Oct. 5, 2005 Aff. of Robert Hickey) at
10
(...continued)
the affidavit reveals that Alden's conclusions are based on hearsay, see Hickey's Mot. to Strike at
2-3 -- to be meritless.
11
The Laffey Matrix is a matrix of hourly rates for attorneys prepared by the U.S.
Attorney's Office for the District of Columbia. It "provides prevailing market rates based on an
attorney's years of experience," Jackson v. Dist. of Columbia, 696 F. Supp. 2d 97, 104 (D.D.C.
2010), and is "used widely in the District of Columbia to determine the prevailing wages in the
community," Lopez v. Dist. of Columbia, 383 F. Supp. 2d 18, 24 (D.D.C. 2005) (internal
quotation marks omitted); see also Jackson, 696 F. Supp. 2d at 99 n.1 ("The Laffey Matrix has
been described as a fee schedule of presumptively reasonable rates." (internal quotation marks
omitted)).
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¶ 7, which is substantially less than his hourly rate under the Laffey Matrix, see Feb. 19, 2010
Alden Aff., ¶ 49; Alden Report at 17. According to Alden, "it is the standard for lawyers who
practice federal employment discrimination law to use Laffey Matrix rates in fee petitions
regardless of the amount actually charged to the client." Feb. 19, 2010 Alden Aff. at ¶ 47. And,
she states, "Laffey Matrix rates are routinely awarded to attorneys by Administrative Judges in
EEOC cases irrespective of the actual contract rate that exists between the lawyer and the client."
Id. at ¶ 47; see also Scott's Opp'n, Ex. D (Nov. 19, 2009 Alden Aff.), ¶¶ 18-19 (identifying
situations where Alden received Laffey Matrix rates in EEOC cases). Therefore, Alden offers
that "[h]ad Mr. Hickey submitted for Laffey Matrix rates in the Petition for Attorneys' fees, Ms.
Scott would have more likely than not been awarded an additional $84,311.25 in attorneys' fees."
Feb. 19, 2010 Alden Aff. at ¶ 49; see also Scott's Opp'n, Ex. Q (calculation table deriving this
figure).
Hickey disputes that he had any duty to petition for fees using the Laffey Matrix. He
observes that the regulations governing attorney's fee awards in discrimination cases do not
mention the Laffey Matrix. See Hickey's Mem. at 28 (citing 29 C.F.R. § 1614.501). He notes
that the Laffey Matrix is not the only way to ascertain a proper fee award. See id. (citing Novak
v. Capital Mgmt. & Dev. Corp., 496 F. Supp. 2d 156, 159 (D.D.C. 2007) ("[T]here is no standard
rate for attorneys in the District of Columbia."). And he insists that his Agreement with Scott
"appropriately governs the fees to be charged and sought in a fee petition." Hickey's Mem. at 29.
Hickey may be correct that he acted properly in seeking only his contractual rate in his fee
petition to the EEOC. But Alden disputes this, and asserts that the standard of care required him
to seek fees under the Laffey Matrix regardless of his contractual rate. See Feb. 19, 2010 Alden
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Aff. at ¶ 47. This disagreement precludes summary judgment.
Hickey also argues that this malpractice claim cannot succeed because Scott suffered no
damages from his failure to use Laffey Matrix rates in his attorney's fee petition. According to
Hickey, had he "petitioned for reimbursement under the Laffey Matrix, it is he as the attorney[]
who would have benefited thereby, not Ms. Scott, because any greater fee award would have
ultimately been disbursed to him." Hickey's Mem. at 30. Not so. Any increased attorney's fees
award would have been granted to Scott, not Hickey. See 42 U.S.C. § 2000e-5(k) ("[T]he court,
in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . ." (emphasis
added)); see also Hickey's Opp'n at 9 ("Hickey does not dispute that money received by Scott as a
result of the EEOC award goes initially to Scott to the extent she incurred legal fees." (emphasis
removed)). Even if Scott would have used any additional fees to pay the remainder of Hickey's
bill, she still suffered injury from Hickey's failure to request a higher hourly rate in his fee
petition.12
2. Charging Scott for services he never provided
Scott also accuses Hickey of "submitt[ing] billings and [seeking] to recover for services
that he did not actually provide [her]." See Scott's Second Am. Answer ¶ 50. Specifically, Scott
contends that Hickey "billed her for numerous in-person office meetings on occasions in which
she did not, in fact, meet with [Hickey]." Scott's Second Am. Answer ¶ 50. In support, Alden
observes that "[t]here were many billing entries for which I could not locate any corresponding
documents in Mr. Hickey's files that correspond to the billing entries." Feb. 19, 2010 Alden Aff.
12
Hickey further contends that "it would be impossible to predict how, if at all, the
administrative law judge's award of attorneys' fees would have been different had a higher billing
rate been used." Hickey's Reply at 34. That question is for the jury.
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at ¶ 59. Additionally, she states that "[t]here were three in-office meetings with Ms. Scott for
which Mr. Hickey billed . . . , however, there was no corresponding document that the meeting
occurred." Id. at ¶ 60. Hickey's only argument for summary judgment on this claim is that Scott
has waived her malpractice claim. See Hickey's Mem. at 31-32. For the reasons explained
above, this argument fails.
3. Billing Scott for unnecessary work
Scott next asserts that Hickey "spent an inordinate amount of time completing
unnecessary tasks and motions during his representation of [her]." Scott's Second Am. Answer ¶
51. "There can be little doubt that if plaintiff overbilled defendant[] or charged [her] for
unnecessary services, this would constitute professional malpractice and a breach of plaintiff's
fiduciary duty to defendant[]." Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr. Ltd. P'ship,
24 F. Supp. 2d 66, 76 (D.D.C. 1998) (citing D.C. Rule of Professional Responsibility 1.5 cmt. 5
("A lawyer should not exploit a fee arrangement based primarily on hourly charges by using
wasteful procedures.")). Here, Alden extensively details her belief that, while representing Scott,
Hickey engaged in inefficient and duplicative communications, submitted numerous unnecessary
motions and unmeritorious arguments to the EEOC, and performed a substantial amount of work
unnecessary to Scott's case. See Feb. 19, 2010 Alden Aff. at ¶¶ 14-41; Alden Report at 4-16.
And in the EEOC administrative judge's decision awarding Scott attorney's fees, the judge wrote
that Hickey "expended unnecessary time . . . preparing a number of unwarranted, repetitive, and
unsuccessful motions with the presiding EEOC administrative judge(s)." Hickey's Mem., Ex. 15
(EEOC Attorney's Fees Decision) at 5.
Hickey protests that his actions are protected by the judgmental immunity rule, which
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"provides that an informed professional judgment made with reasonable care and skill cannot be
the basis of a legal malpractice claim." Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d 662,
666 (D.C. 2009). He contends that "the case-related tasks" he performed, "which are part and
parcel of his litigation tactics and strategy (including research, motions, and correspondence), are
matters of professional judgment for which he is entitled to immunity and summary judgment."
Hickey's Mem. at 33.
The judgmental immunity rule does not support summary judgment here. The rule
protects strategic decisions, but it "'is conditioned upon the attorney acting in good faith and upon
an informed judgment after undertaking reasonable research of the relevant legal principals and
facts of the given case.'" Biomet, 967 A.2d at 666 (quoting Sun Valley Potatoes, Inc. v. Rosholt,
Robertson & Tucker, 981 P.2d 236, 240 (Idaho 1999)). Thus, attorneys are "still bound to
exercise a reasonable degree of skill and care in all of [their] professional undertakings." Id.
(quoting Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1984)). Here, Alden offers her
opinion that Hickey failed in a variety of ways to meet the standard of care for an employment
attorney. The Court, therefore, cannot conclude as a matter of law that Hickey's actions were all
products of "informed professional judgment made with reasonable care and skill."13
4. Failing to describe the work performed
Scott also argues that Hickey "breached his duty of care when he failed to provide any
description of his services rendered in his monthly bills to [Scott] and merely included the
13
Hickey also contends that this malpractice claim must fail because "Scott cannot
demonstrate any loss was proximately caused by Mr. Hickey completing these tasks because she
has not paid for the (disputed) services rendered." Hickey's Mem. at 34. This argument is
frivolous. Hickey seeks payment for all the work he performed; any unnecessary charges, then,
have damaged Scott by increasing the amount of Hickey's claims against her.
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amount of time spent multiplied by his hourly rate." Scott's Second Am. Answer ¶ 52. It is clear
that Hickey's monthly invoices included only the hours worked on Scott's case each day, the
monthly tally of fees and disbursements, and the total balance due. See, e.g., Scott's Mem., Ex. B
(Feb. 9, 1998 invoice);14 Hickey's Mem., Ex. 11-A (April 23, 2004 invoice). The invoices
offered no description of the work performed, or of who performed it. According to Alden,
Hickey "did not exercise honest professional judgment" by sending Scott such bills, and he thus
"breached his duty of care as Ms. Scott's attorney." Feb. 19, 2010 Alden Aff. ¶ 52.
Hickey responds that his bills fully complied with his contractual obligations to Scott.
See Contract ¶ 6 ("Mr. Hickey will render 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 . . . ."). There is no
question that they did. But as explained above, contractual provisions are unenforceable to the
extent they violate the rules of professional conduct. See Jacobsen, 555 F. Supp. 2d at 79. And
the D.C. Rules of Professional Conduct provide that "[a] lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make informed decisions regarding
representation." D.C. Rule of Professional Conduct 1.4(b); see also Feb. 19, 2010 Alden Aff. ¶
51 ("It is my opinion that in the District of Columbia, it is standard billing practice for lawyers to
provide clients with periodic descriptions of work performed on the client’s behalf.").
Accordingly, if Hickey's bills violated the rules of professional conduct -- and there is a genuine
14
Hickey asks the Court to strike this exhibit because it does not include the invoice's
accompanying cover letter. See Hickey's Opp'n at 2. But Hickey does not suggest that the
omitted cover letter contains any description of the legal work he performed, and therefore the
Court will deny the request.
-16-
dispute of material fact concerning whether they did -- then the fact that they complied with the
parties' agreement does not preclude Scott's malpractice claim.15
Hickey defends his billing format, explaining that he used it "to prevent the disclosure of
confidential, privileged, and strategic information (which might be contained in the individual
entries) if, and when, his billing statements were produced to both the EEOC and DOE in
connection with a future fee petition." Hickey's Mem. at 34-35. Indeed, he maintains that "[t]o
do otherwise would be an ethical violation on Mr. Hickey's part." Id. at 4.
This is absurd. Portions of Hickey's billing statements that revealed litigation strategy or
client confidences would remain privileged even in a subsequent fee petition. See Berliner
Corcoran & Rowe LLP v. Orian, 662 F. Supp. 2d 130, 134 (D.D.C. 2009) ("[T]he weight of
authority holds that communications relating solely to the payment of attorneys' fees are not
covered by the attorney-client privilege unless they reveal confidences about the nature of legal
services rendered."). And speculative concerns about how the attorney-client privilege might
affect a future fee petition do not excuse Hickey from his other ethical obligations.
Finally, Hickey contends that "this aspect of Ms. Scott's negligence claim fails because
she cannot demonstrate that she suffered any loss that was proximately caused by Mr. Hickey's
description of services rendered." Hickey's Mem. at 35. A reasonable jury could conclude,
15
Hickey insists that, even though his bills lacked any description of the work he was
performing, "Ms. Scott was fully aware of what work was being done in her case by the constant
communication and correspondence between the parties." Hickey's Mem. at 4; see also Hickey's
Reply at 4 ("Hickey kept in constant communications with [Scott] by sending her all documents
received or sent to DOE or EEOC in the case . . . ."). This may be true -- the Court need not
address whether such communications fulfilled Hickey's ethical duty to keep Scott reasonably
informed about her case -- but it does not affect the Court's conclusion that paragraph six of
Hickey's contract is unenforceable to the extent that it permits Hickey to violate the professional
rules.
-17-
however, that if Scott had seen descriptions of the work Hickey was performing -- work that
Alden repeatedly describes as "wasteful," see Feb. 19, 2010 Alden Aff. -- she would have
objected to the amount of Hickey's bills. Accordingly, summary judgment is inappropriate.
5. Failing to advocate for full damages
Scott's final allegation of malpractice is that Hickey "failed to advocate for [Scott] to
receive all the damages for which she was entitled to [sic] in her EEOC case." Scott's Second
Am. Answer ¶ 53. Scott has clarified that "she is no longer pursuing a Professional Negligence
claim based on" this allegation. Hickey's Mem., Ex. 44 (Scott's Third Supplemental
Interrogatory Responses), 16. Accordingly, the Court will grant Hickey's motion for summary
judgment on this theory.
B. Breach of Fiduciary Duty
"The requirements for stating a breach of fiduciary duty claim are similar" to those for
malpractice: Scott must show that Hickey "had a fiduciary duty to [her] and violated that duty."
Shapiro, Lifschitz & Schram, 24 F. Supp. 2d at 74.16 Here, Scott contends that Hickey breached
his fiduciary duty to her by "charging her for services that he did not actually provide, failing to
provide competent legal services[,] and violating Rule 1.5 of the District of Columbia Rules of
Professional Conduct." Scott's Second Am. Answer ¶ 58.
Hickey initially argues that summary judgment is appropriate "[b]ecause Ms. Scott's
breach of fiduciary duty claim suffers from the same fatal infirmities as her professional
16
Hickey does not dispute that, as her attorney, he owed Scott a fiduciary duty. Nor could
he. See Shapiro, Lifschitz & Schram, 24 F. Supp. 2d at 74 n.10 ("Attorneys unquestionably
stand in a fiduciary relationship to their clients for matters related to their legal representation of
their clients.")
-18-
negligence claim." Hickey's Mem. at 38; see id. ("Whether framed as professional negligence or
breach of fiduciary duty, Ms. Scott's challenges to the billings are barred by the language of the
Agreement . . . ."); id. at 40 ("[C]ritically absent is any showing that Ms. Scott suffered a loss that
was proximately caused by an alleged violation of the Rules of Professional Conduct."); Macktal
v. Garde, 111 F. Supp. 2d 18, 22 (D.D.C. 2000) (under D.C. law, "if the underlying malpractice
claims fail[], tort and contract claims arising from the same transaction must also fail"). For the
reasons detailed above, this argument is unpersuasive.
Hickey next asserts that Scott cannot succeed on any "fee-related arguments" as she
previously raised them in a complaint about Hickey to the District of Columbia Bar Counsel,
which dismissed her allegations. See Hickey's Mem. at 39; Hickey's Mem., Ex. 2 (Bar Counsel
Decision); see also Hickey's Reply at 5. Hickey is incorrect. The D.C. Bar Counsel must "find
clear and convincing evidence of a violation of the Rules [of Professional Conduct] in order to
sustain a disciplinary proceeding against an attorney." Bar Counsel Decision at 1. But in this
Court, Scott need only establish her malpractice and breach of fiduciary duty claims by a
preponderance of the evidence. The D.C. Bar Counsel's opinion, therefore, has no preclusive
effect here. Cf. $345.00 in United States Currency v. Dist. of Columbia, 544 A.2d 680, 682 n.6
(D.C. 1988) ("[G]iven the difference in the burdens of proof in a criminal and civil proceeding,
collateral estoppel does not bar" a civil action after an acquittal in a criminal trial.").
Hickey also challenges Scott's allegation that he violated D.C. Rule of Professional
Conduct 1.5, which governs the reasonableness of attorney's fees. As Hickey points out, a
violation of the rules of professional conduct "does not per se[] 'constitute a breach of the
attorney's common law fiduciary duty to the client.'" TV Capital Corp. v. Paxson Commc'ns.
-19-
Corp., 894 A.2d 461, 469 (D.C. 2006) (quoting Griva, 637 A.2d at 846-47). Nonetheless, under
D.C. law "a violation of the Code of Professional Responsibility or of the Rules of Professional
Conduct can constitute a breach of the attorney's common law fiduciary duty to the client."
Griva, 637 A.2d at 846-47 (emphasis added); see also Hendry v. Pelland, 73 F.3d 397, 401 (D.C.
Cir. 1996) ("[W]e agree with the Hendrys that their evidence that Pelland violated one of the
rules of the District of Columbia Code of Professional Responsibility was sufficient to support
their claim that he violated his common law fiduciary duty."). Because a jury could find on this
record that Hickey violated the rules of professional conduct -- and under the law such a finding
would be sufficient to establish a breach of fiduciary duty -- summary judgment is inappropriate
on this claim.
III. Hickey's Counterclaims
Both Scott and Hickey have moved for summary judgment on each of Hickey's three
counterclaims. For the reasons explained below, the Court will grant Scott's motion -- and will
deny Hickey's -- for all three.
A. Fraud
To establish a claim for fraud, a plaintiff must show 1) that the defendant knowingly
made a false representation of or willfully omitted a material fact; 2) that the plaintiff intended to
deceive the defendant; 3) that the plaintiff acted in reasonable reliance on that misrepresentation
or willful omission; and 4) that the plaintiff suffered damages as a result of his reliance. See
Estate of Nethken v. Peerless Ins. Co., 978 A.2d 603, 607 (D.C. 2009); Schiff v. AARP, 697
A.2d 1193, 1198 (D.C. 1997). A plaintiff must prove fraud by clear and convincing evidence.
See Estate of Nethken, 978 A.2d at 607.
-20-
Here, Hickey accuses Scott of engaging in well over a dozen instances of fraud during
and after his representation of her. These allegations -- which involve both misrepresentations
and omissions -- stem in large part from statements Scott supposedly made (or failed to make) to
Hickey, and from the existence of Scott's counterclaims in this litigation. Indeed, Hickey's
counterclaim for fraud -- as well as his counterclaim for abuse of process -- is based almost
entirely on his belief that "[e]very aspect of the litigation [before the EEOC] and the present
litigation with Hickey reflect [Scott's] objective not to pay, or delaying payment [sic], to Hickey."
Hickey's Opp'n at 15. Hickey's conviction is unsupported by the record, and the Court will grant
Scott's motion for summary judgment as to this claim.
Many of Scott's alleged "misrepresentations" are not in fact misrepresentations of fact.
"A misrepresentation is an assertion that is not in accord with the facts." Sarete, Inc. v. 1344 U
St. Ltd. P'ship, 871 A.2d 480, 493 (D.C. 2005); see also Restatement (Second) of Torts, § 525(b)
(1977) (it "denote[s] not only words spoken or written but also any other conduct that amounts to
an assertion not in accordance with the truth"). But allegations such as "Ms. Scott falsely refused
to pay $170,095.86 to [Hickey] for services performed by him . . . despite her having signed a
contract to do so," see Hickey's Mem. at 10, do not involve "assertions of fact" at all. See also,
e.g., Hickey's Mem., Jan. 21, 2010 Aff. of Robert Hickey ("Hickey Aff.") ¶ 44(D); id. ¶ 44(N);
id. ¶ 44(I) ("Ms. Scott improperly sought to have Mr. Hickey perform additional future work
without any guarantee of compensation as a condition to resolving her fee dispute . . . ."); id. ¶
44(E) ("Ms. Scott deliberately withheld full or greater payments on invoices when her salary
increased even though she had promised to make larger payments when that occurred."). Nor do
some of Scott's alleged "omissions" concern facts either. See Hickey Aff. ¶ 45(A) (Scott
-21-
withheld "[a]ny bona fide doubt . . . that her contract was not with Mr. Hickey only"); id. ¶ 45(B)
(Scott withheld "[a]ny bona fide doubt . . . that her contract with Mr. Hickey did not continue
beyond April 1998 to March 20, 2006."); see also Hickey's Answer [Docket Entry 23], ¶ 24(C)
(Scott withheld "[a]ny bona fide objection to any invoice"). These allegations thus cannot supply
a cause of action for fraud.
Some of Hickey's other allegations fail because there is no evidence that he reasonably
relied on Scott's alleged misrepresentations. Hickey writes, for example, that "Ms. Scott falsely
claimed that Mr. Hickey had terminated his contract with her in the Fall of 2005 . . . even though
she knew that she had terminated her contract on March 20, 2006." Hickey Aff. ¶ 44(F); see
also, e.g., id. ¶ 44(A) ("Ms. Scott knew she had entered into a contract with Mr. Hickey only,
although she later claimed on November 29, 2005 that she had no contract with him."); id. ¶
44(B). But Hickey does not indicate how he relied on these alleged misrepresentations -- indeed,
there is no evidence that he ever believed them to be true. See Va. Academy of Clinical
Psychologists v. Group Hospitalization and Med. Servs., Inc., 878 A.2d 1226, 1238 (D.C. 2005)
("'[T]he maker of a fraudulent misrepresentation is subject to liability for pecuniary loss suffered
by one who justifiably relies upon the truth of the matter misrepresented . . . .'" (quoting
Restatement (Second) of Torts § 546)).
Hickey also could not have reasonably relied on alleged misrepresentations by Scott in
her counterclaims. Hickey contends that Scott committed fraud by "falsely claim[ing] in her
Counterclaim . . . that she was not provided competent legal service by Mr. Hickey." Hickey Aff.
¶ 44(G); see also id. ¶ 44(H) ("Ms. Scott falsely seeks compensation from Mr. Hickey under the
D.C. Consumer Protection Procedures Act . . . ."); id. ¶ 44(K); id. ¶ 44(L) (alleging that Scott
-22-
"falsely claimed" that Hickey should have sought attorney's fees under the Laffey matrix). But
even assuming that Scott's counterclaims are based on misrepresentations, there is no evidence
that Hickey ever relied on the truth of these misrepresentations. See Va. Academy of Clinical
Psychologists, 878 A.2d at 1238. Quite the opposite, in fact: throughout this litigation Hickey
has consistently denied Scott's counterclaims.
Hickey further alleges that "[a]fter Ms. Scott terminated Mr. Hickey, she had falsely
informed him that he was free to seek additional compensation from the EEOC as part of her
appeal [of the EEOC's attorney's fee award]. However, she did not appeal and instead opposed
Mr. Hickey's appealing on his own." Hickey Aff. ¶ 44(M); see also id. ¶ 44(J). This allegation is
based on a letter Scott wrote to Hickey in which she stated that she planned to represent herself
in any appeal she took from the EEOC's attorney's fees award. See Hickey's Mem., Ex. 32 (Oct.
5, 2006 letter from Scott to Hickey) ("I am taking a few days and will decide by mid October,
2006, if I'll appeal the Decision. . . . At this time, I am inclined to represent myself."). In this
letter, Scott also told Hickey that, even if she appealed without counsel, "[y]ou may file your
arguments/briefs as an interested party." Id. Scott ultimately did not appeal, and when Hickey
petitioned the EEOC to intervene, the agency concluded that he "ha[d] no standing to contest the
[Administrative Law Judge's] award of attorney's fees apart from [Scott's] right to appeal the
matter to the Commission, which [she] chose not to do in this case." Hickey's Mem., Ex. 16
(EEOC appeal decision), at 5.
As a fraud claim, this allegation, too, fails because Hickey could not have reasonably
relied on Scott's statement that he, as an interested party, could file his own independent brief
with the EEOC appeals panel. Indeed, it takes chutzpah for Hickey, a lawyer, to argue that he
-23-
reasonably relied on the legal opinions of Scott, a social worker, to his detriment.
Finally, Hickey contends that Scott fraudulently failed to tell him that she received, and
began spending, her Title VII damages award. See Hickey Aff. ¶ 44(O). He also accuses Scott
of fraudulently concealing "[h]er financial inability to pay for the legal services which had been
rendered by Mr. Hickey." Id. ¶ 45(C). Hickey cannot sustain his claims for fraud based on these
alleged omissions, however. Even assuming that Scott failed to disclose this information, there
is no evidence in the record -- and certainly not the requisite "clear and convincing evidence" --
that she did so in a nefarious attempt to deceive Hickey. See Estate of Nethken, 978 A.2d at 607
(plaintiff must establish "intent to deceive" by "clear and convincing evidence"). Hickey's
speculation to the contrary is insufficient to establish fraud. See Bennett v. Kiggins, 377 A.2d
57, 60 (D.C. 1977) (affirming grant of summary judgment where "fraud could only be discerned,
if at all, by means of impermissible speculation").17
In sum, Hickey's allegations of fraud each fail to satisfy at least one of the elements of
that tort -- and many fail to satisfy more. Accordingly, the Court will deny Hickey's motion for
summary judgment, and will grant Scott's motion for summary judgment, as to this counterclaim
for fraud.18
17
Although his submissions are less than clear, it appears that Hickey also accuses Scott
of fraud in that she "clearly never intended to fully pay Mr. Hickey from the time of
commencement of their relationship." Hickey's Mem. at 13; see also id. at 10 (Hickey "believes
that Ms. Scott from the start of their relationship never intended to fully compensate him");
Hickey's Opp'n to Scott's Mot. for Sanctions [Docket Entry 76], at 8 ("[I]f[,] as Hickey believes,
Scott prior to the inception of the contract had the intention to never pay Hickey what was due
him, she committed fraud."). Once again, this allegation stands on little more than Hickey's
speculation, which cannot sustain his charge of fraud.
18
Hickey also charges Scott with committing fraud upon the Court. Specifically, he
(continued...)
-24-
B. Abuse of Process
Abuse of process "lies where the legal system 'has been used to accomplish some end
which is without the regular purview of the process, or which compels the party against whom it
is used to do some collateral thing which he could not legally and regularly be required to do.'"
Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992) (quoting Morowitz v. Marvel, 423 A.2d
196, 198 (D.C. 1980)). "There are two essential elements to an abuse of process claim: '(1) the
existence of an ulterior motive; and (2) an act in the use of process other than such as would be
proper in the regular prosecution of the charge.'" Houlahan v. World Wide Ass'n of Specialty
Programs & Schs, 677 F. Supp. 2d 195, 199 (D.D.C. 2010) (quoting Hall v. Hollywood Credit
Clothing Co., 147 A.2d 866, 868 (D.C. 1959)) (emphasis removed). "Thus, in addition to
ulterior motive, one must allege and prove that there has been a perversion of the judicial process
and achievement of some end not contemplated in the regular prosecution of the charge."
Morowitz, 423 A.2d at 198; see, e.g., Restatement (Second) of Torts § 682, Illustration 2 ("A
obtains a judgment against B for a debt owed by him. After the debt has to his knowledge been
paid, A takes out execution on the judgment. A is subject to liability to B for abuse of process.").
Hickey alleges that a number of factual contentions and legal allegations Scott made in
her various pleadings in this case were made "for bad faith, or for harassment purpose [sic]," or
"recklessly," and thus constitute abuse of process. Hickey's Mem. at 17. Specifically, Hickey
contends that some of the statements and claims in these pleadings "lack any merit." See, e.g.,
18
(...continued)
contends that even though Scott was represented by counsel, she submitted her initial pleadings
in this case pro se "in order that she could improperly get the technical advantages given to a Pro
Se defendant." Hickey Aff. ¶ 56; see also Hickey's Mem. at 13. The Court has reviewed
Hickey's allegations and finds them baseless.
-25-
Hickey's Mem. at 16 ("[Scott] initially claimed that Mr. Hickey had terminated the Agreement in
Fall 2005, despite a letter from her dated Mar. 20, 2006 specifically terminating him."). Others,
he says, "are frivolous." See, e.g., id. at 17 ("[Scott] claimed that Mr. Hickey should have sought
an additional $84,000 from DOE based on her interpretation of the Laffey Matrix even though
their Agreement did not require the use of the Laffey Matrix."). And still others, Hickey writes,
"have no basis in law." See, e.g., id. ("Her claim under [the D.C. Consumer Protection
Procedures Act] is not applicable to Mr. Hickey as a practicing attorney."); Hickey's Answer at
pp. 17-20.
The Court need not linger on this counterclaim, which is frivolous. Hickey insists that
"[Scott's] actions in this case, particularly her early counterclaims[,] must be viewed as
blackmailing Mr. Hickey into dropping his litigation." Hickey's Mem. at 18. On this record, no
reasonable jury could so find. Even assuming that Scott took various legal positions in this
litigation to evade paying Hickey -- and many of the positions Hickey challenges were taken by
Scott while defending herself pro se and abandoned once she obtained counsel -- an ulterior
motive by itself is insufficient to sustain a claim for abuse of process. See Scott v. Dist. of
Columbia, 101 F.3d 748, 755 (D.C. Cir. 1996) ("As the Restatement of Torts makes clear, the
fact that a person acts spitefully, maliciously, or with an ulterior motive in instituting a legal
proceeding is insufficient to establish abuse of process."); Morowitz, 423 A.2d at 198. And
despite Hickey's speculation, there is no evidence that, through this litigation, Scott has
"achieve[d] . . . some end not contemplated in the regular prosecution of the charge," or has
engaged in a "perversion of the judicial process." Morowitz, 423 A.2d at 198. Hence, summary
judgment is appropriate for Scott on this counterclaim.
-26-
C. Conversion
In his final counterclaim, Hickey contends that Scott committed conversion by failing to
turn over immediately the EEOC's attorney's fee award, and by failing to pay the interest accrued
on this amount. See Hickey's Answer at p.21; see also Choharis v. State Farm Fire & Cas. Co.,
961 A.2d 1080, 1089 n.13 (D.C. 2008) ("The essence of a conversion is a wrongful taking or a
wrongful retention of property after a rightful possession." (internal quotation marks omitted)).
But any entitlement Hickey had to these fees derived from the parties' agreement, not from the
fee award itself. And "'[f]ailure by a contracting party to pay the contract price or debt . . . is not
conversion but merely breach of contract.'" Id. (quoting Brand Iron, Inc. v. Koehring Co., 595 F.
Supp. 1037, 1040 (D. Md. 1984)); see also Brand Iron, 595 F. Supp. at 1040 ("If there is no
Maryland case that has specifically stated this distinction, it is probably because it is so generally
understood it is not frequently litigated."). Accordingly, Hickey's counterclaim for conversion
fails.
IV. The Parties' Motions for Sanctions
Arguing that Hickey's counterclaims for fraud and abuse of process are "patently
frivolous," Scott seeks sanctions against him pursuant to Federal Rule of Civil Procedure 11.
Scott's Mot. for Sanctions [Docket Entry 73], at 1. "Rule 11 imposes a duty on attorneys to
certify that they have conducted a reasonable inquiry and have determined that any papers filed
with the court are well-grounded in fact, legally tenable, and not interposed for any improper
purpose." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990) (internal quotation marks
omitted). The rule's text provides, in relevant part, that
[b]y presenting to the court a pleading, written motion, or other paper . . . an
-27-
attorney or unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances:
...
(2) the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing
law or for establishing new law.
Fed. R. Civ. P. 11(b).
Rule 11 permits courts to award sanctions for violations of Rule 11(b). See Fed. R. Civ.
P. 11(c)(1) ("If, after notice and a reasonable opportunity to respond, the court determines that
Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law
firm, or party that violated the rule or is responsible for the violation."). "'The test [for sanctions]
under Rule 11 is an objective one: that is, whether a reasonable inquiry would have revealed that
there was no basis in law or fact for the asserted claim. The Court must also take into
consideration that Rule 11 sanctions are a harsh punishment, and what effect, if any, the alleged
violations may have had on judicial proceedings.'" Scruggs, 258 F.R.D. at 180-81 (quoting Sharp
v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 100 (D.D.C. 2007)).
The Court agrees with Scott that sanctions are appropriate here. Hickey's counterclaims
for fraud and abuse of process are frivolous. Any reasonable attorney would have recognized,
after the completion of discovery, that the record lacks any evidence of fraud or abuse of process.
And any reasonably attorney would have realized, after even a cursory inquiry, that those claims
are not "warranted by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law." See Fed. R. Civ. P. 11(b)(2). Yet not only
has Hickey vigorously defended his meritless counterclaims, but he has even sought summary
-28-
judgment on them.19
Hickey's persistent prosecution of these frivolous counterclaims is consistent with his
overall approach to this litigation. See Atkins v. Fischer, 232 F.R.D. 116, 129 (D.D.C. 2005) ("It
has long been held that in considering the implementation of sanctions against a party or a
counsel to a litigation, a district court may consider all the circumstances surrounding the alleged
violation."). For one, Hickey's submissions do not reflect the due care that this Court expects
from an experienced member of the bar: his filings are filled with often-inaccurate citations to
irrelevant caselaw, and include innumerable and blatant typographical and grammatical errors
that even a cursory proofread should catch. More importantly, this is not the first time the Court
has criticized Hickey's behavior. Early in this action, the Court chastised Hickey for "bickering
over technical pleading requirements" and for "over-litigation." May 12, 2008 Order at 2, 3 n.1.
The Court later reiterated its frustration with "Hickey's frequent filings and general litigation
strategy." August 19, 2009 Order [Docket Entry 59], at 1. Yet Hickey's memoranda reveal that
he has consistently failed to heed the Court's warnings; his counterclaims for fraud and abuse of
process are merely the most egregious examples. Accordingly, the Court will grant Scott's
motion for sanctions pursuant to Federal Rule of Civil Procedure 11.20
19
Scott does not seek sanctions with respect to Hickey's counterclaim for conversion.
20
Hickey's opposition to Scott's motion for sanctions largely tracks the arguments he
makes in his summary judgment briefing, and the Court will not reiterate its discussion of those
points here. Hickey also contends that Scott's motion should be denied because of several
technical deficiencies -- for example, that it is duplicitive of her earlier briefing, that it does not
adequately describe the conduct that allegedly violates Rule 11, that it does not provide a specific
accounting of the attorney's fees and costs sought, and that Scott failed to meet and confer before
filing it. See Hickey's Opp'n to Scott's Mot. for Sanctions at 2-5. None of these objections is
persuasive. Nor does the Court agree, as Hickey urges, that it "should treat Scott's failure to file a
(continued...)
-29-
There remains the question of what sanctions are appropriate in this case. Rule 11
sanctions "must be limited to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated." Fed. R. Civ. P. 11(c)(4). "The sanction may include
nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and
warranted for effective deterrence, an order directing payment to the movant of part or all of the
reasonable attorney's fees and other expenses directly resulting from the violation." Id. Courts
possess "virtually untrammeled" discretion in fixing the amount of sanctions to be imposed for
Rule 11 violations, provided that the sanctions are "appropriate to the facts of the case." Hilton
Hotels Corp. v. Banov, 899 F.2d 40, 46 (D.C. Cir. 1990) (internal quotation marks omitted).
In view of the duration, pattern, and scope of Hickey's sanctionable conduct, the Court
concludes that monetary sanctions are necessary to deter further violations of Rule 11. Hickey's
counterclaims for fraud and abuse of process required significant expenditures of time, both by
the Court and by Scott's counsel. Given the amount of work created by these two plainly
meritless counterclaims, the Court concludes that the appropriate sanction is to require Hickey to
pay for Scott's reasonable attorney's fees incurred -- following the completion of discovery -- in
defending against those counterclaims. Hickey must also pay for Scott's reasonable attorney's
fees incurred in seeking these sanctions.21
20
(...continued)
Reply [in support of her motion for summary judgment] as a withdrawal of" that motion, and as
being inconsistent with her motion for sanctions. Id. at 2.
21
Rule 11(c)(5)(a) prohibits courts from imposing monetary sanctions against "a
represented party" for violations of Rule 11(b)(2). Hickey is proceeding pro se on his
counterclaims for fraud and abuse of process, and thus is not "a represented party" for purposes
of this sanctions award. The Court's discussion of Hickey's sanctionable conduct, and of
(continued...)
-30-
Along with his opposition to Scott's motion for sanctions, Hickey has also moved for
sanctions pursuant to Rule 11 and 28 U.S.C. § 1927. Hickey contends that many, if not most, of
the legal positions taken by Scott and her counsel throughout this litigation are sanctionable. See
Hickey's Opp'n to Scott's Mot. for Sanctions at 11-21. Hickey's motion is baseless. The Court
has thoroughly reviewed Scott's numerous submissions to the Court -- including her now-
withdrawn counterclaim under the D.C. Consumer Protection Procedures Act. Based on that
review, the Court concludes that none of Scott's filings were "presented for any improper
purpose"; that "the claims, defenses, and other legal contentions" therein "are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or
for establishing new law"; and that "the factual contentions" they include "have evidentiary
support." See Fed. R. Civ. P. 11(b)(1)-(3). The Court further concludes that neither Scott nor
her attorneys have "multiplie[d] the proceedings in [this] case unreasonably and vexatiously."
See 28 U.S.C. § 1927. Accordingly, the Court will deny Hickey's motion for sanctions.
CONCLUSION
For the reasons described above, the Court will grant in part and deny in part both
Hickey's motion for summary judgment and Scott's motion for partial summary judgment. The
Court will also deny Hickey's motion to strike, will grant Scott's motion to voluntarily dismiss,
will grant Scott's motion for sanctions, and will deny Hickey's motion for sanctions. A separate
Order accompanies this Memorandum Opinion.
21
(...continued)
Hickey's other behavior during this litigation, does not apply to Hickey's defenses against Scott's
counterclaims, for which Hickey is represented by counsel.
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/s/
JOHN D. BATES
United States District Judge
Dated: September 16, 2010
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Hickey v. Scott
Combined Opinion