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******************************************************
ANDREA MEYERS v. LIVINGSTON, ADLER, PULDA,

MEIKLEJOHN AND KELLY, P.C.

(SC 18996)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Vertefeuille, Js.

Argued October 22, 2013—officially released April 1, 2014

Thomas P. Willcutts, for the appellant (plaintiff).

Proloy K. Das, with whom were Bernard F. Gaffney

and, on the brief, Richard F. Banbury, for the appellee (defendant).
Opinion

ZARELLA, J. The principal issue in this appeal is

whether allegations that a law firm breached its duty

of undivided loyalty to a client and failed to follow

the client’s instructions regarding the prosecution of a

lawsuit sound in breach of contract, to which a six year

statute of limitations applies, or in legal malpractice,

to which a three year statute of limitations applies.

The plaintiff, Andrea Meyers, commenced this action

against the defendant, Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., alleging breach of contract on

the ground that the defendant, a law firm, pursued the

interests of another client in derogation of the plaintiff’s

interests and did not follow the plaintiff’s wishes and

instructions when it represented her in a prior lawsuit

against other parties. Notwithstanding the plaintiff’s

breach of contract allegations, the trial court characterized the allegations as sounding in legal malpractice and

granted the defendant’s motion for summary judgment,

reasoning that the action was barred by the three year

statute of limitations applicable to legal malpractice

claims. The plaintiff appealed to the Appellate Court,

which affirmed the trial court’s judgment. Meyers v.

Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134

Conn. App. 785, 793, 41 A.3d 674 (2012). On appeal to

this court, the plaintiff claims that the Appellate Court

improperly affirmed the trial court’s judgment because

her claim sounded in breach of contract, and, therefore,

it was not barred by the three year statute of limitations

applicable to legal malpractice claims. The defendant

responds that the trial court correctly characterized the

plaintiff’s claim as sounding in legal malpractice and

that the Appellate Court properly affirmed the trial

court’s judgment. We agree with the defendant and,

accordingly, affirm the judgment of the Appellate Court.

The following relevant facts are set forth in the Appellate Court’s opinion. ‘‘The defendant represented the

plaintiff in an action against Shek Hong, Joanne Hong,

Hontek Corporation and T.C. Specialty Products, Inc.

While representing the plaintiff in that action, the defendant agreed to represent another client, Diane Thibodeau, who had similar claims against the same parties.

The defendant joined the claims of the plaintiff and

Thibodeau into a single legal action. On December 14,

1999, a settlement of the litigation was reported on the

record. The terms of the settlement were reviewed in

open court, and the plaintiff was canvassed by the

court.1

In February, 2000, the [Hongs and Hontek Corporation] filed a motion to enforce the settlement agreement because the plaintiff had declined to sign a release.

By motion dated February 22, 2000, the defendant

sought to withdraw its appearance on behalf of the

plaintiff.2 On February 25, 2000, the plaintiff executed

the settlement agreement and release. The defendant

received the settlement check and, after deducting a
portion for attorney’s fees and/or expenses owed, ultimately remitted the balance to the plaintiff.

‘‘The plaintiff served [the defendant with] a one count

complaint on February 21, 2006. The plaintiff claimed

that the defendant was not entitled to [attorney’s fees]

because its representation was unprofessional. She

alleged that the defendant ‘breached its contract duties’

to her by bringing about a settlement of the prior action

in furtherance of Thibodeau’s interests and against the

interests of the plaintiff. The defendant filed an answer

and special defenses, in which it asserted, inter alia,

that the action was barred by the statute of limitations.

‘‘The defendant filed a motion for summary judgment

on the ground that the plaintiff’s claim sounded in tort

and was barred by the applicable three year statute of

limitations; General Statutes § 52-577; or, in the alternative, that it was barred by the six year statute of limitations for contract claims. General Statutes § 52-576. The

court initially denied the defendant’s motion, finding

that the action, which was served on February 21, 2006,

was initiated within the statute of limitations for contract claims, which began to run on February 25, 2000,

when the plaintiff executed the settlement agreement

in the underlying action.

‘‘In January, 2010, the court granted the defendant’s

motion to reargue the denial of its motion for summary

judgment. At reargument, the defendant argued that the

plaintiff’s complaint sounded in tort, not contract. The

court vacated its prior ruling in which it had denied the

defendant’s motion for summary judgment and granted

the motion for summary judgment, reasoning that the

complaint sounded in tort and that the three yearlimitations period applicable to tort actions had run. The

court additionally found that if it were a contract action,

it still [had] not [been] commenced within the six year

statute of limitations because the statute began to run

on December 14, 1999, the date on which the alleged

injury was inflicted, more than six years before the

action was brought in February, 2006.

‘‘In June, 2010, the plaintiff filed a motion to reargue

the court’s granting of the defendant’s motion for summary judgment. After reconsideration of the parties’

arguments, the court denied the relief requested and

affirmed its decision granting the defendant’s motion

for summary judgment. The court determined that the

complaint claimed both legal malpractice and breach

of contract and that because the plaintiff was fully

aware of her claims by December 14, 1999, but did not

bring the action until 2006, her claim was barred by both

the three year legal malpractice and six year contract

statutes of limitations.’’ (Footnotes altered.) Meyers v.

Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,

supra, 134 Conn. App. 786–88.

The plaintiff appealed to the Appellate Court, which
affirmed the trial court’s judgment. Id., 793. Judge

Beach, writing for the majority, concluded that the trial

court properly had determined that the plaintiff’s claim

did not sound in breach of contract because it was

not based on an allegation that the defendant had not

obtained a specific result or performed a specific task.

Id., 791. Rather, the gravamen of the complaint was

that the defendant had breached its professional duties,

which fit squarely within the definition of a legal malpractice claim and thus was governed by the three year

statute of limitations applicable to such claims. Id.,

792–93.

Judge Lavine concurred separately, concluding that

the complaint sounded in legal malpractice and breach

of contract, and that both of the applicable statutes of

limitations had expired. See id., 794 (Lavine, J., concurring). In his view, the contract claim had accrued more

than six years prior to the plaintiff’s commencement

of the action in 2006 because the plaintiff was aware,

prior to December 14, 1999, that Thibodeau had been

joined with her as a plaintiff despite the plaintiff’s objection, that the plaintiff would be required to settle for

less money even though her case was stronger than

Thibodeau’s, and that the defendant’s awareness of this

conflict of interest had caused it to terminate its representation of the plaintiff.3 See id., 793–94 (Lavine, J.,

concurring).

Judge Bishop, like Judge Lavine, concluded that the

complaint sounded in both legal malpractice and breach

of contract and that the statute of limitations had run

on the legal malpractice claim. See id., 796, 797 n.2

(Bishop, J., dissenting). He concluded, however, that

a determination could not be made as to whether the

statute of limitations had run on the contract claim

because a question of fact remained as to when the

claim had accrued. See id., 799–800 (Bishop, J., dissenting). Judge Bishop thus concluded that the judgment should be reversed and the case remanded for

further proceedings so that the trial court could make

the factual findings necessary to resolve that issue. Id.,

799–801 (Bishop, J., dissenting).

We subsequently granted the plaintiff’s petition for

certification to appeal from the Appellate Court’s judgment.4 Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 305 Conn. 920, 920–21, 47 A.3d

881 (2012). On appeal to this court, the plaintiff claims

that the allegations in the complaint, the evidence

adduced in support of the summary judgment motion,

and the applicable case law establish that her claim

sounds in breach of contract rather than in legal malpractice and that she commenced the action before the

applicable statute of limitations had run. We disagree

with the plaintiff that her claim sounds in contract, and,

therefore, we do not reach the issue of whether the

claim was brought within the six year statute of limita-
tions applicable to contract claims.

As a preliminary matter, we set forth the standard

of review. ‘‘Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law. . . . The scope of our

appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When

. . . the trial court draws conclusions of law, our

review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

‘‘In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the

absence of any genuine issue [of] material facts which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law . . . and the party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact.’’ (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 389, 54 A.3d

532 (2012). In addition, interpretation of the pleadings,

which is required in the present case, is always a question of law over which our review is plenary. See, e.g.,

Grenier v. Commissioner of Transportation, 306 Conn.

523, 536, 51 A.3d 367 (2012).

With respect to the governing legal principles, it is

well established that claims may be brought against

attorneys sounding in contract or in tort, and that

‘‘[s]ome complaints state a cause of action in both contract and tort.’’ Stowe v. Smith, 184 Conn. 194, 199, 441

A.2d 81 (1981); see also Krawczyk v. Stingle, 208 Conn.

239, 245, 543 A.2d 733 (1988). ‘‘[O]ne cannot bring an

action [under both theories, however] merely by couching a claim that one has breached a standard of care

in the language of contract. . . . [T]ort claims cloaked

in contractual language are, as a matter of law, not

breach of contract claims.’’ (Citations omitted; internal

quotation marks omitted.) Weiner v. Clinton, 106 Conn.

App. 379, 383, 942 A.2d 469 (2008). To ensure that plaintiffs do not attempt to convert negligence claims into

breach of contract claims ‘‘by talismanically invoking

contract language in [the] complaint’’; Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001); reviewing

courts may ‘‘pierce the pleading veil’’ by looking beyond

the language used in the complaint to determine the

true basis of the claim. Id., 262–63.

‘‘Whether [a] plaintiff’s cause of action is one for

malpractice [or contract] depends upon the definition

of [those terms] and the allegations of the complaint.’’

Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221

(1984). ‘‘Malpractice is commonly defined as the failure
of one rendering professional services to exercise that

degree of skill and learning commonly applied under

all the circumstances in the community by the average

prudent reputable member of the profession with the

result of injury, loss, or damage to the recipient of those

services . . . .’’ (Footnote omitted; internal quotation

marks omitted.)Id. The elements of a breach of contract

claim are the formation of an agreement, performance

by one party, breach of the agreement by the other

party, and damages. Maloney v. Connecticut Orthopedics, P.C., 47 F. Supp. 2d 244, 249 (D. Conn. 1999); see

also American Express Centurion Bank v. Head, 115

Conn. App. 10, 15–16, 971 A.2d 90 (2009).In other words,

‘‘[a]n action in contract is for the breach of a duty

arising out of a contract . . . [whereas] an action in

tort is for a breach of duty imposed by law.’’ Gazo v.

Stamford, supra, 255 Conn. 263; see also W. Keeton et

al., Prosser and Keeton on the Law of Torts (5th Ed.

1984) § 92, pp. 655–56.

In determining whether a claim sounds in breach of

contract or in tort, we are mindful of the well established principle that an independent claim of tortious

conduct may arise in the context of a contractual relationship. See, e.g., Gazo v. Stamford, supra, 255 Conn.

263 (‘‘[i]t is true, of course, that out of a contractual

relationship a tort liability, as in negligence, may arise’’

[internal quotation marks omitted]); Neiditz v. Morton

S. Fine & Associates, Inc., 199 Conn. 683, 688, 508 A.2d

438 (1986) (‘‘a defendant may be liable in negligence

for the breach of duty which arises out of a contractual

relationship’’); Johnson v. Flammia, 169 Conn. 491, 496,

363 A.2d 1048 (1975) (‘‘[e]ven though there may not be a

breach of contract, liability may arise because of injury

resulting from negligence occurring in the course of

performance of the contract’’); Dean v. Hershowitz, 119

Conn. 398, 409, 177 A. 262 (1935) (‘‘[w]here there is a

precedent relationship, all that is necessary to furnish

a basis for an action of negligence is that there be

present the elements necessary to establish such a

cause of action, and if that is so, that that relationship

is one of contract is no sound reason why the action

should not lie’’). Accordingly, the fact that the contract

in the present case required the defendant to provide

the plaintiff with legal representation and that the plaintiff was dissatisfied with the defendant’s performance

does not necessarily mean that her claim of improper

representation sounds in breach of contract.

Although the issue of whether a claim of attorney

misconduct sounds in breach of contract or in tort

appears to be one of first impression for this court, we

previously have concluded that a claim alleging that

the defendant attorney violated the specific instructions

of his client sounded in breach of contract. See Stowe

v. Smith, supra, 184 Conn. 195, 198–99 (allegations that

defendant failed to prepare will in accordance with

decedent’s instructions regarding disposition of prop-
erty to beneficiaries sounded in breach of contract).

Other Connecticut courts similarly have determined

that an attorney’s failure to comply with the specific

provisions of a contract sounded in breach of contract.

See Connecticut Education Assn., Inc. v. Milliman

USA, Inc., 105 Conn. App. 446, 459–60, 938 A.2d 1249

(2008) (allegations that defendant agreed to maintain

plaintiffs’ pension plan in compliance with Internal Revenue Code and Employment Retirement Income Security Act but failed to provide competent and professional services necessary to maintain pension plan

in good standing as qualified, defined benefit pension

plan sounded in breach of contract because allegations

referred to defendant’s failure to satisfy contractual

obligation to ensure compliance with federal law); Hill

v. Williams, 74 Conn. App. 654, 659–60, 813 A.2d 130

(allegations that defendant agreed to represent plaintiff

in civil action against former husband, in appealrelating

to divorce, in proceedings to obtain support and sole

custody of children, and in legal malpractice action

against her former divorce attorney, but that he failed

to proceed in several of those actions and refused to

take critical steps in others, sounded in breach of contract, in part because defendant’s refusal to perform

actions for which he was retained suggested intentional

rather than negligent conduct), cert. denied, 263 Conn.

918, 822 A.2d 242 (2003); Mac’s Car City, Inc. v.

DeNigris, 18 Conn. App. 525, 527, 529, 559 A.2d 712

(allegations that defendant agreed to represent plaintiff

in lawsuit and entered appearance, but failed to defend

lawsuit and failed to take action to open default judgment following failure to plead or to have judgment set

aside, sounded in breach of contract), cert. denied, 212

Conn. 807, 563 A.2d 1356 (1989). The decisions in these

cases are consistent with the general principle that ‘‘[a]n

action in contract is for the breach of a duty arising

out of a contract’’; Gazo v. Stamford, supra, 255 Conn.

263; because the attorney in each case failed to perform

the tasks that were required under the contract. See 1

R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000)

§ 8.6, p. 818 (‘‘[t]he prevailing rule is that there is no

cause of action for breach of an express contract unless

the wrong sued for is breach of a specific promise’’).

Correspondingly, Connecticut courts have concluded

that claims alleging that the defendant attorney had

performed the required tasks but in a deficient manner

sounded in tortratherthan in contract. See, e.g., Weiner

v. Clinton, supra, 106 Conn. App. 384–86 and n.5 (allegations that defendant agreed to use reasonable care, skill

and diligence in providing legal services to plaintiffs

but failed to seek stay of action based on agreement

to arbitrate, failed to seek additional extensions of time

to comply with discovery deadlines, failed to object

to certain discovery requests, failed to comply with

discovery requests in timely manner, and failed to properly advise defendants of status of proceedings,
resulting in default judgment against plaintiff and monetary damages, sounded in legal malpractice because

complaint contained no allegations that defendant had

failed or refused to perform specific actions required

by contract); Pelletier v. Galske, 105 Conn. App. 77, 79,

83, 936 A.2d 689 (2007) (allegations that parties entered

into contract pursuant to which defendant accepted fee

from plaintiff for assistance in purchasing condominium unit but that defendant failed to advise plaintiff

that condominium unit was affordable housing unit subject to resale price limitations for twenty years, failed

to obtain signed statement from plaintiff that defendant

had explained affordable housing covenants applicable

to condominium unit, and failed to explain affordable

housing covenants sounded in legal malpractice

because complaint alleged negligence and breach of

requisite standard of care in performance of legal services), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008);

Alexandru v. Strong, 81 Conn. App. 68, 70, 78–80, 837

A.2d 875 (allegations that defendant entered into

retainer agreement providing that he would represent

plaintiff in federal action against former employer but

that he filed negligent infliction of emotional distress

claim in untimely manner, which resulted in federal

court’s granting of motion for summary judgment for

employer on that claim, sounded in legal malpractice

because essence of claim was defendant’s failure to use

due diligence and breach of professional standard of

care), cert. denied, 268 Conn. 906, 845 A.2d 406 (2004);

Caffery v. Stillman, 79 Conn. App. 192, 194, 198, 829

A.2d 881 (2003) (allegations that defendant ‘‘agreed to

pursue vigorously all legalrights and remedies available

to the plaintiff for damages sustained as a result of his

. . . work-related injuries and to diligently represent,

protect and defend the plaintiff’s rights to a full and

fair economic recovery, and to provide the plaintiff with

competent and accurate advice concerning his legal

rights and remedies in connection therewith,’’ but that

defendant incorrectly informed plaintiff in conjunction

with settlement of workers’ compensation claim that

he could bring separate action against city for negligence and promised to help plaintiff do so, constituted

claim of legal malpractice because plaintiff had alleged

damages arising from defendant’s failure to meet minimum standard of care when defendant gave plaintiff

incorrect legal advice, not breach of promise to take

specific action against city [internal quotation marks

omitted]); Shuster v. Buckley, 5 Conn. App. 473, 474,

478, 500 A.2d 240 (1985) (allegations that defendant

was retained to represent plaintiff in pending criminal

matters but failed to file motion to withdraw plaintiff’s

guilty plea prior to imposition of sentence sounded

in legal malpractice, in part because allegations that

defendant failed to use due diligence in performing legal

services were couched in terms of negligent conduct).

The decisions in these cases are consistent with the

well established principle that ‘‘an action in tort is for
a breach of duty imposed by law.’’ Gazo v. Stamford,

supra, 255 Conn. 263.

Having reviewed the foregoing cases, we conclude

that the plaintiff’s allegations in the present case do

not sound in breach of contract. The complaint alleges

that the defendant breached its contractual duties to

the plaintiff when ‘‘(a) it pursued the interests of . . .

Thibodeau in derogation of the interests, wishes and

instructions of the plaintiff in bringing about a settlement of the lawsuit; and/or, (b) it failed and/or refused

to follow the express wishes and instructions of the

plaintiff to reject the settlement offer in the lawsuit and

to continue to prosecute the lawsuit.’’5 Neither allegation, however, refers to the violation of a specific contractual provision. The only substantive provision in

the contract unrelated to compensation states: ‘‘I, [the

plaintiff], do hereby retain the [defendant] law firm . . .

to represent me in connection with my claims against

Hontek Corporation, Shek Hong and Joanne Hong in

litigation in Connecticut Superior Court.’’6 The contract

does not prohibit the defendant from representing any

other person with similar claims against the same parties, does not refer to any details of the litigation over

which the plaintiff wished to establish control, and contains no specific instructions as to how the plaintiff

wanted the defendant to proceed in its representation

of her.

To the extent the plaintiff suggests that her complaint

alleges breach of contract simply because the defendant

did not represent her interests and wishes, this claim

has no legal support. Although we recognize that ‘‘[t]he

modern trend, which is followed in Connecticut, is to

construe pleadings broadly and realistically,ratherthan

narrowly and technically’’; (internal quotation marks

omitted) Hill v. Williams, supra, 74 Conn. App. 656;

no Connecticut court has deemed an allegation of this

general nature sufficient to constitute a breach of contract claim unless accompanied by specific allegations

that the defendant attorney failed to take action normally expected of an attorney in furtherance of the

agreed on purpose for which the attorney was hired,

such as failing to prosecute, defend, or take an essential

step in litigating a cause of action.

Finally, with respect to the plaintiff’s claim that the

defendant failed to follow her instructions to reject the

settlement offer and to continue prosecuting the action

after the parties had agreed in open court to accept

the offer, we recognize that when a client instructs an

attorney to perform certain tasks or to perform in a

specified manner, ‘‘[t]he undertaking then becomes

contractual in nature . . . .’’ 1 R. Mallen & J. Smith,

supra, § 8.9, p. 822. ‘‘The basic rule is that an attorney

specifically instructed by the client should follow those

instructions with reasonable care and promptness or

be liable for damages proximately caused by the fail-
ure.’’ Id. ‘‘Because the theory is in contract, [however]

the attorney’s assent is required.’’ Id. In addition, the

client’s instructions ‘‘must be ethically proper and not

offend public policy. Thus, a lawyer must still comply

with court orders and process even if that compliance

is not consistent with a client’s instructions.’’ Id., p. 823.

In the present case, the plaintiff agreed to the settlement in open court following a canvass of the parties.

Only after Hontek Corporation and the Hongs signed

the agreement several weeks later did the plaintiff have

a change of heart, refuse to sign the agreement, and

ask the defendant to resist the provision that required

her to withdraw her workers’ compensation claim. At

that point, the Hongs and Hontek Corporation filed

a motion to enforce the agreement, and the plaintiff

eventually signed the agreement upon the defendant’s

advice. Underthese facts,the defendant had no contractual obligation to follow the plaintiff’s instructions to

resist the agreement because they were not included

in the parties’ contract, the defendant did not consent

to the instructions in its discussions with the plaintiff,

and, in any event, following them would have required

the defendant to engage in a process intended to undo

a legally enforceable agreement that had been reached

by the parties and approved by the court.

We disagree with the plaintiff that the absence of

language in the complaint referring to the defendant’s

conduct as ‘‘negligent’’ orto the fact that the defendant’s

performance ‘‘was below a standard of competence’’

distinguishes this case from other cases in which Connecticut courts have concluded that the plaintiff’s

claims sounded in tort.(Emphasis omitted; internal quotation marks omitted.) In addition to the fact that the

complaint contains no allegations that the defendant

breached any specific contract provisions, it relies in

part on language typically used in negligence cases.

This language includes that the defendant ‘‘owed to the

plaintiff a duty of undivided loyalty and a duty to pursue

and follow the plaintiff’s interests, wishes and instructions in the prosecution of the lawsuit,’’ and that, ‘‘[a]s

a consequence of [the defendant’s] breach of its legal

services contract, the plaintiff suffered a loss of damages’’ in addition to the fees ‘‘that were paid to or withheld by [the defendant] as compensation for its legal

services.’’ This language and the remedy of damages is

identical to the language and remedy of damages sought

in connection with causes of action for negligence. See,

e.g., Lutynski v. B. B. & J. Trucking, Inc., 31 Conn.

App. 806, 813, 628 A.2d 1 (1993) (cause of action in

negligence arising from tortious conduct ‘‘subjects the

tortfeasor to responsibility for the payment of money

damages for the injuries sustained by the plaintiff

because of the tortious conduct’’), aff’d, 229 Conn. 525,

642 A.2d 7 (1994). Thus, the plaintiff’s claim that the

parties’ dispute is only a ‘‘simple fee dispute’’ is belied

not only by the lack of allegations concerning the breach
of any contract provisions, but by the language used

and the relief requested in the complaint.

Other allegations also support the conclusion that

the complaint sounds in legal malpractice rather than

in breach of contract. As previously noted, ‘‘[m]alpractice is commonly defined as the failure of one rendering

professional services to exercise that degree of skill

and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury,

loss, or damage to the recipient of those services

. . . .’’ (Footnote omitted; internal quotation marks

omitted.) Barnes v. Schlein, supra, 192 Conn. 735. The

services of Connecticut attorneys are governed by the

Rules of Professional Conduct. Among those rules are

two that speak directly to the principal allegations in

the plaintiff’s complaint, namely, rule 1.7 on conflicts

of interest and rule 1.2 on the allocation of authority

between a client and attorney.

Rule 1.7 (a) of the Rules of Professional Conduct

provides in relevant part: ‘‘[A] lawyer shall notrepresent

a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest

exists if:

‘‘(1) the representation of one client will be directly

adverse to another client; or

‘‘(2) there is a significant risk that the representation

of one or more clients will be materially limited by

the lawyer’s responsibilities to another client, a former

client or a third person or by a personal interest of

the lawyer.’’

Rule 1.2 (a) of the Rules of Professional Conduct

provides in relevant part: ‘‘[A] lawyer shall abide by a

client’s decisions concerning the objectives ofrepresentation and, as required by Rule 1.4, shall consult with

the client as to the means by which they are to be

pursued. A lawyer may take such action on behalf of

the client as is impliedly authorized to carry out the

representation. A lawyer shall abide by a client’s decision whether to settle a matter. . . .’’

Although the Rules of Professional Conduct specify

that the ‘‘[v]iolation of a Rule should not itself give rise

to a cause of action against a lawyer nor should it create

any presumption that a legal duty has been breached,’’

they also acknowledge that, ‘‘since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.’’7 Rules of Professional Conduct, scope. Accordingly, even though the plaintiff does

not rely expressly on the Rules of Professional Conduct

as a basis for her claim, her allegations that the defendant breached its duty of undivided loyalty and its duty

to follow her wishes and instructions in its prosecution

and settlement of the prior lawsuit are consistent with
a claim of legal malpractice that relies on violations of

rules 1.7 (a) and 1.2 (a) of the Rules of Professional

Conduct as evidence of a breach of the applicable standard of conduct. See Caffery v. Stillman, supra, 79

Conn. App. 197–98 (concluding that complaint alleged

violation of minimum standard of care rather than

breach of contract).

We thus conclude that the plaintiff’s allegations

sound in tort rather than in breach of contract, and, as

a consequence, the plaintiff’s claim is barred by the

three year statute of limitations applicable to tort

claims.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

1 The court engaged in the following colloquy with the parties and their

attorneys:

‘‘The Court: Please be seated everyone. I understand that the parties have

reached a settlement.

‘‘[Attorney Mary Kelly, Counsel for the Plaintiff and Thibodeau]: Yes,

Your Honor.

‘‘The Court: All right. Is there something you want to put on the record?

‘‘[Attorney] Kelly: Yes. We just want to put on the essential terms of the

agreement, just that there is a $110,000 settlement. Of the $110,000, we are

going to allocate—$1000 goes to outstanding medicals for [the plaintiff].

The $109,000 remaining is divided one third for attorney’s fees, one third

for [the plaintiff], one third for . . . Thibodeau. Both [the plaintiff] and

. . . Thibodeau are responsible for one half of the outstanding expenses

of $5000. The money that is being paid to . . . Thibodeau and [the plaintiff],

$10,000, will be treated as workers’ compensation damages, which are not

taxable. The remaining will be treated as nonwage income.

‘‘The Court: As what?

‘‘[Attorney] Kelly: As nonwage income . . . for pain and suffering. And,

in addition, the parties have agreed that [the Hongs] will write a letter of

apology to [the plaintiff and Thibodeau], the essential—the exact wording

of which will be agreed upon by Attorney [Deborah] Etlinger [opposing

counsel] and myself. And this is a global settlement of all of the [plaintiff’s

and Thibodeau’s] claims, including their outstanding workers’ compensation claims.

‘‘The Court: And Attorney Etlinger, that’s your understanding?

‘‘[Attorney] Etlinger: It is, Your Honor.

‘‘The Court: All right. And I just want to ask . . . if [the plaintiff and

Thibodeau] have any questions about Attorney Kelly’s recitation of the

settlement. Is that your understanding, Miss Meyers [the plaintiff]?

‘‘[The Plaintiff]: Yes.

‘‘The Court: And is that acceptable to you?

‘‘[The Plaintiff]: Yes.

‘‘The Court: And Miss Thibodeau?

‘‘[Thibodeau]: Yes.

‘‘The Court: And as to . . . [Shek] and [Joanne] Hong?

‘‘[Shek] Hong: Yes.

‘‘[Joanne] Hong: Yes.

‘‘The Court: All right. Well, I just want to thank you and actually congratulate you all, because, I think, this is a fair resolution of a very difficult case,

and I’m happy to see that you’ve been able to resolve it, and in what appears

to be a very reasonable and fair resolution of these issues in this case. I

hope that you now all can just put it behind you and go on with the rest

of your lives. . . . So I just want to thank you. And we can adjourn.’’

2 The defendant filed a motion to terminate its representation of the plaintiff for good cause after she refused to sign the settlement agreement following its acceptance by all of the parties in open court and after she instructed

the defendant to resist that part of the agreement requiring her to withdraw

her workers’ compensation claims. The defendant specifically explained:

‘‘[A] conflict has arisen over the settlement agreement. Having concluded

that a conflict of interest now exists between [the plaintiff and Thibodeau],

and that such conflict would prohibit continued representation of both [the
plaintiff and Thibodeau], [the defendant] respectfully requests that the court

grant this request to withdraw its appearance as to [the plaintiff] only.’’

(Emphasis added.)

3

Judge Beach observed in a footnote that Judge Lavine was ‘‘correct in

noting that even if it were a contract claim, summary judgment [was],

nonetheless, appropriate.’’ Meyers v. Livingston, Adler, Pulda, Meiklejohn &

Kelly, P.C., supra, 134 Conn. App. 792 n.6.

4 This court limited the certified questions to whether ‘‘the Appellate Court

properly determine[d] that the allegations of the plaintiff’s complaint against

the defendant . . . failed to set forth a cause of action sounding in breach

of contract’’; Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,

305 Conn. 920, 47 A.3d 881 (2012); and, if the answer to the first question

is no, ‘‘did the Appellate Court properly determine that even if the complaint

could be viewed as a contract action, summary judgment was appropriate

because said action was barred by the six year statute of limitations?’’ Id.,

921. Because two of the three Appellate Court panel members determined,

however, that the plaintiff’s complaint sounded in both breach of contract

and tort, we reframe the certified questions as follows: Do the allegations

of the plaintiff’s complaint against the defendant set forth a cause of action

sounding in breach of contract, and, if the answer to that question is yes,

did the Appellate Court properly determine that summary judgment was

appropriate on the contract claim because that claim was barred by the six

year statute of limitations? See, e.g., Ankerman v. Mancuso, 271 Conn. 772,

777, 860 A.2d 244 (2004) (court may rephrase certified question to render

it more accurate in framing issue presented).

5

In support of these allegations, the complaint also alleges that the defendant ‘‘joined the claims of the plaintiff with those of . . . Thibodeau into

a single legal action and complaint,’’ that, ‘‘[d]uring the course of [the defendant’s] joint representation of the plaintiff and . . . Thibodeau, [their] interests . . . came into conflict,’’ and that, in response to a joint settlement

offer conditioned on its acceptance by both the plaintiff and Thibodeau,

the defendant ‘‘acted in furtherance of the interests, wishes, and instructions

of . . . Thibodeau and against the interests, wishes, and instructions of the

plaintiff in bringing about a settlement of the lawsuit . . . .’’ The complaint

further alleges that, ‘‘[p]ursuant to the express and/or implied terms of the

contract for legal services to represent the plaintiff in the lawsuit, [the

defendant] owed to the plaintiff a duty of undivided loyalty and a duty to

pursue and follow the plaintiff’s interests, wishes and instructions in the

prosecution of the lawsuit.’’

6 We disagree with the plaintiff that the Appellate Court applied a double

standard in considering evidence of the parties’ contract provisions to determine whether the plaintiff’s complaint alleged a breach of contract but

rejecting evidence that the defendant filed a motion to withdraw its appearance on behalf of the plaintiff after she expressed reservations about the

settlement agreement. The Appellate Court was not required to consider

evidence of the defendant’s motion to withdraw its appearance because the

basis of the breach of contract claim was the defendant’s alleged violation

of its duty of undivided loyalty by pursuing the interests of Thibodeau in

derogation of the plaintiff’s interests and its duty to follow the plaintiff’s

wishes and instructions to reject the settlement offer and to continue to

prosecute the lawsuit. The complaint contains no allegations regarding the

defendant’s decision to terminate its representation following the parties’

acceptance of the settlement agreement in open court.

7 The relevant passage of the Rules of Professional Conduct provides:

‘‘Violation of a Rule should not itself give rise to a cause of action against

a lawyer nor should it create any presumption that a legal duty has been

breached. In addition, violation of a Rule does not necessarily warrant any

other nondisciplinary remedy, such as disqualification of a lawyerin pending

litigation. The Rules are designed to provide guidance to lawyers and to

provide a structure for regulating conduct through disciplinary agencies.

They are not designed to be a basis for civil liability. Furthermore, the

purpose of the Rules can be subverted when they are invoked by opposing

parties as procedural weapons. The fact that a Rule is a just basis for a

lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a

collateral proceeding or transaction has standing to seek enforcement of

the Rule. Nevertheless, since the Rules do establish standards of conduct

by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the

applicable standard of conduct.’’ Rules of Professional Conduct, scope.