UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

ROBERT J. H ICK EY, P laintif f, v. Civil Action No. 07-1866 (JD B) CHARLENE SCOT T, Defendan t.

MEMORAN DUM OP INION Robert Hicke y

represente d Charlene Scott in a succe ssful sexual harassment suit before the Equal Employ ment Opportunity Commi ssion ("EE OC") ag ainst her f ormer e mploy er, the Depa rtment of Ene rg y . After

Scott refuse d to pay

her le g al bills, Hickey

sued her for br eac h of contra ct. She counter claimed. Hecounter claimed ba ck. The parties f oug ht over a lmost

everything. Now befor e the Court ar e Hicke y ' s motion for summary judgme nt, Scott's motion for partial summary

judgme nt, Hickey ' s motion t o strike, both parties' motions for sanctions, and Scott's motion to voluntarily dismiss one of he r counte rclaims.

BACK GR OUND I n November

1997, Hickey

ag ree d to repre sent Scott in a Title VI I action bef

ore the EEOC. Compl. ¶ 4. The parties signe d a contr act pr oviding, among othe r thing s, that Scott would pay

Hickey $225 per hour

for leg al servic es. See H ickey ' s Mem. in Supp. of Mot. for Summ. J . (" Hickey ' s Mem.") [Docket Entry 63], Ex . 1 (" Contract" ), ¶ 3. With respec t to Hickey ' s leg al invoices, the c ontrac t provided that Hicke y "w ill render [to Scott] a short summary statement of f

ees and disbursements for e ach month containing only the hours and f

ees spe nt on -1-these matter s along with a summary of disbursements spent during that month along with a

rec onciliation amount." I d. ¶ 6. As for any disag ree ments conce rning Hickey ' s repr esentation of Scott, the contrac t stated that " [a] ny dispute by

Ms. Scott reg arding the amount of the monthly statement or pr ocedur e for handling the ca se must be made in writing within 30 day s of re ndering the statement or the exis tence of a litig ation problem or be waived." I d. ¶ 9. Unpa id bills would

acc rue inter est at eig ht perc ent. I d. ¶ 7. I n September 2005, an EEOC administrative judg e rule d for Scott on her Title VI I claim and aw arde d her ove r $200,000. See H ickey ' s Mem., Ex . 13 (EEOC De cision). On Scott' s behalf , Hickey then filed a

motion for attorney ' s fee s and costs, see king $186,295.86 - - the amount of his leg al bill to S cott. See Scott' s Mem. in Supp. of Mot. for Summ. J . (" Scott's Mem." ) [Docket Entry

64], Ex . C (Fe e Petition). The administrative judg e, having identified " a signific ant portion of hours whic h appea r to have been e x cessive or inadequately

documented," reduc ed this fig ure by

approximately

25%, and a war ded Scott $139,338.27 in attorney ' s fee s and costs. Hickey ' s Mem., Ex . 15 (EEOC Attorne y ' s Fe es De cision), 5. During Hickey ' s repr esentation of her, Scott paid Hicke y a total of $16,200. Compl. ¶ 10. Soon after r ece iving the E EOC' s attorney ' s fee awa rd, Scott offe red to pay

Hickey $123,138.27 (the $139,338.27 fe e aw ard minus $16,200) a s full consideration for his leg al servic es. See Hickey ' s Mem., Ex . 40 (Jul y 17, 2007 L etter f

rom Scott to Hickey ). Hicke y ref used, conte nding that, pursuant to their c ontrac t, Scott owed him $170,095.56 ($186,295.86 minus $16,200), plus interest. Hicke y , proce eding pro se, then sue d Scott for bre ach of contra ct and c onstructive trust.

-2-Compl. ¶¶ 14, 26. Scott, also pro se, filed an answe r and the n an ame nded answ er, and asserted 1

sever al counter claims. See Scott' s Answer [Docket Entry

3]; Scott's Am. Answe r [Docket Entry 7]. 2 Scott eventually

reta ined counse l, and there afte r filed a second amended answer a long with counterc laims for prof essional neg lige nce, br eac h of fiducia ry duty , and violations of the D.C. Consumer Protection Procedur es Ac t, D.C. Code § 28-3901 et seq. See Scott's Sec ond Am. Answer and Counterc laims ("Scott' s Second Am. Answe r" ) [Docket Entry 34], ¶¶ 46-68. Hicke y then answe red and filed his own counter claims ag ainst Scott, alleg ing f raud, a buse of pr ocess, and conve rsion. See Hicke y ' s First Am. Answe r and Counter claims (" Hickey ' s Answer ") [Docket Entry

36], pp. 12-22. Scott has now moved for summary judgme nt on Hickey ' s claims and counte rcla ims; Hickey seeks summary

judgme nt on his claims and counter claims, as we ll as on Scott's c ounterc laims. Hickey has also moved to strike numer ous exhi bits attached to Scott' s summary judgme nt briefing . Scott has moved to voluntarily dismiss one of he r counte rcla ims, and has move d for sa nctions ag ainst Hickey . Hickey has cr oss-moved for

sanctions ag ainst Scott. 3 STANDARD OF REVIEW

During this li tigation, Scott s ent Hicke y a che ck for

$123,138.27. See Hicke y ' s Mem., 1 Ex . 43. I n light of this, Hicke y now contends that Scott owes him $46,957.29, plus i ntere st. Hickey filed numerous motions to strike Scott's pro sefilings, a s well as a motion for 2 judgme nt on the pleading s, all of which the Court de nied. See May 12, 2008 Orde r [Docket Entry 20]. Hickey

later f iled a motion for a pr eliminary injunction as well, which the Court denied. See Dec . 7, 2009 Orde r [Docket Entry 61]. Hickey has re tained counse l to defend a g ainst Scott's counte rcla ims. He is proce eding 3 pro se in all other

respe cts. -3-Summary judgme nt is appropriate when the ple ading s and the e vidence demonstrate that "the re is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of la w." Fe d. R. Civ. P . 56(c) . The pa rty seeking summary

judgme nt bear s the initial responsibilityof demonstrating the a bsence of a g enuine dispute of material fa ct. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving pa rty may succe ssfully

support its motion byidentify ing thoseportions of " the pleading s, the discovery and disclosuremateria ls on file, and any

aff idavits" that it believe s demonstrate the absenc e of a g enuine issue of

materia l fac t. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S . at 323. I n determining whe ther ther e exists a ge nuine issue of mate rial fa ct suffic ient to prec lude summary judgme nt, the court must reg ard the non-movant' s statements as true and ac cept a ll evidenc e and ma

ke all infe renc es in the non-movant' s favor . See Ande rson v. Liberty L obby , I nc., 477 U.S. 242, 255 (1986). Anon-moving party , howeve r, must establish more than the "me re e x istence of

a scintilla of evide nce" in support of its posit ion. I d. at 252. Thus, the nonmoving pa

rty cannot r ely

on mere speculation or compilation of infere nces to de feat a motion for summary judgme nt. See Hutchinson v. Cent. I ntellige nce A g ency , 393 F.3d 226, 229 ( D.C. Cir. 2005). Nor c an the non- moving pa rty rely on hear say

statements or c onclusory statements with no evidentiary

basis to establish a g enuine issue of materia l fac t. See Assoc. of Flig ht Attendants v. Dep' t of Tra nsp., 564 F.3d 462, 465 (D .C. Cir. 2009). "I f the e vidence is merely colora ble, or is not significa ntly

probative, summary

judgme nt may

be g rante d." A nderson, 477 U.S. at 249-50 (c itations omi tted). More over, a moving pa

rty may succe ed on summary

judgme nt by pointing to the abse nce of evidenc e prof

fer ed by the non-moving party . See Celotex, 477 U.S. at 322; see a lso Anderson, 477 U.S. at 252 (summary judgme nt appropriate if the non-movant fails
-4-to offer

"e vidence on which the jury could re asonably

find for the [non-movant] ")

. DISCUSSIO N The Court will first addre ss the parties' motions for summary judgme nt, and will take in turn Hicke y ' s claims, Scott's c ounterc laims, and Hicke y ' s counterc laims. Finally , the Court will addre ss the parties' motions for sanctions. 4 I. Hickey's Claims Hickey and Scott have e ach move d for summary judgme nt on Hickey ' s claims for br eac h of contra ct and c onstructive trust. The Court will deny both motions

. A. Br eac h of Contrac t Scott does not dispute that, under the c ontrac t's e x press terms, she curr ently owes Hic key

nearly $50,000 plus interest. But " clients may defe nd a claim by

their lawyer f

or unpaid leg al fee s by proving that their attorne y brea ched a

fiduciar y duty ." H endry

v. Pelland, 73 F.3d 397, 403 (D.C. Cir. 1996) (c iting Griva v. Davison, 637 A.2d 830, 847 ( D.C. 1994)). As de tailed below, numer ous disputes of materia l fac t exi st as to whether Hickey brea ched his fiduc iary

duty to Scott. Theref

ore, the Court will deny

Hickey ' s motion for summary judgme nt on this claim.

Hickey , in his various memoranda as we ll as throug h a sepa rate motion, seeks to strike a 4 number of Scott' s exhi bits in t his case. Wher e the disputed doc uments are rele vant to the Court' s analy sis of the parties' motions for summary judgme nt, the Court will address the re quests to strike throug hout this Memorandum Opinion. As for the many other e x hibits (or portions there of) that Hic key

seeks to strike, the Court ha s not considere d them in its analy sis, and Hickey ' s reque sts will be denied as moot. The Court notes, howe ver, that even a cursor y revie w of Hicke y ' s arg uments reve als that many of them ar e frivolous. I ndeed, H ickey himself has submitt ed as e x hibits som e of the documents that he now seeks to strike. CompareScott's Mem., Ex . D (EEO C Attorney ' s Fe es De cision), with Hickey ' s Mem., Ex . 15 (same) ; compare Scott's Mem., Ex. F (Scott's Third Supplementa l Responses to Hickey ' s First Set of Interrog atories) , with Hickey ' s Mem., Ex . 44 (same) ; compare Scott's Mem., Ex. G (J une 11, 2008 letter from Scott' s counsel to Hicke y ), with Hicke y ' s Mem., Ex . 43 (same)

. -5-The Court will also deny Scott's motion for summary judgme nt. Scott briefly

contends that her c ontrac t with Hickey "w as modified to a c ontinge ncy contra ct wher eby

Hickey is only entitled to fee s and costs that the Administrative Judge a war ded" -- an amount that Scott has alre ady paid him. Scott's Mem. at 4. She ba ses this assertion entire ly on Hickey ' s statement in his fee pe tition t o the EEOC that " [b] eca use of [Scott's] poor financ ial situation, the case w as handled on a

partial c ontinge ncy

fee basis with [ Scott] paying only a small part of

the cost." Scott's Mem., Ex. C (Oct. 5, 2005 Aff . of Robert Hic key ), ¶ 5. B ut Hickey ' s unilateral and isolated statement to the EEOC -- without any evidenc e that Scott ag ree d to alter the c ontrac t -- does not establish that the parties modified their ag ree ment. See Malone v. Sax ony Coop. Apartments, I nc., 763 A.2d 725, 729 ( D.C. 2000) (mutual asse nt is required " to make or modify a contra ct" ). He nce, the Court will deny Scott's motion for summary judgme nt on Hickey ' s brea ch of contra ct claim. 5 B. Constructive Trust Hickey has also moved f

or summary

judgme nt on his claim for a c onstructive trust. Specifica lly , he see ks to have the r emainder of the EEO C's attorney ' s fee s awa rd (plus intere st) held in constructive tr

ust for him. See Hicke y ' s Mem. at 9. Such re lief is premature. " [A] constructive tr

ust is not an independent ca use of a ction." Ma char

ia v. United States, 238 F

. Supp. 2d 13, 31 (D.D.C. 2002). Rather , it "is a re medy that a court devises af

ter litigation." United States v. BCCI

Holdings ( Lux .), S.A., 46 F.3d 1185, 1190 ( D.C. Cir. 1995). Be cause it is

Be cause the Court cannot y et determine whether Scott is l iable to Hicke y

under the 5 contra ct, it will not resolve any questions conce rning the appr opriate r elief f or any brea ch. I ndeed, e x cept a s discussed below, a ll questions concerning the appropriate re medies for the unlawful c onduct alleg ed by both parties -- including those relating to fe e forfeiture -- a re premature. -6-not y et clea r whe ther Scott owes Hic key any money , the Court cannot now de termine whe ther the imposit ion of a c onstructive trust is appropriate. 6 II. Scott's Counterc laim s Hickey has moved for

summary judgme nt on Scott's counte rcla ims for profe ssional neg lige nce and brea ch of f iduciary duty . The Court take s them in turn. 7 A. Malprac tice "T o establish a prima f

acie case of attorne y

malprac tice under

D.C. law, the plaintiff must establish the applica

ble standar d of ca

re, that the attorney

violated the standa

rd, and that the violation caused a

leg ally cog nizable injury ." K aempe v. My ers, 367 F .3d 958, 966 (D.C. Cir. 2004) (c iting O' Neil v. B erg an, 452 A.2d 337, 341 ( D.C. 1982)). " Ex pert testimony must be prese nted to establish the standar d [of] car e ' unless the attorne y ' s lack of c are and skill is so obvious that the trier of f

act c an find ne g lige nce a s a matter of common knowledg e.' " Cha se v. Scott also seeks summary judgme nt on this claim, arg uing that it is moot because Scott 6 has alre ady

paid Hicke y

the total amount of the EEO C's f ee a war d. See Scott' s Mem. at 5. Be cause Hickey

also seeks inter est on the attorne y ' s fee awa rd, this potential remedy

is not moot

. Scott init ially

broug ht an additional counter claim ac cusing Hickey of violating the D.C. 7 Consumer Protection Proce dures Ac t, 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 judgme nt, and except as the parties a g ree , "an action may be dismissed at the plaintiff' s reque st onlyby court orde r, on terms that the c ourt consider s proper ") . Hickey , fea ring that dismiss al will undermine his counte rcla ims and his moti on for sa nctions, seeks to ensur e that he w ill not be prejudice d by

the voluntary

dismiss al. See Hic key ' s Opp' n to Mot. to Volunt arily Dismiss [Docket Entry

81], at 5-8; J ohnson v. Wy nne, 239 F .R.D. 283, 285-86 (D.D .C. 2006) (" A court apply ing Rule 41( a)( 2) there fore must consider whe ther the pla intiff seeks the motion for voluntary dismiss al in g ood faith, and w hether the dismissal would cause the de fendant 'le g al prejudice ' . . . .") . The Court will g rant Scott' s motion. The Court finds the motion t o be madein g ood faith, and be cause the Court will consider Scott' s prior prose cution of this counterc laim in addre ssing Hic key ' s motions for summary judgme nt and for sanctions, there w ill be no prejudice to Hickey in dismi ssing it. -7-Gilbert, 499 A.2d 1203, 1211 (D .C. 1985) (quoting O' Neil, 452 A.2d at 341)

.

Scott contends that Hicke y committed malprac tice -- she calls itprofe ssional neg lige nce -- in five way s. Acc ording to Scott, Hickey (1) f ailed to re quest an a

ppropriate attorney ' s fee

awa rd fr om the EEOC; (2) c harg ed Scott for se rvice s he neve r provided; ( 3) billed Scott for

unnece ssary

work; (4) did not include in his mont hly bills any description of his services rende red; a nd (5) f

ailed to obtain for Scott all the damag es to which she w as entitled in the EEOC proce eding . Scott's Sec ond Am. Answer ¶¶ 48, 50- 53. Hickey

seeks summary

judgme nt on all five c laims. Although the Court will addre ss these alleg ations individually , it will first resolve thr ee of

Hickey ' s arg uments that are common to eac h of Scott' s malprac tice claims. First, Hicke y

contends that Scott ca nnot sue him for malpra ctice be cause she has waived her right to do so under

the parties' contra ct. See Hic key ' s Mem. at 30-31. This contra ct states that "[a]ny

dispute by

Ms. Scott reg arding the amount of the monthly statement or pr ocedure for handling the ca se must be made in writing within 30 day s of re ndering the statement or the exis tence of a litig ation problem or be waived." Contract ¶ 9. Scott does not dispute that she failed to c ontest Hickey ' s billi ng statements or his handling of her case "w ithin 30 day s of rende ring the statement or the exis tence of a litig ation problem." I nstead, Scott arg ues that para g raph nine of the a g ree ment is unenforc eable , at least to the e x tent that it preclude s her f rom bring ing a

malprac tice ac tion. See Scott's Opp' n to Hickey ' s Mot. for Summ. J . (" Scott's Opp' n") [Docket Entry

67], at 4. 8 Hickey asks the Court to strike Scott's opposition to his mot ion for summary judgme nt 8 and/or the Stateme nt of Material Fa cts Scott submit ted in support of that opposition. Specifica lly , Hickey

contends that Scott' s response to the Stateme nt of Material Fa cts Not in Dispute that Hicke y

attache d to his mot ion for summary judgme nt fails to comply with L ocal (continued...) -8-The Court ag ree s. "It is acce pted law that ' a promise or other term of an a g ree ment is unenfor cea

ble on g rounds of public policy if . . . the intere st in it s enfor ceme nt is clearly outweig hed in the cir cumstance s by a public policy

ag ainst the enfor ceme nt of such terms.'" See J acobse n v. Oliver, 555 F . Supp. 2d 72, 79 (D.D.C. 2008) (quoting Restatement (Sec ond) of Contracts § 178 (1981) ). Contrac tual provisions that violate the attorney ' s rules of pr ofessional conduct undoubtedly

fall into this categ ory . See id. (" It certainly is true that the former c lause could not be enf

orce d in light of D.C. Rule of Profe ssional Conduct 1.2(a), w hile the latter c ould not be enf

orce d in light of D.C. Rule of Profe ssional Conduct 1.16(a)( 3)." ). The D .C. Rules of Professional Conduct provide that a lawy er sha ll not "[m] ake an ag ree ment prospec tively limit ing the lawy er' s liabilit y to a client for

malprac tice." D.C. Rules of Professional Conduct 1.8(g )(1) ; see In re D oug lass, 859 A.2d 1069, 1083 (D.C. 2004) ( "Rule 1.8( g )(1) flatly prohibits a lawy er f rom attempting to limi t his malpractice liabilityto a client for service s to be rende red in the future .") . Thus, para g raph nine ' s waiver provision cannot be e nforc ed to pre clude Scott' s malprac tice claims. 9 Hickey ' s second a

rg ument common to eac h of Scott' s malprac tice claims is t hat the Court

(...continued) 8 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 S trike [Docket Entry 71], at 1-2. Even assuming that Hickey is corre ct, " [a] motion to s trike is considere d an exceptional re medy and is g ener ally

disfavore d," and the Court will deny

the re quest. United States ex rel. K & R Ltd. P'ship v. Mass. Hous. F in. Ag ency , 456 F. Supp. 2d 46, 53 (D.D .C. 2006) (interna l quotation marks omitted). Hickey maintains that "[a] plain reading of the Ag ree ment reve als that it does not 9 prohibit or waive f

uture malpra ctice c laims." Hic key ' s Reply at 24-25; see also id. at 5. This statement is disinge nuous. Hickey himself contends that pa

rag raph nine prec ludes Scott's malprac tice claims: "Be cause Ms. Scott has waived a ny rig ht to contest Mr. Hicke y ' s invoices, her c laim of profe ssional neg lige nce . . . is fatally flawe d . . . ." SeeHickey ' s Mem. at 32. -9-should strike the expert report of employ ment attorney Kristin Alden, which Scott re lies on to support eac h of her

malprac tice alleg ations. See Scott' s Mot., Ex . E (" Alden Report" ). Ove r less than a pa g e of discussion, Hicke y offe rs at lea st six rea sons why the Court should strike Alden' s report. See Hicke y ' 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 reque st. Som e of H ickey ' s arg uments -- that the e x pert re port "ha s nothing to do with [S cott' s] counterclaims but only with Hickey ' s claims," " does not ref lect fac ts set forth in [Hickey ' s pleading s]," and " is not sworn to," id. -- are meritless on their fa ce. And his remaining arg uments -- that Alde n' s report "c ontains opinions not based on persona l knowledg e," "c ontains conclusions, infer ence s, speculations and a ssumptions which ar e not permitted," and violates a n ag ree ment betwee n the parties that Alden would opine only on certain topics, id. -- ar e made without a single citation to Alden' s report. "Judge s are not like pigs, hunting f or truff les buried in brie fs," United States v. Dunkel, 927 F .2d 955, 956 (7th Cir. 1991), and this Court will notscour Alde n' s twenty -threepag e re port to determine if Hickey ' s arg uments have me rit. See Arizona v. Shalala, 121 F . Supp. 2d 40, 46 n.4 (D.D.C. 2000) (r efusing to consider an "' asserted but unanaly zed'" motion to s trike (quoting Secs. & Ex chang e Comm'n v. Banner Fund Int'l, 211 F .3d 602, 613-14 (D.C. Cir. 2000)) ); see a lso United States ex rel. K & R Ltd. P'ship, 456 F. Supp. 2d at 53 (" A motion to strike is consider ed an e x ceptional r emedy and is g ener ally disfavore d, and the pr oponent of such a motion mus t shoulder a f ormidable burde n." (citations and internal quotation marks omitted)). 1 0 Hickey also seeks to strike an aff idavit submit ted by

Alden. See H ickey ' s Mot. to 1 0 Strike at 2-3; Scott's O pp' n, Ex . B ( Feb. 19, 2010 Alden Af f.). Most of Hic key ' s myriad challeng es to Alden' s aff

idavit mirror those he ma kes to Alden' s report, and the Court will rejec t them for the same re asons. The Court finds Hic key ' s remaining objections -- f or example, that (continued...) -10-Hickey ' s final ar g ument common to Scott's malpra ctice c laims is that "in a fe e dispute

betwee n an attorne y

and a c lient, when the issue c oncerns the rea sonablene ss of the fe e with no complaint about the lawy er' s competenc e, the c laim should not be chara cterized as leg al malprac tice." Hickey ' s Mem. at 27 n.4 (c iting, among other sourc es, Ronald E. Mallen & J eff rey M. Smi th, L eg al Malpra ctice, § 1:1 at 6 (4th ed. 2006)) ; see a lso Hickey ' s Reply at 22. This case does not, howeve r, involve only the re asonable ness of Hic key ' s fee s. Rather, it conc erns whe ther Hickey ' s leg al re prese ntation fell short of the standa rd of c arehe owe d to Scott under the circ umstances of

her c ase. Such c laims are pr operly addre ssed in a malpra ctice a ction. The Court will therefor e turn to Scott' s individual theories of malpra ctice.

1. Hicke

y's attorney's f

ees pe tition t o the EEOC Scott contends that Hicke y committed malprac tice whe n, in submit ting his petition for attorney ' s fee s to the EEOC administrative law judg e, he " failed to re quest the hourly rate for attorney s' fee s to be set in acc ordanc e with the L aff ey Matrix -- the prevailing standa rd for fee s in EEOC ca ses." Scott's Sec ond Am. Answer at ¶ 48. Hickey ' s fee petition sought fe es at his

1 1 contra ctual rate of $225 pe r hour, se e Scott' s Mem., Ex . C (Oct. 5, 2005 Af f. of Robert Hickey ) at

(...continued) 1 0 the af fidavit reve als that Alden' s conclusions arebased on he arsay , see H ickey ' s Mot. to S trike at 2-3 -- to be meritless. The L aff ey Matrix i s a matrix of hourly rate s for attorney s prepa

red by the U.S. 1 1 Attorney ' s Offic e for

the District of Columbia. It "pr ovides prevailing mar ket rates based on an attorney ' s y ear s of experienc e," J ackson v. D ist. of Colum bia, 696 F. Supp. 2d 97, 104 (D .D.C. 2010), and is " used widely in the District of Columbia to determine the pr evailing wag es in the community ," L opez v. Dist. of Colum bia, 383 F. Supp. 2d 18, 24 (D .D.C. 2005) (interna l quotation marks omitted); see a lso J ackson, 696 F . Supp. 2d at 99 n.1 (" The L aff ey Matrix has been de scribed a s a fe e sche dule of pre sumptivelyrea sonable rates." (interna l quotation marks omitted)). -11-¶ 7, which is substantially less than his hourly

rate under the L aff

ey Matrix, s ee F eb. 19, 2010 Alden Af f., ¶ 49; Alden Re port at 17. Ac cording to Alden, " it is t he standa rd for lawy ers who prac tice fe dera l employ ment discrimination law to use L aff ey Matrix rates in fee petitions reg ardle ss of the amount ac tually char g ed to the client." Fe b. 19, 2010 Alden Af f. at ¶ 47. A nd, she states, " L aff

ey Matrix rates are routinely awa rded to attorney s by

Administrative J udg es in EEOC ca ses irre spective of the ac tual contra ct rate that exist s betwee n the lawy er and the client." I d. at ¶ 47; see also Scott's Opp' n, Ex . D (Nov. 19, 2009 A lden Aff .), ¶¶ 18-19 (identifying situations where A lden re ceive d L aff ey Matrix rates in EEOC case s). Therefor e, Alden of fer s that "[h]ad Mr. Hickey

submitt ed for

L aff ey Matrix rates in the Petition for Attorney s' fee s, Ms. Scott would have more likely than not been a war ded an a dditional $84,311.25 in attorney s' fee s." Fe b. 19, 2010 Alden Af

f. at ¶ 49; se e also Scott' s Opp' n, Ex . Q (c alculation table de riving this fig ure)

. Hickey

disputes that he had any

duty to petition for fee s using the L aff ey Matrix. He observe s that the reg ulations gove rning attorney ' s fee awa rds in discrimination case s do not mention the L aff

ey Matrix. S ee H ickey ' s Mem. at 28 (c iting 29 C.F.R. § 1614.501). H e notes that the L aff

ey Matrix i s not the only

way to asce rtain a pr oper f

ee a war d. See id. (c iting Nova k v. Capital Mgmt. & Dev. Corp., 496 F . Supp. 2d 156, 159 (D.D.C. 2007) (" [T] here is no standard rate for attorney s in the District of Columbia."). A nd he insists that his Agre ement with Scott "a ppropriate ly

g overns the f

ees to bechar g ed and soug ht in a fee petition." Hicke y ' s Mem. at 29. Hickey may be cor rec t that he ac ted prope rly in seeking only

his contrac tual ratein his fee petition to the EEOC. But Alden disputes this, and asse rts that the standar d of ca re r equire d him to seek fe es under

the L aff ey Matrix reg ardle ss of his contrac tual rate . See F eb. 19, 2010 Alden

-12-Aff. at ¶ 47. This disag ree ment prec ludes summary judgme nt. Hickey also arg ues that this malprac tice claim cannot succ eed be cause Scott suffere d no damag es fr om his failure to use L aff ey Matrix rates in his attorney ' s fee petition. Accor ding to Hickey , had he " petitioned for r eimbursement unde r the L aff ey Matrix, i t is he as the attorne y [] who would have benef

ited there by , not Ms. Scott, because any g reater fe e aw ard w ould have ultimately

been disburse d to him." Hicke y ' s Mem. at 30. Not so. Any incre ased attorney ' s fee s

awa rd would have been g rante d to Scott, not Hickey . See 42 U.S.C. § 2000e-5( k) (" [T] he court, in its di scre tion, may

allow the pre vailing pa

rty . . . a re asonable attorney ' s fee . . . ." ( emphasis added) ); see a lso Hickey ' s Opp' n at 9 (" Hickey does not dispute that money rec eived by

Scott as a result of the EE OC awa

rd g oes initiallyto Scott to t he extent she incurr ed leg al fe es." (empha sis

remove d)). Eve n if Scott would have used any additional fee s to pay

the re mainder of

Hickey ' s bill, she stil l suffer ed injury from Hicke y ' s failure to reque st a hig her hourly rate in his fee petition. 1 2 2. Charging Scott for service s he nev er provided Scott also acc uses Hicke y of " submitt [i ng ] bi llings and [seeking ] t o rec over f or services that he did not actua lly

provide [her]." See Scott's Sec ond Am. Answer ¶ 50. Specific ally , Scott contends that Hic key

"billed he r for

numerous in-pe rson offic e mee tings on oc casions in which she did not, in fact, mee t with [ Hickey ]." Scott's Sec ond Am. Answer ¶ 50. In support, Alden observe s that "[t] here wer e many billing entrie s for whic h I could not locate any

corr esponding documents in Mr. Hicke y ' s files that corr espond to the billing e ntries." Fe b. 19, 2010 Alden Af f. Hickey further contends that " it would be impossibl e to pre dict how, if at a ll, the 1 2 administrative law judg e' s awa rd of attorney s' fee s would have be en diffe rent ha d a hig her billing rate been use d." H ickey ' s Reply at 34. That que stion is for the jury

.

-13-at ¶ 59. Additionally , she states that " [t ]here we re thre e in-off ice mee tings with Ms. Scott for which Mr. Hic key

billed . . . , however , there was no c orre sponding doc ument that the meeting

occur red." I d. at ¶ 60. Hic key ' s only arg ument for summary

judgme nt on this claim is t hat Scott has wa ived her

malprac tice claim. See Hickey ' s Mem. at 31-32. F or the re asons explained above, this ar g ument fails.

3. Billing Scott f

or unnece ssary work Scott nex t asserts that Hicke y "spe nt an inordinate amount of time completing

unnece ssary

tasks and motions during his represe ntation of [her]." Scott's Sec ond Am. Answer ¶ 51. "T here can belittl e doubt that if plaintiff ove rbilled defe ndant[] or cha rg ed [her] for

unnece ssary

service s, this would constit ute profe ssional malprac tice and a brea ch of pla intiff' s fiduciary duty to defe ndant[] ." Shapir o, 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 Responsibility1.5 cmt. 5 (" A lawy er should not exploit a fe e ar rang ement base d primarily on hourly

char g es by

using wastef ul proce dures." )). Here, A lden extensively details her be lief that, while represe nting Scott, Hickey eng ag ed in ineff

icient and duplicative communications, submitted numerous unnece ssary motions and unmeritorious arg uments to the EEOC, and performed a substantial amount of work

unnece ssary

to Scott's ca se. See F eb. 19, 2010 Alden A ff. at ¶¶ 14-41; Alde n Report at 4-16. And in the EEOC administrative judg e' s decision awa rding Scott attorney ' s fee s, the judg e wr ote that Hickey

"e x pended unne cessa

ry time . . . prepa

ring a number

of unwa rranted, re petitive, and

unsucce ssful motions wit h the pre siding EEO C administrative judge (s)." Hickey ' s Mem., Ex . 15 (EEOC Attorne y ' s Fe es De cision) at 5. Hickey protests that his actions areprotec ted by the judg mental immunityrule, whic h
-14-"pr ovides that an informed profe ssional judgment madewith rea sonable c are and skill cannot be

the basis of a

leg al malpra ctice c laim." B iomet I nc. v. F inneg an He nderson L LP, 967 A.2d 662, 666 (D.C. 2009). He contends that " the ca se-r elated ta sks" he perf ormed, " which are part and parc el of his litigation tac tics and strate g y (including rese arc h, motions, and corre spondence ), ar e matters of pr ofessional judg ment for whic h he is entitled to immuni ty and summary

judgme nt." Hickey ' s Mem. at 33. The judg mental immunity rule doe s not support summary judgme nt here . The rule protec ts strateg ic dec isions, but i t "' is conditioned upon the attorney acting in good f

aith and upon an informe d judgme nt after undertaking r easona

ble re sear ch of the rele vant leg al principa ls and fac ts of the g iven ca se.' " B iomet, 967 A.2d at 666 (quoting Sun Valley Potatoes, I nc. v. Rosholt, Robertson & Tucke r, 981 P.2d 236, 240 (I daho 1999)) . Thus, attorney s are "still bound to exercise a rea sonable de g reeof skill and car e in all of [their] professional undertaking s." I d. (quoting Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1984)) . Her e, Alden of fer s her opinion that Hickey

failed in a

varie ty of way s to meet the standar d of ca re f or an e mploy ment attorney . The Court, there fore , cannot c onclude a s a matter of law that Hicke y ' s actions wer e all products of " informed pr ofessional judg ment made with re asonable car e and skill." 1 3

4. Failing to describe the work performe d Scott also arg ues that Hicke y "br eac hed his duty

of ca re w hen he f

ailed to provide any description of his services re ndere d in his mont hly bills t o [S cott] and merely included the Hickey also contends that this malprac tice claim mustfail bec ause " Scott cannot 1 3 demonstrate any

loss was proxim ately

cause d by

Mr. Hicke y

completing these tasks be cause she has not paid for

the (disputed) se rvice s rende red." Hickey ' s Mem. at 34. This arg ument is frivolous. Hicke y

seeks pay ment for all the work he pe rformed; any unnece ssary

char g es, then, have damag ed Scott by

incre asing the amount of Hic key ' s claims ag ainst her.

-15-amount of time spent multipli ed by his hourly

rate ." Scott' s Second Am. Answe r ¶ 52. I t is clear that Hickey ' s monthlyinvoices included only the hours wor

ked on Scott' s case eac h day , the monthlytally

of fe es and disburse ments, and the total balance due . See, e.g ., Scott's Mem., Ex. B (F eb. 9, 1998 invoice) ; Hickey ' s Mem., Ex . 11-A (A pril 23, 2004 invoice). The invoices 1 4 offe red no de scription of the wor k perf ormed, or of

who per formed it. Ac cording to Alden, Hickey "did not exerc ise honest profe ssional judgment" by sending Scott such bills, and he thus "br eac hed his duty

of ca re a s Ms. Scott's attorne y ." F eb. 19, 2010 Alden A ff. ¶ 52. Hickey responds that his bills fullycomplied with his contrac tual obligations to S cott. See Contrac t ¶ 6 (" Mr. Hicke y will render

a short summary

statement of f

ees and disbursements for e ach month containing only the hours and f

ees spe nt on these matters a long w ith a summary of disbursements spent during that month along with a r econc iliation amount . . . ."). The re is no question that they

did. But as e x plained above , contra ctual provisions areunenfor cea ble to the extent they

violate the rule s of profe ssional conduct. See Jacobsen, 555 F . Supp. 2d at 79. And the D.C. Rules of Professional Conduct provide that "[a] lawy er sha ll ex plain a matter to the extent reasonably

nece ssary

to permit the client to make informed dec isions reg arding repr esentation." D.C. Rule of Profe ssional Conduct 1.4(b); see a lso Feb. 19, 2010 A lden Aff. ¶ 51 (" It is my

opinion that in the District of Columbi a, it is standard billing pr acticefor law y ers to provide c lients with periodic desc riptions of work performed on the client’s beha lf." ). Acc ording ly , if Hicke y ' s bills vi olated the r ules of prof

essional conduc t -- and the re is a g enuine

Hickey asks the Court to strike this ex hibit because it does not include the invoice' s 1 4 acc ompany ing c over le tter. See H ickey ' s Opp' n at 2. B ut Hickey does not sug g est that the omitted cover le tter conta ins any description of the leg al work he perf ormed, a nd there forethe Court will deny

the re quest. -16-dispute of material fac t conce rning whether they did -- then the f

act that they

complied with the parties' ag ree ment does not prec lude Scott's ma lprac tice claim. 1 5 Hickey defe nds his bill ing f

ormat, explaining that he used it "to pre vent the disclosure of confide ntial, privileg ed, and strateg ic information (w hich might be contained in the individual entries) if, and whe n, his bill ing statements were produc ed to both the EEOC and D OE in

connec tion with a future f ee pe tition." Hickey ' s Mem. at 34-35. Indeed, hemaintains that "[t] o do otherwise w ould be an e thical violation on Mr. Hickey ' s part." I d. at 4. This is absurd. Portions of Hickey ' s billi ng statements that re veale d litigation strateg y or client conf

idence s would remain privilege d even in a subsequent fe e petition. See B erliner Corcoran & Rowe LLP v. Orian, 662 F . Supp. 2d 130, 134 (D.D.C. 2009) (" [T] he we ight of authority holds that communications relating solely to the payment of attorne y s' fee s are not

cover ed by

the attorne y -client privileg e unless they reve al conf

idence s about the natureof leg al service s rende red." ). And spec ulative conc erns a bout how the attorne y -client privileg e mig ht aff ect a future f ee pe tition do not excuse Hicke y from his other e thical obliga tions. Finally , Hickey

contends that " this aspect of Ms. Scott' s neg lige nce c laim fails beca use she cannot demonstrate that she suffe red any loss that was proxim ately cause d by

Mr. Hicke y ' s description of service s rende red." Hickey ' s Mem. at 35. A re asonable jury could conc lude, Hickey insists that, even thoug h his bill s lacke d any description of the work he w as 1 5 perf orming , "Ms. Scott was f

ully awa re of what wor k was be ing donein her c ase by the constant communication and c orre spondence betwee n the parties." H ickey ' s Mem. at 4; see a lso Hickey ' s Reply at 4 (" Hickey

kept in constant communications with [ Scott] by sending her a ll documents rec eived or

sent to DOE or EE OC in the case . . . .") . This may be true -- the Court ne ed not addre ss whether

such communications fulfilled Hickey ' s ethical duty to keep Scott re asonably informed a

bout her c ase - - but it does not affe ct the Court' s conclusion that par ag raph six of Hickey ' s contrac t is unenforc eable to the extent that it permits Hickey to violate the profe ssional rules. -17-howeve r, that if Scott had see n descriptions of the work Hicke y was pe rforming - - work that Alden re peate dly

describes as " wastef

ul," se e F eb. 19, 2010 Alden A ff. - - she would ha ve objected to the amount of Hickey ' s bills. According ly , summary judgme nt is inappropriate. 5. Failing to advocate for full damages Scott's fina l alleg ation of malpra ctice is that Hic key "f ailed to advoc ate f

or [Scott] to

rec eive a ll the damag es for which she w as entitled to [si c] in her EEOC ca se." Scott's Sec ond Am. Answer

¶ 53. Scott has clarified that " she is no longe r pursuing a Profe ssional Neg lige nce claim base d on" this alleg ation. Hickey ' s Mem., Ex . 44 (Scott' s Third Supplemental I nterrog atory

Responses), 16. Ac cording ly , the Court will gr ant Hicke y ' s motion for summary judgme nt on this t heory

. B. Br eac h of F iduciary Duty "T he re quirements for

stating a brea ch of f

iduciary duty claim ar e similar" to those for malprac tice: Scott must show that Hickey "ha d a fiduc iary

duty to [ her] and violated that duty ." Shapiro, Lifschitz & Schram, 24 F. Supp. 2d at 74. Her e, Scott contends that Hic key brea ched 1 6 his fiduciary

duty to her by "c harg ing he r for

service s that he did not actually provide, failing to provide c ompetent leg al servic es[,] and violating Rule 1.5 of the District of Columbia Rules of Professional Conduct." Scott's Sec ond Am. Answer ¶ 58. Hickey initiallyarg ues that summary judgme nt is appropriate "[b]ecause Ms. Scott's brea ch of f

iduciary duty claim suffe rs from the same fatal infirmities as her pr ofessional

Hickey does not dispute that, as her attorney , he owe d Scott a fiduciary duty . Nor c ould 1 6 he. See Shapir o, Lifschitz & Schram, 24 F. Supp. 2d at 74 n.10 (" Attorney s unquestionably stand in a fiducia

ry relationship t o their clients for matters re lated to their leg al re prese ntation of their clients." ) -18-neg lige nce c laim." Hic key ' s Mem. at 38; see id. (" Whether fr amed a s profe ssional neg lige nce or

brea ch of f

iduciary duty , Ms. Scott's cha lleng es to the billings ar e bar red by the lang uag e of the Ag ree ment . . . .") ; id. at 40 (" [C ]riti cally absent is any

showing that Ms. Scott suffere d a loss that was proximately

cause d by

an alleg ed violation of the Rules of Profe ssional Conduct."); Ma cktal v. Gar de, 111 F . Supp. 2d 18, 22 (D.D.C. 2000) (unde r D.C. law, " if the underly ing ma lprac tice claims fail[] , tort and contra ct claims ar ising fr om the same transaction must also fail" ). F or the

rea sons detailed above , this arg ument is unpersuasive. Hickey next asserts that Scott cannot succe ed on any "f ee- related ar g uments" a s she previously

raised the m in a complaint about Hicke y to the District of Columbia Ba r Counsel, which dismissed her a lleg ations. See Hicke y ' s Mem. at 39; Hickey ' s Mem., Ex . 2 (B ar Counsel Dec ision); see also Hicke y ' s Reply at 5. Hicke y

is incorre ct. The D .C. Bar Counsel must "find clea r and c onvincing evidenc e of a violation of the Rules [of P rofe ssional Conduct] in order to sustain a disciplinary

proce eding ag ainst an attorne y ." B ar Counsel De cision at 1. But in this Court, Scott need only

establish her ma lprac tice and br eac h of fiducia ry duty claims by

a preponde ranc e of the evidenc e. The D.C. Ba r Counsel' s opinion, therefor e, has no pr eclusive eff ect he re. Cf. $345.00 in United States Curr ency v. Dist. of Columbi a, 544 A.2d 680, 682 n.6 (D.C. 1988) (" [G] iven the diffe renc e in the burde ns of proof in a criminal and c ivil procee ding, collater al estoppel doe s not bar" a civil ac tion after an acquittal in a c riminal trial.")

. Hickey also cha lleng es Scott' s alleg ation that he violated D.C. Rule of Prof essional Conduct 1.5, which g overns the r easona bleness of attorney ' s fee s. As Hickey points out, a violation of the rules of pr ofessional c onduct " does not per se [] ' constitute a bre ach of the attorney ' s common law fiducia ry duty to the client.' " T V Capital Corp. v. Pax son Commc'ns.
-19-Corp., 894 A.2d 461, 469 (D.C. 2006) ( quoting Griva, 637 A.2d at 846- 47). None theless, under

D.C. law " a violation of the Code of Professional Responsibilityor of the Rules of Professional Conduct can c onstitut e a br eac h of the attorney ' s common law fiducia ry duty to the client." Griva, 637 A .2d at 846-47 (e mphasis added) ; see a lso Hendry v. Pelland, 73 F.3d 397, 401 ( D.C. Cir. 1996) (" [W ]e ag ree with the Hendry s that their evidenc e that Pelland violated one of the rules of the District of Columbia Code of Professional Responsibilitywas suff icient to support their cla im that he violated his common law fiducia ry duty .") . Be cause a jury

could find on this

rec ord that Hicke y

violated the rule s of profe ssional conduct -- and under the law suc h a finding would be suff

icient to establish a bre ach of fiduciary duty -- summary

judgme nt is inappropriate on this claim. III. Hickey's Coun ter claim s Both Scott and Hic key

have move d for summary judgme nt on eac h of Hicke y ' s three counter claims. For

the re asons explained below, the Court will g rant Scott' s motion -- and will deny Hickey ' s -- for

all three

. A. Fr aud To establish a c laim for fr aud, a plaintiff must show 1) that the defe ndant knowing ly made a false r epre sentation of or w illfullyomitted a materia l fac t; 2) that the plaintiff intended to dece ive the def

endant; 3) that the plaintiff ac ted in rea sonable re liance on that misreprese ntation or willful omission; and 4) that the plaintiff suffe red damag es as a result of his re liance. See Estate of N ethken v. Pee rless Ins. Co., 978 A.2d 603, 607 (D.C. 2009); Schiff v. AA RP, 697 A.2d 1193, 1198 (D.C. 1997). Aplaintiff must prove fr aud by clea r and c onvincing evidenc e. See Estate of

Nethken, 978 A .2d at 607.
-20-Her e, Hicke y acc uses Scott of eng ag ing in we ll over a dozen instance s of fra ud during and af ter his re prese ntation of her. T hese a lleg ations -- whic h involve both misreprese ntations and omissions -- stem in larg e part from statements Scott supposedly made ( or failed to make) to Hickey , and fr om the exis tenceof Scott' s counterc laims in thi s liti g ation. I ndeed, H ickey ' s counter claim for f

raud - - as we ll as his counterc laim for abuse of proc ess -- is ba sed almost entirely on his belief that " [e] very aspec t of the litigation [ befor e the EEO C] and the pr esent litigation with Hickey

ref lect [Scott's] objective not to pay , or delay ing pa y ment [si c], to Hickey ." Hickey ' s Opp' n at 15. Hicke y ' s conviction is unsupported by the re cord, and the Court will gr ant Scott's motion for summary judgme nt as to this claim. Many of Scott' s alleg ed " misrepre sentations" a re not in fa ct misrepre sentations of fa ct. "Amisrepre sentation is an assertion that is notin acc ord with the fa cts." Sarete , I nc. v. 1344 U St. L td. P'ship, 871 A.2d 480, 493 (D.C. 2005); se e also Restate ment (Second) of Torts, § 525(b) (1977) ( it "denote [s] not only words spoken or

written but also any

other c onduct that amounts to

an asse rtion not in accor dancewith the truth") . But alleg ations such as " Ms. Scott falsely ref used to pay $170,095.86 to [ Hickey ] for service s perf ormed by him . . . despite her ha ving sig ned a contra ct to do so," se e Hicke y ' s Mem. at 10, do not involve "a ssertions of fa ct" at all. See also, e.g ., Hickey ' s Mem., J an. 21, 2010 Af f. of Robert Hickey

(" Hickey Aff." ) ¶ 44( D); id. ¶ 44(N ); id. ¶ 44(I ) (" Ms. Scott im properly soug ht to have Mr. Hic key perf orm additional futurework without any

g uarantee of

compensation as a condition to resolving her f ee dispute . . . ." ); id. ¶ 44(E) ( "Ms. Scott deliber ately withheld full or g reater pay ments on invoices when he r salary incre ased e ven thoug h she had pr omised to make larg er pay ments when that oc curred." ). Nor do some of Scott' s alleg ed " omissions " c oncern fac ts either. See H ickey Aff. ¶ 45(A) ( Scott
-21-withheld "[a]ny bona fide doubt . . . that her c ontrac t was not with Mr. Hicke y only ") ; id. ¶ 45(B ) (Scott withheld "[a]ny

bona fide doubt . . . that her c ontrac t with Mr. Hickey did not continue bey ond April 1998 to Marc h 20, 2006.") ; see a lso Hickey ' s Answer [Docket Entry

23], ¶ 24(C) (Scott withheld "[a]ny

bona fide objection to any invoice" ). These alleg ations thus cannot supply

a ca use of a ction for f

raud. Some of Hicke y ' s other alleg ations fail bec ause the re is no evide nce that he re asonably relied on Scott' s alleg ed misrepr esentations. Hickey writes, for

example, that "Ms. Scott falsely claimed that Mr. H ickey

had terminated his contrac t with her in the F all of 2005 . . . eve n though she knew that she had te rminated he r contra ct on Marc h 20, 2006." H ickey Aff. ¶ 44(F ); see also, e.g ., id. ¶ 44(A) (" Ms. Scott knew she had e ntere d into a contra ct with Mr. Hicke y only , althoug h she later

claimed on Nove mber 29, 2005 that she ha d no contra ct with him."); id. ¶ 44(B ). B ut Hickey

does not indicate how he re lied on these alleg ed misrepr esentations -- indeed, there is no evidence that he eve r believe d them to be true. See Va. Ac ademy of Clinical Psy cholog ists v. Group Hospitaliz ation and Med. Servs., I nc., 878 A.2d 1226, 1238 ( D.C. 2005) (" ' [T] he make r of a

fraudulent misrepre sentation is subject to liabilit y for pe cuniary

loss suffere d by one who justifiably

relies upon the tr

uth of the matter misre prese nted . . . .' " ( quoting Restatement (Sec ond) of Torts § 546)). Hickey also could not have rea sonably relied on a lleg ed misrepr esentations byScott in her c ounterc laims. Hickey contends that Scott committed fraud by "f alsely claim[ing] in her Counterclaim . . . that she w as not provided c ompetent leg al servic e by Mr. Hicke y ." H ickey

Aff. ¶ 44(G) ; see a lso id. ¶ 44(H) ( "Ms. Scott fa lsely seeks c ompensation from Mr. H ickey under the D.C. Consumer Protection Procedur es Ac t . . . .") ; id. ¶ 44(K); id. ¶ 44( L ) (alleg ing that Scott
-22-"f

alsely claimed" that Hickey

should have soug ht attorney ' s fee s under the L aff ey matrix ). B ut

even a ssuming that Scott' s counterc laims are ba sed on misrepre sentations, there is no evidence that Hickey

ever relied on the truth of these misre prese ntations. See Va. A cade my of Clinical Psy cholog ists, 878 A.2d at 1238. Quite the opposite, in fac t: throughout this litigation Hicke y has consistently

denied Scott' s counterc laims. Hickey further alleg es that " [a] fter Ms. Scott terminate d Mr. Hicke y , she had f alsely informed him that he wa s fre e to see k additional compensation from the EEOC as pa rt of her appea l [ of the EEO C's attorney ' s feeawa rd]. However , she did not appea l and instead opposed Mr. Hicke y ' s appea ling on his own." Hickey Aff. ¶ 44(M); see also id. ¶ 44(J). This alleg ation is based on a

letter Scott wrote to Hic key in which she stated that she planned to re prese nt herself in any appea l she took from the EEO C's attorney ' s fee s awa rd. See H ickey ' s Mem., Ex . 32 (Oc t. 5, 2006 letter fr om Scott to Hickey ) (" I am taking a fe w day s and will decide by mid October, 2006, if I ' ll appeal the D ecision. . . . At this time, I am inclined to re prese nt my self." ). In this letter, Scott also told Hickey that, even if

she appe aled without counse l, "[y ]ou m ay file y our arg uments/briefs as an interested pa rty ." I d. Scott ulti mately did not appeal, and when Hic key petitioned the EEOC to intervene , the ag ency conclude d that he " ha[d] no standing to contest the [Admi nistrative L aw Judge ' s] award of a ttorney ' s fee s apart from [S cott' s] right to appea l the matter to the Commission, which [ she] chose not to do in this case." Hickey ' s Mem., Ex . 16 (EEOC appe al dec ision), at 5. As a fr aud claim, this alleg ation, too, fails beca use Hicke y

could not have r easona

bly relied on Scott' s statement that he, a s an intere sted party , could file his own indepe ndent brief with the EEOC appe als pane l. I ndeed, it take s chutzpah for Hic key , a lawy er, to a rg ue that he
-23-rea sonably relied on the leg al opinions of Scott, a social worke r, to his detriment. Finally , Hickey

contends that Scott fra

udulently failed to tell him that she re ceive d, and beg an spending , her Title VII damag es aw ard. See Hickey Aff. ¶ 44(O). H e also a ccuse s Scott of fr audulently

conce aling "[h]er financ ial inabilityto pay for the le g al servic es which ha d been rende red by

Mr. Hicke y ." I d. ¶ 45(C). Hic key cannot sustain his claims for f raud ba sed on these alleg ed omissions, however. E ven assuming that Scott failed to disclose this information, there is no evidence in the rec ord -- and ce rtainly not the requisite " clea

r and c onvincing evidenc e" -- that she did so in a nef

arious attempt to dec eive Hic key . See Estate of Nethken, 978 A .2d at 607 (plaintiff must establish "intent to dec eive" by "c lear and convinc ing e vidence ") . Hickey ' s speculation to the contrary is insufficient to establish fraud. See B ennett v. Kig g ins, 377 A.2d 57, 60 (D.C. 1977) (a ffirming g rant of summary judgme nt where "f

raud c ould only

be disce rned, if at all, by

means of impermissibl e spec ulation")

. 1 7 I n sum, Hickey ' s alleg ations of fra ud eac h fail to satisfy

at least one of the e lements of that tort -- a nd many

fail to satisfy

more. Ac cording ly , the Court will deny Hickey ' s motion for summary judgme nt, and will gr ant Scott's motion for summary judgme nt, as to this countercla im for f raud. 1 8 Although his submissions are less than c lear , it appear s that Hickey also ac cuses Scott 1 7 of fr aud in that she " clea

rly never intended to fully

pay Mr. Hicke y

from the time of commence ment of their r elationship." H ickey ' s Mem. at 13; see a lso id. at 10 (Hickey "be lieves that Ms. Scott from the start of their r elationship never intended to fully

compensate him") ; Hickey ' s Opp' n to Scott's Mot. for Sanc tions [ Docke t Entry 76], at 8 ("[I ]f[ ,] as Hickey believes, Scott prior to the inception of the c ontrac t had the intention to never pay Hickey what wa s due him, she committed fraud." ). Onc e ag ain, this alleg ation stands on littl e morethan Hicke y ' s speculation, which cannot sustain his cha rg e of f raud. Hickey also cha rg es Scott with committ ing f raud upon the Court. Specifica lly , he 1 8 (continued...) -24-B. Abuse of Proc ess

Abuse of pr ocess " lies wherethe leg al sy stem ' has bee n used to ac complish some end which is without the reg ular purvie w of the pr ocess, or which compe ls the party ag ainst whom it is used to do some collatera l thing which hecould not leg ally and re g ularly

be re quired to do.' " Bow n v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992) (quoting Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980)). " Thereare two essential ele ments to an abuse of proce ss claim: '( 1) the exis tence of an ulter

ior motive; and (2) an act in the use of proc ess other tha n such as would be proper in the reg ular prose cution of the c harg e.' " H oulahan v. World Wide Ass'n of Specialty Prog rams & Schs, 677 F. Supp. 2d 195, 199 (D.D.C. 2010) ( quoting Ha ll v. Holly wood Credit Clothi ng Co., 147 A.2d 866, 868 (D.C. 1959)) ( emphasis re moved). " Thus, in addition to ulterior motive, one must alleg e and pr ove that ther e has be en a pe rver sion of the judicial proc ess and ac hievement of

some end not conte mplated in the re g ular prose cution of the c harg e." Morowitz, 423 A.2d at 198; see, e.g ., Restatement (Sec ond) of Torts § 682, I llustration 2 ("A obtains a judg ment ag ainst B f or a de bt owed by

him. After the debt has to his knowledg e bee n paid, A take s out ex ecution on the judg ment. A is subject to liabilityto B for abuse of proce ss.")

. Hickey alleg es that a numbe r of f actua l contentions and leg al alleg ations Scott made in her va rious pleading s in this case we re ma de " for ba d faith, or f or har assment purpose [sic]," or "r eckle ssly ," and thus constitute abuse of pr ocess. Hic key ' s Mem. at 17. Specific ally , Hickey contends that some of

the statements and c laims in these pleading s "la ck any merit." See, e.g ., (...continued) 1 8 contends that e ven thoug h Scott was repr esente d by counsel, she submitted her initial pleadings in this case pro se "in or der that she could improperly g et the tec hnical advantag es g iven to a Pro Se defe ndant." Hickey

Aff. ¶ 56; see a lso Hickey ' s Mem. at 13. The Court ha s review ed Hickey ' s alleg ations and finds them base less. -25-Hickey ' s Mem. at 16 (" [S cott] i nitiallyclaimed that Mr. H ickey had terminated the Ag ree ment in Fa ll 2005, despite a letter f rom her dated Mar. 20, 2006 spe cifica lly terminating him."). O thers, he say s, "a

re f rivolous." See , e.g ., id. at 17 (" [S cott] claimed that Mr. Hicke y should have soug ht an additional $84,000 fr om DOE base d on her inter pretation of the L aff

ey Matrix even though their Ag ree ment did not require the use of the L aff ey Matrix."). And still others, Hickey writes, "ha ve no basis in law." See, e.g ., id. (" Her claim under

[t he D.C. Consumer Protec tion Procedur es Ac t] is not applicable to Mr. Hic key as a pr acticing attorney .") ; Hickey ' s Answer at pp. 17-20. The Court nee d not linger on this counterclaim, which is frivolous. Hickey insists that "[Scott's] actions in this case, pa rticularly her e arly counter claims[,] must be viewed a s blackmailing Mr. Hicke y into dropping his litigation." Hicke y ' s Mem. at 18. On this rec ord, no

rea sonable jury

could so find. Even a ssuming that Scott took various leg al positions in t his litigation to evadepaying H ickey -- and many

of the positions Hickey

challeng es we re taken by Scott while defe nding he rself pr o se and a bandoned onc e she obta ined counse l -- an ulterior motive by itself is insufficient to sustain a claim for abuse of proce ss. See Scott v. Dist. of Columbi a, 101 F .3d 748, 755 (D.C. Cir. 1996) (" As the Restateme nt of Torts makes c lear , the fac t that a per son acts spitefully , maliciously , or with an ulterior motive in inst ituting a leg al proce eding is insufficient to establish abuse of proce ss.") ; Morowitz, 423 A.2d at 198. And despite Hicke y ' s speculation, ther e is no evidenc e that, throug h this li tigation, Scott has "a chieve [d] . . . some end not conte mplated in the re g ular prose cution of the c harg e," or has eng ag ed in a " perve rsion of the judicial proc ess." Morowitz, 423 A.2d at 198. Hence , summary judgme nt is appropriate for Scott on this counterc laim.
-26-C. Conversion

I n his final counter claim, Hicke y contends that Scott committed conver sion by failing to turn over immediate ly

the EEOC' s attorney ' s fee awa rd, and by failing to pay

the intere st acc rued on this amount. S ee H ickey ' s Answer at p.21; see a lso Choharis v. State Farm Fire & Ca s. Co., 961 A.2d 1080, 1089 n.13 (D.C. 2008) ( "T he esse nce of a conversion is a wrong ful taking or a wrong ful rete ntion of property afte r a rightf

ul possession." (internal quotation marks omitted)). But a ny entitlement Hickey

had to these f

ees de rived fr om the parties' ag ree ment, not from the fee awa rd itself. And " ' [f] ailure by a contr acting party

to pay the contra ct priceor debt . . . is not

conver sion but merely

brea ch of c ontrac t.'" I d. (quoting Br and I ron, Inc. v. Koe hring Co., 595 F. Supp. 1037, 1040 (D. Md. 1984)); see also Br and I ron, 595 F . Supp. at 1040 (" I f thereis no Maryland ca se that has spe cifica lly stated this disti nction, it is probably beca use it is so ge nera lly understood it is not freque ntly litigated." ). Ac cording ly , Hickey ' s counterc laim for conve rsion fails. IV. The Par ties' Motions f or Sanctions Arg uing that Hickey ' s counterc laims for fr aud and a buse of pr ocess a

re " patently frivolous," Scott seeks sanc tions ag ainst him pursuant to Fede ral Rule of Civil Procedure11. Scott's Mot. for Sanc tions [ Docke t Entry 73], at 1. "Rule 11 imposes a duty on attorney s to

certify that they have c onducted a

rea sonable inquiry

and havedetermined that any paper s filed with the court a

re w ell-g rounded in fa ct, leg ally tenable, and not interposed for any improper purpose." Cooter & Gell v. Hartmarx C orp., 496 U.S. 384, 393 (1990) ( internal quotation marks omitted). The rule ' s tex t provides, in rele vant part, that [b] y prese nting to the c ourt a plea ding, w ritten motion, or other pape r . . . an -27-attorney or unre prese nted party

cer tifies that to the best of the pe rson' s knowledg e, information, and be lief, formed af ter a n inquiry

rea sonable unde r the circ umstances:

. . . (2) the c laims, defense s, and other le g al contentions ar e wa rranted by

exis ting law or by a nonfrivolous arg ument for e x tending , modify ing, or reve rsing exis ting law or f or establishing new law

. Fe d. R. Civ. P . 11(b). Rule 11 permits courts to awa rd sanc tions for violations of Rule 11(b). See F ed. R. Civ. P. 11(c)( 1) (" I f, af

ter notice and a r easona

ble opportunity

to respond, the c ourt determines that Rule 11(b) ha s been violate d, the court may impose an appr opriate sanction on any attorney , law firm, or pa

rty that violated the rule or is responsible for the violation.") . "' The test [for sanc tions] under Rule 11 is an obje ctive one: that is, whe ther a rea sonable inquiry

would have r evealed that there was no ba sis in law or fac t for the a sserted c laim. The Court must also take into consideration that Rul e 11 sanc tions are a harsh punishment, and w hat ef fec t, if any , the alleg ed violations may

have ha d on judicial proce eding s.' " Scr ug g s, 258 F.R.D. at 180- 81 (quoting Sharp v. Rosa Mexi cano, D .C., LL C, 496 F. Supp. 2d 93, 100 (D.D.C. 2007))

. The Court ag ree s with Scott t hat sanc tions are a ppropriate here . Hickey ' s counterc laims for f raud and abuse of

proce ss arefrivolous. Any rea sonable attorney

would have recog nized, afte r the c ompletion of discovery , that the re cord la cks any evidenc e of f

raud or abuse of proce ss. And any rea sonably

attorney would have r ealized, af

ter e ven a c ursory

inquiry , that those claims

are not "wa

rranted by

exis ting law or by

a nonfrivolous arg ument for e x tending , modifying, or

reve rsing exis ting law or for establishing ne w law." See F ed. R. Civ. P. 11(b)(2). Ye t not only has Hicke y

vigor ously

defe nded his meritless counter claims, but he has e ven soug ht summary

-28-judgme nt on them. 1 9

Hickey ' s persistent prosec ution of these fr ivolous counterclaims is consist ent with his

overa ll approac h to this l itigation. See A tkins v. Fischer , 232 F.R.D. 116, 129 (D .D.C. 2005) (" It has long been he ld that in considering the implementation of sanc tions ag ainst a party or a counsel to a litig ation, a district court may consider a ll the circumstanc es surrounding the alleg ed violation."). F or one, H ickey ' s submissi ons do not refle ct the due c are that this Court ex pects from an e x perie nced me mber of the bar: his filing s are filled with often-ina ccur ate c itations to irrele vant ca selaw, and include innumera ble and blatant typog raphic al and g rammatica l error s that even a

cursory proofr ead should c atch. Moreimportantly , this is not the first time the Court has criticiz ed Hicke y ' s behavior. E arly in this action, the Court chastised Hicke y for " bickering over te chnica l pleading require ments" and for " over- litigation." May 12, 2008 Orde r at 2, 3 n.1. The Court later

reiter ated its frustration with "Hicke y ' s fre quent filing s and g ener al litigation strateg y ." A ug ust 19, 2009 Order [Docket Entry

59], at 1. Yet Hickey ' s memoranda reve al that he has c onsistentlyfailed to he ed the Court' s warning s; his countercla ims for fraud and abuse of proce ss are mere ly

the most eg reg ious ex amples. Ac cording ly , the Court will gr ant Scott's motion for sanctions pursuant to F eder al Rule of Civil P roce dure 11. 2 0

Scott does not seek sanc tions with respect to Hicke y ' s counterc laim for conve rsion. 1 9 Hickey ' s opposition t o Scott's motion for sanc tions larg ely trac ks the arg uments he 2 0 makes in his summary

judgme nt briefing , and the Court will not reiterate its discussion of those points here. Hic key

also contends that Scott' s motion shoul d be denie d beca use of se vera l technica l deficie ncies -- for e x ample, that it is dupliciti ve of he r ea rlier briefing , that it does not adequately

describe the conduc t that alleg edly violates Rule 11, that it does not provide a spe cific acc ounting of

the attorne y ' s fee s and costs soug ht, and that Scott failed to mee t and conf er be fore filing it. See H ickey ' s Opp' n to Scott's Mot. for Sanc tions at 2-5. None of these objec tions is persua sive. Nor doe s the Court ag ree , as Hicke y urg es, that it "should tre at Scott's f ailure to file a (continued...) -29-Thererema ins the question of what sanc tions are a ppropriate in this case. Rule 11 sanctions " must be limi ted to what suff ices to dete r re petition of the conduc t or compar able conduct by

others similarly

situated." Fe d. R. Civ. P . 11(c) (4). " The sanc tion may include nonmonetary

direc tives; an order

to pay a pena lty into court; or, if imposed on motion and

war rante d for e ffe ctive dete rre nce, an order direc ting payment to the movant of part or all of the

rea sonable attorney ' s fee s and other e x penses dire ctly resulting from the violation." I d. Courts possess "virtually

untrammeled" discretion in fixi ng the amount of sanc tions to be imposed for Rule 11 violations, provided that the sanctions ar e " appropriate to the fa cts of the c ase." Hilton Hotels Corp. v. Banov, 899 F.2d 40, 46 ( D.C. Cir. 1990) (interna l quotation marks omitted). I n view of the duration, pattern, and scope of Hicke y ' s sanctionable c onduct, the Court conclude s that monetary

sanctions ar e nec essar

y to deter f urther violations of Rule 11. Hic key ' s counter claims for f

raud and abuse of

proce ss require d signific ant expenditures of time, both by the Court and by

Scott's c ounsel. Given the amount of work cr eate d by these two plainly meritless counter claims, the Court conc ludes that the appr opriate sanction is to require H ickey to pay for Scott' s rea sonable attorney ' s fee s incurre d -- f ollowing the c ompletion of discovery -- in defe nding a g ainst those counter claims. Hicke y must also pay

for Scott' s rea sonable attorney ' s fee s incurre d in seeking these sanc tions. 2 1 (...continued) 2 0 Reply [i n support of her

motion for summary

judgme nt] as a w ithdrawa l of" that motion, and as being inconsistent with her motion for sanc tions. I d. at 2. Rule 11(c) (5)( a) pr ohibits courts from imposing monetary sanctions ag ainst "a 2 1 repr esente d party " f

or violations of Rule 11(b)( 2). Hicke y is procee ding pr o se on his counter claims for f

raud and abuse of

proce ss, and thus is not "a r epre sented pa rty " f or purpose s of this sanctions awa

rd. The Court' s discussion of Hickey ' s sanctionable c onduct, and of (continued...) -30-Along with his opposit ion to Scott's motion for sanctions, Hicke y has also moved f

or sanctions pursuant to Rule 11 and 28 U .S.C. § 1927. Hickey contends that many , if not most, of the leg al positions taken by Scott and her c ounsel throug hout this l itigation ar e sanc tionable. See Hickey ' s Opp' n to Scott's Mot. for Sanc tions at 11-21. Hickey ' s motion i s baseless. The Court has thoroug hly

revie wed Scott' s numerous submissions t o the Court -- including her now

withdrawn c ounterc laim under the D .C. Consum er Protec tion Procedure s Act. B ased on that revie w, the Court conc ludes that none of Scott' s filings we re " prese nted for any improper purpose" ; that "the c laims, defense s, and other le g al contentions" there in "a re w arr anted by exis ting law or by

a nonfrivolous arg ument for e x tending , modify ing, or reve rsing exis ting law or for e stablishing new law" ; and that " the fa ctual conte ntions" they include " have e videntiary support." SeeFe d. R. Civ. P . 11(b)( 1)-( 3). The Court f urther c oncludes that ne ither Scott nor her attorney s have " multipl ie[d] the proc eeding s in [ this] case unrea sonably and vexatiously ." See 28 U.S.C. § 1927. Acc ording ly , the Court will deny Hickey ' s motion for sanctions. CONCLUSION For the re asons desc ribed a

bove, the Court will g rant in part and deny in part both Hickey ' s motion for summary judgme nt and Scott's motion for pa rtial summary

judgme nt. The Court will also deny

Hickey ' s motion t o strike, will gr ant Scott's motion to voluntarily dismiss , will gr ant Scott's motion for sanctions, and will deny Hickey ' s motion for sanctions. A sepa rate Orde r ac companies this Memorandum Opinion.

(...continued) 2 1 Hickey ' s other beha vior during this li tigation, does not apply to Hickey ' s defe nses ag ainst Scott's counter claims, for w hich Hicke y is repre sented by

counsel. -31-/s/ J OHN D. B ATES United States District J udg e Dated: Septembe r 16, 2010

-32-