Averill v. Cox10/31/2000
As amended 11/22/00
Rockingham
The plaintiff, Richard Averill, appeals the Superior Court's (Gray, J.) orders granting the motion to dismiss filed by the defendants, Paul R. Cox and the law firm of Burns, Bryant, Hinchey, Cox & Rockefeller, P.A., and denying his motion for production of his case file. The plaintiff contends that the court erred by: (1) ruling that attorneys are per se exempt from the New Hampshire Consumer Protection Act (Act), RSA ch. 358-A (1984) (amended 1986, 1989, 1996, 1997, 1999); (2) finding that the parties are bound by an arbitration clause in their fee agreement; (3) finding his negligence and intentional tort claims to be fee disputes and therefore governed by the arbitration clause; and (4) refusing to order the defendants to produce his case file and trust account information. We affirm in part, reverse in part, and remand.
The relationship between the plaintiff and the defendants spans more than a decade and involves numerous transactions. We recite, however, only the relevant facts pled in the plaintiff's writ, see ERG, Inc. v. Barnes, 137 N.H. 186, 190, 624 A.2d 555, 558 (1993), or provided in the record on the motion to produce.
Due to the onset of severe depression in October 1985, the plaintiff was unable to continue working as a car salesman at Dreher-Holloway. Beginning in 1986, Attorney Cox represented him in a workers' compensation case against the dealership. At the outset of his representation, Cox and the plaintiff entered into an oral fee agreement under which Cox would be paid $85.00 per hour. In 1989, the parties changed the original fee agreement to a one-third contingency fee. The new agreement allowed either party to demand that any fee dispute be submitted to binding arbitration before the New Hampshire Bar Association's fee dispute committee.
After numerous appeals, including one to this court, see Averill v. Dreher-Holloway, 134 N.H. 469, 593 A.2d 1149 (1991), the plaintiff was awarded workers' compensation benefits totaling $215,494.91. In March 1992, Cox filed a motion with the superior court for attorney's fees and costs for the period between January 1986 and March 2, 1992, pursuant to RSA 281-A:44 (Supp. 1992) (amended 1993). Before a ruling was made, the plaintiff received a check from Dreher-Holloway for $9,774.67, which, at Cox's request, was endorsed to his law firm and deposited in the firm's trust account. The trial court subsequently awarded Cox $70,000 in attorney's fees and $3,010.10 in expenses for the period between April 14, 1987, and March 2, 1992. In July 1992, Cox sent the plaintiff a check for $1,399.80, representing that it constituted the amount remaining from a check the plaintiff had endorsed to the firm, but did not provide him with an accounting of the amount retained by the firm.
In 1993, the plaintiff and Dreher-Holloway reached a lump sum settlement of $115,000 for all past and future benefits. Based on this settlement, Cox successfully applied to the department of labor for an additional $23,000, representing the contingency fee portion of the $115,000. In so doing, he did not inform the plaintiff of any countervailing arguments under the contingency fee agreement or advise him to seek independent counsel on the issue. Cox then withheld $11,000 of the settlement proceeds to pay two of the plaintiff's medical bills. In return, Cox received $3,400 from the medical payees for collecting this money from the plaintiff. Before the plaintiff received the net settlement proceeds, an additional $5,193.24 was deducted from the firm's trust account to cover unenumerated "services and expenses."
The plaintiff sued the defendants, alleging breach of
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