Contract: Law firm’s deficient performance breached agreement

Where the circuit court found a law firm first breached a representation contract on Oct. 1, 2020, so its client did not have a duty to pay any attorneys’ fees incurred after that date, and that decision was supported by the record, it was affirmed.

Background

David Nielsen hired Tremblay & Smith PLLC, or T&S, to represent him in custody and divorce proceedings. After Nielsen stopped paying T&S’s invoices, T&S sued him for breach of their legal services contract.

Nielsen argued that T&S breached the agreement first through deficient performance. The circuit court agreed and found that T&S breached the contract on Oct. 1, 2020, and that, accordingly, Nielsen was not required to pay attorney’s fees after that date. On appeal, Nielsen argues that the circuit court should have found that the breach happened in July 2020.

Analysis

At trial, Nielsen introduced emails from October 2020 that showed him asking his attorney, “Was the calendar that I gave your office presented to [the Judge]?” And, after Nielsen followed up a second time, noting that he was “[s]till looking for an answer to the calendar question below,” the attorney answered that “[i]t was presented in argument and in the order that we proposed.”

Because the calendar was not physically presented at the July hearing, the circuit court concluded, “Maybe it was a misunderstanding or whatever, but it was clear that the breach, the break, whatever you want to call it, occurred on that date” and that T&S “breached the rules of professional responsibility in diligence, candor, and communication” when the attorney “was less than forthright” in his email response to Nielsen.

Even though Nielsen testified that he supplied the calendar to T&S before the July 2020 hearing and expected it to be provided to the court for consideration at that time, he did not say that he specifically told his attorney to present the calendar then, or that his attorney promised to give the calendar to the court at that time. In fact, Nielsen testified that he felt “aggrieved” leading up to October 2020, but that he was “trying to give them the benefit of the doubt, [and] fully intending to pay for these services, until the straw that broke the camel’s back with Mr. Taggart lying directly to me in an e-mail ….”

Nielsen again testified that he had intended to keep paying all invoices “until [the attorney] lied about the services that he performed.” Given this testimony, and without any other evidence presented about T&S’s performance in July 2020, the court cannot say the circuit court’s factual determination that the breach occurred in October 2020, and not earlier, was plainly wrong or without supporting evidence.

Finally, Nielsen argues that the circuit court erred by not concluding that the “unclean hands” doctrine prevented T&S from collecting any payment for legal services rendered from July 2020 through October 1, 2020. Assuming without deciding that the

equitable “unclean hands” doctrine could ever provide relief from a contractual obligation to pay for legal services rendered, for the same reasons detailed above, the circuit court did not err in concluding that before Oct. 1, 2020, T&S did not have “unclean hands.”

Affirmed.

Nielsen v. Tremblay & Smith PLLC, Record No. 0311-23-2, May 14, 2024. CAV (unpublished opinion) (Lorish). Elliott M. Harding (Harding Counsel, PLLC, on briefs), for appellant. (Evan D. Mayo; Tremblay & Smith, PLLC, on brief), for appellee. VLW 024-7-150. 5 pp.