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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-16-283
ALISON DICKEY,
Plaintiff V. ORDER
DAVID SINCLAIR, ESQ., et al.,
Defendants
Plaintiff Alison Dickey has brought a civil action for malpractice and violation of the
Unfair Trade Practice Act (UTPA) against defendants David Sinclair, Esq., and the Law
Office of David Sinclair LLC, P.A. (collectively, "Sinclair"). Dickey's claims arise from
Sinclair's representation of Dickey in a criminal case in which the charge was ultimately
dismissed after Dickey had obtained new counsel.
Before the court is a motion to dismiss by Sinclair.
Law Applicable to Motions to Dismiss
For purposes of a motion to dismiss, the material allegations of the complaint must
be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ,r 2, 54 A.3d 710. The
complaint must be read in the light most favorable to the plaintiff to determine if it sets
forth elements of a cause of action or alleges facts that would entitle plaintiff to relief
pursuant to some legal theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ,r 2, 909
A.2d 1010. Dismissal is appropriate only when it appears beyond doubt that the plaintiff is
not entitled to relief under any set of facts that he might prove in support of her claim.
Moody v. State Liquor & Lottery Commission, 2004 ME 20 ,r 7, 843 A.2d 43. However, a f-
plaintiff may not proceed if the complaint fails to allege essential elements of the cause of
action. See Potter, Prescott, Jamieson & Nelson P.A. v. Campbell, 1998 ME 70 irn 6-7, 708 A.2d 283.
After defendants filed the pending motion to dismiss, Dickey filed an amended
complaint that added one paragraph (,r72) alleging that she was innocent of the criminal
charge and that she had been exonerated by the dismissal of the charge. Defendants argue
that even as amended, Dickey's complaint fails to state a claim on which relief may be
granted. See Defendants' Reply Memorandum at 3. Accordingly, the court will consider the
motion as addressed to the First Amended Complaint.
While the court cannot ordinarily consider matters outside the pleadings on a
motion to dismiss, the court can consider official public documents, documents that are
central to a plaintiffs claim, and documents referred to in the complaint without converting
a motion to dismiss into a motion for summary judgment. Moody v. State Liquor and Lottery
Commission, 2004 ME 20 ,r,r 8-10. In this case, the court can consider the indictment, court
documents relating to the appointment of counsel, the deferred disposition agreement, the
dismissal, and the docket sheet in CR-12-7669 as those meet the criteria of being official
public documents that are central to plaintiffs claims, and many are mentioned in the
complaint. The court agrees with Dickey, however, that on a motion to dismiss, it cannot
consider factual assertions set forth in the criminal discovery in CR-12-7669 or in an
affidavit filed by Dickey in a subsequent civil case, CV-13-1310.
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Dickey's Allegations
Briefly stated, the amended complaint alleges that Dickey was indicted for felony
theft by unauthorized taking in 2012, that Sinclair represented her, and that Sinclair was
professionally negligent in negotiating and persuading her to accept a deferred disposition
agreement whereby she entered a plea of guilty to the felony theft charged in the
indictment. Under the agreement, after two years the charge would be reduced and result
in a misdemeanor conviction if Dickey paid $ 2,050.01 in restitution and complied with
certain other terms of the deferred disposition. First Amended Complaint ,r,r 58-59, 61, 63.
Dickey essentially alleges that she had valid defenses that were ignored by Sinclair,
that Sinclair failed to perform an adequate investigation of the charges, and that, after she
obtained new counsel, she was able to obtain a more favorable result consisting of a
dismissal of all charges although she had to pay an additional amount for restitution. First
Amended Complaint ,r,r 55-57, 60, 64-66, 68-69. She is seeking damages for harm to
reputation, mental distress, and attorneys fees and expenses incurred in obtaining the
dismissal of the criminal charge and in defending civil litigation in Georgia that arose from
the same events that led to the criminal charge.
On her claim for violation of the Unfair Trade Practice Act, Dickey alleges that
Sinclair made numerous deceptive and misleading representations or omissions, including
representations that he had the requisite skill and experience to represent Dickey although
he had only been admitted to the bar for two years, along with a failure to disclose that he
had personal and family matters that distracted him from his legal practice. First Amended
Complaint ,r,r 54, 81.
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Majority Rule Requiring Showing of Exoneration and/or Actual Innocence
Sinclair argues that where a criminal defense attorney is sued for legal malpractice,
the plaintiff is required not only to plead and prove the standard elements of a legal
malpractice claim, 1 but must also plead and prove that she was exonerated in the case and
that she was actually innocent of the crime charged. This is an issue that the Law Court
noted - but did not decide - in Brewer v. Hagemann, 2001 ME 27 ,r,r 6-7, 771 A.2d 1030.
In Brewer the Law Court noted that courts in a number of states had required
criminal defendants alleging malpractice by their defense counsel to prove that they were
actually innocent of the crime charged while courts in other states had required that the
criminal conviction be overturned or the defendant otherwise exonerated. Id., citing cases
at nn. 3 and 4. Some states have required both showings. E.g., Coscia v. McKenna & Cuneo,
25 P.3d 670, 672-73 (Cal. 2001). There is also a minority of states that have not required
either a showing of exoneration or a showing of actual innocence. See Brewer, 2001 ME 27
,r6atn.5.
It does not appear that Dickey disagrees that she must plead and prove that she was
exonerated and that she is actually innocent of the charge in question. Her memorandum in
opposition to Sinclair's motion to dismiss simply states that, "assuming for the sake of
argument that the Law Court would adopt the majority rule," Plaintiffs Memorandum at 4,
her amended complaint adequately alleges both exoneration and actual innocence. Sinclair
disagrees.
1 The normal elements are (1) that the defendant attorney breached a duty to exercise or appropriate standard of skill and care, and (2) that the breach proximately caused injury to plaintiff. E.g., Brewer v. Hagemann, 2001 ME 27 ,r 5, 771 A.2d 1030.
4 Exoneration
To the extent that Dickey has preserved the argument that a showing of exoneration
is not required, the court concludes that if faced with the issue, the Law Court would
require at a minimum that a malpractice plaintiff show that she has been exonerated as one
of the elements of a legal malpractice claim against a criminal defense attorney appointed
to represent her.
Cases adopting an exoneration rule include Rogers v. Cape May County Office of
Public Defender, 31 A.3d 934, 939-940 (N.J. 2011); Canaan v. Bartee, 72 P.3d 911, 915-17
(Kan. 2003) (collecting cases); Noske v. Friedberg, 656 N.W.2d 409, 413-14 (Minn. App.
2000); Coscia v. McKenna & Cuneo, 25 P.3d at 672-73 (Cal. 2001); Gibson v. Trant, 58 S.W.3d
107, 116 (Tenn. 2001); Britt v. Legal Aid Society, 741 N.E. 2d 109, 111-12 (N.Y. 2000),
Berringer v. Steele, 758 A.2d 574, 597 (Md. App. 2000) (requiring criminal defendants to
obtain post-conviction relief as a predicate to recovery against counsel); Steele v. Kehoe,
747 So.2d 931, 933 (Fla. 1999); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex.
1995); and Stevens v. Bispham, 851 P.2d 556,566 (Or. 1993).
As long as a criminal defendant who seeks to assert a malpractice claim is still
subject to the criminal conviction about which she complains, she would be collaterally
estopped from demonstrating that but for the alleged malpractice, she would have
obtained a better result. A requirement of exoneration also follows from the principle that
it is inconsistent to simultaneously treat an existing criminal conviction as both legal and
wrongful. See Britt v. Legal Aid Society, 741 N.E.2d 109, 112 (N.Y. 2000); Noske v. Friedberg,
656 N.W.2d at 414. Moreover, as long as criminal charges are still pending, the same
5 defendant would, if convicted, be subject to a potential defense of collateral estoppel that
would preclude her claim.
In this case, however, the criminal charge has been dismissed, and Dickey is not
facing further criminal proceedings. Dickey argues that this meets the exoneration
requirement even though she acknowledges that criminal charge was at least ostensibly
dismissed "without prejudice." See Plaintiffs Memorandum in Opposition to Dismissal at 4.
Sinclair argues that only a dismissal "with prejudice" will suffice to meet the exoneration
requirement, citing the New Jersey Supreme Court's decision in Rogers v. Cape May County
Office ofPublic Defender, 31 A.3d at 9 36, 940-41.
In Rogers the New Jersey Supreme Court found that the plaintiff had not been
exonerated until the charges against him had been dismissed with prejudice. Until that
time, however, the plaintiff had been facing a potential retrial after his petition for post
conviction review had been granted, and the charges against him therefore remained
pending until the dismissal. 31 A.3d at 940.
In this case, in contrast, the charge has been dismissed, and no criminal charge is
pending. Moreover, even if the dismissal was stated to be without prejudice, the State
would be held to the plea agreement and would not be able to reinstitute the charges given
that Dickey has met her obligations under the deferred disposition agreement as amended.
See State v. Russo, 2008 ME 31 ,r,r 14-19, 942 A.2d 694.
Accordingly, Dickey has adequately demonstrated that she meets the requirement of
exoneration, and her amended complaint will not be dismissed on that ground.
6 Actual Innocence
The court further concludes that a criminal defendant asserting a claim of legal
malpractice by her defense attorney must also make a showing of actual innocence. 2 The
court's research indicates that courts in at least 13 states - California, Illinois, Kentucky,
Massachusetts, Nebraska, Nevada, New Hampshire, Pennsylvania, South Carolina, Virginia,
Washington, West Virginia, and Wisconsin - have so ruled. 3 The Supreme Court of Alaska
has agreed that actual innocence is relevant to a claim of malpractice on the part of a I criminal defense lawyer but concluded that the issue of whether the malpractice plaintiff
actually committed the crime is an affirmative defense to be raised by the malpractice
defendant. 4 The New York Court of Appeals requires that a person suing a criminal defense
lawyer for malpractice must allege "innocence or a colorable claim of innocence." 5
2 Once again, it does not appear that Dickey disputes the requirement that she plead and prove actual innocence.
3 Coscia v. McKenna & Cuneo, 25 P.3d at 672-73 (Cal. 2001); Wiley v. County of San Diego, 966 P.2d 983, 985-91 (Cal. 1998); Paulsen v. Cochran, 826 N.E.2d 526, 530-33 (Ill. App.), leave to appeal denied, 833 N.E. 2d 4 (Ill. 2005); Ray v. Stone, 952 S.W.2d 220, 224 (Ky. App. 1997); Correia v. Fagan, 891 N.E. 2d 227, 233-34 (Mass. 2008); Glenn v. Aiken, 569 N.E. 2d 783 (Mass. 1991); Rodriguez v. Nielsen, 6.09 N.W.2d 368, 373-75 (Neb. 2000); Morgano v. Smhh, 879 P.2d 735, 738 (N,ev. 1994); Mahoney v. Shaheen, Cappiello, Stein & Gordon P.A., 727 A.2d 996, 999-1000 (N.H. 1999); Bailey v. Tucker, 621 A.2d 108,115 n. 12 (Pa. 1993); Brown v. Theos, 550 S.E.2d 304,306 (S.C. 2001); Taylor v. Davis, 576 S.E.2d 445,447 (Va. 2003); Adkins v. Dixon, 482 S.E.2d 797, 801-02 (Va. 1997); Piris v. Kitching, 375 P.3d 627, 630-31 (Wash. 2016); Ang v. Martin, 114 P.3d 637, 641-42 (Wash. 2005); Humphries v. Detch, 712 S.E.2d 795, 801 (W.Va. 2011); Hicks v. Nunnery, 2002 WI App. 87 ir,r 32-45, 643 N.W.2d 809 (Wisc. App. 2002), petition for review denied, 2003 WI 16, 657 N.W.2d 706 (Wisc. 2003).
4 Shaw v. State ofAlaska, 861 P.2d 566, 570-72 (Alaska 1993).
s Britt v. Legal Aid Society, 741 N.E. 2d 109, 111 (N.Y. 2000), quoting Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987). It is not entirely clear what the New York decisions mean by a "colorable" claim of innocence. However, it appears that they require something more than exoneration because they note that exoneration is required before a criminal defendant suing his counsel can even assert hls innocence. Britt, 741 N.E.2d at 111-12. ,
7 The court is aware that other courts have held that while a showing of exoneration
is necessary, a showing of actual innocence is not. E.g., Berringer v Steele, 758 A.2d at 597
(Md. App. 2000). Some courts have required exoneration but have reserved the question of
whether a showing of actual innocence is required or have otherwise declined to rule on
whether actual innocence must be shown. E.g., Canaan v. Bartee, 72 P.3d at 921 (Kan.
2003); Bloomer v. Gibson, 2006 VT 104 ,r 29, 912 A.2d 424.
The courts that have concluded that a showing of actual innocence is required have
relied on a number of considerations. Many of those are set forth in the California Supre me
Court's opinion in Wiley v. County of San Diego, 966 P.2d at 985-91, which notes that th~
actual innocence requirement has been followed by a "clear majority" the courts that have
confronted the issue. 966 P.2d at 985. Accord, Correia v. Fagan, 891 N.E. 2d at 234. Others
are listed in the Washington Supreme Court's decisions in Piris v. Kitching, 375 P.3d at 630
31, and Ang v. Martin, 114 P.3d at 641-42.
Some of the considerations cited in Wiley and in the other cases adopting an actual
,innocence requirement are more persuasive than others. Of the various rationales that
have been offered to support the "actual innocence" rule, the court finds two to be
compelling. The first is that the procedural safeguards in the criminal justice system and
the requirement that a conviction must be based on proof beyond a reasonable doubt serve
to protect defendants who have in fact committed the crimes charged as well as defendants
who are innocent. As a result, there is a difference between legal innocence and actual
innocence. See Correia v. Fagan, 891 N.E. 2d at 233-34; Ang v. Martin, 114 P.3d at 642.
Given that distinction, "[t]he notion of paying damages to a plaintiff who actually
committed the criminal offense solely because a lawyer negligently failed to secure an
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acquittal is of questionable public policy and is contrary to the intuitive response that
damages should only be awarded to a person who is truly free from any criminal
involvement." Wiley v. County ofSan Diego, 966 P.2d at 987 (citation omitted). As noted by
the Washington Supreme Court in ?iris v. Kitching, criminals should not benefit from their
own bad acts. 375 P.3d at 630. To the same effect, the New Hampshire Supreme Court
noted that allowing criminal defendants to recover for malpractice without a showing of
actual innocence would "engender disrespect for courts and generally discredit the
administration of justice.'~ Mahoney v. Shaheen, Cappiello, Stein & Gordon P.A., 727 A.2d at
999-1000, quoting State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498,504 (Mo. App. 1985).
Another important policy favoring an actual innocence requirement is that, as the
Massachusetts Supreme Judicial Court observed in Glenn v. Aiken, "the public has a strong
interest in encouraging the representation of criminal defendants, particularly those who
are ruled to be indigent." 569 N.E.2d at 788. Accord, Mahoney v. Shaheen, Cappiello, Stein &
Gordon, 727 A.2d at 1000. Most criminal defendants are represented by counsel appointed
at public expense or by private counsel whose fees are not substantial. As the
Massachusetts and New Hampshire courts have noted, the adoption of an actual innocence
rule encourages representation of criminal defendants by reducing the risk of malpractice
liability, while a contrary rule may dampen the willingness of lawyers to enter the criminal
defense arena. Glenn v. Aiken, 569 N.E.2d at 788; Mahoney v. Shaheen, Cappiello, Stein &
Gordon P.A., 727 A.2d at 1000.6 Accord, Bailey v. Tucker, 621 A.2d at 114.
6 In Wiley v. County of San Diego, the California Supreme Court observed that if they were potentially exposed to a greater number of malpractice suits, criminal defense attorneys might practice "defensive" law more frequently to insulate themselves from liability. "In our already overburdened system it behooves no one to encourage the additional expenditure of resources merely to build a record again a potential malpractice claim." 966 P.2d at 991, quoting Bailey v.
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A showing of actual innocence may not be required when, for instance, the claim of
malpractice relates solely to sentencing. In a case subsequent to Mahoney v. Shaheen,
Cappiello, Stein & Gordon P.A., the New Hampshire Supreme Court ruled that a criminal
defendant who acknowledged his guilt was not barred from bringing a malpractice claim
asserting that his attorney had unilaterally forfeited his ability to seek a lesser sentence.
Hilario v. Reardon, 960 A.2d 337 (N.H. 2008). That case, however, reaffirmed Mahoney's
actual innocence requirement when a criminal defendant is arguing that if his attorney had
not committed malpractice, he would not have been convicted. 760 A.2d at 344-45 (a
plaintiff must still demonstrate his actual innocence when the claim is based upon an
allegedly wrongful conviction or upon professional judgments intended to avert indictment
or conviction).
In sum, for the reasons set forth above - and because the court concludes that if
presented with this issue the Law Court would be likely to follow, among others, the courts
of California, Illinois, Massachusetts, New Hampshire, and Washington - the court
concludes that Dickey must plead and prove that she was actually innocent of the theft
charge in order to pursue her malpractice claim against Sinclair.
In her amended complaint Dickey in fact alleges that she was innocent of the
charges. First Amended Complaint ,r 72. Sinclair, however, points out that the indictment in
CR-12-7669 charges theft that occurred in Maine subsequent to August 27, 2012. 7 Sinclair
Tucker, 621 A.2d at 114. In Bailey the Pennsylvania Supreme Court noted that increased vulnerability to malpractice suits might also affect the willingness of criminal defense attorneys to exercise their independent legal judgment with respect to strategic and tactical decisions, such as whether to forego cross-examining a given witness. Id.
7 The indictment specifically charges that "between August 28, 2012 and September 19, 2012, in Cape Elizabeth, Cumberland County, Maine, Alison Dickey did commit theft ...."
10 argues that none of the factual assertions relating to Dickey's innocence in her amended
complaint address the charges of theft in Maine on or after August 28, 2012. Instead,
Sinclair argues, the factual allegations relating to innocence in Dickey's amended complaint
all concern alleged credit card charges incurred in Georgia prior to August 28, 2012. See
First Amended Complaint ,r,r 25-35 and particularly ,r,r 36-37.
Dickey's conclusory statement of innocence, Sinclair argues, is insufficient without
any supporting factual allegations directed to the alleged theft specifically charged in the
Maine indictment.
Under the facts as alleged in the complaint, it may be difficult for Dickey to prove
that she was actually innocent of any theft relating to post-August 27, 2012 credit card
charges in Maine - as opposed to pre-August 28, 2012 credit card charges in Georgia.
However, given Dickey's assertion of innocence, her allegation that she was told to use the
Goldblatt credit card "for whatever you need," First Amended Complaint ,r 25, and the rule
that on a motion to dismiss the complaint must be construed in the light most favorable to
plaintiff, Dickey's amended complaint is not subject to dismissal for failure to adequately
allege innocence.
Unfair Trade Practice Act Claim
Sinclair argues that Maine's Unfair Trade Practice Act does not apply to legal
services. There is at least one Superior Court decision to that effect, which noted the
Legislature had rejected a bill that would have expressly applied the UTPA to attorneys.
Kyricos v. Bezanson, 1999 Me. Super. LEXIS 350 (Superior Ct. Cumberland, order filed Dec.
27, 1999) (Delahanty, J.). Dickey points to a Law Court decision that can be read to assume
11 that the UTPA applies to lawyers although the decision did not expressly address the issue
and upheld the dismissal of a UTPA claim against an attorney on other grounds. Martin v.
Sullivan, 1997 ME 49 ,r,r 6-7, 691 A.2d 203.
The court does not need to reach the question of whether the UTPA applies to
lawyers generally because it concludes that the UTPA does not apply to the services of
counsel appointed by the court to represent indigent or partially indigent defendants under
the auspices of the Maine Commission on Indigent Legal Services (MCILS).
In such cases the attorney is not retained by the criminal defendant. The attorney is
selected and appointed by the court. The attorney's qualifications and experience are not
evaluated by a prospective client but by MCILS, which determines whether the attorney has
the requisite qualifications to be placed on the roster of those who may be appointed to
specific categories of cases, such as the felony theft charge at issue in this case.
The UTPA provides a civil remedy to any person who "purchases ... services" for
personal use and suffers a loss of money or property "as a result of the use or employment"
of an unfair or deceptive trade practice. Regardless of the misrepresentations and/or
omissions alleged in the amended complaint,B Dickey did not fit within the category of a
person who "purchased" services from Sinclair within the meaning of 5 M.R.S. § 213(1). A
person for whom an attorney is appointed by the court cannot be said to "purchase" the
services of the lawyer. Moreover, Dickey did not suffer any loss of money or property "as a
8 As noted above, Dickey contends that Sinclair represented that he was qualified to handle her case
and did not tell her he had only been admitted to the bar two years earlier. She also contends that he did not disclose that he was distracted by family and personal issues. First Amended Complaint ,r 81. Additionally, she complains that he represented that indigent clients would receive the same service as paying clients. Id. However, the equal treatment of indigent clients is required under the Maine Rules of Professional Conduct, see comment [3} to Rule 6.2, and a statement to that effect cannot constitute an unfair trade practice. 5 M.R.S. § 208(1)(8).
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result of the use or employment" of deceptive trade practices within the meaning of 5
M.R.S. § 213(1). Sinclair had already been appointed by the court when he spoke to Dickey
and any alleged misrepresentations or omissions that he made did not result in his
retention as her attorney.
In reaching the above result, the court is relying on the docket sheet and the file in
CR-12-7669, which demonstrate that Dickey filed a motion for appointment of counsel with
a financial affidavit on December 11, 2012, that she was found partially indigent by District
Court Judge Eggert on that date, that Judge Eggert ordered Dickey to pay $50 per month up
to a total of $ 1250 to reimburse MCILS for attorneys fees, and that Judge Eggert
simultaneously appointed David Sinclair to represent her. A notice of Sinclair's
appointment, dated December 11, 2012, is also contained in the file. The last entry on the
docket sheet shows that from January 2013 to March 2014 Dickey paid a total of$ 879
toward reimbursement of attorneys fees per Judge Eggert's order. These are all official
public documents of which the court can take judicial notice and can consider under Moody
v. State Liquor and Lottery Commission, 2004 ME 20 ,r,r 8-10.
Notwithstanding the above, Dickey's amended complaint appears to allege that she
engaged Sinclair as her attorney and paid him a fee to represent her. First Amended
Complaint ,r 52. If Dickey in fact contends that Sinclair was not her court-appointed lawyer
and that the docket sheet in CR-12-7669 and the documents from the file in CR-12-7669
referred to above are all erroneous, she may file a motion for reconsideration of the court's
ruling on her UFTA claim.
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The entry shall be:
Defendant's motion to dismiss is denied as to count I of the complaint (Attorney Malpractice). Defendant's motion to dismiss 'is granted as to count II of the complaint (Unfair Trade Practice Act claim). The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: January 2.~ 2017 --~Thomas D. Warren Justice, Superior Court