CourtSuperior Court of Maine
PartiesALISON DICKEY, Plaintiff v. DAVID SINCLAIR, ESQ., et al., Defendants
Decision Date25 January 2017

DAVID SINCLAIR, ESQ., et al., Defendants


Superior Court of Maine

January 25, 2017



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 ¶ 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 ¶ 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 ¶ 7, 843 A.2d 43. However, a

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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 ¶¶ 6-7, 708 A.2d 283.

After defendants filed the pending motion to dismiss, Dickey filed an amended complaint that added one paragraph (¶72) 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 plaintiff's 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 ¶¶ 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 plaintiff's 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 ¶¶ 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 ¶¶ 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 ¶¶ 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 ¶¶ 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 ¶ 6 at n. 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," Plaintiff's Memorandum at 4, her amended complaint adequately alleges both exoneration and actual innocence. Sinclair disagrees.

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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

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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 Plaintiff's 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 of Public Defender, 31 A.3d at 936, 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 ¶¶ 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.

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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...

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