Thomas D. Warren, Justice, Superior Court.
Before the court is a motion by defendants Thomas Hallett, Michael Whipple, and the Hallett Law Firm (collectively, " the Hallett defendants") to dismiss plaintiff Charles Swanson's amended complaint for legal malpractice based on the Hallett defendants' representation of Swanson in a criminal case. The case resulted in guilty pleas to various charges including four felony charges of Unlawful Sexual Contact that resulted in a lifetime registration requirement under Maine's Sex Offender Registration and Notification Act (SORNA), 34-A M.R.S. § 11201 et seq .
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 101. 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 his claim. Moody v. State Liquor & Lottery Commission , 2004 ME 20 ¶ 7, 843 A.2d 43. However, a 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 703 ¶ ¶ 6-7, 708 A.2d 283.
This case raises the question of whether a convicted defendant in a criminal case can sue the lawyer who represented him for malpractice when the defendant's convictions have not been set aside, when the defendant has not been exonerated, and when he does not make any claim that he is actually innocent of the crimes in question.
Swanson alleges that the Hallett defendants represented him when he was charged with four felony counts of unlawful sexual contact, three misdemeanor counts of unlawful sexual touching, and two misdemeanor counts of domestic violence assault. See Amended Complaint ¶ 5 and docket sheet in State v. Swanson , CR-10-7720, which is attached to Swanson's complaint. The four unlawful sexual contact counts were brought under 17-A M.R.S. § 255-A(1)(M), which applies to sexual contact with a person under 18 by a parent, stepparent, foster parent, guardian or other similar person responsible for the care and welfare of the person in question.
Swanson further alleges that the Hallett defendants were aware that he did not wish to accept any plea offer that would have involved a lifetime registration requirement. He alleges that they negotiated a plea agreement and incorrectly represented that it would result in only a 10 year registration requirement. He accepted the plea bargain, which involved guilty pleas to all counts, and later learned that the four felony convictions for unlawful sexual contact resulted in a lifetime registration requirement. Amended Complaint ¶ ¶ 8, 10-11, 15. The docket sheet shows that Swanson received a concurrent sentence of three years, all but 9 months suspended with three years' probation, on each of the felony unlawful sexual contact convictions.
Under SORNA, any single conviction for unlawful sexual conduct under 17-A M.R.S. § 255-A(1)(M) would result in a 10 year registration requirement. See 34-A M.R.S. § § 11203(5), 11203(6)(B). Because Swanson had pled to multiple counts of unlawful sexual contact under section 255-A(1)(M) for acts on different dates, he became subject to a lifetime registration requirement pursuant to 34-A M.R.S. § 11203(8)(B)(2)(b).
Swanson alleges that at the time of his plea it was believed by all parties that his pleas would result in only a 10 year registration requirement and that, but for the Hallett defendants' professional negligence, he would have obtained a negotiated plea that would have resulted in a 10 year registration requirement. Amended Complaint ¶ ¶ 13, 17. The latter allegation may be very difficult to prove because the lifetime registration requirement is based on Swanson's plea to more than one felony count of unlawful sexual contact. To have been relieved of the status of a lifetime registrant, therefore, Swanson would have to show that the State would have been willing to drop three of the felony unlawful sexual contact charges in exchange for his plea. Nevertheless the court accepts this allegation for purposes of the motion to dismiss.
In the amended complaint Swanson does not allege that his felony convictions for unlawful sexual contact have been set aside or that he has been exonerated on those charges. He also does not allege that he is actually innocent of those charges.
The Majority Rule Requiring Exoneration and/or Actual Innocence
In Brewer v. Hagemann , 2001 ME 27, 771 A.2d 1030, 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. 2001 ME 27 ¶ 6 & nn. 3-4. Some states have required both showings. E.g., Coscia v. McKenna & Cuneo , 25 P.3d 670, 672-73 (Cal. 2001). A minority of states have not required either a showing of exoneration or a showing of actual innocence. Brewer , 2001 ME 27 ¶ 6 & n.5.
In Brewer the Law Court did not have to decide whether or not a showing of either exoneration or innocence is required in Maine because it found that Brewer's claim was barred by collateral estoppel. Brewer had brought a proceeding for post-conviction review, and the post-conviction finding that the outcome of his case would not have been different despite his counsel's ineffectiveness precluded him from proving causation on his legal malpractice claim. 2001 ME 27 ¶ ¶ 7-9.
Although the pleadings are silent on this issue, the court can take judicial notice that Swanson filed a petition for post-conviction review but withdrew that petition before hearing and before any findings were made by the court on whether the Hallett defendants were ineffective and whether Swanson would have entered his pleas if he had known he would be a lifetime registrant. Swanson v. State , CR-11-7956 (UCD Cumberland). The Hallett defendants argue that, even without adverse post-conviction findings, Swanson is collaterally estopped by his convictions from arguing that his harm was caused by anything other than his own criminal conduct. There is some support for this argument in the Law Court's decision in Butler v. Mooers , 2001 ME 56 ¶ 9, 771 A.2d 1034, in which a defendant who had in the course of his guilty plea had acknowledged that he had acted knowingly and willfully was held to be precluded from arguing that his criminal conduct had resulted from his attorney's negligent legal advice.
In the alternative, however, the court predicts that, if presented with the issue, the Law Court would follow the majority rule that where a defendant is arguing that he would not have been convicted but for the professional negligence of his attorney, he must first be exonerated or have the conviction set aside or prove that he is actually innocent of the charge. Cases establishing an exoneration rule include Canaan v. Bartee , 72 P.3d 911, 915-17 (Kan. 2003) (collecting cases); Gibson v. Trant , 58 S.W.3d 107, 116 (Tenn. 2001); 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 ...