D. Warren Justice.
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.
the court is a motion to dismiss by Sinclair.
Applicable to Motions to Dismiss
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, 9 plaintiff may not
proceed if the complaint fails to allege essential elements
of the cause of action. See Potter, Prescott, ]amieson
& Nelson PA. v, Campbell, 1998 ME 70 ¶¶
6-7, 708 A.2d 283.
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.
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 ¶¶ 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.
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.
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.
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.
Rule Requiring Showing of Exoneration and/or Actual
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,  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.
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 ¶6atn. 5.
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.