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Dickey v. Sinclair

Superior Court of Maine, Cumberland

January 25, 2017

ALISON DICKEY, Plaintiff
v.
DAVID SINCLAIR, ESQ., et al., Defendants

          ORDER

          Thomas D. Warren Justice.

         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 207, 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.

         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 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.

         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.

         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 ¶6atn. 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.

         E ...


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