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Butler v. Mooers
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:   2001 ME   56
Docket:       Cum-00-375
Argued:       December 12, 2000
Decided:     April 6, 2001	

Dissent:  	  ALEXANDER , and DANA, JJ.


	[¶1]  This matter is before the Court on report, pursuant to M.R. Civ.
P. 72(c) by the Superior Court (Cumberland County, Delahanty, J.) after
denial of defendant Daniel Mooers' motion for summary judgment in
Lawrence Butler's legal malpractice action.  Mooers contends inter alia that
Butler is barred by nonmutual collateral estoppel from bringing this action
because of Butler's guilty pleas to federal criminal charges of bank fraud and
illegal currency structuring.  We accept the report and vacate the denial of
summary judgment.
	[¶2] The relevant allegations and facts may be briefly summarized as
follows:  Butler, an entrepreneur in the Portland area real estate market of
the 1970s and 1980s, achieved a net worth of approximately $9 million by
August of 1988.  Butler's assets at that time included real estate, cash,
marketable securities, and $1.5 million in a local bank account.   Mooers's
law firm represented Butler from the early 1970s, with Mooers acting as
Butler's sole attorney by the 1980s.  Butler alleges that in the early 1990s,
when the Portland area real estate market began to fail, Mooers developed
an "asset protection" plan for the $1.5 million bank account.  In furtherance
of this plan, the funds were transferred from the local bank to a number of
other banks in the United States and then to banks in the Bahamas. 
	[¶3] After transferring the funds to the offshore accounts, and with
his real estate holdings failing, Butler represented to banks foreclosing and
engaging in workout plans on his real estate that he had no significant cash
assets available to satisfy the debts on his real estate.  Butler alleges that
Mooers advised him that the transfer of funds to the offshore accounts was
legal and that once achieved, Butler could state that he had no assets
because they were beyond his direct control.  
	[¶4]  In 1995, Butler was charged by indictment in the United
States District Court with thirty-six counts of federal bank fraud, conspiracy,
money laundering, currency structuring, and other charges for transactions
that arose between 1990 and 1994 relating to the transfer of funds to the
offshore accounts.  In November of 1995, while represented by a different
attorney, Butler pled guilty to two counts of bank fraud, 18 U.S.C. § 1344(1)
and (2),{1} and two counts of illegal structuring of currency transactions, 31
U.S.C. §§ 5324(a)(3), 5313(a) and 5322, see also 31 C.F.R. § 103.11 and 18
U.S.C. § 2.{2}  
	[¶5]  As part of the plea process, Butler acknowledged the accuracy
of an extensive statement of the case presented to the court by the United
States Attorney, including an acknowledgement that Butler engaged in these
transactions and misled the banks knowingly and willfully, mental states
which were essential for conviction of the crimes charged.  Upon these
convictions, Butler was fined $525,000 and sentenced to serve
approximately 10 months in a federal corrections facility, plus a term of
probation.  Mooers was subsequently charged and pled guilty to one crime
involving improper handling of approximately $12,000 of Butler's funds.  
	[¶6]  Butler brought the present legal malpractice action against
Mooers asserting that Mooers was negligent in advising him regarding the
transfer of the funds to offshore investments, which resulted in Butler being
convicted and sentenced for four crimes.  Mooers moved for a summary
judgment asserting that Butler was collaterally estopped from bringing a
malpractice claim because he had pled guilty to the charges and
acknowledged that he had acted knowingly and willfully, and that the action
was also barred by the doctrines of judicial estoppel, pari delicto, and public
policy.  After a hearing, Mooers's motion was denied.  The Superior Court
granted Mooers' request to report the case to this Court pursuant to M.R.
Civ. P. 72(c) and stayed further action pending our resolution of the issues
	[¶7] Although the exception to the final judgment rule created by
M.R. Civ. P. 72(c) is narrow, the interlocutory ruling in this case was
appropriately reported.  Whether a defendant who pleads guilty to knowingly
and willfully defrauding a bank can maintain an action for malpractice
against an attorney who provided legal advice concerning those banking
transactions is an important issue that admits of some doubt and is very
likely to arise later in the normal course of the appellate process in the
present case.  The issue can be resolved now without any further factual
development, and our decision will in at least one alternative dispose of the
action.  See Swanson v. Roman Catholic Bishop of Portland, 1997 ME 63 ¶
6, 692 A.2d 441, 443.
	[¶8]  Turning to the merits, we conclude that the doctrine of
collateral estoppel is dispositive.  The doctrine prescribes that when issues
are actually litigated and finally adjudicated in a criminal proceeding, the
conviction "conclusively establishes all facts essential to the final judgment
of conviction" and is "preclusive in favor of a third party in a subsequent
civil action against the defendant in the criminal case." Hanover Ins. Co. v.
Hayward, 464 A.2d 156, 160 (Me. 1983).  We have applied the doctrine to
situations where the conviction is based on a guilty plea instead of a jury
verdict in reliance on the premise that it is the "'full and fair opportunity to
litigate in the prior suit' that protects due process rights." State Mut. Ins.
Co. v. Bragg, 589 A.2d 35, 37 (Me. 1991) (quoting Hossler v. Barry, 403 A.2d
762, 769 (Me. 1979)).
	[¶9]  To establish legal malpractice in the present case, Butler must
prove "(1) a breach by the defendant attorney of the duty owed to the
plaintiff to conform to a certain standard of conduct; and (2) that the breach
of the duty proximately caused an injury or loss to the plaintiff." Niehoff v.
Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 7, 763 A.2d 121, 124
(citations omitted). "Proximate cause exists in professional malpractice
cases where 'evidence and inferences that may reasonably be drawn from
the evidence indicate that the negligence played a substantial part in
bringing about or actually causing the injury or damage and that the injury or
damage was either a direct result or a reasonably foreseeable consequence of
the negligence.'" Id. ¶ 8.  Thus, even if we assume that Mooers negligently
provided Butler with inaccurate legal advice, Butler's plea of guilty and his
acknowledgement that he "knowingly and willfully" defrauded the banks
precludes a finding that his criminal conduct was nonetheless proximately
caused by Mooers' negligent legal advice.
	The entry is:
			Order denying a summary judgment vacated. 
			Remanded to the Superior Court for entry
			of a summary judgment in favor of Mooers.

ALEXANDER, J., with whom DANA, J., joins, dissenting. [¶10] I respectfully dissent. The record in this case is not sufficiently developed for us to accept the report and to rule that the collateral estoppel doctrine renders lawyers immune from suit for providing negligent advice, causing a client to commit crimes, when the client pleads guilty to those crimes. [¶11] A report is an exception to the final judgment rule which we have repeatedly said "should be used sparingly." White v. Fleet Bank of Maine, 1999 ME 148, ¶ 2, 739 A.2d 373, 374; Morris v. Sloan, 1997 ME 179, ¶ 7, 698 A.2d 1038, 1041; Luhr v. Bickford, 661 A.2d 1141, 1142 (Me. 1995); State v. Placzek, 380 A.2d 1010, 1013 (Me. 1977). [¶12] Even when the trial court makes a preliminary decision to report, we independently determine whether, under the circumstances of the particular case, a decision on the merits of the report "would be consistent with our basic function as an appellate court," or would improperly place us "in the role of an advisory board." Morris, 1997 ME 179, ¶ 7, 698 A.2d at 1041 (citing Sirois v. Winslow, 585 A.2d 183, 184-85 (Me. 1991)). In making our independent determination, we assess a number of issues:
	(1) 	whether the question of law reported is of sufficient
importance and doubt to outweigh our policy against piecemeal
litigation, see id.; Swanson v. Roman Catholic Bishop of Portland,
1997 ME 63, ¶ 6, 692 A.2d 441, 443; Luhr, 661 A.2d at 1142; 	
	(2)	whether the question raised on report is an issue that
"might not have to be decided at all because of other possible
dispositions," Morris, 1997 ME 179, ¶ 7, 698 A.2d at 1041;
Sirois, 585 A.2d at 185; 
	(3)	whether our decision on the issue will, in at least one
alternative, dispose of the action, see Swanson, 1997 ME 63, ¶ 6,
692 A.2d at 443; and  
	(4)	whether our involvement in the case prior to entry of a
final judgment will encourage piecemeal litigation in cases
involving similar circumstances.  See Morris, 1997 ME 179, ¶ 7,
698 A.2d at 1041.  
	[¶13]  The policy considerations we have developed for considering
reports, judged against the present state of the record, counsel strongly against
reaching the merits of the report. 
	[¶14]  A legal malpractice action cannot wipe out a criminal conviction. 
If successful, it can only provide monetary compensation in the form of damages
for any loss or harm proximately caused by an attorney's negligence.  See Brewer
v. Hagemann, 2001 ME 27, ¶¶ 5, 7, -- A.2d --; Niehoff v. Shankman & Assocs.
Legal Ctr., 2000 ME 214, ¶ 8, 763 A.2d 121, 124; Corey v. Norman, Hanson &
DeTroy, 1999 ME 196, ¶ 14, 742 A.2d 933, 940; Steeves v. Bernstein, Shur,
Sawyer & Nelson, P.C., 1998 ME 210, ¶¶ 12-13, 718 A.2d 186, 190.
	[¶15]  The Court's opinion applies the doctrine of nonmutual collateral
estoppel to the proximate cause issue, but the nature of any injury that may be
subject to proximate cause analysis is difficult to identify.  The record indicates
that, on Mooers' advice, Butler invested approximately $1.4 million in high yield
investments through a money broker in the Bahamas.  Had Butler's creditors had
access to these funds, they would have been depleted.  For his criminal acts,
Butler paid approximately $525,000 in fines, but the record provides no
indication of what happened to the remaining $900,000, plus interest and any
appreciation.  If, as a result of Mooers' advice, Butler retained funds that he
otherwise would have lost, proving any additional damages may be problematic. 
Further, public policy considerations, recognized by law, may argue against
Butler recovering anything further from his attorney if Butler's illegal acts, based
on allegedly negligent advice, have already benefitted him by preserving
$900,000.  I do not suggest that this has occurred.  The record does not account
for the $900,000 and fails to reveal any disposition of the funds.  Unless this
issue can be resolved, the case could have another possible disposition that
would make a ruling on the immunity issue unnecessary.  See Morris, 1997 ME
179, ¶ 7, 698 A.2d at 1041; Sirois, 585 A.2d at 185.  
	[¶16] We have held that application of nonmutual collateral estoppel can
occur "on a case by case basis if it serves the ends of justice."  State Mut. Ins. Co.
v. Bragg, 589 A.2d 35, 37 (Me. 1991).  Recently, we held that nonmutual
collateral estoppel can be invoked to apply a result from a criminal proceeding to
bar a legal malpractice claim.  Brewer, 2001 ME 27, ¶ 8, --- A.2d at ---.  Thus,
the question of law before us is not really one of great doubt.  The real question
we are being asked is:  On the unique facts of this case, should the doctrine of
nonmutual collateral estoppel be applied to use Butler's plea to bar his
malpractice claim?  That is more a question of fact than a question of law.
	[¶17]  If use of nonmutual collateral estoppel is permitted only "on a case
by case basis if it serves the ends of justice," Bragg, 589 A.2d at 37 (emphasis
added), each application depends upon the facts of the case.  Here, the facts are
not yet fully developed.  There is a serious issue as to what damages may have
been proximately caused by any alleged negligence.  There is also a serious issue,
as asserted in Mooers' statement of material facts, regarding the nature of the
advice which Mooers gave to Butler and the extent of Butler's reliance on that
advice.  These are not matters easily resolved by a ruling of law before the
evidence is developed.  	
	[¶18]  We also must examine whether considering the report will
promote piecemeal litigation.  There is a significant summary judgment practice. 
We have been cautious to allow only a narrow range of interlocutory appeals from
denials of motions for summary judgment, most often where there is a clear legal
bar to the action such as immunity or res judicata.  See Pratt v. Ottum, 2000 ME
203, ¶ 15, 761 A.2d 313, 318; Dep't of Human Servs. v. Lowatchie, 569 A.2d
197, 199-200 (Me. 1990).  	
	[¶19]  Because a report is an exception to the final judgment rule which
should be used sparingly, we do not want to encourage easy access to appeals
from denial of motions for summary judgment by casually allowing reports from
such denials.  Here a trial judge, after review of the record and the law, and
mature consideration, determined that there are disputes as to material facts
which preclude summary judgment.  It should only be a rare instance where a
trial judge would second guess his or her own judgment and report to us as a
question of law an issue which the trial judge has already determined cannot be
resolved as a matter of law.  
	[¶20]  While our decision will dispose of the action in at least one
alternative, consideration of the report is inconsistent with the other policy
factors we have identified as important in deciding whether to consider reports
on the merits.  Consideration of the report from a denied motion for summary
judgment will invite piecemeal litigation.  It addresses a legal issue that
otherwise might not have to be decided because of other possible dispositions. 
On an inadequate record, it addresses a question of law-immunity for lawyers
who negligently advise clients to commit crimes-that should only be decided on
a fully developed record.  The basis for the court's action, application of the
doctrine of nonmutual collateral estoppel, is not a legal issue about which there
is great doubt.   Accordingly, on this record, the report was improvidently
	[¶21]  On the merits of the report, the Court's grant of immunity to
lawyers who negligently advise clients to commit crimes for which the client
pleads guilty is conceptually flawed.  The malpractice occurred when the
negligent advice was given.  The injury or damages, if any, proximately caused by
the malpractice began when Butler, acting on Mooers' negligent advice,
knowingly committed his crimes.  If Butler's malpractice claim was actionable
before he entered his pleas, it is difficult to see how admitting his mistake and
mitigating any further losses from reliance on his lawyer's bad advice should
forfeit Butler's malpractice claim.  This result hardly "serves the ends of justice"
which we have held is a prerequisite to application of the doctrine of nonmutual
collateral estoppel.
	[¶22]  I would discharge the report and not reach this difficult, fact­p;
dependent issue.

Attorneys for plaintiff: Stuart W. Tisdale Jr., Esq., (orally) Mary A. Davis, Esq. Tisdale & Davis, P.A. P O Box 572 Portland, ME 04112 Attoneys for defendant: Paul F. Macri, Esq., (orally) Tyler N. Kolle, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961
FOOTNOTES******************************** {1} . 18 U.S.C. § 1344 reads as follows: § 1344. Bank fraud Whoever knowingly executes, or attempts to execute, a scheme or artifice-- (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 18 U.S.C. § 1344 (1995). {2} . The relevant sections are as follows: § 5324. Structuring transactions to evade reporting requirement prohibited (a) Domestic coin and currency transactions.--No person shall for the purpose of evading the reporting requirements of section 5313(a) or 5325 or any regulation prescribed under any such section-- . . . . (3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions. 31 U.S.C. § 5324 (Supp. 1995). § 5313. Reports on domestic coins and currency transactions (a) When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency . . . in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes. A participant acting for another person shall make the report as the agent or bailee of the person and identify the person for whom the transaction is being made. 31 U.S.C. § 5313 (1983 & Supp. 1995). § 5322. Criminal penalties (a) A person willfully violating this subchapter or a regulation prescribed under this subchapter (except section 5315 or 5324 of this title or a regulation prescribed under section 5315 or 5324) shall be fined not more than $250,000, or imprisoned for not more than five years, or both. (b) A person willfully violating this subchapter or a regulation prescribed under this subchapter (except section 5315 or 5324 of this title or a regulation prescribed under section 5315 or 5324), while violating another law of the Untied States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period, shall be fined not more than $500,000, imprisoned for not more than 10 years, or both. (c) For a violation of section 5318(a)(2) of this title or a regulation prescribed under section 5318(a)(2), a separate violation occurs for each day the violation continues and at each office, branch, or place of business at which a violation occurs or continues. 31 U.S.C. § 5322 (1983 & Supp. 1995).