# Butler v. Mooers

> Supreme Judicial Court of Maine · April 6, 2001 · 771 A.2d 1034

URL: https://www.frixlaw.com/law-library/cases/9728390

## Case

- **Full name:** Lawrence BUTLER v. Daniel MOOERS Et Al.
- **Court:** Supreme Judicial Court of Maine
- **Decided:** April 6, 2001
- **Citations:** 771 A.2d 1034; 2001 ME 56; 2001 Me. LEXIS 57
- **Precedential status:** Published
- **Opinion:** Dissent by Alexander
- **Judges:** Wathen, Clifford, Rudman, Dana, Alexander, Calkins
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728390

## How later opinions describe it (automated extraction)

- explaining that even assuming “Mooers negligently provided Butler with inaccurate legal advice, Butler’s plea of guilty and his acknowledgement that he ‘knowingly and willfully’ defrauded the banks preclude[d] a finding that his criminal conduct was nonetheless proximately cau…
- concluding that a defendant’s “plea of guilty and his acknowledgement that he ‘knowingly and willfully’ [committed a crime] precludes a finding that his criminal conduct was nonetheless proximately caused by . . . negligent legal advice”
- concluding that issue preclusion may be applied to a conviction based on a guilty plea because the precluded party was given a " 'full and fair opportunity to litigate in the prior suit'"

## Opinion text

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).
*1038 [¶ 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 , 771 A.2d 1030 ; 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. *1039 Bragg, 589 A.2d 35, 37 (Me.1991). Recently, we held that nonmutual collateral estop-pel can be invoked to apply a result from a criminal proceeding to bar a legal malpractice claim. Brewer, 2001 ME 27, ¶ 8 , 771 A.2d at 1031 . 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 es-toppel 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 granted.
[¶ 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 *1040 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, fact-dependent issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728390. Public record. Not legal advice.