Poor v. Lindell

STATE OF MAINE BUSINESS & CONSUMER COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. BCD-CV-2018-00027

FREDERIC J. POOR, et al., )
)
Plaintiffs, )
) ORDER DENYING
) DEFENDANT ALTHEA
v. ) LATADY’S MOTION FOR
) SUMMARY JUDGMENT
)
ROBERT KENNETH LINDELL, JR., )
et al., )
)
Defendants. )

BACKGROUND

Before the Court is the Motion for Summary Judgment filed by Defendant Althea Latady

(f/k/a Althea Lindell) in the above-captioned matter (the “Motion”). For the reasons discussed

below, the Motion is DENIED.

LEGAL STANDARD

Summary judgment is appropriate when the parties’ statements of material facts and the

portions of the record referenced therein “disclose no genuine issues of material fact and reveal

that one party is entitled to judgment as a matter of law.” Currie v. Indus. Sec., Inc., 2007 ME 12,

¶ 11, 915 A.2d 400 (citing M.R. Civ. P. 56(c)). “A material fact is one that can affect the outcome

of the case, and there is a genuine issue when there is sufficient evidence for a fact finder to choose

between competing versions of the fact.” Lougee Conservancy v. CitiMortgage, Inc., 2012 ME

103, ¶ 11, 48 A.3d 774 (quoting Stewart-Dore v. Webber Hosp. Ass’n, 2011 ME 26, ¶ 8, 13 A.3d

773). The Court must view the record facts in the light most favorable to the non-moving party

and must draw all reasonable inferences in favor of the same. Watt v. UniFirst Corp., 2009 ME

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47, ¶ 21, 969 A.2d 897 (citations omitted); Levis v. Konitzky, 2016 ME 167, ¶ 20, 151 A.3d 20.

When the defendant is the moving party, it must establish that there is no genuine dispute

of fact and that the undisputed facts would entitle it to judgment as a matter of law. Diviney v.

Univ. of Me. Sys., 2017 ME 56, ¶ 14, 158 A.3d 5. To withstand a defendant’s motion for summary

judgment, the plaintiff must in turn establish a prima facie case for each element of their cause of

action. Watt, 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted). If they do not present sufficient

evidence on the essential elements, then the defendant is entitled to a summary judgment. Id.

FACTS

For the limited purpose of deciding Latady’s Motion, resolving all inferences in favor of

the Plaintiffs, the record demonstrates the following genuine issues of material fact.

Latady married Lindell during 1991; they have three children together. (Def.’s S.M.F. ¶ 1;

Pls.’ S.M.F. ¶¶ 3-4.) Lindell worked as an investment advisor throughout their marriage. (Def.’s

S.M.F. ¶ 4.) Latady knew that Lindell was sanctioned by securities regulators for violations he

committed during 2001, and during 2009 or 2010. (Pls.’ S.M.F. ¶ 4.) Lindell did not keep the

sanctions or related investigations secret from Latady. (Pls.’ S.M.F. ¶ 5.) Sometime during early

2017, Latady learned that Lindell was investigated and criminally charged for stealing funds from

Plaintiffs’ trusts. (Def.’s S.M.F. ¶ 10.)

A Senior Investigator for the Office of Maine Securities conducted the investigation

involving Lindell. (Pls.’ S.M.F. ¶ 43.) Her investigation revealed that Lindell stole millions of

dollars, including from Plaintiffs’ trusts, and that Lindell spent the money for his personal use and

that of his family’s. 1 (Pls.’ S.M.F. ¶ 44.) On March 1, 2017, Lindell was indicted on one count of

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Plaintiffs are the beneficiary and trustee, respectively, to the estate of Phyllis J. Poor and trusts established
thereby: the Frederic J. Poor Special Needs Trust, the Frederic J. Poor Trust Dated August 20, 2004 (the
“2004 Trust”), and The Grandchildren’s Trust. (Def.’s Mot. Summ. J. 1.) In total, Lindell expended over
$1,500,000 from Phyllis Poor’s estate and personal accounts for his and his family’s benefit. (Pls.’ S.M.F.

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theft by unauthorized taking or transfer and one count of securities violations. (Pls.’ S.M.F. ¶ 45.)

Latady filed for a divorce during January of 2018, and she began cooperating with the

Maine Attorney General’s investigation into Lindell. (Def.’s S.M.F. ¶ 15.) The divorce finalized

during October or November of 2018. (Def.’s S.M.F. ¶ 31; Pls.’ S.M.F. ¶ 62.) Plaintiffs filed their

amended complaint naming Latady as a defendant in this civil matter on January 23, 2019. (Def.’s

S.M.F. ¶ 17.) Plaintiffs allege that Latady has not repaid to Plaintiffs monies that were paid to her

from their trusts and other accounts. (Pls.’ S.M.F. ¶ 76.) Plaintiffs seek compensatory and punitive

damages from Latady in connection with her marriage to Lindell and her concomitant access to

and enjoyment of the following accounts and assets, the transactions related to them, and the

proceeds therefrom.

I. The Frankfort and Cloverdale Properties

After their marriage, during 1992 Lindell and Latady purchased a home together in

Frankfort, Maine (the “Frankfort Property”). (Def.’s S.M.F. ¶ 2; Pls.’ S.M.F. ¶ 57.) They moved

to California during or around 2014 after Lindell was sanctioned again by securities regulators.

(Def.’s S.M.F. ¶ 4.) There, they began living in a home in Cloverdale, California, at 1850 Trimble

Lane (the “Cloverdale Property”), which Lindell purchased as an investment for the Plaintiffs’

trusts that he managed. (Def.’s S.M.F. ¶ 7; Pls.’ S.M.F. ¶ 21.) Latady was aware that Lindell

withdrew the purchase money from Plaintiffs’ trust funds. (Pls.’ S.M.F. ¶ 23.) According to

Latady, Lindell told Latady that in lieu of him charging Plaintiffs’ a substantial fee, as he was

permitted to do, they could live rent-free at the Cloverdale Property. (Def.’s S.M.F. ¶ 9.) Latady

lived with Lindell at the Cloverdale Property from 2014 through December of 2017. (Pls.’ S.M.F.

¶ 21.)

¶ 49.) After Phyllis Poor’s death, Lindell deposited over $1,700,000 into accounts held by the 2004 Trust.
(Pls.’ S.M.F. 50.) Lindell personally spent over $1,650,000 from those funds. (Pls.’ S.M.F. ¶ 51.)

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Lindell and Latady made substantial renovations to the Cloverdale Property before they

moved in. (Def.’s S.M.F. ¶ 8; Pls.’ S.M.F. ¶ 26.) The renovations included landscaping and

installation of irrigation, plantings, raised beds, a walkway, and construction of a small vineyard.

(Def.’s S.M.F. ¶ 8; Pls.’ S.M.F. ¶ 29.) Latady provided her input into the renovations to the home’s

flooring, cabinetry, and countertops. (Pls.’ S.M.F. ¶ 27.) She also helped select a new sound

system, which cost approximately $30,000. (Pls.’ S.M.F. ¶ 28.)

These improvements were made using funds in an amount exceeding $400,000 withdrawn

from the 2004 Trust. (Def.’s S.M.F. ¶ 8; Pls.’ S.M.F. ¶ 24.) Latady personally neither coordinated

nor contributed payment for any of the renovations. (Pls.’ S.M.F. ¶ 26.) The renovations were

completed by the time Latady and Lindell moved in. (Pls.’ S.M.F. ¶ 25.)

Latady eventually moved out of the Cloverdale Property during December of 2017. 2 (Pls.’

S.M.F. ¶¶ 69-70.) Neither she nor Lindell paid rent to the Plaintiffs for the time they lived at the

Cloverdale Property. (Pls.’ S.M.F. ¶ 76.)

On May 5, 2018, the Court granted an order of attachment in the amount of $3,000,000

against Lindell in the present action, which was recorded in the Waldo County Registry of Deeds

and encumbers the Frankfort Property. (Def.’s S.M.F. ¶ 18; Pls.’ S.M.F. ¶ 58.) Latady first learned

about the attachment and encumbrance to the Frankfort Property on September 14, 2018. (Pls.’

S.M.F. ¶ 58.)

After his indictment, on September 17, 2018, Lindell conveyed his interest in the Frankfort

Property to Latady via a quitclaim deed. (Def.’s S.M.F. ¶ 20; Pls.’ S.M.F. ¶ 61.) After the couple

divorced later that year, Latady was awarded the Frankfort Property and other marital assets.

(Def.’s S.M.F. ¶ 31;Pls.’ S.M.F. ¶ 63.) Latady continues to own the Frankfort Property, which she

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The parties offer alternative explanations for why Latady left the California and the Cloverdale Property.
(Def.’s S.M.F. ¶14; Pls.’ S.M.F. ¶ 69.) However, that dispute is not material to deciding the Motion.

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rents to tenants. 3 (Def.’s S.M.F. ¶ 34; Pls.’ S.M.F. ¶ 64.)

II. Bank Accounts & Deposits

In California, Lindell rented an office, continued working as an investment advisor and

managed investments for Plaintiffs’ trusts. (Def.’s S.M.F. ¶ 5.) Latady worked full-time in various

roles within the wine industry. (Def.’s S.M.F. ¶ 6; Pls.’ S.M.F. ¶ 8.) She earned between $18 and

$26 per hour for her work. (Pls.’ S.M.F. ¶ 9.)

Throughout their marriage, Lindell and Latady shared joint bank accounts. (Pls.’ S.M.F. ¶

6.) However, Latady also maintained her own personal bank account separately from their joint

accounts. (Pls.’ S.M.F. ¶ 7.) Latady deposited all of her earnings from her work for her California

employers into her separate, personal bank account. (Pls.’ S.M.F. ¶ 10.) During their time together

in California, Latady and Lindell also shared a joint Exchange Bank account, and possibly one

other Virtual Bank account. (Pls.’ S.M.F. ¶ 16.)

While they lived in California, Latady was responsible only for paying for her and Lindell’s

family’s healthcare needs, and for infrequent and miscellaneous expenses like groceries or for

activities for their children. (Def.’s S.M.F. ¶ 25; Pls.’ S.M.F. ¶ 11.) She also paid her tuition for a

certificate course, purchased wine, and made some payments on her credit card. (Pls.’ S.M.F. ¶

11.) However, she wasn’t responsible for utilities or any other of the family’s expenses. (Pls.’

S.M.F. ¶ 12.) Her unspent income went into her savings. (Pls.’ S.M.F. ¶ 13.)

Apart from Latady’s income, the Office of Maine Securities’ investigation revealed the

following deposits into Lindell and Latady’s joint bank accounts or Latady’s personal bank

account:

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The Frankfort Property would have a market value of about $250,000 if it were in good condition, but it
needs repairs that would cost approximately $35,000, and it is encumbered by a mortgage for the
approximate amount of $110,000 as well as a home equity loan for the approximate amount of $25,000.
Thus, present equity in the property is valued at approximately $80,000. (Def.’s S.M.F. ¶ 3.)

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• During the period from 2014 through 2016, $5,000 was disbursed into Lindell and
Latady’s joint Sabadell/Virtual Bank account from the 2004 Trust. (Pls.’ S.M.F. ¶ 55.)

• During the period from 2014 through 2016, $60,100 was disbursed from the 2004 Trust
and deposited into Latady and Lindell’s joint Exchange Bank account. (Pls.’ S.M.F. ¶
56.)

• A check in the amount of $1,120, dated February 24, 2017, was paid to “Althea Lindell”
from a bank account for the 2004 Trust. (Pls.’ S.M.F. ¶ 42.)

Latady also had her own accounts and investments. (Pls.’ S.M.F. ¶ 14.) Lindell agreed to

invest $100,000 that Latady had inherited for her. (Def.’s S.M.F. ¶ 11.) Lindell admitted to

spending nearly all of Latady’s savings, including the funds that she inherited, without her

knowledge or permission. (Def.’s S.M.F. ¶¶ 12-13; Pl.’s ¶ 67.) Latady and Lindell’s divorce

judgment includes specific findings that (1) Lindell spent Latady’s inheritance, and (2) he

conveyed to Latady his interest in the Frankfort Property to offset the amount he owed to her as a

consequence of spending her inheritance. (Def.’s S.M.F. ¶ 33.)

III. Barclays US L.L. Bean Credit Card

Latady also had a Barclays US L.L. Bean credit card in her own name, which she mostly

paid off herself but which Lindell sometimes paid for her. (Pls.’ S.M.F. ¶¶ 17, 19-20.) Lindell

made payments towards this credit card on two occasions when the couple lived in California

because Latady was trying to put away into savings as much of her income as possible. (Pls.’

S.M.F. ¶ 18.) The Office of Maine Securities’ investigation revealed over $24,000 was paid

towards Latady’s L.L. Bean credit card from the 2004 Trust and other sources. (Pls.’ S.M.F. ¶¶

52-53.) Notably, the investigation recorded one payment on June 12, 2012, in the amount of $9,000

from Phyllis Poor’s personal account made by Lindell as Power of Attorney. (Pls.’ S.M.F. ¶ 47.)

IV. Mortgage on the Cloverdale Property & Proceeds

During February of 2017, Lindell borrowed a mortgage on the Cloverdale Property in the

amount of $450,000. (Pls.’ S.M.F. ¶¶ 30-31.) Latady claims that Lindell told her that he purposed

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the borrowed funds for the development of a vineyard at the Cloverdale Property. (Pls.’ S.M.F. ¶

32.) However, Lindell and Latady generally used the Cloverdale Property as a typical, residential

family home, and not as a vineyard. (Pls.’ S.M.F. ¶ 33.)

To obtain the mortgage loan, Lindell provided the lender with a lease agreement, dated

June 20, 2014, that stated that the 2004 Trust was leasing the Cloverdale Property to Latady for

the amount of $3,500 per month. (Pls.’ S.M.F. ¶ 34.) The lease agreement purports to contain each

of Latady’s and Lindell’s signatures. (Pls.’ S.M.F. ¶ 35.) The dates next to the signatures of Lindell

and Latady appear to be written by two different individuals – they do not match. (Pls.’ S.M.F. ¶

36.) However, Latady claims that she did not sign the lease agreement. (Pls.’ S.M.F. ¶ 36.)

The proceeds from the mortgage on the Cloverdale Property were deposited into an

Exchange Bank checking account for the 2004 Trust, with Lindell named as the trustee. (Pls.’

S.M.F. ¶ 37.) On February 28, 2017, approximately $130,000 of the funds were immediately

transferred to Latady and Lindell’s joint bank account. (Pls.’ S.M.F. ¶ 38.) $71,000 of these funds

were then used to make credit card payments. (Pls.’ S.M.F. ¶ 39.)

V. Miscellaneous Disbursements From Trust Funds

As part of its investigation, the Office of Maine Securities created summaries of bank,

financial, and business records relating to Lindell’s criminal case. (Pls.’ S.M.F. ¶ 46.) The

investigation recorded the following disbursements made by Lindell from Plaintiffs’ trust funds

and other accounts:

• On May 10, 2012, a payment was made to John Bapst High School towards high school
tuition for Latady and Lindell’s son. (Pls.’ S.M.F. ¶ 48.)

• Payments from the 2004 Trust to Boston University in the amount of $13,500 towards
the tuition for Lindell’s and Latady’s child. (Pls.’ S.M.F. ¶ 54.)

• On March 3, 2017, $17,189.27 was paid from the bank account for the 2004 Trust to
Bank of America. (Pls.’ S.M.F. ¶¶ 39, 40.) The payment was labeled “Bank of America
Online Pmt, Lindell, Althea $17,189.27.” (Pls.’ S.M.F. ¶ 39.)

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• On March 3, 2017, a mortgage payment on the Frankfort Property in the amount of
$1,448.58 was made from the bank account for the 2004 Trust. (Pls.’ S.M.F. ¶ 41.)

• Numerous cash withdrawals were made and checks written from the bank account for
the 2004 Trust without an accompanying memo. (Pls.’ S.M.F. ¶ 52.)

DISCUSSION

In their Motion, Plaintiffs stipulate to dismissal of the following counts as to Latady: Count

II, breach of fiduciary duty; Count III, fraud; Count VIII, tortious interference with an expectancy;

Count X, civil conspiracy; and Count XI, intentional infliction of emotional distress. Latady’s

Motion requests a summary judgment on Plaintiffs’ Count I, conversion; Count V, unjust

enrichment; Count VI, punitive damages as to all causes of action; and Count IX, fraudulent

conveyance. Each issue is discussed separately below.

I. Conversion (Count I)

Conversion requires an actual and substantial interference with a party’s rights to their

property. Est. of Barron v. Shapiro & Morley, LLC, 2017 ME 51, ¶ 17, 157 A.3d 769 (citation

omitted). The elements a plaintiff must prove to establish their claim for conversion are: (1) that

the plaintiff has an interest in the property at issue; (2) that they had the right to possession at the

time of the defendant’s alleged conversion; and (3) that the plaintiff made a demand for the

property’s return, which was denied. Withers v. Hackett, 1998 ME 164, ¶ 7, 714 A.2d 798. (citation

omitted). However, the plaintiff need only make a demand if the defendant took the property

rightfully, hence “where the circumstances show that a demand would be useless, a demand is

unnecessary.” Id. (citation omitted). Further, the defendant need not intend to undertake any

wrongdoing; they must merely act with an intent to exercise dominion or control over the

plaintiff’s property that is in actuality inconsistent with the plaintiff’s rights. Mitchell v. Allstate

Ins. Co., 2011 ME 133, ¶ 15, 36 A.3d 876 (citation omitted). “A mistake of fact or law is no

defense.” Id. (citation omitted).

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In support of their conversion claim, Plaintiffs assert that Latady possessed and received

the following funds, to which Plaintiffs had a property interest:

1. Over $24,000 paid towards Latady’s Barclays US L.L. Bean credit card from the 2004
Trust and other sources;

2. The $17,189.27 payment by the 2004 Trust to Bank of America;

3. The mortgage payment for the Frankfort Property in the amount of $1,448.58, paid
from the 2004 Trust;

4. The $1,120 check paid to Latady by the 2004 Trust;

5. The $5,000 transferred into Latady and Lindell’s joint Sabadell/Virtual Bank account
from the 2004 Trust; and

6. The $60,100 transferred into Latady and Lindell’s joint Exchange Bank account from
the 2004 Trust. 4

The parties do not dispute Plaintiffs’ property interest in these funds or their right to possess

them. Latady, however, argues that she cannot be liable for conversion as a matter of law because

she did not intentionally exercise dominion or control over Plaintiffs’ property where Lindell, and

not herself, was the person who improperly disbursed the funds from Plaintiffs’ trust accounts. 5

(Def.’s Mot. Summ. J. 4.) In the Court’s view, this argument is unpersuasive in light of the

hornbook rule that a defendant’s use of another’s property as if they own it “is conversion.”

Simmons, Zillman & Furbish, Maine Tort Law § 6.05 (2018 ed. 2017 & Supp. 2022). Courts may

properly find that a defendant exercised the requisite dominion or control over a plaintiff’s

property “by simply possessing” it. Mitchell, 2011 ME 133, ¶ 18, 36 A.3d 876 (citations omitted). 6

4
The total amount of funds subject to Plaintiffs’ conversion claim is $109,150.92. (Pls.’ Opp’n to Def.’s
Mot. Summ. J. 11.)
5
Because neither Lindell nor Latady took Plaintiffs’ money rightfully, the requirement that Plaintiffs
prove they made a demand for return of their property that was rejected by Latady does not apply.
6
The Court is not aware whether the Law Court has considered a case in which a plaintiff asserts a
conversion claim against a passive spouse who shared bank accounts with an embezzling spouse. Neither
party briefed such a case. Other jurisdictions that considered such cases hold that the passive spouse,
irrespective of the absence of fault, may be liable for the conversion when there is evidence that (1) they
used the plaintiff’s property (i.e., spent funds) and (2) they knew or reasonably should have known that

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Here, viewing the record facts in the light most favorable to Plaintiffs, Plaintiffs have raised

genuine issues of material fact concerning whether Latady exercised dominion or control over

Plaintiffs’ funds that were paid on her behalf to (1) Barclays US and to (2) Bank of America, as

well as to (3) the mortgage payment for the Frankfort Property. Those funds were used to pay

Latady’s debts, and she can be said to have used them as the owner. Likewise, she was in

possession of (4) the funds paid to her by check and (5-6) deposited into the joint accounts for

which she was an accountholder.

Latady also argues that Plaintiffs never made, and she never denied, a demand to return

Plaintiffs’ property to them. (Def.’s Mot. Summ. J. 4.) Again, however, a demand is only

unnecessary when the defendant rightfully took possession of the plaintiff’s property. Withers,

1998 ME 164, ¶ 7, 714 A.2d 798. (citation omitted). Lindell may have rightfully taken possession

of the converted funds in his fiduciary capacity as trustee and Power of Attorney. However, Latady

only gained possession of them as a result of Lindell’s misappropriation. Hence, a demand by

Plaintiffs directed to Latady was not required in this case to generate a viable conversion claim.

For these reasons, the Court denies Latady’s motion for a summary judgment on Plaintiffs’

conversion claim.

II. Unjust Enrichment (Count V)

they were receiving and spending money that was not rightfully theirs to spend. See, e.g., H & M Enters. v.
Murray, No. M1999-02073-COA-R3-CV, 2002 Tenn. App. LEXIS 261, at *12-13 (Apr. 17, 2002) (citing
Colonia Ins. Co. v. City Nat’l Bank, 988 F. Supp. 1242, 1252 (W.D. Ark. 1997)); Fed. Ins. Co. v. Smith,
144 F. Supp. 2d 507, 517-22 (E.D. Va. May 30, 2001) (“a person to whom or for whose knowing benefit
converted funds are knowingly disbursed exercises dominion and control over the funds by appropriating
the funds for her own benefit”); Zell & Ettinger v. Berglas, 690 N.Y.S.2d 721, 721 (N.Y. App. Div. 1999));
but see Ctr. for Pain Control v. McCall, No. 2-11-0649, 2012 Ill. App. Unpub. LEXIS 642, at *27-28 (Ill.
App. Ct. Mar. 23, 2012). The Court finds that, viewing the record evidence in the light most favorable to
them, Plaintiffs raised a genuine issue of material fact under this standard. As discussed below, Plaintiffs
raised a fact dispute regarding Latady’s “use” of the funds. The record evidence is otherwise sufficient to
support a finding that she knew or reasonably should have known that the funds deposited into her and
Lindell’s joint bank accounts in four and five-figure amounts, after Lindell was sanctioned for securities
violations on more than one occasion, were not rightfully hers.

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To prove their claim for unjust enrichment, a plaintiff must establish that (1) a benefit was

conferred upon the defendant by the plaintiff, (2) that the defendant had appreciation or knowledge

thereof, and (3) that the defendant’s acceptance or retention of the benefit was under circumstances

that make it inequitable for them to accept or retain it without payment of its value. U.S. Bank v.

Thomes, 2013 ME 60, ¶ 14, 69 A.3d 411 (citation omitted). These elements are construed as issues

of fact. See Forrest Assocs. v. Passamaquoddy Tribe, 2000 ME 195, ¶ 14, 760 A.2d 1041.

In addition to Plaintiffs’ funds allegedly converted by Latady in the amount of

$109,150.92, Plaintiffs allege Latady was unjustly enriched by:

1. $13,500 of Plaintiffs’ funds used towards Latady’s son’s college tuition;

2. Rent-free occupancy of the Cloverdale Property from 2014 through 2017, quantified
according to the rental’s fair market value during the years at issue;

3. Renovations to the Cloverdale Property, valued according to the purchase price.

(Pls.’ Opp’n to Def.’s Mot. Summ. J. 14.)

First, the Court cannot definitively say that, as a matter of law, Plaintiffs did not confer the

benefits upon Latady. It is true that Plaintiffs did not confer any benefit upon her themselves,

directly. However, the record evidence demonstrates that Lindell’s bestowal of benefits upon

himself and Latady occurred when he was dutybound as a fiduciary to Plaintiffs in his role as

trustee, wherein he was authorized to exercise Plaintiffs’ rights as owners of the trust property. See

18-B M.R.S. §§ 815-816 (2022). Moreover, courts routinely permit claims for unjust enrichment

made against innocent recipients of property or bona fide transferees who are not purchasers for

value. 7 There are no facts to permit an inference that Latady gave value to Plaintiffs for the benefits

7
In other jurisdictions the following facts, if found, provide an adequate basis to hold a passive spouse liable
for unjust enrichment in relation to the consumption or enjoyment of funds fraudulently obtained by an
embezzling spouse: (1) the funds were fraudulently obtained by the embezzling spouse, (2) consumed or
enjoyed by the passive spouse, (3) to the plaintiff’s detriment, (4) the passive spouse gave no valuable
consideration for the funds, and (5) the passive spouse had no legal claim to the funds. Restatement (First)

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at issue.

Next, viewing the record evidence in the light most favorable to Plaintiffs, there is a fact

dispute regarding whether, as a co-accountholder, co-tenant, or a co-payor Latady had appreciation

or knowledge of these benefits. Lastly, in consideration of Lindell’s misconduct in the operative

events underlying this suit, there is a genuine issue of material fact regarding whether Latady’s

acceptance or retention of the above-listed benefits was under circumstances that made it

inequitable for her to accept or retain them without payment of value.

In consideration of these disputed facts in the summary judgment record, the Court denies

Latady’s Motion concerning Plaintiffs’ unjust enrichment claim.

III. Fraudulent Conveyance (Count IX)

The Uniform Fraudulent Transfer Act (“MUFTA”), as adopted by the Maine State

Legislature, provides that a transfer made or obligation incurred by a debtor may be fraudulent as

to a creditor, no matter whether the creditor’s claim arose before or after the transfer was made or

the obligation was incurred. 14 M.R.S. § 3575(1) (2022). Such a transfer or obligation is

“fraudulent” if the debtor made the transfer or incurred the obligation with “actual intent to hinder,

delay or defraud any creditor of the debtor.” Id. § 3575(1)(A). In determining a party’s actual

intent, courts may consider various factors, including, but not limited to, whether “[t]he transfer or

obligation was to an insider,” and whether “[t]he transfer occurred shortly before or shortly after

of Restitution § 123 (Am. Law Inst. 1937, updated through 2016); see McCall, 2012 Ill. App. Unpub.
LEXIS 642, at *24 (citing Douglass v. Wones, 458 N.E.2d 514, 521-22 (Ill. App. Ct. 1984)); Bank of Am.
Corp. v. Gibbons, 918 A.2d 565, 568-74 (Md. Ct. Spec. App. Mar. 13, 2007) (“the dispositive question is
whether … the defendant transferee, paid value for the funds transferred to her by … the culpable third
party”) (discussing cases); Williams v. Aloisi, No. 6:01-cv-470-Orl-31KRS, 2002 U.S. Dis. LEXIS 410, at
*683-87 (M.D. Fla. Jan 15, 2002) (discussing cases); Westhoff v. Kerr S.S. Co., 530 A.2d 352, 355-56 (N.J.
Super. Ct. App. Div. Aug. 13, 1987); In re Marriage of Allen, 724 P.2d 651, 659-60 (Colo. 1986) (equating
the passive spouse with a donee or gratuitous transferee, and permitting establishment of a constructive
trust or equitable lien upon embezzled property in their possession).

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a substantial debt was incurred.” Id. § 3575(2)(A), (J). When the debtor is an individual, an

“insider” may be “[a] relative of the debtor.” 14 M.R.S. § 3572(7)(A)(1) (2022). An individual’s

“spouse” is their “relative.” Id. § 3572(11).

Plaintiffs’ fraudulent conveyance claim against Latady is made with respect to the

Frankfort Property, which Lindell conveyed to Latady by quitclaim deed as contemplated by their

divorce settlement agreement. Lindell’s conveyance of his interest in the Frankfort Property

occurred during September of 2018 – after his March 2017 indictment, and several months after

the Court granted Plaintiffs’ attachment against Lindell in the amount of $3,000,000 during May

of 2018.

There are genuine issues of material fact with respect to whether this transfer is actionable

under the MUFTA. Construing the record evidence in favor of Plaintiffs, a reasonable fact-finder

could conclude therefrom that Lindell’s conveyance of the Frankfort Property as attachment-

debtor was made with “actual intent to hinder, delay or defraud” the Plaintiffs as attachment-

creditors. The conveyance was made to Latady on or around September 17, 2018, when Latady

was a “relative” and “insider” within the meaning of the MUFTA. Also, the transfer was made

after Lindell was noticed by the attachment granted to the Plaintiffs that he could be liable for a

substantial “debt.” Because the Court concludes that the summary judgment record evidence,

viewed in the light most favorable to Plaintiffs, is sufficient to support a prima facie showing of a

fraudulent conveyance under section 3575(1)(A) of the MUFTA, the Court does not reach the

question of whether the record supports a prima facie showing under section 3575(1)(B). See

Mitsubishi Caterpillar Forklift Am., Inc. v. Superior Serv. Assocs., 81 F. Supp. 2d 101, 114 (D.

Me. 1999).

Latady makes two arguments in support of her Motion. First, she argues that the transfer

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in question is not voidable under the MUFTA because she, as transferee, took Lindell’s interest in

the Frankfort Property in good faith and for a reasonable equivalent value. (Def.’s Reply to Pls.’

Opp’n to Def.’s Mot. Summ. J. 6-7.) This is because, according to Latady, she accepted Lindell’s

interest in the Frankfort Property as “a reasonable equivalent value” to offset the value of funds

that she inherited and that Lindell allegedly stole from her. Latady’s first argument is unavailing

to her, where, as noted above, the Court does not reach Plaintiffs’ MUFTA claim-in-the-alternative

under section 3575(1)(B). Section 3575(1)(A) requires no showing that Lindell as debtor made the

transfer without receiving a reasonably equivalent value therefore.

Second, Latady argues that the conveyance by quitclaim deed is a voidable transfer, since

Lindell’s property interest in the Frankfort Property was encumbered by Plaintiffs’ attachment at

the time of the deed’s execution. (Id. at 7.) In support of her position, Latady cites to section 3577,

subsection (1) of the MUFTA, which provides that a transfer is made with respect to an asset that

is real property “when the transfer is so far perfected that a good-faith purchaser of the asset from

the debtor against whom applicable law permits the transfer to be perfected cannot acquire an

interest in the asset that is superior to the interest of the transferee.” 14 M.R.S. § 3577(1)(A) (2022).

Irrespective of this limitation, the MUFTA includes a catchall provision, which provides that “[i]f

applicable law does not permit the transfer to be perfected as provided in [section 3577, subsection

(1)], the transfer is made when it becomes effective between the debtor and the transferee.” Id. §

3577(3). Here, the transfer became effective upon the recordation and delivery of the quitclaim

deed by which Lindell conveyed his interest in the Frankfort Property to Latady.

Finally, Latady argues that the transfer in question did not actually defraud Plaintiffs of

any claim they might have had to Lindell’s interest in the Frankfort Property. She claims that the

home has not been sold, and the transfer is accordingly voidable and the value transferred is

14
recoverable. See 14 M.R.S. § 3578(1) (2022). However, a money judgment to recover for the value

of the asset transferred may be enforced by the creditor against the first transferee of the asset. 14

M.R.S. § 3579(2)(A) (2022). Otherwise, section 3578 presents various remedies that a creditor

may, or may not, elect to pursue. The statute does not contain any express language indicating that

these remedies are exclusive relative to one another. See Klingerman v. SOL Corp. of Maine, 505

A.2d 474, 477 (Me. 1986). 8

The Court is not persuaded by Latady’s arguments in support of her Motion with respect

to Plaintiffs’ Count IX. The Court declines to enter a summary judgment for Latady on Plaintiffs’

fraudulent concealment claim.

IV. Punitive Damages (Plaintiffs’ Count VI)

In Maine, punitive damages are available to a plaintiff only to the extent that the defendant

is shown by clear and convincing evidence to have acted with malice. 9 Tuttle v. Raymond, 494

A.2d 1353, 1361, 1363 (Me. 1985). Malice exists when the defendant’s conduct is motivated by

ill-will towards the plaintiff, or when the conduct is so outrageous that malice towards the plaintiff

ought to be implied. Id. However, such malice cannot be established by a defendant’s mere reckless

disregard of the circumstances underlying the alleged wrong. Id.

Here, the Court finds that the record evidence, viewed in the light most favorable to

Plaintiffs, is sufficient to generate a genuine issue of material fact concerning constructive malice.

There are fact disputes concerning Latady’s knowledge of Lindell’s fraudulent treatment of

8
The MUFTA’s provisions are applied and construed to effectuate its general purpose to make uniform the
law with respect to its subject matter. 14 M.R.S. § 3582 (2022). Other jurisdictions that adopted the Uniform
Fraudulent Transfer Act do not construe section 3578 to provide remedies that are mutually exclusive. E.g.,
Tenn. Code Ann. § 66-3-308(a), cmt. 1 (2022) (“The remedies specified in this section are not exclusive.”).
The Court adopts this construction of section 3578 for the purpose of deciding Latady’s Motion.
9
The “clear and convincing standard” is satisfied when the fact-finder is persuaded that the evidence was
proved to a high probability. Dubois v. Madison Paper Co., 2002 ME 1, ¶ 11, 795 A.2d 696.

15
Plaintiffs and dereliction of his fiduciary duties, and Whether she knowingly accepted, used and

enjoyed Plaintiffs’ funds fraudulently obtained by Lindell. Because, based on the record before the

Court on Latady’s Motion, a reasonable fact-finder could conclude that she knew of the

circumstances underlying Lindell’s fraud, the Court cannot grant a summary judgment to Lindell

on Plaintiffs’ claim for punitive damages.

CONCLUSION

For the foregoing reasons, Defendant Althea Latady’s Motion for Summary Judgment is

DENIED as to Plaintiffs’ Counts I for conversion, Count V for unjust enrichment, Count VI for

punitive damages, and Count IX for fraudulent conveyance.

So ordered.

The Clerk is instructed to enter this Order on the docket for this case by incorporating it by

reference. M.R. CiV. P. 79(a).

So Ordered.

05I1 1I2023
Dated:
Michael A. Duddy, Judge
Business & Consumer Court /

16
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. LOCATION: PORTLAND
DOCKET NO. BCD-CV-2018-00027

FREDERIC J. POOR, )
et al., )
)
Plaintiffs )
)
v. ) ORDER SUSTAINING BHTS’S OBJECTION
) TO DISCOVERY ON THE GROUNDS OF
ROBERT K. LINDELL, JR., ) ATTORNEY-CLIENT PRIVILEGE
et al., )
Defendants )

Plaintiffs Frederic Poor and the Frederic J. Poor Special Needs Trust

(“Plaintiffs” or together the “Trust”) are pursuing discovery of information against

Defendant Bar Harbor Trust Services (“BHTS”), which BHTS maintains is protected

by the attorney-client privilege. See M.R. Evid. 502. On January 27, 2022, pursuant to

M.R. Civ. P. 26(g), the Court held a discovery conference. Among other issues, the

discovery dispute raises the question of whether the Court can or should recognize a

fiduciary exception to the attorney-client privilege. Concluding that the dispute

presents complicated issues of privilege law, the Court asked counsel to brief the

issues. The briefing schedule was completed on April 21, 2022. For the reasons

discussed below, the Court sustains BHTS’ objections on the grounds of the attorney-

client privilege. 1

BACKGROUND

1 Pursuant to M.R. Civ. P. 7(b)(7), the Court provides this Order without the need for further oral argument.

1
At all times relevant to this discussion, which the Trust agrees is the timeframe

prior to July 1, 2018, BHTS served as administrative trustee of the Trust. The Trust

was represented by its legal counsel, the law firm of Pierce Atwood. The Trust alleges

that BHTS was negligent and breached its fiduciary duties and improperly used Trust

funds to pay Pierce Atwood. As part of its discovery against BHTS, the Trust served

the following discovery requests:

Request No. 7: All documents consisting of or relating to any communications
between BHTS, on the one hand, and Pierce Atwood on the other hand
relating to any legal services performed by Pierce Atwood for the benefit of
the Frederic J. Poor trust or any other Plaintiff.

Request No. 20: All documents relating to legal fees paid to Pierce Atwood
from the Frederic J. Poor SNT, including but not limited to any client
engagement letter and detailed invoices.

Request No. 21: All documents relating to legal services performed by Pierce
Atwood for the benefit of the Frederic J. Poor SNT including but not limited to
the entire client file, any correspondence, notes, memoranda, attorney work
product, internal communications, and invoices.

Interrogatory No. 24: Identify all individuals who suggested that Frederic J.
Poor’s guardian sign a waiver.

In response to each of these discovery requests, BHTS objected on the grounds that

the requests seek documents or information protected from disclosure by the

attorney-client privilege. The legal question is whether communications and

information relating to Pierce Atwood’s representation of BHTS while the latter was

serving as administrative trustee to the Trust is protected by the attorney-client

privilege. The Court concludes that it is.

DISCUSSION

BHTS objects to the discovery requests on the grounds of attorney-client

privilege. Plaintiffs opposes the objection on several grounds. They primarily argue

2
BHTS has not demonstrated that the privilege applies, because BHTS was acting as

Poor’s representative, the communications were not intended to be confidential, and

BHTS has not demonstrated any exception applies. In the alternative, Plaintiffs argue

BHTS has waived its privilege.

I. Existence of Attorney-Client Privilege

A. Overview

The attorney-client privilege is a fundamental protection for confidential

communications between lawyer and client. Upjohn Co. v. U.S., 449 U.S. 383, 389

(1981); Harris Mgmt., Inc. v. Coulombe, 2016 ME 166, ¶ 21, 151 A.3d 7. Its purpose is

to encourage full disclosure by clients to their attorneys and thereby enable attorneys

to provide informed advice. Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 18,

742 A.2d 933. The protection extends only to communications, not facts, meaning a

client cannot refuse to disclose relevant information within his or her knowledge just

because such information was also stated to an attorney. Upjohn Co., 449 U.S. at 396.

The privilege provides that a “client has a privilege to refuse to disclose, and

to prevent any other person from disclosing, the contents of any confidential

communication” between the client and the client’s lawyer or between their

representatives, among others. M.R. Evid. 502(b). A “client” is defined as a person,

corporation, or other entity “[t]o whom a lawyer renders professional legal services,

or who consults with a lawyer with a view toward obtaining professional legal

services from the lawyer.” M.R. Evid. 502(a)(1). A communication is “confidential”

when “it is made to facilitate the provision of legal services to the client and is not

intended to be disclosed to any third party other than those to who the client revealed

3
that information in the process of obtaining professional legal services.” M.R. Evid.

502(a)(5). A client’s “representative” is a person who has authority on behalf of a

client to obtain professional legal services and act on advice rendered as part of those

services. M.R. Evid. 502(a)(2). The party asserting the privilege has the initial burden

and the party seeking to show an exception applies has the burden of proving the

elements requisite for the exception exist. Harris Mgmt., Inc., 2016 ME 166, ¶ 24, 151

A.3d 7.

B. Arguments

According to BHTS, the attorney-client privilege applies to and protects

communications between BHTS and Pierce Atwood, including those made prior to

July 1, 2018, because BHTS had engaged Pierce Atwood for advice concerning its

obligations to respond to requests for information about the Trust. As such, the

argument goes, BHTS was Pierce Atwood’s “client,” in contrast to Poor, who was

represented through his guardians by separate attorneys. BHTS’s communications

with Pierce Atwood were made to facilitate the latter’s provision of legal services and

neither party intended their contents to be revealed. Because of that purpose and

intent, and because the contents were in fact not revealed to anyone outside Pierce

Atwood, BHTS claims the communications were confidential.

Plaintiffs point to M.R. Evid. 502(c)(1)(D), which provides that a trustee or

other agent authorized to act on behalf of a legal entity may claim attorney-client

privilege in legal matters or in communicating with an attorney for the entity, as

contemplating that a trustee is functionally the representative of the beneficiary in an

attorney-client context. If BHTS was seeking legal advice in its capacity as

4
representative of the Trust and of Poor, argue Plaintiffs, then the “real” clients were

the Plaintiffs, and they have a right to Pierce Atwood’s communications. The fact that

Plaintiffs had their own attorneys would not seem to render it impossible for Pierce

Atwood to also serve them concerning different matters. Moreover, Plaintiffs argue

that BHTS could not have reasonably expected the documents and information

requested to be kept confidential from the beneficiaries of the Trust when the Will

specifically provides that the trust’s “books and records along with all trust

documentation shall be available and open at all reasonable times to the inspection

of the trust beneficiaries and their representative.” Plaintiffs assert that

communications with attorneys regarding trust matters should be considered “trust

documentation.” As such, according to Plaintiffs, BHTS was not the true client and the

documents were not confidential, meaning BHTS cannot claim attorney-client

privilege here.

C. Analysis

BHTS was clearly Pierce Atwood’s client as of July 21, 2017, when it first

engaged Pierce Atwood to advise it in relation to its role as administrative trustee for

Poor’s Trust. BHTS remained Pierce Atwood’s client through July 1, 2018, the

timeframe here under consideration. Plaintiffs’ arguments that they were

nevertheless the “true” clients of Pierce Atwood during this period are not convincing.

Rule 502(c)(1)(D) does not make the beneficiary or the Trust the functional

equivalent of the trustee for purposes of the privilege. Pierce Atwood was not the

Trust’s law firm, it was BHTS’s law firm. The parties do not cite Maine law specifically

on point, but in Symmons v. O’Keefe, the Massachusetts Supreme Judicial Court held

5
that where a trustee engages a lawyer to provide opinions about the trustee’s role,

the trustee can invoke the attorney-client privilege against the trust beneficiaries to

protect those opinions, despite the fact they concern the trust. 419 Mass. 288, 301

(1995). The rationale for this approach lies in the inherent potential for conflicting

loyalties:

In the course of administering a trust, a trustee may be required to
make difficult decisions with regard to his or her duties to the
beneficiaries. A trustee’s attorney guides the trustee in this decision-
making process. That the interests of the trustee and the interests of
the beneficiaries may at times conflict cannot seriously be disputed.
Should we decide that a trustee’s attorney owes a duty not only to the
trustee but also to the trust beneficiaries, conflicting loyalties could
impermissibly interfere with the attorney’s task of advising the trustee.
This we refuse to do. . . .

The plaintiffs argue that the interests of the trustees and the interests
of the beneficiaries in the circumstances presented here do not differ,
and thus, conflicting duties are not a concern. We disagree. Our
decisions make clear that it is the potential for conflict that prevents
the imposition of a duty on the [attorneys] to the trust beneficiaries.

Spinner v. Nutt, 417 Mass. 549, 553-54 (1994) (internal citations omitted). The Court

finds these cases persuasive and concludes that a law firm retained by a trustee does

not have an attorney-client relationship with the Trust or trust beneficiary from

which duties or privileges may arise.

Pierce Atwood’s legal services to BHTS related to the latter’s duties and

obligations as trustee. There is nothing in the record to indicate BHTS thought its

communications would be revealed to Plaintiffs. Communications between BHTS and

Pierce Atwood are not “trust documentation;” they are, if anything “trustee

documentation.” Poor and the Trust would tangentially benefit from this relationship

if Pierce Atwood’s advice enabled BHTS to properly administer the Trust, but the

6
advice was always targeted at and restricted to BHTS’s interests, not those of the

Plaintiffs. BHTS hired Pierce Atwood on its own behalf, not that of Plaintiffs, and can

thus claim attorney-client privilege against the discovery attempts of Plaintiffs.

II. Exceptions to the Attorney-Client Privilege

The Maine Rules of Evidence enumerate six areas of exception to attorney-

client privilege:

i) communications in furtherance of crime or fraud;
ii) claimants though the same deceased client;
iii) breach of duty by either lawyer or client;
iv) document attested by lawyer;
v) matter of common interest between joint clients;
vi) public officer or agency.
M.R. Evid. 502(d). According to Plaintiffs, two of the exceptions are implicated here,

along with an exception not explicitly recited in the Rule. For the reasons discussed

below, the Court determines that none of the exceptions apply.

A. Fiduciary Exception
Not included in the Maine Rules of Evidence is the so-called “fiduciary exception,”

whereby a trustee cannot shield from disclosure communications with the trustee’s attorney

regarding the trustee’s duties owed to beneficiaries. See Riggs Nat’l Bank v. Zimmer,

355 A.2d 709 (Del. Ch. 1976). In Riggs, a Delaware court held that the trustee was not

the “real” client of the attorney because the trustee was consulting about duties owed

to beneficiaries and the intention of the communication was to aid said beneficiaries.

Id. at 714. That court held that a policy of preserving full disclosure in a trustee­

7
beneficiary relationship is more important than protecting the trustee’s confidence

in an attorney for the trust. Id.

i. Arguments

BHTS argues that the modern trend across many states is not to recognize the

common-law fiduciary exception and rather to maintain the traditional scope of the

attorney-client privilege. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 171

n.3 (2011) (quoting A. Newman, G. Bogert & G. Bogert, Law of Trusts and Trustees §

962, p. 68 (3d ed. 2010)). BHTS cites numerous cases from a variety of states rejecting

the fiduciary exception, including a decision by this Court (Murphy, J.) which

expressly declined to adopt it. See Gleichman v. Scarcelli, No. BCD-CV-17-11, 2017 Me.

Bus. & Consumer LEXIS 15, at *9 (June 30, 2017). BHTS also argues that this Court is

not empowered to recognize a new exception because that power is reserved for the

Supreme Judicial Court. 4 M.R.S. § 9-A (“The Supreme Judicial Court shall have the

power and authority to prescribe, repeal, add to, amend or modify rules of

evidence.”). The Law Court has declined to recognize a new evidentiary privilege on

appeal, stating it is only able to do so pursuant to its rule-making powers when sitting

as the Supreme Judicial Court. Citizens Commc’n Co. v. Attorney General, 2007 ME 114,

¶ 14, 931 A.2d 503. Even if this Court did find it could add an exception to Rule 502,

BHTS says it should not, first because of general policy considerations and second

because in the instant case BHTS was Pierce Atwood’s “real” client, not Poor. The fact

that the Trust paid for the legal services Pierce Atwood provided to BHTS prior to July

1, 2018 is irrelevant because (i) the Will expressly provides trustees will be

reimbursed for reasonable costs and expenses; (ii) the Maine Rules of Professional

8
Conduct recognize a third party can pay for legal services without becoming a client,

M.R. Prof. Conduct 1.8(f); and (iii) other jurisdictions have held that payment of fees

does not determine the ownership of the attorney-client privilege. See Wells Fargo

Bank v. Super. Ct., 990 P.2d 591, 598 (Cal. 2000).

Plaintiffs counter that BHTS has provided only dicta and general policy

concerns regarding the fiduciary exception, not analogous cases, though they do not

mount an argument that the fiduciary exception actually does apply here. They

distinguish Gleichman because in that case, the plaintiffs incorrectly claimed to be

minority shareholders and the LLC operating agreement in question explicitly stated

the manager had total discretion to withhold information from other LLC members,

so the fiduciary exception was inapplicable. Gleichman, 2017 Me. Bus. & Consumer

LEXIS 15, at *7-9. Additionally, Plaintiffs note that they disagree that this Court lacks

the authority to recognize a new exception because they believe the Supreme Judicial

Court’s power is only stated as relating to adding a new privilege, not defining

exceptions to existing privileges. See 4 M.R.S. § 9-A, Citizens Commc’n Co., 2007 ME

114, ¶ 14, 931 A.2d 503.

ii. Analysis

As an initial matter, this Court likely does not have the power to recognize a

new exception to the attorney-client privilege established in Maine law. By statute,

only the Supreme Judicial Court has the power to “add to, amend or modify rules of

evidence,” 4 M.R.S. § 9-A, and that exclusive authority extends to the creation of new

exceptions. Second, Justice Murphy in her decision stated simply that she was

unaware of any basis in Maine caselaw for adopting the fiduciary exception, so the

9
details of the Gleichman v. Scarcelli case are not relevant. And in a U.S. Supreme Court

case from 2011, Riggs was limited to its facts. See Jicarilla Apache Nation, 564 U.S. at

178-79. Thus there appears no basis in the statute or case law for the Court to

recognize a fiduciary exception to the attorney-client privilege. 2

B. Joint Client Exception

i. Arguments

In lieu of the fiduciary exception, Plaintiffs argue that BHTS’s objection is

misguided in part because BHTS assumes that it and Poor were not joint clients.

Plaintiffs rely on BHTS’s denial of ¶ 42 of Plaintiffs’ Second Amended Complaint, to

argue that BHTS considered at least one Plaintiff to have been a client or joint client

of Pierce Atwood. Plaintiffs further argue that BHTS’s shifting position on whether

Pierce Atwood represented joint clients should estop BHTS from now arguing Pierce

Atwood’s services were provided solely to BHTS.

BHTS asserts that it was Pierce Atwood’s only relevant client and that both

BHTS and Pierce Atwood understood this to be true, as did Plaintiffs. The Trust itself

could not retain counsel because a trust is not a legal entity, it is a fiduciary

relationship. Americold Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 383 (2016). As

such, only the trustee and beneficiary could retain counsel, and each retained

separate counsel. BHTS notes that Plaintiffs do not argue they ever requested legal

advice from Pierce Atwood, only that they are clients by implication. BHTS asserts

2 There is a Maine trial court case, Lessard v. Metropolitan Life Insurance Company, which cites Riggs

for guidance but specifically attaches its analysis to attorney-client privilege asserted by ERISA plan
fiduciaries. 1986 Me. Super. LEXIS, at *11-12 (June 16, 1986). On its facts, Lessard’s interpretation of
the fiduciary exception has no application to the current case.

10
that its denial of ¶ 42 means only that Pierce Atwood’s representation of BHTS was

not adverse to Plaintiffs.

ii. Analysis

The beliefs of the parties as to their attorney-client relationships do not

necessarily govern the legal reality of their relationships. Lessard, 1986 Me. Super.

LEXIS 214, at *8-10 (Sept. 30, 1986). Nevertheless, it is instructive that prior to this

discovery dispute, it appears none of the parties or attorneys in this case considered

either of the Plaintiffs to be the sole or joint client of Pierce Atwood. At the very least,

BHTS’s position has been consistent throughout, and there is no basis for estopping

BHTS from arguing against the joint client exception. In any event, the conduct of the

parties here is dispositive. No communications were made between Plaintiffs and

Pierce Atwood, Plaintiffs never sought legal services from Pierce Atwood, and

Plaintiffs never granted BHTS the authority to seek such advice on their behalf. The

point of the attorney-client privilege is “that the interests of justice are best served by

encouraging clients to make full disclosure to their attorneys and thus enable their

attorneys to serve them more effectively.” Id. (quoting Field & Murray, Maine

Evidence, p. 94). Where no such disclosures were made between Plaintiffs and Pierce

Atwood, it can hardly be claimed that Plaintiffs were Pierce Atwood’s clients. As such,

Plaintiffs cannot be considered joint clients and the rationale for the joint client

exception has no place here.

C. Crime-Fraud Exception

Under Rule 502, the attorney-client privilege does not apply if the client sought

or obtained the lawyer’s services in furtherance of what the client knew or reasonably

11
should have known was a crime or fraud. M.R. Evid. 502(d)(1). The party seeking to

establish this exception must show that (i) the client was engaged in or planning

criminal or fraudulent activity at the time the privileged communication took place,

and (ii) the communications were intended by the client to facilitate or conceal that

crime or fraud. Harris Mgmt. Co., 2016 ME 166, ¶ 24, 151 A.3d 7. The requisite

showing of fraud for the purposes of this exception “falls short of fully realized civil

tort fraud” and need only be activity which is deceptive and fraudulent.” Id. ¶ 30.

Plaintiffs claim BHTS was engaged in deceptive actions and its

communications with Pierce Atwood were intended to facilitate and/or conceal these

actions. They cite several examples of this alleged activity, but provide no affidavits

in support of their allegations, and the exception cannot be established on the basis

of unsupported claims alone. Even if the Court were to credit the claims, BHTS

responds that (i) it did not withhold any records from Plaintiffs aside from those over

which it is claiming privilege; (ii) BHTS did not attempt to coerce Plaintiffs into

signing any waivers and did release all Trust funds in the end; and (iii) there is

nothing fraudulent about using Trust funds to pay for BHTS’s legal counsel because

the Will and relevant statutes authorize BHTS to be reimbursed for trust

administration costs. Because BHTS has a plausible explanation for its conduct,

Plaintiffs’ broad statement that “BHTS was engaged in or planning deceptive actions”

is insufficient for this Court to apply the crime-fraud exception.

III. Waiver

Where a privilege exists and no exception applies, the privilege holder can

waive the privilege if he or she voluntarily discloses or consents to the disclosure of

12
any significant part of the privileged matter (unless the disclosure itself is privileged).

M.R. Evid. 510. The determination of “significant part” is at the discretion of the judge.

See Jacques v. Pioneer Plastics, 676 A.2d 504, 509 (1996) (citing Field, McKusick &

Wroth, Maine Civil Practice § 26.18b at 212 (2d ed. Supp. 1981)). In some situations,

the privilege holder’s conduct “should in fairness amount to a waiver. Field & Murray,

Maine Evidence § 510.1 at 253 (6th ed. 2008); see Jensen v. S.D. Warren Co., 2009 ME

35, ¶ 34, 968 A.2d 528 (holding assertion of attorney-client privilege by plaintiff

improper when used to avoid disclosing timeline of understanding cause of injury and

thereby circumvent statute of limitations).

In this case, part of the Plaintiffs’ Complaint is that BHTS improperly used

Trust funds to pay for its own legal defense against Plaintiffs while serving as their

fiduciary. By asserting that all legal services related to BHTS’s fiduciary duties as

administrative trustee are subject to privilege, the Plaintiffs say they are unable to

obtain the documents which would actually prove that BHTS improperly used Trust

funds in this manner. They also say that BHTS’s Answer, interrogatory responses,

26(g) letter, and informal correspondence put the documentation relating to legal

services into issue in connection with essential facts, and that because BHTS has

already stated the “nature” of the documents, the privilege is not being invoked to

keep the information confidential but simply to prevent inquiry into their contents.

BHTS responds that it has consistently and actively asserted the attorney-

client privilege since before the litigation was even filed and points to the Second

Amended Complaint as including allegations by Plaintiffs that BHTS was refusing to

provide documents it alleged were privileged. See Pls.’ Second Am. Compl. ¶¶ 45-46

13
(alleging Plaintiffs were "forced to serve BHTS with a subpoena to produce

documentation related to these fees... because BHTS would not disclose such

information voluntarily"). It also distinguishes Jensen because in that case the plaintiff

was trying to have it both ways: he disclosed the most significant part of the

communication to show the lawsuit was timely but otherwise sought to protect

related communications from disclosure. Jensen, 2009 ME 35, ,r,r 29, 34, 968 A.2d

528. As for its Answer and other documents, BHTS merely responded to Plaintiffs'

filings, which does not mean it put its legal services from Pierce Atwood into issue,

and has not revealed the substance of any communication over which it asserts

privilege. Accordingly, BHTS has not waived its attorney-client privilege with Pierce

Atwood.

CONCLUSION

For all these reasons, the Court sustains BHTS's objection to the

aforementioned discovery requests on the grounds of attorney-client privilege.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this

Order by reference on the docket for this case.

05/12/2022
Michael A Duddy
Judge, Business and Consumer Docket

Entered on the docket: 05/12/2022

14
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. LOCATION: PORTLAND
DOCKET NO. BCD-CV-18-27

FREDERICK J. POOR, )
et al., )
)
Plaintiffs )
)
v. ) ORDER DENYING DEFENDANT LINDELL̆S
) MOTION TO DISQUALIFY
ROBERT K. LINDELL, JR., )
et al., )
Defendants )

The background and context of this matter are largely άΞέ ΟΨΫέΡ ΢Χ έΡΞ CΨήΫέ̆ά

many prior orders in this case, and will not be recapitulated here except to the extent

necessary to decide Defendant RΨΛΞΫέ Kϻ L΢ΧΝΞΥΥϸ JΫϻ̆ά MΨέ΢ΨΧ έΨ D΢άΪήΚΥ΢Οβ

Christopher MacLean, Esq., Sarah Gilbert, Esq., and the firm of Camden Law LLP from

άΞΫί΢ΧΠ Κά PΥΚ΢Χέ΢ΟΟά̆ ΜΨήΧάΞΥϻ FΨΫ έΡΞ ΫΞΚάΨΧά Ν΢άΜήάάΞΝ ΛΞΥΨΰϸ έΡΞ CΨήΫέ finds that

Lindell has demonstrated the existence of an imputed conflict of interest. However,

because Lindell has not shown he is actually prejudiced by the imputed conflict, the

Court DENIES the Motion to Disqualify,

PROCEDURAL BACKGROUND

OΧ AήΠήάέ ʹ9ϸ ʹΉͳ9ϸ DΞΟΞΧΝΚΧέ RΨΛΞΫέ Kϻ L΢ΧΝΞΥΥϸ JΫϻ ̢̉L΢ΧΝΞΥΥ̣̊ ΦΨίΞΝ έΨ

disqualify attorneys MacLean, Gilbert, and the firm of Camden Law (collectively

̉PΥΚ΢Χέ΢ΟΟά̆ CΨήΧάΞΥ̣̊. L΢ΧΝΞΥΥ ΚΫΠήΞΝ έΡΚέ PΥΚ΢Χέ΢ΟΟά̆ CΨήΧάΞΥ άΡΨήΥΝ ΛΞ Ν΢άΪήΚΥ΢Ο΢ΞΝ

because Gilbert and Camden Law had previously represented Janet Ekrote (Frederick

1
PΨΨΫ̆ά ά΢άέΞΫ̣Ϲ and Lindell had previously appointeΝ MΚΜLΞΚΧ Κά L΢ΧΝΞΥῨά agent to act

on his behalf as Trustee. Lindell argued these relationships created a conflict of

interest. On September 13, 2019, Lindell supplemented his Motion, arguing that

MacLean made misrepresentations during a telephonic discovery conference with

the Court.1 OΧ SΞΩέΞΦΛΞΫ ͳ8ϸ ʹΉͳ9ϸ PΥΚ΢Χέ΢ΟΟά̆ CΨήΧάΞΥ Ο΢ΥΞΝ Κ άήΩΞΫΟ΢Μ΢ΚΥϸ έΰΨ ΩΚΠΞϸ

Opposition. The Opposition was so brief, it failed to provide the Court with sufficient

information with which to decide the Motion on the papers. Accordingly, the Court

set the Motion for oral argument.

Prior to oral argument, on October 18, 2019, counsel for Defendant Bar Harbor

TΫήάέ SΞΫί΢ΜΞά ̢̉BHTṢ̊ Ο΢ΥΞΝ Κ ΥΞέέΞΫ ΰ΢έΡ έΡΞ CΨήΫέϸ ΝΫΚΰ΢ΧΠ έΡΞ CΨήΫέ̆ά ΚέέΞΧέ΢ΨΧ έΨ

a potential basis for disqualification that was not raised by Lindell. According to

BHTS, attorney Lee Woodward, Esq., had joined Camden Law in early 2019, and

because Woodward may have previously represented Lindell, Camden Law might

have an imputed conflict of interest.

On October 29, 2019, the Court held oral argument in Rockland, Maine.

AέέΨΫΧΞβ MΚΜLΞΚΧ ΚΝΝΫΞάάΞΝ L΢ΧΝΞΥῨά ΚΫΠήΦΞΧέάϻ Aά έΨ έΡΞ ΩΨέΞΧέ΢ΚΥ ΜΨΧΟΥ΢Μέ

involving Woodward, attorney MacLean indicated he did not anticipate the need to

address the issue, since it was not raised in a formal motion. After discussion with

the parties, the Court agreed to έΫΞΚέ έΡΞ BHTS ΥΞέέΞΫ Κά Κ άήΩΩΥΞΦΞΧέ έΨ L΢ΧΝΞΥῨά

Motion. The Court then issued a briefing schedule, giving Plaintiffs an opportunity to

file an Opposition addressing the issue, and giving all other parties an opportunity to

1 The Court finds there is no merit to this allegation, and does not address it any further.

2
submit a Reply. The Court reserved on the question of holding an evidentiary hearing

until all the briefs were filed.

On December 2, 2019, the Court held a second oral argument, this time focused

on the issues created by attorney Woodward joining Camden Law. After listening to

the arguments, the Court asked whether Lindell or Plaintiffs wanted an evidentiary

hearing. Both Lindell and Plaintiffs stated they did not want an evidentiary hearing.2

At oral argument, both Lindell and counsel for Plaintiffs made unsworn factual

statements. The statements were not contradictory, but rather supported different

aspects of their arguments. Counsel for Plaintiffs suggested that for purposes of

deciding the Motion, the Court credit the assertions of both sides as truthful

άέΚέΞΦΞΧέάϻ L΢ΧΝΞΥΥ Ν΢Ν ΧΨέ ΨΛΣΞΜέ έΨ ΜΨήΧάΞῨά άήΠΠΞάέ΢ΨΧϻ

FACTUAL BACKGROUND

The following facts are taken from the briefs, affidavits, and supporting

documents submitted by the parties, along with representations made during the two

oral arguments. For purposes of deciding this Motion, the Court accepts the

representations made during oral argument as truthful proffers of what the evidence

would establish at an evidentiary hearing. Based on this record, the facts are

undisputed.

Janet Ekrote

2 It is possible that conducting an evidentiary hearing would lead to difficult questions of attorney-
client privilege and waiver, and neither Lindell nor Plaintiffs appeared interested in navigating those
waters. No other party wanted an evidentiary hearing, either. Counsel for Defendant Barbara Gray
suggested an evidentiary hearing might be helpful to the Court, but confirmed that Gray was not
asking for an evidentiary hearing.

3
Prior to the start of the current litigation, Camden Law previously represented

Janet Ekrote. Ms. Ekrote is one of the three children of the late Phyllis Poor (the other

children being Frederick and Daniel Poor)Ϲ άΡΞ ΢άϸ έΡΞΫΞΟΨΫΞϸ FΫΞΝΞΫ΢ΜΤ PΨΨΫ̆ά ά΢άέΞΫϻ

Ms. Ekrote was not a beneficiary of the Estate or of the testamentary trusts. She

initiated litigation not to challenge being left out of the will or the trusts, but to

remove Lindell and Gray as co-personal representatives, and to remove Daniel Poor

Κά FΫΞΝΞΫ΢ΜΤ̆ά ΠήΚΫΝ΢ΚΧϻ HΞΫ ΠΨΚΥ ΰΚά έΨ ΩΫΨέΞΜέ FΫΞΝΞΫ΢ΜΤ PΨΨΫ̆ά ΢ΧέΞΫΞάέά. Camden

LΚΰ̆ά prior representation of Ms. Ekrote was thus ΜΨΧά΢άέΞΧέ ΰ΢έΡ CΚΦΝΞΧ LΚΰ̆ά

representation of Plaintiffs (Frederick Poor and the Frederick Poor Trust) in the

current lawsuit, and adverse to Lindell. Camden Law did not represent Lindell in the

prior litigation, and did not obtain any client confidences from Lindell.

Power of Attorney

In May 2018, shortly after this litigation was commenced, Lindell signed a

PΨΰΞΫ ΨΟ AέέΨΫΧΞβ ̢̉POẠ̊ ΚΩΩΨ΢Χέ΢ΧΠ MΚΜLΞΚΧ Κά Ρ΢ά ΚΠΞΧέϻ L΢ΧΝΞΥΥ ΰΚά ΢ΧΝ΢ΜέΞΝ Κέ

the time, and being held on a no-bail hold. Lindell was represented by criminal

defense counsel, who had numerous conversations with MacLean about the POA. The

effect ΨΟ έΡΞ POA ΰΚά έΨ ΚήέΡΨΫ΢γΞ MΚΜLΞΚΧ έΨ ΚΜέ ΨΧ L΢ΧΝΞΥῨά ΛΞΡΚΥΟ Κά TΫήάέΞΞ ΨΟ έΡΞ

trusts. It is unclear with whom the idea originated, but one purpose of the POA (from

L΢ΧΝΞΥῨά ΩΞΫάΩΞΜέ΢ίΞ̣, was to cast Lindell in a better light for an upcoming bail

hearing.

Lindell signed the POA at the jail. His criminal defense attorney was present,

and approved of the strategy. MacLean was also present, and after Lindell signed the

POA, Lindell discussed with MacLean several aspects of L΢ΧΝΞΥῨά activities as Trustee.

4
L΢ΧΝΞΥῨά ΜΫ΢Φ΢ΧΚΥ ΝΞΟΞΧάΞ ΚέέΨΫΧΞβ ΰΚά ΩΫΞάΞΧέ ΟΨΫ έΡΚέ ΜΨΧίΞΫάΚέ΢ΨΧϻ TΡΞΫΞΚΟέΞΫϸ

Lindell had several additional conversations with MacLean ΚΛΨήέ έΡΞ έΫήάέάϻ L΢ΧΝΞΥῨά

criminal defense attorney was not present for those additional conversations, but was

aware they were occurring, and authorized the conversations.

Ultimately, as the result of information Lindell provided to MacLean pursuant

to the POA relationship, MacLean learned about the location and disposition of trust

assets. Acting under the authority of the POA, MacLean took steps to seize and

preserve trust assets, in particular real estate and items of tangible personal property

located in Cloverdale, California. Some of the steps MacLean took were adverse to

Lindell. MacLean also learned about certain actions taken by Lindell as Trustee,

ΰΡ΢ΜΡ ΚΜέ΢ΨΧά ΧΨΰ ΜΨΧάέ΢έήέΞ άΨΦΞ ΨΟ έΡΞ ΛΚά΢ά ΟΨΫ PΥΚ΢Χέ΢ΟΟά̆ ΜΥΚ΢Φά ΚΠΚ΢Χάέ L΢ΧΝΞΥΥϻ

IΧ έΨέΚΥϸ MΚΜLΞΚΧ άΞΫίΞΝ Κά L΢ΧΝΞΥῨά POA ΟΫΨΦ MΚβ ͳ4ϸ ʹΉͳ8 ήΧέ΢Υ OΜέΨΛΞΫ ʹΉͳ8ϸ

when Lindell resigned as the Trustee of the trusts.

Lee Woodward, Esq.

On July 10, 2012, Lindell filed an Application for Informal Probate of Will and

Appointment of Personal Representative in the Waldo County Probate Court, in

connection with the Estate of Phyllis J. Poor. The Application displays Lindell as the

̉AΩΩΥ΢ΜΚΧέϸ̊ ΚΧΝ displays ΚέέΨΫΧΞβ WΨΨΝΰΚΫΝ Κά έΡΞ ̉AέέΨΫΧΞβ ΟΨΫ AΩΩΥ΢ΜΚΧέϻ̊ The

Application requests that Lindell (and Barbara Gray) be appointed as personal

representatives. The Devisees listed on the Application include, among ΨέΡΞΫάϸ ̉Rϻ

KΞΧΧΞέΡ L΢ΧΝΞΥΥϸ TΫήάέΞΞϻ̊

As counsel to Lindell, Woodward conducted privileged and confidential

communications with Lindell ΫΞΠΚΫΝ΢ΧΠ L΢ΧΝΞΥῨά ΜΨΧΝήΜέ Κά ΜΨ-Personal

5
Representative of the Estate, Trustee of the trusts, and regarding allegations of

misconduct concerning both of those roles.3 Lindell communicated frequently with

Woodward during the first six months of WΨΨΝΰΚΫΝ̆ά engagement. Thereafter,

Lindell formally communicated with Woodward on approximately one half dozen

occasions through March 2014. On March 14, 2014, Lindell sent an email to

DΞΟΞΧΝΚΧέ GΫΚβ ΢Χ ΰΡ΢ΜΡ ΡΞ ΫΞΟΞΫά έΨ ̉ΜΨΧάήΥέ΢ΧΠ ΰ΢έΡ Φβ ΨΰΧ ΚέέΨΫΧΞβ̊ έΨ Ο΢ΠΡέ Κ

subpoena. The attorney to whom Lindell referred is Woodward. After that, Lindell

only spoke informally on occasion with Woodward at community events, such as

Rotary meetings. Some of those informal conversations, however, involved a brief

discussion of legal matters relating to the Estate and the Trusts. At some point

between 2014 and 2018, Woodward ceased functioΧ΢ΧΠ Κά L΢ΧΝΞΥῨά ΥΞΠΚΥ ΜΨήΧάΞΥϻ In

November 2018, Lindell sent Woodward a letter from Two Bridges Regional Jail,

discussing two matters in the current litigation. Woodward did not respond. Based

on his representation of Lindell, Woodward is in possession of privileged and

confidential emails, letters, communications, and other material ΫΞΥΞίΚΧέ έΨ PΥΚ΢Χέ΢ΟΟά̆

claims against Lindell.

At the beginning of 2019, attorney Woodward, who previously practiced as a

solo practitioner in The Law Office of Lee Woodward, joined Camden Law, where he

now practices as an associate attorney. 4 Woodward still practices in his office in

Belfast, but that office now serves as a satellite office of Camden Law (which is located

3 Camden Law initially took the position in its Opposition to the supplemental Motion that
Woodward represented the Estate of Phyllis Poor, not Lindell. Camden Law ultimately dropped that
position in the face of the weight of the evidence. Camden Law now concedes Woodward
represented Lindell as Personal Representative, and that Woodward and Lindell had an attorney-
client relationship.
4 Technically, Woodward consolidated his then existing practice into Camden Law.

6
in Camden), with a separate computer system, and separate staff. He does not

practice as a litigator.

Upon joining Camden Law in January 2019, Camden Law added Woodward to

΢έά ΥΞέέΞΫΡΞΚΝ Κά ΚΧ ̉AΟΟ΢Υ΢ΚέΞ AέέΨΫΧΞβϻ̊ OέΡΞΫ ΚέέΨΫΧΞβά ΨΧ έΡΞ ΥΞέέΞΫΡΞΚΝ ΚΫΞ

ΝΞά΢ΠΧΚέΞΝ Κά ̉PΚΫέΧΞΫάϸ̊ ̉AάάΨΜ΢ΚέΞ AέέΨΫΧΞβϸ̊ ̉OΟ CΨήΧάΞΥϸ̊ ΨΫ ̉RΞέ΢ΫΞΝϻ̊ CΚΦΝΞΧ

Law sent Lindell correspondence in this case using the updated letterhead showing

WΨΨΝΰΚΫΝ Κά ΚΧ ̉AΟΟ΢Υ΢ΚέΞ AέέΨΫΧΞβϻ̊ HΨΰΞίΞΫϸ neither Woodward nor Camden Law

sent Lindell written notice pursuant to M.R. Prof. C. 1.10(a)(2)(ii) (the imputation

rule). Camden Law did not describe the screening procedures employed; did not

provide a statement of compliance; did not inform Lindell that review was available

before a tribunal; and did not agree to respond promptly to any written inquiries or

objections. Indeed, Camden Law took no active steps to screen Woodward from this

litigation until sometime in November 2019, after briefing on the Motion to Disqualify

got underway. At that point, the screening consisted of instructing staff that

Woodward could have no access to or involvement in the litigation.

As it turns out, however, Woodward has not had any role in the litigation. He

has not entered an appearance in the case. Moreover, Lindell has not offered any

proof (or madΞ Κ ΩΫΨΟΟΞΫ̣ έΡΚέ WΨΨΝΰΚΫΝ ΡΚά άΡΚΫΞΝ ΰ΢έΡ PΥΚ΢Χέ΢ΟΟά̆ ΜΨήΧάΞΥ

(MacLean and Gilbert) any privileged or confidential information regarding Lindell.

L΢ΧΝΞΥΥ ΡΚά ΧΨέ ΞίΞΧ ΚΥΥΞΠΞΝ έΡΚέ άήΜΡ Κ Ν΢άΜΥΨάήΫΞ ΡΚά ΨΜΜήΫΫΞΝϻ PΥΚ΢Χέ΢ΟΟά̆ ΜΨήΧάΞΥ

deny that they have obtained any information of any kind from Woodward regarding

Lindell. The Court treats the denial as a proffer that no such disclosure has occurred.

It is not contested by Lindell.

7
On October 15, 2019, counsel for BHTS served on Woodward a deposition and

΢ΧάΩΞΜέ΢ΨΧ άήΛΩΨΞΧΚϸ άΞΞΤ΢ΧΠ WΨΨΝΰΚΫΝ̆ά έΞάέ΢ΦΨΧβ ΚΧΝ ΝΨΜήΦΞΧέά ΫΞΥΚέ΢ΧΠ έΨ έΡΞ

actions of Lindell in connection with the Estate and the trusts. In response, counsel

for attorney Woodward objected,5 on the following grounds:

Any information Mr. Woodward has in relation to the
subpoena would have been obtained as a result of him
acting in his capacity as the attorney for the personal
representative. He cannot release any of that
information without the consent of the client or order of
the court.
I am mindful of the requirement of rule 45(d)(2)
to give a description of the documents which are
privileged. Because I believe everything in the file (or
even a description of what is contained in the file) is
confidential, I am not going to give a more detailed
explanation. I believe what I have said is sufficient to put
you on notice of why I am objecting and to enable you to
contest my objection.
For now, I am going to assume he should not
appear at the deposition. If you are expecting him to
attend, please let me know.

Lindell has not consented to Woodward releasing any information. Because of the

ΨΛΣΞΜέ΢ΨΧ ΥΨΝΠΞΝ Λβ WΨΨΝΰΚΫΝ̆ά ΜΨήΧάΞΥϸ WΨΨΝΰΚΫΝ̆ά ΝΞΩΨά΢έ΢ΨΧ ΡΚά ΧΨέ ΛΞΞΧ

taken.

DISCUSSION

Motions for disqualification are capable of being abused for tactical purposes.6

Morin v. Me. Educ. !ss’n, 2010 ME 36, ¶ 8, 993 A.2d 1097. To guard against such abuse,

5 Woodward is using counsel other than from Camden Law to represent him with regard to the
subpoena.
6 Camden Law arguΞά έΡΚέ L΢ΧΝΞΥῨά MΨέ΢ΨΧ έΨ D΢άΪήΚΥ΢Οβ ΢ά ΛΞ΢ΧΠ ΚΛήάΞΝ ΟΨΫ έΚΜέ΢ΜΚΥ ΩήΫΩΨάΞάϻ L΢ΧΝΞΥΥ
concedes that after he brought his Motion, he made statements to counsel for his ex-wife, Defendant
Althea Latady, that Lindell would consider withdrawing the Motion if by doing so it would get Latady
Ψήέ ΨΟ έΡΞ Υ΢έ΢ΠΚέ΢ΨΧϻ LΚέΚΝβ̆ά ΜΨήΧάΞΥϸ ΧΨέ L΢ΧΝΞΥΥϸ έΡΞΧ ΢ΦΩΫΨΩΞΫΥβ ήάΞΝ έΡΞ MΨέ΢ΨΧ Κά Κ ΛΚΫΠΚ΢Χ΢ΧΠ
chip to attempt to get Latady dismissed. At oral argument, the Court strongly disapproved of the
actions of all concerneΝϻ NΞίΞΫέΡΞΥΞάάϸ L΢ΧΝΞΥῨά ΩΨάέ ΡΨΜ ΜΨΧΝήΜέ ΝΨΞά ΧΨέ ήΧΝΞΫΦ΢ΧΞ έΡΞ ΠΨΨΝ ΟΚ΢έΡ

8
a motion to disqualify may only be granted where the moving party shows that (1)

̉ΜΨΧέ΢ΧήΞΝ ΫΞΩΫΞάΞΧέΚέ΢ΨΧ ΨΟ έΡΞ ΧΨΧΦΨί΢ΧΠ ΩΚΫέβ Λβ έΡΚέ ΩΚΫέβ̆ά ΜΡΨάΞΧ ΚέέΨΫΧΞβ

ΫΞάήΥέά ΢Χ ΚΧ ΚΟΟ΢ΫΦΚέ΢ίΞ ί΢ΨΥΚέ΢ΨΧ ΨΟ ΚΧ ΞέΡ΢ΜΚΥ ΫήΥΞ̊ and ̢ʹ̣ ̉ΜΨΧέ΢ΧήΞΝ

representation by the attorney would result in actual prejudice to the party seeking

έΡΚέ ΚέέΨΫΧΞβ̆ά Ν΢άΪήΚΥ΢Ο΢ΜΚέ΢ΨΧϻ̊ Morin, 2010 ME 36, ¶¶ 9-10. Courts will not assume

the existence of prejudice to the moving party just by the mere fact that an ethical

violation was committed, even when that ethical violation involves confidential

information. 2010 ME 36, ¶ 10. A mere general allegation that the attorney has some

confidential and relevant information she gathered in the previous relationship will

not support disqualification. Id. Rather, the moving party must articulate ̉έΡΞ

άΩΞΜ΢Ο΢Μϸ ΢ΝΞΧέ΢Ο΢ΚΛΥΞ ΡΚΫΦ ̦έΡΞβ̧ ΰ΢ΥΥ άήΟΟΞΫ ΢Χ έΡΞ Υ΢έ΢ΠΚέ΢ΨΧ Λβ ΨΩΩΨά΢ΧΠ ΜΨήΧάΞῨά

continued representationϻ̊ Id. IΧ άήΦϸ έΡΞ ΦΨί΢ΧΠ ΩΚΫέβ Φήάέ ΩΫΨΝήΜΞ Ξί΢ΝΞΧΜΞ ̉ΨΟ

ΛΨέΡ ΚΧ ΞέΡ΢ΜΚΥ ί΢ΨΥΚέ΢ΨΧ ΚΧΝ ΚΜέήΚΥ ΩΫΞΣήΝ΢ΜΞϻ̊ Id. ¶ 11.

Ethical Violation

The Court starts by noting briefly that it finds no ethical violation in Camden

LΚΰ̆ά ΩΫ΢ΨΫ ΫΞΩΫΞάΞΧέΚέ΢ΨΧ ΨΟ JΚΧΞέ EΤΫΨέΞϸ ΨΫ ΢Χ ΚέέΨΫΧΞβ MΚΜLΞΚΧ̆ά άΞΫί΢ΜΞ Κά

L΢ΧΝΞΥῨά POAϻ Aά έΨ έΡΞ ΥΚέέΞΫ ά΢έήΚέ΢ΨΧϸ άΞΫί΢ΧΠ Κά POA ΟΨΫ ΚΧ ΢ΧΝ΢ί΢Νήal, while at the

same time representing clients who are suing that individual, is certainly unusual and

fraught with risk. However, Lindell was separately represented by criminal defense

counsel at the time, and defense counsel advised Lindell on the desirability of

ΚΩΩΨ΢Χέ΢ΧΠ MΚΜLΞΚΧ Κά POAϻ L΢ΧΝΞΥῨά ΚΩΩΨ΢ΧέΦΞΧέ ΨΟ MΚΜLΞΚΧ Κά POA ΰΚά έΡήά

with which he originally brought the Motion, nor does it detract from the very real merits of the
Motion, which the Court explores at length in this Order.

9
knowing and voluntary, and had the effect of constituting written informed consent

to the extent it was necessary. See M.R. Prof. Conduct 1.6-1.8. Moreover, if Lindell

ΰΚά ήΧΡΚΩΩβ ΰ΢έΡ MΚΜLΞΚΧ̆ά ΚΜέ΢ΨΧά Κά POAϸ L΢ΧΝΞΥΥ ΜΨήΥΝ ΡΚίΞ ΫΞίΨΤΞΝ έΡΞ POA Κέ

any time.

The real ethical question in this case is whether by joining Camden Law,

Woodward created a conflict of interest that must be imputed to the attorneys at

Camden Law (MacLean and Gilbert) who are conducting the litigation in this case. See

M.R. Prof. Conduct 1.10 (Imputation of Conflicts-of-Interest: General Rule). The Court

starts first by examining M.R. Prof. Conduct 1.9 (Duties to Former Clients), which

Camden Law acknowledges is the starting point for the analysis. The analysis is

conducted with regard to Woodward, and then the question of imputation is

examined under M.R. Prof. Conduct 1.10.

Rule 1.9 has three prongs, each of which be addressed in turn. Under the first

ΩΫΨΧΠϸ ̉Κ ΥΚΰβΞΫ ΰΡΨ ΡΚά ΟΨΫΦΞΫΥβ ΫΞΩΫΞάΞΧέΞΝ Κ ΜΥ΢ΞΧέ ΢Χ Κ ΦΚέέΞΫ άΡΚΥΥ ΧΨέ

thereafter represent another person in the same or a substantially related matter in

ΰΡ΢ΜΡ έΡΚέ ΩΞΫάΨΧ̆ά ΢ΧέΞΫΞάέά ΚΫΞ ΦΚέΞΫ΢ΚΥΥβ ΚΝίΞΫάΞ έΨ έΡΞ ΢ΧέΞΫΞάέά ΨΟ έΡΞ ΟΨΫΦΞΫ

ΜΥ΢ΞΧέ ήΧΥΞάά έΡΞ ΟΨΫΦΞΫ ΜΥ΢ΞΧέ Π΢ίΞά ΢ΧΟΨΫΦΞΝ ΜΨΧάΞΧέϸ ΜΨΧΟ΢ΫΦΞΝ ΢Χ ΰΫ΢έ΢ΧΠϻ̊ MϻRϻ

Prof. Conduct 1.9(a). In this case, Lindell did not give Woodward any such informed

consentϸ ΚΧΝ PΥΚ΢Χέ΢ΟΟά̆ ΢ΧέΞΫΞάέά ΢Χ έΡΞ ΜήΫΫΞΧέ ΦΚέέΞΫ ΚΫΞ ΦΚέΞΫ΢ΚΥΥβ ΚΝίΞΫάΞ έΨ

L΢ΧΝΞΥῨά ΢ΧέΞΫΞάέά ΢Χ έΡΞ ΟΨΫΦΞΫ ΦΚέέΞΫ.

MΚέέΞΫά ΚΫΞ ̉άήΛάέΚΧέ΢ΚΥΥβ ΫΞΥΚέΞΝ̊ ΟΨΫ ΩήΫΩΨάΞά ΨΟ έΡ΢ά RήΥΞ ̉΢Ο έΡΞβ ΢ΧίΨΥίΞ έΡΞ

same transaction or legal dispute or if there otherwise is a substantial risk that

confidential factual information as would normally have been obtained in the prior

10
ΫΞΩΫΞάΞΧέΚέ΢ΨΧ ΰΨήΥΝ ΦΚέΞΫ΢ΚΥΥβ ΚΝίΚΧΜΞ έΡΞ ΜΥ΢ΞΧέ̆ά ΩΨά΢έ΢ΨΧ ΢Χ έΡΞ άήΛάΞΪήΞΧέ

ΦΚέέΞΫϻ̊ MϻRϻ PΫΨΟϻ CΨΧΝήΜέ ͳϻ9̢Ν̣ϻ IΧ έΡ΢ά ΜΚάΞϸ WΨΨdward not only advised Lindell

with regard to probating the Will of Phyllis Poor, but over the course of at least two

years WΨΨΝΰΚΫΝ ΚΝί΢άΞΝ L΢ΧΝΞΥΥ ΫΞΠΚΫΝ΢ΧΠ L΢ΧΝΞΥῨά ΜΨΧΝήΜέ Κά ΜΨ-Personal

Representative of the Estate and Trustee of the trusts, and regarding allegations of

misconduct concerning both of those roles.7 The Second Amended Complaint in this

case contains numerous allegations that Lindell engaged in wrongdoing as co-

Personal Representative and Trustee of the trusts. See Second Amended Complaint

¶¶ 9, 11, 12, 13, 15, 16, 17, 24, 25-28, 62, 69, 78, 86, 89, 94, 98, 115ϻ IΧΝΞΞΝϸ PΥΚ΢Χέ΢ΟΟά̆

case against Lindell is ΜΨΧάέΫήΜέΞΝ ΚΫΨήΧΝ έΡΨάΞ ΚΥΥΞΠΚέ΢ΨΧάϻ TΡήάϸ WΨΨΝΰΚΫΝ̆ά ΩΫ΢ΨΫ

representation of Lindell and the current litigation involve the same transaction or

legal dispute. Moreover, there is no question that Woodward obtained confidential

factual information in his prior representation of Lindell that would materially

ΚΝίΚΧΜΞ PΥΚ΢Χέ΢ΟΟά̆ ΩΨά΢έ΢ΨΧ ΢Χ έΡ΢ά Υ΢έ΢ΠΚέ΢ΨΧϻ Accordingly, under the first prong of

Rule 1.9, the matters are substantially related and Woodward is prohibited from

representing Plaintiffs in the litigation.

Under the second prong, a lawyer is proscribed from knowingly representing

̉Κ ΩΞΫάΨΧ ΢Χ έΡΞ άΚΦΞ ΨΫ άήΛάέΚΧέ΢ΚΥΥβ ΫΞΥΚέΞΝ matter in which a firm with which the

ΥΚΰβΞΫ ΟΨΫΦΞΫΥβ ΰΚά ΚάάΨΜ΢ΚέΞΝ ΡΚΝ ΩΫΞί΢ΨήάΥβ ΫΞΩΫΞάΞΧέΞΝ Κ ΜΥ΢ΞΧέ̊ ΰΡΨάΞ ΢ΧέΞΫΞάέά

are materially adverse to that person, and about whom the lawyer had acquired

confidences and secrets protected by Rules 1.6 and 1.9(c). M.R. Prof. Conduct 1.9(b).

7 Indeed, the Application for Informal Probate of Will and Appointment of Personal Representative
lists Lindell as a devisee in his capacity as Trustee, underscoring the extent to which issues involving
the Estate and the trusts are interrelated, and have been from the start.

11
In this case, the Court can reasonably infer that Woodward is aware Camden Law is

representing Plaintiffs in the litigation. As discussed above, Lindell has not provided

informed consent; the litigation is materially adverse to Lindell; and the litigation is

άήΛάέΚΧέ΢ΚΥΥβ ΫΞΥΚέΞΝ έΨ WΨΨΝΰΚΫΝ̆ά ΩΫ΢ΨΫ ΩΫΞάΞΧέΚέ΢ΨΧ ΨΟ L΢ΧΝΞΥΥϻ FήΫέΡΞΫϸ

Woodward acquired privileged and confidential information from Lindell regarding

his conduct as co-Personal Representative of the Estate and Trustee of the trusts, and

allegations of misconduct concerning both of those roles. The information obtained

by Woodward is protected by Rules 1.6 and 1.9, because the information includes

confidences and secrets of a former client. Accordingly, under the second prong of

Rule 1.9 Woodward is prohibited from representing Plaintiffs in the litigation.

UΧΝΞΫ έΡΞ έΡ΢ΫΝ ΩΫΨΧΠϸ ̦̉Κ̧ ΥΚΰβΞΫ ΰΡΨ ΡΚά ΟΨΫΦΞΫΥβ ΫΞΩΫΞάΞΧέΞΝ Κ ΜΥ΢ΞΧέ ΢Χ Κ

matter or whose present or former firm has formerly represented a client in a matter

άΡΚΥΥ ΧΨέ έΡΞΫΞΚΟέΞΫ̊ ήάΞ ΨΫ ΫΞίΞΚΥ ΜΨΧΟ΢ΝΞΧΜΞά ΨΫ άΞΜΫΞέά ΨΟ έΡΞ ΟΨΫΦΞΫ ΜΥ΢ΞΧέ έΨ Ρ΢ά ΨΫ

her disadvantage, unless the information has become generally known. M.R. Prof.

Conduct 1.9(c). In this case, Lindell has offered no proof or proffer that Woodward

ΡΚά ήάΞΝ ΨΫ ΫΞίΞΚΥΞΝ ΚΧβ ΨΟ L΢ΧΝΞΥῨά ΜΨΧΟ΢ΝΞΧΜΞά ΨΫ άΞΜΫΞέάϻ AΜΜΨΫΝ΢ΧΠΥβϸ έΡΞ έΡ΢ΫΝ

prong of Rule 1.9 is not implicated.

However, since the first two prongs of Rule 1.9 prohibit Woodward from

representing Lindell in this litigation, the Court needs to evaluate whether

WΨΨΝΰΚΫΝ̆ά ΜΨΧΟΥ΢Μέ ΨΟ ΢ΧέΞΫΞάέ must be imputed to the other attorneys of Camden

LΚΰϻ MϻRϻ PΫΨΟϻ CΨΧΝήΜέ ͳϻͳΉ ΩΫΨί΢ΝΞά έΡΚέ ̦̉ΰ̧Ρ΢ΥΞ ΥΚΰβΞΫά ΚΫΞ ΚάάΨΜ΢ΚέΞΝ ΢Χ Κ Ο΢ΫΦϸ

none of them shall knowingly represent a client when any one of them practicing

ΚΥΨΧΞ ΰΨήΥΝ ΛΞ ΩΫΨΡ΢Λ΢έΞΝ ΟΫΨΦ ΝΨ΢ΧΠ άΨ Λβ RήΥΞά ͳϻ7 ΨΫ ͳϻ9ϸ̊ άήΛΣΞΜέ έΨ ΜΞΫέΚ΢Χ

12
exceptions. The only exception that potentially applies to this case has to do with

screening and notice. See M.R. Prof. Conduct 1.10(a)-(e). A prohibition based on Rule

ͳϻ9̢Κ̣ ΨΫ ̢Λ̣ ΢ά ΧΨέ ΢ΦΩήέΞΝ έΨ ΨέΡΞΫ ΚέέΨΫΧΞβά ΢Χ έΡΞ Ο΢ΫΦ ΢Ο ̢΢̣ ̉έΡΞ Ν΢άΪήΚΥ΢Ο΢ΞΝ ΥΚΰβΞΫ

is timely screened from any participation in the matter and is apportioned no part of

έΡΞ ΟΞΞ έΡΞΫΞΟΫΨΦϹ̊ ΚΧΝ ̢΢΢̣ ̉written notice is promptly given to any affected former

client to enable the former client to ascertain compliance with the provisions of this

Rule, which shall include a description of the screening procedures employed; a

άέΚέΞΦΞΧέ ΨΟ έΡΞ Ο΢ΫΦ̆ά ΚΧΝ ΨΟ έΡΞ άΜΫΞΞΧΞΝ ΥΚΰβΞΫ̆ά ΜΨΦΩΥ΢ΚΧΜΞ ΰ΢έΡ these Rules; a

statement that review may be available before a tribunal; and an agreement by the

firm to respond promptly to any written inquiries or objections by the former client

ΚΛΨήέ έΡΞ άΜΫΞΞΧ΢ΧΠ ΩΫΨΜΞΝήΫΞάϻ̊ MϻRϻ PΫΨΟϻ CΨΧΝήΜέ ͳϻͳΉ̢Κ̢̣ʹ̢̣΢̣ σ ̢΢΢̣ϻ 8

In this case, Woodward and Camden Law did not comply with the screening

and notice requirements. First, Camden Law did not timely screen Woodward.

Woodward joined Camden Law in January 2019. Camden Law did not screen

Woodward until November 2019, 9 and then only after briefing on the Motion to

Disqualify had gotten underway.10 Second, neither Woodward nor Camden Law sent

Lindell the required written notice. Woodward and Camden Law failed to provide

8 There is also a requirement to send certifications of compliance with these Rules at reasonable
΢ΧέΞΫίΚΥά ήΩΨΧ έΡΞ ΟΨΫΦΞΫ ΜΥ΢ΞΧέ̆ά ΰΫ΢έέΞΧ ΫΞΪήΞάέϻ MϻRϻ PΫΨΟϻ CΨΧΝήΜέ ͳϻͳΉ̢Κ̢̣ʹ̢̣΢΢΢̣ϻ S΢ΧΜΞ
Woodward and Camden Law failed to give Lindell notice of his right to request certifications of
compliance, Lindell never asked for them.
9 The screening that took place in November 2019̛informing staff that Woodward could have no
role in or access to the litigation̛was too little, as well as being too late. Camden Law has still not
formulated a comprehensive set of screening protocols sufficient to satisfy the requirements of M.R.
Prof. Conduct 1.10(a)(2).
10 As discussed in footnote 3, supra, in response to the supplemental Motion Camden Law originally
took the position that Woodward represented the Estate, not Lindell. This may explain, but not
ΞαΜήάΞϸ CΚΦΝΞΧ LΚΰ̆ά ΟΚ΢ΥήΫΞ έΨ έ΢ΦΞΥβ ΢ΦΩΥΞΦΞΧέ άΜΫΞΞΧ΢ΧΠ ΩΫΨΜΞΝήΫΞά ΚΧΝ άΞΧΝ L΢ΧΝΞΥΥ έΡΞ
ΫΞΪή΢ΫΞΝ ΰΫ΢έέΞΧ ΧΨέ΢ΜΞϻ TΡΞ ΟΚΜέ έΡΚέ L΢ΧΝΞΥΥ ΰΚά WΨΨΝΰΚΫΝ̆ά ΜΥ΢ΞΧέ was verifiable from the outset
from the public record.

13
Lindell with a description of the screening procedures employed, a statement of

compliance, a statement about tribunal review, or an agreement to respond

promptly. 11 Since Camden Law failed to comply with the applicable exception to

΢ΦΩήέΚέ΢ΨΧϸ WΨΨΝΰΚΫΝ̆ά conflict of interest under the Rules must be imputed to all

the attorneys of Camden Law, including those attorneys conducting this litigation for

Plaintiffs.

Camden Law tries to escape this conclusion on several grounds, none of which

are persuasive. First, Camden Law suggests that it did timely screen Woodward,

because from the outset Woodward was located in a separate office, with a separate

computer system, and separate staff. However, these features of WooΝΰΚΫΝ̆ά ΨΟΟ΢ΜΞ

set-up were not imposed as a result of any intentional effort to compartmentalize

WΨΨΝΰΚΫΝ ΟΫΨΦ έΡ΢ά Υ΢έ΢ΠΚέ΢ΨΧϻ RΚέΡΞΫϸ WΨΨΝΰΚΫΝ̆ά ΨΟΟ΢ΜΞ άΞέ-up was simply due to

the fact that upon joining Camden Law, Woodward remained in his old office with his

then-existing computer system and staff. As attorney Gilbert eventually conceded at

the second oral argument, Camden Law did not actively impose any screening

procedures until November 2019.12

Camden Law also argues that it satisfied the written notice requirement,

ΛΞΜΚήάΞ CΚΦΝΞΧ LΚΰ ΛΞΠΚΧ άΞΧΝ΢ΧΠ L΢ΧΝΞΥΥ ΜΨΫΫΞάΩΨΧΝΞΧΜΞ ΰ΢έΡ WΨΨΝΰΚΫΝ̆ά ΧΚΦΞ

displayed in the letterhead. This argument lacks any merit. First, simply including

WΨΨΝΰΚΫΝ̆ά ΧΚΦΞ ΨΧ έΡΞ ΥΞέέΞΫΡΞΚΝ ΟΚΥΥά ΟΚΫ άΡΨΫέ ΨΟ ΜΨΧίΞβ΢ΧΠ έΡΞ ΝΞέΚ΢Υed

11 Camden Law has still not provided Lindell with the required written notice. Although Camden Law
cannot at this point cure the untimeliness of its actions, it can and must otherwise attempt to come
into compliance with M.R. Prof. Conduct 1.10(a)(2) moving forward.
12 And the screening procedures were de minimis. See footnote 9, supra.

14
΢ΧΟΨΫΦΚέ΢ΨΧ ΫΞΪή΢ΫΞΝ Λβ MϻRϻ PΫΨΟϻ CΨΧΝήΜέ ͳϻͳΉ̢Κ̢̣ʹ̢̣΢΢̣ϻ SΞΜΨΧΝϸ CΚΦΝΞΧ LΚΰ̆ά

ΜΥΚάά΢Ο΢ΜΚέ΢ΨΧ ΨΟ WΨΨΝΰΚΫΝ ΨΧ ΢έά ΥΞέέΞΫΡΞΚΝ Κά ΚΧ ̉AΟΟ΢Υ΢ΚέΞ AέέΨΫΧΞβ̊ ΢ά ΚΦΛ΢ΠήΨήά

at best, and cannot reasonably be construed as sufficient to have put Lindell on notice

that he needed to bring his Motion to Disqualify sooner.

Based on the above, Lindell has satisfied his burden of demonstrating that the

attorneys of Camden Law have committed an ethics violation by imputation, and that

CΚΦΝΞΧ LΚΰ̆ά ΜΨΧέ΢ΧήΞΝ ΫΞΩΫΞάΞΧέΚέ΢on of Plaintiffs in this matter results in an

affirmative violation of Rules 1.9 and 1.10. The Court next examines whether Lindell

has met his burden of showing that continued representation of Plaintiffs by Camden

Law would result in actual prejudice to Lindell.

Actual Prejudice

L΢ΧΝΞΥΥ ΚΫΠήΞά έΡΚέ ΡΞ ΢ά ΩΫΞΣήΝ΢ΜΞΝ ΢Χ έΡΞ Υ΢έ΢ΠΚέ΢ΨΧ ΛΞΜΚήάΞ WΨΨΝΰΚΫΝ ̉΢ά ΢Χ

possession of confidential emails, letters and other communications that are directly

ΫΞΥΞίΚΧέ έΨ έΡΞ PΥΚ΢Χέ΢ΟΟά̆ ΜΚάΞ ΚΠΚ΢Χάέ ΦΞϻ̊ HΞ ΝΨΞά ΧΨέϸ ΡΨΰever, point to the specific,

΢ΝΞΧέ΢Ο΢ΚΛΥΞ ΡΚΫΦ ΡΞ ΰ΢ΥΥ άήΟΟΞΫ ΢Χ έΡΞ Υ΢έ΢ΠΚέ΢ΨΧ Λβ CΚΦΝΞΧ LΚΰ̆ά ΜΨΧέ΢ΧήΞΝ

representation of Plaintiffs. Moreover, Lindell does not allege that Woodward has

disclosed or otherwise provided any confidential information to the other attorneys

at Camden Law, especially the attorneys conducting the litigation. He certainly offers

no proof or proffer of any such disclosure, and he has declined the opportunity for an

evidentiary hearing. Accordingly, Lindell has failed to meet his burden of

demonstrating actual prejudice.

Lindell resists this conclusion by arguing that under the applicable case law he

has satisfied his burden of showing actual prejudice, by proving the ongoing ethical

15
violation by the attorneys at Camden Law. Lindell in particular relies on Estate of

Markheim v. Markheim, 2008 ME 138, 957 A.2d 56, and Hurley v. Hurley, 2007 ME 65,

923 A.2d 908, neither of which, at least ostensibly, required a showing of actual

prejudice. Lindell contends these two cases are more applicable on the facts than

Morin v. Me. Educ. !ss’n, 2010 ME 36, 993 A.2d 1097, and thus support disqualification

of Camden Law. As discussed below, however, both Estate of Markheim and Hurley

are distinguishable in a key respect, and as the more recently decided case, Morin

establishes the governing law in this area.

In Estate of Markheim v. Markheimϸ έΡΞ MΚΫΤΡΞ΢Φά ̉ΩΫΨί΢ΝΞΝ άΩΞΜ΢Ο΢Μ

ΞαΚΦΩΥΞά ΨΟ ΰΡΚέ ̦έΡΞ ΚέέΨΫΧΞβ̧ ΥΞΚΫΧΞΝ Κά Κ ΫΞάήΥέ ΨΟ έΡΞ ΩΫ΢ΨΫ ΫΞΩΫΞάΞΧέΚέ΢ΨΧϻ̊

Estate of Markheim, 2008 ME 138, ¶ 20. Moreover, the attorney who was the subject

of the Motion to Disqualify was the actual attorney conducting the litigation against

the Markheims. Id. at ¶ 9. That is a significant difference from the facts of this

litigation, where Woodward is not the actual attorney conducting the litigation

against Lindell, and there is no evidence that Woodward has shared any confidential

information with the Camden Law attorneys who are conducting the litigation. In

Estate of Markheim there was no need for the Court to discuss actual prejudice.

Because the attorney who had obtained the confidential information from his prior

representation of the Markheims was the attorney who was then using the

information to bring an action against the Markheims, actual prejudice was inherent

in the proof of the ethical violation.

So to with Hurley v. Hurley. In a prior representation, the attorney who was

the subject of the Motion to Disqualify had obtained details concerning the moving

16
ΩΚΫέβ̆ά ̉ΡΞΚΥέΡϸ ΰΨΫΤ Ρ΢άέΨΫβϸ ΢ΧΣήΫβ Ρ΢άέΨΫβϸ ΚΧΝ Κ ΰΨΫΤΞΫά̆ ΜΨΦΩΞΧάΚέ΢ΨΧ ΜΥΚ΢Φϻ̊

Hurley v. Hurley, 2007 ME 65, ¶ 2. In a subsequent divorce action, that same attorney

ΰΚά ήά΢ΧΠ έΡΞ ΢ΧΟΨΫΦΚέ΢ΨΧ έΨ ΫΞΩΫΞάΞΧέ έΡΞ ΦΨί΢ΧΠ ΩΚΫέβ̆ά ΡήάΛΚΧΝ ΚΠΚ΢Χάέ έΡΞ

moving party. Id. at ¶¶ 4, 13-15. Because the attorney who had obtained the

confidential information from his prior representation of the moving party was the

attorney who was then using the information to bring an action against the moving

party, actual prejudice was inherent in the proof of the ethical violation.

Morin was decided after Estate of Markheim and Hurley, and expressly stated

the need to show both an ethical violation and actual prejudice. Morin did not

overrule or otherwise call into question Estate of Markheim and Hurley, because there

was no need to do so. Morin is not inconsistent with Estate of Markheim and Hurley,

where, on the facts of those cases, actual prejudice was inherent in the proof of the

ethical violation. In any event, Morin is now the governing law which this Court is

required to apply, and Morin requires proof of actual prejudice. Since Lindell has

failed to demonstrate actual prejudice, his Motion to Disqualify Camden Law is

DENIED.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order

by reference on the docket for this case.

December 9, 2019.

______/s_______________________
Michael A. Duddy
Judge, Business and Consumer Docket

17
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. LOCATION: PORTLAND
DOCKET NO. BCD-CV-18-27

FREDERICK J. POOR, )
et al., )
)
Plaintiffs )
)
v. ) ORDER DENYING ’
) TO RECONSIDER
ROBERT K. LINDELL, JR., )
et al., )
Defendants )

By letter dated September 10, 2019, Defendant Robert K. Lindell, ½. (“´¹¯°··”)

¬¾¶¾ ¿³´¾ ºÀ½¿ ¿º ½°®º¹¾´¯°½ ´¿¾ »½´º½ ½¯°½ ¯°¹›´¹² ´¹¯°··’¾ º¿´º¹ ¿º !¸°¹¯ ³´¾

Answer. Lindell specifically asks the Court to reconsider its decision in light of

arguments Lindell made in his reply letter of September 9, 2019.

³° ºÀ½¿ ³¬¾ ®¬½°±À··› ®º¹¾´¯°½°¯ ´¹¯°··’¾ °»¿°¸­°½ 9, 2019, ¬½²À¸°¹¿¾.

The Court finds no grounds to change its prior Order. The cases cited by Lindell,

Morrison v. Sayer, 2011 ME 136, 33 A.3d 432, and Martin v. Dept. of Corrections, 2018

103, 109 !.3¯ 237, ¬½° ´¹¬»»º¾´¿°. °´¿³°½ ´¹¯°··’¾ ½´²³¿ ¿º ¬»»°¬½ ¬¿ ¬ ³°¬½´¹²,

¹º¿ ¿³° »½´¾º¹°½ ¸¬´·­ºš ½À·°, ¬½° ´¸»·´®¬¿°¯ ­› ´¹¯°··’¾ ±¬´·À½° ¿º ¬¹¾Â°½ ¿³°

amended complaints or his significantly untimely Motion to A¸°¹¯. ´¹¯°··’¾ ¯À°

process rights have not been undermined. Indeed, as noted by the Court in its prior

order, Lindell has been an active and knowledgeable participant in the litigation, in

person and via phone conferences. The Court previously reviewed the exhibits

attache¯ ¿º ´¹¯°··’¾ º¿´º¹ ¿º !¸°¹¯, ´¹®·À¯´¹² š³´­´¿¾ ¬¹¯ , ¬¹¯ ¹º¿³´¹² ¬­ºÀ¿

1
those exhibits justifies ²½¬¹¿´¹² ´¹¯°··’¾ º¿´º¹ ¿º !¸°¹¯. !®®º½¯´¹²·›, ´¹¯°··’¾

Motion to Reconsider is denied.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order

by reference on the docket for this case.

September 18, 2019.

_______/s/_________________________
Michael A. Duddy
Judge, Business and Consumer Docket

2
BCD-CV-2018-27

Frederick J. Poor, individually and as Sole Beneficiary
to the Frederic J. Poor Supplemental Needs Trust and
Frederic J. Poor Trust Dated August 20, 2004 a/k/a Phillis
Poor Trust for Frederic Poor and as Beneficiary to the
Estate of Phyllis Poor

v.

Robert Kenneth Lindell, Jr, individually and in
his capacity as Trustee to the Frederic J. Poor Trust
Dated August 20, 2004 and Barbara Gray

Frederick J. Poor Christopher MacLean, Esq.
Frederic J. Poor Supplemental Sarah Gilbert, Esq.
Needs Trust 20 Mechanic Street
Camden, ME 04843

Robert Kenneth Lindell, Jr. Pro-se

Barbara Gray Patrick Mellor, Esq.
Andrew Sarapas, Esq.
PO Box 248
Rockland, ME 04841

Althena Latady John Simpson, Esq.
5 Island View Drive
Cumberland Foreside, ME 04110

Bar Harbor Trust Services Eric Wycoff, Esq.
Kyle Noonan, Esq.
Marianna Liddell, Esq.
Merrills Wharf 254 Commercial St
Portland, ME 04101
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. DOCKET NO. BCD-CV-18-27

FREDERIC J. POOR, et al., )
)
Plaintiffs, )
)
v. ) ORDER ON DEFENDANT BAR
) HARBOR TRUST SERVICES’ MOTION
BAR HARBOR TRUST SERVICES, et ) TO DISMISS
al., )
)
Defendants,

When Phyllis Poor (“Poor”) passed away, she left an estate valued at over six million

dollars, much of which was to be held in trust for the benefit of her son, Frederic J. Poor, as well

as her grandchildren, in two testamentary trusts. Plaintiffs allege Poor’s intention was undermined

by Defendants in this matter, principally Defendant Robert Kenneth Lindell, Jr. (“Lindell”), who

significantly misappropriated trust funds. Plaintiffs also allege that Defendant Bar Harbor Trust

Services (“BHTS”), as administrative trustee of the two trusts, allowed Lindell to loot the assets

of the two trusts.

BHTS moves to dismiss the Complaint in its entirety for failure to state a claim, or,

alternatively, for a stay of this action to allow the Hancock County Probate Court (the “Probate

Court”) to rule on a declaratory judgment action BHTS filed there before it was named in this

lawsuit.1 M.R. Civ. P. 12(b)(6). Plaintiffs—Frederick Poor and Maryellen Sullivan, Esq., in her

capacity as trustee of each trust—oppose the motion. The Court heard oral argument on the motion

on August 7, 2019. Eric Wycoff, Esq. represented BHTS and Sarah Irving Gilbert, Esq.

1 The Court denies BHTS’s motion to stay and declines to consider its argument for dismissal on procedural grounds.
This action was commenced first and BHTS either knew, or should have known, that it would be brought into this
litigation.

1
represented Plaintiffs. For the reasons discussed below, the Court grants BHTS’s Motion in part,

and denies the Motion in part.

BACKGROUND

The operative pleading in this matter is Plaintiffs’ Second Amended Complaint (the

“Complaint”), filed March 1, 2019 and naming multiple defendants: BHTS and Lindell as well as

Lindell’s former spouse, Althea Latady, and Barbara Gray, previously co-personal representative

of Poor’s estate along with Lindell. The Complaint purports to state numerous claims against

BHTS: conversion (Count I, also pled against other defendants); breach of fiduciary duty (Count

II, also pled against other defendants), fraud (Count III, also pled against other defendants), unjust

enrichment (Count V, also pled against other defendants), punitive damages (Count VI, also pled

against other defendants), negligence (Count VII, also pled against another defendant); tortious

interference (Count VIII, also pled against other defendants), fraudulent conveyance (Count IX,

also pled against other defendants), civil conspiracy (Count X, also pled against other defendants),

and intentional infliction of emotional distress (Count XI, also pled against other defendants).

According to the Complaint, Poor died testate on June 30, 2019.2 She left a detailed Last

Will and Testament (the “Will”). (Pl.’s Compl. ¶ 6 & Ex. B.) The Will appoints Barbara Gray

and R. Kenneth Lindell as co-Personal Representatives of the Estate. (Pl.’s Ex. B, at 1.) The

2 Poor’s date of death is shown on Exhibit C to the Complaint, and was agreed upon at oral argument. As a
document attached to the Complaint, Exhibit C is a part of the Complaint “for all purposes” and thus can be
considered on a motion to dismiss without converting the motion into one for summary judgment. M.R. Civ. P.
10(c). Otherwise, “only the facts alleged in the complaint may be considered on a motion to dismiss,” although a
“narrow exception allows a court to consider official public documents, documents that are central to the plaintiff's
claim, and documents referred to in the complaint, without converting a motion to dismiss into a motion for a
summary judgment when the authenticity of such documents is not challenged.” Moody v. State Liquor & Lottery
Comm'n, 2004 ME 20, ¶¶ 8, 10, 843 A.2d 43. Both parties attached multiple exhibits to their memoranda in support
of and opposition to the instant motion, some of which were not attached to or referred to in the Complaint, and fail
to explain how those exhibits fit into the so-called “Moody exception.” The Court declines to treat BHTS’s motion
as one for summary judgment, and disregards all attached exhibits to each party’s memorandum, unless the exhibits
were attached to the Complaint.

2
Personal Representatives are given “full power and authority” to dispose of estate assets to

effectuate the terms of the Will, as well as all powers, rights, and responsibilities of Personal

Representatives under Maine law. (Pl.’s Ex. B, at 1.)

Among other things, the Will creates two trusts: a special needs trust for Poor’s son,

Frederic J. Poor (the “Special Needs Trust”), and a trust for the benefit of her grandchildren (the

“Grandchildren’s Trust”) (collectively, “Trust” or the “Trusts”) (Pl.’s Compl. ¶ 11 & Pl.’s Ex. B,

at 2-9.)) Each Trust was to be funded equally with one-third of Poor’s residuary estate; two-thirds

of her residuary estate were thus to be held in trust for the beneficiaries of the trusts. (Pl.’s Compl.

¶ 12 & Pl.’s Ex. B. at 2, 6-7.))

The Will appoints two types of trustees for each trust: a Personal Trustee and an

Administrative Trustee. For each of the Trusts, the Personal Trustee has “sole authority and

responsibility” for all matters regarding distributions to the beneficiaries, and decisions regarding

the acquisition and disposition of assets for use by the beneficiaries. (Pl.’s Ex. B, at 6, 8.) The

Administrative Trustee has “sole authority and responsibility” for all other matters regarding the

Trusts, including but not limited to tax matters, investments, and bookkeeping. (Pl.’s Ex. B, at 6,8.)

As to each Trust, the Personal Trustee’s decision to acquire an asset for use by a beneficiary, or

make a distribution, takes priority over the Administrative Trustee’s authority to invest trust assets.

The Personal Trustee is also given the power for each Trust to remove and replace the person

serving as the Administrative Trustee. (Pl.’s Ex. B, at 6,8.)

The Will appoints R. Kenneth Lindell as the Personal Trustee for each Trust, and Bangor

Savings Bank as the Administrative Trustee for each Trust. (Pl.’s Ex. B, at 6,8.) Section XI(C) of

the Will is entitled “No Duty to Inquire,” and provides in relevant part as follows: “No person

who deals with any Fiduciary named in or pursuant to this Will shall have a duty to . . . ascertain

3
whether assets paid or transferred to the Fiduciary are properly applied.” (Pl.’s Ex. B, at 11,12.)

Section XI(D) of the Will is entitled “Exculpation of Fiduciaries,” and purports to disclaim

Fiduciary liability unless it is shown the Fiduciary “acted in bad faith or with reckless disregard of

the Fiduciary’s duties.” (Pl.’s Ex. B, at 12.) The final sentence of Section XI(D) additionally

provides as follows: “No Fiduciary shall incur any personal liability for any action taken or not

taken by any Co-Fiduciary or for any action taken or not taken by any predecessor Fiduciary.”

(Pl.’s Ex. B, at 12.)

On April 5, 2013, nine months after Poor’s death, Lindell exercised his authority as the

Personal Trustee to remove Bangor Savings Bank as the Administrative Trustee of each Trust, 3

and appoint BHTS as their successor Administrative Trustee. (Pl.’s Compl. ¶¶ 15-17.) BHTS is a

corporation, with a principal place of business in Bar Harbor. (Pl.’s Compl. ¶ 8.) It is a wholly

owned subsidiary of Bar Harbor Bank and Trust. (Pl.’s Compl. ¶ 8.) BHTS accepted the

appointment. (Pl.’s Compl. ¶ 16.) Five days later, on April 10, 2013, Lindell funded the Trusts.

(Pl.’s Compl. ¶ 28.)4

The Complaint alleges that BHTS “took no steps to ascertain the actual value of Ms. Poor’s

estate,” (Pl.’s Compl. ¶ 18); “allowed the trusts to be funded unequally by Lindell in 2013,” (Pl.’s

Compl. ¶ 19); “allowed both trusts to be underfunded in amounts exceeding $1,000,000,” and

“never sought to locate the missing funds or to notify the beneficiaries,” (Pl.’s Compl. ¶ 20). The

Complaint alleges that on “April 22, 2013—just 12 days after Lindell funded the trusts with

BHTS,” the Maine Office of Securities publicly sanctioned Lindell for a second time. The

Complaint alleges that “BHTS was, or should have been, on notice that as early as June 27, 2013

3 It was explained at oral argument, without dispute, that Bangor Savings Bank never accepted its appointment.
4 The date Lindell funded the Trusts is established by reference to another date alleged in Paragraph 28. At oral
argument, BHTS agreed this was a proper way to establish the date the Trusts were funded.

4
Lindell was engaging in suspicious and unorthodox behavior with regards to securities used to

fund both trusts.” (Pl.’s Compl. ¶ 26.) The Complaint alleges that BHTS allowed Lindell to

wrongfully “extract hundreds of thousands of dollars” from the Special Needs Trust, (Pl.’s Compl.

¶ 22), and, with regard to both Trusts, alleges BHTS otherwise committed multiple acts of

mismanagement, concealment, obstruction, and improper use of funds (Pl.’s Compl. ¶¶ 21 – 48).

On May 4, 2015, two years after BHTS accepted appointment as Administrative Trustee,

Maine Revenue Services issued an Estate Tax Closing Document indicating the Maine Gross

Estate was valued at $6,668,592, and the Maine Taxable Estate was valued at $4,985,865. (Pl.’s

Compl. ¶ 9, & Pl.’s Ex. C.)

STANDARD OF REVIEW

In reviewing a motion to dismiss under Rule 12(b)(6), courts “consider the facts in the

complaint as if they were admitted.” Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d

123. The complaint is viewed “in the light most favorable to the plaintiff to determine whether it

sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief

pursuant to some legal theory.” Id. (quoting Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830).

“Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief

under any set of facts that he might prove in support of his claim.” Id. “The legal sufficiency of a

complaint challenged pursuant to M.R. Civ. P. 12(b)(6) is a question of law” and thus subject to

de novo appellate review. Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141.

DISCUSSION

Conversion—Count I

Count I pleads conversion against all Defendants. With respect to BHTS specifically,

Plaintiffs allege that BHTS utilized trust assets to fund its legal defense and, generally, as a member

5
of the class of Defendants acted in concert and conspired with the other Defendants to convert

trust assets and as such are jointly and severally liable for other Defendants’ conversion. (Pl.’s

Compl. ¶¶ 81-83.) BHTS addresses only the first allegation.

To recover for conversion where property is taken wrongfully, 5 a plaintiff must prove that

he has a property interest in the converted property and that he had a right to possess the property

at the time of conversion. Estate of Barron v. Shapiro & Morley, LLC, 2017 ME 51, ¶ 14, 157

A.3d 769; Withers v. Hackett, 1998 ME 164, ¶ 7, 714 A.2d 798. Plaintiffs allege many facts in

support of these elements. BHTS argues implicitly that these are not facts but erroneous legal

conclusions, because BHTS had a legal right to utilize trust assets to pay its legal fees.

In support of its arguments, BHTS points out that the Will states trustees “shall be

reimbursed for the reasonable costs and expenses incurred in connection with their fiduciary duties

under this Will.” (Pl.’s Ex. B, at 10 (emphasis added).) BHTS also analogizes to 18-A M.R.S. § 3­

720,6 which pertains to personal representatives and provides that a personal representative who

“defends or prosecutes any proceeding in good faith, whether successful or not, . . . is entitled to

receive from the estate necessary expenses and disbursements including reasonable attorney's fees

incurred.” BHTS’s legal arguments, however, do not convert the Plaintiffs factual allegations into

legal conclusions. The Complaint is replete with factual allegations that BHTS’s expenses were

incurred in breach of its fiduciary duty and that it has not defended this action in good faith. Taken

as true, the allegations are sufficient to state a claim for conversion against BHTS, notwithstanding

5 Plaintiffs do not allege that they made a demand for the return of the property; however, this requirement is waived
where the property was taken wrongfully. Withers v. Hackett, 1998 ME 164, ¶ 7, 714 A.2d 798.
6 In 2018, Maine’s legislature enacted 2018 ch. 402, § A-2, which repealed Title 18-A and replaced it with Title 18­
C M.R.S. §§ 1-101—9-404, with the new statutes taking effective July 1, 2019. Section 3-720 was preserved in its
entirety with the codification of Title 18-C in 18-C M.R.S. § 3-720.

6
any defenses BHTS may have under the will or pursuant to Maine statutory law. BHTS’s motion

must be denied as to Count I.

Breach of Fiduciary Duty—Count II

Count II pleads breach of fiduciary duty against all Defendants. For the purposes of

analysis with respect to BHTS, it is useful to divide Plaintiffs’ breach of fiduciary duty allegations

into two categories: (1) the allegations that BHTS allowed the Trusts to be improperly funded

(both underfunded and unequally funded); (2) all the other allegations that BHTS committed

mismanagement as Administrative Trustee. The first category appears to present a question of

first impression in Maine: Does the trustee of a testamentary trust have a fiduciary duty to ensure

that the personal representative of an estate properly funds the trust? 7 For the reasons discussed

below, the Court answers the question in the affirmative. The second category easily states a claim

against BHTS, and at the Motion to dismiss stage does not warrant extended analysis.

Category 1—Improper Funding of the Trusts

In Maine, the law of trusts derives from the Maine Uniform Trust Code, 18-B M.R.S. §§

101—1104 (2018)(the “Trust Code”), and from the common law and principles of equity, which

are used to supplement the Trust Code. 18-B M.R.S. § 106. The Law Court has not yet had

occasion to determine whether, based on any of these sources of law, the trustee of a testamentary

trust has a fiduciary duty to ensure that the personal representative of an estate properly funds the

trust.

Although the question appears novel in Maine, other jurisdictions consider it “settled trust

law that ‘a trustee owes a duty to the cestui on taking over property from the executor to examine

7At oral argument, BHTS argued that holding institutional trustees responsible for a failure by the personal
representative to transfer assets into a testamentary trust would represent a shift in the way the trust services industry
in Maine has heretofore done business.

7
the property tendered and see whether it is that which he ought to receive.’” In re First Nat’l Bank,

307 N.E.2d 23, 25 (Oh. 1974)(quoting 6 Bogert, Trusts and Trustees § 583 (2d ed. 1960)); see also

In the Matter of Estate of Erlien, 527 N.W.2d 389, 395 (Wis. App. 1994)(“the trustee, once named

and upon assumption of office, does have a duty to the beneficiaries of the trust to ensure that the

personal representative of the estate transfers to the trustee all property to which” the beneficiaries

are entitled); Bullis v. DuPage Trust Co., 391 N.E.2d 227, 231 (Ill. 1979)(trustee of a testamentary

trust has the duty “to carefully examine the terms of the trust in order to ascertain exactly what

property forms the subject-matter of the trust,” quoting Bogert, Trusts & Trustees § 583, at 218­

219 (2d ed. 1960)); Pepper v. Zions First Nat’l Bank, 801 P.2d 144, 151 (Ut. 1990)(“[t]he law is

settled” that a trustee owes a duty to the beneficiary on taking over property from the executor to

ensure the trust receives what is due).

The common law duty of a trustee to ensure testamentary trusts are properly funded is more

than one of mere inquiry.

The trustee should familiarize himself with the duties of the executor
toward him and exact accurate performance of these duties. The
trustee should also inquire of the executor concerning the history of
all the property tendered since it may be important for the trustee to
know whether the property delivered was purchased by the testator
himself or was an investment made properly or improperly by the
executor.

Bogert, The Law of Trusts and Trustees § 583. The Restatement of Trusts describes the duty as

follows:

The trustee’s duty to administer the trust includes a duty, at the
outset of administration, to take reasonable steps to ascertain the
assets of the trust estate and to take and keep control of those assets.
In the case of a testamentary trust, these initial steps should include
obtaining and examining an accounting from (or the records of) the
settlor’s executor. . . . Furthermore, in cases of these types, the
trustee ordinarily has the associated responsibility of taking

8
reasonable steps to uncover and redress any breach of duty
committed by a predecessor fiduciary.

Restatement (Third) of Trusts § 76 cmt. d (2007). In other words, pursuant to the common law of

trusts as developed in other jurisdictions and in well regarded treatises and secondary sources, the

trustee must take reasonable steps, in the nature of due diligence, to ensure the personal

representative properly funds the trust.

This common law duty is abrogated or limited by statute in some states. Bogert, § 583, n.

64.50. In New York, for instance, the state’s trust code cloaks trustees in nonliability for the acts

of a predecessor executor, at least under certain narrowly defined situations. N.Y. Surr. Ct. Proc.

Act Law § 1506 (McKinney). The Maine Uniform Trust Code contains no comparable provision.

To the contrary, the Trust Code generally appears to codify the common law duty, or at least to

impose duties consistent with the common law. 18-B M.R.S. § 106

The Trust Code applies equally to inter vivos trusts as well as testamentary trusts. See 18­

B M.R.S. § 401(1). The Trust Code requires a trustee to take reasonable steps “[t]o compel a

former trustee or other person to deliver trust property to the trustee.” 18-B M.R.S. § 812(1).

Lindell was not a former trustee, but as a Personal Representative he was an “other person,” and

thus proper subject of BHTS’s duty under Section 812 to ensure the delivery of trust property. The

Trust Code similarly requires a trustee to “take reasonable steps to take control of and protect the

trust property.” 18-B M.R.S. § 809. Implicit in the duty to “take control of” trust property is the

requirement to know the scope and extent of the trust property. The Trust Code imposes on trustees

the obligation of prudent administration, which requires the exercise of reasonable care, skill and—

notably—caution. 18-B M.R.S. § 804. The Trust Code imposes on trustees with special skills,

such as institutional trustees, the duty to use those special skills or expertise to administer the trust.

18-B M.R.S. §§ 801, 806. In this case, BHTS is not a lay person unfamiliar with activities of a

9
trustee, but rather an institutional trustee, a wholly owned subsidiary of Bar Harbor Bank and

Trust. Finally, the Trust Code requires trustees to take reasonable steps to enforce claims of the

trust. 18-B M.R.S. § 811. These provisions taken together, and supplemented by the common law

of trusts, impose on the trustee of a testamentary trust in Maine a fiduciary duty to take reasonable

steps to ensure that the personal representative of the estate properly funds the trust.

In an effort to avoid imposition of the duty, BHTS first argues that the Probate Code

expressly relieves a person that deals with a personal representative from a duty of inquiry. The

Probate Code provides in relevant part as follows:

A person who in good faith either assists a personal representative
or deals with the personal representative for value is protected as if
the personal representative’s power was properly exercised. The fact
that a person knowingly deals with a personal representative does
not alone require the person to inquire into the existence of a power
or the propriety of its exercise. . . .

18-A M.R.S. § 3-714.8 The Law Court has not addressed the scope and applicability of Section 3­

714. Nevertheless, BHTS’s reliance on Section 3-714 fails for several reasons.

Based on its plain language, Section 3-714 does not apply to BHTS. BHTS was not

assisting the Personal Representative or dealing with the Personal Representative for value. BHTS

was acting as a trustee. Second, Section 3-714 appears to protect an innocent third party who

purchases estate property from the Personal Representative; it does not on its face annul the duties

of a trustee of a testamentary trust who must ensure the Personal Representative properly funds

the trust. See Lane v. Bolduc, No. CV-94-132, 1995 Me. Super. LEXIS 131, *4 (March 29, 1995)

(citation omitted) (Section 3-714 “is designed to protect a person who deals with a personal

representative when the personal representative acts ultra vires and sells property when such sale

8 Section 714 was preserved in the new version of the probate code. 18-C M.R.S. § 3-714.

10
is prohibited by the decedent’s will.”); Unif. Probate Code § 3-714, cmt. (amended 2010) (“This

section qualifies the effect of a provision in a will which purports to prohibit sale of property by a

personal representative.”). Third, even if Section 3-714 ostensibly applies to BHTS in this case,

Plaintiffs have adequately pled facts that establish a lack of good faith. At the Motion to Dismiss

stage, therefore, BHTS’s reliance on Section 3-714 must be denied.

BHTS next argues that to the extent a duty exists in the abstract, it does not apply to BHTS

under the terms of the Will. BHTS first points to the “No Duty to Inquire” provision in Article

XI(C) of the Will. (Pl’s Ex. B. at 11,12). “‘A court must interpret the will within the four corners

of the document but may use the context of the entire will to interpret specific sections.’” Estate

of Silsby, 2006 ME 138, ¶ 15, 914 A.2d 703 (quoting Estate of Wilson, 2003 ME 92, ¶ 11, 828

A.2d 784). On its face, Art. XI(C) plainly protects persons who are not fiduciaries named in the

Will, not persons such as BHTS who are fulfilling the role of a Fiduciary named in the Will. 9 The

fact that the “No Duty to Inquire” provision is located in Article XI, and not in the sections

describing the duties of trustees, supports the conclusion that “No Duty of Inquiry” provision is

not meant to permit the Administrative Trustee to turn a blind eye to whether the Personal

Representative properly funded the Trusts. (Pl.’s Ex. B, at 6,8.)

BHTS then points to the Will’s “Exculpation of Fiduciaries” clause, Will, Art. XI(D), for

the proposition that in the event it had a duty to ensure the Personal Representatives properly

funded the Trusts, it is not liable for breach of that duty. (Pl.’s Ex. B at 12). Although exculpation

clauses are not per se unenforceable under Maine law, “exculpatory clauses are not favored by the

law and are strictly construed against the benefited party.” Martin v. Harris, No. BCD-CV-14-07,

2015 Me. Bus. & Consumer LEXIS 39, *38-39 (September 9, 2015) (quoting In re Trusteeship of

9 Art. XI(C) thus appears to be roughly equivalent to 18-A M.R.S § 3-714.

11
Williams, 591 N.W.2d 743, 747 (Minn. Ct. App. 1999)). See also 1-12 Maine Probate Procedure

§ 12.01 (2017) (“18-B M.R.S. § 1008 gives the first formal statutory approval in Maine to

exoneration or exculpatory clauses, but it circumscribes their use and specifies acts which cause

such clauses to be unenforceable.”) “A term of a trust relieving a trustee of liability for a breach

of trust is unenforceable to the that it . . . [r]elieves the trustee of liability for breach of trust

committed in bad faith or with reckless indifference to the purposes of the trust or the interests of

the beneficiaries[.]” 18-B M.R.S § 1008(1)(A).10

In this case, viewing the Complaint in the light most favorable to the Plaintiffs, the

Complaint adequately alleges that BHTS acted in bad faith and with reckless indifference in its

alleged breaches of trust, particularly once it knew or should have known that the Trusts were

improperly funded and that Lindell was to blame. (Pl.’s Compl. ¶¶ 23-48.) If Plaintiffs succeed in

proving these allegations at trial, the exculpation clause will be no bar to their recovery given that

the allegations are sufficient to support a finding of bad faith. The exculpation clause is thus not

grounds to dismiss Count II.

BHTS poses a number of other arguments to deflect potential liability for its alleged breach

of the duty to ensure Lindell properly funded the Trusts (e.g. the bifurcated nature of the Trusts,

lack of knowledge, lack of damages, etc.), but none of those arguments are persuasive or merit any

specific discussion. In this case, BHTS had a fiduciary duty to ensure Lindell properly funded the

Trusts. Plaintiffs have more than adequately alleged facts in the Complaint to state a claim that

BHTS breached that duty. Whether BHTS is protected by the exculpation clause cannot be

10 Exculpation clauses “inserted as the result of an abuse by the trustee” or “drafted or caused to be drafted by the
trustee” are also unenforceable. 18-B M.R.S. § 1008(1)(B), (2). However, as BHTS correctly points out, Plaintiffs’
argument that Mr. Lindell caused the drafting or insertion of the exculpation clause into the Will lacks support in the
Complaint. See also id. § 1008(1),(2).

12
determined at this stage of the proceeding. Accordingly, BHTS’s Motion to Dismiss the breach

of fiduciary duty claim based on the Category 1 allegations is denied.

Category 2—Mismanagement of the Trusts

Plaintiffs allege that after Lindell funded the Trusts, BHTS allowed Lindell to

misappropriate funds from the Trusts; failed to notify the beneficiaries; attempted to conceal the

misconduct; and used monies from the Trust to fund its legal defense. Taking the facts alleged in

the Complaint as admitted, and viewing the Complaint in the light most favorable to the Plaintiffs,

the Complaint states a claim that BHTS breached its fiduciary duty to impartially administer the

Trusts in good faith, as a prudent person would, solely in the interests of the beneficiaries, incurring

only costs reasonable in relation to the purposes of the Trusts, and keeping the beneficiaries

reasonably informed. See 18-B M.R.S. §§ 801-805, 810, 813. As explained above, whether BHTS

is protected by the Will’s exculpation clause cannot be determined at this stage of the proceeding.

Accordingly BHTS’s Motion to Dismiss the breach of fiduciary duty claim based on the Category

2 allegations is denied.

Fraud—Count III

Count III alleges fraud against BHTS. BHTS argues that these allegations fail to state “the

circumstances constituting fraud . . . with particularity[,]” in contravention of M.R. Civ. P. 9(b).

BHTS correctly argues that certain of Plaintiffs’ allegations do not rise to the level of fraud, such

as the allegation that BHTS attempted to have Frederic Poor sign a waiver of all liability.

Requesting someone sign a waiver is not fraud, regardless of if otherwise actionable as, for

example, a breach of fiduciary duty. See Cianchette v. Cianchette, 2019 ME 87, ¶ 20, 209 A.3d

745 (quoting Drilling & Blasting Rock Specialists, Inc. v. Rheaume, 2016 ME 131, ¶ 17, 147 A.3d

824) (fraud requires false representation).

13
Nonetheless, the Complaint pleads that BHTS engaged “in a concerted and coordinated

effort to hide relevant information and mislead the Plaintiffs . . . .” (Pl.’s Compl. ¶ 95.) Elsewhere,

the Complaint similarly alleges in detail how BHTS failed to communicate facts to Plaintiffs that

it had a duty to communicate and rather took active steps to conceal the truth of its own

misfeasance while under a duty to report. (Pl.’s Compl. ¶¶ 24, 31-34.) While omission of a material

fact is generally not proof of a false representation, both exceptions to that general rule apply here:

BHTS allegedly actively concealed the truth from Plaintiffs while acting as a fiduciary to Plaintiffs.

McGeechan v. Sherwood, 2000 ME 188, ¶ 61, 760 A.2d 1068 (quoting Fitzgerald v. Gamester,

658 A.2d 1065, 1069 (Me. 1995)) (failure to disclose rises to level of misrepresentation with proof

of either (1) active concealment of the truth, or (2) a specific relationship imposing on the

defendant an affirmative duty to disclose); see also Glynn v. Atl. Seaboard Corp., 1999 ME 53, ¶

12, 728 A.2d 117 (quoting Binette v. Dyer Library Ass'n, 688 A.2d 898, 903 (Me. 1996)). Thus,

these allegations are sufficiently detailed to state a claim for fraud under M.R. Civ. P. 9(b). The

Motion to Dismiss the fraud claim in Count III is denied.

Unjust Enrichment—Count V

Count V, which alleges unjust enrichment, is pleaded in the alternative and the allegations

contained in the Complaint more than adequately describe a situation where Plaintiffs (1) conferred

a benefit on BHTS; (2) BHTS had “appreciation or knowledge of the benefit;” and (3) the

“acceptance or retention of the benefit was under such circumstances as to make it inequitable for

it to retain the benefit without payment of its value.” Howard & Bowie, P.A. v. Collins, 2000 ME

148, ¶ 13, 759 A.2d 707 (citing June Roberts Agency v. Venture Properties, 676 A.2d 46, 49 (Me.

1996)). Accordingly, the Court declines to dismiss Count V.

14
Punitive Damages—Count VI

Count VI seeks an award of punitive damages as opposed to pleading a cause of action,

and BHTS raises no argument for its dismissal in the instant motion. In the absence of argument,

the Court declines to dismiss Count VI.

Negligence—Count VII

In Count VII, Plaintiffs contend that BHTS was negligent in failing to take appropriate

action to safeguard the funds of the Frederic J. Poor SNT. The Law Court has characterized the

elements of negligence as “a duty owed, breach of that duty, and an injury to the plaintiff that is

proximately caused by a breach of that duty.” Stanton v. Univ. of Maine Sys., 2001 ME 96, ¶ 7,

773 A.2d 1045, 1049. Plaintiffs allege that BHTS owed a duty to beneficiaries to exercise oversight

and reasonable care regarding the funding of the trusts, as well as with regard to disbursements

made to Lindell. Plaintiffs further allege that BHTS’ failure to exercise their duty proximately

caused the theft of hundreds of thousands of dollars from the Frederic J. Poor SNT.

In response, Defendants BHTS contend they possess no duty to examine trust property

received from a personal representative (Lindell) and thus without a breaching a duty cannot be

held negligent. Because the court concludes BHTS did in fact have a fiduciary duty to ensure

Lindell properly funded the Trusts, this is not grounds to dismiss Count VII.

Plaintiffs allegations, if true, are sufficient to establish a cause of action for negligence, and

thus the Court declines to dismiss Count VII.

Tortious Interference—Count VIII

Count VIII pleads one count for tortious interference with economic relations/ expectancy.

Tortious interference requires proof of, inter alia, “. . . interference with [a] contract or advantage

through fraud or intimidation . . . .” See Harlor v. Amica Mut. Ins. Co., 2016 ME 161, ¶ 12, 150

15
A.3d 793. The law court has extended these protections by recognizing a cause of action for

wrongful interference with an expected legacy or gift under a will. Cyr v. Cote, 396 A.2d 1013,

1018 (Me. 1979).

BHTS argues that because “fraud or intimidation” is an essential element of that claim, this

count must likewise be dismissed based on the Complaint’s failure to allege fraud with

particularity. Because the Court concludes that Plaintiffs have alleged fraud against BHTS with

sufficient particularity, this is not grounds to dismiss Count VIII.

Fraudulent Conveyance—Count IX

Count IX pleads one count of fraudulent conveyance against BHTS under Maine’s

Uniform Fraudulent Transfer Act (UFTA). 14 M.R.S.A. §§ 3571-3582. Fraudulent Conveyance

laws, such as found in the UFTA, generally aim to protect creditors from fraudulent acts by

debtors that would undermine their ability to collect amounts owed to them. In re Ohio

Corrugating Co., 91 B.R. 430, 435 (Bankr. N.D. Ohio 1988)

Plaintiffs assert that BHTS committed a transfer with the actual intent to hinder, delay, or

defraud the Plaintiffs. (Pl.’s Compl. ¶ 118.) Despite these assertions, Plaintiffs do not specify

which transfers were fraudulent, nor do they discuss how BHTS participated in such transfers.

Instead, Plaintiffs assert facts stemming from either: 1) Lindell transferring trust assets to himself

while acting as Personal Representative; or 2) BHTS’ conduct in failing to examine and determine

whether the trusts for which they were acting as Trustee were properly funded. These allegations,

viewed in the light most favorable to the Plaintiffs, do not amount to the fraudulent transfer of trust

assets by BHTS for the purpose of hindering, delaying, or defrauding the beneficiaries of the estate.

Thus, the complaint fails to state a claim for fraudulent conveyance and BHTS’ motion is granted

with respect to Count IX.

16
Civil Conspiracy—Count X

BHTS allege a civil conspiracy between all Defendants in Count X. (Pl.’s Compl. ¶¶ 122­

126.) BHTS argues that this count fails because the allegations fail to state a claim for “the actual

commission of some independently recognized tort[.]” See Potter, Prescott, Jamieson & Nelson,

P.A. v. Campbell, 1998 ME 70, ¶ 8, 708 A.2d 283. The Court concludes above that Plaintiffs have

stated claims for multiple torts. BHTS’s motion must be denied as to Count X.

Intentional Infliction of Emotional Distress—Count XI

BHTS next argues that the allegations are insufficient to state a claim for intentional

infliction of emotional distress (“IIED”), which is pleaded in Count XI. (Pl.’s Compl. ¶¶ 127-129.)

Indeed, Plaintiffs allege simply that all Defendants “acted in an extreme and outrageous manner

and caused emotional distress to Frederic Poor[,]” but there are no allegations of the extent of his

emotional distress or even whether any Defendant caused the purported emotional distress

intentionally.

“Recent Law Court decisions have endorsed the trial court’s role as gatekeeper regarding

IIED claims, meaning to evaluate an IIED claim to determine whether the facts alleged could

reasonably justify a verdict for the plaintiff.” Temm v. LPL Fin. LLC, No. BCD-CV-16-14, 2016

Me. Super. LEXIS 68, at *7 (Bus. & Consumer Ct. Apr. 29, 2016). “[I]t is for the Court to

determine in the first instance whether the Defendant’s conduct may reasonably be regarded as so

extreme and outrageous to permit recovery . . . .” Champagne v. Mid-Maine Med. Ctr., 1998 ME

87, ¶ 16, 711 A.2d 842 (quoting Colford v. Chubb Life Ins. Co. of Am., 687 A.2d 609, 616 (Me.

1996)). The allegations against BHTS describe behavior that fell far below the standard of care for

a fiduciary, but do not allege anything that could be described as “extreme and outrageous.” Cf.

Liberty v. Bennett, No. CV-09-459, 2010 Me. Super. LEXIS 2, *13-15 (Jan. 19, 2010) (declining

17
to dismiss IIED claim because the “court [could] not say as a matter of law that the Defendant’s

actions definitively were not extreme and outrageous such that they would be regarded as atrocious

and utterly intolerable” where the defendant was alleged to have, inter alia, destroyed “the

parent/child relationship between the Plaintiff and her father,” “took control of the day-to-day lives

of the family,” “threatened to foreclose a mortgage . . . if [Plaintiff] did not comply with his

dictates,” “disparaged Plaintiff by screaming at her, calling her names, and telling lies about

Plaintiff to other people in her community . . . .”). Furthermore, the Complaint alleges only

“emotional distress” on the part of Frederic Poor, and not that it “was so severe that no reasonable

[person] could be expected to endure it.” See Curtis v. Porter, 2001 ME 158, ¶ 10, 748 A.2d 18.

In sum, the Complaint does not state a claim for intentional infliction of emotional distress against

BHTS. BHTS’s motion is granted as to Count XI and Count XI is dismissed with prejudice.

Motion to Stay in Anticipation of Probate Court’s Declaratory Judgment

Finally, BHTS argues that alternative to dismissing the claims against them, this action

should be stayed in anticipation of the Probate Court ruling on a declaratory judgement action

BHTS filed in that court prior to being named in this lawsuit. This court, as well as the Hancock

County Probate Court have concurrent jurisdiction over the dispute regarding BHTS. Generally,

in cases of concurrent jurisdiction, the court given priority is the first to exercise jurisdiction.

Stevens v. Stevens, 390 A.2d 1074, 1077 (Me. 1978).

The Plaintiff’s first complaint is dated January 23, 2019. Shortly thereafter, on March 1,

2019, Plaintiffs amended their complaint to include BHTS. Despite the fact BHTS filed their

Hancock Probate Court action in the interim, on February 6, 2019, they were well aware of their

likelihood of being joined in this action. This court had already exercised jurisdiction over the

18
Plaintiff’s action prior to BHTS filing in Hancock County Probate Court. For these reasons, the

court declines BHTS’ motion to stay this proceeding.

CONCLUSION

For all the foregoing reasons, BHTS’s motion is granted in part and denied in part. The

motion is granted with regards to Count IX (Fraudulent Conveyance), and Count XI (Intentional

Infliction of Emotional Distress) and these Counts are dismissed with prejudice as against BHTS.

BHTS’s motion is otherwise denied.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order by reference

on the docket for this case.

So Ordered.

Dated: September 11, 2019 ___/s/________________
Michael A. Duddy
Judge, Business and Consumer Docket

19
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. LOCATION: PORTLAND
DOCKET NO. BCD-CV-18-27

FREDERICK J. POOR, )
et al., )
)
Plaintiffs )
)
v. ) ORDER DENYING LINDELL’S MOTION
) TO AMEND THE ANSWER & PLEADINGS
ROBERT K. LINDELL, JR., )
et al., )
Defendants )

On August 20, 2019, Defendant Robert K. Lindell, Jr; (“Lindell”) filed a “Motion

to Amend Answer to Plaintiff’s [sic\ Second Amended Complaint and His Answers to

Defendant Gray’s And Defendant Latady’s Cross-Claims and to Make His Own Cross-

Claim;” For the reasons set forth below, Lindell’s Motion is Denied;

BACKGROUND

Plaintiffs initiated this litigation on or about May 4, 2018. The Complaint was

duly served on Lindell. On June 18, 2018, Lindell filed a one-sentence Answer denying

all counts and allegations against him. Thereafter, Plaintiffs successfully pursued an

attachment against Lindell.

In due course, on August 28, 2018, this Court issued Scheduling Order No. 1.

The Scheduling Order established a deadline of October 26, 2018, for joinder of

parties and amendment of pleadings. Pursuant to Scheduling Order No. 2, that

deadline was extended to March 1, 2019. The deadline was ultimately extended to

1
April 9, 2019. In sum, the Court provided seven months for joinder of parties and

amendment of the pleadings.

On January 23, 2019, Plaintiffs amended the Complaint, added Defendant

Latady, and served the First Amended Complaint on Lindell. Lindell did not answer

the First Amended Complaint. On April 9, 2019, Plaintiffs amended the Complaint for

a second time, added Defendant Bar Harbor Trust Services (“BHTS”), and served the

Second Amended Complaint on Lindell. Lindell did not answer the Second Amended

Complaint. Lindell also did not answer any of the cross claims. And Lindell did not

seek to join parties or amend the pleadings during the seven months provided by the

Court to do so.

Lindell otherwise has actively participated in the litigation, conducting

discovery, filing motions, invoking the Maine Rules of Civil Procedure, and

participating in hearings and phone conferences. The deadline to conduct discovery

expired on August 14, 2019.1

Lindell now seeks to file an amended answer, adding affirmative defenses,

joining a new party, and adding cross claims. As discussed below, the time for taking

all these actions is long since passed.

ANALYSIS

A party has ten days after service to answer an amended complaint. M.R. Civ.

P. 15(c). In this case, Lindell failed to answer both the First Amended Complaint and

the Second Amended Complaint. In his Motion, Lindell asserts that he wishes to

1 Although, discovery relating to Bar Harbor Trust Services is currently stayed while the Court
considers BHTS’s Motion to Dismiss;

2
amend his answer to the Second Amended Complaint, but Lindell never filed an

answer to the Second Amended Complaint. There is nothing to amend.

Moreover, Lindell fails to offer any credible reason to excuse his failure to

answer the amended Complaints. Lindell claims during discovery, he “uncovered new

evidence and facts after prior deadlines elapsed;” As will be discussed in the next

section, the Court rejects Lindell’s claim of newly discovered evidence; But even if it

were the case—which it is not—it would not excuse Lindell’s failure to answer the

amended Complaints.

Lindell also argues he is “a lay person with no legal training and is acting pro

se;” The Court has from time to time explained to Lindell that even though he is

representing himself, he is nevertheless obligated to comply with the rules of

procedure and the rules of evidence. See Uutinen v. Hall, 636 A.2d 991, 992 (Me.

1994); see also Brown v. Thaler, 2005 ME 75, ¶ 8, 880 A.2d 1113. Indeed, Lindell has

shown himself to be knowledgeable about the applicable rules, and has actively

litigated this case while representing himself. His status as a self-represented litigant

thus offers him no excuse for failure to answer the amended Complaints. His request

to now answer the Second Amended Complaint, four months after his answer was

due, is denied.2

Lindell’s Motion also seeks to amend the pleadings, by joining a new party (one

of the lawyers representing Plaintiffs), and to add various cross-claims. However, the

Court already gave the parties, including Lindell, seven months to amend the

2 Lindell’s attempt to now answer the cross-claims is also denied, as untimely for all the same
reasons.

3
pleadings and join parties. Lindell failed to timely take advantage of that opportunity.

The deadline to amend the pleadings expired six months ago. Accordingly to

Scheduling Order No; 2: “A motion filed after the applicable deadline is untimely and

may be denied on that basis, even if not opposed;” In this case, Lindell’s motion is

untimely; The case has already been in litigation for sixteen months; If Lindell’s

motion were granted at this time it would significantly impair the efficient handling

and management of this case.

The Court is mindful that even when leave of Court is required, leave to amend

should be freely given when justice so requires. See M.R. Civ. P. 15(a). In this case,

justice does not so require; Not only is Lindell’s Motion significantly untimely, there

is no credible basis to support granting the Motion.

Lindell claims that during discovery he uncovered new evidence and facts

after prior deadlines elapsed. Lindell says nothing further in support of this claim,

and fails to explain or elaborate on the claim. Contrary to his claim, an inspection of

the proposed amended answer, and the documents attached thereto, demonstrate

that the “new” evidence and facts on which he relies were wholly or substantially

known to Lindell prior to the litigation. 3 Accordingly, Lindell’s motion to amend the

pleadings is denied.

CONCLUSION

3 Footnote 2 to Plaintiffs’ Opposition provides a useful description of the history and origins of the so
called “new” evidence;

4
For all these reasons, Lindell’s Motion to Amend Answer to Plaintiff’s [sic\

Second Amended Complaint and His Answers to Defendant Gray’s And Defendant

Latady’s Cross-Claims and to Make His Own Cross-Claim is DENIED.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order

by reference on the docket for this case.

September 5, 2019.

_______/s/_____________________
Michael A. Duddy
Judge, Business and Consumer Docket

5
STATE OF MAINE BUSINESS & CONSUMER DOCKET
CUMBERLAND, ss. LOCATION: PORTLAND
DOCKET NO. BCD-CV-18-27.,­

FREDERICK J. POOR, )
ETAL )
)
Plaintiffs )
)
V. ) ORDER DENYING MOTION TO
) RELEASE ATTACHED FUNDS
ROBERT K. LINDELL, JR., )
ET AL )
Defendants )

On May 4, 2018, the District Court granted the Plaintiffs' Motion for Ex Parte

Attachment and Trustee Process, and approved attachment and attachment on

trustee process against Defendants in the amount of $3,000,000. On June 12, 2018,

Defendant Robert Lindell filed a Motion to Stay. On June 20, 2018, Defendant

Barbara Gray filed a Motion to Dissolve Attachment, which included the Affidavit of

Barbara Gray. Defendant Robert Lindell did not file any such motion or affidavit

seeking dissolution or modification of the attachment. On July 10, 2018, this case

was accepted for transfer to the Business and Consumer Docket. A hearing was held

on August 24, 2018 (at which Lindell appeared, representing himself), following

which the Court denied Lindell's Motion to Stay, and granted Gray's Motion to

Dissolve Attachment.

On August 29, 2018, Lindell filed a Motion to Release Attached Funds to Pay

for Criminal Defense Attorney. Lindell did not include an affidavit with his Motion.

1
Plaintiffs timely opposed the Motion, Lindell replied, and Lindell's Motion to Release

is now fully briefed.

Lindell has filed what he calls a Motion to "Release," but he has not

previously or currently actually moved to dissolve or modify the attachment. Thus

the attachment is in full force and effect. M.R. Civ. P. 4A does not provide a

mechanism to request or order release of funds properly attached. Since Rule 4A

does not contemplate such a proceeding, Lindell is not entitled to a hearing,1 and his

Motion is denied.

Even if Lindell's Motion is construed as a Motion to Dissolve or Modify, the

result is no different. In order to be entitled to a hearing under Rule 4A(h), a

Defendant must include with his Motion an affidavit challenging the findings of the

ex parte attachment order. M.R. Civ. P. 4A(h). A Defendant's failure to challenge by

affidavit means the Plaintiff has no burden to justify any finding in the ex parte

order, which in turn means there is no reason or purpose for holding a hearing. See

Beesley v. Landmark Realty, Inc .. 464 A.2d 936,937 (Me. 1983)(by failing to

challenge by affidavit the findings of the ex parte order, defendant was precluded

from challenging the findings at the hearing on the motion to dissolve); see also

Levine v. Keybank Nat'l Ass'n, 2004 ME 131, ,r,r 11 & 12,861 A.2d 678,602

(defendant failed to challenge by affidavit any of the findings in the ex parte order);

Sanders v. Sanders. 1998 ME 100, ,r 7, 711 A.2d 124, 126-127 (defendant did not

challenge the findings by affidavit, therefore plaintiff had no burden to justify them).

1 The Court may in its discretion rule on a motion without a hearing. M.R. Civ. P. 7(b)(7). Since there
are no reasonable grounds for the Court to consider granting Lindell's Motion, the Court decides the
motion without a hearing.

2
Further, even if Lindell's Motion is itself construed to be an affidavit or

declaration, which it is not, the result is still no different. The facts alleged in

Lindell's Motion to Release are extraneous to the findings justifying the ex parte

order of attachment. The legal argument contained in the Motion also fails to

address or challenge any of the findings on which the ex parte order is based. For

all of these reasons, Lindell is not entitled to a hearing, and his Motion is denied.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this

Order by reference on the docket for this case.

October 1, 2018.

Michael A. Duddy
Judge, Business an Consumer Docket

Entered on the t ocr.et /o- /-/2f
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