Court bars fraud case arising from legal advice

PORTLAND – A Portland-area real estate entrepreneur who says he engaged in bank fraud after receiving bad legal advice about how to shield his assets from creditors has been barred from bringing a malpractice claim against his lawyer.

In a 4-2 ruling Friday, the Supreme Judicial Court found Lawrence Butler’s guilty pleas to bank fraud and illegal structuring of currency transactions preclude a finding that his criminal conduct was directly caused by the advice he received from attorney Daniel Mooers.

Butler alleged that Mooers developed an “asset-protection” plan that enabled him to transfer $1.5 million to banks in the Bahamas in order to shield the money from banks that began foreclosure proceedings after the southern Maine real estate market collapsed in the early 1990s.

Butler said Mooers advised him that the fund transfer was legal and would allow him to tell the banks that he had no assets because they were beyond his direct control.

Butler was sentenced to about 10 months in federal prison and fined $525,000. Mooers subsequently pleaded guilty to improper handling of some $12,000 of Butler’s money.

Mooers sought to block Butler’s malpractice claim, citing his acknowledgment in his bank fraud plea that he had acted knowingly and willfully. The case was stayed in Superior Court pending a law court ruling on Mooers’ motion for a summary judgment.

The law court majority sided with Mooers, but two dissenting justices said Butler’s guilty pleas should not bar him from presenting evidence about the legal advice he received before he committed the crimes.

“If Butler’s malpractice claim was actionable before he entered his pleas, it is difficult to see how admitting his mistake and mitigating any further losses from reliance on his lawyer’s bad advice should forfeit Butler’s malpractice claim,” the minority opinion said.

The dissenters also noted the court record fails to account for what happened to the $900,000, plus interest and any appreciation, that would have remained from the high-yield investments in Butler’s offshore accounts after payment of his fines.