Issue Preclusion Does Not Bar Action Against Law Firm

A divorce litigant’s suit against opposing counsel for allegedly issuing a subpoena for therapy records without copying her counsel was revived by the Maine Supreme Judicial Court, which rejected the contention that the suit was defeated by issue preclusion

Because the trial court acted on a motion to dismiss the complaint, “[t]he following substantive facts are taken from the allegations in the complaint and are viewed as if they were admitted.” 20 Thames St. LLC v. Ocean State Job Lot of Me. 2017 LLC, 2021 ME 33, ¶ 2, 252 A.3d 516. The procedural history is derived from the record. Id.

In 2015, Pacheco filed a complaint for divorce against her now ex-husband. Her ex-husband was represented by Gene Libby, Esq. and Libby O’Brien Kingsley & Champion, LLC, (collectively, the Firm) throughout the divorce proceedings. In those proceedings, at a hearing before a referee, Pacheco moved for a mistrial on the ground of surprise because the Firm had failed to copy her attorney on a subpoena requesting her counseling records from her therapist. The referee denied Pacheco’s motion and found, inter alia, that the Firm’s failure to copy Pacheco’s attorney on the subpoena was inadvertent. The Firm was unsuccessful in its attempt to use or admit the subpoenaed records during the hearing.

The lawsuit was filed after the divorce was concluded

Here, the referee’s findings were made in response to Pacheco’s motion for a mistrial during a hearing on the narrow issue of whether a post-marital agreement should be enforced, and among the reasons why the referee denied the motion was the observation that the subpoenaed counseling records were not relied upon in the determination of the merits in that hearing. The referee’s findings regarding the subpoenaed records were at best tangential to the referee’s recommendation in that discrete matter and were not essential to the divorce judgment. 

Thus

Because the referee’s findings were not essential to the underlying divorce judgment, Pacheco’s tort action is not barred by issue preclusion.

(Mike Frisch)