MAINE	SUPREME	JUDICIAL	COURT	 	          	     	    					  				Reporter	of	Decisions	
Decision:	 2016	ME	139	
Docket:	   BCD-15-470	
Argued:	   June	8,	2016	    	
Decided:	  September	1,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 DAVID	L.	SAVELL	
                                         	
                                       v.	
                                         	
                              MICHAEL	A.	DUDDY	et	al.	
	
	
MEAD,	J.	

	     [¶1]		David	L.	Savell	appeals	from	a	summary	judgment	entered	in	the	

Business	 and	 Consumer	 Docket	 (Cumberland	 County,	 Horton,	 J.)	 in	 favor	 of	

attorney	Michael	A.	Duddy	and	the	law	firm	of	Kelly,	Remmel	&	Zimmerman	

on	Savell’s	complaint	alleging	 attorney	malpractice	and	a	breach	of	fiduciary	

duty.	 	 On	 appeal,	 Savell	 contends	 that	 the	 court	 erred	 in	 concluding	 that	 he	

failed	 to	 adduce	 prima	 facie	 evidence	 of	 an	 attorney-client	 relationship	

between	himself	and	Duddy.		We	affirm	the	judgment.	

                                   I.		BACKGROUND	

	     [¶2]		Viewing	the	summary	judgment	record	in	the	light	most	favorable	

to	 the	 nonprevailing	 party,	 the	 record	 contains	 the	 following	 facts.	 	Estate	 of	

Smith	v.	Salvesen,	2016	ME	100,	¶	2,	---	A.3d	---.		Savell	was	the	chief	executive	
2

officer	of	Sunbury	Primary	Care,	P.A.	(SPC),	a	medical	practice	in	Bangor	with	

three	 shareholders:	 Drs.	 Michael	 B.	 Bruehl,	 Kenneth	 G.	 Simone,	 and	 Thomas	

D.	Hayward	 (the	 doctors).	 	 Savell	 was	 also	 a	 manager	 of	 Sunbury	 Medical	

Properties,	 LLC	 (SMP),	 whose	 sole	 business	 was	 owning	 and	 managing	 the	

real	estate	where	SPC	was	located.		Michael	A.	Duddy	is	an	attorney	licensed	

to	practice	in	the	State	of	Maine	and	is	associated	with	the	Portland	law	firm	

of	Kelly,	Remmel	&	Zimmerman	(KRZ).	

	     [¶3]	 	 Savell	 had	 no	 ownership	 interest	 in	 SPC,	 but	 had	 a	 one-fourth	

“economic	 interest”	 in	 SMP.	 	 As	 a	 holder	 of	 an	 economic	 interest	 in	 SMP,	

Savell’s	 status	 was	 essentially	 the	 same	 as	 “members”	 of	 SMP,	 with	 the	

principal	 difference	 being	 that	 Savell	 lacked	 the	 right	 to	 participate	 in	 the	

management	 of	 the	 company	 and	 lacked	 the	 right	 to	 vote.	 	 Like	 members,	

Savell’s	 interest	 in	 SMP	 included	 an	 agreement	 by	 which	 he	 guaranteed	

payment	 of	 one-fourth	 of	 certain	 secured	 debts	 owed	 by	 SMP	 to	 a	 bank,	 on	

which	the	three	doctors	were	also	guarantors.	

	     [¶4]		From	early	February	2013	until	mid-August	2013,	Savell,	on	behalf	

of	both	SPC	and	SMP,	and	with	the	doctors’	approval,	negotiated	with	Eastern	

Maine	 Medical	 Center	 for	 the	 sale	 of	 the	 SPC	 practice	 and	 SMP’s	 real	 estate	

(where	 SPC	 was	 located).	 	 On	 August	 12,	 2013,	 the	 shareholders	 of	 SPC	 and	
                                                                                        3

members	 of	 SMP	 tentatively	 agreed	 to	 sell	 both	 entities	 to	 EMMC	 for	 a	 total	

purchase	 price	 of	 $4,600,000—$1,000,000	 for	 the	 SPC	 practice	 and	

$3,600,000	 for	 SMP’s	 real	 estate.	 	 EMMC	 was	 represented	 by	 the	

Eaton	Peabody	law	firm	at	all	relevant	times.	

	     [¶5]		After	the	tentative	agreement	was	reached	in	mid-August,	SMP	and	

SPC	 retained	 the	 services	 of	 Duddy	 and	 the	 KRZ	 law	 firm	 to	 represent	 their	

interests	 in	 the	 transaction.	 	 Savell	 had	 less	 involvement	 in	 the	 negotiations	

after	 Duddy	 became	 involved,	 but	 continued	 to	 act	 in	 his	 capacity	 as	 CEO	 of	

SPC	 and	 manager	 of	 SMP	 throughout	 the	 remainder	 of	 the	 negotiations	 and	

closing.	

	     [¶6]		KRZ	and	SPC	entered	into	an	attorney/client	relationship	in	1999,	

and	the	firm,	through	Duddy,	undertook	legal	representation	of	SMP	as	well	in	

2005.	 	 KRZ’s	 representation	 of	 each	 entity	 was	 not	 detailed	 in	 any	 fee	

agreement	or	letter	of	representation,	other	than	a	letter	dating	back	to	1999	

when	KRZ	first	started	representing	SPC.		That	letter,	however,	was	limited	to	

the	 six-month	 period	 following	 its	 transmittal,	 at	 which	 point	 the	 parties	

would	 then	 decide	 whether	 “to	 continue	 the	 retainer	 system,	 or	 use	 [their]	

experience	by	that	point	in	time	to	enter	into	a	fixed	fee	arrangement.”	
4

	      [¶7]	 	 On	 September	 13,	 2013,	 EMMC,	 SPC,	 and	 SMP	 executed	 an	 Asset	

Purchase	 Agreement.	 	 The	 agreement	 identified	 EMMC	 as	 “Buyer,”	 and	 SPC	

and	SMP	as	“Seller.”		The	three	doctors	signed	the	agreement	as	owners	of	the	

corporate	 entities,	 and	 Savell	 signed	 the	 agreement	 in	 his	 capacity	 as	 a	

manager	of	SMP.	

	      [¶8]		On	September	27,	2013,	an	Eaton	Peabody	attorney,	on	behalf	of	

EMMC,	informed	Duddy	that	there	were	too	many	risks	with	the	transaction	

and	 that	 EMMC	 sought	 further	 refinement	 of	 terms	 of	 the	 agreement	 if	 the	

acquisition	were	to	go	forward.		On	October	1,	2013,	the	parties	entered	into	

an	amended	Asset	Purchase	Agreement.		The	amended	agreement	made	three	

central	changes.		First,	the	closing	was	divided	into	two	parts:	(1)	the	sale	of	

SMP’s	 real	 estate,	 and	 (2)	 the	 sale	 of	 the	 SPC	 medical	 practice.	 	 The	 sale	 of	

SMP’s	real	estate	took	place	on	the	day	of	execution	of	the	amendment	for	a	

purchase	price	of	$3,950,000,	a	$350,000	increase	from	the	initial	sale	price;	

the	 sale	 of	 the	 practice,	 they	 agreed,	 would	 be	 deferred	 for	 about	 a	 month.		

Second,	 although	 the	 sale	 price	 of	 the	 SMP	 real	 estate	 was	 increased,	 the	

amended	agreement	also	provided	for	an	unspecified	reduction	in	the	price	of	

the	 SPC	 practice.	 	 Third,	 the	 net	 proceeds	 from	 the	 sale	 of	 SMP’s	 property	

would	 be	 held	 in	 escrow	 by	 Eaton	Peabody	 to	 satisfy	 certain	 specified	
                                                                                           5

anticipated	 debts	 or	 liabilities.	 	 Ultimately,	 after	 most	 of	 the	 debts	 were	

satisfied,	including	mortgages,	legal	fees,	and	pensions,	the	remaining	balance	

held	in	escrow	was	about	$387,530.	

       [¶9]		Pursuant	to	SMP’s	Operating	Agreement,	SMP	“shall	be	dissolved	

upon	 the	 occurrence	 of	 any	 of	 the	 following	 events[:]	 .	 .	 .	 the	 sale	 or	 other	

disposition	 of	 all	 or	 substantially	 all	 of	 the	 assets	 of	 the	 Company	 or	 the	

permanent	cessation	of	the	Company’s	business	operations.”		SMP’s	only	asset	

was	 the	 real	 estate	 where	 SPC	 was	 located,	 which	 was	 sold	 on	

October	1,	2013.	

	      [¶10]	 	 Upon	 dissolution,	 SMP	 agents	 were	 required	 to	 “immediately	

proceed	 to	 wind	 up	 the	 affairs	 of	 the	 Company	 in	 accordance	 with	 the	

requirements	 of	 [the	 statutes]	 and	 other	 applicable	 law.”	 	 (Alteration	 in	

original.)		Upon	the	liquidation	of	assets	and	payments	of	company	liabilities,	

SMP	 was	 to	 distribute	 the	 remaining	 assets	 to	 each	 member	 and	 economic	

interest	 owner	 “with	 respect	 to	 the	 cumulative	 amount	 of	 all	 accrued	 but	

unpaid	pre-dissolution	distributions.”	

	      [¶11]		On	October	9,	2013,	Savell	sent	an	email	to	Duddy	saying,	“I	want	

my	 [$]187[,]402	 paid	 directly	 to	 me,	 leaving	 only	 [$]216,154	 to	 pay	 [SPC]	
6

debts.”	 	 (Fourth	 alteration	 in	 original.)	 	 Duddy	 did	 not	 respond.	 	 On	

October	11,	2013,	Savell	sent	another	email	to	Duddy,	saying,	

      Additionally,	 I	 would	 like	 to	 have	 my	 share	 of	 the	 net	 proceeds	
      received	and	placed	in	escrow	after	[SMP’s]	closing.		I	am	not	sure	
      what	 authority	 EMMC	 has	 to	 retain	 monies	 due	 an	 equal	 owner	
      who	is	not	part	of	[SPC]	and	definitely	has	not	signed	any	personal	
      guarantees	 for	 any	 outstanding	 [SPC]	 debt.	 	 Thank	 you	 for	 your	
      anticipated	cooperation.	
      	
Again,	Duddy	did	not	respond.		On	October	14,	2013,	Savell	sent	a	third	email	

to	Duddy,	saying,	

      Again,	 I	 am	 requesting	 that	 EMMC’s	 legal	 council	 [sic]	 be	 made	
      aware	 that	 $187,402	 of	 [SMP’s]	 remaining	.	.	.	escrow	 [funds]	
      belongs	to	me	as	a	private	investor	with	no	ownership	or	financial	
      responsibility	 for	 [SPC].	 	 I	 am	 requesting	 that	 I	 receive	 my	
      minimum	 investment	 before	 the	 end	 of	 [the]	 business	 [day]	 on	
      Friday[,]	 October	 18,	 2013.	 	 I	 appreciate	 your	 assistance.	 	 Please	
      let	 me	 know	 if	 there	 is	 something	 I	 should	 do	 with	 respect	 to	
      receiving	my	[SMP]	funds.	
      	
      [¶12]		On	October	14,	2013,	Duddy	responded	to	Savell,	saying,		

      So,	[a	third	party’s]	attorney	is	threatening	action	by	the	17th,	you	
      are	 making	 demands	 by	 the	 18th,	 and	 we	 are	 trying	 to	 get	 to	
      closing	on	the	23rd.		Good	grief.		I	am	out	of	the	office	today	and	
      will	call	you	tomorrow.	
      	
The	 same	 day,	 Duddy	 forwarded	 his	 email	 exchange	 with	 Savell	 to	 the	 three	

doctors,	saying,		

      Gentlemen,	 please	 see	 the	 below	 email	 exchange	 with	 [Savell].	 	 I	
      need	to	talk	with	you	about	the	arrangements	you	may	have	made	
      with	[Savell],	and	how	you	want	to	handle	his	expectation.	
                                                                                       7

      	
      [¶13]	 	 Savell	 alleges	 that	 on	 October	 23,	 2013,	 one	 day	 before	 the	

scheduled	closing	for	the	sale	of	the	SPC	practice,	Duddy	called	Savell	and	told	

him	that	the	sale	price	of	SPC	was	reduced	to	$400,000—a	price	equivalent	to	

the	 practice’s	 outstanding	 liabilities.	 	 When	 Savell	 reminded	 Duddy	 that	 he	

was	 owed	 around	 $200,000	 from	 the	 sale	 of	 SMP,	 Duddy	 responded,	 “[T]he	

only	thing	that	matters	right	now	is	that	this	deal	get	done.	.	.	.	We’ll	deal	with	

your	issue	later.”	

      [¶14]		At	the	closing	for	the	sale	of	the	SPC	practice	the	next	day,	Savell	

signed,	in	his	capacity	as	CEO	of	SPC,	an	authorization	and	second	amendment	

to	the	Asset	Purchase	Agreement,	resulting	in	about	$372,774	being	applied	to	

SPC’s	liabilities	and	leaving	a	remaining	balance	of	$14,756.	

      [¶15]	 	 On	 May	 1,	 2014,	 Savell	 filed	 a	 complaint	 in	 the	 Superior	 Court	

(Penobscot	 County)	 against	 the	 three	 doctors,	 Duddy,	 and	 KRZ,	 and	 the	 case	

was	 accepted	 for	 transfer	 to	 the	 Business	 and	 Consumer	 Docket.	 	 On	

August	28,	2014,	Savell	filed	a	nine-count,	third	amended	complaint.		Savell’s	

claims	 against	 Duddy	 and	 KRZ	 were	 founded	 upon	 his	 assertion	 that	 an	

attorney-client	relationship	existed	between	himself	and	Duddy.	

      [¶16]		In	November	2014,	Savell	filed	a	motion	for	summary	judgment.		

On	December	12,	2014,	the	doctors	jointly	filed	a	cross-motion	for	summary	
8

judgment,	 and	 on	 December	 15,	 2014,	 Duddy	 and	 KRZ	 also	 filed	 a	

cross-motion	 for	 summary	 judgment.	 	 After	 a	 hearing,	 the	 court	 granted	

Duddy	and	KRZ’s	motion	for	summary	judgment,	concluding	that	Savell	failed	

to	demonstrate	an	attorney-client	relationship	between	himself	and	Duddy.	

      [¶17]	 	 On	 February	 27,	 2015,	 the	 court	 granted	 in	 part	 and	 denied	 in	

part	the	three	doctors’	joint	motion.		The	doctors	and	Savell	eventually	settled	

the	remaining	claims,	resulting	in	a	final	judgment.		Upon	the	entry	of	a	final	

judgment,	Savell	timely	appealed	the	earlier	order	granting	Duddy	and	KRZ’s	

motion	for	summary	judgment.		Savell’s	argument	on	appeal	is	limited	to	the	

entry	 of	 a	 summary	 judgment	 as	 to	 Count	 IX,	 alleging	 attorney	 malpractice	

and	a	breach	of	fiduciary	duty	by	Duddy	on	behalf	of	KRZ.	

                                   II.		DISCUSSION	

      [¶18]		“We	review	the	grant	of	a	motion	for	summary	judgment	de	novo,	

and	 consider	 both	 the	 evidence	 and	 any	 reasonable	 inferences	 that	 the	

evidence	produces	in	the	light	most	favorable	to	the	party	against	whom	the	

summary	 judgment	 has	 been	 granted	 in	 order	 to	 determine	 if	 there	 is	 a	

genuine	 issue	 of	 material	 fact.”	 	 Budge	 v.	 Town	 of	 Millinocket,	 2012	 ME	 122,	

¶	12,	 55	 A.3d	 484	 (quotation	 marks	 omitted).	 	 A	 party	 seeking	 to	 avoid	

summary	judgment	must	adduce	prima	facie	evidence	as	to	each	element	of	a	
                                                                                          9

claim	 or	 defense	 that	 the	 party	 asserts.	 	 See	 Reliance	 Nat’l	 Indem.	 v.	 Knowles	

Indus.	Servs.,	Corp.,	2005	ME	29,	¶	9,	868	A.2d	220.	

       [¶19]		“A	fact	is	material	if	it	has	the	potential	to	affect	the	outcome	of	

the	 suit,	 and	 a	 genuine	 issue	 of	 material	 fact	 exists	 when	 a	 fact-finder	 must	

choose	 between	 competing	 versions	 of	 the	 truth,	 even	 if	 one	 party’s	 version	

appears	 more	 credible	 or	 persuasive.”	 	 Angell	 v.	 Hallee,	 2014	 ME	 72,	 ¶	 17,	

92	A.3d	1154	(quotation	marks	omitted).		“When	the	material	facts	are	not	in	

dispute,	we	review	de	novo	the	trial	court's	interpretation	and	application	of	

the	 relevant	 statutes	 and	 legal	 concepts.”	 	 Remmes	 v.	 Mark	 Travel	 Corp.,	

2015	ME	63,	¶	19,	116	A.3d	466.	

       [¶20]		Count	IX	of	the	complaint,	the	only	count	at	issue	in	this	appeal,	

alleges	attorney	malpractice	and	a	breach	of	a	fiduciary	duty.		The	threshold	

issue	to	each	of	these	claims	is	whether	an	attorney-client	relationship	existed	

between	 Savell	 and	 Duddy.	 	 See	 Estate	 of	 Cabatit	 v.	 Canders,	 2014	 ME	 133,	

¶	21,	105	A.3d	439	(“[T]he	general	rule	is	that	an	attorney	owes	a	duty	of	care	

to	only	his	or	her	client.”).	

       [¶21]	 	 “[A]n	 attorney-client	 relationship	 is	 created	 when	 (1)	 a	 person	

seeks	 advice	 or	 assistance	 from	 an	 attorney,	 (2)	 the	 advice	 or	 assistance	

sought	pertains	to	matters	within	the	attorney’s	professional	competence,	and	
10

(3)	 the	 attorney	 expressly	 or	 impliedly	 agrees	 to	 give	 or	 actually	 gives	 the	

desired	 advice	 or	 assistance.”	 	 Bd.	 of	 Overseers	 of	 the	 Bar	 v.	 Mangan,	

2001	ME	7,	 ¶	 9,	 763	 A.2d	 1189	 (quotation	 marks	 omitted).	 	 The	 existence	 of	

an	attorney-client	relationship	is	a	question	of	fact.		Id.	¶	7.		“The	term	‘client’	

includes	one	who	is	either	rendered	professional	legal	services	by	a	lawyer,	or	

who	 consults	 a	 lawyer	 with	 a	 view	 to	 obtaining	 professional	 legal	 services	

from	him.”		Bd.	of	Overseers	of	the	Bar	v.	Dineen,	500	A.2d	262,	264	(Me.	1985)	

(quotation	 marks	 omitted).	 	 “[A]n	 attorney-client	 relationship	 does	 not	

require	the	payment	of	a	fee	or	formal	retainer	but	may	be	implied	from	the	

conduct	of	the	parties.”		Id.	at	264-65	(quotation	marks	omitted).	

       [¶22]		The	court	found	that	Savell	failed	to	adduce	evidence	that	he	had	

“sought	 legal	 advice	 or	 assistance”	 from	 Duddy,	 thereby	 failing	 to	 satisfy	 the	

first	prong	of	the	Mangan	test.		Mangan,	2001	ME	7,	¶	9,	763	A.2d	1189;	see	

also	 Oceanic	 Inn,	 Inc.	 v.	 Sloan’s	 Cove,	 LLC,	 2016	 ME	 34,	 ¶	 26,	 133	 A.3d	 1021	

(“The	nonmoving	plaintiff	.	.	.	must	make	out	a	prima	facie	case	for	its	claim.”).		

Savell	 argues	 on	 appeal,	 as	 he	 did	 in	 the	 trial	 court,	 that	 the	 series	 of	 email	

exchanges	 between	 himself	 and	 Duddy	 amounted	 to	 prima	facie	 evidence	 of	

an	attorney-client	relationship.	
                                                                                    11

      [¶23]		Savell	contends	that	the	first	prong	of	the	Mangan	test	is	satisfied	

because	 “[i]n	 every	 email	 [he]	 reiterated	 to	 Duddy	 his	 request	 for	 payment”	

and	 therefore	 he	 “repeatedly	 asked	 Duddy	 for	 assistance.”	 	 The	 summary	

judgment	 record	 shows	 that	 Savell	 indeed	 made	 various	 requests	 and	

demands	of	Duddy.		For	instance,	in	his	October	9	email	to	Duddy,	Savell	made	

the	demand,	“I	want	my	[$]187[,]402	paid	directly	to	me”;	Savell’s	October	11	

email	states,	“I	would	like	to	have	my	share	of	the	net	proceeds	received	and	

placed	 in	 escrow	 after	 [SMP’s]	 closing.	.	.	.	Thank	 you	 for	 your	 anticipated	

cooperation”;	and	Savell’s	October	14	email	tells	Duddy	that	he	is	“requesting	

that	EMMC’s	legal	[counsel]	be	made	aware”	that	he	wanted	the	money	placed	

in	escrow.	

      [¶24]	 	 Contrary	 to	 Savell’s	 contention,	 however,	 the	 uncontroverted	

email	exchanges	show	that	Savell	did	not	seek	legal	advice	or	assistance	from	

Duddy.		As	opposed	to	asking	questions	of	or	voicing	concerns	to	Duddy	in	an	

effort	to	seek	legal	advice	or	assistance,	Savell	simply	sought	to	use	Duddy	as	a	

vehicle,	in	his	capacity	as	an	attorney	for	SMP	and	SPC,	to	relay	his	conviction	

that	 certain	 escrowed	 funds	 were	 due	 him.	 	 Requests	 or	 demands	 that	 an	

attorney	 obtain	 his	 client’s	 acknowledgement	 of	 a	 claim	 for	 monies	 owed	 by	

the	client	to	the	claimant	do	not	by	themselves	constitute	the	seeking	of	legal	
12

assistance	 within	 the	 purview	 of	 Mangan,	 and	 do	 not	 give	 rise	 to	 an	

attorney-client	relationship.	

      [¶25]		Several	aspects	of	the	parties’	conduct	and	communications	also	

strongly	 suggest	 that	 neither	 understood	 that	 an	 attorney-client	 relationship	

had	 been	 established	 between	 them.	 	 See	 Dineen,	 500	 A.2d	 at	 264-65	 (“[A]n	

attorney-client	 relationship	.	.	.	may	 be	 implied	 from	 the	 conduct	 of	 the	

parties.”	(quotation	marks	omitted)).		First,	Savell	ended	his	October	11	email	

to	 Duddy	 with	 the	 closing	 “[t]hank	 you	 for	 your	 anticipated	 cooperation”—

language	unlikely	to	be	used	when	an	attorney	has	been	engaged	to	pursue	a	

client’s	specific	objectives.		Second,	after	Savell’s	email	on	October	14,	Duddy	

forwarded	Savell’s	emails	to	the	three	doctors	and	stated,	“I	need	to	talk	with	

you	about	.	.	.	how	you	want	to	handle	[Savell’s]	expectation.”		Consulting	with	

the	majority	shareholders	of	his	corporate	clients	regarding	their	expectations	

about	 claims	 against	 corporate	 assets	 is	 strongly	 indicative	 of	 the	 fact	 that	

Duddy	 did	 not	 enter	 into	 an	 attorney-client	 relationship	 with	 Savell.	 	 On	 the	

contrary,	it	is	distinctly	more	indicative	of	the	fact	that	an	adverse	relationship	

existed	 between	 Savell	 and	 Duddy’s	 corporate	 clients—a	 circumstance	 that	

would	prevent	Duddy	from	entering	into	an	attorney-client	relationship	with	

Savell.	 	 Third,	 Duddy	 explicitly	 deferred	 addressing	 Savell’s	 demands	 by	
                                                                                                13

saying	things	like	“we’ll	deal	with	your	issue	later”	and	“we’ll	ultimately	get	to	

your	 situation.”1	 	 As	 the	 court	 observed,	 this	 is	 “not	 something	 an	 attorney	

would	tell	his	own	client”	and	similarly,	from	Savell’s	perspective,	“it	is	hard	to	

believe	 [that	 Savell]	 would	 have	 allowed	 his	 own	 attorney	 to	 defer	 dealing	

with	his	concerns	until	later.”	

       [¶26]	 	 The	 court,	 therefore,	 properly	 concluded	 that	 Savell	 failed	 to	

adduce	 prima	 facie	 evidence	 that	 he	 sought	 legal	 advice	 or	 assistance	 from	

Duddy	based	on	the	emails	and	the	parties’	conduct.	

       [¶27]	 	 Notwithstanding	 its	 finding	 that	 Savell	 failed	 to	 satisfy	 the	 first	

prong	 of	 the	 Mangan	 test,	 the	 court	 also	 found	 that	 Savell	 failed	 to	

demonstrate	that	Duddy	expressly	or	impliedly	agreed	to	give	or	actually	gave	

legal	advice.2		See	Mangan,	2001	ME	7,	¶	9,	763	A.2d	1189.	

       [¶28]		We	need	not	reach	that	finding,	however,	because	satisfaction	of	

the	first	prong	of	the	Mangan	test—seeking	legal	advice	or	assistance	from	an	

attorney—is	 a	 threshold	 issue	 to	 both	 the	 second	 and	 third	 elements	 of	 the	

test.		The	plain	language	of	the	Mangan	test	makes	this	clear,	stating,	“(2)	the	



   1		For	reasons	discussed	below	we	do	not	address	whether	these	responses	constitute	an	implicit	

agreement	to	render	legal	advice	or	assistance.		See	infra	¶¶	27-28.	
    	
    2		With	regard	to	the	second	element	of	the	Mangan	test,	there	is	no	contention	that	any	of	the	

matters	were	outside	the	scope	of	Duddy’s	professional	competence.		See	Bd.	of	Overseers	of	the	Bar	
v.	Mangan,	2001	ME	7,	¶	9,	763	A.2d	1189.	
14

advice	 or	 assistance	 sought	 pertains	 to	 matters	 within	 the	 attorney’s	

professional	 competence,	 and	 (3)	 the	 attorney	 expressly	 or	 impliedly	 agrees	

to	 give	 or	 actually	 gives	 the	 desired	 advice	 or	 assistance.”	 	 Id.	 (emphases	

added)	 (quotation	 marks	 omitted).	 	 Thus,	 because	 Savell	 did	 not	 seek	 legal	

advice	 or	 assistance,	 the	 second	 and	 third	 prongs	 of	 the	 Mangan	 test	

necessarily	cannot	be	satisfied.	

       [¶29]		Savell	argues,	in	the	alternative,	that	even	if	he	was	not	Duddy’s	

client,	 Duddy	 owed	 him	 a	 duty	 as	 a	 nonclient	 based	 on	 the	 multifactor	

third-party	 beneficiary	 test	 that	 we	 adopted	 in	 Canders,	 2014	 ME	 133,	 ¶	 16,	

105	 A.3d	 439.	 	 The	 multifactor	 balancing	 test	 involves	 analysis	 of	 the	

following	six	favors:	“(1)	the	extent	to	which	the	transaction	was	intended	to	

benefit	 the	 plaintiff;	 (2)	 the	 foreseeability	 of	 harm	 to	 the	 plaintiff;	 (3)	 the	

degree	 of	 certainty	 that	 the	 plaintiff	 suffered	 injury;	 (4)	 the	 closeness	 of	 the	

connection	between	the	defendant's	conduct	and	the	injury;	(5)	the	policy	of	

preventing	future	harm;	and	(6)	the	extent	to	which	the	profession	would	be	

unduly	 burdened	 by	 a	 finding	 of	 liability.”	 	 Trask	 v.	 Butler,	 872	 P.2d	 1080,	

1084	 (Wash.	 1994);	 see	 also	 Canders,	 2014	 ME	 133,	 ¶	 16,	 105	 A.3d	 439	

(adopting	 the	 multifactor	 third-party	 beneficiary	 test	 created	 by	 the	 Trask	

court).	
                                                                                            15

       [¶30]	 	 Savell’s	 argument	 that	 Duddy	 owed	 him	 a	 duty	 of	 care	 as	 a	

nonclient	 is	 unpersuasive.	 	 In	 Canders,	 we	 explained	 that	 “[a]n	 attorney	 will	

never	owe	a	duty	of	care	to	a	nonclient	.	.	.	if	that	duty	would	conflict	with	the	

attorney's	 obligations	 to	 his	 or	 her	 clients.”	 	 Canders,	 2014	 ME	 133,	 ¶	 21,	

105	A.3d	 439;	 see	 also	 Ramsey	 v.	 Baxter	 Title	 Co.,	 2012	 ME	 113,	 ¶	 11,	

54	A.3d	710	 (“[T]he	 court	 will	 not	 impose	 a	 duty	 of	 reasonable	 care	 on	 an	

attorney	if	such	an	independent	duty	would	potentially	conflict	with	the	duty	

the	 attorney	 owes	 to	 his	 or	 her	 client.”	 (quotation	 marks	 omitted)).	 	 Savell’s	

interest	 “as	 a	 private	 investor	 with	 no	 ownership	 or	 financial	 responsibility	

for	 [SPC],”	 as	 he	 acknowledges	 in	 his	 October	 14	 email,	 puts	 his	 interests	 in	

conflict	 with	 at	 least	 one	 of	 the	 business	 entities.	 	 Indeed,	 in	 his	 brief	 Savell	

highlights	 the	 likelihood	 of	 a	 conflict	 among	 the	 parties	 because	 “the	 two	

companies	 did	 not	 have	 the	 same	 owners;	 the	 three	 doctors	 were	 [the]	 sole	

owners	 of	 SPC,	 but	 they	 owned	 only	 a	 [three-fourths]	 interest	 in	 SMP	 and	

Savell	owned	the	other	one-fourth.”		In	that	light,	Savell	alleges	that	“[u]nder	

the	 [c]ircumstances[]	 a	 [c]onflict	 of	 [i]nterest	 [w]as	 [u]navoidable.”	 	 Because	

Savell	notes	in	his	statement	of	material	facts	that	Duddy	represented	SPC	and	

SMP,	 and	 because	 Duddy’s	 representation	 of	 Savell	 individually	 would	 have	
16

given	rise	to	a	conflict	of	interest	with	Duddy’s	other	clients,	Duddy	could	not	

have	owed	Savell	a	duty	of	care	as	a	nonclient.	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	    	       	      	
	
On	the	briefs:	
	
      Barry	 K.	 Mills,	 Esq.,	 Hale	 &	 Hamlin,	 LLC,	 Ellsworth,	 for	
      appellant	David	L.	Savell	
      	
      James	 M.	 Bowie,	 Esq.,	 and	 Hillary	 J.	 Bouchard,	 Esq.,	
      Thompson	&	Bowie,	LLP,	Portland,	for	appellees	Michael	A.	
      Duddy	and	Kelly,	Remmel	&	Zimmerman	
	
	
At	oral	argument:	
	
      Barry	K.	Mills,	Esq.,	for	appellant	David	L.	Savell	
      	
      James	 M.	 Bowie,	 Esq.,	 for	 appellees	 Michael	 A.	 Duddy	 and	
      Kelly,	Remmel	&	Zimmerman	
	
	
	
Business	and	Consumer	Docket	docket	number	CV-2014-34	
FOR	CLERK	REFERENCE	ONLY	
