Holland v. Dwyer, Collora ( 1996 )

USCA1 Opinion

          March 29, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1632





                                  SCOTT W. HOLLAND,



                                Plaintiff, Appellant,



                                          v.



                          DWYER, COLLORA & GERTNER, ET AL.,



                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. D. Brock Hornby,* U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Scott W. Holland on brief pro se.
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            David J. Hatem, Lynn A. LaBanca and Burns  & Levinson on brief for
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        appellees.







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        *Of the District of Maine, sitting by designation.





                 Per Curiam.   We  affirm the judgment  substantially for
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            the reasons recited  by the  district court  in its  decision



            dated  May 1, 1995,  adding only the  following.  Plaintiff's



            guilt with respect  to his underlying drug  conviction is not



            in doubt.   Accordingly, a prerequisite  to any recovery  for



            legal  malpractice  is  proof that  counsel  committed "clear



            negligence  whose  causal  connection to  the  conviction  is



            clear," Glenn v.  Aiken, 409 Mass. 699, 705 (1991)--not proof
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            of  negligence  having  a  "casual"  connection  thereto,  as



            plaintiff  suggests.    The  tactical decision  to  move  for



            dismissal prior  to trial,  as the district  court explained,



            fails to satisfy this standard.  In turn, the contention that



            defendants were  obligated to  prepare for and/or  to conduct



            the trial  is belied by plaintiff's  insistence on proceeding



            pro se--to  the point  of spurning  all offers  of assistance



            from standby  counsel during the  trial itself.   See,  e.g.,
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            United  States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989)
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            (right  to  counsel  and  right  to  self-representation  are



            "mutually exclusive").   Plaintiff's argument that  the Glenn
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            standard  is  inapplicable to  pretrial  proceedings likewise



            proves unavailing.  See, e.g., Peeler v. Luce, 909 S.W.2d 494
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            (Tex. 1995).



                 Affirmed.  See Loc. R. 27.1.
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