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Lindquist v. B.M.H.I.
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Decision:	2001 ME 72
Docket: 	Pen-00-594
Argued:  	April 10, 2001
Decided:	May 4, 2001




	[¶1]  Heather L. Lindquist appeals from the judgment of the Superior
Court (Penobscot County, Marsano. J.) granting the motion to dismiss of
Bangor Mental Health Institute (BMHI) and dismissing her petition for
review of final agency action.  Lindquist's petition was dismissed on the
ground that her attorney, who is employed by the Office of Advocacy within
the Department of Mental Health, Mental Retardation, and Substance Abuse
Services, is not authorized to represent Lindquist in court.  Because we
conclude that Lindquist's petition should not have been dismissed, we
vacate the dismissal.
	[¶2]  Lindquist was involuntarily committed to BMHI in July 1999. 
This was her twelfth admission to BMHI.  She suffers from post-traumatic
stress disorder.  She also suffers from phenylketonuria (PKU), and for this
reason her physician at BMHI prescribed a restrictive PKU diet with a
protein supplement formula.  Lindquist objected to the diet and filed a
grievance with BMHI alleging her right to refuse the diet.  She proceeded
through the several steps of the grievance procedure, and throughout she
was represented by an attorney employed by the Office of Advocacy.
	[¶3]  Following a hearing before the Division of Administrative
Hearings, Lindquist and BMHI reached an agreement which was signed by
Lindquist's attorney and by the Superintendent of BMHI.  The agreement
was submitted to the Commissioner of the Department, who approved it. 
Among other things, the agreement states that for future admissions of
Lindquist to BMHI, BMHI will honor any request by her for a regular diet. 
The agreement further provides that BMHI will train its staff, no later than
February 29, 2000, "on the principle that the patient has an absolute right
to refuse treatment . . . ."
	[¶4]  Thereafter, Lindquist sought confirmation from the BMHI
Superintendent that the staff training had taken place, and she sought
specific information regarding the training.  The Superintendent informed
Lindquist by memorandum that "appropriate staff were trained," and denied
her request for specific information on the training.  She then filed a motion
before the Division of Administrative Hearings essentially requesting the
same information that she had requested of the Superintendent.  By letter,
the Commissioner notified Lindquist's attorney that Lindquist could obtain
any nonconfidential records by proceeding under the Freedom of Access
rules.  The Commissioner also informed Lindquist that no formal training
was held, but that information was given to the BMHI staff at staff meetings
regarding patients' rights to refuse treatment.   
	[¶5]  Lindquist then filed a petition for review of final agency action in
the Superior Court, pursuant to 5 M.R.S.A. § 11008 (1989) and M.R. Civ. P.
80C, asking that BMHI be directed to provide the information she had
requested.  The Department responded by moving to dismiss the petition
and alleging, as the sole ground for the dismissal, the lack of authority of
Lindquist's attorney to represent her in court.  The Superior Court
examined the statute which establishes the Office of Advocacy, the employer
of Lindquist's attorney.  34-B M.R.S.A. § 1205 (Pamph. 2000).  The court
concluded that the statute does not authorize advocates employed by the
Office of Advocacy to represent clients in court.  Lindquist's attorney is duly
licensed to practice law in the Maine courts.
	[¶6]  We first establish that when a court disqualifies an attorney,
licensed to practice in Maine, from representing a party in a lawsuit, the
disqualification is not a basis for the dismissal of that lawsuit.  We have never
held, and the parties have not called to our attention any other jurisdiction
that has held, that when a plaintiff's attorney is disqualified, the plaintiff's
cause of action is dismissed.  When a party seeks to disqualify the attorney
representing the opposing party, the appropriate motion is a motion to
disqualify the attorney, not a motion to dismiss the lawsuit.  See, e.g.,
Tungate v. MacLean-Stevens Studios, Inc., 1997 ME 113, ¶ 5, 695 A.2d 564,
565 (holding that denial of motion to disqualify attorney is not final
judgment); Casco N. Bank v. JBI Assocs. Ltd., 667 A.2d 856, 860-61 (Me.
1995) (discussing motion to disqualify an attorney because of alleged
conflict); Adam v. Macdonald Page & Co., 644 A.2d 461, 463-65 (Me. 1994)
(same).  If the court grants a motion to disqualify, the party's complaint or
petition survives the disqualification.{1}  The party whose attorney has been
disqualified must be given the opportunity to obtain another attorney or to
proceed pro se.	 
	[¶7]  We further conclude that the Superior Court erred in reaching
and deciding, in the context of a motion to dismiss, the issue of whether 
Lindquist's attorney had the authority to represent her.  The Superior Court
reached its decision by interpreting the statute which establishes the Office
of Advocacy.  34-B M.R.S.A. § 1205.  It construed the statute as limiting the
representation of clients by attorneys employed by that Office to
representation within the Department and as not including representation
in court.  The Superior Court expressly referenced section 1205(3)(C)
which states that the Office shall "[a]ssist clients in any hearing or grievance
proceeding of the department."  Lindquist argues that the statute nowhere
excludes representation in court and contends that section 1205(3)(A)
which states that the Office shall "represent the interests of clients in any
matter pertaining to the rights and dignity of clients" authorizes
representation in court.  Lindquist further argued before this Court that if
section 1205 were interpreted to preclude representation of Lindquist by
the Office of Advocacy in court, the statute would be unconstitutional.  See
Legal Servs. Corp. v. Velazquez, 531 U.S. ---, 121 S. Ct. 1043 (2001) (holding
that restriction on representation in welfare cases violates the First
Amendment rights of attorneys and clients of legal services agencies). 
	[¶8]  We find it unnecessary to interpret section 1205.  Lindquist's
attorney was furnished to her through an agency established by the
government to represent a particular set of clients.  In this respect the
Office of Advocacy is similar to numerous agencies in this country funded by
the federal, state, or local governments or established by educational
institutions or charitable entities to furnish legal services to low-income
people, disabled people, abused women, children, elderly persons, aliens,
and other categories of people.  
	[¶9]  In the context of a lawsuit brought or defended by a client of
such an agency, a court should not be drawn into resolving a collateral issue
of whether the client is eligible to be represented in court by the agency's
attorney pursuant to the agency's governing statute, rules, or by-laws.  Not
only is it inefficient for courts to deal with the scope of representation of an
attorney or the eligibility of a client as a collateral issue in individual cases,
but it would also be an invitation to opposing parties to thwart the access to
the courts by these clients if their attorneys had to constantly meet
challenges to the scope of representation or eligibility for services.  
	[¶10]  Other courts, when faced with challenges to the representation
by legal services attorneys of their clients in court, have responded that such
challenges are best addressed by the funding authorities.  See Jacobs v. Bd.
of Sch. Comm'rs of Indianapolis, 349 F. Supp. 605, 607 (S.D. Ind. 1972),
aff'd, 490 F.2d 601 (7th Cir. 1973), vacated as moot on other grounds, 420
U.S. 128 (1975), and cases cited therein.{2}  In Gulf Homes, Inc. v. Gonzales,
676 P.2d 628, 631 (Ariz. 1984), the Arizona Supreme Court discussed the
problems caused by repetitive litigation over the propriety of representation
of parties by legal services agencies and said:  "Neither our courts nor our
legal services organizations have the time or resources to take on such a
burden . . . ."  Id.
	[¶11]  Questions concerning Lindquist's eligibility for representation
in court proceedings by the Office of Advocacy should not have been reached
by the Superior Court in this proceeding. 
	The entry is:
			Judgment vacated.

Attorney for plaintiff: Arthur J. Keenan, Esq., (orally) Office of Advocacy Department of Mental Health, Mental Retardation, and Substance Abuse Services P O Box 926 Bangor, ME 04402-0926 Attorneys for defendant: G. Steven Rowe, Attorney General Katherine Greason, Asst. Attorney General, (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . The same is true for a party defending an action. If a defendant's attorney is declared disqualified because of a conflict or other reason, the court does not strike the answer and grant a default to the plaintiff. {2} . The Legal Services Corporation Act provides funding to agencies to represent low- income people. In 1977, Congress amended the Act to prohibit courts from inquiring into questions of client eligibility. 42 U.S.C.A. § 2996e(b)(1)(B) (1994). See Mitchell v. Frank Morris Pontiac-Buick-GMC, Inc., 395 So. 2d 51, 52-53 (Ala. 1981) (holding that § 2996e(b)(1)(B) prohibits trial court from determining issue of representation and citing similar cases); see also DeMichele v. Waltham Div. Dist. Court Dep't, 629 N.E.2d 982, 984-85 (Mass. 1994) (interpreting similar state statute and holding trial court prohibited from determining eligibility of legal services client).