Maine Bar Journal Summer 2008 Current

WI NT ER 2008 MAI NE BAR J OURNAL C1
MAINE
BAR
Whats wrong with
the personal property
forcible entry and
detainer law
Paying medical
expenses, part 2
A defendants rich
courtroom joke
De facto
parental rights
Beyond the law:
Alice Persons, poet
THE QUARTERLY PUBLICATION OF THE MAINE STATE BAR ASSOCIATION
V O L U M E 2 3 N U M B E R 3 S U M M E R 2 0 0 8
Overseers
annual report
SUMME R 2 0 0 8 Mai nE baR j oURnal 1 2 5

J
ouRNAl
F E A T U R E S
140
THE REASONABLE VALUE OF MEDICAL
SERVICES, PART 2
MaineCare equals unreasonable value
Michael Bigos
146
BEYOND THE LAW
A conversation with Alice Persons, poet
Daniel Murphy

150
DE FACTO PARENTAL RIgHTS
A view from the trenches
Susan E. Oram
156
FED-INg FRENZY
A critique of the personal property forcible
entry and detainer statute
Marshall J. Tinkle
168
RIgHT-HAND DRIVE
A short saga of a practical joke
John C. Sheldon
MAINE
BAR
V o l u M E 2 3 N u M B E R 3 S u M M E R 2 0 0 8
THE QuARTERlY PuBlICATIoN oF THE MAINE STATE BAR ASSoCIATIoN
Citation note: According to Uniform Maine Citations, Third Edition, [articles in the Maine Bar Journal should be cited as follows: John S. Edwards, The
Constitution Sleeps in Child Protective Cases, 16 Me. Bar J. 46 (2001).
Issue editor:
Daniel J. Murphy
C O L U M N S
127
Presidents Page: Brett Baber
MAKINg THE CASE FOR A MIXED
PUBLIC DEFENDER/COURT-APPOINTED
COUNSEL SYSTEM
136
Commentary: Christopher Williams
MAINES LONgEST SERVINg JUDgE

D E P A R T M E N T S
135
Starting to choose next years governors
MSBA NOMINATINg PETITION
144
Silent Partners
LAWYERS HELPINg LAWYERS
171
Find a job. Etc.
CLASSIFIED ADS
172
Board of Overseers of the Bar
2007 ANNUAL REPORT
182
Sustaining and supporting the MSBA
MEMBERS WHO gIVE MORE
186
Calendar
KEEPINg ABREAST OF EVENTS
186
Advertisers Index
SHOPPINg MADE EASY
s u mme r 2 0 0 8 ma i n e b a r j o u r n a l 1 2 7
I
n response to the latest crisis
in the judicial budget, Chief Justice
Saufey created the Indigent Legal
Services Commission, a/k/a Te Cliford
Commission. Te Commission has been
tasked with
the respon-
s i bi l i t y t o
e v a l u a t e
the current
pr ov i s i on
of indigent
ser vices i n
Maine and
to provide
recommen-
dat i ons to
improve the system going forward.
Comprised of members of various stake-
holder groups, including the Maine State
Bar Association, the Maine Trial Lawyers
Association, the Maine Association of
Criminal Defense Lawyers, members of
the judiciary and members of the legisla-
ture, the commission will conduct a series
of meetings this summer and fall with the
goal of issuing its recommendations before
the next legislative term.
Te obvious threshold question is:
Why should the issue of indigent services
be a concern for the entire legal profes-
sion? After all, most Maine attorneys do
not practice criminal law or do not serve
as court-appointed counsel. Indeed,
according to statistics provided by
Robert Rufner of the Indigent Defense
Center, only 14 percent of Maine lawyers
perform any court-appointed work.
Te answer is really twofold: First,
as lawyers we share the inherent values
embodied in our Constitution. Te Sixth
Amendment to the United States Consti-
tution guarantees that every citizen shall
have the right to an attorney in criminal
cases. Since the landmark case of Gideon
v. Wainwright, the U. S. Supreme Court
has recognized that the right to counsel
includes the right to have an attorney to be
provided at public expense in felony cases.
In subsequent decisions, the right to court-
appointed counsel has been extended to
appeals and to misdemeanor cases where
there is a potential for a jail sentence.
Te right to counsel has been statuto-
rily extended to child custody proceedings
brought by the state of Maine. Te state
is also statutorily obligated to provide a
guardian ad litem for children in child
custody proceedings. Maine lawyers can
continue to breathe life into this vital
constitutional mandate by studying the
issue and by providing a unifed voice in
support of this basic right.
Te second reason why the issue of
indigent services should be of concern
to all Maine attorneys is the profound
impact that indigent defense services has
on the judicial budget.
As the recent budget crisis illustrated,
the current judicial budget is very much
intertwined with the costs for indigent
defense services. Currently, the budget for
indigent defense services is built into the
judicial budget. When cost overruns for
indigent defense services occur, a process
that Chief Justice Saufey has described
as cannibalization of the judicial budget,
must also occur. In other words, because
the funds for indigent defense services
must come from somewhere, the judiciary
has been forced to undergo the painful
task of reducing staf, reducing services,
reducing courthouse operations, keeping
several judicial vacancies unflled, and
imposing additional costs as necessary
to close the gap. Te recent implementa-
tion of the $200 dispositive motion fee is
perhaps the best known example.
What this means to all of us is that as
the cost of indigent defense services rises,
there will be a steady erosion of judicial
services. Because the judiciary cannot cut
areas governed by constitutional or statu-
tory mandates, the burden of cost cutting
or fee increases will fall heavily on the civil
justice system. Again, the $200 dispositive
motion fee illustrates this point.
To resolve this ongoing dilemma, it is
time for Maine to consider the adoption
of a mixed system of public defenders and
court-appointed counsel. Maine is the
only state in the nation that does not have
some form of public defender service.
Tere are numerous reasons why such
a shift should occur. It is highly unlikely
Presidents
page
Making the case for a mixed public
defender/court-appointed counsel system
by Brett Baber
that Maine will ever pay court-appointed
counsel a fair hourly rate. After extensive
studies of the current court-appointed
system, there have been two $10 increases
in the court-appointed rate, resulting in a
current hourly rate of $50 per hour.
To add insult to injury, the fees charged
in a particular case are subject to very
restrictive caps, and payments are often
delayed by the state to address various
budgetary issues. By way of example,
one attorney reported to me that he was
recently paid the average rate of $19 per
hour in a murder case.
Te bottom line is that the current
system of court-appointed counsel relies
on the willingness of attorneys to provide
a substantial amount of work at rock-
bottom rates. Simply put, Maine lawyers
should no longer be expected to subsidize
a constitutional mandate.
Another important reason to consider
the change to a mixed public defender
system is the disparity in resources in
the current system. In contrast to the
prosecution, which can rely upon police
agencies and highly specialized crime
labs, court-appointed attorneys must fle
motions to persuade the Court to provide
funds to pay for private investigators or
other expert services.
Similarly, while prosecutors would
normally receive the beneft of partic-
ularlized training, the private defense
bar must pay for their own continuing
legal education. Tere is no uniform
procedure in place to make sure that
court-appointed attorneys receive regular
training and interaction with colleagues
to enhance their professional skills.
Te relatively recent change to a mixed
defender system in the federal courts
provides an excellent example of how
well the system could efectively work. In
the federal system, David Beneman has
been appointed as the public defender
for most of the criminal cases fled in
U. S. District Court. Together with his
assistants in Bangor and Portland, Mr.
Beneman and his ofce serve a vast
number of defendants who need court-
appointed services.
Due to the number of multi-defendant
cases in federal court, and other potential
conficts of interest, there remains a need
for private court-appointed counsel, who
are selected by the court following a qual-
ifcation process.
A similar system should be seriously
considered for the state system as well.
Due to economies of scale, it is more
likely that any mixed public defender/
court-appointed system could serve more
individuals for roughly the same amount
of money. Presumably, a statewide public
defender service would have staf and
investigators who would be readily avail-
able to enhance legal representation.
One objection that is likely to be
raised is: Hey, Brett, arent you the
president of the Maine State Bar Associa-
tion? And why are you cutting jobs from
Maine lawyers?
My answer is simple. We would not be
cutting jobs from Maine lawyers. After
all, a public defender service will need
to hire attorneys. Just as in the federal
system, there will be a need for attorneys
to staf the public defenders ofce. For
a variety of reasons, there will still need
to be a small number of court-appointed
attorneys throughout the state to meet
various needs.
More important, it is my hope that we
can improve the livelihood of the lawyers
through such a system.
Rather than paying attorneys an
amount that does not even cover basic
ofce overhead, attorneys in a court-
appointed system should be aforded state
benefts and other professional ameni-
ties. While I may be engaging in some
amount of wishful thinking that a court-
appointed system may address some of
these concerns, what I do know is that the
current system is no longer viable unless
Maine lawyers are willing to continue to
accept the budgetary table scraps for such
vital, constitutionally mandated work.
1 2 8 ma i n e b a r j o u r n a l s u mme r 2 0 0 7
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of Maine Foundation. You can ensure
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B O H A N M A T H E R S
151 Newbury Street
P. O. Box 788, Augusta ME 04332-0788
Volume 23, Issue No. 3
Summer 2008
FOR ADVERTISING, SUBSCRIPTION,
OR SUBMISSION INFORMATION,
call 207-622-7523
or 1-800-475-7523, or fax 207-623-0083
EDITOR & DESIGNER
John Lovell jlovell@mainebar.org
ADVERTISING COORDINATOR
Lisa A. Pare lpare@mainebar.org
EDITORIAL ADVISORY COMMITTEE
Andre J. Hungerford (Chair),
James Amendolara, David Bertoni,
Wendy Brown, Alicia Curtis, George
T. (Toby) Dilworth, Jonathan Mermin,
Daniel Murphy, John Ney, Katharine
Rand, Philip Saucier, David G. Webbert
MSBA BOARD OF GOVERNORS
Brett D. Baber (President)
Peter B. LaFond (Immediate Past President)
Virginia E. Davis (President Elect)
Geraldine G. Sanchez (Vice President)
Robert M. Marden (Treasurer)
Robert Conkling (District 7)
Edward L. Dilworth III (District 2)
David A. Dunlavey (District 11)
Diane Dusini (District 3)
Judson Esty-Kendall (Public Service Sector)
Peter C. Felmly (New Lawyers Section)
Barbara H. Furey (In-House Counsel)
Keith R. Jacques (District 1)
Phillip E. Johnson (District 6)
David Levesque (District 4)
Jefrey Lovit (District 10)
Patricia A. Peard (District 3)
Steven C. Peterson (District 8)
William D. Robitzek (District 5)
Anne-Marie L. Storey (District 9)
David S. Wakelin (District 3)
STAFF DIRECTORS
Executive: Julie G. Rowe
Deputy Executive: Angela P. Weston
Administration & Finance: Lisa A. Pare
CLE: Linda M. Morin-Pasco
LRIS: Penny Hilton
Member Services: Neil Cavanaugh
Communications: John Lovell
Maine Bar Journal (ISSN 0885-9973) is
published four times yearly by the Maine State
Bar Association, 124 State Street, Augusta ME
04332-0788. Subscription price is $18 per year
to MSBA members as part of MSBA dues, $60
per year to nonmembers. Send checks and/or
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Maine Bar Journal is indexed by both the Index
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Copyright 2008
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' " - - t MA I N E B A R J O U R N A L 2 0 5
Counter: ere is a reason our state
motto is DirigoI lead. ere are
many areas where Maine law takes a
minority position. While this is always
a factor to consider, going with the
herd on that basis alone is rarely the
mark of sound reasoning. Rather, the
question is whether the issues in a large
rural state like Maine require dierent
answers than states with larger, more
urban populations. e practice of law
in Maine is dierent from that in many
other states, and the public policy of
encouraging lawyers to refer cases when
appropriate is wise. Economic incen-
tives that align a lawyers interests with
public policy is a good thing, and this
is exactly what the proposed rule does.
"SHVNFOU e proposed rule would
do nothing dierent from the current
rule in terms of the cottage industry
involving the expensive marketing of
legal services in personal injury cases
by attorneys who have no intention of
trying the cases they bring in the door.
Counter: Aside from the bare asser-
tion that there is extensive marketing
for personal injury cases by lawyers who
dont intend to try the cases, there is
no support in the commentary for this
proposition nor any indication of how
widespread the practice may really be.
Legal marketing is here to stay, whether
by trial rms to lawyers who might refer
cases, or by lawyers and law rms directly
to consumers. e incremental eect of a
few lawyers who may extensively adver-
tise for cases they have no intention of
trying is probably insignicant.
Small oces might list personal
injury work along with a variety of other
subject matter areas in which its lawyers
are competent. Clients are familiar and
comfortable with the medical model: a
patient goes to his or her general prac-
titioner or internist, who then can treat
the condition himself or advise the
patient that he or she needs to see a
specialist.
ere is no public policy reason to
discourage smaller rms from advertising
they do personal injury work where some
cases are handled in-house and the larger,
more complex cases are referred out.
There may be valid arguments
against the proposed rule, but overall
it appears to me that the better-rea-
soned view is that the proposed rule
is a good oneone that works to
benefit both Maine consumers and
the vast majority of lawyers who are
committed to practicing ethically,
whether they are solo practitioners,
practice in small firms, or are trial
law specialists.
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MBJ fall 2007 inside pages.indd 205 10/5/07 3:37:55 PM
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Portland:
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Ellen Pope
epope@mainecf.org
www.mainecf.org
Receive personalized service. MaineCF works closely with you and your
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estate and financial plans, establish donor-advised funds named for your
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gift instruments.
Gain local expertise. MaineCFs professional staff knows Maine. We can
help your clients learn more about local agencies and programs that make
a difference in the areas they care about most.
Support community leadership. MaineCF invests in the long term and
brings people and organizations together, convening diverse voices to
address local issues and opportunities.
Contact the Maine Community Foundation to learn more about the many
services available for you and your clients, and check out the free Planned
Giving Design Center on our website.
For Maine. For Good.
Talk to your clients about giving through the Maine Community Foundation.
Estate and financial advisors can consider these three reasons.
Portland:
One Monument Way, Suite 200
Portland, ME 04101
Tel: 207-761-2440
Jennifer Southard
jsouthard@mainecf.org
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MS B A NOMI NAT I NG P E T I T I ON
(Must be fled no later than October 1, 2008)
We, the undersigned voting members of the Maine State Bar Association in good standing, nominate
(Name Please Print)
for:
(Ofce or Board. If latter, indicate District number or at-large category.)
of the Association for the term beginning January 1, 2009.
Signature ______________________________
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INSTRUCTIONS FOR MAKING NOMINATIONS
Under Article IX of the MSBA Bylaws, any member eligible to vote may nominate a candidate for ofce of the Board of Governors by signing
the nominating petition and fling it with the Executive Director of the Association by October 1 or the next business day. A minimum of
twenty (20) eligible members may nominate a candidate for ofces of the Board of Governors. A minimum of ten (10) members may nominate
a candidate for Governor. Whenever a contest exists, the Executive Director shall send ballots to each appropriate district for contested governor
races or to the membership at large for contested ofcer races.
OFFICERS are elected at-large; GOVERNORS are elected by resident members in their respective districts.
OFFICES TO BE FILLED
Ofces to be flled are those of President Elect, Vice President, fve Governors by district election, and two Governors by at-large election.
Incumbents for ofcer positions are: President ElectVirginia E. Davis; Vice PresidentGeraldine Sanchez. President Elect Virginia E.
Davis becomes President automatically. Districts to be voted on are: Tree (Cumberlandtwo seats), Four (Sagadahoc & Lincoln), Five
(Androscoggin) and Seven (Somerset & Piscataquis). At-large positions to be voted on are: Public Service Sector and In-House Counsel.
On the frst round, his Democratic
party had split 77. Te next vote was
86. Cliford lost. He knows who cast
the deciding vote. Hes not telling.
Tree decades later, he said: Tat loss
was one of the best things that happened
to me. Had he won, Cliford says he
might never have become a judge.
A couple of years after that vote, he
wrote a letter to then-Governor Joseph
Brennan. He asked to be considered for
a judgeship. Te two had served in the
Senate together. Brennan had become a
fast friend and mentor.
Brennan responded to Clifords letter,
ofering him a job at the Maine Superior
Court. Ten Cliford changed his mind.
Persuaded by two brothers at the family
law frm to rethink his career change, he
withdrew his name.
But the bench beckoned. In 1979, when
Brennan asked again, Cliford talked it
over with his wife, then answered, Yes.
Now the most senior member of the
states highest court, Cliford is Maines
longest-serving judge at twenty-nine
years, and one of its most respected.
A different spin
It was Clifords frst murder trial. And
second. And third. It happened nearly
thirty years ago, but its the case he
remembers best.
Te defendant was prominent in
Biddeford politics. Te trial was moved
to Skowhegan. Nancy Fredette was
charged with murdering her husband.
She denied it. It was a whodunit. Tat
intrigued Cliford.
Te smoking gun was found in
Fredettes washing machine. It had gone
through the spin cycle, plastered to
the side of the drum, hidden under a
towel. Her glove had powder burns.
Her forged signature showed up on
a withdrawal slip from her husbands
bank accountwritten for the same
amount she allegedly paid a man to fnd
someone to shoot her husband.
But Fredette made a convincing
witness, Cliford said.
Tat man made up his story, Fredette
said. He tried to frame her because
of a past debt, she said. She claimed
she was stuck in the bathroom at the
time. Te door jammed shut when her
husbands real killer opened the kitchen
door, which she said pushed up against
the bathroom door. For that reason, she
said she couldnt describe the culprit.
Te frst trial ended with a hung jury.
Te second verdict, guilty. She
appealed. Te states highest court
vacated her conviction and sent the case
back to Cliford. Tat court said he had
improperly allowed witnesses to corrob-
orate the story of the man who had
testifed against her. At her third trial,
she was acquitted.
Tree decades later, Cliford easily
recalls the evidence, testimony, names
and the time line. Its a factual recita-
tion. No opinion. No speculation about
her guilt.
Never felt such tension
Te most infamous case during his
tenure was the Boise Cascade paper
mill workers strike in Rumford. He was
the judge when the company asked the
court to keep strikers from interfering
with workers going to their jobs.
Ive never felt such tension in the
courtroom, he said. Union members
flled one side of the courtroom; manage-
ment, the other.
A videotape played in the courtroom
showed strikers trying to keep suppliers
and managers from the plant. Tey
shouted threats, scratched cars, he said.
It was pretty rough.
Maines longest-serving judge sworn in
for the last time
by Christopher Williams
Commentary
O
ne vote. Thats all he needed to clinch
the political leadership post. Te last man to
hold that job had gone on to become governor,
then congressman. Robert Cliford considered a similar
career for himself. Hed already served as Lewistons
mayor. Te post was Maine Senate minority leader.
After the frst hearing, Cliford denied
the companys injunction request. When
they came back a second time, he issued
a limited injunction. It included a clause
that barred the children of strikers from
the plant gates, Cliford said, but allowed
the union to demonstrate.
Justice is key
Hes got the perfect judicial temper-
ament, said William Maselli. Te
Portland defense lawyer has appeared
before Cliford at both courts. Meticu-
lous in his preparation and approach to
each case, Cliford is equally deferential
to the opposing parties who come before
his bench, Maselli said. He is one of
the true gentlemen of the law.
Tat view is shared by most people
whose paths cross Clifords, whether
judge, clerk, prosecutor, or defense
attorney.
Hes never forgotten that justice is the
key, said longtime Lewiston attorney
Jack Simmons. Tats what the people
seek. Tats what he seeks. Te two
men began practicing law about the
same time in the 1960s.
When presiding over cases in trial
court, Cliford kept them on track. But he
didnt micromanage or steer cases in any
given direction, Simmons said. Unlike
some judges, Cliford had no hidden
agendas. Cliford wasnt arrogant and
didnt play politics in the courtroom.
He didnt bully or badger people. Hes
never forgotten to be humble and cour-
teous to all litigants.
Even outside the courtroom, Cliford
took an interest in seeing justice served.
After winning a big drug case in federal
court, Maselli passed Cliford on the
courthouse steps. Te judge congrat-
ulated him on his success. Another
time, after Maselli lost a case against
Lewiston police ofcers involved in a
shooting, Cliford consoled the defense
attorney.
The heart of the case
Te respect Cliford earned behind the
bench has carried over into the cham-
bers of the Maine Supreme Judicial
Court. Hes a role model for all of us
at the states top court, said Chief Justice
Leigh Ingalls Saufey. Hes the kind of
person we aspire to be and often fall
short, both at work and at home.
Of the job, hes out visiting the sick
and shut-ins, delivering the eucharist.
He used to take his certifed therapy dog
along until it passed away. On Sundays,
hes a lector at St. Joseph Parish in
Lewiston.
On the job, Cliford is assiduous
in his attention to detail. He has the
ability to get right to the heart of the
case, Saufey said.
A defendant who appealed his
criminal conviction insisted his consti-
tutional rights had been violated. He
told the court he had tried to represent
himself during his trial. Cliford directed
Crystal Bulges, his law clerk since 2004,
to comb through the trial transcript for
any reference to that claim. She found
the passage, which provided an accurate
picture of exactly what transpired. Te
man lost his appeal.
During deliberations, Cliford mostly
listens, Saufey saidbetter than anyone
she knows. Cliford also is a walking
reference library, she said. His insti-
tutional memory spans decades. He
not only remembers when laws were
passed, he remembers which laws they
replaced. He knows the latest version of
the Maine Criminal Code because he
helped shepherd that document through
the Legislature as a co-sponsor.
Dissent
Despite his retiring manner, Cliford
isnt shy about taking a judicial stand.
A devout Catholic, he dissented when a
case concerning public fnancing of paro-
chial school placement came before the
court. He split with the rest of the court,
arguing the restriction violated consti-
tutionally guaranteed equal protection
under the law.
By taking such a stand, Cliford
risked the perception that he might be
letting his personal beliefs interfere with
his legal thinking. Bulges knows that
would never happen. It was always about
fairness. It shows the strength of his
character, she said.
You bring your background and
history to the court, Cliford said.
Youre always on the lookout for improper
Christopher Williams is a reporter for the
Lewiston Sun Journal, where he covers
courts and legal affairs. He is the 2008
recipient of the maine state bar asso-
ciations excellence in legal journalism
award. reprinted with permission from the
Lewiston Sun Journal.
discrimination, whether its reli-
gious or other discrimination. And
my position was this was and is
improper discrimination against
parents who live in those towns
who want to exercise their right to
send their children to a school that
is religiously afliated.
Te state could decide that all
students must attend public schools
or pay their own tuition at private
schools, he said. I dont think
thered be any discrimination if
that occurred. But they allow the
children to attend private schools;
the only condition is that they
cant be religious afliated.
Te U.S. Supreme Court has
said you can give money in the
form of vouchers. Its permissible.
It doesnt violate the separation of
church and state. If the Supreme
Court didnt say that, I couldnt
have written that opinion. Two
states allow vouchers to be used at
any private school.
In his most recent opinion on
the subject, Cliford, referring to
the nations highest courts ruling,
wrote in his dissent: In essence: I
told you so. Tey have allowed it.
In his blood
Law was a natural choice for Clif-
ford. His father and two brothers
worked at the Lewiston frm, Clif-
ford and Cliford. His uncle, John,
was a lawyer, U.S. attorney and
federal judge. John Cliford also is
the grandfather of Tomas Delah-
anty II, a justice at Androscoggin
County Superior Court.
One of eight children, Clif-
ford said he was an underachiever
in school and especially at sports.
He lacked confdence. After law school,
Cliford served in the U.S. Army as a
captain and company commander. He
was a fraternity president in college, but
the military instilled in him leadership
skills and self-confdence he would draw
upon from the bench.
In Europe, he met his wife, Clemen-
tina, a civilian worker for the military.
Back in Lewiston, he joined the family
frm before making his foray into politics.
After three years on the City Council, he
was elected mayor, then served two terms
in the Maine Senate. Before taking his
seat on the court, he headed up the citys
charter commission.
Cliford was tapped as the Maine
Superior Courts frst chief justice before
Brennan nominated him in 1986 as
associate justice to the Maine Supreme
Judicial Court.
Earlier this year, Governor John
Baldacci reappointed him to another
seven-year term. At seventy, Cliford
said it likely would be his last. He looks
forward to semi-retirement. But not for
the usual reasons. Not to play more
tennis or read more biographies, two
passionate hobbies.
Cliford is most eager to get back into
the courtroom as a so-called active-
retired justice. Nothing gives him more
of a thrill than donning his black robe,
taking his seat behind the bench and
watching justice unfold before him.
I loved it.
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The
reasonable
value of
medical
services, part
II: MaineCare
equals
unreasonable
value
C
hances are that if your practice includes at least a dozen personal
injury claims, MaineCare insurance reimbursed some of your clients
medical expenses for their injuries. And if you try cases, you are likely to
see a MaineCare motion in limine that attempts to decrease the amount of special
damages admitted in evidence when trial approaches.
Defense attorneys now frequently fle these to limit medical
expenses to the smaller amounts paid by MaineCare insur-
ance. Plaintifs attorneys will want to resist such eforts and
introduce the full amount of medical expenses incurred.
1
Te
outcome of such a motion can make a huge diference because
the medical bills can be signifcantly greater than the Maine-
Care reimbursement rates.
For several years now, Maine Superior Court rulings have
varied widely on this topic.
2
Tis article focuses on a simple
approach to answer why MaineCare payments cannot estab-
lish the reasonable value of medical services.
MaineCare is Maines Medicaid insurance program. Maine-
Care insurance covers a part of Maines population that does
not otherwise have private health insurance, or does not
qualify for Medicare after age sixty-fve or otherwise.
Te MaineCare Benefts Manual sets forth the procedures
and bases for how hospitals, physicians, physical and occupa-
tional therapists, and other medical providers are reimbursed
for Maines MaineCare services. Te Manual is codifed under
the Code of Maine rules.
3
Trial attorneys should look to the
MaineCare administrative rules as they prepare pleadings to
determine in limine what evidence will be admitted. Te debate
about whether medical bills paid by MaineCare should be
allowed into evidence or not has largely focused on legal theo-
ries concerning the collateral source rule, discussed below. Te
argument to reduce medical bill evidence improperly assumes
that MaineCare makes adjustments to medical bills that it
deems unreasonable.
Not only do so-called MaineCare motions in limine
fail to provide any foundation to support the assertions
that MaineCare payments equal reasonable value, but the
timing of the motions almost always appear on the eve of
trialwhen there is no time to do additional discovery
or thorough briefng of the legal issues. Timing can make
responding to the motions difcult, and the prepared lawyer
needs to manage motion practice wisely with trial prepara-
tion and not get blown of course. I have started including
discovery requests, requests for admission, stipulations, and
expert witness designations on this issue shortly after litiga-
tion begins, in order to establish early what will constitute
the reasonable value of medical services. As trial approaches,
practitioners should also be prepared to either stipulate to
by Michael Bigos
the fairness and reasonableness of bills, or have provided
witnesses to establish those facts.
Typically, responding to accusations of being in a better
position than one would have been in had the wrong not been
done requires knowing who paid what for medical expenses.
In an auto negligence claim, a plaintif will almost always
have the frst $2,000 of medical bills paid through frst-party
medical payments coverage.
4
Tose medical expenses should
be allowed into evidence undisputed. Ten, if the plaintif has
sought medical care, providers may have seen the patient on
some sort of protection basis, intending to get paid when
the claim is resolved. Tose medical expenses also should be
allowed into evidence and not disputed because the victim still
owes the bill. Tere may be other collateral sources. Finally,
if MaineCare insurance paid medical providers, one should
be prepared to know precisely what was paid and what was
charged, simply to know what diference it would make.
Challenging Foundation and Relevancy
If a party has not met its evidentiary burden to estab-
lish that payments equate to reasonable value, a court would
not have a basis to reach such a conclusion. Under Rule 402,
evidence that is not relevant is not admissible. A party must
profer a foundation to propose that MaineCare payments
establish the reasonable value of medical services.
So what do MaineCare reimbursement rates represent?
MaineCare insurance utilizes artifcial formulae to deter-
mine reimbursement rates that are diferent for all areas
of the state.
5
Providers are reimbursed unique amounts for
services rendered to patients based on reports that each
provider must periodically fle with MaineCare and the
Center for Medicaid Services (CMS). Tese reports docu-
ment a vast array of fnancial information by each provider,
including costs and charges for services.
6
Using these
data, MaineCare then publishes Final Cost Settlement
Reports and Interim Cost Settlement Reports to deter-
mine prospective interim payments (PIP) to reimburse
hospitals, for example, for MaineCare services.
7
Most hospital outpatient services are currently reimbursed
at 85.58 to 88.35 percent of cost, pursuant to administrative
rulemaking.
8
Physician services are reimbursed at fat rates
that are listed by Current Procedural Terminology or CPT
Code.
9
Physical therapy services are reimbursed at fat rates,
mostly $10.80 per therapeutic modality.
10
Tere is no evidence
that the administrative rules are based on reasonable and
customary charges for particular services.
Te MaineCare reimbursement formulae tend to show
several things: that MaineCares reimbursement rates are
not measured by reasonable value, but are mostly far below
market value; that the providers who participate in MaineCare
are willing to accept reimbursements at a fnancial loss; and
that MaineCare depends on reimbursing providers at below
reasonable rates to provide the most amount of coverage for
the most number of people.
11
MaineCare rules even state that
usual and customary charges are the maximum amounts that
would ever be reimbursedand only if there is no applicable
lower MaineCare rate or lowest amount allowed by Medi-
care Part B.
12
In other words, MaineCare will never pay usual
and customary charges unless as last resort.
13
Tere should be no concern that MaineCare adjusts bills
that it deems unreasonable, because MaineCare rules deem
patently unreasonable billing for services as fraud or abuse.
Medical providers face criminal penalties up to $25,000 in
fnes and fve years in prison for each ofense.
14
Te MaineCare
program reimburses for medical bills submitted by providers
pursuant to its administrative formulae, and does not make
adjustments for unreasonable amounts. MaineCare insur-
ance reimbursements often force providers to experience
fnancial losses on individual bills (as described above) as a
privilege of participating in the reimbursement system.
15

Again, there is no evidentiary foundation to suggest that
MaineCare reimbursements are a measure of reasonable
medical expenses. Even if they are, the argument is a tautology:
that it essentially wants to introduce collateral source evidence,
but circumvent the collateral source rule by making the source
anonymous. Tat should be rejected.
Limiting reasonable value to the below-cost reimbursement
rates is not only unfair to all plaintifs who receive MaineCare,
but to all medical providers, because the relief sought suggests
the market value of their services will be collaterally estopped.
Will the reasonable value of medical expenses in cases involving
cash payments and private collateral sources be estopped by
using MaineCare reimbursement rate data or similar evidence
michael bigos practices plaintiffs personal injury litigation
at berman & simmons in lewiston, Portland, and bangor. He
serves on the board of governors of the maine Trial lawyers
association and as chairman of its legislative committee.
from other cases? Tis is an important issue, because similar
motions in limine are increasingly fled shortly before trials
involving negligence victims insured by MaineCare. Tere
is no easy answer to the issue of what constitutes reasonable
value in todays complex system of health care delivery.
Addressing the Collateral Source Rule
Once the foundation and relevancy is challenged,
attorneys need to be able to argue whether the collateral source
rule is abrogated. Some judges have allowed parties to intro-
duce evidence of the amounts billed and the amounts paid to
satisfy a balance. Te danger of introducing damages reduced
by collateral source payments is that the jury may be inclined
to fnd no liability, or to reduce a damage award, when it learns
that the plaintifs loss is entirely or partially covered.
16

Maine courts have long applied the rule in order to allow
negligence victims to recover the reasonable value of medical
services for which they incurred no cost, either through insur-
ance, gratuities or some other advantageous beneft.
17
Te issues
were modernized by the revision to Alexander, Maine Jury
Instruction Manual 7-108 (4th ed. 2005), which now reads:
Medical expenses includes the reasonable value of
medical services including; examination and care by
doctors and other medical personnel, hospital care and
treatment, medicine and other medical supplies shown
by the evidence to have been reasonably required
and actually used in treatment of the plaintif.
Language was excised from the previous instruction on the
same topic as follows: Te reasonable value, not exceeding actual
cost to the plaintif, of examination and care by doctors and other
medical personnel Te comment to the present 7-108 states:
Medical expense damages may be recovered
for charges paid by a collateral source or charges
actually incurred but later written of or other-
wise not collected. Mention to the jury of collateral
source payments or writeofs should be avoided.
See Werner v. Lane, 393 A.2d 1329, 13331337 (Me.
1978). In Werner, the Law Court extensively
discussed the collateral source rule and stated:
[T]he fact [that] necessary medical and nursing
services are rendered gratuitously to one who is
injured as a result of the negligence of another
should not preclude the injured party from recov-
ering the reasonable value of those services as
part of compensatory damages in an action
against the tortfeasor. 393 A.2d at 1335.
(emphasis added). Based on Justice Alexanders reliance on
the collateral source rule discussion in Werner, it is clear that
the concern about actual costs to the victim was substantively
removed from the jury instruction because the revision was
necessary to accurately refect the law in Maine.
Under section 920A of the Restatement (Second) of
Torts, which the Law Court has previously cited with
approval,
18
the rule is that collateral benefts are not subtracted
from the plaintifs recovery applies to the following types of
benefts: (1) [i]nsurance policies, whether maintained by the
plaintif or a third party ; (2) [e]mployment benefts; (3) [g]
ratuities; [and] (4) [s]ocial legislation benefts.
19

Te great weight of authority around the country is to the
efect that the collateral source rule is necessarily applicable
when determining the reasonable value of medical services.
20

In other words, originally billed amounts are relevant and
admissible on determining issues of reasonable value.
By permitting a plaintif to recover the full measure of
damages caused by a tortfeasor, the collateral source rule
applies the judicial and social policy that any beneft obtained
by a plaintif from an independent source shall not inure to
the beneft of the tortfeasor but, rather, to the injured plaintif,
even though this may beneft the plaintif:
Te collateral source rule thus embodies an attempt
to reconcile two competing principles of tort law:
(1) that an injured party should recover no more
than the amount needed to make the party whole
and (2) that the tortfeasor should be held account-
able for all damages resulting from the tort. Te
common-law collateral source rule resolves this
confict in favor of the injured party: it allows the
victim a double recovery if the alternative would
be to allow the tortfeasor to escape liability.
21
Tere should be no distinction between the private insurer
situation and the public insurer situation.
22
A contrary result
would unfairly punish poor people and unfairly beneft claim-
ants who are fortunate enough to have private insurance or
can aford to pay medical expenses personally.
23
Furthermore,
[A] beneft that is directed to the injured party should not be
shifted so as to become a windfall for the tortfeasor.
24
For MaineCare reimbursement amounts to be in evidence,
facts should develop in discovery to generate issues about: the
unreasonableness of medical bills; whether a victim failed to
mitigate his damages; and what evidence or even expert testi-
mony to lay the proper foundation for what is sought. Avoiding
the scale of confusion and speculation on the part of the jury
that is likely to result otherwise is precisely why the collateral
source rule was adopted in the frst place.
A Final Safeguard
If a defendant claims that he would improperly be subject
to an excessive or irrational verdict based on unreasonable medical
expenses, the problem should be remedied only if it arises. Jury
instructions to apportion medical bills, lost wages, earning
capacity, pain and sufering, and future pain and sufering, would
provide a basis for remittitur or additur for the parties.
25
One
must also not forget that upon recovery by any third party, a
plaintif must pay back MaineCare, resulting in trial practitioners
paying back tens of millions of dollars back into state cofers.
Conclusion
Considering whether MaineCare payments establish the
reasonable value of medical care over-complicates what should be
a simple issue of fact, leaving injury victims at great risk of unfair
prejudice based on administrative rules. Te MaineCare rules
make clear that reimbursements are unreasonably below the
value of services and often below the costs for those services. In
the typical tort case, such issues are decided too late when the
parties are not prepared to fully discuss or brief the issue before
the trial justices, forcing the parties and the court system to redi-
rect attention and resources away from resolving the dispute and
into collateral matters that contradict well-established law in
Maine. Abrogating the collateral source rule would unfairly shift
a beneft and result in an improper windfall for the tortfeasor.
1. Most practitioners will agree to not allow in evidence that Maine-
Care made the payments. Such evidence would be ofered for an improp-
er purpose such as creating unfair prejudice, confusion of the issues, or
misleading the jury and subject to exclusion pursuant to Rule 403.
2. Curtis, Alicia, Te Reasonable Value of Medical Services: A Hospi-
tal Bill, Te Insurers Payment, or the Jurys Choice? 23 Me. B.J. 78, 8283
(Spring 2008).
3. MaineCare Benefts Manual, Me. Dept of Health & Hum. Serv.,
10-144 CMR 101, available at www.maine.gov/sos/cec/rules/10/ch101.
htm (June 2008).
4. Today, all auto insurance policies are required to cover $2,000 in
med pay. 29-A M.R.S.A. 1605, 1605-A; P.L. 2007, ch. 213.
5. See generally MaineCare Benefts Manual, Me. Dept of Health &
Hum. Serv., 10-144 CMR 101.
6. E.g., id. 10-144 CMR 101-45.01-3, -45.02-6 (hospital services).
7. Id. 10-144 CMR 101-45.01-6, -9.
8. Id. 10-144 CMR 101-45.03(B).
9. Id. 10-144 CMR 101-90.01 90.02.
10. Id. 10-144 CMR 101-85.
11. See id., 10-144 CMR 101-1.08-1 and 101-1.02-2(A), which states:
1.08 REIMBURSEMENT
1.08-1 Maximum Amount
Unless specifed in other Chapters of this Man-
ual, the maximum amount of payment for servic-
es rendered shall be the lowest of the following:
A. the MaineCare rate of reimbursement as found
in the applicable Chapter of the MaineCare Ben-
efts Manual or as published by the Department;
B. the lowest amount allowed by Medicare Part B;
C. the usual and customary charges;
D. the amount, if any, by which the MaineCare rate of
reimbursement for services billed exceeds the amount of
the third party payment as set forth in Section 1.07-7. A
claim is considered paid in full if the insurance amount
received exceeds the MaineCare rate of reimbursement.
It is the responsibility of the provider to seek
payment from any other resources that are avail-
able for payment of the rendered service prior
to billing MaineCare. (emphasis added).
101-1.02-2(A):
Te Division of Health Care Management is
responsible for policy compliance, ensuring that
the care and services provided to members are
of good quality, in optimum quantity and provid-
ed at the most efective time. (emphasis added)
12. Id. at 1.08-1(A-C).
13. Id.
14. See generally id., 10-144 CMR 101-1.20.
15. See Ann Bryant, Lagging Payments Prompt Lawsuit, Lewiston Sun
J., Feb. 9, 2008 (referring to federal suit addressing low level of reim-
bursements.).
16. E.g., Aggravation, Mitigation, and Reduction of Loss, 25
C.J.S. Damages 287.
17.Hoitt v. Hall, 661 A.2d 669, 673 (Me. 1995) (citing Restatement
(Second) of Torts 920A cmt. b (1979); Werner v. Lane, 393 A.2d 1329,
1333-1337 (Me. 1978) (collecting cases).
18. See Hoitt, 661 A.2d at 674.
19. Restatement (Second) of Torts, 920A cmt c
20. See e.g., Bynum v. Magno, 101 P.3d 1149, 116263 (Hi. 2004); Ells-
worth v. Schelbrock, 611 N.W.2d 764, 769, 771; (Wis. 2000); Brandon
HMA, Inc. v. Bradshaw, 809 So.2d 611, 61920 (Miss. 2001); and Cates v.
Wilson, 361 S.E.2d 734, 740 (N.C. 1987).
21. Chenega v. Exxon, 991 P.2d 769, 76091 (Alaska 1999); see also
Werner, 393 A.2d at 133536.
22. Restatement, 920A cmt. c.
23. Brandon HMA, 809 So.2d at 61920; see also Hart, Tort Law: the Reason-
able Value of Medical Services, 14 Me. Lawyers Rev. at 2021 (Feb. 22, 2007).
24. Restatement, 920A cmt. b.
25. M.R. Civ. P. 59; see also Provencher v. Faucher, 2006 ME 59, n. 3,
898 A.2d 404, 407 (allowing damages itemization); Hanif v. Housing
Auth. of Yolo County, 200 Cal. App.3d 635, 644 (Cal. Ct. App.1988) (mod-
ifying the judgment). In Hanif, the conservative court relied upon the
comment to section 911 of the Restatement. However, this should not
apply to an analysis of MaineCare reimbursements, because the analysis
does not involve the scope of the comment to 911: fraud, duress, breach
of contract for services, exchange of property, rentals, or chattels.
The msbas silent Partners program offers low-key assis-
tance to lawyers in dealing with problems in substantive
and administrative areas of the law where there may be a
lack of familiarity or comfort, where some help and guid-
ance would benefit both the practitioner and the client.
The coordinator has a list of attorneys associated with orga-
nizations, sections, and committees who are willing to pro-
vide help. The program provides confdentiality recognized by
the Supreme Judicial Court in Maine bar Rule 7.3(o). Areas
of law in which we can provide guidance and assistance
include:
To learn more, call Peter DeTroy,
Esq., Silent Partners Assistance
Coordinator, at 207-774-4000.
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Beyond the Law: Alice Persons, poet Beyond the Law: Alice Persons, poet
interview and photo
by Daniel J. Murphy
R
obert Frost once remarked that being a poet is a condi-
tion, not a profession. For Alice Persons of Westbrook, however,
poetry encompasses elements of both vocation and avoca-
tion. A lawyer by training, Persons spent more than seventeen years
as a law frm account manager for Tomson West Publishing. She
also has taught business law at the University of Southern Maine.
Recently, she moved on from her position at Tomson West
to spend more time pursuing her literary interests, including
running Moon Pie Press, a publishing house that she founded
with Nancy A. Henry. Persons also is an accomplished poet, with
several of her poems featured on Garrison Keillors public radio
program, Te Writers Almanac. Among her own published
works are several chapbooks, including Be Careful What You
Wish For and Never Say Never. Te website for Moon Pie Press
is located at: http://www.moonpiepress.com. Persons recently sat
down with the Maine Bar Journal to discuss her interests.
Please tell us a bit more about Moon Pie Press.
Moon Pie Press was started in 2003 by my law school class-
mate and friend Nancy Henry and me. Nancy is a fabulous
poet. We both had some success getting our poems published
and had been looking for journals and reviews to publish our
pieces. One day Nancy said to me: You know what? We can
do this and do a better job of making chapbooks. So we
formed Moon Pie Press and it has taken of, in diferent varia-
tions, from there. At present, I run Moon Pie Press alone, but
collaborate with another person with respect to printing and
production.
What is the origin of the name for Moon Pie Press?
Te reason we called it Moon Pie Press is that both Nancy
and I have a southern background, and a moon pie is some-
thing that every southern child eats and loves. Its an icon of
southern childhood, sort of like the whoopie pie here in New
England. We were trying to think of something that would be
dreamy and evocative, have the moon in it, and that is what
we came up with.
What is a chapbook?
A chapbook is a small book, usually of poetry, that is less than
thirty-six pages long. It is a format that has been around for centu-
ries. Chapbooks can be bound with staples or be hand sewn, but
they are always small. And the advantage of this format is that you
can produce it for almost nothing, just a few dollars per copy, so
you can get a lot of them out there in the world.
Does Moon Pie Press publish other types of work?
We do. We publish bound books. Tese are perfect bound
books, a soft-cover bound book, as opposed to a hard-cover,
which is much more expensive to produce. If a book is over a
certain size, we do it in perfect binding format.
You not only publish, but also write poetry.
I do. God help me.
Tell us how you frst became interested in writing
poetry?
Well, I started writing poetry when I was eight years old. I
was encouraged by a very nice teacher in elementary school,
and in high school I had some stuf published in the high
school magazine. In college, I majored in English and wrote
poetry. Before law school, I also took a Harvard extension
class, which, back then, you could take for $25. Te class
was a poetry workshop where the instructor taught us about
writing and revising. He also taught us how to fgure out the
whole game of getting your work published. He said that even
if your work is good, there is a ten-to-one chance that youll
be rejected any time you sent anything out. Were not talking
about to the New Yorker, we are talking about to more obscure
journals. It was preparing us for rejection. But the frst poem
that I sent out got publishedwith a $10 check to boot. So I
was really jazzed by the thrill of being published. In law school,
my poetry writing was placed on hold. But some years after
law school, I reconnected with Nancy and we started Moon
Pie Press. My goal with Moon Pie Press is to break even, and
Im close to that goal, but it is an expensive hobby; its not
something anybody could ever make a living doing.
Why is it that you are so drawn to poetry?
Well, if it is done well, I like the way it embodies feelingI
like the way it evokes feelings in a very universal way. I tend to
like clear, accessible poetry. Tis is the type of poetry where you
do not need a Ph.D. in English to understand it. Tere are many
kinds of poetry and they all have their virtues. But I am drawn
to accessible poetry because I appreciate its concrete limits. I
dont think I have what it takes to sit down and write a novel.
Poetry is fun because its a snapshot that is often on just a single
Daniel j. murphy is a member of bernstein shurs litigation practice
group, where his practice concentrates on business litigation.
page. It is not that poetry does not take workthere is much
revising to dobut it is a self-contained smaller universe.
How do you tap into the creative process?
Tats a question that many poets
and writers get asked and everybody
has a diferent answer. For me, I never
know when its going to hit me, but
there are certain tricks you can do to
encourage ideas to come to you. One
is to pay attention to your dreams and
to write things down as they occur to
you. And another is to always have
paper or a notebook with you so that
if youre driving or in a meeting, you
can write down what comes to you. I
have to write it down or otherwise it
will disappear. Beyond that, to me,
the diference between an amateur
poet and a serious poet is the willing-
ness to work at revision, but also to
know when to let it go. A poem is like
a painting in some ways. My mother
is an artista painterand she says
shes ruined some paintings by just
continuing to mess with them when
she should have said they were done. I
think people can do that with poems
too. So thats part of the craft too,
learning to say All right, its done.
Tell us about the frst time one
of your poems was featured on
Garrison Keilers radio program
on National Public Radio.
I almost drove into a tree, I was
so excited. When you get a poem
accepted on the program, his assistant
sends you an email and asks you to
sign a release form. Tey send you $100 for every poem and
a CD of the show, which are wonderful but unnecessary. It is
really enough just to feature a poem on the show. Te frst time
he read one of my poems I was driving up to Moosehead Lake
with my friends in the car. We knew it was going to be on, so
we had the car radio going. When he started reading the poem,
everyone in the car started shrieking. It was very cool.
How many times have you been featured on his
program?
Six, but whos counting? [laughter].
He has read six of my poems and he
has read eighteen Moon Pie Press
poems. I have no way of knowing
what he is going to choose, but he
reads a lot of Maine poets, which
is really, really great. It is the best
publicity you could ever ask for. Keil-
lors radio program is available in a
podcast format on his website, and
it is emailed to recipients around the
world. Every time he reads a poem on
his show, I get emails from around
the world. I have had book orders
from England and Southeast Asia. It
really is quite something.
Tell us about Moon Pie Presss
involvement with local poetry
readings.
I consider poetry readings as part
of my mission as a publisher of poets.
Now if somebody lives in South
Dakota, which one of my poets does,
I cant do too much on that front, but
I do try to get my poets reading. Te
readings occur usually a couple times
per month and are a great commu-
nity outreach.
Recently, I also have become
involved with an organization called
Port Veritas, which is a spoken-word
organization based in Portland. It is
made up of mostly of young people, and Moon Pie Press is
publishing their frst anthology. It contains a lot of slam poetry,
which is popular with younger folks. It is a whole diferent
universe of poetry, but its really fun stuf.
Stealing Lilacs by Alice N. Persons,
from Never Say Never. Moon Pie
Press, 2004. Reprinted with permission.
A guaranteed miracle,
it happens for two weeks each
May,
this bounty of riches
where McMansion, trailer,
the humblest driveway
burst with colorpale lavender,
purple, darker plum
and glorious scent.
This morning a battered station
wagon
drew up on my street
and a very fat woman got out
and starting tearing branches
from my neighbors tall old lilac
grabbing, snapping stems, heaving
armloads of purple sprays
into her beater.
A tangle of kids arms and legs
writhed in the car.
I almost opened the screen door
to say something,
but couldnt begrudge her theft,
or the impulse
to steal such beauty.
Just this once,
there is enough for everyone.
What is slam poetry?
Slam poetry is competitive poetry. If youve ever been to
a poetry slam, I bet you found it very interesting. People
have to memorize their stuf, which is why Ill never be a
slam poet because Im not very good at that. You have to
memorize your piece. You have a certain time, like four
minutes, to get up and perform your piece. Ten a panel
judges you on a one-to-ten scale. You keep going to the
next round until you end up with a winner for the night.
Portland has a slam team that is going to the nationals this
year, which is in Madison, Wisconsin, in August. For the
frst time in thirteen years theyre sending a team to the
nationals. So thats really fun.
Has there been any intersection of your lives in poetry
and in the law?
Well, not how you might expect. I have been surprised and
gratifed to learn how many lawyer poets there are. Just in
Maine, there are probably a dozen or so. Tere are two very
large anthologies of lawyer poets put out by James Elkins, of
the Legal Studies Forum. I got into the frst one, as did Nancy
Henry. In Maine, theres a woman named Lillian Kennedy
who is a lawyer in Auburn, and she has a website called
Hearsay, that is just lawyer poetry. You can take a look at that.
Tere might be some Maine lawyers whom you know that you
dont know are poets.
Whats the best advice youve ever received?
I would say: follow your heart. Do what really brings you
joy. If you cant fgure out a way to make a living doing that,
then get a job that supports whatever it is that brings you
joy. And thats kind of how I feel about publishing poetry
and writing poetry. Im never going to make money at it,
but it is so incredibly satisfying. Especially to the person
who publishes a book for somebody whos never had a book
published before. One of my poets is an older woman in her
eighties who lives in northern Maine. She is very talented,
but never had a poem or a book published. I was able to
publish her book and provide a wider audience for her gifts.
It is very gratifying.
Thank you for your time today.
DAVID J. BOURNE, M.D.
F O R E N S I C PS Y C H I A T R Y
Dr. Bourne has extensive experience working on
behalf of both plaintiffs and defendants and holds
Certication by the American Board of Psychiatry
and Neurology in Psychiatry and in the Subspecialty
of Forensic Psychiatry. He has over 20 years of
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Assessment of psychic
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Tel: 207-774-6330
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Tel: 603-471-1011
Fax: 603-472-2370
Evaluations elsewhere by special arrangement
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De facto
parental
rights: a view
from the
trenches
M
EET MARSHA, JIM, AND THE CHILDREN: CHARLIE, AGE
twelve, and Sally, age seven. Marsha and Jim are not
married, but have had a relationship for ten years and have
resided in the same house together for eight years. Charlies biolog-
ical father, Lex, acknowledged paternity at the time of Charlies
birth, but has been incarcerated since Charlie was six months old,
and has never saught an order granting him contact with Charlie.
by Susan E. Oram
Jim has never formally acknowledged paternity of Sally, but
has believed himself to be her father, and has acted as Sallys father
her entire life. Sally calls him Daddy. Jim coaches Charlies hockey
team, drops the kids of at school, and contributes to the house-
hold expenses. Although Charlie knows Jim is not his biological
father, he calls him Dad and has never met Lex. In any way that
is important to the children, Jim is their only father.
Married parents, biological mothers, fathers whose pater-
nity is acknowledged or established by the court, and those
who adopt children are legal parents with rights and respon-
sibilities clearly established by statute.
1
Our law has long
indicated that as long as the family is intact, or the children are
not at risk of harm, legal parents have a fundamental, substan-
tive due process right to make decisions concerning the care,
custody, and control of their children free from interference.
2

Many children in Maine are growing up in homes like
Marsha and Jims. Te 2008 Kids Count Report indicates 28
percent of the children in Maine lived in households headed
by unmarried adults, a 5 percent increase since 2000. An addi-
tional 8 percent live in households with grandparents, foster
parents, and adults other than parents.
3

Tree months ago, Marsha discovered Jim was having an
afair. When confronted, Jim admits he has a new relationship
and prepares to move to another house. As soon as he gets
settled he plans to have Sally and Charlie with him at least
half the time. Marsha is heartbroken and angry. She tells Jim
he will never see Charlie again and informs him, for the very
frst time, that she knows, without doubt, that Sally is not his
biological child.
Two months go by. Te parties consult attorneys, draft
pleadings, and prepare for their frst court appearance. Jim
has no contact with Charlie or Sally during this time. Genetic
susan e. oram has been a family law magistrate with the maine
District Court since january, 2003. she received her undergrad-
uate degree from Colby College and her law degree from Vermont
law school. before beginning work with the District Court, oram
was a partner at bonneau & Geismar in lewiston. she practiced in
Connecticut and Virginia before moving to maine in 1989. she is a
member of the national Council of juvenile and Family Court judges.
(oram notes that Deborah Cluchey, a District Court law clerk, pro-
vided valuable suggestions during a reading of an early draft of this
article, resulting in a greatly improved fnal version.)
testing is conducted which confrms Jim has no biological
connection to Sally.
Jim tells Marsha he wants to continue his relationship
with Charlie, but there is no way he will agree to pay
child support. Marsha tells Sally that she will meet her
real father in just a few weeks. Charlie starts hitting
children on the playground at school. Sally cannot sleep
at night.
Our statutory framework is designed to allocate parental
rights between the following:
Parentswhoareorweremarriedtooneanother;
Adoptiveparentsandchildren
4
; and
Unmarriedbiologicalparents.
Jim has no statutorily recognized rights to either child.
But children do not read statutes. Tey go about the busi-
ness of being children and will become attached to adults who
love and support them on a daily basis. Te evolving doctrine
of de facto parental rights recognizes this reality, and refects
judicial eforts to balance a childs need to maintain important,
foundational relationships against a legal parents fundamental
right to raise children free from the interference of others. It
is a delicate task.
Although the Law Court has not established specifc stan-
dards for determining de facto parentage, it has provided the
trial court with some guidance.
At a minimum, the status of de facto parent must surely be
limited to those adults who have fully and completely undertaken
a permanent, unequivocal, committed, and responsible parental
role in the childs life.C.E.W. vs. D.E.W., 2004 ME 43 14.
It is intended to beand should bea high hurdle. But
once the barrier is crossed and the standard met, or, as is
more common in my experience, all agree such a relationship
exists, is there any basis for treating a de facto parent any difer-
ently than any other parent? Are there special procedures that
should be followed by the court? What do you do when Jim or
Sally walks through your ofce door?
Ten years ago you would have told Jim that he could not
seek parental rights for Sally or Charlie. Today, you might tell
him something diferent.
My perspective is not that of a scholar, but of an interested
participant helping families in crisis meet the childrens needs.
From this perspective, these cases present some special issues
not present in cases involving legal parents.
De facto parenting orders have been sought or entered on
behalf of the following:
Step-parents, particularly the step-parents of children
whose legal parent has had a limited role in the childs life.
(For purposes of this article, the term step-parent includes
long-term partners like Jim, even if the legal parent in the
household and the step-parent have never been married.)
Grandparents,particularlygrandparentswhohaveprovided
a grandchilds primary home.
Biological parents whose parental rights have been termi-
nated, but who remain in contact with a child after a kinship
adoption.
Same-genderparents.
5
Te initial grant of de facto parental rights was made by
agreement of all parties in all but two of the cases I have seen.
In other words, both the legal parents and the de facto parent
have agreed not only that a de facto parenting relationship
exists, but also agreed on the bundle of parental rights to be
awarded to the de facto parent.
6

In fact, in my experience, the issue of de facto parentage is
raised most frequently by men like Jim, who have no biolog-
ical connection to a child but who have lived with a child for
an extended period of time. Tey have acted as (and often
believed they are) the childs biological parent.
Te dissolution of a family rarely brings out the best in
people. I have observed roughly two dozen such cases, and by
anecdotal report am aware of many more, in which the fnal
parting blow of an emotionally wounded mother has been to
inform her former partner that he has no biological connection
to a child he has parented as his own, often for many years.
Ready access to relatively inexpensive and reliable genetic
testing means that men who have long believed they are the
biological fathers of the children in their family are discov-
ering, sometimes after a long period as Dad, that they are
not. In my experience some of the men have made unilateral
arrangements for genetic testing, and then broken the news
of non-parentage to children and their former partners in a
callous and angry fashion.
Te heartbreak and sufering caused in these circumstances
is almost unbearable. Te break-up of a family is stressful for
children under the best of circumstances, but to be told in the
heat of anger that you do not know who your parents are must
make it much worse.
Te de facto parenting analysis puts the child at the center.
In essence, the court looks at the world from the childs
perspective and establishes rights and responsibilities for adults
only when (1) the adult has demonstrated the appropriate
commitment to the child and (2) preserving the relationship is
essential to the childs well being.
7

Because the analysis is focused on the needs of the child, a
de facto parent should not assume that he can walk away from a
child without consequence. No case has reached the Law Court
in which obligations have been imposed on a de facto parent
when he did not seek them and had never been a legal parent.
But in Provencher v Provencher, a legal parent was not entitled
to relief from a divorce judgment establishing parentage, and
was not released from his support obligation because it was not
in the childs best interest, even though the parent-child rela-
tionship had broken down in every other respectand genetic
testing conducted after the divorce demonstrated the defen-
dant was not the childs biological father.
8

Similarly, a legal parent should not assume, as Marsha has,
that she will be able to terminate a relationship between her
children and their de facto father just because the adult rela-
tionship has collapsed.
9

As trial courts continue to struggle to meet the needs of
children like Charlie and Sally, I am left with the following
questions:
Should the standards for allocating parental rights to de
facto parents be any diferent from the standards for allocating
parental rights to legal parents? And, if so, how would the
distinction be made? Te concurring opinion in C.E.W. vs.
D.E.W. suggests that a full award of parental rights need not
be made in all cases of de facto parentagebut this is true for
legal parents as well. Is there any reason the same best interest
of the child standard would not apply when allocating rights
to a de facto parent?
If the child has more than two parents, do they all have
fnancial obligations to the child? If so, how is responsibility
to be allocated? In Stiham vs. Henderson, the childs legal
father was required to pay child support pursuant to a divorce
judgment. Te childs mothers second husband was later adju-
dicated as the childs biological father. If the biological parents
later divorced, how should the parental support obligation be
allocated?
Must de facto parents have the same fnancial obligations as
legal parents? Logically, and perhaps in fairness, they should
be willing to assume their share of the fnancial burden of
raising children if they ask the court to protect their rights. A
willingness to assume fnancial responsibility may be needed
to demonstrate the unequivocal commitment essential to de
facto parentage.
10
But I am not sure this approach always serves
the needs of the children best. In some cases, adults who are de
facto parents do not seek rights to continue their relationship
with a child if the obligation to pay support is tied to a court
order formally continuing the relationship. Should the answer
to this question depend on the number of parents a child has?
If a childs legal parents are meeting his fnancial needs and the
child would beneft from a formal, protected, relationship with
a de facto parent, should that protection be provided without
the requirement of a child-support order?
Should the court compel a person who has no legal rela-
tionship to a child to assume the obligations of de facto
parenthood if the parent is reluctant to do so? Since a will-
ingness to assume a permanent role in a childs life is one
of the essential elements of de facto parentage, a reluctance to
formally recognize the relationship must suggest the relation-
ship does not rise to de facto status. Legal parents, however,
cannot escape their fnancial obligations to children by giving
up the right to seek contact, and legal parents who cannot
provide fnancial support for children do not lose the right to
a relationship with them.
11

Isthereaminimumamountoftimethatapersonmustbe
part of a childs life before he or she can seek an award of de
facto parental rights? If so, how long? Does the age of the child
matter? In order to demonstrate the willingness to assume a
permanent, unequivocal, committed, and responsible parental
role in the childs life, the commitment must be signifcant
from the adults perspective, not just from the childs. Does
this analysis change if the parties intended to establish a de
facto relationship from the time of the childs birth, like the
parents in C.E.W. vs. D.E.W., or does it depend on whether
the de facto relationship evolves over time, as it did for Jim,
Charlie, and Sally?
Can a child ever have too many parents? In many cases
involving a claim of de facto parental rights, a child may have
three or more parents once the case is resolved. What, then, is
the maximum number: three, four, six? If the number is to be
limited, what standard should the court use to determine the
cut-of point?
Doesthenumberofde facto parents have a bearing on the
bundle of parental rights to be allocated to a de facto parent?
If only two people have shared parental rights and responsi-
bilities for a child, the process of reaching consensus on major
decisions is easier than negotiating an agreement between
three or more people.
12
Can a person ever lose his status as a de facto parent, or
is it true, that once a parent, always a parent? Tere is one
fundamental diference between legal parents and de facto
parents: A legal parent has a bundle of rights and obligations
simply by virtue of his status. When Lex, a legal parent who
has never seen his child, is released from jail, he has the right
to petition the court for an opportunity to establish a rela-
tionship with Charlie.
13
In contrast, a persons status as a de
facto parent is based not only upon the adults commitment
demonstrated by the personal sacrifces expected of loving
and involved parents,
14
but also on the childs attachment
to, and dependence upon, that adult. Absent that important
foundational connection, there is no right to petition for
relief. If the de facto parent does not petition for relief at the
time the family splits up, does he forfeit the option to seek
an award of parental rights at a later date in a way that a
legal parent never would? How would this serve the interests
of the child?
I have seen several post-judgment actions in which a
biological parent seeks to strip a de facto parent of parental
rights granted by agreement at the time of the initial family
matters order.
15
Of course, children should not lose important
relationships with de facto parents because the legal parent
has changed his or her mind. But is there any other circum-
stance, short of a situation that would justify a termination
of parental rights under Title 22, that would cause a de facto
parents rights to be terminated by agreement or at the legal
parents request?
All family law practitioners help their clients realize long-
term as well as short-term goals. One goal shared by all parents
must be raising children who are physically and emotionally
healthy. When the family explodes, adults must do the hard
work of looking at the family from the childs point of view,
and insure that important relationships are preserved. Te
evolving case law suggests that the initial intake of any family
matters case should include a sufciently detailed family
history to alert you to de facto parentage issues.
When a case involves de facto rights, there are certain steps
that can be taken early on to speed the process and protect
the children:
1. If there is a legal parent who is not a party to your case,
that person should be joined as a necessary party.
16
Tis
should be done as soon as possible.
2. Unless all the parties agree that a de facto parenting rela-
tionship exists, a person seeking de facto parental rights should
fle a detailed afdavit describing the facts upon which the
claim rests.
3. Te parent disputing standing should fle an equally
detailed afdavit.
4. A judge will need to determine the initial question of
standing. Te parties should follow the appropriate proce-
dure for requesting a testimonial hearing if either believes the
issue should not be decided on the written submissions. In
the context of a grandparents rights case, the Law Court has
held that the burden of being forced to litigate infringes on
the parents fundamental right to make decisions concerning
the custody and control of children.
17
As a consequence, the
court is not required to hold a testimonial hearing to deter-
mine whether a grandparent has the right to proceed with an
action. Since a petition to establish de facto parental rights may
involve a more signifcant infringement of the parents rights
than a grandparents rights action, it is not clear that a court
would always hold a testimonial hearing to establish standing.
Make sure the afdavits are detailed, coherent and contain
facts, not conclusions.
5. If you have been hired early enough in the process, take
the time to think carefully and consult with opposing counsel
to develop a unifed approach before either parent discusses
these issues with children. Encourage your client to be kind
and be fair. If the best-interest-of-the-child factors of 19-A
M.R.S.A. 1653 apply, then willingness to co-operate with the
de facto parent should be a factor for the court to consider in
any ultimate allocation of parental rights.
6. Consider whether a guardian ad litem is warranted. If so,
seek appointment of the guardian as soon as possible.
Marsha and Jim are not unique. Children all over Maine
are growing up in families that look just like this one. Other
children are growing up in houses with two fathers, or two
mothers, or where their grandparents are doing the work of
parents. When the adult relationships founder, the children
are in the center, hoping for the best, and riding out the
storm.
1. Stitham vs. Henderson, 2001 ME 52
2. Conlogue vs. Conlogue, 2006 ME 12 8. A discussion of Title 22
actions is outside the scope of this article.
3. 2008 Maine Kids Count
4. 18-A M.R.S.A. 9-101, et seq.
5. Te recent decision, Adoption of M.A. et al, 2007 ME 123, made
it clear that the Probate Court may permit adoptions by unmarried,
same-gender parents. However, people often do not go to the trouble of
working through a formal legal proceeding when family life is running
smoothly. As a consequence, same-gender parents may still fle petitions
to establish de facto parental rights.
6. Te term parental rights includes not only the right to partici-
pate in decision-making for a child as defned in 19-A M.R.S.A. 1501
(5), but also the rights to have contact with, or provide the primary home
of, a child pursuant to 19-A M.R.S.A. 1653.
7. It is undisputed that C.E.W. has acted as the childs parent from
birth, has fully accepted responsibility for the child, and the child con-
siders her to be his mother. C.E.W. vs. D.E.W., 2004 ME 43, 16.
8. Provencher vs. Provencher, 2008 ME 12. Te defendant knew, or at
least suspected, that he was not the childs biological father at the time
of the divorce, but did not inform the court and consented to the entry
of a divorce judgment establishing parentage. A discussion of the cases
in which a legal parent discovers he is not a biological parent and seeks
to be released from his obligations to a child is outside the scope of this
article, but those cases represent the fip side of the same coin and are
instructive when considering de facto parental rights.
9. C.E.W. vs. D.E.W., 2004 ME 43.
10. C.E.W. vs. D.E.W., 2004 ME 43, 14. Te parties had entered into
a formal agreement to share expenses for the child in C.E.W. vs. D.E.W.
11. Te determination of a child support obligation pursuant to the
guidelines at 19-A M.R.S.A. 2001, et seq, and the allocation of parental
rights and responsibilities in the best interest of a child pursuant to 19-A
M.R.S.A. 1653, are based on independent factors.
12. Title 19-A M.R.S.A. 1501 (5) defnes shared parental rights to
include the right to participate in all major decisions afecting a child
such as education, health care, day care, religious upbringing, etc.
13. Te right to petition is not a guarantee of an award of parental
rights. Lexs rights will be determined pursuant to 19-A M.R.S.A. 1653.
14. C.E.W. vs. D.E.W., 4.
15. A family matters order might be a divorce judgment, a parental
rights and responsibilities judgment, or a protection from abuse order.
16. M.R.Civ.P. 19(a).
17. Conlogue vs. Conlogue, 2006 ME 12, 16.

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and much more.
Te statute authorizing this remedy, 14 M.R.S.A. 6012, has
been ensconced in Chapter 709 of Title 14, entitled Entry and
Detainer, for the last thirty-fve years. It is easy to overlook
how singular the statute is. Every state has a forcible entry and
detainer statute permitting a party to recover possession of real
estate;
1
but, as far as the author has been able to determine,
Maine is the only state that extends that remedy to personal
property.
In general, the statute has been a boon to secured credi-
tors. Te FED action has become the primary mechanism for
resolving the possession of personal property. On the other
hand, the personal property FED action has never quite ft
comfortably under the FED rubric. A number of anomalies
and uncertainties have emerged.
Te frst part of this article traces the historical develop-
ment of the personal property FED remedy. I then discuss how
this remedy has diverged from the real property FED scheme.
Finally, I ofer a modest proposal for the overhaul of this repos-
session remedy.
History
The right to take possession of personaltyeven if a
security agreement professes to confer such a righthas long
been restricted. Te Uniform Commercial Code authorizes
self-help only if the creditor can proceed without breach of
the peace.
2
A breach of peace may automatically occur where
the creditor enters the premises without the debtors consent.
3

Before 1973, the basic judicial remedy for the repossession
of chattels was replevin. Replevin has been statutorily autho-
rized in Maine since 1821.
4
However, a rigid requirement of the
statute is that the plaintif must furnish a bond with sufcient
F
or secured creditors, bailors, and other claimants to personal
property, Maine provides an especially convenient and efcient device for the
recovery of such property: the action for forcible entry and detainer (FED) of
personal property.
FED-ing
frenzy:
A critique
of the
personal
property
forcible
entry and
detainer
statute
By Marshall J. Tinkle
sureties made out to the defendant for double the value of the
goods to be replevied.
5
Tis can be very expensive. Moreover, a
writ of replevin is exclusively a prejudgment remedy,
6
requiring
a preliminary showing by afdavit and, ordinarily, a preliminary
hearing.
7
Te writ remains provisional until the matter has been
litigated to a judgment,
8
and the statutes contemplate that the
plaintif will retain possession of the property until the judg-
ment is fnal.
9
Obtaining such a judgment can take quite some
time, particularly since the defendant has the right to a jury trial
on issues of fact,
10
so the delay in actually selling the repossessed
collateral can be substantial and deleterious to a plaintif.
In addition to authorizing the legal remedy of replevin, the
legislature has long sanctioned equitable replevin.
11
As the
name implies, this is a remedy in equity to compel the rede-
livery of personal property. By statute, such relief is available
for property that is secreted or withheld so that the goods or
chattels cannot be replevied.
12
Tus, the remedy is limited to the narrow class of cases
in which a writ of replevin would be fruitless.
13
By the same
token, a plaintif cannot circumvent the replevin requirements
by invoking other equitable remedies such as an injunction, at
least in the absence of proof that the replevin route is inad-
equate.
14

Faced with these hurdles, it is not surprising that secured
creditors began looking for an alternative means of repos-
sessing personal property.
15
Te relatively recent solution of
extending the forcible entry and detainer remedy to personal
property was straightforward yet ingenious.
Maines original FED statute was enacted by the frst legis-
lature in 1821.
16
It was derived from the Massachusetts FED
statute of 1784, one of the frst FED acts in the country.
17
Tat
law, in turn, can be traced to Englands frst forcible entry
statute (1381) and forcible detainer statute (1429).
18

Originally, forcible entry and detainer was a criminal or
quasi-criminal process to deter the use of force in the repos-
session of real estate.
19
Under the Massachusetts statute, the
process was available only where actual violence, or the threat
of violence, was involved.
20
Te Maine statute of 1821 departed
from Massachusetts law by extending the FED process to
reach tenants who were holding over unlawfully, regardless of
whether force was being used or threatened.
21

Tus, from the outset, Maines FED statute had the twin
goals of discouraging breaches of the peace by resort to self-
help, on the one hand, and, on the other hand, providing
landlords with a summary process for evicting tenants. Prior
to the FED action, a landlord could efect eviction through
only two avenues: self-help (when not foreclosed by public
policy) and the common-law action of ejectment, which was
cumbersome and time-consuming.
22
Te FED statute hewed
a middle path, furnishing landlords with a speedy mechanism
for dispossessing tenants without resort to self-help.
Over the years, the legislature tinkered with the statute innu-
merable times, at frst expanding the scope of the landlords
remedy and, increasingly in the twentieth century, protecting
the rights of tenants as well. Other amendments sought to
distinguish simple tenant evictions from disputes over the title
to real property. Tus, for example, since 1824, and until fairly
recently, a defendants assertion of title required the removal
of the action to the Superior Court; but since 1853, the court
with original exclusive jurisdiction (now the District Court)
had the power to retain jurisdiction by determining that the
defendants claim was frivolous.
23

By the 1970s, the FED statute had evolved into a fairly
complex set of procedures to address the vagaries of tenant
eviction and the repossession of real estate. Yet despite the
various accretions, the FED action remained at its core a
summary proceeding to decide who is entitled to the imme-
diate possession of land.
24
Although the action was limited to
the possession of real estate in only a few specifed contexts,
25

it is understandable that it could serve as an attractive model
for someone searching for a more expedient method of recov-
ering personal property.
Te Legislature passed An Act Relating to Forcible Detainer
of Personal Property in 1973.
26
Te main features of the bill
included:
Rightofactionprovidedwithrespecttodisputeoverrights
in, title to or possession of personal property;
JurisdictioninDistrictCourt;
Complainttoincludecopyofsecurityinstrument,billof
sale or other evidence of title;
DistrictCourtgivenequitablepowerstomakeappropriate
orders, including turnover orders;
Fivedaysforappeal;
CivilrulesofprocedureforFEDactionstoapplyinsofar
as same shall be applicable;
Nonexclusiveremedytobedeemedremedyinequity;
marshall j. Tinkle is a partner at Tompkins, Clough, Hirshon & langer,
P.a. in Portland, maine. The author is grateful to bruce sleeper for
his invaluable assistance in preparing this article. He also wishes to
thank the maine state law and legislative reference library for its
help with the legislative histories of the relevant statutes.
No right of removal, except if defendant claims title and
provides sureties.
One looks in vain to discover how this landmark piece of
legislation came about. Te legislature passed the bill without
debate and without receiving any testimony. Te bills state-
ment of fact reads in its entirety: Te purpose of this bill is
to provide a determination of the parties rights in, title to or
possession of personal property.
27

Te frst and, to date, most comprehensive Law Court
discussion of the statute occurred in 1980. In Colonial
Builders & Investors, Inc. v. Meier,
28
the court found that
section 6012
is structured in its entirety (mutatis mutandis) in
the mold of the statutory process of forcible entry
and detainer respecting real property. Te statu-
tory language is the same for both actions, whether
involving real or personal property, and the respec-
tive judicial process is contained in the same chapter
entitled Entry and Detainer (chapter 709). Identical
legislative provisions, although applicable to diferent
objects, indicate on the part of the Legislature a
common underlying intent to provide in 14 M.R.S.A.
6012 a judicial process for the recovery of posses-
sion of personal property similar to the forcible
entry and detainer action long-available in the case
of real estate. It is the duty of this Court to view
as a single piece of legislation the several statutes
governing the same general subject matter, such as
the summary recovery of property, notwithstanding
they may refer to diferent particular types of prop-
erty within the general classifcation. We must
presume that the Legislature, in setting up parallel
remedies, sought to establish a single consistent reme-
dial pattern, compelling a similar construction of its
several provisions worded in the same terminology.
29
Te court therefore ruled that its then-recent holding
30
that
in cases of conficting title claims the District Court has no
jurisdiction to use what was intended to be a summary process
to try the possessory right to real estate applied equally to
actions under section 6012.
31

Te courts specifc holding as to the District Courts juris-
diction ceased to have continuing vitality in 1995. In that year,
the Legislature repealed the provisions of the FED statutes
conferring Superior Court jurisdiction over conficting title
claims.
32
However, it is less clear to what extent the courts
broader holdingthat section 6012 is to be construed as
consistent with the older FED statute (sections 60016005)
retains validity. Although both statutes have been amended
repeatedly, they still have many aspects in common, and it is
generally presumed that the remedies are all but identical.
33

Nevertheless, enough signifcant disparities between the reme-
dies have developed that it may be time to rethink the basic
assumption of Colonial Builders, as well to ponder whether
it is still useful to link the repossession of personal property
with the FED remedy. Some of these diferences are explored
below.
Comparison of Fed Statutes
1. Summary Nature of Remedy
When landlords bring an FED action, they can proceed to trial
as early as seven days after service of the summons.
34
Te same
is true of personal property claimants, but only if they choose
to bring the action by way of summary proceeding.
35
Since
2001, such claimants also have the option of bringing a plenary
proceeding. In a section 6012 plenary proceeding (unavailable
under sections 6001-6005), the usual rules of civil procedure
apply, instead of the special rule governing FEDs (M.R. Civ.
P. 80D).
36

Te legislative history of the Act to Provide Plenary Proceed-
ings in Actions for Forcible Entry and Detainer suggests that
the measure was prompted (or at least supported) by the credi-
tors bar.
37
Why would creditors ever prefer a plenary to a
summary proceeding? As further indicated in the legislative
history, a drawback of the summary proceeding, especially for
some out-of-state creditors, is that since the defendant need
not fle an answer,
38
the plaintif has no choice, as a practical
matter, but to show up at the initial hearing fully prepared
for trial, with all necessary witnesses and exhibits, even if, as
is usually the case, there is only a slight chance the defendant
will appear, or, if appearing, will bother to contest the matter.
Some creditors were obliged to fy to Maine from distant
places when it might have been more cost-efectiveand not
that much slowerto commence a plenary proceeding and
then, if not contested, to request a default judgment or move
for summary judgment.
39
Other advantages to a plenary proceeding readily come to
mind; however, it is not clear whether the statute makes these
benefts available. For example, a plaintif may seek additional
remedies against the defendant, such as a money judgment.
Rule 80D(g) prohibits the joinder of claims in an FED action.
Rule 8(e), of course, permits such joinder. Te statute says that
the Maine Rules of Civil Procedure, other than Rule 80D(a)-
(e), apply, suggesting that both Rule 8(e) and Rule 80D(g)
control plenary proceedings.
40
Which rule triumphs? It is
hard to justify a prohibition on the joinder of claims in the
plenary context, since its entire rationale is that in a summary
proceeding it is necessary to focus on the
single issue for which such process is
authorized.
41

However, the legislative
summary seems to clarify the
lawmakers intent: In the
plenary proceeding, the case
will proceed as any other civil action, except in certain
respects pertaining to appeals, joinder of other actions,
venue, removal, issuance of a writ of possession and
stays on appeal .
42
According to this gloss, not
only Rule 80D(g) but also Rule 80D(h), which
requires that an FED action be brought in the divi-
sion in which the property is located, apparently
applies to plenary proceedings.
43

It is a testament to the success of section 6012 that
secured creditors would still prefer to proceed under
that statute, even shorn of its summary features, than
to invoke traditional remedies such as replevin. However,
it is a bit anomalous to refer to a plenary personal property
FED action. As we have seen, an FED, by traditional defnition,
is a summary proceeding to decide who is entitled to imme-
diate possession of real property.
44
Te plenary proceeding
under section 6012 is not summary, does not result in imme-
diate repossession, does not decide possession of land, and does
not arise from either forcible entry or (ordinarily) forcible
detainer. Te phrase plenary personal property FED there-
fore is, if not a contradiction in terms, perhaps akin to the status
of the Holy Roman Empire by the eighteenth century, when, in
the immortal words of Voltaire, it was neither holy, nor Roman,
nor an empire.
45
2. Equitable nature of remedy
Section 6012 is explicit in stating not only that the District
Court has equitable power to make all appropriate orders
but also that the remedy provided in this section is a remedy
in equity.
46
Te real estate FED action has never been labeled
an equitable remedy. Indeed, the Law Court made it clear that
is remedy is not equitable by ruling in 1989 that the right to a
jury trial inheres.
47

Furthermore, in Hartford National Bank & Trust Co. v.
Harvey,
48
the Law Court held that the equitable powers
conferred under section 6012 marked a critical diference
between that statute and the FED framework involving
realty. It explained that even though the action of forcible
entry and detainer against realty has been tradition-
ally viewed as a highly summary proceeding,
and even though the Section 6012
action as to personalty is closely
modeled after, and based upon,
the conceptual framework of the
forcible entry and detainer action
pertaining to realty, there is never-
theless the critical diference that the
court adjudicating an action brought pursuant
to Section 6012 must consider all the equities.
49

A defendant is therefore allowed to assert a viola-
tion of the Consumer Credit Protection Act (and,
by implication, any other defense deemed equi-
table) as an afrmative defense (though not as a
counterclaim).
50
Nevertheless, the equitable nature of section
6012 actions is not quite so clear as might
initially appear. Section 6012 itself contrib-
utes to this uncertainty by stating that a summary
personal property FED proceeding is governed by Rule
80D of the Maine Rules of Civil Procedure.
51
Rule 80D(j)
provides for the issuance of a writ of possession, and, in prac-
tice, the district courts in personal property FED actions
routinely issue writs of possession in the same form as in
other FED actions.
52

If a writ of possession is a legal remedy when issued
in a realty FED, it is scarcely logical to regard the same
writ as equitable when issued against personal property.
Moreover, such a writ is closely analogous to the writ of
replevin, which is unquestionably legal in nature.
53
Hence,
notwithstanding the express statutory language, it is highly
questionable whether a personal property FED action in
which the only relief sought is a writ of possession can be
regarded as an equitable proceeding. Tis conundrum is
explored further in the discussion below concerning the
right to jury trial.
3. Venue
Both the Rule and the statutes that apply generally to venue
of FED actions provide that they must be brought in the divi-
sion of the District Court where the property is located.
54
In
consumer FED actions to repossess personal property collat-
eral, however, this is legally misleading, and in commercial
cases it presents practical difculties that may be overcome
only with the cooperation of the District Court.
Maines Consumer Credit Code provides that an action
against a consumer arising from a consumer credit transac-
tion must be brought in the District Court division where
the consumer resides, in which the transaction giving rise to
the action was made, or in which any real estate securing the
transaction is located.
55
In addition, the federal Fair Debt
Collection Practices Act provides that any action brought by a
debt collector (which in this context includes an attorney) to
collect upon a consumer debt that is not secured by real estate
must be brought in the judicial district or similar legal entity
where the consumer resides or in which the consumer signed
the contract which is sued upon.
56

Although the resolution of the confict between the general
statutory provisions governing the venue of FED actions and
these provisions of the Maine Consumer Credit code is uncer-
tain, it is quite clear that the federal statute will preempt all
contrary state law provisions. Tus, where a secured creditor
wishes to bring an FED action to repossess collateral for a
consumer debt, and that creditor uses an attorney or other debt
collector to pursue that action, the federal statute will control.
In a commercial setting where the federal statute and the
Consumer Credit Code do not apply, substantial problems
may arise in determining where the action is to be brought.
For example, secured creditors will usually not pursue judi-
cial repossession unless eforts to obtain voluntary or self-help
repossession have not worked. In the vast majority of these
cases the debtor will not be cooperative and may have hidden
the collateral. In such instances the creditor will be forced to
guess which division the FED action should be brought in,
particularly if the collateral has been spread among several
locations. For highly mobile goods held by relatively sophis-
ticated debtors, the creditor may be led on a merry chase
through various counties.
A creditor should not, however, lose all hope in a
commercial action. By statute, a District Court may
transfer an action which is fled in the wrong division to
the correct court, or, where justice so requires, to any other
division.
57
Additionally, the District Court has equitable
powers in an FED case to enter all appropriate orders in
relation to the collateral and the parties to compel obedi-
ence to the courts judgment and orders.
58
Most District
Courts interpret this provision to permit them to issue
restraining orders requiring the debtor to move collateral to,
or keep it in, the division where the action has been brought.
Te plaintif, however, may be forced to fle a motion for a
temporary restraining order or a preliminary injunction in
order to obtain this relief.
4. Pleading requirements
It remains a requirement of section 6012 that a copy of the
security instrument, bill of sale, or other evidence of title be
included with the complaint. No cognate requirement exists
under the real estate FED statute. However, the requirement
has been undermined by the Law Courts ruling that compli-
ance is unnecessary as long the pleading satisfes Rule 8(a).
59

5. Discovery
Section 6012(2) contains a somewhat perplexing provision:
the District Court may provide for discovery on an expedited
schedule. Does it apply to plenary proceedings, suggesting
that even when a personal property FED action is plenary
and the discovery rules apply, discovery should, or may, be
truncated? Does it mean that the court has discretion to allow
discovery but that if discovery is permitted, it must be on
an expedited scheduleor that the court has discretion on
whether or not to impose an expedited schedule? Te provi-
sion would seem superfuous in a plenary proceeding, since
the court has the inherent discretion to control the discovery
schedule.
60

If the provision applies instead to summary proceedings, it
seems to run counter to the core aim of the summary FED
proceeding of skipping over the pretrial phases of litigation to
an almost immediate trial. Rule 80D(e), incorporated by refer-
ence in section 6012, mandates that all FED actions shall be
in order for trial on the return day. Te statute provides no
guidance on how to resolve this seeming confict.
Sections 6001 through 6005 do not authorize discovery, nor
does Rule 80D. Section 6008, governing appeals, does indi-
cate that the District Court may provide for discovery on an
expedited schedule, but only in disputes involving a claim of
title.
61
Tus, in the common run of realty FEDs, no discovery
(expedited or otherwise) is authorized.
6. Commercial/Noncommercial Distinction
Since 1999, commercial tenants must pay the rent claimed to
be due into the court as a condition of maintaining a defense
to an FED action.
62
Tus, a commercial tenant is at a signif-
cant disadvantage vis-a-vis a residential tenant in an FED
action. No similar distinction exists between commercial and
consumer debtors under section 6012.
7. Issuance and Service of Writ of Possession
By rule, a writ of possession is to issue in all FED actions
within the time provided by statute after entry of judgment
therefor.
63
However, the only potentially relevant statute is
section 6005, which provides that, at least in real property
FED actions, the writ may be issued seven calendar days after
judgment is rendered against the defendant. Te writ is then
to be served upon the defendant by a sherif or constable. If
at least three good-faith eforts on three diferent days have
been made to serve the defendant, then service can be made by
mailing the notice to the defendants last known address and
leaving the writ at the defendants last and usual place of abode.
Te statute provides that the defendant becomes a trespasser
without right if that party fails to remove himself or his posses-
sions within forty-eight hours of service of the writ.
64

Section 6012 contains no provisions dealing with a writ of
possession and makes no cross-reference to section 6005. Tus,
there is no direct statutory authority for issuance of a writ of
possession in a personal property FED action, and the only
indirect authority arises from the Law Courts determination
that the statutes governing FED actions generally must be read
together to establish a single consistent remedial pattern.
65
To
the extent that the procedure described in section 6005 applies
to personal property FED actions (a conclusion to which the
District Court certainly subscribes), there still remains the
question of how to interpret the forty-eighthour trespassing
provision, which makes sense in a real property FED action
but would seem to have little, if any, relevance to a personal
property FED case. An additional unanswered question is
whether the three-tries-at-personal-service rule applies to
section 6012 actions.
8. Appeal
(a) Timing
Section 6008 governs FED appeals generally, but section
6012 has its own appeal provision. Section 6008 provides
that the time for appeal expires either upon the issuance of
the writ of possession or thirty days from the time judgment
is entered, whichever is frst. Ironically, given the summary
nature of the process, the appeal period is theoretically longer
than the twenty-oneday period that now generally obtains
for appeals
66
; however, since section 6005 dictates that the
court shall issue the writ of possession seven days after entry
of judgment, the thirty-day rule rarely applies.
67
As for section 6012, in 1995 the legislature increased the
appeal period from fve days to thirty days, apparently in an
efort to bring it into line with section 6008.
68
Nevertheless,
the two sections remain inconsistent, because (a) the appeal
period under section 6012(4) is within thirty days of the judg-
ment, not the entry of judgment; and (b) it is not limited by
the issuance of a writ of possession (or any other order). Te
Rules add to this statutory muddle, since they provide that
either party may appeal on questions of law in a real estate
FED action and in a personal property FED summary case
as in other civil actions.
69
Te Rules which apply to those
other civil actions require a notice of appeal to be fled within
twenty-one days from the entry of the judgment from which
the appeal is being takennot from the date of the judgment
itself.
70
Hence, while it appears fairly clear that an appellant in a
personal property FED action need not worry about fling
before the writ of possession is issued, confusion reigns as to
when the appeal period begins to run. It could be argued that
such period begins to run under section 6012(4) as soon as
the judgment is issued, not when it is entered on the docket
71
;
otherwise the legislature would have said entered, as it did in
section 6008(1).
72
Section 6012(4) may prove to be more restric-
tive than both section 6008 and the court rules governing the
timing of appeals.
73

(b) Right to Jury Trial
After the Law Court held in North School Congregate
Housing v. Merrithew that a party to a realty FED action
has a constitutional right to a de novo jury trial on appeal,
74

the legislature passed an emergency bill in 1989 to provide
for such a trial in the Superior Court.
75
Rule 80D was then
amended to provide detailed procedures in connection with
appeals requesting a jury trial. Among other things, Rule
80D(f ) calls for the appellant to fle an afdavit showing a
genuine issue of material fact; the appellee may fle counter-
afdavits; the court may order the transcript; and if the court
determines that a genuine factual dispute exists, it may either
direct that the matter be placed immediately on a jury trial
list or order the parties to fle pretrial memoranda or take
other pretrial steps.
Te jury trial procedure not only adds a substantial layer of
complexity and delay to the FED process but also casts some
doubt on the res judicata efect of an FED judgment pending
the outcome of the appeal. An FED judgment is generally
understood to have res judicata efect.
76
Te pendency of
an appeal should not ordinarily alter that efect.
77
However,
according to some authorities, an exception to this rule obtains
where the appeal consists of a de novo trial.
78
Despite these difculties, the legislature had no choice but
to provide for the opportunity to seek a jury trial on appeal for
real estate FEDs. Te Merrithew decision makes it clear that
the right to a jury trial on such appeals is of a constitutional
dimension.
79
Te decision is soundly reasoned and grounded
on a thoroughly researched survey of the history of realty FED
actions.
When it comes to actions under section 6012, however,
it is at least debatable (a) whether the Maine Constitution
requires a jury trial, and (b) whether section 6012 itself
postulates a jury trial. By amendment in 1995, section
6012(4) provides: Any issue triable by right by a jury may
be appealed to a trial de novo in the Superior Court.
80
Tis
begs the question of what issues, if any, are triable by right
to a jury.
81
From the start, section 6012 has contained a
clause asserting that the remedy provided in this section
is a remedy in equity and that there is no right of removal.
Since the statute already conferred equitable powers on the
court, it is difcult to discern the intent behind the equity/
nonremoval clause other than to foreclose the possibility of
a trial by jury.
Of course, a statute cannot deprive parties of a consti-
tutional right to a jury by the arbitrary use of a label.
82
If
a section 6012 action is viewed simply as a species of FED,
having the same derivation and the same remedy, then
Merrithew should be controlling and the same right to a jury
should attach.
83
Additionally, if an FED action pursuant to
section 6012 is analogous to a replevin action, then, under
the principles enunciated in Merrithew, there should be a
right to a jury trial.
84
Conversely, if the equity provisions are
taken seriously, and the section 6012 action is viewed as more
like a lawsuit for equitable replevin, then only a bench trial
is warranted.
85
Te Law Court has yet to resolve this open
question.
86

(c) Reviewing Court
Section 6008 provides that appeals on both questions of law
and issues to be tried by a jury are to the Superior Court. By
contrast, section 6012(4) says that issues triable by a jury may be
appealed to the Superior Court, but is silent as to which court
entertains ordinary appeals. Hence, it may be argued that in
the absence of any specifc direction in section 6012, Maine law
requires an appeal to the Law Court.
87
Buttressing this argu-
ment is the fact that one of the jurisdictional statutes confers
jurisdiction on the Superior Court to hear appeals brought
pursuant to section 6008, but not section 6012(4).
88
On the
other hand, another jurisdictional statute confers jurisdiction on
the Superior Court to hear appeals brought pursuant to section
6008 and the Maine Rules of Civil Procedure, Rule 80D(f).
89

While section 6008 applies only to real property FED actions,
the rule applies to personal property FED cases as well.
90
(d) Security
Section 6012(4) further provides: Security may be required
in accordance with the provisions of section 6008, subsection
5. Subsection 5 references security for payments that come due
under the terms of a lease or contract. However, subsections
2 and 3 of section 6008 also prescribe detailed procedures for
the furnishing of security when the defendant appeals, when a
stay is issued, and when the stay is vacated. Tese subsections,
which deal specifcally with rent, apparently do not apply
to appeals under section 6012. Security under section 6012
appeals is thus a more vague and more open-ended concept
than under section 6008.
Recommendations
As I have tried to show, the engrafting of a personal
property repossession remedy within the FED matrix is not
only conceptually problematic, but it also has created consid-
erable interpretative confusion. Notwithstanding the common
perception that personal property FEDs and real estate FEDs
are simply two sides of the same coin, the remedies have
evolved in diferent directions. Tis was only natural, as the
latter is primarily concerned with the landlord-tenant relation-
ship, which difers markedly from the debtor-secured creditor
relationship.
Take for example, the requirement that the court wait seven
days after judgment before issuing a writ of possession and that,
after service of the writ, the defendant has forty-eight hours to
remove that debtor and the debtors possessions or become a tres-
passer without right.
91
Tis makes eminent sense when people
are about to lose their homes. It is less necessary perhaps (and,
with respect to the forty-eighthour requirement, nonsensical)
when debtors are about to be deprived of, say, their snowmobiles
or stereo systems. In some cases, of course, delays may be appro-
priate; but if the remedy is an equitable order, which is what the
legislature really seems to have contemplated, then the court has
broad discretion as to the timing of turnover. Tere is no need
for a strict seven-day waiting period here; the need, rather, is for
fexibility.
Te use of FED terminology masks the diference in reme-
dies and obfuscates the question of the extent such diferences
were actually intended by the legislature. Should one assume
that diferences in statutory language refect diferent legisla-
tive intentions? Or, rather, despite such disparities, should one
(applying the teaching of Colonial Builders) strive to construe
section 6012 as consistent with the broader FED framework?
Tere is no ready answer, unless the legislature clarifes its
intent.
Section 6012 has been a useful transitional mechanism,
providing an inefcient repossession remedy that avoids the
pitfalls of replevin. However, nothing prevents the legislature
from devising a similar summary process independent of the
FED taxonomy. Such a process would be clearer, simpler, and
better tailored to the repossession of chattels. To achieve this
result, the following changes are suggested:
1. Te remedy should be shorn of FED terminology and
labeled for what it is: a recovery of personalty suit (RPS).
2. Te personal property repossession statute should be
removed from the Entry and Detainer chapter, which has
become a repository for landlord-tenant legislation. Instead of
being sandwiched awkwardly between a law addressing the use
of leased premises as a house of ill fame (section 6011) and
another dealing with a tenants abandoned property (section
6013), the statute should be transferred to Chapter 711, entitled
Equity Proceedings.
3. Subsections (1), (3) and (6) of section 6012 should be
retained. Tat is, the plaintif should have the option of
bringing the action either as a summary proceeding or a
plenary proceeding; but in either case, the available remedies
would be equitable. Te process thus would resemble equitable
replevin but without the necessity of showing the absence of
an efective legal remedy. As an equitable proceeding, it would
carry no right to a jury trial, either initially or on appeal.
4. Summary proceedings should be governed by separate
rules, not by Rule 80D. Tese rules, like Rules 80D(b)(e)
and (g), should provide for a return day/trial date not less than
seven days from service; fling no later than one day before the
trial date; no need for a responsive pleading; and no joinder or
counterclaims. However, there is no need for the Rule 80D(d)
requirement that defendants fle an answer if they wish to claim
title. In an RPS, title will rarely be an issue; and, anyway, a
claim of title does not entail any special procedural consequence,
such as removal to Superior Court. Likewise, there is no need
for a special venue rule.
5. It may be appropriate in some cases to give the defen-
dant time to conduct limited discovery in a lawsuit brought
as a summary proceeding. Tis would seem only fair, since
(a) a plaintif can obtain discovery by bringing the lawsuit
as a plenary proceeding, and (b) unlike an FED, the process
would not give a defendant the opportunity for a second trial.
Nevertheless, care should be taken to prevent discovery from
being used as a delaying tactic. At least one day before trial, the
defendant should have to fle a motion for discovery, stating
with reasonable specifcity the information to be sought and
the reasons therefor. Te District Court would decide the
motion at the hearing. Te court may condition discovery on
the defendants furnishing of adequate security, particularly
upon a good-faith representation by the plaintif that it would
otherwise lack adequate protection because, for example, the
property is rapidly depreciating or is in danger of being dissi-
pated or damaged. If security is required, it would have to be
furnished within seven days. Failure to furnish security would
result in the rescheduling of trial for the next date on which
the court hears RPSs. (For the sake of convenience, it might
make sense for the court to hear RPSs at the same time as
FEDs.)
6. Borrowing from the frst sentence of 14 M.R.S.A. 6005,
the statute should provide that When the defendant is
defaulted or fails to show sufcient cause, judgment must
be rendered against the defendant by the District Court for
possession of the property. A standard form of turnover order
should be used, unless the plaintif seeks alternative equitable
relief.
92
Te default deadline for turnover should be fve days,
subject to shortening or lengthening for cause in the courts
discretion.
7. Te current requirement that the security agreement
or similar instrument be attached to the complaint should
be eliminated. Te requirement has been eviscerated by the
Yargeau decision. Although annexing the security agreement
is good practice, it is not essential under the general rules of
pleading, which should be controlling.
8. An RPS brought as a plenary proceeding should be
governed by the generally applicable rules of civil procedure,
not by the RPS rules.
9. Every RPS, whether summary or plenary, should be
appealable to the Law Court, subject to the Maine Rules of
Appellate Procedure. Since the relief is equitable, the question
of whether a stay is available, and, if so, on what terms, should
be governed by Rule 62(d). Tere would be no need to have an
intermediate level of appeal.
Te foregoing recommendations would eliminate the
present uncertainties and inconsistencies under section 6012.
A simpler and more certain repossession remedy, as outlined
above, would not only save parties time and money, but also
might make lenders and merchants more eager to engage in
secured transactions and credit sales, because it would be
easier to assess the risks involved. Tus, an improved remedy
should encourage commercial and consumer transactions
involving personal property in the state of Maine, to the
beneft of all.
1. See Restatement (Second) of Property: Landlord and Tenant 14.1
statutory note (1977); Spector, Tenants Rights, Procedural Wrongs: Sum-
mary Eviction and the Need for Reform, 46 Wayne L. Rev. 135, 137 (2000).
Some states call it summary process or summary dispossession, but
the process and remedy are essentially the same. See id.
2. 11 M.R.S.A. 9-1609(2)(b).
3. Desjardins v. Peoples Heritage Savings Bank, No. CV-89-1506, 1992
Me. Super. LEXIS 69, *4 (Me. Super. Ct., Cum. Cty., March 25, 1992);
see 9-A M.R.S.A. 5-112 (entry into consumers dwelling without con-
sent); 4 J. White & R. Summers, Uniform Commercial Code 34-8 (5th
ed. 2002) (repossession in public place in face of objection by physically
present debtor); U.C.C. 9-609 cmt. 3.
4. See Doughty v. Sullivan, 661 A.2d 1112, 1120 (Me. 1995); Seaver v.
Dingley, 4 Me. (Greenl.) 306, 315-16 (1826).
5. 14 M.R.S.A. 7303; see Ford New Holland, Inc. v. Tompson Mach.,
Inc., 617 A.2d 540 (Me. 1992).
6. Doughty, 661 A.2d at 1120-21.
7. Id.; see M.R. Civ. P. 64(c).
8. If the plaintif does not prevail, the defendant is entitled to
retrieval of the goods, plus damages, and a writ of return will issue. 14
M.R.S.A. 7304. Alternatively, the defendant may resort to the replevin
bond. Id., 7311. See Doughty, 661 A.2d at 1120.
9. See 14 M.R.S.A. 7304, 7310.
10. See Lamey v. Maine Mortgage & Guaranty Co., 132 Me. 456, 173
A.430 (1934) (issue of fact in replevin action is one for injury); see also 14
M.R.S.A. 1505 (mentioning jury used in replevin action)
11. See Farnsworth v. Whiting, 104 Me. 488, 493, 72 A. 314 (1908).
12. 4 M.R.S.A. 152(5)(N); 14 M.R.S.A. 6051(11).
13. See Doughty, 661 A.2d at 1121 n. 11.
14. Childs Play v. A & A, Inc., 642 A.2d 170, 173 (Me. 1994).
15. In practice, creditors were sometimes able to obtain replevin with-
out strict compliance with the statutory requirements, at least until the
Law Court made it clear, in Ford New Holland, Childs Play and Doughty,
supra, that the replevin statute means what it says. However, even before
these decisions, some trial judges were less willing than others to inter-
pret the statute loosely.
16. P.L. 1821, ch. 79, 4. Maine was not alone in passing FED legisla-
tion as one of its earliest laws. See generally Spector, supra note 1, at 152
(2000) (statutes of forcible entry and detainer were among the frst laws
many American legislatures passed.)
17. 1784 Mass. Act ch. 8; see Dunning v. Vincon, 46 Me. 546, 550 (1859).
Pennsylvanias FED statute preceded Massachusettss by twelve years.
See Act of Mar. 21, 1772, 1772 Pa. Laws ch. 645, 12.
18. 5 Rich. 2, ch. 8 (1381); 8 Hen. 6, ch. 9 (1429). See generally R.
Schoshinski, American Law of Landlord and Tenant 6:5 (1980). Techni-
cally, forcible entry refers to the entry on land in anothers possession
by force, whereas forcible detainer refers to the holding or detention
of land by force once entry has been made. See 35A Am. Jur. 2d Forcible
Entry and Detainer 1 (2001). Now, however, that distinction is of purely
historical interest.
19. See Eveleth v. Gill, 97 Me. 315, 317, 54 A. 756, 757 (1903).
20. Sweeney v. Dahl, 140 Me. 133, 151, 34 A.2d 673, 680 (1943) (dis-
sent); Dunning, 46 Me. at 550.
21. See North School Congregate Housing v. Merrithew, 558 A.2d 1189,
1191-92 (Me. 1989).
22. See Lindsey v. Normet, 405 U.S. 56, 71 (1972); see generally J. Duke-
minier & J. Krier, Property 484-94 (4
th
ed. 1998).
23. See Bicknell Mfg. Co. v. Bennett, 417 A.2d 414, 419-20 (Me. 1980).
24. Tozier v. Tozier, 437 A.2d 645, 647 (Me. 1981); Bicknell Mfg., 417
A.2d at 421.
25. 14 M.R.S.A. 6001(1). Te action has been used so predominantly
to dispossess tenants that FED has become practically synonymous
with legal eviction.
26. P.L. 1973, ch. 428.
27. See L.D. 174, Statement of Fact (106
th
Legis. 1973).
28. 417 A.2d 422 (Me. 1980).
29. Id. at 424-25 (citations omitted).
30. Bicknell Mfg., 417 A.2d at 420.
31. Colonial Builders, 417 A.2d at 425.
32. P.L. 1995, ch. 448.
33. For example, the same summons and writs are used; and the Dis-
trict Courts routinely schedule all FED actions, whether under section
6001 or section 6012, at the same time.
34. M.R. Civ. P. 80D(b) and (e).
35. See 14 M.R.S.A. 6012(1) and (5).
36. See id. Subsection (5) indicates, somewhat confusingly, that the
Maine Rules of Civil Procedure, other than Rule 80D(a)-(e), apply.
Assuming that Rule 80D(f )-(k) still applies, the statute does not address
what happens when these subparts confict with other rules. See notes
38-39 and accompanying text infra.
37. See Testimony of Sen. Joel Abromson re L.D. 807 (120
th
Legis.
2001) (referring to Attorney Stanley Greenberg for questions).
38. See M.R. Civ. P. 80D(d). Rule 80D(d) does not require an answer to
be fled by the defendant in a real estate FED action unless the defendant
claims title in the name of the defendant or a third party. Where title is an
issue, then the defendant in such a proceeding must fle an answer on or
before the return day (that is, at or before the initial trial date). Tese provi-
sions also apply to a summary FED action for recovery of personal property.
39. See L.D. 807, Summary (120
th
Legis. 2001); Testimony of Sen.
Joel Abromson; Memorandum from Ofce of Policy and Legal Analysis
dated March 19, 2001 re L.D. 807.
40. 14 M.R.S.A. 6012(5).
41. Bramson v. Richardson, 412 A.2d 381, 383 (Me. 1980); see Tozier,
437 A.2d at 649 n.7. However, when an FED action reached the Supe-
rior Court on appeal (and thereby lost its summary character), the court
consolidated it with related claims and counterclaims. See Pitts v. Pitts,
No. RE-06-186, 2008 Me. Super. LEXIS 24 (Me. Super. Crt, Yor. Cty.,
Feb. 12, 2008).
42. L.D. 807, Summary (120
th
Legis. 2001).
43. Te venue issue is discussed separately in the text accompanying
notes 5458 infra.
44. Rubin v. Josephson, 478 A.2d 665, 667 (Me. 1984); Tozier, 437 A.2d
at 647 (Me. 1981); see also Troumoulos v. Bernier, 143 Me. 286, 289, 61
A.2d 681, 638 (1948) (Te action of forcible entry and detainer is a sum-
mary process to obtain possession of real estate.); 35A Am. Jur. 2d Forc-
ible Entry and Detainer 6 (2001) (objective of FED statute is to provide
a summary, extraordinary, and speedy method of recovery of possession
of real estate).
45. Voltaire, Essai sur les Moeurs, ch. 70 (1756).
46. 14 M.R.S.A. 6012(3) and (6). See Plumbago Mining Corp. v. Swe-
att, 444 A.2d 361, 368 (Me. 1982) (recognizing District Courts equitable
power under section 6012).
47. North School Congregate Housing v. Merrithew, 558 A.2d 1189 (Me.
1989). See also DaimlerChrysler Corp. v. Exec. Dir., Me. Revenue Serv.,
2007 ME 62, 23, 1922 A.2d 465, 472 (no right to jury trial for equitable
remedy).
48. 420 A.2d 230, 237 (Me. 1980) (citations omitted).
49. Id. (citations omitted)
50. Id.
51. 14 M.R.S.A. 6012(5). As discussed above, Rule 80D(f )-(k) evi-
dently applies to plenary proceedings as well.
52. Cf. Green Tree Fin. Corp. v. Willey, No. CV-93-064, 1993 Me.
Super. LEXIS 313 (Me. Super. Ct., Was. Cty., Nov. 19, 1993) (follow-
ing Colonial Builders, failure of defendant to appear in personal prop-
erty FED action requires issuance of writ of possession, just as in realty
FED).
53. Doughty, 661 A.2d at 1120; see generally 1 D. Dobbs, Law of Rem-
edies 2.6(3) at 156 (2d ed. 1993).
54. See M.R.S.A. 155(2); M.R. Civ. P. 80D(h).
55. See 9-A M.R.S.A. 5-113.
56. See 15 U.S.C. 1692i(a).
57. See 4 M.R.S.A. 155(7), 155(8). Te leading treatise on civil proce-
dure in Maine disapproves of the application of the general FED venue
provisions to a personal property FED. See Field, McKusick and Wroth
180D5a (2d ed. Supp. 1981). Tat authority states that the property
in suit is movable and the situs follows the person, unlike real estate.
Id. Tis might be used as an argument in support of a District Courts
retention, in the interest of justice, in venue in the original, if otherwise
incorrect, division.
58. See 14 M.R.S.A. 6012(3).
59. Yargeau v. City of Portland, 566 A.2d 1088 (Me. 1989).
60. See Black v. Ward, 633 A.2d 81 (Me. 1993); Pattershall v. Jenness,
485 A.2d 980, 985 (Me. 1984); M.R. Civ. P. 16A.
61. 14 M.R.S.A. 6008(4).
62. 14 M.R.S.A. 6017(2)(A); P.L. 1999, ch. 192, 2.
63. See M.R. Civ. P. 80D(j).
64. See 14 M.R.S.A. 6005.
65. Colonial Builders, 417 A.2d at 424-425.
66. See M.R. App. P. 2(b).
67. But see Housing Authority of Bangor v. Maheux, 2000 ME 60, 4,
748 A.2d 474, 476 (because trial court stayed issuance of writ, 30-day
period applied).
68. See L.D. 1546, Statement of Fact (117
th
Legis. 1995) (It makes the
procedures consistent with other forcible entry and detainer actions).
69. See M.R. Civ. P. 80D(f )(1).
70. See M.R. App. P. 2(b).
71. A judgment is entered when it is entered on docket. M.R. App.
P. 2(b)(1).
72. But cf. Maine Savings Bank v. DeCosta, 403 A.2d 1195 (Me. 1979)
(where former Rule 80D(f ), D.C.C.R., provided for appeal within fve
days after judgment, the rule meant fve days after the entry of judg-
ment).
73. Rule 15, M.R. App. P., provides that M.R. Civ. P. 6(a) governs
the computation of any period of time prescribed or allowed by these
rules. Rule 6(a) provides that if the last day is a Saturday, Sunday or
legal holiday, the period runs until the end of the next day which not a
Saturday, Sunday or holiday. However, that rule would seem to have no
application where the applicable period of time is prescribed by statute,
rather than by the rules of appellate procedure.
Similarly, the rules permit extensions for good cause or excusable
neglect. See M.R. App. P. 2(b)(5); M.R. Civ. P. 76D. However, the stat-
ute does not provide for any extensions or enlargements. Court rules
which permit extensions of time arguably do not apply to section 6012.
Cf. Reiser v. Maine Board of Pharmacy, No. AP-00-015, 2000 Me. Super.
LEXIS 150 *9 (Me. Super. Ct., Ken. Cty., July 6, 2000) (A court-made
rule cannot supersede a legislative direction concerning appellate juris-
diction).
74. North School Congregate Housing, 558 A.2d at 1196-97.
75. P.L. 1989, ch. 377.
76. See Yeadon Fabric Domes, Inc. v. Maine Sports Complex, LLC,
2006 ME 85,12 n.3 901 A.2d 200, 204 n.3; see also Cassidy v. Jiroux,
No. CV-04-427, 2005 WL 2715642 (Me. Super. Ct., Sum. Cty., May
18, 2005).
77. Taunton Gardens Co. v. Hills, 557 F.2d 877, 879 n.2 (1
st
Cir.
1977).
78. See Restatement (Second) of Judgments 13 cmt. f (1982); 18A
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d
4433 at 78 (2002).
79. North School Congregate Housing, 558 A.2d at 1190-97; Bartlett v.
Pullen, 586 A.2d 1263m 1265 (me. 1991).
80. P.L. 1995, ch. 448, 4.
81. Section 6008 contains nearly identical language. 14 M.R.S.A.
6008(1).
82. See Granfnanciera, S.A. v. Nordberg, 492 U.S. 33, 53 (1989).
83. Merrithew indicates that a right to a jury trial exists under the
Maine Constitution even for causes of action newly created by legisla-
tive fat so long as the newly created action is of the same general type
as an analogous action for which a jury trial was available at eh time
that Maine became a state in 1820. North School Congregate Housing, 558
A.2d at 1190. Additionally, Merrithew requires a court to presume that
a jury trial right exists for a newly created action unless and until it is
afrmatively shown that no such right existed for an analogous action
in 1820. Id.
84. At common law, replevin was available only where the goods were
unlawfully acquired by the defendant, and an action known as detinue
would lie where possession of personal property was initially acquired
in a lawful manner but was then unlawfully detained. See Ramsdell v.
Buswell, 54 Me. 546, 548-549 (1867); Badger v. Phinney, 15 Mass. 359, 362
(1819). However, detinue was superseded when the remedy in replevin
was extended to provide relief in both contexts. Id. A right to a jury trial
existed in a detinue action. See 26B C.J.S. Detinue 29 (2008).
85. See DiCentes v. Michaud, 1998 ME 227, 7, 719 a.2d 509, 512.
86. In Atlantic Regional Fed. Credit Union v. Baizley, No. AP-05-100,
2006 Me. Super. LEXIS 92 (Me. Super. Crt., Cum. Cty., Apr. 24, 2006),
the Superior Court ruled that the creditor failed to prove that a section
6012 action is the equivalent of equitable replevin or that an equivalent
to the action in 1820 would not have entailed a right to jury trial.
87. See 4 M.R.S.A. 57, 105(3).
88. Id., 105(3)(B).
89. 14 M.R.S.A. 1901(3)(a).
90. Of course, it might be argued that the use of the word and in
the phrase section 6008 and the Maine Rule of Civil Procedure, Rule
80D(f ) in 14 M.R.S.A. 1901(3)(a) makes that section applicable only
where both section 6008 and the Rule apply, in which case the appeal
would only proceed to the Superior court if it involved real property.
Here there be monsters best observed from afar. See 1 M.R.S.A. 71(2)
(in the constructions of Maine statutes [t]he words and and or are
convertible as the sense of a statute may require).
91. See M.R.S.A. 6005. Tis statute is the only one which describes
the process for issuing a writ of possession.
92. For example, the defendant might be enjoined from interfering
with the plaintifs repossession of the goods, which repossession would be
expressly authorized. For creditors who feel more comfortable with repos-
session by the sherifs ofce, the order could expressly authorize the plain-
tif to enlist the assistance of the sherif. In cases involving considerable
assets, the court could even appoint a receiver to marshal the collateral. See
Smith v. Bath Loan & Bldg. Assn, 126 Me. 59, 61, 136 A. 284, 286 (1927).
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Dennis and I got acquainted when I was the assistant
district attorney for Franklin County, in the northwest part
of Maine. Benedict Arnold marched seven hundred men
through Franklin County to attack the British at Quebec
City and prove his mettle during the Revolutionary War. Te
Stanley brothers, who invented the steam-powered automo-
bile, came from Franklin County, as did Chester Greenwood,
who invented earmufs. Wilhelm Reich, a wayward star from
Sigmund Freuds frmament, settled there to study orgone
energy (dont ask). Eisenhower used to go fshing there. And
Dennis Nile violated every trafc law on the books there.
When I knew him, Dennis was a woodsman: He worked in
the forest, cutting, skidding, and yarding logs. But sometimes
it seemed as if that was only a part-time job, he was in court
so often to protest his innocence. His drunk driving, driving
without a license, driving after suspension, driving an unreg-
istered vehicle, driving a vehicle with bald tires, or the wrong
plates, or no plateswell, you get the picture: Dennis kept
me busy. Tere was only one hiatus that I remember, and that
was when Dennis got into a fght and roughed up his oppo-
nent to the tune of a felonious assault, which earned him about
a year at Tomastons Crowbar Hotel. But by the time I tired
of prosecuting and entered the private practice of law, Dennis
was back.
I found that out when I was in the court clerks ofce one
day checking a fle for a client, and got word that the judge
wanted to see me. I entered the courtroom, and the judge
said, Weve got a gentleman here whos facing some dif-
culty. I wonder if youd be kind enough to discuss it with
him. (Tats judgespeak for Youre defending this guy.) I
followed his gaze to Dennis Nile. I turned back to the judge
and said that Dennis might prefer someone else to advocate
his innocence, given how much of my career Id spent on the
alternative. But Dennis was above taking prosecution person-
Right-hand drive
by John C. Sheldon
T
he good news is that Dennis Niles out of
prison. Te bad news is that it took him a while
to get out, and that that experience may have
suppressed the spirit that produced this story. Perhaps, if
Corrections corrected Dennis, thats a good thing. But
I mourn the loss of an iconoclastic wit.
ally and declared that Id do fne, and that got the judge
beaming at me (judgespeak: Hes all yours.).
So I got copies of the criminal complaint from the clerk,
and the police report from the D.A.s ofce, and looked the
case over. It was an operating after revocation charge: Te
Farmington police had caught Dennis driving to the liquor
store after the Division of Motor Vehicles had revoked his
right to drive. It was a felony charge with a maximum penalty
of fve years in prison, so a conviction would be rough on
someone with Denniss history.
Worst of all, the facts looked like a slam dunk for the pros-
ecution. Every cop in the county knew Dennis and recognized
his truck. So when Farmington Ofcer Burchard Ellis saw him
heading through town he swung around and tailed him the half-
mile to the liquor store. Dennis parked and slipped into the store,
while Burchard waited outside to arrest him once he emerged.
Tis ofcer did observe the subject peeping out the store window
at this ofcer three times, apparently to observe if this ofcer was
going to terminate the investigation, read the police report. So
Burchard knew that Dennis knew hed been bad. Te subjects
female companion, Lisa Atwood, was a passenger in the subjects
vehicle. So they had a civilian witness, too. Prospects were grim.
I had Dennis bring Lisa to the ofce so we could all talk it
over. Tey sat down, I picked up the fle, told them what the
States evidence was, and asked if we had a defense I didnt
know about. Dennis smirked, a little sheepishly, I thought.
I wasnt drivin, he said. Lisa nodded in agreement.
I looked at Lisa, then looked back at Dennis, narrowed my
eyes, and slammed the folder down on the desk. If Id heard
Dennis utter those words two dozen times in the past Id be
underestimating. Whenever a cop stopped his truck thered be
a rufe-shufe of the occupants so that by the time the cop got
to the drivers side door someone other than Dennisone of
his brothers, or a drinking buddywould be sitting behind
the wheel. I was damned if I was going to play that game.
Really, he said, his smirk broadening, I wasnt drivin. I
said nothing, just glared at him.
I was drivin, said Lisa. I was sittin in the passenger seat
but I was drivin.
I raised an eyebrow at her. Oh great, the Elastic Girl
defense. With a give-me-a-break sigh I reached for the police
report. Red, 1969 Ford F-150 two-wheel drive pickup it says
here. I dont recall that they came out with a right-hand drive
model that year, Lisa.
Lisa giggled. Tey didnt, Dennis said. I done it myself.
I stared at him for a moment. You want to try that on me
again, kinda slow? I asked.
Ya know, about half the time they accuse me of drivin I
aint. Te last time I got arrested for drivin drunk I wasnt
anywhere near the wheel. But the cop was real sure a hisself
so it cost me a couple of days tryin to make bail, and that
pissed me some wicked. So the next chance I got I took and
moved my trucks steerin wheel and pedals to the right-hand
side. Took me about a weekend. Ten I sat on the left side of
the cab, kinda leanin outada window sos I could be seen real
good, and had Lisa here drive me through town. Went trollin
for a cop. Caught a good one, too.
Well, he sure did. Burchard was a short guy with a big
swagger. A smart cop, and he knew it and he let others know
it and they resented him, even his fellow cops. Didnt you say
anything when he arrested you? I asked.
All I said was, Burchard, youre makin a mistake.
Whatd he say?
He said, Dennis, I dont make mistakes.
Nothing could be this sweet. I started probing for weak-
ness. How do we prove you didnt switch the controls after
you got arrested?
Took it to a 4th of July party, showed it to all my friends
and relations. Didnt land Burchard til August.
Uh-uhwe arent using your relations, Dennis, or any of
those other presto-chango drivers you always come up with.
How about Ovide Ellis? Made sure he came to the party.
Damn: Burchards frst cousin, not friendly with law enforce-
ment so hed probably be willing to testify. My esteem for
Dennis Nile was rising fast.
Well, the next thing theyll do is indict you. I can prevent
that, you know. All I have to do is explain it to the D.A.
Hell no, Dennis said. I want em to indict me. And I want a jury
trial, and dont you tell nobody till the D.A. rests his case at trial.
Well, this was a frst. A criminal defendants precious
privilegesthe rights to an indictment, to a jury trial, to
silence so nobody can make him reveal his defense, and to
the attorney-client privilege so his lawyer wont eitherarent
supposed to be a setup for a practical joke. Id never met
anyone with enough starch to risk imprisonment for the sake
of comedy.
john C. sheldon is the principal of maine Dispute resolution, in
Falmouth, maine. He was a judge of the maine District Court
from 1987 to 2002, and a visiting scholar at the Harvard law
school in 2000 and in 20022003.
After Dennis and Lisa left I realized what a good comedy it
wasspiced with ridicule like Charlie Chaplins and a poten-
tial for catastrophe like Harold Lloyds. And that meant I
wasnt Denniss lawyer so much as I was his stage manager. My
job was to leave the script alone, just make sure the props were
in place and the actors entered on cue. Teyd never taught me
about this in law school.
Te props were the truck, of course. Getting it to the court-
house would be a problem. I didnt want anyone driving it
there because I doubted it met Maines vehicle safety standards,
and I didnt want any illegality turning me into an accomplice.
Whatever disaster we were risking wasnt going to include my
disbarment. Timing was important, too: We had to get the truck
to the courthouse after the trial had started, so nobody from the
prosecution would see it arrive, get wise, and dismiss the case.
Tings turned out our way. When the case fnally got sched-
uled for trial they set it to start after lunch. Tat was lucky
for me, because the judgeJessie Gunther (ne Briggs), who
was new to the Superior Court bench and whose risibility was
untestedprobably wouldnt boil me in oil for wasting an entire
jury day on a practical joke. Te prosecutor, Dan Boutin, made
an opening statement to the jury, outlining his case. I declined
to do so. Tats a little unusual, of course, because opening state-
ment was my opportunity to ingratiate myself with the jurors,
and I wasnt even trying. Tat had to get Dan worrying.
He called Burchard to the stand and asked him to tell what
had happened. It was a simple set of facts so direct testimony
took about ten minutes. Ten it was my turn for cross-exam-
ination:
What did Dennis say when you arrested him?
Something about me making a mistake.
Whatd you say back?
I told him I didnt think so.
Close enough, so I sat down. Two questions, neither of
which revealed why we were taking this case to trial at all. Tat
got Dan fdgeting, because he sensed he was being suckered
but couldnt fgure out how. So he started asking Burchard
every question he could think of that might plug every leak
in his case he could imagine, and then, when he ran out of
ideas and questions, he submitted Denniss self-authenticating
driving record and sat downfretting.
Dennis was our frst witness. He told the jury about how
unfair the cops had been to him all his life, and how his driving
record wasnt as bad as it looked on the D.M.V.s records, and
how this was just the latest in a series of injustices. Ho hum.
It was early afternoon, the courtroom was warm, lunch was
settling and the defendant was pitying himself. Jessie looked
as though she might be having trouble staying awake.
Ten he told them that hed fnally gotten mad and decided
to do something about it. Out of the corner of my eye I saw
Jessie cock her head, as if she sensed Something Diferent.
Dennis told the jury how hed rigged the truck and how hed
gone fshing for a cop, and how hed set the hook by peeking
at Ofcer Burchard out of the liquor store window.
Jessie pivoted around in her chair; I looked over to see if
she was ordering up a cauldron of oil, but all I could see was
the back of her chair, shaking. Te jury noticed it too, and
suddenly realized that laughter was permitted even in a Maine
Superior courtroom. A chuckle, a couple of snickers.
Dennis told the jurors how hed warned Burchard of
arresting him, and then he served them Burchards wonderful
Dennis, I dont make mistakes mistake, and the joke burst
into full blossom for everyone in the courtroom except Dan,
who looked like hed swallowed a frog.
He never recovered. He asked Dennis a few questions, but
nobody paid attention because the joke was too rich.
I put Lisa on the stand to corroborate what Dennis had said,
and then Ovide to confrm that Dennis had his fshing gear
rigged before Burchard rose to the bait.
We took the jury out to the parking lot to show them the
truck and Jessie and the jurors were laughing so much Dan
dismissed the case right there just so he wouldnt have to listen
to them any more. I would have felt sorry for him if I hadnt
been so proud of my show.
After that I was Denniss favorite lawyer, and we got to know
each other pretty well because his characteristic disdain for the
law kept me defending him as much as Id prosecuted him. He
married Lisa and they had a child, but then they split up and she
got custody and he couldnt stand it. I was attending the dress
rehearsal for a community production of Te Pirates of Penzance
one nightI was a piratewhen I got a call that Dennis had
snatched his son and was holed up in his trailer.
Te cops had surrounded the place and asked me to help talk
him out of hurting anyone, so I headed right overstill dressed
in my pirate costume and wearing full makeup (I decided
against taking my sword). When I arrived the cops probably
thought this was another of Denniss jokes but, sadly, it wasnt.
We patched the peace back together that night, but it didnt last.
Dennis resented the custody order as much as he did the cops,
and pretty soon his resentment took a violent turn. Nobody
got seriously hurt, but Dennis wound up back in
Tomaston, this time for better than a decade.
Ive often wondered about the character I repre-
sented in Dennis Nile: the irreverent who lured the
authorities into victimizing him and the hothead
who compelled them to imprison him, all because
he wouldnt take their No for an answer. A Wild-
West personality, really, an anachronism: Dennis
is big and sinewy and tough, and if you liken his
chainsaw and skidder to a six-gun and a horse hed
be a perfect ft for any saloon west of the Pecos.
When he was felling trees and yarding logs in the
woods, his independence served him well: He
wanted no help, he tolerated no authority, the only
restriction was daylight and the only rule was self-
preservationthe very ethos of the Old West.
But Maines forests arent the wilderness of
American legend; theyre a refuge, circumscribed
by human systems that dont sufer the likes of
Denniss frontier spirit. I was fortunate to have
glimpsed that spirit before it self-destructed.
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CLASSIFIED ADS
T
he Board of Overseers of the
Bar was created by the Maine
Supreme Judicial Court in 1978 to
govern the conduct of lawyers as ofcers
of the Court. Te Board is composed
of six lawyers and three lay members.
Te lawyers are appointed by the Court,
and the lay members are appointed by
the Court on recommendation by the
governor.
Te Board regulates the conduct of
lawyers by enforcing the Court-adopted
Maine Bar Rules. Te purpose of the
Maine Bar Rules is to provide appro-
priate standards for attorneys with
respect to their practice of the profes-
sion of law, including, but not limited
to, their relationship with their clients,
the general public, other members of the
legal profession, the courts and agencies
of this state.
Under the Maine Bar Rules, the
Board appoints Bar Counsel, who inves-
tigate alleged misconduct by lawyers and,
when authorized to do so by a reviewing
panel of the Grievance Commission, liti-
gate grievance complaints at disciplinary
proceedings that are open to the public.
In 2007 the Boards staf consisted of
Bar Counsel J. Scott Davis, Deputy
Bar Counsel Nora Sosnof, Assistant
Bar Counsel Aria eee, Administrative
Director Jacqueline Rogers, Grievance
Commission Clerk and Fee Arbitration
Secretary Molly Tibbetts, Assistant to
Bar Counsel Donna Spillman, Assis-
tant to Deputy Bar Counsel Ellen Daly,
CLE Coordinator Susan Adams, Regis-
tration Clerk Linda Hapworth and Law
Clerk Geofrey Lewis. Te Boards staf
increased by one this year with the
beneft of a volunteer extern, Garret
Corbin, a University of Maine School of
Law student.
The Board appoints volunteer
members to three commissions estab-
lished by the Maine Bar Rules: the
Grievance Commission, the Fee Arbitra-
tion Commission, and the Professional
Ethics Commission. Te Fee Arbitration
Commission and the Grievance Commis-
sion conduct their functions under the
Maine Bar Rules with three-member
panels. Each panel comprises two attor-
neys and a lay member. Te Professional
Ethics Commission comprises eight
volunteer lawyers. Te Commission
renders formal and informal written
advisory opinions to the Court, Board,
Grievance Commission, Bar Counsel,
and members of the Maine Bar. Tese
opinions involve the interpretation and
application of the Code of Responsi-
bility to lawyer conduct.
Information concerning the responsi-
bilities and functions of the Board and
each of its commissions is contained in
informational pamphlets available at the
Boards ofce. Information may also be
accessed at the Boards web site at www.
mebaroverseers.org.
Te Board met ten times in 2007 to
conduct business pursuant to the Maine
Bar Rules. During the course of the
year, the Board reviewed and approved
amendments to a variety of Board Regu-
lations and policies, and submitted a
number of proposed amendments to the
Maine Supreme Judicial Court for its
consideration. Te Board continued its
active participation in the Maine Task
Force for Ethics 2000 that was created
by the Court in February 2005. Te
Task Force was charged to reformulate
Maines Code of Professional Respon-
sibility (Bar Rule 3) so that Maines
Rules would conform to the structure
of the ABA Model Rules of Professional
Conduct. In early June, the Task Force
presented its recommendations to the
Advisory Committee on the Rules of
Professional Responsibility. Te Advi-
sory Committee voted to accept the
Task Force recommendations, with
some modifcations, and instructed the
Task Force to transmit its report directly
to the Maine Supreme Judicial Court.
Te Court received the Task Forces
Board of Overseers of the Bar
2007 Annual Report
recommendations in September 2007
and will undertake its own review of the
report and recommendations in 2008.
Te Court will establish a schedule for
receiving comments from members of
the bar and the public this year.
Maine lawyers, through their annual
registration fees to the Board of Over-
seers of the Bar, directly fund the lawyer
registration and disciplinary system. In
addition, the Board also collects the
Courts annual mandatory assessment
fee for the Lawyers Fund for Client
Protection and forwards the same to
the Fund. Te Boards audited fnancial
statements for the 20062007 fscal year
(ended June 30, 2007), show revenue of
$893,014 and expenses of $892,649.
Te Board maintains a register of all
lawyers who are members of the bar of
the state of Maine as well as records of
the termination, resignation, and suspen-
sion of the right of any lawyer to practice
law in Maine. Te number of attorneys
admitted to active practice in Maine as
of December 31, 2007 was 4,879.
Paul H. Sighinolf, Chair
Bar Counsel Files
Bar Counsel Files (BCF) comprise those
submitted written grievance complaints
that upon initial review, or after brief
informal investigation by Bar Counsel,
are deemed not to allege any actual
professional misconduct by an attorney
subject to sanction under the Maine Bar
Rules. Maine Bar Rule 7.1(c) requires
Bar Counsels unilateral dismissal of
such matters, either with or without any
investigation. A total of 118 complaint
matters received in 2007 were docketed
as BCF matters. Te number of such
BCF complaints fled in 2006 was 147.
When a BCF matter is dismissed by Bar
Counsel, the complainant is notifed in
writing by Bar Counsel of that decision,
the reason(s) for that dismissal action
and of a right within the subsequent
fourteen days to fle a written request for
that dismissal to be reviewed. Maine Bar
Rule 7.1(c)(1) requires such reviews to be
conducted by a lay member of either the
Board or the Grievance Commission.
Tat lay member has the authority to
approve, disapprove or modify the terms
of Bar Counsels dismissal action. In all
dismissed BCF matters, Bar Counsel
always provides the involved attorney
with copies of the complaint fling, the
dismissal letter, any resulting request
for review, and the lay reviewers deci-
sion. Bar Counsel dismissed eighty-eight
BCF and elevated one BCF to a Griev-
ance Commission File in 2007, with
twenty-four complainants requesting
review of those actions. Lay members
decided and afrmed all twenty-four of
those dismissals and therefore did not
vacate or modify any of those matters
so dismissed by Bar Counsel. At the end
of 2007, 29 complaints docketed as BCF
remained pending.
Grievance Commission
Complaints
In 2007, Bar Counsel received, screened
and docketed 196 written grievance
complaints as Grievance Commission
Files (GCF) representing a 24 percent
increase from the prior yearor an
average of three more complaints per
month. Upon initial screening, these
fles were deemed to allege some form
of a prima facie claim of professional
misconduct by Maine attorneys in
violation of the Code of Professional
Responsibility (the Code).
Panel Meetings and Hearings
Case reviews: panels of the Grievance
Commission met to conduct prelimi-
nary reviews of 190 GCF complaints
under Maine Bar Rule 7.1(d). Tose
meetings consist of a panel that reviews
the contents of GCF investigative fles as
presented by Bar Counsel. Such reviews
are not hearings, and neither the respec-
tive complainants nor the respondent
attorneys are ever present or involved at
the reviews, which usually occur by tele-
phonic conference calls. Although there
is no confdentiality requirement appli-
cable to complainants or respondent
attorneys, Bar Counsels investigation
and the Grievance Commission panels
preliminary review process are usually
required to be kept confdential by the
Board, the Commission and the Boards
staf under Maine Bar Rule 7.3(k)(1).
However, any Grievance Commission
panel disciplinary hearing is always
open to the public and the panels
resulting decision (report) concerning
such complaintsregardless of the
resultis also always made available to
the public upon request. Once issued,
and not subject to appeal, reprimands
are placed on the Boards web site (see
Maine Bar Rule 7.1(e)(2)(B)).
Upon completion of Bar Counsel
investigations and after Grievance
Commission panel review, 136 GCF
complaints were closed by issuance of
either a dismissal or a dismissal with
a warning (see Maine Bar Rules 7.1(d)
(3),(4)). Panels found probable cause
that professional misconduct appeared
to have occurred in thirty-four matters
reviewed, warranting a hearing by
another panel (or the Court) to deter-
mine if any disciplinary sanction should
be imposed upon the respective attor-
neys. Pursuant to Maine Bar Rule 7.1(e),
the Grievance Commission conducted
15 hearings relating to seventeen peti-
tions (fve fled in 2006 and twelve fled
in 2007). Ultimately, nine informations
were fled with the executive clerk of
the Maine Supreme Judicial Court for
hearing before a single justice.
Reprimands
BoardofOverseersoftheBarv.
PatriciaV.Shadis,Esq. (Newcastle)
GCF # 05-386
Tis grievance involved an attor-
neys conduct during the course of a
post-divorce motion to change primary
residence of minor children from their
mother to their father. Te grievance
matter was resolved on these stipu-
lated facts: Attorney Shadis attempted to
have a criminal investigation reopened
against the mothers then live-in partner,
now husband. Attorney Shadis intent
was to gain information for the custody
case and to reopen the criminal inves-
tigation. She initiated contact with the
Maine State Police, arranged contact
between witnesses, was in contact with
the former wife of the man and had
contact with the alleged victim. Attorney
Shadis was discourteous and critical
of a District Court Judge. Te Griev-
ance Commission panel reprimanded
Attorney Shadis for violations of Maine
Bar Rules 3.1(a) (conduct unworthy of
an attorney), 3.2(f )(4) (conduct preju-
dicial to the administration of justice),
3.6(a) (not applying the lawyers best
judgment in the performance of profes-
sional services), 3.6(c) (threatening to
present criminal charges solely to obtain
an advantage in a civil matter), and
3.7(e)(2)(vi) (engaging in undignifed or
discourteous conduct that is degrading
to a tribunal while appearing before that
tribunal in a professional capacity).
StephenT.Hayes,Esq.(Augusta) GCF
# 06-026
Tis grievance involved an attorneys
failure to communicate with clients
concerning the status of an estate plan-
ning matter that he was representing
them in. After a contested hearing, the
Grievance Commission panel found
that, while Attorney Hayes was actively
researching the efect recent and pending
legislation and rule changes would have
on the clients ability to protect their
assets from creditors, he failed to take
reasonable measures to keep the clients
informed on the complexity of the estate
questions they had posed and the status
of his ongoing research, in violation of
M. Bar R. 3.6(a). Te Panel reprimanded
Attorney Hayes for what it concluded
was misconduct that was not due to any
serious neglect or bad faith but because
a review of Attorney Hayes past disci-
plinary history suggested that he had
experienced previous difculties with
client communications, and because
Attorney Hayes testifed at the hearing
that he had an aversion to sending
empty client communications. Te
Panel noted that when communication
is necessary to keep clients reasonably
informed as to the status of pending
matters, it is an afrmative obligation of
the attorney and not merely an empty
communication.
BoardofOverseersoftheBarv.Joel
C.Vincent,Esq. (Portland) GCF #
06-304
failure to fully prosecute a criminal
appeal, failure to withdraw from repre-
sentation in a timely fashion (to allow
the client to seek other counsel to repre-
sent him in his appeal), and failure to
timely communicate with the client. Te
matter was resolved on these stipulated
facts: Attorney Vincent appropriately
and adequately represented the incar-
cerated criminal defendant throughout
the court proceedings, including the
clients initial appeal. Attorney Vincent
acknowledged that he failed to either
prosecute the clients Petition for a Writ
of Certiorari to the U. S. Supreme Court,
or to timely notify the client that such a
petition would be frivolous in Attorney
Vincents opinion so that the client could
seek new counsel. Te panel noted that
Attorney Vincent had taken full respon-
sibility for his actions and apologized
to the client before the fling of the bar
complaint. Further, Attorney Vincent
had no history of professional discipline
and had made substantial changes in
his ofce management procedures since
the time that the misconduct occurred.
Te Grievance Commission panel repri-
manded Attorney Vincent for violations
of Maine Bar Rules 3.1(a) (conduct
unworthy of an attorney) and 3.6(a)(3)
(neglect of a legal matter entrusted to
the attorney).
RichardSalewski,Esq. (Damariscotta)
GCF # 06-383
conduct during the course of a real estate
transaction. After a contested hearing,
the Grievance Commission panel found
that by an objective standard, both the
lawyer and the complainant (purchaser)
should have reasonably understood that
Attorney Salewski was representing the
purchaser of the property, as well as the
bank which was providing the fnancing
for the transaction. Te complainant
was originally referred to Attorney
Salewski by a lender she was working
with. Tat particular transaction fell
through. However, when the purchaser
entered into a second purchase and sale
agreement, she chose Attorney Salewski
as her attorney to close the transaction.
Attorney Salewski discovered a problem
with the second property: the right of
way providing access to the property
was not constructed where the survey-
ors plan showed it should be. Attorney
Salewski notifed the purchaser that
there was a defect in the right of way,
and that he would resolve the problem.
Attorney Salewski prepared deeds to be
exchanged by the sellers and the abut-
ting property owners which corrected
the defect. He also prepared the deed of
conveyance from the sellers, and had the
sellers sign an acknowledgment that he
was representing the bank, not them. At
the closing, Attorney Salewski explained
a number of the closing documents to the
purchaser. However, he never specifcally
explained the terms of the right of way
to the purchaser, particularly its upkeep
and maintenance. Several months after
the closing, the purchaser was presented
with a bill from the new neighbor for
half of the charges incurred for paving
the right of way. Te purchaser became
very upset and realized there must have
been a misunderstanding regarding the
nature of the work Attorney Salewski
did to resolve the right-of-way issues.
In the clients mind, Attorney Salewski
created greater obligations for her with
regard to maintenance and upkeep. Te
Grievance Commission panel repri-
manded Attorney Salewski for violations
of Maine Bar Rules 3.4(a)(1) (failure
to disclose his dual representation of
the purchaser and the bank), 3.4(a)(2)
(failure to recognize that he was repre-
senting the purchaser), 3.4(c)(2) (failure
to give the purchaser the opportunity to
make a decision and give her consent to
dual representation) and 3.6(a) (failure to
keep the client informed of the clients
afairs).
PamelaJ.Ames,Esq. (Waterville) GCF
# 05-340
Tis grievance involved an attor-
neys dishonest behavior while visiting
an inmate at the Maine Correctional
Center. Te matter was resolved on
stipulated facts: Attorney Ames had
a close personal relationship with the
inmate whom she had fostered and
represented while the inmate was a
minor. Responding to a request from
the inmate, Attorney Ames agreed to
send and later hand-deliver specifc
items including photographs, maga-
zines, stamps, and a personalized watch
to the inmate. Giving the items to the
inmate was a violation of the MCCs
rules. Attorney Ames admitted that
her conduct was in violation of MCC
policies and modeled inappropriate
behavior for the inmate. She took
full responsibility for her actions and
the subsequent consequences to both
the inmate and herself. Te Griev-
ance Commission panel reprimanded
Attorney Ames for violations of Maine
Bar Rules 3.1(a) (conduct unworthy
of an attorney) and 3.2(f )(3) (conduct
involving dishonesty).
Court Matters
Disbarments
One attorney, who had not practiced in
Maine in several years, was disbarred in
2007. Te matter was before the Court
on a reciprocal disciplinary action. No
appeal of the order was taken.
Board of Overseers of the Bar v.
Gary J. Karpin, Esq. (Gilbert, AZ)
BAR-05-05
Mr. Karpin had previously been
disbarred by the Vermont Supreme
Court and despite the Boards ongoing
attempts to serve him with its reciprocal
disciplinary action, it was not until 2007
that those eforts were successful to
fnalize the disciplinary proceedings.
Suspensions
BrianD.Condon,Esq. (Winthrop)
BAR-06-03
In December 2006, the Court initially
imposed a one-year suspension, with
all but ffteen days suspended upon
Attorney Condon for multiple instances
of misconduct in his handling of trust
account funds. In February 2007, the
Board fled a motion for contempt
alleging certain misconduct during
Condons suspension. Following hearing,
the Court found that Condon had failed
to cease advertising his law practice in
the local newspaper during his period
of suspension; that Condon had failed
to execute the monitoring agreement
with Maine Assistance Program (MAP)
before resuming his practice of law;
and that Condon had made a delib-
erate misrepresentation in his answer
to the Court responding to the Boards
then-pending motion. After hearing, the
Court imposed an additional sixty-day
extension of the previously unsuspended
portion of Condons suspension. (Tat
order was appealed by Condon and later
afrmed by the Law Court in 2008.)
PatriciaDanisinka-Washburn,Esq.
(Skowhegan) BAR-06-04.
Ms. Danisinka-Washburn was sus-
pended for her failure to prosecute her
criminal clients appeal of a felony convic-
tion for which she had been retained and
paid approximately $14,000. Te Court
found, despite Danisinka-Washburns
assertions to the contrary, that she violated
multiple Bar Rules by failing to prosecute
that appeal; by not performing services
justifying the $14,000 fee she charged
the clients family; by failing to commu-
nicate with her client and informing him
of her decision to allow the appeal to be
dismissed; and by misrepresenting to the
client that she was still working on his
appeal despite her knowledge that the
appeal had already been dismissed. Te
Court imposed a fve-year suspension
upon Danisinka-Washburn.
BoardofOverseersoftheBar
v.ChristopherJ.Whalley,Esq. (Ells-
worth) BAR-07-07
Te Court issued a thirty-day suspen-
sion to Attorney Whalley for his failure
to adequately communicate with a client,
failure to diligently pursue the clients
matters, and failure to properly supervise
his support staf during the handling of
the clients matters. Te Court ordered
that the thirty-day suspension itself be
suspended for one year so long as Attorney
Whalley complied with various conditions
outlined in the Order, including a moni-
toring component and reimbursement to
the Board for its prosecution expenses.
Reprimands
WayneR.Murphy,Esq.(Boston, MA)
BAR-07-3
Tis is the frst case in a series of four
(see below) 2007 reciprocal disciplinary
actions before the Maine Supreme
Judicial Court stemming from miscon-
duct by Massachusetts attorneys also
licensed to practice law in Maine. Te
Court issued a reprimand to Attorney
Murphy for his stipulated violations of
failing to provide competent representa-
tion, handling matters without adequate
preparation, neglecting legal matters
entrusted to a lawyer, failing to keep
clients informed on the status of their
afairs, failing to promptly withdraw
after being discharged by clients, and
failing to deliver the clients fles to
successor counsel.
BoardofOverseersoftheBar
v.ValerianoDiviacchi,Esq. (Boston,
MA) BAR-07-6
By reciprocal disciplinary action, the
Court issued a reprimand to Attorney
Diviacchi for his stipulated violations
related to commingling personal and
client funds, paying personal expenses
from his IOLTA account and failing
to maintain a check register, individual
client records or create reconciliation
reports as required by the Massachusetts
Rules of Professional Conduct.
Board of Overseers of the Bar v.
Charles F. Perrault, Esq. (Methuen,
MA) BAR-07-8
Attorneys Perrault and Morrow
(referenced below) worked together
on legal matters which resulted in
public reprimands to each of them by
the Massachusetts Board of Bar Over-
seers. Te Court issued a reprimand to
Perrault for his engaging in a confict
of interest, for his failure to diligently
pursue his clients legal matters, and
for his failure to inform each of the
clients of the signifcance of those
matters.
ElizabethA.Morrow,Esq. (Methuen,
MA) BAR-07-09
Attorney Morrows reprimand
occurred by the Courts issuance of a
reciprocal disciplinary sanction due to
her own conduct in performing legal
services as an associate in Attorney
Perraults ofce. Te reprimand resulted
from Morrows engaging in a confict of
interest, her failure to diligently pursue
her clients legal matters, and by her
failure to inform each of the clients of
the signifcance of those matters.
Resignations
Pursuant to Maine Bar Rule 7.3(g), one
attorney requested that the Court accept
his resignation from the practice of law
in Maine in 2007.
RichardEmerson(Portland)BAR-00-5
Mr. Emerson had a two-count disci-
plinary proceeding pending before the
Court at the time he requested a resig-
nation order. Te frst matter involved
a business venture Emerson had in late
2003 with an individual who had a
reasonable basis to believe Emerson
was then acting in the capacity of an
attorney, even though Emerson had in
fact been suspended since November
2002. Emerson received a $25,000 check
from that individual, cashed that check
and then after being requested by that
business partner to do so, failed to
return any of those funds even after
obtaining a civil judgment against him.
Te other matter involved another fnan-
cial arrangement by which Emerson
persuaded an acquaintance to co-sign
a bank loan, apparently to fund some
of Emersons own personal expenses.
Emerson defaulted on that loan, causing
the other individual to have to repay it.
On the basis of those pending matters,
the Court issued a fairly lengthy and
detailed resignation order, thereby
accepting Emersons resignation on an
immediate basis.
Reinstatement
In 2007, the Court issued one order on
petition for reinstatement.
RichardSlosberg(Portland)BAR-04-7
After a contested hearing, the Court
denied Mr. Slosbergs petition for rein-
statement, fnding among other things
that his attendance and behavior at a
recent Grievance Commission disciplinary
hearing proceeding, wherein he knew Bar
Counsel did not intend to call him as a
witness, displayed his poor judgment and
his failure to recognize either the wrong-
fulness or seriousness of that behavior. Mr.
Slosberg also failed to meet the requisite
CLE requirements of Bar Rule 12(a)(1)
prior to seeking reinstatement.
Fee Arbitration
Commission
Te ofce of Bar Counsel screens all fee
arbitration petitions as fled to confrm that
the stated allegations warrant the atten-
tion of that Commission. Bar Counsel
may also attempt to assist in the parties
informal settlement discussion for resolu-
tion of fee disputes prior to a panel hearing,
but is not usually involved in the fee arbi-
tration process after performing the initial
screening (see Maine Bar Rule 9(e)(2)(3)).
Although the Fee Arbitration Commis-
sion and the Grievance Commission are
otherwise subject to confdentiality restric-
tions during their respective investigative
processes, pursuant to Board Regula-
tion #8, panels of both commissions are
authorized to share respective investiga-
tive materials concerning related matters
that are being or have been considered by
each body.
In 2007, ffty-eight new petitions
for arbitration of fee dispute were fled
with the secretary to the Fee Arbitra-
tion Commission. With twenty-three
petitions already pending, a total of
eighty-one matters were on fle. Twenty-
nine of those pending fee dispute matters
were dismissed, settled, or withdrawn
prior to a hearing before a panel of the
Commission (see Maine Bar Rule 9(e)
(3)). Te fve panels of the Fee Arbitra-
tion Commission conducted hearings
involving tewenty-nine fee disputes. As a
result, ffty-eight fee disputes were either
dismissed or decided, leaving a pending
hearing docket of twenty-one matters at
the end of 2007.
Professional Ethics
Commission
Te eight volunteer Maine attorneys
who compose the Board of Over-
seers Professional Ethics Commission
met eight times. Te Commission
issued three formal written advisory
opinions in 2007, numbered 192, 193,
and 194, that are summarized below.
Te Commission also ofered informal
confdential opinions in letter format
in response to several inquiries from
Maine attorneys on a variety of topics.
Te complete opinions, numbered
1 through 194, are indexed and
published on the Boards web site at
www.mebaroverseers.org.
Opinion No. 192June 20, 2007
Formal Advisory Opinion #192 ofers
guidance to Maine attorneys about their
obligations to preserve confdences of a
deceased client in circumstances where
the deceased clients personal repre-
sentative has attempted to waive the
attorney-client privilege in order to
obtain confdential information from
the attorney.
Opinion No. 193December 10,
2007
Formal Advisory Opinion #193
addresses the ethical issues for an
attorney considering a non-recourse loan
for litigation expenses. Te Commission
concluded that an attorney may not
enter into a non-recourse loan where
repayment to the lender is tied directly
to the recovery of legal fees by the
attorney in a particular case. Such an
arrangement involves the sharing of
legal fees with a non-lawyer.
Opinion No. 194December 11,
2007
Formal Advisory Opinion #194
ofers guidance to attorneys on
meeting their professional obliga-
tions if they are considering using
third-party vendors to process and
store electronically held frm data.
Processing of frm data might include
transcription of voice recordings and
transfer of frm computer fles to an
of-site back-up of the frms elec-
tronically held data. Te Commission
concluded that although such services
may involve disclosure of client infor-
mation to technicians outside the
sphere of the attorneys direct control
and supervision, it would not neces-
sarily violate the attorneys obligation
to maintain client confdentiality, as
long as the attorney employs appro-
priate safeguards. Te Commission
ofered a discussion to provide guid-
ance for attorneys about satisfying
their professional obligations in such
circumstances.
Amendments to
Maine Bar Rules
Te study and proposal of amendments
to the Code of Professional Responsi-
bility (Maine Bar Rule 3) is the province
of the Courts Advisory Committee on
Professional Responsibility, to which Bar
Counsel is a liaison. Te study of possible
rule amendments to other portions of
the Maine Bar Rules is generally done
by the Board and then proposed by
it to the Court. Te Maine Supreme
Judicial Court adopted, prescribed, and
amended the following Bar Rules, efec-
tive January 1, 2007:
M. Bar R. 3.1(a)Scope and Efect
M. Bar R. 3.1(a) was amended due to
the abrogation of Rule 7(e). Terefore,
the reference to 7(e)(6)(A) in the current
Rule 3.1(a) to a nonexistent provision was
removed. Te citation to the Maine Stat-
utes was also changed to refect current
primary reliance on the Maine Revised
Statutes (M.R.S.).
M. Bar R. 4(d)(1)Responsibilities
and Authority
M. Bar R. 4(d)(1) was amended to
reference the position of deputy bar
counsel that was created by the Board
in 2005.
M. Bar R. 5(a), (e), and (g)Quali-
fcations, Delegation, and Immunity
M. Bar R. 5(a), (e), and (g) were
amended to reference the position of
deputy bar counsel that was created by
the Board in 2005, and also provide for
the general reference to Bar Counsel
to include all of the staf attorneys
employed by the Board and approved by
the Court.
M. Bar R. 6(g)Forms
M. Bar R. 6(g) was amended to
refect that the Board of Overseers of
the Bar has assumed the responsibility of
distributing registration statements and
address change forms. Such forms are no
longer available at court locations.
M. Bar R. 7(b)(4)Quorum and
Action by Panels
Tis amendment to M. Bar R. 7(b)(4)
allows a designated Board staf member
to assign a replacement Grievance
Commission member when a named
panel member is unavailable.
M. Bar R. 7.1(e)(2)Public
Disciplinary Proceedings Before a
Grievance Commission Panel Hearing
Tis amendment to M. Bar Rule 7.1(e)
(2) formally confrms the parties ability
to agree to waive the formality of a
hearing and instead submit a proposed
sanction order to the panel without
always having to convene a hearing.
Some matters may be agreed to and at
least a brief hearing needs to occur, but
the amended rule now allows the panel
chair to approve the parties agreement
to waive any hearing at all. In addition,
the Board of Overseers of the Bar is no
longer required to always incur steno-
graphic costs for every case, e.g. matters
where counsel agree no testimony needs
to be taken.
M. Bar R. 7.1(e)(5)Public
Disciplinary Proceedings Before a
Grievance Commission PanelObjec-
tions to the Panel Report
Similar to appeal periods allowed
by the Court, the amendment to M.
Bar R. 7.1(e)(5) decreases the period
from thirty days to twenty-one days
for either party to fle an objection to
a Grievance Commission Panels issu-
ance of a dismissal with a warning after
hearing.
M. Bar R. 7.2(a)Petition for
Review of Public Reprimand
Similar to the fling, answering, and
appeal periods allowed by the Court, the
amendment to M. Bar R. 7.2(a) gener-
ally provides for twenty-one days to be
the period within which a respondent
attorney may fle a petition for review
of a public reprimand, and for any
subsequent related flings that may be
applicable thereafter.
M. Bar R. 7.2(b)(5)Attorney
Discipline Actions Before the Court
Judgment and Appeal
Similar to the fling deadlines allowed
by the Court, this amendment to M.
Bar R. 7.2(b)(5) increases from ten days
to twenty-one days the date by which
either party may fle an appeal to the
Law Court regarding any disciplinary
judgment issued by the Court under
this rule.
M. Bar R. 9(e)(5)(C)Procedures
Referral to Arbitration Panel
Tis amendment to M. Bar R. 9(e)
(5)(C) allows the secretary to the Fee
Arbitration Commission to assign a
replacement Commission member when
a named panel member is unavailable.
M. Bar R. 10.1(c)Assessment of
Attorneys for Expenses of Administra-
tionReinstatement Fees
Te amendment to M. Bar R. 10(c)
imposes a $50 surcharge on attorneys
seeking reinstatement who have been
suspended for non-compliance with M.
Bar R. 12 within the previous fve years.
M. Bar R. 12Continuing Legal
Education
Te amendments to M. Bar R. 12
are the result of a comparison of the
Rule to the practices and procedures
that have been adopted by the Board
since the Courts promulgation of the
Rule in 2001. Te Court also added
a new section, 12(d) Reinstatements,
which models similar language in M.
Bar R. 10(c) concerning fees imposed on
suspended attorneys seeking reinstate-
ment under that rule.
Informal Advisory Opinions
Te ofce of Bar Counsel continued to
provide advice about ethics and profes-
sional responsibility to Maine attorneys
on a daily basis throughout 2007. Such
advice is normally ofered in immediate
response to Maine attorneys calling Bar
Counsels Ethics Hotline. Maine attor-
neys may call and speak with one of the
three staf attorneys to discuss conduct of
the inquiring attorney or another member
of that attorneys law frm. However,
under Board Regulation No. 28, Bar
Counsel is prohibited from advising an
inquiring attorney about another attor-
neys actual or hypothetical conduct.
See also Advisory Opinions #67 and #171.
Calls are accepted by Bar Counsel daily,
and in 2007 alone, the three Bar Counsel
staf attorneys felded a total of 898 such
calls. A few of these scenarios, revised and
with identifying facts modifed to protect
confdentiality, were later disseminated
to attorneys in the Boards periodic email
communications entitled Professional
Update for Maine Lawyers and Judges.
Telephonic Screening of
Complaints
Board staf continue to receive inquiries
from the public. Many calls concern
the conduct of attorneys, client expecta-
tions which were not met by attorneys,
requests for second opinions regarding
advice provided by their attorney, and
client dissatisfaction with fees charged.
Te majority of the calls are managed
by administrative staf who explain
that neither they, nor Bar Counsel, can
provide legal advice. Most calls conclude
with the appropriate forms being sent to
the caller to fle a grievance complaint
or a petition for fee arbitration; however,
members of the public are increasingly
using the Boards website for informa-
tion and forms. Misdirected calls such as
those concerning the conduct of guard-
ians ad litem, complaints regarding
judges, and legal referral/assistance are
referred to the appropriate agencies
having responsibility and authority to
assist with such matters.
Informal Interventions
Tere are additional matters presented
to the Boards staf which do not meet
the criteria for the attention of any of
the Boards three commissions, but
which do call upon Bar Counsels
expertise and involvement in profes-
sional responsibility dilemmas within
the Maine bar. Such matters are dock-
eted as Informal Interventions. In 2007,
twenty-eight informal interventions
were docketed, a decrease compared
to last years total of forty-three. Tese
fles demonstrate how the Boards and
Bar Counsels bar governance func-
tions are not limited to processing
grievance complaints.
Continuing Legal Education
Te Board of Overseers of the Bar admin-
isters attorney compliance with Maine
Bar Rule 12, Continuing Legal Educa-
tion (CLE), which became mandatory
in January of 2001. Active attorneys
are required to complete a minimum
of eleven hours of approved continuing
legal education courses, including one
hour of ethics or professionalism, each
calendar year. In 2007, those required
to meet the requirements of Maine Bar
Rule 12 reported completing a total of
50,036 hours of CLE training.
In calendar year 2006, ffty-one
summary suspensions were imposed
on attorneys for non-compliance with
M. Bar R. 12. Subsequently, thirty-fve
of those attorneys fulflled the CLE
requirements and were reinstated.
Te Board of Overseers of the Bar
is a member of CLEreg, a national
voluntary organization of Regula-
tors of Continuing Legal Education.
CLEreg serves as a resource for the
Boards CLE coordinator and its CLE
Committee in working through issues
and concerns that arise with regard
to CLE policies and procedures under
Maine Bar Rule 12. Membership in
the organization also includes access
to an email list serv, which has proved
to be an invaluable tool in providing
support and guidance regarding CLE
issues that arise.
Te MCLE section of the Boards
website continues to be a good resource
for attorneys to keep track of their CLE
credits, and search upcoming approved
courses. Te Board is considering the
installation of a new database that
will allow for improved communica-
tion with attorneys including automatic
email generation when attendance is
entered into their record. Te system
will also allow providers to electronically
submit attendance rosters that will ulti-
mately allow attorneys to view their CLE
credits on the Boards web site in a more
timely manner.
Bar Counsel CLE
Presentations
Bar Counsel welcomes opportunities
to provide CLE presentations to Maine
lawyers and members of their respec-
tive staf on issues concerning ethics and
professional responsibility. In 2007, Bar
Counsel participated in the following CLE
presentations at locations around the state:
01/12/07Piscataquis County Bar Asso-
ciation
01/16/07Androscoggin Bar Associa-
tion
01/25/07MSBA Annual
Meeting, Labor and
Employment Law Section
01/26/07MSBA Annual
Meeting, Ethics 2000
Presentation
02/07/07MSBA, Child
Protection and Juvenile
Justice Section
03/19/07Volunteer Lawyers
Project
03/21/07Legal Services for
the Elderly
05/04/07Court Appointed
Special Advocate Program
(CASA)
05/17/07MSBA, Real Estate
Transactions
06/08/07Juvenile Justice
Action Group
6/23/07MSBA Summer
Meeting, Ethics Jeop-
ardy
6/27/07Somerset County
Bar Association
7/10/07Brown Bag
LuncheonJustice Silver
7/20/07MTLA, First
Annual Presque Isle CLE
07/25/07Maine Attorney
Generals Ofce, Te
Supremes Plus, Legal
Year in Review
9/07/07MSBA, Elder Law
Symposium
9/14/07National Associa-
tion of Legal Professionals
09/26/07DHHS BEAS
Contract Attorneys
09/28/07MSBA, Family Law
Trial Advocacy Conference
09/29/07Probate Judges
Retreat
10/01/07Workers Compen-
sation Summit
10/15/07Maine Prosecutors
Conference
10/18/07John Waldo Ballou
American Inn of Court
10/19/07MTLA, Peace and
War
10/31/07Advanced Training
Roster GAL
11/2/07Waterville Bar Asso-
ciation
11/2/07Pierce Atwood,
Referring Attorneys
11/5/07Franklin County
Bar Association
11/29/07Maine Attorney
Generals Ofce, Unau-
thorized Practice of Law
12/6/07MSBA, Bridging
the Gap
12/11/07Oxford Bar Asso-
ciation
12/12/07York Bar Associa-
tion
If you would like Bar
Counsel to take part in CLE
panel presentations related to
ethical and professional respon-
sibility issues, please call the
Boards ofce at 623-1121.
Commission
Members
as of 12/31/2007
Grievance
Commission
Charles W. Smith, Jr., Esq.,
Chair
John H. Rich, III, Esq., Vice
Chair
David S. Abramson, Esq.
William E. Baghdoyan, Esq.
John R. Bass, II, Esq.
Paul F. Cavanaugh, II, Esq.
Ann M. Courtney, Esq.
Raymond Cota
Martha C. Gaythwaite, Esq.
Christine Holden, Ph.D.
John R. Hutchins
Michael K. Knowles
Maurice A. Libner, Esq.
James A. McKenna, III, Esq.
Marjorie M. Medd
John A. Mitchell, Esq.
David Nyberg, Ph.D.
Victoria Powers, Esq.
Joseph R. Reisert, Ph.D.
Norman A. Ross
Tobi L. Schneider, Esq.
Kathleen A. Schulz
Stephen J. Schwartz, Esq.
Harold L. Stewart, II, Esq.
Nolan Tompson
Benjamin P. Townsend, Esq.
Susannah White
Professional Ethics
Commission
Phillip E. Johnson, Esq., Chair
Rebecca A. Cayford, Esq.
Judson B. Esty-Kendall, Esq.
Terrence D. Garmey, Esq.
Jefrey R. Pidot, Esq.
William D. Robitzek, Esq.
Barbara Schneider, Esq.
Kathryn L. Vezina, Esq.
Fee Arbitration
Commission
Jane S. E. Clayton, Chair
John C. Alfano
John J. Aromando, Esq.
Peter Cliford, Esq.
John B. Cole, Esq.
Gregory P. Dorr, Esq.
Frank Farrington
John W. Geismar, Esq.
Frank Gooding
Matthew S. Goldfarb, Esq.
Stephen W. Hanscom, Esq.
Sandra Hodge
John C. Hunt, Esq.
William D. Johnson
Heidi P. Jordan
Kenneth A. Lexier, Esq.
Sallie Nealand
Michael A. Nelson, Esq.
Tomas P. Peters, Esq.
Steven C. Peterson, Esq.
Paul T. Pierson, Esq.
Dana E. Prescott, Esq.
Melinda Y. Small
Timothy Smith
Gregory A. Tselikis, Esq.
Richard D. Tucker, Esq.
Milton R. Wright
2007 Board Staff
Bar Counsel J. Scott Davis, Esq.
Deputy Bar Counsel Nora
Sosnof, Esq.
Assistant Bar Counsel Aria eee,
Esq.
Administrative Director Jacque-
line M. Rogers
Assistant to Bar Counsel Donna
L. Spillman
Assistant to Deputy Bar Counsel
Ellen Daly
CLE Coordinator Susan E.
Adams
Grievance Commission Clerk/
Fee Arbitration Commission
Secretary Molly E. Tibbetts
Registration Clerk Linda J.
Hapworth
Sustaining and Supporting membership categories permit MSBA mem-
bers to make additional financial commitments to the Maine State Bar
Association. As established by the MSBAs Board of Governors, an individu-
Sustaining and Supporting Members
of the Maine State Bar Association
al Sustaining Membership is $75 in addition to a members regular membership
dues, and an individual Supporting Membership is $50 in addition to a members
regular membership dues. For details, please call MSBA at 1-800-475-7523.
20072008
Sustaining Members:
The Hon. Donald G. Alexander
James K. Archibald
John R. Bass, II
Ronald D. Bourque
M. Ray Bradford, Jr.
James W. Brannan
Nicholas Bull
Richard A. Charest
James F. Day
Joel A. Dearborn, Sr.
Matthew F. Dyer
Lin Fan
Thomas Federle
Alonzo Garcelon
Kristin A. Gustafson
Brian C. Hawkins
Douglas S. Kaplan
Daniel S. Knight
Michael J. Levey
Robert A. Levine
The Hon. Kermit V. Lipez
The Hon. Vincent L. McKusick
The Hon. Andrew M. Mead
Janet E. Michael
Kathleen Mishkin
Christopher K. Munoz
Charles L. Nickerson
Jane Surran Pyne
Mark L. Randall
Robert J. Rufner
James Eastman Smith
Terry N. Snow
Richard S. Sterns
Sheldon J. Tepler
Richard E. Valentino
John Scott Webb
Bruce Whitney
20072008
Supporting Members:
Hope Hall Augustini
Joann Clark Austin
Joseph M. Baldacci
Ellen S. Best
Paul S. Bulger
Bruce A. Carrier
E. Anne Carton
Paula F. Caughey
Teresa M. Cloutier
Philip M. Cofn, III
The Hon. Kevin M. Cuddy
Joel A. Dearborn, Sr.
The Hon. Thomas E. Delahanty II
H. Peter Del Bianco
Daniel R. Donovan
Daniel J. Dubord
Daniel W. Emery
Lin Fan
Edward F. Feibel
Peter C. Gamache
Alonzo Garcelon
Stanley F. Greenberg
David M. Glasser
Jonathan T. Harris
Bruce B. Hochman
Pamela S. Holmes
The Hon. D. Brock Hornby
Philip P. Houle
Kenneth D. Keating
Colleen A. Khoury
Roberta S. Kurilof
John F. Lambert
Thomas V. Laprade
Michael J. Levey
James D. Liddell
Robert S. Linnell
Susan V. Lowery
Robyn G. March
The Hon. Donald H. Marden
Robert A. Marden
John W. McCarthy
C. Leigh McCarthy
Sheilah F. McCarthy
John C. McCurry
Amy B. McGarry
Mary E. McInerny
Christopher P. Mooradian
John E. Nale
Mark J. Nale
William Lewis Neilson
Charles L. Nickerson
James L. Peakes
Elizabeth L. Peoples
Lance Proctor
Samuel K. Rudman
Robert J. Rufner
James J. Shirley
The Hon. Warren M. Silver
James Eastman Smith
Richard S. Sterns
Susan Z. Szwed
Sheldon J. Tepler
Joel C. Vincent
Gary D. Vogel
Nicholas H. Walsh
Sharon D. Ward
N. Laurence Willey, Jr.
Debby L. Willis
Mark A. Woronof
The MSBA ofers grateful thanks to these members, whose additional support makes possible some of
the work of the Association on behalf of the lawyers and residents of our state.
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New England
Bar Association
Annual Meeting.
Save the date:
Oct. 24
Kennebunkport
The Colony Hotel
For details:
Julie Rowe,
207-622-7523
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1 1
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Make plans to join us on September 22, 2008.
Acadia Trust . . . . . . . . . . . . . . . . . . . . . . .133
Allen/Freeman/McDonnell Agency. . . . . . . . . . . 138
ALPS . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Arthur G. Greene. . . . . . . . . . . . . . . . . . . . 183
Bergen & Parkinson . . . . . . . . . . . . . . . . . . .181
Berman & Simmons . . . . . . . . . . . inside front cover
Berry Dunn McNeil & Parker . . . . . . . . . . . . . 126
Bohan, Mathers . . . . . . . . . . . . . . . . . . . . .131
Brown & Burke . . . . . . . . . . . . . . . . . . . . 145
Brown & Meyers . . . . . . . . . . . . . . . . . . 167, 183
Caswell Vlachos Group. . . . . . . . . . . . . . . . . 171
C. L. OBrien Jr. & Associates . . . . . . . . . . . . . 154
Cornerstone Association Management . . . . . . . . . 154
David J. Bourne, M. D.. . . . . . . . . . . . . . . . . 149
Dow Investment Group . . . . . . . . . . . . . . . . 129
Economic & Policy Resources . . . . . . . . . . . . . 149
Edmund & Wheeler, Inc.. . . . . . . . . . . . . . . . 167
Filler & Associates . . . . . . . . . . . . . . . . . . . 144
Guided Decisions. . . . . . . . . . . . . . . . . . . . 183
Guardian Ad Litem Institute . . . . . . . . . . . . . . 187
H. M. Payson & Co. . . . . . . . . . . . . . . . . . . .131
Howard/ofce for rent . . . . . . . . . . . . . . . . . 167
HRH Insurance. . . . . . . . . . . . . . . . . . . . . . 74
James A. Johnson Jr. . . . . . . . . . . . . . . . . . . 144
John C. Sheldon . . . . . . . . . . . . . . . . . . . . 154
Julius E. Ciembroniewicz, M.D. . . . . . . . . . . . . 145
Kelly Remmel & Zimmerman . . . . . . . . . . . . . 139
Joseph Tornton . . . . . . . . . . . . . . . . . . . . 128
Lambert Cofn. . . . . . . . . . . . . . . . . . . 145, 183
Lanham & Blackwell . . . . . . . . . . . . . . . . . . 187
Maine Bar Foundationq . . . . . . . . . . . . . . . . 188
Maine Community Foundation . . . . . . . . . . . . 132
Maria Fox . . . . . . . . . . . . . . . . . . . . . . . 154
Mid-Maine Communications . . . . . . inside back cover
Mittel Asen. . . . . . . . . . . . . . . . . . . . . . . 145
MSBA Continuing Legal Education . . . . . . . . . . 180
NALS of Maine . . . . . . . . . . . . . . . . . . . . 166
Peter Tompson & Associates . . . . . . . . . . . 133, 181
Pine Tree Society . . . . . . . . . . . . . . . . . . . . 128
Pierce Atwood . . . . . . . . . . . . . . . . . . . . . 166
R. M. Davis, Inc. . . . . . . . . . . . . . . . . . . . . 171
Russian Language Services . . . . . . . . . . . . . . . 154
Savatteri Law Firm . . . . . . . . . . . . . . . . . . . 185
Spinnaker Trust. . . . . . . . . . . . . . . . . . . . . 154
Spurwink Services . . . . . . . . . . . . . . . . . . . 167
University of Maine Foundation . . . . . . . . . . . . 130
Tomson West . . . . . . . . . . . . . . . . . .back cover
William E. Howell . . . . . . . . . . . . . . . . . . . 185
Advertiser Index Calendar
july 2831 Cle/ed law Conference University of Maine School
of Law, Portland. 4 credits (on July 31 only). *
august 13 Cle/maine rules of Civil Procedure: rules 5455;
5763 Telephone seminar series. Dial-in time: 10:55
a.m. Program: 11 a.m.noon. 1 credit.
august 22 Cle/Communicating across the Gender Gap: What
lawyers need to know Featuring Steven Stark
and Sarah Wald. Video replay: Black Bear Inn, Orono.
Registration: 8:15 a.m. Program: 8:30 a.m.1 p.m. 4.5
credits, including 3.25 ethics/prof. resp.
august 22 Cle/representing Parents in Cases Where sexual
abuse is an issue: Titles 19-a and 22 Video replay:
Black Bear Inn, Orono. Registration: 8:15 a.m. Program:
8:3011:45 a.m. 3.25 credits; 3.25 GAL credits (reg-
istrants must attend the entire replay to receive GAL
credits; no partial credit will be given)
august 26 Cle/best Practices in ethically attracting new
Clients Video replay: Maine State Bar Association,
Augusta. Registration: 8:30 a.m. Program: 8:4511:45
a.m. 3 ethics/prof. resp. credits.
august 26 Cle/best Practices in Client service Video replay:
Maine State Bar Association, Augusta. Registration:
noon. Program: 12:153:15 p.m. 3 ethics/prof. resp.
credits.
august 26 Cle/maineCare long-Term Care update (2008)
Video replay: Maine State Bar Association, Augusta.
Registration: 8:30 a.m. Program: 8:4511:45 a.m. 3.25
credits, including 0.5 ethics/prof. resp.
august 26 Cle/binding arbitration: nuts and bolts for the
maine litigator (2006) Video replay: Maine State
Bar Association, Augusta. Registration: noon. Program:
12:153:30 p.m. 3.25 credits, including 0.5 ethics/prof.
resp.
august 27 Cle/environmental Permitting in maine: Traps for
the unwary Video replay: Maine State Bar Association,
Augusta. Registration: 8:30 a.m. Program: 8:45 a.m.
12:45 p.m. 4 credits.
august 28 Cle/Family law Trial advocacy (2007) Video replay:
Maine State Bar Association, Augusta. Registration: 8:30
a.m. Program: 8:45 a.m.12:10 p.m. 3 credits, including
0.5 ethics/prof. resp.; 3 GAL credits (registrants must
attend the entire replay to receive GAL credits).
sept. 10 Cle/maine rules of Civil Procedure, rules 6471
Telephone seminar series. Dial-in time: 10:55 a.m.
Program: 11 a.m.noon. 1 credit.
sept. 11 Cle/business litigation/business reorganization:
state and Federal Courts address maine business
issues Hilton Garden Inn, Freeport. Registration: 8:15
a.m. Program: 8:45 a.m.4 p.m. 5.75 credits.
sept. 17 Cle/Debtors/Creditors rights: How to Help your
Client short of bankruptcy (York Bar Association).
Holiday Inn Express, Saco. Registration: 3:45 p.m.
Program: 46 p.m. 2 credits.
sept. 24 Cle/residential subdivisions and land Development
in maine Hilton Garden Inn, Freeport, and live web-
cast. Hotel registration: 9 a.m. Webcast log-in: 8:50 a.m.
Program: 9:30 a.m.12:45 p.m. 3 credits.
sept. 24 Cle/residential subdivisions and land Development
in maine Live webcast. Log-in: 8:50 a.m. Program:
9:30 a.m.12:45 p.m. 3 credits.
sept. 2627 Cle/litigation institute Augusta Civic Center,
Augusta. Registration: TBA. Program: TBA. Credits TBA.
Please visit www.mainebar.org for the most current CLE schedule.
WI NT ER 2008 MAI NE BAR J OURNAL C3
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