COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Chafin and AtLee Argued at Lexington, Virginia

FRANCES LYNCH MEMORANDUM OPINION * BY v. Record No. 1437-18-3 JUDGE RICHARD Y. ATLEE, JR. JUNE 11, 2019 BEDFORD COUNTY DEPARTMENT OF SOCIAL SERVICES AND VIRGINIA DEPARTMENT OF MEDICAL ASSISTANCE SERVICES

FROM THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr., Judge Kathleen C. Morris (sb2 in c., on briefs), for appellant. Michelle A. L’Hommedieu, Assistan t Attorney General (Mark R. Herring, Attorney General; Cynthi a V. Bailey, De puty Attorney General; Kim F. Piner, Senior A ssistant Attorney General/Sectio n Chief; on brief), for appellee Virg inia Department of Medical Assistance Services. No brief or argument for appellee Bedford County Department o f Social Services.

Appellant Frances Lynch 1 challenges the Circuit Court of Bedford County’s ruling that Lynch’s Medicaid Authorized Rep resentative, Oakwood Health and Rehabilitation Center (“Oakwood”), did not have standing t o appeal the Department of Medical Assistance Services’ (“DMAS’s”) administrative deci sion to the circuit court. For t he following reasons, we affirm.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Lynch granted her son, Clyde L ynch, power of attorney, and he acted on her behalf during the course of agency proceedings and subsequent litigati on.UNPUBLISHED- 2 - I. B ACKGROUND On appeal, we view the evidence in the light most favorable to the appellees, who prevailed before the circuit co urt. Surles v. Mayer, 48 Va. Ap p. 146, 156 (2006). So viewed, the

evidence is as follows. Lynch is a resident at Oakwood, w hich provides her with full t ime medical care and assistance. She applied for Me dicaid coverage and appointed Oa kwood as her Medicaid Authorized Representative. The Bedford County Department of So cial Services (“DSS”) denied Lynch’s application for Medic aid coverage. Lynch, through Oakw ood, appealed DSS’s decision to DMAS, which affirmed. Lynch th en appealed DMAS’s ruling to the circuit court. It is undisputed that Lynch was the s ole appellant throughout the pro ceedings. DMAS filed a plea in bar requesting that the circuit court dismiss the case for lack of standing because counsel from sb2 represented Oakwood, not Lync h, and Oakwood was not a named party. The circuit court granted the plea in b ar and dismissed the case, noting that “th is appeal was not duly perfected by Lynch or by counsel on her behalf.” This appeal followed.

II. A NALYSIS The parties raise a number of arguments concerning how this Co urt ought to interpret 42 CFR § 435.923 2 with regard to legal proceedings following agency (in this cas e, DSS and

2 In pertinent part, this section outlines the procedure for des ignating, and the responsibilities or powers of, an a uthorized representative. I t allows “applicants and beneficiaries to designate an i ndividual or organization to act responsibly on their behalf in assisting with the individual’s application and renewal of elig ibility and other ongoing communications with the age ncy.” 42 CFR § 435.923(a)(1). Unde r this section, [a]pplicants and beneficiaries ma y authorize their representati ves to— (1) Sign an application on t he applicant’s behalf; (2) Complete and submit a renewal form; (3) Receive copies of the applic ant or beneficiary’s notices an d other communications from the agency; (4) Act on behalf of the applican t or beneficiary in all other matters with the agency.- 3 - DMAS) review. Because we find that the pleadings before the ci rcuit court were not signed by either Lynch or an attorney rep resenting her as required under Virginia law, the appeal of the agency decision to the circuit court was not perfected. Thus, we rule solely on those grounds and

decline to construe the federal regulation’s app lication to an authorized representative’s authority in judicial proceedings subsequent to the agency’s review. See Sanders v. Commonwealth, 64 Va. App. 734, 742 n.3 (2015) (“An appella te court decides cases on the best and narrowest ground.” (quoting Luginbyhl v. C ommonwealth, 48 Va. App. 58, 64 (2006) ( en banc ))).

A. Signature Requirements for Pleadings in Virginia Code § 8.01-271.1 3 and Rule 1:4(c) 4 require either a litigant, if pro se , or her Virginia-admitted attorney to sign documents in judicial procee dings. Here, all of Lynch’s pleadings were signed by an atto rney from sb2, who before both the trial court and this Court explained that they rep resented Oakwood, not Lynch.

In Richmond Ass’n of Credit Men v. Bar Ass’n of City of Richmon d, 167 Va. 327 (1937), the Supreme Court addre ssed an analogous set of facts i nvolving vicarious

42 CFR § 435.923(b). Lynch argues that this regulation permits counsel retained by an authorized representative to a ppear on behalf of the Medicare a pplicant in court proceedings despite there being no direct atto rney-client relationship betw een counsel and the applicant. Absent more explicit language, we cannot say that this regulato ry language creates a fiduciary relationship with the broad scope appellant contemplates. We a lso disagree that this federal regulation, as written, serves t o supersede or modify establish ed rules of pleadi ng and practice in Virginia.

3 With some exceptions that are in applicable here, “every pleadi ng, written motion, and other paper of a party represent ed by an attorney shall be sign ed by at least one attorney of record in his individual nam e . . . . A party who is not repre sented by an attorney . . . shall sign his pleading, motion, or other paper . . . .” Code § 8.01-271. 1.

4 “Counsel or an unrepresented part y who files a pleading shall sign it and state his address.” Rule 1:4(c); see also Rule 1:5.- 4 - representation. It found that a credit union was engaged in th e unauthorized practice of law 5 when it retained attorneys to l itigate claims on behalf of its members while maintaining control over those attorneys. Id. at334. The Court did not agree wit h the credit union’ s assertion that it was merely acting as an “interme diary” for those members, as no attorney-client relationship existed between the named litigants (the members) and the attor neys signing pleadings and purportedly appearing on their behalf. Id. The Court noted th at the credit uni on selected the attorneys, the members did not c ommunicate with or supervise th eir purported legal counsel, and

the credit union retained contro l over the attorneys’ compensat ion and employment. Id. at 336-38. The Court held that “[a] lawyer’s relation to his clie nt should be personal, and the responsibility should be direct to the client. Charitable soci eties rendering aid t o the indigent are

not deemed such intermediaries. ” Id. at 339 (quoting Va. State Bar Ass’n Reports (1935), volume XLVII, page 350). This requ irement of a direct relation ship between attorn eys and their

clients is further reflected in t he Virginia Bar’s Rules of Pro fessional Conduct, which notes that although a third party may fund litigation, there may be “no in terference with the . . . client-lawyer relationship . . . .” Rules of Professional Cond uct Rule 1.8(f)(2).

B. Evidence of Lynch’s Relationship to Counsel

The circuit court here concluded t hat the appeal from the DMAS decision was not perfected because the pleadings were not signed by Lynch “or by counsel on her behalf.” Although there are some ambiguities in the record (specifically from appellant counsel’s

5 Although it does not on its face seem like the “unauthorized p ractice of law” as the phrase is colloquially used, give n that the pleadings were sign ed by counsel admitted to practice in Virginia, the crux of the issu e is that counsel, as we see b oth here and in Richmond Ass’n of Credit Men, did not represent the aggrieved party named in the suit.- 5 - attempts to backtrack after DMA S challenged their standing in t he proceeding), this finding is supported by the evidence. 6 Although it is not dispositive, we note that no engagement lett er exists establishing an attorney-client relationshi p between Lynch and sb2. This is co nsistent with counsel’s repeated explanations at trial and before this Court that Oakwood retain ed sb2 to represent it in its capacity as authorized representative for Lynch. 7 Before the circuit court, counsel explained that “Oakwood, acting as the duly appoint ed authorized representativ e, retained our firm to represent Ms. Lynch’s interest.” At anot her point, counsel stated “I’m a n attorney for, um, for Oakwood as their authorized representa tive for Frances Lynch.” Finally , on the final order fr om the circuit court, counsel noted her objecti ons and made numerous edits to the signature block, 8 but

nevertheless declined to correct the signature bl ock’s descript ion of her as “Counsel for

Oakwood Health and Rehabilitation.” Moreover, considering the factors discussed in Richmond Ass’n of Credit Men, we conclude t hat the evidence suggests tha t Oakwood, not Lynch, retained primary control and authority over sb2’s actions during litigat ion. Without an attorney-client rel ationship between Lynch and sb2, counsel owes no ethical or fiduciary relationship t o Lynch. The fact that Oakwood was acting as Lynch’s authorized representative under federal Me dicaid regulations does not supp lant or erode the requirement that

6 Even on appeal to this Court, couns el made it clear that sb2 r epresented Oakwood, not Lynch. Named counsel signed appella nt’s brief to this Court as “Counsel for Appellant Oakwood, A/R for Lynch.” Furthermo re, at oral argument, this C ourt inquired: “You represent Oakwood in its capacity as authoriz ed representative for France s Lynch, is that correct?” Counsel responded “Absolutely.”

7 At oral argument, counsel noted t hat the structure and terms o f their firm’s engagement accommodates the fact that, frequently, those individuals requi ring the assistance of an authorized representative are unable to adequately communicate with counsel, travel for meetings, etc. Yet that explanat ion does not erase the need fo r an attorney-client relationship between a named litigant and counsel signing pleadings ostensib ly on her behalf.

8 A different attorney from sb2 r epresented Oakwood earlier in t he litigation.- 6 - there must be an attorney-client relationship between the litig ant, in this case Lynch, and counsel appearing and signing pleadings on her behalf. Here, counsel’s ethical duty is to Oakwood, not Lynch, and Oakwood is not a named pa rty to this matter. These repeated representations and acknowledgements that sb2 rep resents Oakwood, not Lynch, requir e us to conclude that the pleadings failed to satisfy t he requirements under Code § 8.01- 271.1 and the Rules, having not been signed either by Lynch or a n attorney representing her. A ccordingly, the circuit court did not err in concluding that sb2 di d not represent Lynch and that , accordingly, the pleadings before

the circuit court di d not satisfy the signature requirements un der Virginia law.

III. C ONCLUSION The circuit court di d not err in finding t hat Lynch had not per fected her appeal because neither she nor her attorney signed any pleadings submitted to the circuit court. Accordingly, we

affirm.

Affirmed.