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California Court Holds Guardian Ad Litem Immune From Malpractice Suit

McClintock v. West, Cal: Court of Appeal, 4th Appellate Dist., 3rd Div. 2013 – Google Scholar.

The Illinois courts have held that a guardian ad litem is immune from a lawsuit from one of the parties. A guardian ad litem is a lawyer appointed by the court in a family law case usually to protect the interests of a minor child. Family law litigants often become frustrated with the guardian ad litem. Here the frustrations mounted after the guardian submitted a fee petition.

This case is unusual in that the guardian was appointed to protect the interests of the plaintiff husband, who was suffering from extreme depression. Here, the plaintiff’s causes of action of negligence, fraud and legal malpractice were dismissed on the ground that the guardian ad litem was immune from suit. The court held that the negligence and fraud causes of action were barred by quasi-judicial immunity.

The question, under Howard, is whether a guardian ad litem fulfills a function that is “`intimately related to the judicial process'” (Howard, supra, 222 Cal.App.3d at p. 857), and the answer to that question is yes. As we discussed ante, the guardian ad litem’s role is that of a court-appointed officer, who, under the appointment of and under the supervision of the trial court, must act in her ward’s best interests. That is indeed a function intimately related, and indeed, one which the trial court found in this case was indispensible to bringing the case to a conclusion.

Further, the policy considerations raised in Howard apply here — indeed, this case could be a poster child for such considerations. If West had known she might be subject to liability for causes of action ranging from negligence to intentional interference with prospective economic advantage, resulting in the potential for years of litigation and financial liability greater than her entire fee for handling the case, would she have ever agreed to the appointment? Why would any qualified person ever accept appointment as a guardian ad litem when his or her decisions could be subject to such post hoc second guessing?”

The legal malpractice claim was barred because there was no attorney-client relationship between the plaintiff and the guardian ad litem. The guardian ad litem was not plaintiff’s attorney in the divorce. The guardian was appointed by the court to allow the case to continue while husband was undergoing treatment for depression.

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