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MD: No Malpractice Immunity for Court Appointed Guardians

Fox v. Willis, 390 Md. 620, 890 A.2d 726 (2006)

MD: Underlying Divorce Proceeding

Student Contributor: Vanessa L. Wachira

Facts: Katherine Fox (“Client”) is a minor child whose parents were divorced pursuant to a judgment entered by the Circuit Court for Montgomery County. In the subsequent proceedings to determine custody and visitation, the court appointed Vincent Wills (“Attorney”) as Client’s guardian (in accordance with Maryland Code § 9-109 of the Courts and Judicial Proceedings Article) and counsel (in accordance with § 1-202 of the Family Law Article). On behalf of Client, Client’s mother brought action for legal malpractice against Attorney in the Circuit Court alleging that Attorney negligently represented Client, abdicated his responsibilities as counsel for the child, was in fact an advocate for the child’s father who was suspected of sexually abusing Client, and breached his duties as counsel by improperly allowing his friendship with the child’s father to influence his judgment regarding the child’s best interest. At trial, Attorney argued that, because of his position as counsel for the child under § 1-202, he was entitled to “judicial immunity” and that he was functioning on behalf of and for the benefit of the court.

Issue: Whether a minor’s statutorily appointed attorney is entitled to immunity from tort liability while acting in his capacity under the statute?

Ruling: An attorney appointed under § 1-202 of the Family Law Article has no immunity from tort liability with respect to legal malpractice suit filed against him by a third party on behalf of a minor child. Although an attorney appointed under the statute is appointed by the court, “neither language nor history of [the] statute” suggests that he owes his principal duty of allegiance to court rather than the minor child. To rely, as the lower courts did in this case, “on the notion that an appointed guardian functions ‘as an agent or arm of the court, to which it owes its principal duty of allegiance, and not strictly as legal counsel to a child client’” is to ignore the fact that the sole function of counsel appointed under Section 1-202 is “to represent the minor child.”
Furthermore, under common law, “[a] guardian is “liable to his ward for such damages as may result from any culpable omission or neglect on his part.” Speck v. Speck, 42 Ga.App. 517, 156 S.E. 706, 707 (1931). Inhabitants of Maryland are entitled to the Common Law under Article 5 of the Maryland Declaration of Rights. Although common law can be altered by statute or decision of Maryland’s highest court, no statute or decision have granted tort-immunity to attorneys appointed pursuant to § 1-202 of the Family Law Article. Accordingly, attorneys appointed under the statute have no immunity from malpractice suits

Lesson: Like retained counsel, guardians appointed by the court have legal responsibilities to their clients. Violations of these duties amount to malpractice for which the Court will not grant immunity. 

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Posted in: Family Law, Maryland