Fox v. Wills

ELDRIDGE, J. We issued a writ of certiorari in this case to determine whether counsel, appointed for a minor pursuant to Maryland Code (1984, 2004 RepLVol.), § 1-202 of the Family Law Article, is entitled to immunity from tort liability while acting in his capacity under the statute. 1 I. Petitioner, Katherine Fox, is a minor child whose parents were divorced pursuant to a judgment entered by the Circuit Court for Montgomery County. Respondent, Vincent Wills, an attorney, was initially appointed by the Circuit Court as Katherine’s “guardian,” in accordance with Maryland Code (1974, 2002 Repl. Vol.), § 9-109(c) of the Courts and Judicial Proceedings Article, for the sole purpose of deciding whether ⁶²² Katherine should waive her patient-psychiatrist privilege. 2 Subsequently, Wills was appointed counsel for Katherine pursuant to § 1-202 of the Family Law Article. Following judgment in the divorce case, Elizabeth Ritter, the child’s mother, on behalf of Katherine, filed in the Circuit Court for Montgomery County a legal malpractice action against Wills.

The complaint asserted that Wills was negligent in his representation of Katherine while functioning as her “guardian ad litem.” 3 It was alleged that Wills abdicated his responsibilities as counsel for the child, that he did not act in accordance with Katherine’s best interests, and that he was in fact an advocate for the child’s father who was suspected of sexually abusing Katherine. The complaint further alleged that Wills ignored the trial court’s orders in that he failed to ensure that the child’s father was supervised during visitation, that he failed to ensure that Katherine was placed in a car ⁶²³ seat when transported during visitations, that he failed to address the issue of the father’s inappropriate touching of Katherine, and that he failed to address the numerous reports of the father’s inappropriate exhibitions of anger in front of Katherine. The complaint also alleged that Wills deliberately prevented evidence of child sexual abuse from coming before the court by suppressing and distorting the report of a psychological expert appointed by the court to evaluate the claims of abuse, which report advised against unsupervised visitation between the child and her father. The complaint made several allegations that Wills 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.

Wills filed a motion to dismiss the complaint, arguing that, because of his position as counsel for the child under § 1-202, he was entitled to “absolute quasi-judicial immunity.” He contended that he was functioning on behalf of and for the benefit of the court. Alternatively, Wills argued that, even if he were not entitled to “absolute quasi-judicial immunity,” he was entitled to “qualified immunity,” and that the allegations of the complaint were insufficient to show the malice needed to overcome qualified immunity. In response, the plaintiff argued that Wills was not acting on behalf of and for the benefit of the court, but was acting as the attorney for Katherine. The plaintiff contended that Wills was neither entitled to “absolute quasi-judicial” immunity nor entitled to qualified immunity.

The Circuit Court granted the motion to dismiss, stating “that there is clearly privilege here or immunity, whether it is qualified or quasi-judicial.” 4 The plaintiff appealed, and the Court of Special Appeals affirmed, Fox v. Wills, 151 Md.App. 31 , 822 A.2d 1289 (2003). ⁶²⁴ Like the Circuit Court, the Court of Special Appeals did not decide whether counsel appointed under § 1-202 “enjoys absolute judicial immunity ... [or] qualified immunity,” because, in the court’s view, the complaint did not allege “malice.” Fox v. Wills, supra, 151 Md.App. at 42 and n. 10, 822 A.2d at 1296 and n. 10. Relying on some prior Court of Special Appeals’ opinions, as well as authority from other jurisdictions, the Court of Special Appeals reasoned that counsel appointed pursuant to § 1-202 does not function “‘strictly as legal counsel to a child client,’ ” acts principally as an arm of the court, is “performing judicial functions,” and thus enjoys “at least qualified immunity,” Fox v. Wills, 151 Md.App. at 40, 42, 44 , 822 A.2d at 1294-1296 . The Court of Special Appeals explained ( 151 Md.App. at 41 , 822 A.2d at 1295 , footnote omitted): “Negligently reporting to the court and making a recommendation that is not in the child’s best interest, not speaking to the child’s therapist when there are allegations of abuse, or choosing not to bring the therapist’s concerns to the court, could be characterized as negligent and even reckless actions in some instances. The attorney, as guardian ad litem, acts mainly as an arm of the court and performs judicial functions in these situations, however, and enjoys immunity in the performance of those judicial functions, even if he acted negligently.” The plaintiff filed in this Court a petition for a writ of certiorari, presenting the questions of whether Wills was entitled to “immunity from a malpractice suit” and, if he were entitled to qualified immunity, whether the factual allegations of the complaint were sufficient to set forth malice.

We granted the petition, Fox v. Wills, 376 Md. 139 , 829 A.2d 530 (2003), and we shall reverse. Because we shall hold that an attorney appointed pursuant to § 1-202 of the Family Law Article is not entitled to any type of immunity from a malpractice suit, we shall not decide whether the complaint was sufficient to allege malice. ⁶²⁵ II. As pointed out above, the holding by the Court of Special Appeals, granting immunity to counsel appointed under § 1-202 of the Family Law Article, was based upon that court’s view that such attorney is not primarily an advocate for the child, but acts principally as an arm of the court and performs judicial functions. The Court of Special Appeals first adopted this position by dicta in Leary v. Leary, 97 Md.App. 26, 39-48 , 627 A.2d 30, 36-41 (1993), which equated a § 1-202 counsel with a “guardian ad litem ” as such “guardian” is viewed in various out-of-state authorities.

See also Auclair v. Auclair, 127 Md.App. 1, 17 , 730 A.2d 1260, 1268 (1999) (“In custody matters, the guardian ad litem has traditionally been viewed as functioning 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”); In re Sonny E. Lee, 132 Md.App. 696, 718-720 , 754 A.2d 426, 438-440 (2000). The Court of Special Appeals’ view of a § 1-202 counsel was not grounded on the language of the statute, or on its history, or on any prior opinions by the Court of Appeals. Instead, to reiterate, the view set forth in Leary v. Leary, supra, 97 Md.App. 26 , 627 A.2d 30 , and its progeny, appears to have been based on non-Maryland statutes, cases, and articles dealing with the nature, powers, and duties of “guardians ad litem” elsewhere. In light of this, it would be useful to review some of the background in Maryland concerning “guardians ad litem ” and counsel appointed for minors, and to contrast the development of the law in this State with that in some other jurisdictions.

A. Preliminarily, it is noteworthy that the term “guardian ad litem ” has been rarely used by the Maryland General Assembly or by this Court. When the term has been used by the General Assembly or by this Court, it usually has been synonymous with “next friend” or “prochein ami,” which is one who brings suit on behalf of a minor or disabled person ⁶²⁶ because the minor or disabled person lacks capacity to sue in his or her own right, or synonymous with one who defends a suit against a minor or disabled person lacking the capacity to defend. This is in sharp contrast with the use of the term in some other jurisdictions where statutes or case law provide for the appointment of “guardians ad litem ” and set forth the powers, functions, and duties of such persons. The first mention of a “guardian ad litem” by this Court appears to have been in Davis v. Jacquin & Pomerait, 5 H. & J. 100, 110 (1820), where the Court rejected the argument that an infant must sue by his or her guardian, pointing out that the law was changed by statute enacted in 1285: “By the common law, infants were obliged to sue by guardian; but they were enabled by the Statute of Westminster the 2d, to sue by prochein amy; and the guardians of the person, and guardians ad litem, are essentially different in their creation and powers.

The power of appointing the latter is incident to all Courts, and they are admitted by the Court for the particular suit, on the infant’s personal appearance, without inquiring whether the person admitted is the guardian of the person of the plaintiff.” Most of the opinions by this Court dealing with the subject use the terms “prochein ami ” or “next friend” rather than the term “guardian ad litem.” Moreover, the opinions by this Court make it clear that such an individual’s sole function is to represent properly the interests of the minor, and that the court’s function is to remove the individual if he or she is not properly representing the minor. The opinions do not indicate that a “prochein ami ” or “next friend” or “guardian ad litem” performs any function for the court that could be described as “judicial” or “quasi-judicial.” Thus, in Reichard v. Izer, 95 Md. 451, 466-467 , 52 A. 592, 595 (1902), Judge Andrew Hunter Boyd for the Court pointed out that the “next friend” or “prochein ami ” or “guardian ad litem ” “is always subject to the control of the Court for the protection of the infant. If this were not so any one might ⁶²⁷ involve an infant in litigation by making himself his next friend. The Court has power to revoke his authority, remove him and if it be necessary to appoint another in his place.

Deford v. State, 30 Md. 199 ; 14 Ency. of PL and Pr., 1041. The Orphans Court can remove a next friend and appoint another in his place in order to let the first one testify in behalf of the infant, upon the costs already incurred being secured, and it is error not to do so. Mills v. Humes’ Executors, 22 Md. 346. And it would seem that they can undoubtedly remove one if they believe it to be to the interest of the infant.

In this case it was the duty of the Orphans’ Court to inquire into the application of the infant, who is nineteen years of age, and if they found that the next friend was not acting for the interest of the infant, or was acting in the interest of the other parties, to remove him.” See also, e.g., Trahern v. Colburn, 63 Md. 99, 104 , 1885 WL 3238 (1885) (A “prochein ami” is “specially appointed by [the court] to look after the interests of the party in whose behalf he acts ..., and it is competent for the court to revoke his authority and remove him, and, if necessary, appoint another in his place”); Wainwright v. Wilkinson, 62 Md. 146, 147-149 (1884) (“The prochein ami was the only person who was authorized to prosecute the suit. She is responsible for costs, and is charged with the duty of employing an attorney, and protecting the interest of the infant. * * * It is in the power of the court to remove the prochein ami, but while she sustains such relation, she must have the entire control of the conduct of the suit”); B. & O.R.R. Co. v. Fitzpatrick, 36 Md. 61 .9, 624-625 (1872) (same); Deford v. State, Use of Keyser, 30 Md. 179, 190 (1869) (A prochein ami “stands very much in the relation of an attorney to the case, and ... it is competent at any time for the court to revoke his authority and remove him, and if it be necessary, to appoint another in his place”); Baltimore v. Norman, 4 Md. 352, 358-361 (1853) (A minor, by a prochein ami, can maintain a tort action based on a conversion of the minor’s property by an earlier guardian). More recently, Judge Karwacki for this Court in Berrain v. Katzen, 331 Md. 693 , 629 A.2d 707 (1993), reviewed the history ⁶²⁸ of the concept of “prochein ami ” or “next friend” or “guardian ad litem.” In Berrain , the mother of three minor children, acting as next friend, sued their landlord for alleged injuries caused to her children because of their ingestion of lead paint in the rental home. Early in the case, the mother had failed to respond to interrogatories propounded by the defendant, and the circuit court entered a default judgment.

This Court held that such a sanction was an abuse of discretion on the part of the trial judge because a special duty is owed by the court to protect the rights of minors who are represented by next friend. In so holding, the Court explained ( 331 Md. at 701-702 , 629 A.2d at 710-711 ): “The function of the next friend, or prochein ami 6 , has its genesis in ancient English statutory law. The first statute permitting a next friend to sue on behalf of infants was promulgated by Parliament as 3 Edw. 1 , Cap. 48 (1 Westminster 8) in 1275 and was limited to those cases where the guardian had acted to bar his ward’s cause of action. In 1285, Parliament extended the right of a next friend to sue on behalf of an infant to all actions by 13 Edw. 1 , Cap. 15 (2 Westminster 15).

As was explained in J.H. Thomas’s arrangement of Lord Coke’s First Institute:” “At common law, infants could neither sue nor defend, except by guardian; by whom was meant, not the guardian of the infant’s person and estate, but either one admitted by the court for the particular suit on the infants’ personal appearance, or appointed for suits in general by the king’s letters patent. But this rule was found inconvenient, it sometimes happening, that an infant was secreted by those having legal custody of him, ⁶²⁹ and so prevented from applying to have a guardian ad litem appointed. Hence was seen the necessity of permitting any persons to litigate for the infant’s benefit, who should be disposed to risk the expense. On this principle the Statute of Westminster the first enables any one to sue as prochein amy for any infant in an assize, where the infant himself is essoigned by his guardian, or otherwise disturbed from suing the assize.

The statute of Westminster the second extended this provision by permitting the Prochein amy to sue in all actions; and though in this statute, as well as in the former, eloignment of the infant was mentioned, yet by construction it is not deemed necessary, but the prochein amy may sue, whether that circumstance occurs or not, it being considered merely as an instance of the necessity of the case, and as such only taken notice of by those who framed the statute.” “J. H. Thomas, Lord Coke’s First Institute of the Laws of England 199 n. 29 (1827).” “13 Edw. 1, Cap. 15 was one of the ‘statutes found applicable and proper to be incorporated’ into the laws of Maryland when the first Maryland Constitution was adopted in 1776. Art. 5 Declaration of Rights (1776); Kilty’s English Statutes To Be In Effect In Maryland 212 (1811). See also 1 John P. Poe, Pleading and Practice in Courts of Cowmen Law, § 313 (Herbert T. Tiffany ed., 5th ed.1925); Ward B. Coe, Alexander’s British Statutes in Force in Maryland, 158-61 (2d ed.1912).” The Court in Berrain, 331 Md. at 703-704 , 629 A.2d at 711-712 , went on to emphasize that the prochein am,i “‘stands very much in the relation of an attorney to the case,’ ” that the prochein ami acts “ ‘for the benefit of infants,’ ” that his or her “duty” is owed to the minor, and that the court’s function is “in overseeing the exercise of that duty.” The Maryland common law function of a “prochein ami” or “next friend” or “guardian ad, litem” is today embodied in Maryland Rule 2-202, which provides in pertinent part as follows: ⁶³⁰ “Rule 2-202. Capacity.

(a) Generally. Applicable substantive law governs the capacity to sue or be sued of an individual, a corporation, a person acting in a representative capacity, an association, or any other entity. (b) Suits by individuals under disability. An individual under disability to sue may sue by a guardian or other like fiduciary or, if none, by next friend, subject to any order of court for the protection of the individual under disability.

When a minor is in the sole custody of one of its parents, that parent has the exclusive right to sue on behalf of the minor for a period of one year following the accrual of the cause of action, and if the custodial parent fails to institute suit within the one year period, any person interested in the minor shall have the right to institute suit on behalf of the minor as next friend upon first mailing notice to the last known address of the custodial parent. * * * (d) Suits against individuals under disability. In a suit against an individual under disability, the guardian or other like fiduciary, if any, shall defend the action. The court shall order any guardian or other fiduciary in its jurisdiction who fails to comply with this section to defend the individual as required. If there is no such guardian or other fiduciary, the court shall appoint an attorney to represent and defend the individual.” On the other hand, § 1-202 of the Family Law Article, which furnished the basis for Wills’s appointment in the case at bar, appears to have no historical linkage to the concept of “guardian ad litem ” as occasionally used in Maryland law.

B. Numerous states, unlike Maryland, have statutes providing for the appointment of “guardians ad litem,” although there is little uniformity in the case law and statutes of other states with regard to the functions, duties, and immunities of “guard ⁶³¹ ians ad litem.” Compare, for example, Michigan Compiled Laws 712A.13a(l)(b), 712A.17d(l) (stating that an attorney in child protection proceedings serves as the legal advocate for the child under the “traditional attorney-client relationship” and shall act pursuant to those obligations and the rules of professional conduct), with Arizona Revised Statutes Annotated, Children, § 8-522 (requiring that a “special advocate” be appointed as “guardian ad litem ” to protect the child’s best interest on behalf of the court, defining the duties of guardians ad litem, and granting guardians ad litem civil and criminal immunity for actions taken in good faith, within the scope of those duties). The functions of such individuals can cause confusion because, as pointed out in several articles, they are sometimes seen as performing conflicting roles under the statutes that empower them. See, e.g., Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes