In this Order of protection case, the Law Guardian was relieved and new counsel assigned to represent the child’s interests. Respondent mother’s counsel asserts that during the fact-finding hearing, while the caseworker for the Administration for Children’s Services was testifying, the Law Guardian read a People/Us magazine under her desk and text messages on her cell phone. A New York Family Lawyer said that in addition, counsel for respondent mother notes that the Law Guardian asked the caseworker no questions during cross-examination. According to counsel for respondent mother, “the last straw” was during an off-the-record bench conference, when the Law Guardian stated her support for the agency’s position. At that point, counsel contends that he became very upset, because the Law Guardian appeared to fail to pay attention to the testimony during the trial, yet took a position against his client.
A New York Child Custody Lawyer said that the motion is opposed by the Law Guardian. She emphatically denies that she was reading a magazine, although she admits that there was one on her desk. She also denies that she was reading text messages asserting, “there is no cell phone service in the court.” The Law Guardian asserts that she has diligently represented her now five-year-old client’s interests. Specifically, she asserts that she met with her client twice, conducted an extensive and thorough investigation and made a determination to advocate for a resolution that she believed to be in the child’s best interests. She asserts that although she did not wish to cross-examine the caseworker, she was paying very close attention and is knowledgeable about all of the facts and circumstances at issue in this case.
Counsel for respondent maternal great-grandmother has submitted an affirmation which essentially supports the observations of respondent mother’s counsel about the Law Guardian’s actions, although he takes no position in support of, or opposition to, the motion. A Nassau County Family Lawyer said after having carefully considered the papers submitted, the Court finds the affirmation submitted by respondent mother’s counsel devoid of viable evidence indicating any bias on the part of the Law Guardian, ineffective assistance of counsel, failure to diligently represent the child’s interests or other recognized grounds for disqualification. The motion is denied.
It is well-settled in this and other states, that a Law Guardian appointed having custody of the child and represent the best interests of the child or a guardian ad litem enjoys quasi-judicial immunity from parents’ claims regarding conduct relating to the performance of their duties.
In a case, the Appellate Division, Fourth Department held that the mother lacked standing to bring a legal malpractice claim on behalf of the child against the court-appointed Law Guardian since she had her own adversarial interests in the action and had a motive to dispute the Law Guardian’s opinion. In addition, the Court held that the mother lacked standing to bring the action individually since she was a third party who was not in privity with the Law Guardian. Absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by alleged professional negligence. The Court stated that the mother had not demonstrated a “relationship so close as to approach that of privity” as to allow her to maintain the action on her own behalf. The Appellate Division looked to decisions in other states and found that most courts that have considered suits by disgruntled parents against attorneys appointed by courts to protect children have granted, on public policy grounds, absolute quasi-judicial immunity to the attorneys for actions taken within the scope of their appointments. The Court explained that quasi-judicial immunity is necessary because exposure of Law Guardians to liability under such circumstances would affect the willingness of qualified attorneys to accept such appointments. “That disincentive is against public policy and should be eliminated”. The Court stated that “from a public policy perspective, it is better to have a diligent, unbiased, and objective advocate to assist the court in determining and protecting the best interests of the child than it is to assure that the minor child may later recover damages in tort”.
Similarly, in another case, the Supreme Court held that a Law Guardian enjoys quasi-judicial immunity from civil liability in actions brought by a parent for conduct directly relating to the performance of the Law Guardian’s duty to further the best interests of the child. The Court explained that a Law Guardian must be able to function free from the threat of harassment from retaliatory litigation brought by dissatisfied parents in his custody duties. The threat of civil liability for conduct directly relating to the performance of the Law Guardian’s duties should not be available to inhibit the Law Guardian from necessary investigation and advocacy on behalf of the child.
A Staten Island Family Lawyer said that although the Law Guardian enjoys immunity from civil liability, such immunity does not protect her from responsibility for violations of the Code of Professional Responsibility. Nevertheless, the public policy considerations that preclude suits based on civil liability are also relevant where, as here, a dissatisfied parent or her attorney seeks to replace a Law Guardian based on speculative and unsubstantiated claims concerning the quality of the Law Guardian’s representation.
The Law Guardian cannot be required to satisfy expectations or standards of performance laid down for her by counsel for respondent mother. His motives are dictated by his obligation to represent his client, with her own interests, which do not necessarily coincide with the interests of the child. A rule that would make a Law Guardian answerable to parent’s attorney for the manner of her representation, would affect the willingness of qualified attorneys to accept appointments, inhibit the Law Guardian from necessary investigation and advocacy on behalf of the child and punish her for taking a position adverse to the parent. That disincentive is against public policy and should be eliminated.
While it is the view of this Court that issues regarding the quality of Law Guardian representation are not properly raised by a parent’s attorney, such claims must be considered once they have been made. Here, counsel for respondent mother asserts that the Law Guardian should be removed for two reasons. First, although not clearly articulated, counsel suggests that the Law Guardian unfairly prejudged respondent mother by taking “a position against her” without “paying attention to the testimony during the trial.” Second, counsel asserts that the Law Guardian failed to diligently represent the child’s interests by reading a magazine and text messages during the trial. Finding no credible factual basis to support either assertion, the motion for disqualification must be denied.
The role of a Law Guardian, assigned to represent a child too young to make considered judgments, is to be an advocate for the best interests of the child, not the parents. Accordingly, the fact that the Law Guardian disagrees with the position advanced by counsel for respondent mother and supports a finding of neglect, does not suggest that removal is warranted.
Although the Law Guardian should not have a particular position or decision in mind at the outset of the case, Law Guardians are not expected to be “neutral automatons and [and,] [a]fter an appropriate inquiry, it is entirely appropriate, indeed expected, that a Law Guardian form an opinion about what action, if any, would be in a child’s best interest.
The Law Guardian’s statutory duty is to provide the child with “independent representation.” Consequently, the Law Guardian should not be disqualified absent grounds that would justify disqualifying any other lawyer from representing a client. At some point in the proceeding, the Law Guardian has a right to formulate an opinion and then to attempt to persuade the court to adopt the position, which in her judgment, will best promote the child’s interests. Nothing in the record or counsel’s affirmation establishes that this is not precisely what happened here. A party seeking to have another party’s counsel disqualified bears a heavy burden of proving that disqualification is warranted.
That burden is not met where, as here, opposing counsel submits a conclusory affidavit presenting nothing more than speculation that the Law Guardian should have pursued a different trial strategy, cross-examined a non-adverse witness and paid closer attention during one witness’ direct testimony.
Whether or not respondent mother or the Court agrees with the views of the Law Guardian is, for purposes of this motion, beside the point. The true issue on this motion is whether it is appropriate for the court to consider dispensing with the services of the Law Guardian whom it has appointed, on grounds such as those alleged by counsel for the respondent mother herein, in light of the statutory function of the Law Guardian to provide independent representation to minors who are the subject of Family Court proceedings.
In representing a child in Family Court a Law Guardian has, in some respects, a heavier burden of responsibility to the client and to the Court than does the lawyer representing an adult. In these cases the Law Guardian must protect the child’s interests, and has a duty to resist efforts to enlist her support by either side.
First and foremost the Law Guardian is a lawyer, and subject, of course, to the Code of Professional Responsibility. As with other advocates, she may develop a point of view in the course of her representation with which the Court, or other counsel, may disagree. This in no way detracts from the effectiveness of the representation of the child. The Law Guardian need not at her peril second-guess the parents. The Law Guardian retains all of a lawyer’s autonomy. She cannot be required to satisfy standards of performance laid down for her by other counsel in the case, whose motives are dictated by the obligation to represent another party, with his or her own interests, which may not coincide with the interests of the child. A rule that would make this Law Guardian answerable to a parent for the manner of her representation of the child in the circumstances of this case would discourage competent, self-respecting lawyers from serving as Law Guardians by removing from such service the privileges of creativity, imagination and autonomy that reward the practice of law.
Accordingly, it is ORDERED, that the motion by respondent mother’s counsel is denied.
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