Fox v. Wills

Decision Date18 January 2006
Docket NumberNo. 43, September Term, 2003.,43, September Term, 2003.
Citation890 A.2d 726,390 Md. 620
PartiesKatherine Rose FOX v. Vincent WILLS.
CourtCourt of Special Appeals of Maryland

Gregory F. Jacob of Arlington, VA (Elizabeth L. Ritter of Chevy Chase), on brief, for petitioner.

David Super, Christopher Thomas Stidvent, Clarissa Hodges, Baker Botts LLP, Washington, D.C., on brief of amicus curiae Justice for Children on behalf of petitioner.

William of Brockman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland; Steven M. Sullivan, Solicitor General of Baltimore) on brief, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.

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 Repl.Vol.), § 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 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 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). 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.

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 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...

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