New Rules For Guardians Ad Litem

By Ashish Mahendru

On October 7, 2004, the Texas Supreme Court proposed wholesale amendments to Texas Rule of Civil Pro-cedure 173, which pertains to the appointment of guardians ad litem.1 The revised Rule 173 affects all pending cases as of February 1, 2005.2 Because the amendments immediately impact the manner of the litigation practice of ad litems, all practitioners appointed by courts to serve as guardians ad litem should become well versed in Rule 173’s new requirements. This article will address the backdrop for the adoption of the amended rule, the scope of the revised rule, and the potential impact on practitioners.

Background
The amendment to Rule 173 finds its roots in a case dating back to 2001. In Goodyear Dunlop Tires North America v. Gamez,3 Goodyear appealed the trial court’s award of approximately $400,000.00 in fees to six guardians ad litem plus $30,000 in appellate fees. Due to a vehicle rollover accident, the trial court appointed the guardians ad litem to protect the interests of twenty-two minor children. The trial court found the billings of the six guardians to be “reasonable and necessary.” Goodyear’s appeal contended that the fees charged by the ad litems were excessive and unconscionable. Goodyear provided examples of its claims where one ad litem billed for sleeping. The attorney’s justification—she was out of town and away from her practice.4 Another ad litem billed for sleeping, because he was not able to put his children to bed.5 In addition, two ad litems had billing entries in which they billed for more than 24 hours in one day, which the appellate court found to be an impossibility.6 The court stated: “We hold that billing time for sleeping and billing in excess of 24 hours for one day is per se unreasonable, as well as unconscionable.”7
Because of the extraordinary facts of this case, the Texas Supreme Court appointed a task force to review the efficacy of Rule 173.8 The prior one sentence, ten-line rule provided little guidance to courts and to practitioners as to the role of the ad litem. As long as it appeared to the court that the next friend’s interest may be adverse to the minor’s interest, the court was required to appoint an ad litem. Beyond that requirement, however, neither the court nor the ad litem had any footprint by which to measure the conduct of the ad litem in the litigation.
Courts repeatedly attempted to limit the role of the ad litem to that of a person appointed to represent the interests of the minor, as opposed to the ad litem being the attorney for the minor.9 Guardians ad litem, however, were unclear as to the scope and extent of their roles, and in many cases, would perform tasks that were duplicative of work undertaken by the plaintiff’s attorney. The guardians ad litem would bill for the arguably duplicative work and were compensated for their time—whether for original work or not. In this equation, the paying parties, usually defendants, were relegated to complaining that the ad litem’s fees were excessive or unreasonable, leaving the trial court to ferret out whether the work performed by the ad litems was reasonable and necessary for the protection of the minor’s interests.
Anecdotally, this author was appointed as a guardian ad litem in a case for a minor who sustained personal injuries in a car accident. Because there were facts attendant to the case that I felt required more investigation, I was disinclined to approve the proposed settlement without more information. The plaintiff’s attorney, who was not the litigating attorney on the case, had his litigation counsel write me a letter, stating that he would protect his interest in the settlement and let me, the guardian ad litem, take the case to trial. The circumstance was novel for me, and reliance on the previous ad litem rule was of no utility in responding. I had been appointed by the court to protect the minor’s interests, as opposed to being the attorney for the minor. The plaintiff’s counsel was trying to put me in the position as the minor’s lead litigation counsel for which I had not been hired by the parents and for which I had not been appointed by the court.
Given the uncertainty in the old rule, I was hard-pressed to find case law refuting plaintiff’s counsel’s effort to simply position the guardian ad litem as lead counsel, leaving the risks attendant to the litigation in my hands. That has changed under the new rule, which provides the necessary structure to guide the ad litem as to his/her role in the litigation, and which will not allow another attorney in a lawsuit to take a position as in my case mentioned above.

New Rule 173
The new rule is divided into seven sections.10 The first section clarifies that the rule does not apply to appointments governed by other statutes, (e.g., Family Code or Probate Code), or rules (e.g., Parental Notification Rules).11 Under the second section, only two scenarios exist in which the court can appoint an ad litem: 1) if it appears to the court that next friend or guardian has an interest adverse to the party; or 2) if the parties agree.12 The third section provides that an ad litem must be appointed by written order, and it allows any party to object to the appointment.13
The fourth section contains the heart of the amended rule, explicitly stating that: “[a] guardian ad litem acts as an officer and advisor to the court.”14 The implication of this rule is further borne out in the comments to the rule, because the Supreme Court chose to afford “derived judicial immunity” to the appointed ad litem.15 “When entitled to the protection of derived judicial immunity, an officer of the court receives the same immunity as a judge acting in his or her official judicial capacity -- absolute immunity from liability for judicial acts performed within the scope of jurisdiction.”16
Given that the new rule dramatically restricts the scope of the work of an ad litem, it only makes sense that the ad litem be provided commensurate protection from the threat of future malpractice litigation from either the parents or the minor. Until the Supreme Court’s pronouncement in the comment to the new rule, the case law on derived judicial immunity for guardians ad litem had been conflicting on that issue.17
The fourth section also requires the ad litem to advise the court of whether the next friend has an interest adverse to the minor.18 The rule does not set forth the timing of when this determination needs to be made by the ad litem. Further, if the ad litem reports there is no adversity between the minor and next friend, and the initial basis for the court’s appointment of the ad litem was due to the appearance of adverse interests, then arguably the court is required to vacate its order appointing the ad litem.
Prior to the amendment to Rule 173, practitioners—out of an abundance of caution—sought the appointment of a guardian ad litem after the parties reached a settlement. Although the ad litem’s role at this stage of the litigation was to determine whether the settlement was in the minor’s best interest, the new rule makes that understanding explicit by stating, “a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party’s best interest.”19
The telling part of the revisions to Rule 173 are also contained in the fourth section, with clear limitations on the ad litem’s ability to participate in the ongoing litigation. According to Rule 173.4(d), the ad litem may participate in mediation to reach a settlement.20 Beyond that, however, the ad litem must not participate in discovery, trial, or any part of the litigation unless the minor’s interest requires protection.21 If the minor’s interest requires protection, then the court must order the ad litem’s involvement in the case through a written order, stating sufficient reasons for such participation by the ad litem.22
These restrictions clarify the uncertainties plaguing the guardian ad litem practice under the old rule. Now, if an ad litem bills for reviewing deposition notices, the court will not compensate the ad litem for that time, because the ad litem is not authorized to participate in discovery. Similarly, if the ad litem routinely attends depositions, then she will not be compensated for that time. This revision will dramatically alter the ad litem’s day-to-day involvement in the case. Gone are the days of excessive billing by an ad litem out of an abundance of caution or otherwise.

Privilege
The fifth section explicitly provides the protection of attorney client privilege to any communications between the ad litem, minor, next friend, and the plaintiff’s attorney.23

Compensating the Guardian Ad Litem
The sixth section of Rule 173 provides a mechanism for compensating the ad litem for her services in the litigation. The ad litem can receive compensation only for necessary services performed at a reasonable hourly rate.24 At the conclusion of the litigation, an ad litem may file an application with the court, detailing the fees requested for services rendered.25 The application must be verified, and if the parties do not agree to the application, the court must conduct an evidentiary hearing to determine the amount of reasonable and necessary fees for the ad litem.26

Appellate Review
The last section of the new rule provides for appellate review relating to a trial court’s handling of issues associated with a guardian ad litem. Mandamus relief is available for any party based on the court’s appointment of an ad litem and based on the court’s order regarding the ad litem’s participation in the case.27 Thus, if a party disagrees with the trial court’s order on the level of prospective participation of the ad litem, the party can seek mandamus relief.28 From a plain reading of this rule, however, it does not appear that the ad litem can seek such relief, because the rule is limited to a “party,” which the ad litem is not.29
Under Rule 173.7, any party may also appeal the order awarding compensation to the ad litem. In contrast to the mandamus provision above, an ad litem is specifically listed as a person who may seek appellate review of an order awarding compensation.30 The court must also sever an order awarding fees to the ad litem, thereby allowing the order to become final and appealable.31 Further, any appellate review of an order pertaining to an ad litem does not affect the finality of the settlement or judgment in the underlying case.32

Conclusion
Under the revised Rule 173, the guardian ad litem practice is dramatically restricted, and it is important for all individual practitioners called upon by the courts to serve on behalf of the court in an important and critical role for the protection of a minor’s interests to have a working knowledge of the revised rule. Comment 7 to the new rule encapsulates the philosophy behind the adoption of the new rule: “Because the role of guardian ad litem is limited in all but extraordinary situations, and any risk that might result from services performed is also limited, compensation, if any is sought, should ordinarily be limited.”33

Ashish Mahendru is the principal of Mahendru, PC. He is a trial attorney, focusing on commercial, trademark and copyright cases in federal and state courts. He is a 1996 graduate of the University of Texas School of Law.

Endnotes
1. See Tex. Sup. Ct. Order, Misc. Docket No. 04-9224 (October 7, 2004). 2. See Tex. Sup. Ct. Order, Misc. Docket No. 05-9021 (January 27, 2005). 3. Goodyear Dunlop Tires North America v. Gamez, 151 S.W.3d 574 (Tex. App.--San Antonio 2004, no pet. h.). 4. Id. at 588. 5. Id. at 588. 6. Id. at 588. 7. Id. at 589. 8. Allison P. Mingle, Recent Development: Revised Texas Rule of Civil Procedure 173: The True Scope of a Guardian Ad Litem’s Representation, 36 St. Mary’s L. J. 697, 699 (2005). 9. See Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 452 (Tex. App.-- Houston [14th Dist.] 1996, no writ) (holding that an ad litem is an officer appointed by the court to protect a child’s interest and not an attorney for the child); Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex. App.-- Dallas 1994, writ dism’d by agr.) (holding that the guardian ad litem participates in court proceedings as the minor’s personal representative and not as the minor’s attorney) 10. Rule 173 Guardian Ad Litem.

173.1. Appointment Governed by Statute or Other Rules. --This rule does not apply to an appointment of a guardian ad litem governed by statute or other rules.
173.2. Appointment of Guardian ad Litem.
(a) When Appointment Required or Prohibited. --The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if:
(1) the next friend or guardian appears to the court to have an interest adverse to the party, or
(2) the parties agree.
(b) Appointment of the Same Person for Different Parties. --The court must appoint the same guardian ad litem for similarly situated parties unless the court finds that the appointment of different guardians ad litem is necessary.
173.3. Procedure.
(a) Motion Permitted But Not Required. --The court may appoint a guardian ad litem on the motion of any party or on its own initiative.
(b) Written Order Required. --An appointment must be made by written order.
(c) Objection. --Any party may object to the appointment of a guardian ad litem.
173.4. Role of Guardian ad Litem.
(a) Court Officer and Advisor. --A guardian ad litem acts as an officer and advisor to the court.
(b) Determination of Adverse Interest. --A guardian ad litem must determine and advise the court whether a party’s next friend or guardian has an interest adverse to the party.
(c) When Settlement Proposed. --When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party’s best interest.
(d) Participation in Litigation Limited. --A guardian ad litem:
(1) may participate in mediation or a similar proceeding to attempt to reach a settlement;
(2) must participate in any proceeding before the court whose purpose is to determine whether a party’s next friend or guardian has an interest adverse to the party, or whether a settlement of the party’s claimis in the party’s best interest;
(3) must not participate in discovery, trial, or any other part of the litigation unless:
(A) further participation is necessary to protect the party’s interest that is adverse to the next friend’s or guardian’s, and
(B) the participation is directed by the court in a written order stating sufficient reasons.
173.5. Communications Privileged. --Communications between the guardian ad litem and the party, the next friend or guardian, or their attorney are privileged as if the guardian ad litem were the attorney for the party.
173.6. Compensation.
(a) Amount. --If a guardian ad litem requests compensation, he or she may be reimbursed for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed.
(b) Procedure. --At the conclusion of the appointment, a guardian ad litem may file an application for compensation. The application must be verified and must detail the basis for the compensation requested. Unless all parties agree to the application, the court must conduct an evidentiary hearing to determine the total amount of fees and expenses that are reasonable and necessary. In making this determination, the court must not consider compensation as a percentage of any judgment or settlement.
(c) Taxation as Costs. --The court may tax a guardian ad litem’s compensation as costs of court.
(d) Other Benefit Prohibited. --A guardian ad litem may not receive, directly or indirectly, anything of value in consideration of the appointment other than as provided by this rule.
173.7. Review.
(a) Right of Appeal. --Any party may seek mandamus review of an order appointing a guardian ad litem or directing a guardian ad litem’s participation in the litigation. Any party and a guardian ad litem may appeal an order awarding the guardian ad litem compensation.
(b) Severance. --On motion of the guardian ad litem or any party, the court must sever any order awarding a guardian ad litem compensation to create a final, appealable order.
(c) No Effect on Finality of Settlement or Judgment. --Appellate proceedings to review an order pertaining to a guardian ad litem do not affect the finality of a settlement or judgment.

11. See Tex. R. Civ. P. 173, cmt. 1 12. See Tex. R. Civ. P. 173.2. 13. See Tex. R. Civ. P. 173.3. 14. See Tex. R. Civ. P. 173.4(a) 15. See Tex. R. Civ. P. 173, cmt. 5 16. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002). 17. See Byrd v. Woodruff, 891 S.W.2d 689, 706 (Tex. App.--Dallas 1994, writ dism’d by agr.) (holding that a guardian ad litem does not act as “arm of the court;” therefore, derived judicial immunity is not applicable); Wilz v. Sanders, 2005 Tex. App. LEXIS 1503 (Tex. App.--Waco February 23, 2005) (holding that Byrd is distinguishable because the guardian ad litem “was required to make an independent determination that was crucial to the court’s decision”). 18. See Tex. R. Civ. P. 173.4(b). 19. Tex. R. Civ. P. 173.4(c) 20. See Tex. R. Civ. P. 173.4(d)(1) 21. See Tex. R. Civ. P. 173.4(d)(3) 22. See Tex. R. Civ. P. 173.4(d)(3) 23. See Tex. R. Civ. P. 173.5 24. See Tex. R. Civ. P. 173.6(a) 25. See Tex. R. Civ. P. 173.6(b) 26. See Tex. R. Civ. P. 173.6(b) 27. See Tex. R. Civ. P. 173.7(a) 28. See Tex. R. Civ. P. 173.7(a) 29. See Tex. R. Civ. P. 173.7(a) 30. See Tex. R. Civ. P. 173.7(a) 31. See Tex. R. Civ. P. 173.7(b) 32. See Tex. R. Civ. P. 173.7(c) 33. See Tex. R. Civ. P. 173, cmt. 7

Text is punctuated without italics.

< BACK TO TOP >