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Reacting to concerns that some judges have approved excessive fees for attorneys appointed as guardians ad litem, the Texas Supreme Court Advisory Committee has recommended new rules to clarify an ad litem’s role in civil suits for damages. The committee’s proposed changes to Rule 173 of the Texas Rules of Civil Procedure will make it clear that the guardian ad litem acts as an adviser to the appointing court -� not as the attorney for a child or incapacitated adult who is a party in a suit. The committee recommends limiting the ad litem’s duties only to reviewing a proposed settlement, determining if it is in the best interest of the child or incapacitated adult, and advising the court regarding the settlement’s fairness to that party. Advisory committee member Paula Sweeney says a lack of clarity in Rule 173, as it’s currently written, has caused confusion about the guardian ad litem’s role. “This would be a clear policy decision, if the court adopts the [proposed] rule, that the ad litem has a limited role,” says Sweeney, a partner in Dallas’ Howie & Sweeney. The rule changes would not apply to the appointment of an ad litem in a suit involving the parent-child relationship, a probate proceeding or parental notification when an underage girl seeks an abortion. Texas Family Code Chapter 107, Probate Code �905 and Texas Parental Notification Rule 2.3(a) govern ad litem appointments in those types of cases. Committee chairman Chip Babcock, a partner in Jackson Walker in Houston, says the recommendations, which the committee submitted to the high court on March 10, better define the role of a guardian ad litem in a suit for damages � typically personal-injury suits. “By defining so specifically what the ad litem’s role is, there isn’t a lot of room to go running around billing a lot of hours,” Sweeney says. Justice Nathan Hecht, the Supreme Court’s liaison for rules, says the court has been concerned about the large fees -� some in the six figures -� paid to ad litems in some cases. In 2001, the Supreme Court appointed a special task force to examine the issue of guardian ad litem representation. Recommendations from the Task Force on Civil Litigation served as the starting point for the advisory committee’s examination of the rule, Hecht says. Joe Jamail, the task force’s chairman and a partner in Houston’s Jamail & Kolius, says individual members of the task force received complaints from lawyers about exorbitant guardian ad litem fees. Task force members also heard complaints that some ad litems tried to take over cases, he says. “It doesn’t make sense, if the plaintiff has a competent lawyer and the defendant has a competent lawyer, for the ad litem to take an active role,” Jamail says. For example, the Supreme Court recently considered a case in which a hospital and a physician raised objections to guardian ad litem Joe Crabb’s $117,150 in fees approved by the 80th District Court in Houston and affirmed by the 1st Court of Appeals in January 2003. Without deciding whether the fees were appropriate, the high court reversed the 1st Court’s decision in Maria Jocson, et al. v. Joe Crabb and remanded the case to the appeals court. In December 1998, then-80th District Judge Scott Link appointed Crabb, a Republican state representative and solo practitioner in Humble, as the guardian ad litem for a brain-damaged child in Adrienne Draper, et al. v. John Ross, et al., according to the 1st Court’s opinion written by Senior Justice Frank C. Price. The child’s parents reached a confidential settlement with all the defendants in the medical-malpractice case. Price noted in the opinion that despite the fact that Crabb found no conflict between the parents’ interest and that of the child, Crabb submitted a 42-page fee invoice reflecting more than 585 hours of work billed at $200 an hour for a total of $117,150. Link approved the fees, which included $35,900 that Crabb charged for attending more than 50 depositions, $5,250 for reviewing 105 deposition notices and $19,000 for reviewing 378 letters, Price wrote. Justices Tim Taft and Elsa Alcata joined Price in affirming the fee award. Crabb and his attorney, David Holman, president of Houston’s Holman, Keeling & York, decline comment. According to the 1st Court’s opinion, Crabb testified at the fee hearing in the 80th District Court that it was an extremely complex medical-malpractice case because “the medical professionals differed in their opinions.” According to the opinion, when asked if he agreed that his role should be limited to times when there is a conflict between the parents and the child, Crabb responded, “I do not know when you can say that terrorists are going [to] attack the World Trade Center, and I do not know when a conflict is going to develop. There is always the potential for a conflict to develop, and my appointment was to protect the interest of the child.” “The gravamen of Jocson’s and the hospital’s complaint is that Crabb simply spent too much time on this case, attended too many depositions and hearings, and spent too much time reviewing correspondence,” Price wrote in the 1st Court’s opinion. However, in upholding the fee award, the 1st Court wrote that the defendants failed to obtain a ruling on objections they lodged to Crabb’s attendance at several depositions and failed to introduce Crabb’s files. Overruling the 1st Court, the Supreme Court held that objections to an ad litem’s fees are timely if raised at the fee hearing after a trial and that introduction of Crabb’s entire file was unnecessary to preserve the defendants’ objection to the fees. Can’t Participate The proposed rule changes would curtail what a guardian ad litem could do in a case. Under proposed Rule 173.3(b), an ad litem can’t participate in discovery, court proceedings or trial -� except for mediations — unless ordered by the appointing court. The proposed rule would require the court to show “sufficient reasons” for expanding the ad litem’s role. The proposed rule might make sense to hold down the fees in the average case, says Van Hilley, who has served as a guardian ad litem in federal cases. “For 80 percent of the cases that go through, the proposed rule makes sense,” says Hilley, a partner in San Antonio’s Goldstein, Goldstein & Hilley. However, Hilley says that an unscrupulous lawyer might push to get a bigger portion of a proposed settlement for a parent or guardian because that would give the lawyer a bigger fee. Hilley says the rules should allow an ad litem to file a motion with the court to request that the ad litem be allowed greater participation in the case. A perceptive judge can figure out whether the ad litem needs to do more, he says. Hecht questions whether it’s a good fix to give a trial judge the latitude to appoint a guardian ad litem to take over a case. If a court believes the lawyer hired by a parent or guardian is not doing a good enough job of protecting the interests of a child in a settlement, the court can ask a family court to formally appoint a guardian to supplant the child’s next friend, Hecht says. In its recommendation, the Supreme Court Advisory Committee also tried to address attorneys’ concerns about their liability if they are appointed as guardians ad litem. Sweeney says the uncertainty over whether an ad litem represents the child or incapacitated adult has raised questions about the liability of lawyers who serve as ad litems. Minors who become dissatisfied with their share of a settlement can file a suit up to two years after their 18th birthday. Committee member Richard Orsinger, a San Antonio solo, says that limiting the ad litem’s role should address those concerns. Orsinger says the proposed rule will make the guardian ad litem function more an extension of the court. That probably cloaks the ad litem with “quasi-judicial immunity,” he says. Orsinger says the advisory committee’s proposal also includes a provision to address concerns that since the guardian ad litem is not providing legal representation to a party, the ad litem might divulge confidential information. Under proposed Rule 173.3(c), any confidential information shared with a guardian ad litem is privileged. Normally, Article 5 of the Texas Rules of Evidence covers privilege, but the committee is recommending the creation of a privilege in the procedural rules, he says. Hecht says he expects the Supreme Court to consider the proposed rule changes in early April.

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