A lawyer appointed guardian ad litem to a child in a divorce case was entitled to absolute immunity for parenting recommendations made in her role, and thus legal malpractice and other claims levied by the father fail.
A Connecticut Appellate Court panel has decided that various legal claims lodged by David Dubinsky against attorney Veronica Reich, a court-appointed guardian ad litem, and Reich’s law firm, must be dismissed because Dubinsky “has not pointed to any actions taken by Reich outside of her role.”
“Reich … was an attorney appointed by the court pursuant to [General Statutes] §46b-54.6,” the appeals panel wrote in its opinion. Under the state Supreme Court’s 2004 decision in Carrubba v. Moskowitz, “Reich is entitled to absolute immunity for any actions taken within her role as guardian ad litem,” the Appellate Court said.
The panel further rejected Dubinsky’s argument that Reich’s ad litem recommendations regarding child visitation and parenting arrangements went beyond the best interests of the child and thus fell outside guardian ad litem jurisdiction.
Instead, the panel indicated that Reich’s recommendations made to the marital dissolution court fit squarely within her role.
“The conduct that forms the basis of [Dubinsky’s] underlying claims is Reich’s recommendation to the court of supervised visitation between the plaintiff and his minor child, as well as her recommendation against the use of coparenting counseling” for Dubinsky and his now-ex-wife, the panel wrote in its decision, which has been published on the state Judicial Branch website but has a Jan. 15 official release date.
The panel continued, “Reich made these recommendations to the court while fulfilling her statutorily prescribed duties as guardian ad litem to the plaintiff’s minor child.”
Dubinsky’s lawsuit, filed in 2016 against Reich and the Shelton-based law firm employing her, Bai, Pollack, Blueweiss & Mulcahey, stated that in June 2012, shortly before the dissolution proceedings began, Dubinsky was arrested and charged with risk of injury to a child, third-degree assault, and disorderly conduct, the panel said.
As a result, criminal protective orders were issued by the divorce court that included one stopping him from seeing the child, Dubinsky’s suit also said, according to the panel.
But on Aug. 30, 2012, the protective orders were dismissed, and on Jan. 28, 2013, the state Department of Children and Families concluded that the charges against Dubinsky were not substantiated and there was no basis for a finding of abuse or neglect of his child, the panel recounted Dubinsky’s suit as alleging.
In his suit against Reich and her firm, Dubinsky further alleged that Reich nevertheless ‘‘continued to hold [the criminal charges and protective orders] against the [p]laintiff [Dubinsky], despite clear resolution in his favor,’’ the panel wrote, quoting from Dubinsky’s complaint.
Dubinsky said in his complaint that Reich ‘‘vindictively, intentionally and … recklessly’’ limited his access to his child, which he claims was contrary to the child’s best interests, according to the panel.
Dubinsky lodged causes of action against Reich and Bai Pollack for legal malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress, said the panel, composed of Judges Bethany Alvord, William Bright and Robert Beach.
In affirming Superior Court, Fairfield Judicial District Judge Dale Radcliffe’s 2017 dismissal of Dubinsky’s lawsuit, the panel pointed out that in Carrubba, “our Supreme Court recognized that attorneys appointed by the court pursuant to General Statutes §46b-54 are entitled to absolute, quasi-judicial immunity for actions taken during, or activities necessary to, the performance of functions that are integral to the judicial process.”
The panel added that “Reich, as a guardian ad litem, was an attorney appointed by the court … [and] is entitled to absolute immunity for any actions taken within her role as guardian ad litem.”
Later in the decision, the court tossed back arguments made by Dubinsky that the grant of absolute immunity “allows unchecked abuses of power” by a guardian ad litem, violating public policy.
“There are sufficient procedural safeguards to protect against improper conduct by a guardian ad litem,” the panel wrote, including that he or she “is subject to the court’s oversight and discretion and may be removed by the court at any time,” and that “just as any other attorney, [the guardian ad litem] is subject to discipline for violations of the Code of Professional Conduct.”
Kenneth Votre, the attorney for David Dubsinky, could not immediately be reached for comment.
Nor could lawyer Michael Keller, who represented Reich and Bai Pollock.