The federal indictment of Lackawanna County guardian ad litem Danielle Ross on tax evasion charges related to the income she generated from privately billing litigants has raised questions about what some family law attorneys and court watchers said was a lack of necessary oversight by the county court and, ultimately, by the Administrative Office of Pennsylvania Courts with regard to Ross’ billing.
On February 12, Ross was charged with two counts of tax evasion and two counts of filing a false federal income-tax report.
The following day, the Lackawanna County Court of Common Pleas suspended Ross without pay.
On February 15, Ross pleaded not guilty to all counts.
The 13-page indictment accused Ross of reporting only the income she was making from a $38,000 contract with the county, alleging that she attempted to "defeat a large part of" the tax she owed in 2009 and 2010, when she reported her income on joint tax returns with her husband. The charging document alleges that the extra money came from Ross’ privately billing litigants on top of her salary, a practice that her contract allowed her to do.
Meanwhile, one family law practitioner from Lackawanna County, who serves as one of the guardians ad litem in cases where Ross cannot, said the family court started requiring guardians to report how many hours they billed on their cases in January.
According to court papers, Ross had been working for the county as an independent contractor, for which the county provided her standard 1099 forms. Prosecutors have now alleged Ross knew how much she was billing private parties but that the county, which did not require her to report those numbers, did not.
"The Lackawanna County court was not required to approve Ross’ hourly bills for private paying parties," the indictment said.
Instead, according to the indictment, Ross accepted both cash and checks and "maintained her own records and had complete control over the records."
Last July, the AOPC issued a report finding "no evidence" that Ross was overbilling litigants and stating that it was "debatable" whether the county court should track Ross’ private billings.
While several ethics and family law attorneys have told the Law Weekly that each judge who appointed Ross to a case had a responsibility to monitor her billing of the litigants, the AOPC disagreed.
"Notwithstanding the expert opinions offered to you, it is far from uncommon for contractors appointed or hired by the court to bill parties directly without any judicial oversight of the bills," said AOPC spokesman Jim Koval in an emailed statement. "In those cases, the court approves/sets the billing rate in question, but the actual bills are sent to the parties and do not go through any review. This happens every day in almost every county with court reporters and transcripts, but also occurs in other places with providers such as masters, mediators, psychologists and similar providers of services."
But Duquesne University School of Law professor Bruce Ledewitz said any judge who appointed Ross in a case automatically had a duty to oversee her billing and to ensure that her services to the litigants were carried out in a fair and equitable manner.
"If there is a party and the court has appointed an attorney for the party as guardian ad litem, the only party that can oversee the attorney-client relationship is the judge," Ledewitz said.
According to Ledewitz, when the AOPC found in its investigation that there was no judicial oversight of Ross’ billing, it should have recommended it.
Abraham C. Reich, whose practice at Fox Rothschild focuses on ethics and professional responsibility, said he was "surprised [the court] did not require fee approval" with regard to Ross’ private billing.
"It’s not unreasonable to impose upon a judge some oversight authority for the fees that are billed" by a court appointee, Reich said.
Judith Algeo, a family law attorney with Eastburn and Gray in Doylestown, Pa., who serves as a GAL in Bucks County, said it’s not necessarily unusual for a GAL to bill litigants directly without getting approval of the bills from the court.
But what makes Lackawanna County different, Algeo said, is that Ross is permitted to bill litigants in addition to her salary, with no cap and no oversight.
"It just seems like common sense that there should be some checks and balances," Algeo said.
Lynne Z. Gold-Bikin, a family lawyer with Weber Gallagher Simpson Stapleton Fires & Newby in Norristown, Pa., said the lack of judicial oversight of Ross’ billing practices left the GAL program open to abuse.
"What the judges allowed was this woman to take over the parenting roles and charge the parents for doing it," Gold-Bikin said, adding that there was no limit as to what Ross could charge because she had no clearly defined scope of duties as GAL.
"The judges had a responsibility to limit what she could do," Gold-Bikin said.
Both the AOPC and the county issued separate reports finding no evidence that Ross was improperly billing litigants. Ross has never been criminally charged with improper billing.
But there have been complaints about Ross’ billing practices, according to the AOPC report.
And, in March 2012, Dr. Michael Stefanov, whose contested custody battle drew a Ross appointment in 2008, filed suit in the U.S. District Court for the Middle District of Pennsylvania, alleging Ross billed him more than $9,000. He claimed she destroyed his invoices once his bills were paid.
Stefanov told the Law Weekly in March 2012 that, at one point, Ross billed him for more than 11 hours in one day, totaling more than $500. Stefanov provided the Law Weekly with what appear to be invoices from Ross. One entry from July 12, 2010, bills for 11.25 hours at $50 per hour — seven hours to attend a hearing and more than four hours to prepare for another hearing.
While the AOPC did recommend in its report that the Lackawanna County family court administrator’s office begin tracking county payments made to Ross, it said it’s "debatable" whether the office should also track private party payments made to Ross.
"Ms. Ross is an independent contractor whose fees are arguably her own business, subject to the litigants seeking relief from the judge who appointed her to their case," the AOPC said in its report. "However, in evaluating the cost of access to justice, the court arguably has an interest in determining the true cost of Ms. Ross’ services to litigants, which would mean the court arguably has an interest in keeping track of how much Ms. Ross is charging for her services."
The AOPC said in the report that it "concurs" with a statement made in a separate report by William Browning, the head of the county’s Department of Human Services who led a county investigation into Ross’ billing practices, that "the lack of oversight will continue to fuel speculation about the true cost of the GAL program."
However, the AOPC’s report made no recommendation that the trial judge in each individual case monitor Ross’ billing.
Asked for comment about the AOPC report regarding billing oversight, Koval, the AOPC spokesman, pointed back to those sections of the report.
"At pages 47 and 48 of the report, we discuss some of the problems attendant to the system where no bills are reviewed and suggest that there would be some merit to having some tracking done," Koval said.
According to at least one family law practitioner, the court system has started to require guardians to report hours billed.
Brenda M. Kobal of Kobal & Frederickson, who does some guardian work for the Lackawanna County family court, said sometime in January the court sent out a letter to its guardians requiring them to report how many hours they billed and whether the parties to the case were in forma pauperis.
Ross did not respond to an email requesting comment. Ross’ counsel in the federal criminal case, David J. Solfanelli of Old Forge, Pa., could not be reached for comment.
Lackawanna County President Judge Thomas Munley did not return calls seeking comment.
Lackawanna County Judge Patricia Corbett, who oversees the family court, also did not return calls seeking comment.