April 8, 1996
A lawyer may ethically negotiate with the families and interested persons for a release of liability for actions taken as guardian ad litem.
References: MRPC 1.8(h); RI-2. Superseded by P.A. 143 (1995), MCL 691.1407.
A lawyer has been appointed guardian ad litem in a matter, and is preparing to make a final recommendation to the appointing court. The lawyer's professional liability insurance carrier has disclaimed liability for claims arising against the lawyer for duties as guardian ad litem. The lawyer asks whether it is ethical to negotiate with the families and interested persons for a release of liability for actions taken as guardian ad litem.
The rules of professional conduct place severe limits on the ability of a lawyer to obtain a prospective release of liability from a client. MRPC 1.8(h)(1) states:
"(1) A lawyer shall not make an agreement prospectively limiting the lawyers liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement."
In RI-2 a lawyer wished to include a provision requiring arbitration of any fee dispute in a fee contract with a client. The issue addressed in that opinion was whether the inclusion of an arbitration clause in a fee contract with a client was an attempt to limit the lawyer's liability to the client in violation of MRPC 1.8(h)(1). RI-2 concluded that a provision requiring arbitration of a dispute in a fee contract would be ethical only if the client first obtained independent counsel concerning the advisability of entering into such an agreement.
The question in the present case is whether it is permissible to negotiate with family members and interested persons for a release of liability for actions taken as a guardian ad litem. A guardian ad litem is charged with representing the "best interests" of the ward, and with making an independent judgment of what those "best interests" might be. Both MRPC 1.8(h) and RI-2 concern agreements directly with clients, and limiting liability creates a conflict of interest in the lawyer's duties to client. A guardian ad litem does not have duties to the families. The duties of the guardian ad litem extend only to its ward and not to any family members or interested parties. As such, the same ethics concerns do not arise in this inquiry. The families may seek legal counsel of their own regarding whether to agree to such a clause, and the guardian ad litem may not give advice regarding whether they should agree. MRPC 4.3. The guardian ad litem may not, however, attempt to negotiate any release of liability of the ward's interest. Such an attempt would constitute a clear violation of the prohibition against making an agreement prospectively limiting the lawyer's liability to a client for malpractice in MRPC 1.8(h)(1).
A situation might be envisioned where in addition to the guardian ad litem a ward might have another legal representative such as a conservator or next friend. In such a case where there is another legal spokesperson appointed for the ward, the guardian ad litem could not negotiate with that representative for a release of the guardian ad litem's liability to the ward. This would present the same conflict of interest situation previously discussed.
Thus, since the guardian ad litem owes no duty to the ward's family members or interested persons, there is no conflict of interest and the guardian ad litem may obtain a release from those persons. The guardian ad litem is, however, prohibited from attempting to obtain any release of the guardian ad litem's liability to the ward.