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Public policy argues against
granting GALs qualified immunity

At its Dec. 5, 1997, meeting, our State Bar Board of Governors authorized the Family Law Section's filing of an amicus curiae brief in Berndt v. Massoglia in support of granting qualified immunity to guardians ad litem (GALs). The January State Bar Newsletter reported that the "Section ... had two basic reasons to file an amicus brief: 1) the effect the fear of malpractice cases may have on attorneys who serve as GALs; and 2) the Bar must promote the sound administration of justice." The Newsletter implied that our Board endorsed this position. The Board should clarify and announce that the Bar does not endorse the section's position. The arguments submitted by the section are inconsistent with Wisconsin public policy and our supreme court's holdings that a GAL is responsible for protecting an infant's interests and is "answerable in damages for negligence" for a violation of this fiduciary duty. Tyson v. Tyson, 94 Wis. 225, 229, 68 N.W. 1015 (1896); Will of Jaeger, 218 Wis. 1, 11, 259 N.W. 842 (1935).

In its amicus brief, the Family Law Section argues that absent being granted "limited quasi-judicial immunity," attorneys will refuse to accept appointments as GALs or fail to advocate in the best interests of the child. However, the section fails to set forth a scintilla of evidence in support of this claim. I suspect that no such evidence exists in that qualified counsel rarely, if ever, refuse to represent clients with meritorious claims because of the "fear of malpractice." The section also asserts:

"Further, the entire concept of children suing their GAL for malpractice is, after all, disingenuous. Minor children do not reach into their piggy banks, research negligence lawyers, and sue on their own. Rather, it is the disgruntled parent who searches for the attorney and pays the costs, under the guise of doing so for the children." (Brief, p.8.)

This statement is not true. Many citizens, attorneys, and judges refer minors to qualified attorneys to pursue meritorious legal malpractice claims on behalf of the minor (most of which are pursued pursuant to a contingency fee agreement). Further, this statement implies that such attorneys routinely breach their fiduciary duties to their clients and disregard their duties as GALs and officers of the court. In sum, the section fails to articulate a single persuasive public policy argument that would support granting qualified immunity to attorneys acting as GALs for committing malpractice.

Paige K. Berndt and Kaitlin I. Berndt, minors, should be entitled to a jury determination as to whether their former attorney and GAL were causally negligent. Our Bar and our supreme court have consistently stood for the "unimpaired right [to a] jury trial." See, e.g., Thoe v. Chicago, M. & St. P. R. Co., 181 Wis. 456, 195 N.W. 407 (1923). The jury serves as our collective conscience. In legal malpractice actions brought by citizens, and in particular those brought by the least represented and weakest in our society, that is minor children by their GALs, public policy and the maintenance of our judicial and jury system are best served by leaving such issues to jurors. As attorneys, we should not fear public scrutiny of our conduct.

Mark L. Thomsen
Brookfield

The amicus brief was filed on behalf of the Family Law Section, not on behalf of the State Bar as an entirety. It is the collective judgment of lawyers who practice daily in the family law arena that children would benefit in family court by qualified immunity for GALs in family court actions.

Without question, malpractice exposure has helped improve medical care, just as product liability exposure has helped improve automobile safety. Undoubtedly, malpractice exposure would change the practice of GALs. The true test is whether the cost outweighs the benefit of malpractice exposure.

For example, Mr. Thomsen's argument that allowing juries to serve as "our collective conscience" and thus to determine liability in all matters ignores long-standing law affording judges absolute immunity from liability. We have all had experiences where judges have been unprepared and negligent in research at great cost to our clients. Yet, our legal system recognizes that the value of having judges subject to suit is outweighed by the cost of inducing fear in making the tough decisions faced every day.

The issue the Family Law Section debated was whether children would be better served by GALs with or without the fear of malpractice liability. The Board of Directors voted unanimously in favor of limited immunity. Their reasons were essentially twofold.

First, it would be difficult to encourage experienced, qualified lawyers to accept GAL appointments with the ever-present risk of a lawsuit. Experienced, qualified attorneys are essential in protecting children's rights, as they are better equipped to settle highly emotional cases.

Second, fear of malpractice suits would cause a freezing effect on GALs making the type of difficult, strong recommendations that often are essential to resolving cases. Absent limited immunity, GALs would be far too inclined to rely upon the courts to make the decisions, as opposed to assertively establishing and advocating a position.

Mr. Thomsen is correct that there are no Wisconsin cases to support these policy arguments. However, authority from around the country overwhelmingly supports immunity. For example, in Short by Oosterhous v. Short, 730 F. Supp. 1037, 1039 (D. Colo. 1990), the district court held:

"[T]he guardian's judgment must remain impartial, unaltered by the intimidating wrath and litigious penchant of disgruntled parents. Fear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian's focus must not be diverted to appeasement of antagonistic parents."

Mr. Thomsen, in support of his position, relies on a case more than 100 years old, arguing that this ancient holding should supplant decades of practical experience in family court. Also unrecognized is the fact that GAL practice in family court differs significantly from GAL practice in personal injury cases.

The Board of Governors recognizes that sections possess expertise in their practice areas. The Family Law Section does not purport to speak for the Litigation Section or for the State Bar as a whole. It does, however, strongly advocate positions that it believes best protect the innocent victims of family law disputes: the children. That is why the Family Law Section urges the supreme court to afford qualified immunity to the lawyers who serve in the sensitive and important role of protecting these children.

Gregg Herman, Chair
GAL Committee, Family Law Section

Dissolving firm acted responsibly
to protect clients' rights

As a shareholder of Domnitz, Mawicke, Goisman & Rosenberg S.C., I write to voice our firm's disappointment with Dianne Molvig's article, "Breaking Up Is Hard To Do: Resolving Lawyer Disputes," in your February issue. The article begins with a former shareholder's account of his departure from our firm. The source of this section of the article was clearly the former shareholder. However, not a single word of his account was verified, documented or even discussed with any member of this firm to see whether what was stated to Ms. Molvig was true.

We see no purpose in lowering ourselves into the unending pit of accusations, and therefore, this letter will not detail what we regard as the numerous inaccuracies of the article. However, we wish to state that, contrary to what some may infer from the article, no member of this firm acted in any way to jeopardize the rights of any client. Had the reporter contacted us, we could have explained this. Unfortunately, she did not. We especially regret that these false implications of improper conduct by members of the State Bar appeared in the State Bar's own magazine.

We request and expect an apology from the editors and the reporter, not for what our former shareholder said, but for printing untrue things that cast us in a bad light without first contacting us for our comments.

At all times relevant, Domnitz, Mawicke, Goisman & Rosenberg S.C., and each of its component members, acted with the utmost caution to ensure that the rights of every client were safeguarded at all costs. That is the way this firm has conducted itself in all matters since its inception more than 40 years ago. We very much wish that this had been reflected in the article.

Merrick R. Domnitz
Milwaukee

The Communications Committee and the Wisconsin Lawyer staff believe the February article, "Breaking Up Is Hard To Do: Resolving Lawyer Disputes," portrayed all concerned in a positive light. The Domnitz law firm, which was not named in the article, was credited with working through its conflict with the departing partner for the sake of the clients' best interests. We regret any mispercep-tion the article may have left with readers that this firm in any way jeopardized its clients' rights.

Tribute to a mentor

I understand the Wisconsin Lawyer is publishing an article about mentors. I would like to share my story not so much because of its high interest but rather to pay tribute to someone who was and will always be a mentor to me. [Editor's Note: See mentor article]

I graduated from U.W. Law School in June 1991 and began working immediately for Susan Rosenberg at the firm of Domnitz, Mawicke, Goisman and Rosenberg in Milwaukee. Unbeknownst to me, I had fallen into the best situation possible for a new attorney. Susan took me completely under her wing and taught me everything about being a trial lawyer - or rather should I say - a female trial lawyer. She taught me not only how to argue motions, take depositions, and try cases but how to be a woman trial lawyer without losing myself and my own personality. Susan and I have very different personalities, but I was taught how to take advantage of my own personality and skills.

Susan did not accept mediocrity at any level and when my performance was mediocre or worse, I heard about it loud and clear. But, just as often and just as loudly, I heard about my successes and triumphs. The confidence Susan placed in me and the unbelievable opportunities I was given allowed me to learn and grow far faster than most new lawyers. These opportunities and the successes they generated have given me a confidence in myself and my own abilities that has endured long after Susan and I parted professionally.

I left the Domnitz firm after two years, but Susan's influence will be part of me for as long as I practice law. In addition, we have remained very close friends and Susan is still always only a telephone call away when I need advice.

Peggy E. Van Horn
Milwaukee

Bar should take political position
only if it has special expertise on the issue

In response to the letters of Mr. Fox and Mr. Sciascia in the February 1998 Wisconsin Lawyer, I too was appalled when the Board of Governors adopted gun control positions on behalf of the State Bar. As a longtime member of the National Rifle Association (and the ACLU, I might add), I have long been opposed to gun control. But, as a former State Bar president, my concern for the organization and the political positions that it takes goes well beyond my particular political prejudices. Let me take a few moments to put this all into context for you.

First, let me assure you that when dues rebates were calculated this year, the amounts related to the gun control position, both on the commission and in the Board of Governors, were considered nonchargeable and are part of the rebate. This is the principal reason that the rebate is higher than usual this year. I know this to be true because I sat on the committee that reviewed last year's Bar operations and set the rebate. Therefore, if you opted to take the rebate this year, none of your money was used to develop or advance this position.

The taking of positions on matters of public policy is a core function of the State Bar of Wisconsin. It is the principal reason given by the Wisconsin Supreme Court for the integration of the bar. The notion is that the legal profession has specialized expertise in certain areas that is of value to public policy makers and that good public policy requires that we make that expertise available. Most of our lobbying efforts truly fall into that category and the Wisconsin Legislature and other policy-making agencies generally regard us as a resource, rather than as a special interest.

We have always been very careful to safeguard this trust. We have generally avoided taking political positions on issues that not only are controversial but upon which we have no special expertise. Clearly, gun control falls into the category that we have avoided and should avoid in the future. The U.S. Supreme Court recognized this specifically in the case of Keller v. California, which defines the duties of integrated bars that become involved in taking political positions. Every organization gets carried away once in a while and does things that are ill considered. I hope that you will consider this anomalous and not typical, as I do.

That is not to say, however, that the Bar should never take controversial political positions. Where its expertise is necessary for proper understanding of the issues, it must do so, even if it would be easier and more congenial to avoid the issue. The important thing is to be certain that the issues chosen are those upon which our contribution is of unique value, as it is, for example, on the issue of tort law reform, where no other group in society is in a position to understand and explain the common law and all of its subtle implications.

I have never been in favor of compelled membership and actively opposed the reintegration of the State Bar. But having been burdened with the public trust by the Supreme Court, the Bar cannot avoid its responsibility, but must rather discharge that trust to the best of its ability. Hopefully, it has and will generally do so wisely and well. When, as here, it falls a bit short of the mark, it is well that we educate it back into righteousness, as both Mr. Fox and Mr. Sciascia have undertaken to do.

Gary E. Sherman
Port Wing