In mid-September, a participant on the State Bar’s Family Law Section elist, to which I also subscribe, described an unsettling experience and asked for thoughts on how to move forward. The situation involved cyberbullying in a family law matter in which he was the court-appointed guardian ad litem (GAL). My rather lengthy response described some possible actions the lawyer might take.

Sadly, cyberbullying is not limited to family law. Lawyers in other practice areas can experience it, too, with just as serious consequences. Perhaps those lawyers can offer additional suggestions.

The Posted Situation

I don’t like the term “cyberbullying,” but I don’t know what else to call it. Twice this week alone (and several times in the past) I have had GAL parents post false, hateful, and inflammatory “reviews” on my firm’s website. It’s gotten so bad that my firm and I are considering no longer taking GAL cases. One thought I had was to get the parents to sign a stipulation (for an order) that they will not post anything on social media about the case, the parties, the court, counsel, or the GAL.

This is especially a problem with ongoing cases because the parent making the negative posts can then say that your recommendation is tainted because you are biased against them for posting negative things about you.

– Name Withheld

Multiple Victims Identified

Listmate response: I can certainly understand why you and your firm might be considering an exit from the GAL business entirely. I hope that you will not take that path. Doing so would be a needless loss to you and to our community of family lawyers. Perhaps more importantly, leaving the field would leave the real problems unaddressed. I’ll explain.

First, let me try to identify both the multiple victims of and the nature of the harm caused by the behavior you’ve described.

• You. Clearly, you and your firm are direct victims, and likely the intended victims. Unless both parents in one family or parents in multiple cases are generating these attack “reviews,” the attacks have effectively created a situation in which your perceived objectivity and lack of bias have been compromised. That bell cannot be unrung. No matter what your recommendation, both sides will argue that the attacks either made you biased against the attacker or caused you to skew your recommendation in favor of the attacker as an over-compensation. Though seeking to withdraw as GAL could well be perceived as rewarding the attacker’s bad behavior and as encouraging such tactics in the future, you may not be able to ethically avoid petitioning the court to be relieved of the GAL assignment and to appoint a new GAL. If such a petition is unavoidable, that assessment can, at least, help us to identify the other victims of the attacks. In no particular order, they include the following:

• The non-attacking parent. He or she will have expended a fair portion of his or her limited financial resources and valuable time and emotional resources to cooperate with you in furthering your investigation. All for naught, and they’ll have to be mustered up again for a new GAL.

• The child (or children) whose interests you have been representing. That child has now effectively lost a vigorous and effective advocate. Having met and learned to trust you, that child will now have that trusted protector forcibly removed from his or her life. For children whose primary security figures have already been compromised and destabilized by the separation and litigation process, this unnecessary additional erosion of their security and available resources is inherently damaging to their best interests. Even if God incarnate were to replace you as GAL, the child’s ability to trust your replacement will almost certainly be diminished. Their ability to trust other potential sources of security and stability going forward may also be impaired as a reasonably foreseeable consequence. Disputed custody cases almost always diminish (at least, temporarily) a parent’s ability to parent. Unless this case is really unusual, the child has already been suffering from that diminution of parental support. The need to move you aside and install a new GAL is, at very least, going to extend the duration of that hopefully temporary reduction in parental competence. That’s also contrary to the child’s best interests.

• The attorney representing the non-attacking parent. That lawyer’s fees will necessarily be greater going forward, if only as a result of the need to repeat work already done with and for you. To the extent that the non-attacking parent’s financial resources are limited or straitened because of those increased fees, the lawyer’s prospects of being adequately compensated in this case will need to be revised downward.

• The judicial system itself. As officers of the court, we have a duty to advance the interests of the judicial system. Its limited time-resources will necessarily be taxed to address the motion to withdraw that these attacks have compelled you to bring. Unless there is a superabundance of available GALs in your county, that available pool will be reduced when the new GAL is appointed. The fact that significantly fewer lawyers in that pool will be willing to accept a new appointment under these circumstances will significantly aggravate that negative effect. Judges are understandably motivated to move their cases toward final disposition in an expeditious manner. The need to move you aside and appoint a new GAL in this case will interfere significantly and unavoidably with that objective. Because this case will remain on the judge’s docket for longer than it would otherwise have been there, other cases on that judge’s docket will suffer in direct or indirect consequence. Unless your county makes no contribution whatever to GAL fees, the taxpayers of your county will be forced to subvent at least some of the cost of the new GAL, even if we completely ignore the inherent costs connected with keeping the case open longer and the costs associated with having to hold a hearing on your motion and to appoint a new GAL.

In identifying the multiple victims of the attacks ostensibly directed at you and your firm, I’ve hinted at the nature of the harm those attacks caused. I’m pretty sure I don’t need to spend more time and space identifying further harm suffered and to be suffered by each of the multiple victims. For your motion, I’d spend less time on identifying the nature of the harm suffered by you and your firm and more on identifying the harm suffered by the other victims.

Recommendation(s)

First, I strongly recommend that you not seek to resolve this situation by means of a stipulation. If the judicial system were not a victim of the attacks, a stipulation might be something to consider. But stipulations largely bypass the judiciary and its own interests. There are many good reasons that the court needs to be actively involved in identifying and fashioning a remedy for the multiple harms caused by the attacks you’ve described. So, I suggest that you affirmatively seek orders, at least some of which you could probably have obtained via stipulation.

Second, [here are] the orders to seek:

• Yes, an order enjoining the attacker (both parties only if the non-attacker is likely in the future to sin if not enjoined) from posting anything on social media or any attorney’s website about the case, the parties, the court, counsel, or the old or new GAL – ever.

• Authorizing (but not requiring) the new GAL to record, without further notice, all communications with the attacker, including all in-person conferences and interviews, all phone conversations, messages, and emails and making all such recordings/transcriptions admissible notwithstanding the rule against hearsay.

• Requiring the attacker to fully pay all of your unpaid GAL fees incurred through the completion of your involvement in the case – after your motion to withdraw has been heard and the order has been entered and further requiring the attacker to pay the fees and costs associated with reducing that order to a judgment and recording that judgment as a lien with the county recorder.

• Requiring the attacker to fully prepay a reasonably large deposit against the expected fees and costs of the new GAL, in recognition that those costs would not have been necessary but for the attacks.

• To the extent that the non-attacking parent has already paid some of your already billed attorney fees and expenses, requiring the attacker to fully reimburse those payments to the non-attacking parent within a very short time, and to further pay the fees and costs associated with reducing that order to a money judgment and recording the same with the county recorder.

• Requiring the attacker to fully reimburse the non-attacking parent for all attorney fees incurred for that attorney’s work related to your involvement in the case (for example, all calls and conferences with you, correspondence by mail or email between that lawyer and you, all conferences with the non-attacking parent related to meeting with you or complying with requests made by you, and so on) plus all fees related to court hearings that will have to be repeated once a new GAL is appointed, on the understanding that most or all that work will have to be repeated for the new GAL.

• Requiring the attacker to fully pay the charges of the court reporter in transcribing an original and one copy (for the non-attacker’s counsel) of the entire proceedings of the hearing on your motion and filing the original thereof with the court.

• Requiring the attacker to make good-faith efforts to remove and disavow all negative postings heretofore made against you and your firm and to furnish written proof of those attempts with the court (and to you) within 20 days after the entry of the order. I have no idea if there are companies that can effectively mitigate the ongoing effects of such attacks, but if there are, I’d consider asking the court to require the attacker to pay the reasonable costs of hiring such a company to perform such services.

• Requiring the attacker to file with the court before a specific deadline sworn, written proof that each of the above payments and efforts have been made as ordered and scheduling a review/enforcement hearing about 10 days after that deadline to ensure compliance and to remedy any defaults; expressly permitting you to appear and be heard at that review/enforcement hearing, and expressly reserving jurisdiction for you to bring any necessary or convenient motions in the existing custody case (with no need to bring a separate action) to enforce your rights under the above orders and for the court to make all appropriate orders in response to such motions.

• I don’t know if any of Wis. Stat. section 767.41(5)’s factors can be interpreted as including efforts by one of the parents to actively interfere with the litigation process or to straiten another parent’s financial and emotional resources, or whether the attacks you describe constitute some form of domestic abuse, but I suspect that the court might be willing to make a preliminary finding that the attacks you’ve described have violated Wis. Stat. section 948.04, and/or demonstrated a likelihood that the attacker is “likely to unreasonably interfere with the child’s continuing relationship with the other party.”

There are probably other appropriate orders that you and others can think of that might in some measure remedy the harm caused by the attacks you describe and lessen the likelihood that they will be repeated against the new GAL. I’ve just listed some that have occurred to me.