Protection Against Retaliation: Civil-Liability Immunity and Lawyer-Guardian ad Litems

Protection Against Retaliation: Civil-Liability Immunity and Lawyer-Guardian ad Litems


There are some saints in the legal profession. Attorneys who accept appointments to represent the best interests of a minor in child-protective proceedings are among them. Their work isn’t lucrative, and the stakes are exceptionally high. Collins Einhorn attorneys recently prevailed in an immunity defense of such an attorney―establishing new, controlling precedent in the process.

In 1996, the Legislature, reacting to a recent appellate decision, amended a statute to provide that guardian ad litems (GALs) are immune from civil liability. The immunity addressed a concern inherent in the nature of child-protective proceedings: “disgruntled parents who are dissatisfied with a custody decision may retaliate by suing the guardian ad litem, ostensibly on behalf of the child.” Bullock as Next Friend of Bullock v Huster, 209 Mich App 551, 556-557; 532 NW2d 202 (1995) (Fitzgerald, J., concurring).

In 1998, the Legislature passed legislation that, among other things, created a role called “lawyer-guardian ad litem” (LGAL) for child-protective proceedings. About 20 years later, an issue arose: Is an LGAL entitled to immunity? The answer is, yes.

In Farris v McKaig, a father, on behalf of his minor son, filed a lawsuit against his son’s former LGAL. He claimed that the father’s parental rights shouldn’t have been terminated in a prior child-protective proceeding and the LGAL was to blame. Collins Einhorn attorneys—Theresa Asoklis, Michael Cook, and Jonathan Koch—moved for summary disposition, arguing that the immunity for GALs barred the claim. The trial court agreed and granted summary disposition.

The Court of Appeals agreed too, holding that LGALs are immune from civil liability. The key point was that an LGAL’s core function fell within the common-law definition of “guardian ad litem.” The Court explained that “LGAL serves the same basic function as a GAL: independently investigating, determining, and representing the child’s best interests.” While there were differences between an LGAL and a GAL under the child-protective-proceeding statutes, “an LGAL is an advocate for the child’s best interests” just like a GAL. So the immunity applied.

What this case means for attorneys

Farris is a published opinion. And the Supreme Court recently denied the plaintiff’s application for leave to appeal. So Farris is binding precedent in Michigan. As a result, immunity shields the saints who aid Michigan courts by accepting LGAL appointments. It protects them from the type of retaliatory suits that the emotionally charged nature of child-protective proceedings unfortunately invites.

Have questions or looking for further information? Contact one of our attorneys.