Wisconsin Lawyer: 101: GAL Appointments: Am I Eligible?:

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    September
    08
    2020

    101: GAL Appointments: Am I Eligible?

    The author answers the frequently asked question: Am I eligible to accept a court appointment as guardian ad litem? This article incorporates the changes to Supreme Court Rule 35, effective for family court orders entered after Jan. 1, 2021.

    Gretchen G. Viney

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    To serve as a guardian ad litem (GAL) in Wisconsin, a lawyer must meet the requirements of Supreme Court Rule (SCR) 35, for cases involving minors in chapters 48, 767, or 938 proceedings, and of SCR 36, for cases involving adults in chapter 54 or 55 proceedings. These rules require GALs to take a certain number of approved GAL credits. The Board of Bar Examiners (BBE) is responsible for approving GAL-minor and GAL-adult credits under the rules. This article answers preliminary questions about eligibility to serve as GAL under these rules. Lawyers also must remember to check local rules because some counties impose additional requirements for serving as GAL.

    For ease of reference, I have organized this article into seven sections. We look first, in section I, at definitions and at the process of calculating GAL credits under both rules. Section II covers appointments for adults in Wis. Stat. chapters 54 (Guardianships) and 55 (Protective Service System). Sections III-VI look at appointments for children in Wis. Stat. chapters 48, 767, and 938. These middle sections (II-VI) are organized as verbal flowcharts to help lawyers navigate the maze of GAL appointments. Section VII, at the end of the article, focuses on frequently asked questions.

    Section I. Definitions & GAL Credit Calculation

    Calculating GAL Credits

    Both SCR 35 and SCR 36 calculate GAL credit requirements using the lawyer’s current CLE reporting period combined with the prior reporting period. Here’s a summary of determining if you have acquired the number of credits you need under either rule:

    Gretchen VineyGretchen Viney, U.W. 1978, is a Distinguished Clinical Professor and Director of the Lawyering Skills Program at the U.W. Law School. She chairs the Content Subcommittee of the State Bar’s Communication Committee, which serves as Wisconsin Lawyer’s Editorial Advisory Board.

    On the date you accept an appointment, you must have completed the number of credits set forth in the applicable rule during your current CLE reporting period combined with your previous reporting period. The best way to envision this is to 1) determine how many GAL credits you have acquired already during your current reporting period and then 2) add those credits to the ones you acquired in your prior reporting period. The total is the number of credits you have available to meet the requirements of the rule.

    Remember that you do not report GAL credits on your CLE reporting form, so you must keep track separately of all GAL credits.

    Adult GAL Education: General

    For all Wis. Stat. chapter 54 and chapter 55 appointments, guardian ad litem education, as used in SCR 36.01, is explained in SCR 36.03(1) as follows:

    “The board of bar examiners shall approve courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a guardian ad litem for an adult or on the subject matter of proceedings under chs. 54, or 55, stats., and that are designed to increase the attendee’s professional competence to act as guardian ad litem for an adult in those proceedings. The board of bar examiners may only approve courses of instruction or continuing legal education activities that are conducted after January 1, 1995.”

    Minor GAL Education: General

    For all Wis. Stat. chapter 48, chapter 767, and chapter 938 appointments, whatever the date, guardian ad litem education is described in SCR 35.03(1) as follows:

    “The board of bar examiners shall approve courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on the subject of the role and responsibilities of a guardian ad litem for a minor or on the subject matter of proceedings under chapter 48, 767 or 938 of the statutes and that are designed to increase the attendee’s professional competence to act as guardian ad litem for a minor in those proceedings.”

    The comment to SCR 35.01 notes that all credits approved as family court GAL education under SCR 35.03(lm) (defined below) may be used to satisfy the education requirements of both SCR 35.01 and 35.015.

    Family Court GAL Education after Jan. 1, 2021

    For Wis. Stat. chapter 767 appointments under orders after Jan. 1, 2021, family court guardian ad litem education is described in SCR 35.03(1m) as follows:

    “(1m)(a) The board of bar examiners shall approve, as family court guardian ad litem education, courses of instruction at a law school in this state and continuing legal education activities that the board determines to be on any of the following subject matters:

    1. Proceedings under chapter 767 of the statutes.

    2. Child development.

    2m. The effects of conflict and divorce on children.

    3. Mental health issues in divorcing families.

    4. The dynamics and impact of family violence.

    5. Sensitivity to various religious backgrounds, racial and ethnic heritages, and issues of cultural and socioeconomic diversity.

    (b) The board of bar examiners may only approve courses of instruction or continuing legal education activities that are conducted after June 1, 2002.”

    Family Court GAL Education before Jan. 1, 2021

    For Wis. Stat. chapter 767 appointments under orders prior to Jan. 1, 2021, family court guardian ad litem education is described in SCR 35.03(1m) essentially the same way as above but subsections 2 and 2m of (a) are combined as one:
    “2. Child development and the effects of conflict and divorce on children.”

    Section II: Guardian ad Litem in Adult Proceedings

    May I accept an appointment as a GAL for adults in Wis. Stat. chapter 54 (Guardianships) or chapter 55 (Protective Service System)?

    Step One: Have you met the lifetime requirement of SCR 36?

    SCR 36.01(1) says that a lawyer may accept a GAL appointment under Wis. Stat. chapter 54 or 55 if the lawyer has attended 30 hours of approved adult GAL education. You are eligible to accept the appointment if you have met this lifetime 30-credit requirement.

    If your answer is yes, you are eligible to accept the appointment. If your answer is no, go to Step Two.

    Step Two: Has the court made special findings in appointing you?

    The court may waive the GAL training requirements if it makes a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which you are otherwise qualified by experience or expertise to represent the best interests of the adult. SCR 36.01(3).

    If your answer is yes, you are eligible to accept the appointment. If the answer is no, go to Step Three.

    Step Three: Have you met the less-than-lifetime credit requirements of SCR 36.01(2)?

    Section 36.01(2) requires at least six hours of GAL education approved under SCR 36.03.

    If your answer is yes, you are eligible to accept the appointment. If your answer is no, you are not eligible to accept the appointment.

    Section III: Guardian ad Litem in Children’s Court and Juvenile Court

    May I accept an appointment as a GAL for children in Wis. Stat. chapter 48 (Children’s Code) or chapter 938 (Juvenile Justice Code)?

    Step One: Have you met the lifetime requirement of SCR 35?

    SCR 35.01(1) says that a lawyer may accept a GAL appointment under Wis. Stat. chapter 48 or 938 if the lawyer has attended 30 hours of GAL education approved under SCR 35.03. You are eligible to accept the appointment if you have met this lifetime 30-credit requirement.

    If your answer is yes, you are eligible to accept the appointment. If your answer is no, go to Step Two.

    Step Two: Has the court made special findings in appointing you?

    The court may waive the GAL training requirements if it makes a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which you are otherwise qualified by experience or expertise to represent the best interests of the minor. SCR 35.01(3).

    If your answer is yes, you are eligible to accept the appointment. If the answer is no, go to Step Three.

    Step Three: Have you met the less-than-lifetime credit requirements of SCR 35.01(2)?

    SCR 35.01(2) requires at least six hours of GAL education approved under SCR 35.03.

    If your answer is yes, you are eligible to accept the appointment. If your answer is no, you are not eligible to accept the appointment.

    Section IV: Guardian ad Litem in Family Court in 2021 and Beyond: First Appointment

    May I accept an appointment as a GAL for children in Wis. Stat. chapter 767 (Family Court)?

    Prologue: Is the court order appointing you dated after Jan. 1, 2021?

    If your answer is yes, go to Step One. If your answer is no, go to Section VI, below.

    Step One: Is this your first family court appointment by court order dated after Jan. 1, 2021?

    If your answer is yes, go to Step Two. If your answer is no, go to Section V.

    Step Two: Has the court made special findings in appointing you?

    The court may waive the GAL training requirements if it makes a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which you are otherwise qualified by experience or expertise to represent the best interests of the minor. SCR 35.015(2).

    If your answer is yes, you are eligible to accept the appointment. If the answer is no, go to Step Three.

    Step Three: Have you met the nine-credit threshold?

    SCR 35.015(1) requires at least nine hours of GAL education approved under SCR 35.03.

    If your answer is yes, go to Step Four. If your answer is no, you are not eligible to accept the appointment.

    Step Four: Have you met the three-credit “family violence” requirement?             

    Section 35.015(1)(a) requires that at least three of the nine (or more) hours be GAL education addressing the topic of family violence.

    If your answer is yes, go to Step Five. If your answer is no, you are not eligible to accept the appointment.

    Step Five: Have you met the three-credit family court guardian ad litem education requirement?

    Section 35.015(1)(b) requires that at least three of the nine (or more) hours be approved as family court GAL education under 35.03(1m)(a).

    If your answer is yes (and you confirm that your answers to Steps Three and Four are also yes), you are eligible to accept the appointment. If your answer is no, you are not eligible to accept the appointment.

    Section V: Guardian ad Litem in Family Court in 2021 and Beyond: Subsequent Appointments

    Prologue: Is the court order appointing you dated after Jan. 1, 2021?

    If your answer is yes, go to Step One. If your answer is no, go to Section VI, below.

    Step One: Is this your first family court appointment by court order dated after Jan. 1, 2021?

    If your answer is yes, return to Section IV. If your answer is no, go to Step Two.

    Step Two: Has the court made special findings in appointing you?

    The court may waive the GAL training requirements if it makes a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which you are otherwise qualified by experience or expertise to represent the best interests of the minor. SCR 35.015(2).

    If your answer is yes, you are eligible to accept the appointment. If the answer is no, go to Step Three.

    Step Three: Have you met the six-credit requirement?

    SCR 35.015(1m) requires at least six hours of GAL education approved under SCR 35.03.

    If your answer is yes, go to Step Four. If your answer is no, you are not eligible to accept the appointment.

    Step Four: Have you met the one-credit “family violence” requirement?

    Section 35.015(1m)(a) requires that at least one of the six (or more) hours be GAL education addressing the topic of family violence.

    If your answer is yes, go to Step Five. If your answer is no, you are not eligible to accept the appointment.

    Step Five: Have you met the two-credit family court guardian ad litem education requirement?

    Section 35.015(1)(b) requires that at least two of the six (or more) hours be approved as family court GAL education under 35.03(1m)(a).

    If your answer is yes (and you confirm that your answers to Steps Three and Four are also yes), you are eligible to accept the appointment. If your answer is no, you are not eligible to accept the appointment.

    Get Up to Date with The Guardian ad Litem Handbook

    Find essential, practical information for handling the unique legal issues that can arise from serving as a GAL, and gain insight into understanding the human side of your case with The Guardian ad Litem Handbook.

    The Guardian ad Litem Handbook covers the information, basic to complex, that you must know to fulfill your obligations, including:

    • The roles a GAL might be required to perform
    • The different situations in which a GAL might be called upon
    • Detailed directions for the GAL in various proceedings

    The Handbook also contains helpful discussions about typical considerations when working with children, elderly persons, and adults with disabilities, as well as techniques for GALs to use in interviewing clients.

    Now in its 5th edition, the book incorporates important recent legal and legislative developments to keep you informed. The Guardian ad Litem Handbook is available in print and online via the PINNACLE subscription-based online library, Books UnBound®. The print book is $200 per volume for members ($250 nonmembers), plus tax and shipping.

    Section VI: Guardian ad Litem in Family Court Before 2021

    Prologue: Is the court order appointing you dated before Jan. 1, 2021?

    If your answer is yes, go to Step One. If your answer is no, go back to Section IV, above.

    Step One: Has the court made special findings in appointing you?

    The court may waive the GAL training requirements if it makes a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which you are otherwise qualified by experience or expertise to represent the best interests of the minor. SCR 35.015(2).

    If your answer is yes, you are eligible to accept the appointment. If the answer is no, go to Step Two.

    Step Two: Have you met the six-credit requirement?

    SCR 35.015(1), as it exists before Jan. 1, 2021, requires at least six hours of GAL education approved under SCR 35.03.

    If your answer is yes, go to Step Three. If your answer is no, you are not eligible to accept the appointment.

    Step Three: Have you met the three-credit family court guardian ad litem education requirement?

    SCR 35.015(1), as it exists before Jan. 1, 2021, requires that at least three of the six (or more) hours be approved as family court GAL education under 35.03(1m)(a).

    If your answer is yes (and you confirm that your answer to Step Two is also yes), you are eligible to accept the appointment. If your answer is no, you are not eligible to accept the appointment.

    But, to be cautious, look at Step 4.

    Step Four: Have you met the requirements of Wis. Stat. section 757.48(1)?

    Wisconsin Statutes section 757.48(1) requires the GAL to have completed three hours of approved CLE that relates to the functions and duties of a GAL under Wis. Stat. chapter 767 and that includes training on the dynamics of domestic violence and the effects of domestic violence on victims and children. Apart from the issue of whether the legislature can impose this type of training requirement, the statute is also ambiguous in its application because it identifies neither the time frame for obtaining the credits nor the number of domestic violence credits required. If the hours approved for the CLE credits in Step 1 include any domestic violence training, then most likely you have met the standard of Wis. Stat. section 757.48(1). Remember that this Step Four requirement might not be enforceable, but you may not want to be the test case.

    Section VII: Frequently Asked Questions About Guardian ad Litem Education

    How do I know if a course is approved for GAL credits?

    To find out whether a particular course is approved for GAL credits, go to the website of the Wisconsin Board of Bar Examiners (a board of the Wisconsin Supreme Court): www.wicourts.gov/courts/offices/bbe.htm.

    Once there, go to the Continuing Legal Education link. At that link, you can enter the dates of any course and retrieve information about that course. One of the table columns lists the CLE credit approvals. The codes for that column are:

    CLE   Total number of CLE credits
    for the entire workshop.
    EPR   Ethics credits
    GALm   Guardian ad litem-minor credits (SCR 35)
    GALa   Guardian ad litem-adult credits (SCR 36)
    GALf    Guardian ad litem-minor family law education credits

    What about law school classes?

    Successfully completed law school classes may qualify as GAL credits under either SCR 35 or SCR 36. However, to ensure that the course qualifies, the BBE should approve it for GAL credits. If the instructor obtained approval for the course, that course will be listed on the BBE site and you can search for it using the first day of the course sessions. If the instructor did not obtain approval for the course, a student in the course can later seek approval by filing the requisite CLE Form 2: www.wicourts.gov/services/attorney/docs/cle2.pdf.

    Absent a different interpretation from the BBE, a new lawyer who earned GAL credits through a law school course would count those credits as being earned in the immediately preceding reporting period to the lawyer’s first reporting period.

    Will the BBE separately approve courses that meet the SCR 35 (2021) requirement of “education addressing the topic of family violence”?

    No. The BBE will continue to approve courses only as GALm and GALf, and all courses approved as GALf also will be approved as GALm. Lawyers must individually keep track of the CLE hours that they believe fulfill the family violence requirement. The family violence credits will not be separately approved or reported.

    Does an on-demand course count toward GAL credit requirements?

    An on-demand course counts toward GAL credit requirements if the course counts toward a lawyer’s overall CLE credits. SCR 31.05(5)(a). The rules do not require that GAL credits be earned in person or by live webinar. Through 2020, GAL credits may be earned all on demand under Supreme Court Order 20-01 (expanding repeated on-demand CLE credit counting through Dec. 31, 2020) and under a GAL-specific Supreme Court Temporary Order dated July 21, 2020 (linked here: www.wicourts.gov/news/docs/galorder.pdf). Be sure to check the general CLE reporting requirements and any special requirements that apply to GAL credits through 2020 and beyond.

    I would like to become a guardian ad litem. How do I find a list of the approved courses?

    The BBE website (see above) does not support searches of CLE courses based on GAL credit approval. To find GAL-approved courses on the BBE site, you must search by date, checking the approval column to determine if a workshop is (or was) approved for GAL credits. Another alternative is to search on other provider sites for upcoming or past workshops and then look on the BBE site to see if those workshops are approved. No statewide list of courses that have been approved for GAL credits exists.

    How do I prove that I am a certified guardian ad litem?

    Wisconsin does not “certify” lawyers. The requirements of SCR 35 and SCR 36 are self-enforcing. That is, by accepting a GAL appointment, you have represented to the court that you are eligible to accept the appointment under the applicable supreme court rule. SCR 35.02; SCR 36.02. If you are asked to prove that you are eligible for the appointment, you would simply produce a list of the approved courses you have attended. If you accept an appointment without meeting the SCR requirements, you have probably violated SCR 20:3.3 [Candor to the tribunal].

    Conclusion

    This article addresses only the CLE prerequisites for accepting appointment as a GAL. Fulfilling only these minimum requirements would be insufficient preparation to perform adequately in this area of legal practice. However, intentional substantive and legal preparation, when combined with meeting the CLE requirements, will provide lawyers with the tools they need to enter into this field.

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    What is the most rewarding part of your job?

    Gretchen VineyThe most rewarding part of my job is preparing students and new lawyers for legal practice. Everything I teach, every professional activity that I pursue, is with the goal of helping new lawyers enter the profession with confidence and enthusiasm. I sometimes think that law school is unintentionally designed to deflate high spirits, and I work awfully hard to be a re-inflator. The Lawyering Skills course (formerly General Practice) not only allows me to do that, but it also keeps me in touch with countless lawyers (and former students) throughout the state. I love my work!

    Of course, I also enthusiastically practiced law for nearly 40 years – I retired from active practice in 2017 – so I am grateful that my high school civics teacher suggested I consider a career in law. I love hearing from former students and mentees, and I hope that Lawyering Skills graduates will continue to support the program for years to come.

    Gretchen Viney, U.W. Law School, Madison.

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