Letters
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 misperception 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
Wisconsin Lawyer