Effort to grant immunity ends

Bill now lacks provision protecting children's court-appointed lawyers

General Assembly


Bowing to emotional opposition from divorced parents, Maryland lawmakers have abandoned a plan to grant malpractice immunity to court-appointed lawyers for children in bitter custody battles.

A Court of Appeals ruling in January found such lawyers were not a special class and could be sued like any other attorney for malpractice. The ruling also threw into question the ability of Maryland courts to assign "guardians ad litem" or "best-interest attorneys" for children in high-conflict custody cases, many of which involve abuse allegations.

Under revised legislation that cleared the House of Delegates on Monday and faces good prospects in the Senate, the court's assigning authority would be restored. But the bill has been stripped of a key proviso -- sharply debated in legislative hearings and newspaper opinion pieces -- that would have made it impossible to sue such attorneys.

"We believe that this will significantly cut down on careless, negligent and incompetent representation of children," said Greg Jacob, a federal lawyer who lobbied against the immunity provision.

Unlike other court-appointed lawyers, child guardians in custody disputes had been long been considered more like judges, for whom they investigate cases, and not liable.

Worried that the high court ruling would open the floodgates to lawsuits, family law attorneys pushed the General Assembly to restore immunity. But arguing that one group of lawyers should never be sued for malpractice -- when every doctor in the state can be -- proved a hard sell, said Del. Kathleen M. Dumais, a Montgomery County Democrat and the bill's lead sponsor.

Children's advocates and parents argued they had little recourse in cases where a child's attorney ignored evidence or sided with an abusive ex-spouse.

Several parents told heartbreaking stories of seeing their children harmed because of bad decisions by the lawyers who were supposed to protect them, including a 33-year-old father who failed to gain custody of his son in 2001 -- even though his ex-wife was engaged to a convicted child molester. The man broke down as he told legislators his worst nightmare has come true: Today, the stepfather is in a Western Maryland jail, charged with 21 counts of abusing his son and a friend.

"Those who lobbied against it won the day, and perhaps correctly so," said Sen. Brian E. Frosh, a Montgomery County Democrat who chaired the Senate review. The Senate bill differs slightly and includes language that child advocates fear could still create a back-door way to confer immunity on lawyers, but Frosh said the Senate most likely will make its bill conform to the House version.

Dumais acknowledged giving up on immunity was a "big concession," but said it was more important that courts retain their authority to appoint child guardians.

Family lawyers agreed. John Spiegel, an attorney and mediator who is president of the Montgomery County Divorce Roundtable, said, "To kill the bill is just not in the best interest of these vulnerable children, who through no fault of their own, find themselves caught between their parents' adversarial proceedings."

Guardians are still nervous about the possibility of frivolous lawsuits because their findings almost always make one parent unhappy, he and Dumais said. But Dumais, who has served as a guardian in the past, said she would continue to take such assignments. "It's a role I strongly believe in," she said.


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