A Judge’s Guide

epresentation, and consistent with the dignity, importance, independence, and
impartiality that they ought to have.
F. Immunity
Courts should take steps to protect all lawyers representing children from frivolous
lawsuits and harassment by adult litigants. Best Interests Attorneys should have
qualified, quasi-judicial immunity for civil damages when performing actions consistent
with their appointed roles, except for actions that are: (1) willfully wrongful; (2) done
with conscious indifference or reckless disregard to the safety of another; (3) done in
bad faith or with malice; or (4) grossly negligent. Only the child should have any right
of action against a Child’s Attorney or Best Interests Attorney.
Commentary
Lawyers and Guardians Ad Litem for children are too often sued by custody litigants.
Courts, legislatures, bar organizations and insurers should help protect all children’s lawyers
from frivolous lawsuits. Immunity should be extended to protect lawyers’ ability to fully
investigate and advocate, without harassment or intimidation. In determining immunity, the
proper inquiry is into the duties at issue and not the title of the appointment. Other
mechanisms still exist to prevent or address lawyer misconduct: (1) attorneys are bound by
their state bars’ rules of professional conduct; (2) the court oversees their conduct and can
remove or admonish them for obvious misconduct; (3) the court is the ultimate custody
decision-maker and should not give deference to a best-interests argument based on an
inadequate or biased investigation.
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