Gibson v. Theut (CA1 3/12/19)

The issue is whether a minor’s court-appointed lawyer and guardian have judicial immunity.

Plaintiff murdered his father. His grandparents sued him in probate court for wrongful death. The court appointed for him a lawyer and also a guardian ad litem. (The opinion consistently refers to the guardian as a “GAL.” We will consistently refer to the guardian as a “guardian” and hope that none of you GALs will be offended. We don’t know whether that ghastly formulation is merely something the court or parties thought clever or whether it is a thing in the probate community now.) Allegedly, the pair did essentially nothing, resulting in summary judgment and a $51 million dollar award. Plaintiff then sued them for negligence and sued the county and the state for negligently hiring them. (Surely only a cynic would suggest that the whole thing was an interesting scheme and wonder who’s idea it was.)

Defendants all moved to dismiss. The guardian argued that he had absolute judicial immunity. The lawyer argued that he, too, had absolute immunity and that Plaintiff lacked standing because his client was the guardian. The county and state argued that the commissioner who appointed them had absolute immunity. (There were also a couple of fact-specific issues we will ignore.) The trial court granted the motions.

As to the guardian the Court of Appeals reverses. The guardian relied on Widoff v. Wiens, 202 Ariz. 383 (2002), which had held immune guardians appointed to investigate the minor’s parents in a custody dispute. (And which never referred to a guardian as a GAL.) But the court says that extensions of judicial immunity are “fact specific” and this guardian was acting on behalf of Plaintiff, not on behalf of the court. Widoff therefore does not apply. “Parties and their representatives, including those professionals appointed by the court, are not per se an extension of the court.” They are participants in the litigation, not arbiters. Finally, judicial immunity should not apply since it would allow a guardian to act contrary to the minor’s best interests.

The court also reverses as to the lawyer. The court follows cases from other states holding that a lawyer representing a guardian owes a duty to the minor. “No Arizona court has ever extended judicial immunity to parties or their representatives.” “To hold otherwise would functionally permit legal malpractice.”

As to the county and state the court agrees that the commissioner had immunity. But Plaintiff’s argument was that the governments themselves were negligent. The lawyer and guardian were contract attorneys; one or the other of the government defendants “pre-qualified” them and put them on the list from which the commissioner selected them even though they were allegedly probate/guardianship lawyers who were not competent to handle a civil case. The court says that a lawyer good at one thing might not be good at another, therefore Plaintiff’s allegation states a claim. (Yes, that’s what it says; read ¶ 36.)

On this record it isn’t clear how the list was prepared or even who did so. The court suggests that the parties revisit the issue via summary judgment after discovery.

There is a very brief separate opinion. It agrees with the majority as to the guardian and lawyer but disagrees as to the governments, arguing that the commissioner’s immune action was a superseding cause.

(Opinion: Gibson v. Theut)