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PROTECTING THE VOICELESS: PRIMER ON THE ROLE OF THE GUARDIAN AD LITEM IN CIVIL LITIGATION

Written and Presented by:

JOHN G. ESCAMILLA Watts Law Firm

Texas State Bank Building, Suite 220 2314 W. University Dr. Edinburg, Texas 78539

Telephone (956) 381-0500 Facsimile (956) 381-4744

Presented by:

HON. JANET LEAL Cameron County Court at Law No. 1

Cameron County Courthouse Brownsville, Texas 78520 Telephone (956) 544-0855

State Bar of Texas SOAKING UP SOME CLE:

A SOUTH PADRE LITIGATION SEMINAR May 25-26, 2006

South Padre Island

CHAPTER 4

JOHN G. ESCAMILLA

Partner, Watts Law Firm LLP Texas State Bank Building, Suite 220

2314 W. University Dr. Edinburg, Texas 78539 Phone: (956) 381-0500 Fax: (956) 381-4744

Email: [email protected]

John Escamilla was born in Chicago, Illinois and raised in San Antonio, Texas. He was educated at the University of Texas at Austin, where he received a Bachelor of Arts Degree in English and History in 1991, and a Doctor of Jurisprudence in 1995. During law school, Mr. Escamilla received a Cain Foundation Public Interest Fellowship, clerked at Texas Rural Legal Aid in Weslaco, Texas, and served as Articles and Notes Editor for the Texas International Law Journal. After graduation, Mr. Escamilla served as the briefing attorney for Hon. Linda Reyna Yanez at the Thirteenth Court of Appeals in Edinburg, Texas for three years. In 1998, he joined the litigation firm of Rodriguez, Tovar, Calvillo & Garcia, L.L.P. in McAllen, Texas. Over the next five years, he represented clients in an array of lawsuits involving personal injuries, medical malpractice, products liability, civil rights, employment, contracts, and various commercial disputes. Mr. Escamilla has successfully tried cases to juries in throughout South Texas. He joined the Watts Law Firm as a partner in April 2004. In addition to his trial practice, Mr. Escamilla has served as appellate counsel in over forty appellate matters (including interlocutory appeals, mandamus proceedings, and appeals from final judgment). He is licensed to practice in all Texas state courts, the United States Court for the Southern District of Texas, the United States Fifth Circuit Court of Appeals, and the United States Court of Federal Claims. John is a member of the Texas Trial Lawyers Association and the Bar Association for the Fifth Federal Circuit. He serves on the board of directors for the Hidalgo County Bar Association and is editor of the HCBA’s monthly newsletter, The Summons. He sits on the City of McAllen’s Police Relations Committee and is a judge for the City of McAllen’s Teen Court. He previously served on the board of directors of the Advocacy Resource Center for Housing.

JANET L. LEAL ________________________________________________________________________

974 E. Harrison St. – Brownsville, Texas 78520 Phone: (956)544-0855 Fax: (956)548-9542

________________________________________________________________________ Professional Experience Judge, County Court at Law No. 1 January, 1999 to Present Attorney, Law Office of Gonzalez & Leal 1996 to 1999 Assistant District Attorney, Cameron County District 1992 to 1996 Attorney’s Office Attorney, Law Office of Miller & Associates, 1987 to 1992 Houston, Texas Education Graduate of Homer Hanna High School 1980 Associate of Arts Degree – Texas Southmost College 1982 Summa Cum Laude Bachelor of Arts Degree – Pan American University 1984 Magna Cum Laude Doctor of Jurisprudence – South Texas College of Law 1987 Admitted to the State Bar of Texas 1987 Organizations

• Vice-President of Tip of Texas Family Outreach 1997-Present • Member Historic Brownsville Rotary 1997-Present • Member Juvenile Board 1998-Present • Member of Tip of Texas Girl Scouts Council 2000-Present • Member of Board of Directors of United Way 2001-Present • Chairman of Bail Bond Board 2001-2003 • Advisory Board C.A.S.A. 1995-1999

______________________________________________________________________________________ Personal Born in Brownsville, Texas Daughter of Beto and Georgia Leal Married to Chester Gonzalez Mother of three Vanessa (12), Victor (4) and Victoria (4)

Table of Contents

Page Part I Primer on Guardian Ad Litems

I. Introduction 1 II. What is a guardian ad litem? 1 III. Under what circumstances is a guardian ad litem appointed? 2 IV. What are the guardian ad litem’s duties? 4 V. Who may serve as a guardian ad litem? 5 VI. What limitations are there on the work performed by ad litems? 5 VII. What liabilities does the guardian ad litem assume when appointed? 6 VIII. How are guardian ad litems compensated for their services? 7

Part II Texas Rule of Civil Procedure 173

I. The Way It Was 8 II. Why It Changed 9 III. The Way It Is 10

173.1 Appointment Governed by Statute or Other Rules 10 173.2 Appointment of Guardian Ad Litem 10 173.3 Procedure 11 173.4 Role of Guardian Ad Litem 11 173.5 Communications Privileged 12 173.6 Compensation 12 173.7 Review 13 Comments 14

Conclusion 15

Protecting the Voiceless: Primer on the Role of the Guardian Ad Litem in Civil Litigation Chapter 4

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Part I

Primer on Guardian Ad Litems

I.Introduction

Attorneys are routinely appointed torepresent disabled, incompetent, absent, orotherwise voiceless persons in civil lawsuits.Depending on the nature of proceeding andthe circumstances, the role of a guardian adlitem can differ considerably. This paperwill identify the various statutory andprocedural rules identifying the role ofguardian ad litems, but will focus primarilyon the Texas Rule of Civil Procedure 173“Guardian Ad Litem.” This rule wascompletely rewritten effective in February2005 in an attempt to narrow the scope ofwork a guardian ad litem performs whenappointed under the rule.

II.What is a guardian ad litem?

Barron’s Law dictionary provides thefollowing definition of the terms “ad litem,”“guardian ad litem,” and “guardian”:

Ad litem. For the suit; for the purposeof the suit; pending the suit.A guardian ad litem is a guardianappointed to prosecute or defend a suiton behalf of a party incapacitated byinfancy or otherwise.Guardian. A person lawfully investedwith the power, and charged with theduty, of taking care of the person andmanaging the property and rights ofanother person, who, for defect of age,understanding, or self-control, isconsidered incapable of administeringhis own affairs. One who legally hasthe care and management of theperson, or the estate, or both, of achild during its minority.

The terms “guardian ad litem” and “attorneyad litem” are often used interchangeably bylitigants and courts, but there are important

distinctions that should be acknowledgedbetween the two. In particular, the TexasFamily Code defines each very differently,and assigns different roles to each. One ofthe most apparent distinction is that aguardian ad litem need not be an attorney,but only attorneys may serve as an “attorneyad litem.”

An attorney ad litem must advocatein furtherance of the wishes of the ward,rather than what is in the best interests perse. The powers and duties of the attorney adlitem are set out in TEX. FA M . CODE

§ 107.013 & 107.014. Oftentimes, courtsappoint attorneys to serve in a “dual role” asboth attorney ad litem and guardian ad litem.TEX. FAM. CODE § 107.001(5)(D). In suchcases, the potential for a conflict of interestbetween the two might develop. See In reDoe 2, 19 S.W.3d 278, 280 n.2 (Tex. 2000)(attorney appointed in dual role in casewhere minor requested a waiver of parentalnotification to obtain an abortion). Thispresentation focuses solely on the role of theguardian ad litem.

The Texas Family Code defines a“guardian ad litem” as follows:

"Guardian ad litem" means a personappointed to represent the best interestsof a child. The term includes:

(A) a volunteer advocate appointedunder Subchapter C;(B) a professional, other than anattorney, who holds a relevantprofessional license and whosetraining relates to the determinationof a child's best interests;(C) an adult having the competence,training, and expertise determined bythe court to be sufficient to representthe best interests of the child; or(D) an attorney ad litem appointed toserve in the dual role.

TEX. FAM. CODE § 107.001(5).The Texas Probate provides a similar,

though less specific definition. A "Guardianad litem" is defined as “a person who isappointed by a court to represent the bestinterests of an incapacitated person in a

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guardianship proceeding.” TEX. PROBATE

CODE § 601(12).The Texas Rules of Civil Procedure do

not define “guardian ad litem,” but merelydescribe its role: “A guardian ad litem mustdetermine and advise the court whether aparty's next friend or guardian has aninterest adverse to the party,” and when asettlement offer is made, an offer has beenmade to settle the claim of a partyrepresented by a next friend or guardian, aguardian ad litem has the limited duty todetermine and advise the court whether thesettlement is in the party's best interest.TEX. R. CIV.P. 173.4(a-c).

III. Under what circumstances is a guardian

ad litem appointed?

Guardian ad litems may be appointedpursuant to statute (Family Code, ParentalNotification Statute, Probate Code, orProperty Code) or by other procedural rules(TEX.R.CIV.P. 173). The purpose and dutiesof the guardian ad litem differ depending ofthe various circumstance under which theymight be appointed.

Guardian ad litems represent personswho have some condition which rendersthem incapacitated under Texas law.Typically, the circumstances which render aperson legally “incapacitated” relate to theirage or heath. Whenever the rights of anincapacitated person are potentially affectedby a legal proceeding, guardian ad litems aretypically represented to act on behalf of theperson. The following categories of personsare considered “incapacitated under theTexas Probate Code:

(A) a minor;(B) an adult individual who, because

of a physical or mental condition, issubstantially unable to provide food,clothing, or shelter for himself or herself, tocare for the individual's own physical health,or to manage the individual's own financialaffairs; or

(C) a person who must have aguardian appointed to receive funds due theperson from any governmental source.TEX. PROBATE CODE § 601(14). Evidenceof a physical or mental condition must bebased on recurring acts or occurrence withthe preceding six (6) month period and notbased on a single occasion or occurrence.TEX. PROBATE CODE § 684(c).

The work of guardian ad litems takesoften takes on constitutional implications,such as when the state petitions to terminateparental rights. The Texas Constitutionprovides that “No citizen of this State shallbe deprived of life, liberty, property,privileges or immunities, or in any mannerdisfranchised, except by the due course ofthe law of the land.” TEX. CONST. Art. 1, §19. When the state seeks to terminateparental rights, or curtain rights to parentalsupport, constitutional rights may beimplicated. See Gomez v. Perez, 490 U.S.535 (1973).

Mandatory Guardian Ad LitemsThere are a number of specific

circumstances in which the Texas legislaturehas determined should always require theappointment of a guardian ad litem:

Termination of Parental Rights - Texaslaw requires a court appointed guardian adlitem for a child immediately after the filingof a petition for termination of parentalrights, but before full adversary hearing.TEX. FAM. CODE § 107.011. It also requiresthe appointment of an attorney ad litem forthe child immediately after the filing, butbefore a full adversary hearing “to ensureadequate representation of the child.” TEX.FAM. CODE § 107.012. However, if the childis the petitioner, and an attorney ad litem hasbeen appointed, or the interest of the childwill be represented by a party, it is notnecessary to appoint a guardian ad litem.

Parental notification statute - Apregnant minor who wishes to have anabortion without notification to one of herparents may file an application for a courtorder authorizing the minor to consent to theperformance of an abortion withoutnotification to either of her parents or amanaging conservator or guardian. TEX.

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FAM. CODE § 33.003(a). In such cases, thecourt must appoint an guardian ad litem forthe minor and, if the minor has not retainedan attorney, the court shall appoint anattorney to represent the minor. Id. at §33.033(e). If the guardian ad litem is anattorney admitted to the practice of law inthis state, the court may appoint the guardianad litem to serve as the minor's attorney.

Discretionary Guardian Ad Litems:There are also a number of

circumstances which have been identified bystatutes which vest trial courts with authorityto appoint a guardian ad litem, in theirdiscretion. The following are examples:

Pending litigation - For example, a courtmay, “at any point in a proceeding“ appointa guardian ad litem to represent the interestof a minor, an incapacitated, unborn, orunascertained person, or person whoseidentity or address is unknown, “if the courtdetermines that representation of the interestotherwise would be inadequate.” TEXAS

PROP. CODE § 115.014. The Family Codehad a similar discretionary provision. SeeTEX. FAMILY CODE § 107.011(a) (“Anassociate judge shall recommend theappointment of an attorney ad litem for anyparty in a case in which the associate judgedeems representation necessary to protectthe interests of the child who is the subjectmatter of the suit.”).

Performance contracts for minors - Acourt may appoint a guardian ad litem for aminor who has entered into an arts andentertainment contract, advertisementcontract, or sports contract if the court findsthat appointment of the ad litem would be inthe best interest of the minor. TEX.PROBATE CODE § 905. An additional basiswhich a guardian ad litem may be appointedis Texas Rule of Civil Procedure 173, whichauthorized to the court to act when apotential conflict of interest between a minorand “next friend” arises.

Conflict with “next friend” - A trialcourt may appoint a guardian ad litem for aparty represented by a next friend orguardian only if: (1) the next friend orguardian appears to the court to have an

interest adverse to the party, or (2) theparties agree.

The determination of the existence of aconflict requires exercise of judicialdiscretion. Gibson v. Blanton, 483 S.W.2d372, 272 (Tex. App.—Houston [1st Dist.]1972, no writ). The conflict does not haveto be actual to justify an ad litem; thepotential for a conflict during trial orsettlement negotiations is enough to warrantthe appointment of a guardian ad litem,because that is where the interests ofpreviously aligned parties are prone to bediverge. McAllen Med. Cntr. v. Rivera, 89S.W.2d 90, 94 (Tex. App.—Corpus Christi2002, no pet.).

The guardian ad litem should beinvolved only so long as the conflict exists.If it ceases to exist, the trial court shouldremove the ad litem. Brownsville-ValleyReg. Md. Cntr. v. Gamez, 894 S.W.2d 753,755 (Tex. 1995).

The Thirteenth Court of Appealsrecently held in Owens v, Perez ex rel. SanJuana Morin, 158 S.W.2d 96, 112 (Tex.App.—Corpus Christi 2005, no pet.), thatthe appointment of an ad litem pursuant toRule 173 was an abuse of discretion becauseit found there to be no conflict of interest tojustify the appointment. In that case,Domingo Perez had filed a medicalmalpractice suit as next friend of MariaMorin, a non compos mentis, but asserted noclaim of his own. Prior to trial, Morin andPerez argued that a guardian ad litemappointment was necessary because therewas a conflict between them. Id. The trialcourt appointed an ad litem, denied Owen’swritten objections and motion to withdrawthe ad litem. Id. at 112. The case was triedand a verdict rendered in plaintiffs’ favor.Owens appealed the order appointing the adlitem and the award of fees. The appellatecourt agreed with Owens, noting that therewas no familial relationship between them(Perez merely referred to Morin as his“aunt” because she had raised him), andMorin did not have a will naming Perez asan heir. I d. Because there was no way





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Perez would otherwise be entitled to any ofMorin’s recovery, there was no conflict ofinterest between Morin and her next friend.The appellate court reformed the judgmentbe delete the award of ad litem fees. Id.

IV.What are the guardian ad litem’s duties?

The specific duties of the guardian adlitem depend of the context in which it areappointed. In most cases, they have a dualrole. Guardians act as an officers andadvisors to the court. TEX.R.CIV.P. 173;Jocson v. Crabb, 133 S.W.3d 268, 271 (Tex.2004). But they are also asked to representthe best interests of the ward or proposedward for whom they have been appointed torepresent. S e e TEX. PROBATE CODE

§ 601(12).

Deficient work by a guardian ad ltiemwill not necessarily result in the reversal of ajudgment based on ineffective assistance ofcounsel or other grounds. As one courtrecently explained, “[t]he quality of aguardian ad litem’s investigation andrepresentation at trial has more to do withthe reliability and credibility of herrecommendation to the trial court than thepropriety of the trial court’s judgment.”Askew v Askew, 2005 WL 241539 (Tex.App.—Fort Worth 2005, no pet.)(notpublished).

A. Texas Family Code

Section 107.002 of the Texas FamilyCode, “Powers and Duties of Guardian AdLitem for Child,” provides an outline of theduties of the guardian ad litem.

(a) A guardian ad litem appointed for a childunder this chapter is not a party to the suitbut may:

(1) and review copies of the child'srelevant medical, psychological, andconduct an investigation to the extentthat the guardian ad litem considersnecessary to determine the bestinterests of the child; and

(2) obtain school records as providedby Section 107.006.

(b) A guardian ad litem appointed for thechild under this chapter shall:

(1) within a reasonable time after theappointment, interview:

(A) the child in a developmentallyappropriate manner, if the child isfour years of age or older;(B) each person who hassignificant knowledge of the child'shistory and condition, includingany foster parent of the child; and(C) the parties to the suit;

(2) seek to elicit in a developmentallyappropriate manner the child's expressedobjectives;(3) consider the child's expressedobjectives without being bound by thoseobjectives;(4) encourage settlement and the use ofalternative forms of dispute resolution;and(5) perform any specific task directed bythe court.

B. Texas Rule of Civil Procedure 173

The rule spells out three specific tasksthat the guardian ad litem may be expectedto perform:

(1) Act as an officer of and advisor tothe court;

(2) Determine and advise the courtwhether the next friend has aninterest adverse to the party; and

(3) When settlement is proposed, theguardian ad litem has the limitedduty to determine and advise thecourt whether the settlement is inthe party’s best interest.

Guardian ad litems owe fiduciary dutiesto the person whom they are appointed torepresent. Byrd v. Woodruff, 891 S.W.2d689, 705-06 (Tex. App.-Dallas 1994, writdenied). They clearly have the duty toevaluate a proposed settlement from theminor's (or otherwise incapacitated





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person’s) perspective and make arecommendation to the court on the minor'sbehalf. Id. In reviewing a settlement offer,the guardian ad litem's duty includesevaluating the damages suffered by theminor, the adequacy of the settlement, theproposed apportionment and manner ofdistribution of the settlement proceeds andthe amount of attorney's fees charged by theplaintiff's attorney. Id. at 707 (guardian adlitem appropriately participated in thesettlement conference, reviewed theevidence, examined the legal issues andconsulted with the minor and her parents).

V.Who may serve as a guardian ad litem?

Qualification – According to the Familycode, a person need not be an attorney to beappointed a guardian ad litem. See TEX.FAM. CO D E § 107.001(5). Trial courtsroutinely appoint trained laypersons, such asthose associated with Court AppointedSpecial Advocates, or “CASA”, to act asguardian ad litems in custody and parentaltermination proceedings. The Texas StateBar is required to provide a course ofinstruction for attorneys who representparties in guardianship cases or who serve ascourt appointed guardians. TEX. GOV’T

CODE § 81.114. The courses may includeinformation about duties and responsibilitiesof guardian add litems. Id. The State Barholds an annual Guardianship CLE. Somefamily and probate courts require thisinstruction before a lawyer may beappointed as either a guardian ad litem orattorney ad litem, and courses are availablethrough local Bar Associations or advocacyorganizations such as CASA.

Disqualification - There are a number ofreasons why a person might be disqualifiedfrom serving as a guardian ad litem, most ofwhich relate to the familial or financialrelationship between the proposed guardianand the potential ward and his/her familymembers.

Under the Texas Probate Code, a personmay not be appointed guardian if the personis: (1) a minor; (2) a person whose conductis notoriously bad; (3) an incapacitatedperson; (4) a person who is a party or whoseparent is a party to a lawsuit concerning oraffecting the welfare of the proposed ward,unless the court: (A) determines that thelawsuit claim of the person who has appliedto be appointed guardian is not in conflictwith the lawsuit claim of the proposed ward;or (B) appoints a guardian ad litem torepresent the interests of the proposed wardthroughout the litigation of the ward'slawsuit claim; (5) a person indebted to theproposed ward unless the person pays thedebt before appointment; (6) a personasserting a claim adverse to the proposedward or the proposed ward's property, realor personal; (7) a person who, because ofinexperience, lack of education, or othergood reason, is incapable of properly andprudently managing and controlling theward or the ward's estate; (8) a person,institution, or corporation found unsuitableby the court; (9) a person disqualified in adeclaration made under Section 679 of thiscode; or (10) a nonresident person who hasnot filed with the court the name of aresident agent to accept service of process inall actions or proceedings relating to theguardianship. TEX. PROBATE CODE § 647.

VI.What limitations are there on the work

performed by a guardian ad litem?

A guardian ad litem appointed underTEX. FAM. CODE § 107.001, addressing thetermination of parental rights, is not requiredto conduct an investigation to determine thebest interests of the child. The guardian adlitem may do so to the extent the guardianconsiders necessary to determine the bestinterests of the child. The primary focus ofthe guardian’s responsibility is the proprietyof termination based on the conduct of theparent, not the merits of alternativeplacement of the child. In the Interest ofD . M . C ., 168 S.W.3d 319, 321 (Tex.App.—Texarkana 2005, no pet.). Section



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107.002 vests the guardian ad litem withauthority to request and obtain a wide arrayof information, including relevant medical,psychological, and conduct an investigationto the extent that the guardian ad litemconsiders necessary to determine the bestinterests of the child, school records, and tointerview “each person who has significantknowledge of the child's history andcondition.”

Texas Rule of Civil Procedure173places a number of express restrictions onguardian ad litems. A guardian ad litem: (1)may participate in mediation or a similarproceeding to attempt to reach a settlement;(2) must participate in any proceedingbefore the court whose purpose is todetermine whether a party's next friend orguardian has an interest adverse to the party,or whether a settlement of the party's claimis in the party's best interest; (3) must notparticipate in discovery, trial, or any otherpart of the litigation unless: (A) furtherparticipation is necessary to protect theparty's interest that is adverse to the nextfriend's or guardian's, and (B) theparticipation is directed by the court in awritten order stating sufficient reasons.Tex.R.Civ.P. 173.4(d). An ad litem is notrequired, or advised, to attend depositions,go over every document filed in the case,add participate n trial, but the rule advisesthat they must realize that they do so withthe risk of not being compensated. Id.Comment 3.

VII.What liabilities does the guardian ad

litem assume when appointed?

Both the statutes and rules whichspecially reference ad litems provide forsome level of immunity from suit arisingfrom their work as ad litems.

Tex. Family Code - A guardian ad litemappointed under the parental bypass chapter,and acting in the course and scope of theappointment, is not liable for damagesarising from an act or omission of the

guardian ad litem committed in good faith.TEX. FAMILY CODE § 33.006. Thisimmunity does not apply if the conduct ofthe guardian ad litem is committed in amanner descr ibed by Sec t ions107.003(b)(1)-(4).

Tex. Probate Code - A guardian adlitem appointed under Section 645, 683, or694A to represent the interests of anincapacitated person in a guardianshipproceeding involving the creation,modification, or termination of aguardianship is not liable for civil damagesarising from a recommendation made or anopinion given in the capacity of guardian adlitem. TEX. PROBATE CODE § 645A(a). Thisimmunity does not apply, however, to arecommendation or opinion that is: (1)wilfully wrongful; (2) given with consciousindifference or reckless disregard to thesafety of another; (3) given in bad faith orwith malice; or (4) grossly negligent. TEX.PROBATE CODE § 645A(b).

Tex.R.Civ.P. 173 - As an officer andadvisor to the court, a guardian ad litemshould have qualified judicial immunity.TEX.R.CIV.P. 173, Comment 5. As such, aguardian ad litem’s liability would begoverned by the “objective reasonableness”standard first set out in City of Lancaster v.Chambers , 883 S.W.2d 650, 656 (Tex.1994); see Murillo v. Garza, 881 S.W.2d199, 202 (Tex. App.--San Antonio,1994, nowrit) (holding that this standard applies toall qualified immunity cases). A party suinga guardian ad litem would have to prove that“no reasonable person in [the guardian adlitem’s] position could have thought thefacts were such that they justified [theguardian ad litem’s] act.” Id. at 657. Thetest is one of objective legal reasonableness,without regard to whether the ad litem actedwith subjective good faith. Id. at 656.

The comments to the Rule 173 alsostate, however, that the guardian ad litem’scompliance with the rule may be enforcedthrough “appropriate sanction” should the





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rule be violated.

VIII.How are guardian ad litems

compensated for their services?

Perhaps no issue has been litigated asmuch as this issue, particularly in thecontext of Texas Rule of Civil Procedure173. In fact, in the comments of therevision, the Court noted that the majorchanges to the rule were made to limit theinvolvement of ad litems, which in turnlimits their potential compensation.

TEX. R . C I V .P. 173 was revised toexpressly limit the potential compensationof guardian ad litems attorneys. They aredirected not to participate in discovery. It isnoted that “only in extraordinarycircumstances does the rule contemplate thata guardian ad litem will have a broaderrole.” Comment 4. Because the role ofguardian ad litem is limited in all butextraordinary situations, and any risk thatmight result from services performed is alsolimited, compensation, if any is sought,should ordinarily be limited.

Determinat ions regarding thecompensation of ad litems are within thediscretion of the trial court. Simon v YorkCrane & Rigging Co., 739 S.W.2d 793, 794(Tex. 1987)). Prior to the revision of therule, a number of substantial ad litem awardswere affirmed based on the analysis oflodestar factors under the abuse of discretionstandard of review. See Landrover UK v.H i n o j o s a , 2004 WL 1632657 (Tex.App.—Corpus Christi 2004, pet. filed)(unpublished) (citing Garcia v. Martinez,988 S.W.2d 219, 222 (Tex. 1999), forsetting out these factors) ($100,000 fee);Phillips Petroleum v. Welch, 702 S.W.2d672, 674 (Tex. App.—Houston [14th Dist.]1985, writ ref’d n.r.e.) ($666,667 fee).

In Borden v Martinez, 19 S.W.3d 469(Tex. App.—San Antonio 2000, no pet.), thecourt reviewed an award attorney’s fees to

three guardian ad litems in the amounts of$45,000, $75,000, and $80,000,respectively. Reviewing the award under anabuse of discretion standard, the court notedeight factors pertinent to the feedetermination:

- the time and labor required thenovelty and difficulty of thequestions involved, and the skillrequired to perform the legalservices properly;

- the likelihood that the acceptance ofthe particular employment wouldpreclude other employment by thelawyer;

- the fee customarily charged in thearea for similar legal services;

- the amount involved and the resultsobtained;

- the time limitations imposed by theclient of the circumstances;

- the nature and length of theprofessional relationship with theclient;

- the experience, reputation andability of the lawyer or lawyersperforming the services; and

- whether the fee is fixed orcontingent on results obtained oruncertainty of collection before thelegal services have been rendered.

Id. at 472 (citing Simon v York Crane &Rigging Co., 739 S.W.2d 793, 794 (Tex.1987)).

While these factors have not beendiscounted by the new Rule 173, much ofthe grounds relied upon by guardian adlitems to justify such fees have beenstripped. It is no longer feasible forattorneys to explain that they turned awayother work, or invested large amounts oftime in a case in which they have beenappointed under TEX.R.CIV.P. 173, becausethey are rarely to get involved in a casebeyond settlement discussions. Therefore, itappears as thought he era of six figureguardian ad litems are over. Still, the ruledoes acknowledge that circumstances mayarise which justify an expanded role for adlimes. There must be a written order from








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the trial court authorizing such an expandedrole, however, before time is expended.

PART II

TEXAS RULE OF CIVIL PROCEDURE 173

The procedural rule regarding theappointment of guardian ad litems was“completely revised” in 2004, and the rulewent into effect on February 1, 2005.Although there have been less than ahandful of decisions interpreting the newrule, the changes it have effectuated warrantclose review.

I.The Way It Was

The former Rule 173 (before Feb. 1,2005) was a single paragraph, and stated:

When a minor, lunatic, idiot or anon-compos mentis may be adefendant to a suit and has noguardian within this State, or wheresuch person is a party to a suit eitheras plaintiff, defendant or intervenorand is represented by a next friendor a guardian who appears to thecourt to have an interest adverse tosuch minor, lunatic, idiot or non-compos mentis, the court shallappoint a guardian ad litem for suchperson and shall allow him areasonable fee for his services to betaxed as a part of the costs.

Much of the litigation concerning adlitems concerned the scope of representationprovided by guardian ad litems, and theextent to which they should be compensatedfor their services. The uncertainty in theduties of the guardian ad litem is inherent,because an ad litem is typically asked tocome into a case near the end, or during thesettlement discussions, and give opinionsregarding the fairness and wisdom of theproposed settlement. Temporally, theguardian ad litem is appointed after theworkup on the case is effectively over, but

he or she cannot be expected to providesound advice on these issues without delvinginto the facts. The extent to which ad litemsmay delve, however, has been debated bylitigants for years. Last year, the rules weremodified to try and end the debate. Guardianad litems have been advised to delve pastsettlement discussions at their own risk.TEX.R.CIV.P. 173, comment 3 (“A guardianad litem may, of course, choose to reviewthe file or attend proceedings when it isunnecessary, but the guardian ad litem maynot be compensated for unnecessaryexpenses or services.”).

Prior to 2004, there were differing viewsconcerning the extent of the work an adlitem undertook when appointed. Aguardian ad litem's duty is to act as thepersonal representative of the minor, ratherthan as the attorney for the minor, and toparticipate only to the extent necessary toprotect the minor's interests. Jocson, 133S.W.3d at 271 (citing Am. Gen. Fire & Cas.,907 S.W.2d at 493 n. 2). No statute preciselydefines the scope of participation by aguardian ad litem in a personal injurylawsuit. Case law, however, instructs us thatalthough a guardian ad litem is allowedsome latitude in determining what activitiesbest serve the minor's interests, he mustrestrict his actions to those necessary toperform the ad litem's limited role. Phillips,702 S.W.2d at 674; Byrd, 891 S.W.2d at705-06. The guardian ad litem's servicesmust not duplicate the work performed bythe plaintiff's attorney. Phillips, 702 S.W.2dat 674. A guardian ad litem may only attenddepositions, hearings and conferences,participate in strategy sessions withattorneys and engage in other activitieswhen they are necessary to protect theminor's interests. Roark v. Mother FrancesHosp., 862 S.W.2d 643, 647 (Tex. App.-Tyler 1993, writ denied) (guardian ad litem'sparticipation in filing and serving pleadings,strategy sessions with plaintiff's counsel andvoir dire and assuming lead in settlementnegotiations was beyond scope of his roleand time was properly discounted as non-








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compensable). If an ad litem engages inwork more appropriate for the plaintiff'sattorney and beyond the scope of the adlitem's role, such work is non-compensable.Id.; Gamez, 894 S.W.2d at 755.

A guardian ad litem clearly has the dutyto evaluate a proposed settlement from theminor's perspective and make arecommendation to the court on the minor'sbehalf. B y r d , 891 S.W.2d at 706. Inreviewing a settlement offer, the guardian adlitem's duty includes evaluating the damagessuffered by the minor, the adequacy of thesettlement, the proposed apportionment andmanner of distribution of the settlementproceeds and the amount of attorney's feescharged by the plaintiff's attorney. Id. at 707(guardian ad litem appropriately participatedin the settlement conference, reviewed theevidence, examined the legal issues andconsulted with the minor and her parents).

A guardian ad litem's review ofdiscovery documents and pleadings shouldbe guided, and constrained, by what isreasonable and necessary to prepare formediation and evaluate a potentialsettlement from his minor's perspective. SeeByrd, 891 S.W.2d at 706-07. As a rule, it isnot necessary or appropriate for a guardianad litem to review all discovery motions anddepositions and to participate in all pre-trial,discovery and sanctions hearings withoutregard to their relevance, or irrelevance, tothe minor's interests. When in doubt, timeand circumstances permitting, a guardian adlitem should request guidance from the trialcourt in advance before engaging in theparticular activity in question. See Jocson,133 S.W.3d at 270 (recognizing that“[w]hile the parties would be wise to seekdirection from the court when they disagreeabout an ad litem's role, it could beexpensive and disruptive if they had topursue every disagreement to a hearingthroughout the pretrial process”).

II.Why It Was Changed

Goodyear v. Gamez exemplified someof the problem that appellate courts grappledwith when considering fees in high dollarlitigation. It addressed a situation in which atrial court appointed several attorneys, onefor each minor child, whose wrongful deathclaims were prosecuted by an adult as nextfriend. The court appointed attorneys spendhundreds of hours reviewing the paperworkthat had been generated in the case, beforethe friendly suit. The trial court awarded adlitem fees in excess of $397,000.

The Gamez court looked critically at thework performed by the attorneys, andconcluded that the billing was excessive. Itreferenced the proposed rule, which statedthat ad litem hours were to be limited inmost cases. Adding to the court’s criticismwas the observation made by a concurringjudge that an ad litem had billed for 24 hourperiods, which it construed as sanctionableconduct under the disciplinary rules.

The problem stemmed, in part, frominconsistent opinions regarding he role ofthe ad litem. While some court entrusted adlitem to perform as much work andinvitation as they felt necessary, see e.g.Borden , 19 S.w.3d at 475 ($200,000 adlitem fee in case where recovery was $7.5million was not an abuse of discretionbecause nature of case required the to usetheir “hard-earned skills” beyond normal adlitem role), and Landrover, (no abuse ofdiscretion in $100,00 fee paid to attorneywith extensive experience and a customaryhourly fee of $500), other courts lookedmore critically on the time expended and thehourly rates charged. See e.g. Holt TexasLtd., v. Hale, 144 S.W.3d 592, 596 (Tex.App.—San Antonio 2004, no pet)(court heldthat $50,000 fee for ad litem whodocumented 90 hours of work wasexcessive, regardless of the particular skillshe possessed); Intern’l Dairy Queen v.Matthews , 126 S.W.3d 629, 633 (Tex.App.—Beaumont 2004, no pet.) (holdingthat fee award of more than $700 per hourwas excessive, particular when attorneyfailed to segregate work performed vs.defendants who aid the fee form otherdefendants).








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The Texas Supreme court ordered therule into effect on February 1, 2005, anddescribed the change in its press release asfollows:

Revised Texas Rule of CivilProcedure 173 establishes limits onthe guardian ad litem’s duties andresponsibilities in a case. Bylimiting the ad litem’s role, the ruleconsequently seeks to limit the adlitem's compensation. This rule willtake effect February 1.

III.The Way It Is

The new rule seeks to impose clearboundaries on the work of ad litems. Whilethe compensation remains discretionary, andthe methodology the same, the scope of thepermissible work performed by guardian adlitems has been substantially narrowed.

173.1. Appointment Governed by Statuteor Other Rules1

This rule does not apply to anappointment of a guardian ad litemgoverned by statute or other rules.

By including this limitation, the ruleexpressly recognizes that it applies only tocourt appointments in the context of pendinglimitations. If any other provisions of theFamily Code, the Probate Code, or someother statute that have required orprecipitated the appointment, those statutesdefine all aspects of the guardian ad litem’swork. It might behoove the appointedguardian ad litem to obtain a written orderfrom the trial court specifying the rule orstatute under which the appointment ismade, in order to avoid any confusion downthe road.

173.2. Appointment of Guardian Ad

1 The text in each of the numbered paragraphs arethose of the committee, and accompany the new rule.My commentary follows each numbered paragraph.

Litem(a) When Appointment Required orProhibited. The court must appoint aguardian ad litem for a party representedby a next friend or guardian only if: (1)the next friend or guardian appears to thecourt to have an interest adverse to theparty, or (2) the parties agree.

This does not substantially modify theconditions under which a mandatoryappointment is made. While it is notrequired that an actual conflict bedemonstrated before an ad litem isappointed, it is typically recognized tatsettlement offers may precipitate theappointment of and litem. However, itshould be noted that, in determining whethera guardian ad litem is necessary,“generalized testimony” regarding “thecontinued presence of ‘money’ in a lawsuit”is not enough to support a finding that aconflict of interest exists. Jocson v. Crabb, --- S.W.3d --, 2005 WL 215137 at 3 (Tex.App.—Houston [1st Dist.] 2005, no pet.). Ifthe appointment is contested, a recordshould be made regarding the presence of anoffer and the proposed division of themonies. Id. Parties must make a showingthat the party and the next friend are bothgoing to recover a portion of settlementmonies. Id.

Subsection (2) leaves open thepossibility that situations may arise wherethe parties agree that an ad litem should beappointed even when there is no apparentconflict. Because the conflict typically arisesonce a settlement offer is made, thissubsection may contemplate appointmentsearlier in litigation, before any offer is made.If both sides agree that the appointment of aguardian an ad litem may facilitatesettlement even when there is no apparentconflict, they might agree to an appointmentunder this provision.

(b) Appointment of the Same Person forDifferent Parties. The court must appoint


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the same guardian ad litem for similarlysituated parties unless the court finds thatthe appointment of different guardians adlitem is necessary.

This is simply a codification of existingcases. The rule expressly disaffirms theappointment of multiple ad litems, asoccurred in situations like Goodyear vGamez, where multiple guardian ad litemswere appointed for each minor. If more thanone ad litem is to be appointed, a trial courtmust make findings in the order appointingthe attorneys. If any party believes hat theinterests of each of the children or disabledpersons are divergent, such that a singleperson cannot represent all of their claims,then that a party should brief the issue andmake a record of the request. Such divergentinterests may exist in a wrongful death suitwhen the paternity of one or more childrenis in dispute, for example.

173.3. Procedure(a) Motion Permitted But Not Required.The court may appoint a guardian adlitem on the motion of any party or on itsown initiative.(b) Written Order Required. Anappointment must be made by writtenorder.(c) Objection. Any party may object to theappointment of a guardian ad litem.

This is not a substantial change, but iteliminate some uncertainty regarding theprocess of an appointment. The rule doesnot state when an objection to anappointment must be made, but the safepractice would be to object in writing at theearliest point that an ad litem is appointed,and to reiterate same objection at thefriendly suit. The failure to lodge a timelyobjection may be fatal to any challenge onappeal concerning the ad litem. SeeLandrover U.K., Ltd. V. Hinojosa, 2004 WL1632657 at *1 (Tex. App.—Corpus Christi2004, pet. filed)(unpublished memorandumopinion) (appellants lost right to complainabout the appointment of an ad litem by

failing to make a timely objection at thesettlement hearing or in their pleadings).

173.4. Role of Guardian Ad Litem

(a) Court Officer and Advisor. A guardianad litem acts as an officer and advisor tothe court.

(b) Determination of Adverse Interest. Aguardian ad litem must determine andadvise the court whether a party's nextfriend or guardian has an interest adverseto the party.

(c) When Settlement Proposed. When anoffer has been made to settle the claim ofa party represented by a next friend orguardian, a guardian ad litem has thelimited duty to determine and advise thecourt whether the settlement is in theparty's best interest.

(d) Participation in Litigation Limited. Aguardian ad litem: (1) may participate inmediation or a similar proceeding toattempt to reach a settlement; (2) mustparticipate in any proceeding before thecourt whose purpose is to determinewhether a party's next friend or guardianhas an interest adverse to the party, orwhether a settlement of the party's claimis in the party's best interest; (3) must notparticipate in discovery, trial, or anyother part of the litigation unless: (A)further participation is necessary toprotect the party's interest that is adverseto the next friend's or guardian's, and (B)the participation is directed by the courtin a written order stating sufficientreasons.

This is the most substantial change inthe rule, in that it reflects a clear directive toad litems to work efficiently and in afocused manner on the limited issues forwhich they have been appointed. The adlitem is actually proscribed fromparticipating in discovery, trial, or “any


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other part of the litigation” besidessettlement talks and the conflictdetermination, unless directed otherwise inwriting. This language effectively ties thehands of the guardian ad litem, who cannotundertake activities the ad litem believes arein the ward’s best interest without priorconsent. It supercedes those cases whichheld that guardian had “latitude” to deicewhat depositions hearing, and otheractivities were necessary to protect theminor’s interests. See, e.g., Byrd, 891S.W.2d at 705-06.

Compelling arguments still can be madethat an attorney cannot make an informeddecision about the appropriateness, orfairness of a settlement until he or she isinformed in a substantial way about the legaltheories and the facts supporting them. Thenew rule requires the prior authorization beobtained before such activities occur. As apractical matter, the ad litem is obligated toset a hearing each time the ad litem’sparticipation in developing the case iscontemplated.

An attorney appointed as an ad litemshould immediately schedule a visit with theincapacitated person and their next friend,and learn as much as possible about thefamily dynamics as possible. Anunderstanding of family dynamics ifs criticalto have any appreciation for how settlementmonies might be utilized. Often theguardian ad litem is the only attorney whowill see the living conditions of the parties.A visual inspection of the homestead mayraise questions about whether monies shouldbe entrusted the to next friend for the benefitof the party, or invested in a trust or annuity.Many families have complicated dynamics,and these change as settlements approach.The ad litem must be aware of anysubstantial family issues that will impact theward’s future status, particularly if the wardrecovery is structured to where monies willnot be received until they become adults.

The prudent ad litem should review thepleadings (and select discovery) to ascertainthe level of complexity of the case, and thestrength or weakness of the law supportingPlaintiffs’ theories to make an initial

determination if a settlement offer isreasonable. If the case appears to becomplex, or was hotly contested, the adlitem should consider whether additionaltime is needed to make an informed decisionabout whether to approve the proposedsettlement terms. The ad litem should thenprepare a motion to file with the courtsetting out the grounds upon which he or shebelieves additional work is required. Thetrial court must make a writing findingexplaining why additional work is required.

173.5. Communications PrivilegedCommunications between the guardianad litem and the party, the next friend orguardian, or their attorney are privilegedas if the guardian ad litem were theattorney for the party.

The ad litem should be cautious aboutdisclosing any communications between theward ad the ad litem to the next friend untilboth are independently satisfied that thedistribution of settlement proceeds isagreeable. Likewise, when settlementstructures are discussed, and the ward is aminor, the ad litem must factor the well-being of the wards for the balance of theirminority in determining what a fairapportionment of settlement monies is. Insuch circumstances, it is often advisable toauthorize the payment setting aside of somemonies to be spent by the next friend in away that further the best interests of theward. If the next friend is the guardian ofthe minor, the monies will likely be spendon household needs initially anyway, whichinure to the benefit of the minors under thenext friend’s care.

173.6. Compensation(a) Amount. If a guardian ad litemrequests compensation, he or she may bereimbursed for reasonable and necessaryexpenses incurred and may be paid areasonable hourly fee for necessaryservices performed.

(b) Procedure. At the conclusion of theappointment, a guardian ad litem may file




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an application for compensation. Theapplication must be verified and mustdetail the basis for the compensationrequested. Unless all parties agree to theapplication, the court must conduct anevidentiary hearing to determine the totalamount of fees and expenses that arereasonable and necessary. In making thisdetermination, the court must notconsider compensation as a percentage ofany judgment or settlement.

(c) Taxation as Costs. The court may tax aguardian ad litem's compensation as costsof court.

(d) Other Benefit Prohibited. A guardianad litem may not receive, directly orindirectly, anything of value inconsideration of the appointment otherthan as provided by this rule.

The process of submitting fees istypically negotiated and agreed upon by thead litem and the defense counsel. However,there are occasions in which no agreementcan be reached, an evidentiary hearing isrequired. Objections to the fee requestedmay be lodged for the first time at thehearing. Jocson v. Crabb, 133 S.W. 268,270 (Tex. 2004) (per curiam).

While Texas Rule of Civil Procedure131 provides that the successful party shallrecover costs from the adversary, with oneexception. The court may, “for good cause,”adjudge the costs otherwise as provided bylaw or these rules. TEX.R.CIV.P. 141. If thecourt diverges from the general rule, andassesses ad litem fees against a prevailingparty, the court must state the explicitreasons for doing so on the record or in itsorder. Marshall Investigation & Sec.Agency v. Whitaker, 962 S.W.2d 62 (Tex.App.—Houston [1st Dist] 1997, no pet.).

173.7. Review(a) Right of Appeal. Any party may seekmandamus review of an order appointinga guardian ad litem or directing aguardian ad litem's participation in the

litigation. Any party and a guardian adlitem may appeal an order awarding theguardian ad litem compensation.

(b) Severance. On motion of the guardianad litem or any party, the court mustsever any order awarding a guardian adlitem compensation to create a final,appealable order.

(c) No Effect on Finality of Settlement orJudgment. Appellate proceedings toreview an order pertaining to a guardianad litem do not affect the finality of asettlement or judgment.

Parties should be cognizant of theimpact of a petition for writ of mandamuschallenging the appointment or enlargingscope of an ad litem’s work in a particularcase. The pendancy of an originalproceeding could unnecessarily prolongsettlement of a case if the circumstances donot justify an ad litem’s appointment orincreased role. Because multiple ad litemsfor similarly situated parties are nowdisfavored, and the circumstances justifyingthe appointment are now narrowly tailored,a trial court order must make the requisitefinding, and the record should contain someevidentiary support for those findings inorder to pass appellate “abuse of discretion”muster.

It is not necessary to object to an adlitem billing excessively or exceeding toscope of his or her appointment before thehearing set to determine those fees. Jocsonv. Crabb, 133 S.W.3d 268, 270 (Tex. 2004)(defendants did not waive their objection toad litem's attendance at depositions andreview of deposition notices andcorrespondence as beyond scope of adlitem's role by raising first objection at thefee hearing). A party can preserve error byobjecting to the appointment at its inception,filing motion to withdraw the appointment,or by lodging specific objections to theevidence offered in support of the fee at thehearing set to determine that issue.




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Comments

The comments to the new rule provideadditional insight into the extent of thechanges, or clarifications, intended by thenew rule:

1. The rule is completely revised.

Clearly, the wording of the rule wasgreatly expanded. Many of the revisionssimply grafted into the rule the holdings ofcourts which had interpreted the prior rule.The intent of the changes are clear: allinterpretations of the prior rule whichviewed the role of the guardian ad litemexpansively are disavowed.

2. This rule does not apply when theprocedures and purposes for appointmentof guardians ad litem (as well as attorneysad litem) are prescribed by statutes, suchas the Family Code and the Probate Code,or by other rules, such as the ParentalNotification Rules.

The other circumstances in whichguardian ad litems are appointed arediscussed in the preceding pages.

3. The rule contemplates that a guardianad litem will be appointed when a party'snext friend or guardian appears to havean interest adverse to the party because ofthe division of settlement proceeds. Inthose situations, the responsibility of theguardian ad litem as prescribed by therule is very limited, and no reason existsfor the guardian ad litem to participate inthe conduct of the litigation in any otherway or to review the discovery or thelitigation file except to the limited extentthat it may bear on the division ofsettlement proceeds. See Jocson v. Crabb,133 S.W. 268 (Tex. 2004) (per curiam). Aguardian ad litem may, of course, chooseto review the file or attend proceedingswhen it is unnecessary, but the guardianad litem may not be compensated for

unnecessary expenses or services.

4. Only in extraordinary circumstancesdoes the rule contemplate that a guardianad litem will have a broader role. Eventhen, the role is limited to determiningwhether a party's next friend or guardianhas an interest adverse to the party thatshould be considered by the court underRule 44. In no event may a guardian adlitem supervise or supplant the nextfriend or undertake to represent the partywhile serving as guardian ad litem.

5. As an officer and advisor to the court, aguardian ad litem should have qualifiedjudicial immunity.

This expressly disaffirms the holding ofByrd, 891 S.W.2d at 708, which held that“policy requires that we do no extend thedoctrine of derived judicial immunity to aguardian ad litem appointed under Rule173”).

According to this comment, a guardianad litem’s liability would be governed by the“objective reasonableness” standard first setout in City of Lancaster v. Chambers, 883S.W.2d 650, 656 (Tex. 1994); see Murillo v.Garza, 881 S.W.2d 199, 202 (Tex. App.--San Antonio,1994, no writ) (holding thatthis standard applies to all qualifiedimmunity cases). Under this standard, aparty suing a guardian ad litem would haveto prove that “no reasonable person in [theguardian ad litem’s] position could havethought the facts were such that theyjustified [the guardian ad litem’s] act.” Id.at 657. The test is one of objective legalreasonableness, without regard to whetherthe ad litem acted with subjective good faith.Id. at 656.

6. Though an officer and adviser to thecourt, a guardian ad litem must not haveex parte communications with the court.See Tex. Code Jud. Conduct, Canon 3.

This comment expressly disavows the






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practice of some guardian ad litems whogive “status” reports the court that appointedthem. Some courts and parties have used adlitems as “messengers,” who keep the courtinformed on settlement negotiations and thelikelihood of a case being resolved beforetrial, among other things. While the ad litemis an officer of the court, he or she must onlydiscuss the case when all parties are present.

7. Because the role of guardian ad litem islimited in all but extraordinary situations,and any risk that might result fromservices performed is also limited,compensation, if any is sought, shouldordinarily be limited.

This comment could be paraphrased as“the days of the mega guardian ad litem feesare over.” In all candor, the revisions appearin large measure to have been drafted withthe intent of eliminating attention-grabbingad litem fees, and they codify those judicialdecisions which construed the role of theguardian ad litem narrowly. The prudentlawyer will document all time expended infurtherance of duties assigned under Rule173, and will refrain from billing for mattersthat exceed the scope of the appointment,absent prior court approval pursuant toTEX.R.CIV.P. 173.4(d)(3).

8. A violation of this rule is subject toappropriate sanction.

The comment does not describe the typeof sanction contemplated, but most likely itwould include disciplinary sanctions againstthe attorney, rather than any sanctionsagainst the entity the attorney represents. AsJustice Duncan wrote in her concurrence inGoodyear v. Gamez, Texas Rule ofDisciplinary Conduct 1.04 prevents anattorney from “charg[ing] … anunconscionable fee.” Gamez, 151 S.W.3d at593; TE X.DISC.R.PROF’L CONDUCT 1.04,reprinted in TE X. GOV.CODE ANN., tit. 2,subtit. G app. A (Vernon 2005). While thedisciplinary rule contemplates fees being

charged to an attorney’s own client, and theguardian ad litem’s fees under Tex.R.Civ.P.173 are paid by an adverse party as a costsof court, the underlying rationale for the ruleapplies. An ad litem is an officer of thecourt, and as such, owes a duty of candor toteh court, the violation of which may providedifferent basis for disciplinary sanctions.See TEX.R.DISC.CONDUCT 1.06; Thompsonv. City of Corsicana Housing Authority, 57S.W.3d 547, 558 (Tex. App.-Waco 2001, nopet).

Conclusion

The role of a guardian ad litem differssubstantially, depending upon whether theappointment is based on a statutoryprovision or procedural rule. While theduties and responsibilities of guardian adlitems under the Family Code, Probate Codeand Property Code are more expansive andhave been well-defined, the role of an adlitem under the new Texas Rule of CivilProcedure 173 has only recently beenexpressly limited. Attorneys who areappointed to undertake these duties must beaware of their specific roles to effectivelycarry out their duties. Hopefully this paperprovided some insight into what they mightexpect once appointed.



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