MALPRACTICE AND THE AFC

LoPresti v. Galchus, Date filed: 2022-03-31, Court: Supreme Court, Queens, Judge: Justice Carmen Velasquez, Case Number: 717561/20:

"Upon the foregoing papers it is ordered that this motion by the defendant and cross motion by the plaintiff are decided as follows: This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, Philip LoPresti, regarding their minor child, Sofia LoPresti. Plaintiff sought to relocate with the child to New Orleans. Philip LoPresti opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Sofia. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Sofia. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.

A trial was held before a Referee in Family Court on July 18-19, 2020. A reporter was not present but the proceeding was transcribed via an audiotape made of the trial. Defendant maintains that the recording failed to provide an accurate and audible transcription. On July 24, 2018, the court ruled that LoPresti was to be given residential custody of Sofia. Plaintiff filed a Notice of Appeal, but a different attorney represented Sofia for the appeal, but the defendant continued to represent Sofia in Family Court. On October 2, 2019, the Appellate Division, Second Department, remitted the matter to Family Court for a new hearing before a different Referee. The Appellate Division found that defendant, inter alia, did not properly advocate for the interests of Sofia. The parties thereafter entered into a stipulation allowing Sofia to relocate to New Orleans with her mother until July 2020.

Plaintiff commenced the instant action to recover damages for legal malpractice as well as punitive damages. The complaint alleges that the defendant failed to fulfill his obligations as a court appointed attorney for Sofia. Specifically, the complaint alleges that defendant failed to zealously advocate for Sofia, failed to inform the court of her position on relocation and failed to assist Sofia in articulating her position to the court. The complaint further alleges that but for defendant’s negligence and failure to advocate for his client, custody never would have been transferred to Lopresti. Defendant now moves to dismiss the complaint pursuant to CPLR 3211(a). Defendant contends that plaintiff lacks standing to bring this action since, as a law guardian, he is shielded by quasi-judicial immunity. Plaintiff cross moves for summary judgment.

The role of the Law Guardian or Attorney appointed by the Family Court is to represent the wishes of the child and to zealously advocate for the child’s best interest. (Carballeira v. Shumway, 273 AD2d 753, 755 [3d Dept 2000]; Matter of Dewey S., 175 AD2d 920, 921 [2d Dept 1991]; B.A. v. L.A., 196 Misc 2d 86, 96 [Fam Ct, Rockland County 2003].) The role is also to aid the court in arriving at an appropriate disposition. (Matter of Apel, 96 Misc 2d 839, 842-843 [Fam Ct, Ulster County 1978].)

The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v. O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v. O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v. Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v. Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear 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.” (Ward v. San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v. Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings.” (Kurzawa v. Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons — governmental or otherwise — who were integral parts of the judicial process.” (Briscoe v. LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed."