Maine - New Rules for Guardians ad litem versus or ... Judicial Discretion.

We are sure that the 78 page document spelling out a set of new Rules for Maine Guardians ad litem represents many hours of work on the part of some Judicial Branch Committee. However, to this reader, they are a very perplexing document. Exactly what are they supposed to be? Are they a job description? Are they some sort of regulations aimed at governing and bounding the work related actions of Guardians ad litem in divorce and custody (and protective) cases? Are they a set of voluntary guidelines to be followed if the GAL wishes? Are they well intentioned (but empty) ideals? What are they? It is far from clear.

Any set of Rules on paper may look fine, but their value and meaning come from whether they are enforced or not- and how. For these new Rules there appears to be no enforcement. There appears to be no consequences of any kind for not following them. There is no designated entity responsible for oversight to see if the Rules are being followed. There is nothing we can see, except for the reporting of complaints by the ‘pro se’ public. This complaint process itself is a confusing procedure guaranteed to fail. To this reader the message in the new rules seems to be: "it would be nice if Guardians ad litem learned these Rules and tried to follow them. But if they don't, not to worry. There are no consequences.

The complaint procedure speaks loud and clear to these issues. For family courts in which 74% of litigants are 'pro se', the complaint protocol spelled out in the new Rules is frankly unusable. It's complexity, its lack of instruction about "how to", its legalistic posture, its insistence on "innocent until proven guilty" even in cases needing only minor corrective action, its extreme concern about due process, makes it bullet proof against any public complaint. It also has no use as a management tool, a heads up from a member of the public that is simply aiming to improve GAL quality in cases of less serious malfunctioning. We guess that the court feels that GALs don’t need management? GALs all over Maine can heave a sigh of relief. Courts can breath easier. The complaint procedure won't be used, or, if it is used by an unaware 'pro se' litigant they won’t succeed in penetrating its airtight defenses.

For the time being, Guardians ad litem will be able to escape any consequences of ‘pro se’ public complaints, but please don’t think that this will make the GAL problems go away. They will just fester, suppurate, expand and grow larger. Sooner or later the GAL malfunctioning problems will be uncontainable and a public scandal will burst through!

The "Catch 22" about the proposed new Rules (or the current ones) is that their courtroom enforcement appears to be totally a matter of judicial discretion. They can be discarded, amended or altered if a judge- quite independently of any rules- decides to order GAL actions not covered by the Rules for Maine GALs, or ... to ignore flagrant violations. a piece of this problem- in our experience- is that many judges and many GALs lack specific, detailed knowledge of the GAL Rules and have only a "general idea" about Rules for GALs. "Judicial discretion" seems to allow for creative use of the Rules in any which way.

To many of us, the recent Maine Supreme Court appeal, the Dalton vs Dalton case, appears to tell litigants that even a well-documented carefully reasoned exposition of what looks like a gross abuse of current GAL Rules by the GAL and documentation of a similar situation by the judge risks a "contempt of court" complaint. It also risks "hand signals' to the Overseers of the Bar to open a 'sua sponte' complaint against the lawyer who dared to document the problems. The implications of this series of actions seem clear to us: any lawyer who robustly defends a client faced with dysfunctional judicial or GAL behavior is in extreme professional danger. DON'T DO IT!

The answer to correcting the dysfunctions in GALs and judges seems to be to bury the problem, until the weight of scandal and and corruption from within cannot be suppressed. A massive public cry of outrage and a demand for action ensue. The fairly recent scandals in the Catholic Church come to mind as an example. Suppression only works for a shorter and shorter period in the age of the Internet.

In our interest for reform, we are tempted to say to the Judicial Branch, "Do nothing. Let your unenforced Rules and your unusable complaint procedures stand exactly as they are. In the long run, they have within their carefully crafted attempts to control and suppress the truth (at a time when the Internet dictates that “you can run, but can’t hide”), the inevitable roots of a huge scandal, forced change and reform. We're just not there yet!

There should be an easier way for all.

We shall overcome. ... someday!

Please contact us at NationalGALalert@gmail.com for more information.

Overseers of the Bar - Okay for lawyer to make bomb threats - what about GALs?

There are consequences for the actions that one makes in life. Calling in a bomb threat as an example will land the person making the call into a lot of trouble. If you manage not to serve any jail time there are other areas where you might be penalized to the point of losing your job.

Unless

You are a lawyer in the state who is brought before the Overseers of the Bar (an independent agency created by the Judiciary that is funded by fees paid by lawyers). In a case that was recently brought before the Overseers - a lawyer - who called in a bomb threat (twice) was essentially slapped on the wrist and is being allowed to continue practicing law. Part of his defense was that he had a series of medical conditions that were not being treated properly according to the defendant. In other words it is the "I'm not responsible for my actions" defense.

Why is this important?

The Overseers of the Bar is set to take over responsibility for Guardian ad litem complaints. The Judiciary  is moving from a simple yet  broken process (one that the average person could understand) to a highly complex process of complaint (a process that is very legalistic in scope). The reasoning behind this move was that the Overseers had the experience of handling complaints. The Judiciary, Guardians ad litem and divorce industry were all in favor of this change. Parents, friends and family surprisingly did not favor the move. Now imagine if in filing a complaint you are mildly successful to get to the point that the lawyer in the above case did. You are standing there in front of the board ready to prove how your GAL broke every rule and statute in the book. Then all of a sudden - the GAL brings out the tried and proven defense "I'm not responsible for my actions" because of (medical condition, parents didn't love me or some other issue). Bang you lose and the Guardian ad litem is free to continue operating as a GAL.

There is no data that shows how many lawyers are disciplined or lose their license as a result of breaking the law. A complaint or disciplinary action through the Overseers is a highly complex and legal process. Beyond the scope of most people without a legal background. Imagine what is going to happen if you attempt to complain through the Overseers of the Board?

If you have an issue with a Guardian ad litem please contact us at NationalGALalert@gmail.com or like us on Facebook.

In addition we are conducting a survey on Guardian ad litem Costs and Performance please share your thoughts on how your Guardian ad litem did on you case or families.

Will Overseers of the Bar Solve the problem of Guardian ad litem Oversight?

We have been told that the Overseers of the Bar would provide an effective means of Guardian ad litem oversight and management. We have also been told that the means of filing a complaint through the Overseers is something that the average person would be able to understand and do on their own. While it is true that anyone can file a complaint - and that a lawyer is not needed - as many are being told. The problem is understanding the Rules and Rules for professional Conduct.

Because the public are being told how easy it is to understand what they will have to deal with we are publishing both the Rules and Rules of Professional Conduct so that you can get a preview of what is to come for Guardians ad litem. Before diving in and reading here are some statistics:

The rules consist of 62 pages and 40205 words. The Rules of Professional Conduct comes in at a lite 138pages and 87700 words (the current flawed Rules and Standards for Guardians ad litem come in at a hefty 18 pages and 8008 words). Both of these documents are allegedly easier to understand and as Rep Jarrod Crockett would have us believe - make for an easier process for management, oversight and more importantly filing a complaint. It is nice to know that Rep Crockett is so concerned about making things easier for his constituents and citizens of Maine as to support a process that only a lawyer could love.

For more information please contact us at MeGALalert@gmail.com or keep up to date on Facebook.

We present to you a preview of what is to come courtesy of the Maine Overseers of the Bar:

pdf versions -

The Rules

The Rules for Professional Conduct