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Justices differ on reasonableness of GAL fees

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If two parties in a domestic relations dispute sign a written contract to retain the services of a guardian ad litem, then the trial court must enforce the terms of the agreement unless it is contrary to public policy, the Indiana Supreme Court ruled Friday.

In In re the paternity of N.L.P; R.P., v. L.S. n/k/a L.B., No. 45S03-0904-JV-133, guardian ad litem Jill S. Swope challenged the trial court’s reduction of her GAL fees from $34,800 to $20,000 for work she did from 2004 to 2008 for parents R.P. and L.S. The parents executed a joint written agreement to hire Swope as the GAL to help resolve existing visitation and parenting issues. The written agreement outlined the hourly fee of $150 and that the parents would pay for various expenses such as long-distance phone calls.

The trial court found Swope’s original fees to be unreasonable because she charged for phone calls and other things that should have been included in the hourly rate; the parents may not have the ability to pay those fees; and some of her services duplicated services done by the court-appointed custody evaluator.

The Indiana Court of Appeals vacated the trial court’s decision and remanded for the trial court to support its determination that the $20,000 fee was reasonable. The COA sua sponte ruled the fees were unreasonable because Swope acted as a GAL and attorney, and that she should have billed her work separately.

In this issue of first impression, the majority of justices found the focus on the reasonableness of the GAL fees to be misplaced. The clients didn’t contest Swope’s bill and entered into a contract to set the hourly rate and fees she could charge, wrote Justice Robert Rucker.

There is a strong presumption in the enforceability of private contracts unless the contracts somehow violate public policy grounds, but that isn’t the case here, the justice continued.

“We see no basis for the trial court to modify the terms of the parties’ agreements,” he wrote.

The trial court erred by not enforcing the term of the parties’ written agreements. The justices also noted they disagreed with the COA that someone acting as a GAL and attorney should bill separately for services and by not doing so, that renders the fees unreasonable.

Justice Theodore Boehm agreed with his colleagues that the parties’ hourly rate and reimbursement for incidental expenses are presumptively enforceable, but he agreed with the COA that the trial court may review the reasonableness of services rendered.

“Even if the hourly rate agreed is reasonable, a fee agreement is not a blank check for the attorney to fill in the amount of services rendered irrespective of the need for services,” wrote Justice Boehm.

The trial court is in the best position to determine if the services rendered were reasonable or useful, he continued, and whether duplication of services provided were reasonable.
 

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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