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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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