A guardian ad litem must differentiate between attorney and non-legal work when billing in a paternity case, and trial courts must carefully consider guidelines set out in probate-focused Indiana Professional Conduct Rule 1.5 when deciding how to compensate for fees and expenses.
The Indiana Court of Appeals ruled today in the case In Re: The Paternity of N.L.P., Robert Pendowski v. Lisa A. Sizemore/ Jill S. Swope, No. 45A03-0805-JV-226, vacating and remanding to Lake Superior Court a case dealing with an issue of first impression.
Specifically, the appeal looks at whether Swope, who for four years was a court-appointed guardian ad litem in a paternity case, reasonably calculated and billed for her legal and non-legal work – preparing and submitting reports, making home visits to both households, supervising parenting time, visiting the child's school, reviewing records, and also preparing for and attending court hearings by testifying and cross-examining other witnesses. Swope submitted a report in October 2007 that outlined fees and expenses totaling $34,800.
The trial court determined that the fees weren't reasonable, based on the following: Swope billed by the quarter hour and not tenth of an hour; long-distance phone calls and copying or faxing charges shouldn't have been included; the parents' income and ability to pay; and some of the services were duplicated by a custody evaluator. The trial court reduced the total fees to $20,000 and ordered each parent to pay half, and then denied Swope's motion earlier this year to correct error.
In writing for the appellate panel, Judge James Kirsch wrote, "The trial court found the fees to be unreasonable, but instead of engaging in an analysis of what a reasonable fee would have been, it arbitrarily chose $20,000 to be a reasonable amount of fees for this paternity action. We believe that a more complete careful analysis of the duties performed is required …."
The appellate judges relied on Indiana Code § 31-14-18-2(a) about what trial courts can order a party in a paternity action to pay, but also looked to probate and estate administration statutes and rules because the reasonableness of the amount of GAL fees in paternity matters is one of first impression for Indiana. One of those guiding provisions is Rule 1.5, which includes factors such as time and labor required, fees customarily charged in that locality for similar legal services, and whether that fee is fixed or contingent.
Understandably, the court didn't apply those factors because of the first impression nature here, Judge Kirsch wrote. But at the same time, Swope's fees weren't reasonable, the court ruled.
"A GAL is oftentimes not an attorney, and a person acting as a GAL should not get an attorney's billing rate for performing GAL duties," he wrote. "We believe that the services performed as a GAL and the services performed as an attorney should be billed separately and at different rates. Any legal work done for the matter such as, drafting pleadings and participating in court hearings, may be billed as attorney fees. Any non-legal work done in the matter such as supervising parenting time, home visits, and preparing GAL reports, should be billed as GAL fees at a separate rate."
The case is remanded for the lower court to further analyze the fees based on this appellate opinion.