Pro Bono Malpractice?

Pro bono activities are not unfamiliar to most attorneys.  Many attorneys will volunteer their time with organizations that provide pro bono legal services to those who could not otherwise afford legal representation.  Most jurisdictions permit volunteer attorneys to be on a list of counsel that the court may appoint when a party is in need of representation.  Some states may even assign attorneys in good standing to a court appointed representation.   What happens though when that court appointed attorney allegedly commits malpractice in the course of the pro bono representation? A recent case out of Illinois addressed this scenario in the context of a court appointed child representative.

The underlying case involved a marriage dissolution proceeding in which plaintiff was a party.  Plaintiff’s youngest child was under 18 during the proceedings and therefore the trial court appointed defendant to serve as the child’s representative.   At the conclusion of the marriage dissolution proceedings, plaintiff filed a one-count complaint for legal malpractice against the child’s court appointed attorney alleging breaches of fiduciary duty and deviations from the standard of care for a child’s representative.  Plaintiff alleged that the misconduct on the part of defendant attorney resulted in the court entering a judgment of dissolution “replete and filled with vindictiveness relating to plaintiff.”

In response to the malpractice suit, defendant attorney filed a motion for dismissal under certain portions of the Illinois Code on the grounds that he was absolutely immune from liability in connection with his service as the child representative.  The motion was granted and plaintiff appealed.   The appellate court found that the common law afforded defendant absolute immunity from suit related to his court appointed duties as a child representative and affirmed the trial court’s order.   While the portion of the Illinois code that applied to attorney appointments during a proceeding involving the welfare of the child did not specifically provide for immunity, the court relied on prior appellate court decisions stating that “to best aid the court in its determination of the child’s best interests, the child representative must be accorded absolute immunity so as to allow him to fulfill his obligations without worry of harassment and intimidation from dissatisfied parents.”   The court also noted that there was no indication that plaintiff had objected to defendant’s appointment or alerted the court to any alleged misconduct on the part of defendant throughout the proceedings.

The case is an interesting one for any attorneys that participate in pro bono or court appointed work.  First it serves as a reminder that whenever you are providing legal services even if it is outside of your 9-5 job, there is always the possibility of a malpractice claim.  Depending upon the nature of the work and the appointment, it is worthwhile to know whether there any applicable codes, statutes or rules in your jurisdiction either expressing permitting or barring malpractice actions.  Additionally, unlike the foregoing case, in the event there is no authority to bar malpractice claims, attorneys would be well served to ensure that there is an applicable malpractice insurance policy either through their regular employer, the volunteer organization or some outside source to cover any risk associated with the legal work being performed.


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