Me. R. Guard. Ad Lit. 5

As amended through September 25, 2024

Rule 5 - Standards of Conduct

(a) Performance of Duties. The guardian ad litem must maintain independent representation of the best interest of the child and perform the guardian ad litem's duties faithfully.

(b) Agent of the Court. As a quasi-judicial officer, the guardian ad litem shall exercise his or her independent judgment on behalf of the child in all relevant matters, respecting the court's obligation under Canon 2.2 of the Maine Code of Judicial Conduct to "perform all judicial and administrative duties promptly, fairly, and competently."

(c)Develop Understanding of Litigation. Commencing upon appointment, the guardian ad litem should, to the extent reasonably possible, considering the resources authorized for the guardian ad litem:

(1) Obtain copies of all relevant pleadings and notices;

(2) In Title 22 cases, unless excused by the court, and in Title 18-C and 19-A cases, when directed by the court, participate in depositions, negotiations, and discovery that are relevant to the child's best interest, and participate in all case management, pretrial or other conferences, and hearings, unless excused by the court;

(3) Confirm the appointment with the clerk's office. The clerk shall send copies of all subsequent notices and orders to the guardian ad litem. Parties or their counsel shall send to the guardian ad litem copies of all pleadings and correspondence with the court, and the guardian ad litem shall be entitled to reasonable notification of case conferences, changes of placement, and other changes of circumstances affecting the child and the child's family;

(4) Not cause case delays and shall attempt to reduce case delays; and

(5) Include parties in the investigation, employ effective communication techniques, and be sensitive to the culture and socio-economic status of the parties.

(d)Explanation of Court Process. When appropriate, the guardian ad litem shall explain the court process and the role of the guardian ad litem to the child. When necessary, the guardian ad litem shall assure that the child is informed of the purpose of the court proceeding.

(e)Advocate for Clear Court Orders. The guardian ad litem should request orders that are clear, specific, and, where appropriate in Title 22 cases, include a time line for the assessment, implementation of services, placement, treatment, and evaluation of the child and the child's family.

(f)Mandated Reporting. Pursuant to 22 M.R.S. §4011-A, while acting in their professional capacity as guardians ad litem, guardians ad litem are mandated reporters, and if a guardian ad litem knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected, the guardian ad litem shall make an immediate report to the Department of Health and Human Services.

(g)Confidentiality. A guardian ad litem shall observe all statutes, rules, and regulations concerning confidentiality. A guardian ad litem shall not disclose information or participate in the disclosure of information relating to a case to any person who is not a party to the case, except as necessary to perform the guardian ad litem's duties, or as may be specifically provided by law or by these Rules. Communications made to a guardian ad litem, including those made to a guardian ad litem by a child, are not privileged. The guardian shall exercise reasonable discretion about whether to disclose communications made by the child to the court, or to professionals providing services to the child or the family based on the guardian ad litem's evaluation of the best interest of the child. Any decision by the guardian not to disclose such information, however, shall be subject to review by the court following an in camera review. A guardian ad litem's notes and work papers are privileged and shall not be disclosed to any person, reserving to the court, however, the authority to order disclosure of such material as part of court proceedings if the court determines that disclosure is warranted under applicable court procedures. If the guardian ad litem is an attorney, she or he shall be deemed to act as a guardian ad litem rather than as an attorney, and information he or she receives is not subject to the attorney-client privilege.

(h)Ex Parte Communications. In extraordinary circumstances involving matters of child safety or similarly grave concerns, the guardian ad litem may initiate or participate in ex parte communications with the court about a particular case pursuant to Canon 2.9(A) of the Maine Code of Judicial Conduct. However, as a matter of due process and fundamental fairness, the guardian ad litem or the court must promptly disclose the nature of the communication to the parties or their counsel, unless such disclosure is likely to present a risk of harm to the child or a party, in which case the court shall take such steps as are necessary to alleviate the potential for harm, and when the danger of harm no longer exists, disclose the nature of the communication to the parties or their counsel.

(i) Conflicts of Interest and Mandatory Disclosures.

(1)Mandatory Disqualification. A guardian ad litem shall

(A) Decline appointment in a proceeding where the guardian ad litem has a present or prior personal, professional, business, or legal relationship with any party, interested party, or intervenor involved in the proceeding that would interfere with the guardian ad litem's ability to perform the functions of a guardian ad litem in accordance with these Rules and in accordance with any requirements of a judicial officer; and

(B) If a relationship described in Rule 5(i)(1)(A) arises after appointment, advise the court of the existence of such a relationship and seek permission to withdraw.

(2)Disclosure of Prior Acquaintances. A guardian ad litem who is aware that he or she had a relationship of any type, including but not limited to a professional, personal, or financial relationship, with any party, interested party, or intervenor in a case, shall

(A) At or before the time of appointment, disclose such fact to the parties and the court, either orally or in writing; and

(B) If such an acquaintance becomes known only after appointment, immediately disclose such fact to the parties and the court, either orally or in writing.

(3)Allegations of Failure to Disclose Prior Acquaintances. If it is alleged by a party to any proceeding in which a guardian ad litem is appointed that the guardian ad litem has failed to disclose any present or prior relationship that affects his or her objectivity, or the guardian ad litem's ability to perform the functions of a guardian ad litem in accordance with these Rules or in accordance with requirements of a judicial officer, the guardian ad litem shall

(A) Inform a judicial officer that the allegation has been made; and

(B) Respond either orally or in writing to a judicial officer and to all parties regarding the nature of the present or prior acquaintance, if any.

(4)Duty to Report.

(A) A guardian ad litem shall, in writing, immediately inform Board Counsel and the courts and parties in all Title 18-C, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed of the existence of the following with respect to the guardian ad litem:

(i) Any criminal conviction not previously disclosed to the Review Board pursuant to Rule 2 or Rule 8;

(ii) Any pending criminal charge in any jurisdiction and any disposition of such criminal charge;

(iii) Any pending disciplinary hearing before a professional licensing agency in Maine or any other jurisdiction, including but not limited to the filing of formal charges by Bar Counsel pursuant to Rule 9(d) of these Rules, and the disposition of such matter(s); and

(iv) Any court finding of abuse or neglect or any substantiation of abuse or neglect by the Maine Department of Health and Human Services or an equivalent agency in any other jurisdiction.

(B) A guardian ad litem shall immediately inform Board Counsel of the existence of any pending safety assessment by the Maine Department of Health and Human Services involving anyone residing in the guardian ad litem's household.

(C) A guardian ad litem shall immediately inform Board Counsel of the existence of any of the following of which he or she is aware regarding the guardian ad litem's spouse, the parent or guardian of a child of the guardian ad litem, or any person with whom the guardian ad litem resides:

(i) Any charge, finding, or conviction in which it has been alleged that the person abused or neglected a child, as defined by 22 M.R.S. §4002;

(ii) Any charge, finding, or conviction in which it has been alleged that the person abused, neglected, or exploited an incapacitated or dependent adult, as defined by 22 M.R.S. §3472; or

(iii) Any charge, finding, or conviction in which it has been alleged that the person committed a "serious crime" as defined by Rule 1(c)(19).

(D) Board Counsel shall inform the Chief Judge of information received by a guardian ad litem under this Rule in accordance with Rule 9(h).

(5)Disclosure of Other Cases. If a guardian ad litem is a party to any case in court, other than in his or her capacity as a guardian ad litem, he or she shall immediately disclose to the court in any Title 18-C, Title 19-A, or Title 22 case in which he or she is currently appointed that he or she is a party to a case in court, and the name, court location, docket number and nature of any such case, and request direction from the court as to service or continued service as a guardian ad litem.

(6)Disclosure of Financial Relationship. If a guardian ad litem has any financial relationship with any attorney in the case or any material witness, he or she shall immediately disclose to the judicial officer the existence and nature of that relationship, and the court shall determine whether initial or ongoing appointment of the guardian ad litem is appropriate.

(j) Withdrawal. A guardian ad litem may seek to withdraw by filing a motion with the court that appointed the guardian ad litem. The guardian ad litem must continue representation until the motion is granted, and if the court's order so provides, until a successor guardian ad litem is appointed.

(k)Billing Standards.

(1)Rates for Guardians ad Litem. Guardians ad litem whose fees are to be paid by parties shall be paid at the hourly or flat rate determined in the courts Order for Appointment of Guardian ad Litem for each individual case. If the guardian ad litem is being paid by any state or county government, the guardian ad litem shall complete such forms as required for reporting time and billings. In cases in which the guardian ad litem is serving pro bono by appointment under these Rules, the guardian ad litem shall still file a final invoice setting forth hours worked on the case. All other guardians ad litem shall be paid in accordance with the order of appointment or as specified by JB-05-05.

(A) Itemized Expenses for Guardians ad Litem.

(i) Itemization Requirements. All invoices for time and claims for expenses must be itemized.

(ii) Itemization of Time. Time spent shall be outlined in detailed and itemized billing statements. If applicable, time will be billed at the rate approved in the order of appointment. Guardians ad litem who have agreed to serve for a flat fee must still complete itemized invoices. Itemized bills will show work done in increments of one tenth of an hour (six minute blocks of time). Sufficient detail will be provided to allow the parties to understand the nature of each task and the time spent on that task. Guardians ad litem will avoid block billing (i.e., the consolidation of more than one task into a time description, with a number of hours billed for the entire block).

(iii) Billing Frequency. Unless the order of appointment specifies a different time or other billing procedure, guardians ad litem shall submit bills to the parties every ninety days. At any final hearing, a guardian ad litem shall provide the court and the parties with an updated itemized invoice showing all time spent and expenses incurred between the date of the last invoice and the date of hearing.

(B) Maximum Hours.

(i) The maximum number of hours and costs for which a guardian ad litem will be reimbursed shall be determined by the presiding judicial officer handling the case, after consultation with the parties, and will be designated in the courts order of appointment.

(ii) Before a guardian ad litem can be paid for time exceeding the court ordered hours, the guardian ad litem must obtain court approval. Any order approving this additional time must be reflected in an amended order in the form approved by the Judicial Branch.

(l)Compliance Reports.

(1) Using Judicial Branch form FM-222, the guardian ad litem in a family matter case shall complete and file a Compliance Report concurrent with the filing of a final report or 7 days before the final hearing, or on another date specified by a judicial officer.

(2) Using Judicial Branch form PC-034, the guardian ad litem in a child protection case shall file a Compliance Report with the guardian ad litem report 7 days before any hearing or on another date specified by a judicial officer. Although a guardian ad litem is not statutorily mandated to file reports for summary preliminary hearings, each guardian ad litem must file a Compliance Report on the date of a summary preliminary hearing.

Me. R. Guard. Ad Lit. 5

Adopted July 28, 2015, effective 9/1/2015; amended January 22, 2018, effective 1/31/2018; amended August 28, 2019, effective 9/1/2019.

Reporter's Notes - July 2015

Rule 5(h) authorizes guardians ad litem to engage in ex parte communications with a judicial officer only in truly extraordinary circumstances. A guardian ad litem who abuses Rule 5(h) may be subject to discipline pursuant to Rules 6 and 9.

Rule 5(i), addressing conflicts of interest and disclosures, is based on Rule 503.06 of the New Hampshire Guardian ad Litem Rules.

Advisory Note - January 2018

Rule 5 of the Maine Rules for Guardians ad Litem is being amended to reflect the billing requirements imposed on GALs by the October 2017 amendments of Administrative Order JB-05-05, and to ensure that the invoices generated by GALs are provided to the court and the parties with enough detail and frequency to allow for review of the work being done. In addition, the Rule references the Judicial Branch's new compliance reports, which are to be used in every case where a GAL has been assigned.

Advisory Note - September 2019

Rule 5 has been amended so that any reference to the Probate Code reflects the Legislature's enactment of a new Code, effective September 1, 2019. See P.L. 2019, ch. 417 § B-14; P.L. 2017, ch. 402 §§ A-1, A-2, F-1. In addition, the conflict rule has been expanded in subdivision (i) to ensure that the GAL will not have a conflict with any party, interested part, or intervenor.