Md. R. Guard. & Fid. 10-106

As amended through November 13, 2024

Rule 10-106 - Attorney for Minor or Disabled Person

(a) Authority and Duty to Appoint.

(1)Minor Persons. Upon the filing of a petition for guardianship of the person, the property, or both, of a minor who is not represented by an attorney, the court may appoint an attorney for the minor.

Committee note: Appointment of an attorney for a minor is discretionary because, in many cases involving minors, the guardian is a parent or other close family member and the circumstances do not indicate a need for an attorney for the minor. The court should scrutinize the petition, however, for circumstances that may warrant the appointment of an attorney for the minor.

(2)Alleged Disabled Persons. Upon the filing of a petition for guardianship of the person, the property, or both, of an alleged disabled person who is not represented by an attorney of the alleged disabled person's own choice, the court shall promptly appoint an attorney for the alleged disabled person.

Cross reference: Code, Estates and Trusts Article, §§ 13-211(b) and 13-705(d). See also Rule 19-301.14 of the Maryland Attorneys' Rules of Professional Conduct with respect to the attorney's role and obligations.

Committee note: This Rule applies to the appointment and payment of an attorney for a minor or alleged disabled person in proceedings to establish a guardianship for the minor or alleged disabled person, or their property, or both. Attorneys may be appointed in other capacities in guardianship proceedings--as an investigator pursuant to Rule 10-106.2 or as a guardian pursuant to Rule 10-108.

(b) Eligibility for Appointment.

(1) To be eligible for appointment, an attorney shall:

(A) be a member in good standing of the Maryland Bar;

(B) provide evidence satisfactory to the court of financial responsibility; and

Committee note: Methods of complying with subsection (b)(1)(B) include maintaining appropriate insurance, providing an attestation of financial circumstances, or filing a bond.

(C) unless waived by the court for good cause, have been trained in aspects of guardianship law and practice in conformance with the Maryland Guidelines for Attorneys Representing Minors and Alleged Disabled Persons In Guardianship Proceedings attached as an Appendix to the Rules in this Title.

(2)Exercise of Discretion. Except in an action in which the selection of a court-appointed attorney is governed by Code, Estates and Trusts Article, § 13-211(b)(3) or § 13-705(d)(2), the court should fairly distribute appointments among eligible attorneys, taking into account the attorney's relevant experience and availability and the complexity of the case.

(c) Fees.

(1)Generally. The court shall order payment of reasonable and necessary fees of an appointed attorney. Fees may be paid from the estate of the alleged disabled person or as the court otherwise directs. To the extent the estate is insufficient, the fee of an attorney for an alleged disabled person shall be paid by the State.

Cross reference: See Code, Estates and Trusts Article, §§ 13-211(b)(2) and 13-705(d)(1), requiring the State to pay a reasonable attorneys' fee where the alleged disabled person is indigent. There is no similar statutory requirement with respect to attorneys appointed for a minor.

(2)Determination of Fee. Unless the attorney has agreed to serve on a pro bono basis or is serving under a contract with the Department of Human Services, or has agreed to accept the same fee as an attorney under contract pursuant to Code, Estates and Trusts Article, § 13-211(b)(3)(ii), the court, in determining the reasonableness of the attorney's fee, shall apply the factors set forth in Rule 2-703(f)(3) and in the Guidelines Regarding Compensable and Non-Compensable Attorneys' Fees and Related Expenses, contained in an Appendix to the Rules in Title 2, Chapter 700.

(3)Disabled Person--Security for Payment of Fee.

(A) Except as provided in subsection (c)(3)(B) of this Rule, in a proceeding for guardianship of the person, the property, or both, of an alleged disabled person, upon the appointment of an attorney for an alleged disabled person, the court may require the deposit of an appropriate sum into the court registry or the appointed attorney's escrow account within 30 days after the order of appointment, subject to further order of the court.

(B) The court shall not exercise its authority under subsection (c)(3)(A) of this Rule if payment for the services of the appointed attorney is the responsibility of (i) a government agency paying benefits to the alleged disabled person, (ii) a local Department of Social Services, or (iii) an agency eligible to serve as the guardian of the alleged disabled person under Code, Estates and Trusts Article, § 13-707.

Cross reference: See Code, Estates and Trusts Article, § 13-705(d)(1).

(d) Termination or Continuation of Appointment; .

(1)Generally. If no appeal is taken from a judgment dismissing the petition or appointing a guardian other than a public guardian, the attorney's appointment shall terminate automatically upon expiration of the time for filing an appeal unless the court orders otherwise.

(2)Other Reason for Termination. A court-appointed attorney who perceives a present or impending conflict of interest or other inability to continue serving as attorney for the minor or disabled person shall immediately notify the court in writing and request that the court take appropriate action with respect to the appointment.

(3)Representation if Public Guardian Appointed. If a public guardian has been appointed for a disabled person, the court shall either continue the attorney's appointment or appoint another attorney to represent the disabled person before the Adult Public Guardianship Review Board.

Cross reference: Code, Family Law Article, § 14-404(c)(2).

(4)Appointment After Establishment of Guardianship. Nothing in this section precludes a court from appointing, reappointing, or continuing the appointment of an attorney for a minor or disabled person after a guardianship has been established if the court finds that such appointment or continuation is in the best interest of the minor or disabled person. An order of appointment after a guardianship has been established shall state the scope of the representation and may include specific duties the attorney is directed to perform.

(e)Reports and Statements. The court may not require an attorney for a minor or an alleged disabled person to file an investigative report, but may require the attorney to file a pre-hearing statement pursuant to Rule 10-106.1.

Committee note: An attorney for a minor or alleged disabled person, whether employed privately or appointed by the court, is an advocate for the attorney's client, not an independent investigator, and needs to be mindful of the attorney-client privilege and an attorney's responsibilities under Rule 19301.14 (1.14). It is a conflict of interest for the attorney to be both an advocate and an investigator appointed pursuant to Rule 10-106.2. See section 1.2 of the Maryland Guidelines for Attorneys Representing Minors and Alleged Disabled Persons in Guardianship Proceedings.

Cross reference: See Code, Courts Article, § 9-108.

Md. R. Guard. & Fid. 10-106

This Rule is derived in part from former Rules R76 and V71 and is in part new.

Adopted June 5, 1996, eff. 1/1/1997. Amended Dec. 7, 2015, eff. 1/1/2016; 6/6/2016, eff. 7/1/2016; 10/10/2017, eff. 1/1/2018; Nov. 19, 2019, eff. 1/1/2020; amended Nov. 28, 2023, eff. 1/1/2024.

HISTORICAL NOTES

2015 Orders

The December 7, 2015, order, deleted language from and added language to section (a), added a new subsection (a)(2) pertaining to disabled persons, and made stylistic changes.

2016 Orders

The June 6, 2016, order revised internal references in the Rule.

Derivation:

Maryland Rule of Procedure R76, revised eff. Feb. 2, 1970, related to appointment of attorneys, rescinded June 5, 1996, eff. Jan. 1, 1997.

Maryland Rule of Procedure V71, revised eff. Feb. 2, 1970, amended eff. July 1, 1974; amended April 6, 1984, eff. July 1, 1984, related to jurisdiction over fiduciary estates other than guardianships of minors or disabled persons, rescinded June 5, 1996, eff. Jan. 1, 1997.

2017 Orders

The October 10, 2017, order changed the title, deleted the second sentence in subsection (a)(1), added a Committee note after subsection (a)(1), deleted language at the end of subsection (a)(2) pertaining to the deposit of money into the court registry or the appointed attorney"s escrow account, added a Committee note at the end of (a), added a new section (b) pertaining to an attorney"s eligibility for appointment, added a new section (c) pertaining to fees, added a cross reference after subsection (c)(3), added a new subsection (d)(2) pertaining to other reasons for terminating an attorney"s appointment, added a new subsection (d)(4) pertaining to an attorney"s appointment after a guardianship is established, deleted current section (c) pertaining to appointment of an investigator, and made stylistic changes.