one mr chief justice and may please the court i name is kevin green and i represent the appellant's david ferrie camp in fact and law offices the question presented is whether a guardian ad litum should enjoy immunity from negligence claims in the same way that the court appoints him does for the same reasons majority of the public court panel rejected the weight of authority when it answered this question in the negative and its decision should be reversed for three reasons first the decision radically alters the traditional of the guardian ad litum which is to act as a court's agent not as awards attorney second the decision creates an unworkable case by case immunity analysis that needlessly tries to distinguish probate from custody proceedings and that conflicts with the public policy behind immunity the result will divert the guardian ad litum energies towards anticipating lawsuits it will lead to second guessing and hindsight analysis and it will likely dissuade council from accepting litum appointments or increase their fees for doing so or both finally immunity neither deprives the ward of a remedy nor gives a guardian ad litum a free pass because the safeguards against misconduct and the wards remedies are reasoning is that odds with this court's explanation of the traditional role of a guardian ad litum which is to assist the court in performing the duty that it has to protect the minors interests this court has explained recently in the in re mark w case but the minor is the court's ward and that the court is charged with the duty to protect the interest of the war and to quote vigilantly guard the wards property in that case this court explain that the court can appoint a guardian ad litum to assist the court in performing its duties and that the guardian ad litum is considered the court's agent acting as its eyes and ears and not as of wards attorney case also explained that the guardian ad litum when it's when he is appointed in the absence of statutory authority well the traditional role of the guardian ad litum is not to advocate for what the ward wants but instead to make a recommendation to the court as to what is in the wards best interest the court continue to explain that the role of the guardian ad litem is thus in contrast to the role of the plenary guardian of the person appointed pursuant to the overt act so although the guardian ad litem is providing a recommendation to the court the court is free to accept that recommendation reject it require additional information require further investigation before the court carries out its job to decide what is in the child's best interests and how to best protect the child in reaching it fiduciary to the minor who is charged with protecting the minors interests and caring for the minors the state this it make any difference who paid the guardian ad litem i don't think it makes a difference because in most cases the guardian ad litem is going to be paid out of the estate if we're talking about is in a state matter and so the fact is that the court knows going in before it makes the appointment who is going to be paying for the guardian ad li appellate court decision also does is it reverses how it should work in the order of appointment here the order of appointment for the guardian ad litum was silent about his responsibilities and the appellate court's reasoning means that in that silence we should imply that the because this was a common law appointment it seems to make no sense that we should find that a common law appointment for a guardian ad litem is a traditional role guardian ad litum that is to be the arm of the court to provide recommendations to the court and not to act as the words attorney i don't think has to tell the guardian ad litum that he has immunity since it is found in the common law now i think if the judge assigns an extra role to the guardian ad litum so if the judge were to express to state i'm also appointing you to be the wards attorney perhaps that  immunity would not apply because at that point the guardian ad litum is no longer the agent of the court he's he's especially charged with being the wards attorney and i think the in raymart w k shows us that point as well because they are the the guard had appointed a special master to help it decide some issue it had to decide usually that's more of one discrete issue when the special master is appointed but the idea is the same here we have an arm of the court being appointed to help the court carry out its duty over a course of time to determine how to protect the child's interests what are the best interests of the child how can the court performance duties perform its function and so the policy behind the immunity the judicial immunity and the closet educational immunity  is to allow the efficient administration of the court system and to allow the court and its officers and agents to make its decisions and its recommendations with independents without compromise without any clouded judgement or fear that someone might sue them later because they don't like the decision that they've made us supreme court has explained the community is not for the benefit of the person who might have views it but it's for the benefit of the public and with this immunity specifically for the benefit of children who's interested is that the judges in our agent should be at liberty to exercise their functions with independents and without fear of consequences so when it comes to the arms of the court we want the courts agent to be able to make a neutral assessment that's free from harass manner und influence we want the guardian ad litum not to focus on who might sue me in the future which might cloud his judgment which might make his recommendation not something for the child's best interest to something for the guardian ad litum special interest but decision might be the least controversial might become that he if he knows he's subject to being sued in the future so there are several safeguards in place that sort of would deter misconduct i think there's a couple right off the bat where the guardian is the arm of the court he's subject to the court's oversight so everything he's doing is telling the court and the court deciding how to proceed so if the court doesn't like what the guardian ad litum is doing the court can remove him any of the parties can move to remove the guardian ad litem there's there's also as an attorney he's also subject to a r discipline and i think the guardian ad litum also has an incentive if you want to continue being appointed to these roles in the future to do a good job there's also another safeguard on misconduct and that is the scope of immunity the reach of the immunity doesn't reach conduct that exceeds the scope of the appointment sophie guardian ad litum or to engage in self dealing for example or stealing the assets for personal gain that would not be subject to the immunity because that would be outside his role as it as an agent of the understanding it was a usual protocol and my argument is that in that situation it's a common law point and without more the rule should be that that is a appointment to be the traditional arm of the court well guardian and that that would get sash or authority but that was not the case here here the guardian was appointed actually the same day as a guardian ad litum so this was not an appointment for a proceeding to determine if a guardian should be appointed which is what the and both the trial court and the appellate court recognise that this was a common law a point and the unremarked of the case found that that appointment that the court does have the inherent power to make an appointment to help the court assisted in performing so i think that the duties of that particular jail flow to the court because it was the court's duty at the end of the day for example to approve the settlement the settlement order approving the order approving the settlement agreement said that any future dispers did the i'm sorry did which one come now to the point of the d l did come first and the jail did approve the settlement agreement and then the court approved the settlement agreement and said that any future dispersants are subject to court approval and so that there was an anticipation of future activity by the court because every transaction where the guardian wanted to disperse money had to be approved by the court the guardian the guardian yes and then that you know they play with the guardian with regard to other g l did have conversations with the guardian's attorney there was a letter sent to the g l for one of the dispersement spy the guardian's attorney and so then the jail approved the dispersant and then the court approved each dispersement and it looks like from the record that there were three dispersants sort of when the miner was around seventeen years old where there was no jail involvement and so it looks from the right so i think because of the absence of direction the guardian ad litum should be a common law traditional role guardian ad litum making recommendations to the court about what he thinks is the child's best interest and so how does he perform that might be a different question and if we're going to look at whether he adequately perform the task that should have helped him accomplish that duty to the court then we're going into the question of breach potential breach of duty and the immunity presupposes a breach shields a breach of negligent activity and so if the duty is flowing to the court we don't need to necessarily get into whether he inadequately performed or adequately performed or fee should have met with the child more or less or what he should have done not to breach that duty because a duty again is to the court i'm not sure that that rule applies to this common law garden i like it cardinal law i'm appointment you all better than whether that applies but i think if it does apply what i think will nine o seven does is again it talks about the tasks that should performed and so if we're talking about whether the tasks described in rule nine o seven were or were done adequately we're again getting into the question of whether there was a breach but the rule does not say that it does not child a representative which has advocacy roles for the child's interests and the guardian ad litum so it suggests there's three different approaches to a minor a few cases where this type of person is appointed and the guardian  the marriage act for example is only making recommendations to the court similar to what we are arguing the traditional common law role would be now the appellate court tried to distinguish this case and the cases finding immunity for guardian enlightens by saying well those cases only apply to custody or to divorce proceedings and this should be a distinction because it seems that there's an underlying assumption there that probate proceedings are not adversarial typically i'm not sure where that assumption lies because you know there's the clark case for example showing a property disbursement where minors have interesting proceed quickly becoming adversarial and one party accusing the guardian ad litum of advancing the other party's interests and not the minors interests so there's case law replete with money issues when someone is deciding how to spend someone else's money there's a clear risk of some adverse interest being involved whether it's the risk of someone who's requesting the money being upset or someone whose money it is being requested or perhaps a third party who is owed that money and i think the assumption that probate proceedings are not typically adversarial is contradicted by the fact that the court has to stay involved all along the way at every step the court has to approve every transaction and the court has a duty to watch over the minor because it seems to be a recognition of the reality that there will be adverse interests at play  underlying representation so yeah the net fund was about to seventy and then that's what the court approved as a settlement with dispersants again to be subject to further court approval immune there is a bunker case which was cited from the northern district of illinois which was an offshoot of the cushing case that the plaintiff relies on and that was the underlying case there was a wrongful death the negligence action and so there are and we cited several other from other jurisdictions finding guardian ad litum simian from negligent claims outside the custody and the divorce proceeding but again i don't think there is the distinction is a real distinction i think both proceedings have the real risk and the threat that someone may be dissatisfied by the guardian ad litum decisions and the rationale for providing the immunity is to prevent the decisions from being clouded by that fear you know just to scolding her she made a point that removing immunity here has years he made three hundred dollars for his services here is someone in his shoes going to accept the appointment to be a guardian ad litem know he knowing he's subject to a thousand liability in punitive damages and attorney's fees to make three hundred dollars fee he made if he does accept that appointment is he going to increase his fees alternatively for each dispersement request is he going to make sure he's covered so when he gets a request is he going to send out written discovery and send out notices of deposition and conduct witness interviews and demand a hearing so he has cover from the court even more than he should have but someone here i think if someone is a lawyer for the attorney well i think it might lead into both iraq because again he's not the miners attorney here is the courts are so i think he needs to take into account the effect of depleting the assets of the miner here and if the judge knows that the costs and the fees are going to increase will minutes all right thank you may have please the court my name is michael blow vogel i represent alexis nichols there are a few points from counsel's presentation i want to respond to first and i'll get into the body of my argument the first appointment of a guardian in this proceeding at the genesis of the proceeding the court may appoint a guardian ad litum to represent the minor in the proceeding i believe the guardian ad litem was appointed pursuant to the probate act and another reason i always had that belief is the underlying case was a probate case believe the case is the original case while this comic takes place has a caption over four dash p the ash one free nine all of those proceedings by which the settlement was the sparse that we're talking about are in a probate matter that would be more important only get to the role nine and seven question with your point that i think needs to be and i will not i will spare you a reread of the entire brief but there are passages starting on page thirty where we set forth what those duties are and for example the rom case states is the duty of such guardian the called the rights of the minor to the attention of the court to present their interests and claim for them such protection is under the law they are entitled later on i quote the appellate pinion below which is quoting don't was the sole representative of the minor and exclusive power to direct managing intro to lawsuit on behalf of the minor and their passage as some foreign from the brief that i want to highlight in the section is where we quote the the guardian ad litum the interests of the infant are sacrificed the guardian may be punished for his knee clacked as well as made to respond to the nth and for the damage the same that's important for a few reasons  this is not just some stray south carolina case it's quoting from corpus jurist a condom it also tells you that going back to at least one hundred thirty the common law understanding was the car you have lied and could be liable for negligence so sadia that if we hold  know why i'm liable for negligence all bets are off guardians of why them won't represent plaintiffs and a whole host of terrorists will follow it's contradicted by reality is historically been the case that they do not have immunity i cases the say well the child doesn't always have to do what the minor wants i would agree so the attorneys duties to this might to any minor are going to be slightly different than they would to an adult competent client nevertheless the guardian vitamins stand on behalf of the child and it makes sense within the context of this case to because we already have a guardian so the question is well what is a walled garden of wine and well their role is to represent the best interests minor in the minor wants something that the guardian doesn't think is i don't believe so in the sense if you look to the rules of professional conduct they also the scotts kind of these situations where if you're an attorney and you have a client who's either because a minority or disability or what have you that they seem incapable of making the right necessarily know that guardian will look out for the best interests of a minor even though they're just that the guardian is yes yes so the guardian why don't the fact of lea is functioning as an advocate for the client i suppose a conflict could arise no conflict the rose here most likely because of the affidavit of my client that shows she never actually confronted with mr farron him but the court is proceeding where i'm representing a client i can say this is what is in my client's interests i oppose the motion to continue i'm fine with the motion to continue or can do whatever it wants even if all the litigants are on the same side of an issue which i think shows that a sanction between what the court is doing and what garnett why them is doing the going and why don't especially in this context is not functioning as some sort of special master or arm of the court like they might be in a dissolution proceeding where you have two adult adversaries as parties in the litigation here they're not appointed the tell the court what's the best custody plan or what's the best way to proceed with the dissolution where they're effect case are supposed to take the best interests of the mire in mind just like a port of point psychologists would or anyone else but they're doing so in the context of adult adversaries on both sides here we don't have a built in adversarial relationship the reason you with parents on each side of the litigation in that context where you've got aggrieved or you have adults on each side of the litigation there's a very strong likelihood that whatever the g a o recommends at least one of the parties in that lawsuit will be unhappy in the contacts with a minor like in this case there's no nests sorry reason the minor will be unhappy with what the guardian of y them does they're not making that in a situation that has a built in conflict you know it's certainly possible lexus could have agreed to what her mother was suggesting had the guardian ad litem conferred with her depending on what the mother was suggesting i guess is the other point guardian's represent years well there were both in a sense and so was a guardian appointed and then there is a guardian ad litum and i believe you are appointing the guardian a line in the sparse as a was i believe to represent the minor so in my mind what the guardian's in the guardian guardian and manager here one would think and i guess the guardian of why don't scroll is an additional protection over the guardian and here it is kind of highlighted by the guardian has an attorney in these alexis de attempt to proceed against the guardian and the bond never seemed to be invoked in that proceeding and that actually feeds into an additional point i have on why i think i know why and was the least perceived as the attorney or supposed to be acting as the attorney for alexis in this matter is the way the circuit court handled the lawsuit against the guardian where she repeatedly says why is she the parent the only defendant in this lawsuit where she sates in the order that she's not going to look at the orders that made the dispersement because there was a guardian ad litum representing a lexus so only the circuit court at all times thought the guardian allied him was supposed to be acting for the best interests of alexis said he had duties to alexis and that if he's signing off on these things that means the dispersants must be appropriate and i think that also speaks to the idea that until now no one has thought of the g a o else as the arm of the court they're thinking of the son who's supposed to be acting for the minors that they represent and i think that's important for another reason which is because we don't have any case in illinois expressly stating that she yells have immunity in these probate proceedings that means we're presented with an issue of first impression which has to implications first i've already spoken to a little bit we know that even though there's never been an appellate case expressly saving these jails have immunity there hasn't been a crisis jails have still been appointed there's no indication that they're charging inflated these are no haitian that there are doing far more than they would be required by their duties there's also i think it's important this is the first case i'm aware of that has this fact pattern in illinois where someone is alleging a dissipating of assets that's holds me most jails are doing their jobs appropriately and are not being subjected to watch suits or harassment and ye but exactly the right as far as i can tell there would be nothing i think even the a r t c thread over the g a o zas fairly hollow because that depends on the air d c having the resources to investigate all these things and the carry insurance which is another thing that like there's no requirement as a condition of being a jail that the attorneys show that they do in fact have the insurance but for a non attorney you know they're not going to have legal malpractise insurance you can't report them to their d c so immunity would protect them and there's no remedy and no necessary accountability to them and i when i address another point the council raises well if they know there's no immunity they might really think about that as they're working the file which in my mind would be the appropriate response it's the same way any warrior handles any file as well i know one reason i should work the file is because potentially it could be subjected to a malpractise suit so that those me mr farron can for example upon seeing a request to disperse funds saying from the mother saying i need these funds for x y z reason would feel compelled to at least at a minimum call a lexus and say is this match with what you've seen on the ground like she needs she says she needs expenses for cheerleading ar whatever the case may be adam minimum it would motivate the jails to do what they're supposed to do and again we've never had a case expressively stating they have immunity but we have no evidence of or i guess would be called the fence of warrior and would be if they court so why did you take five depositions of verify this two hundred dollar ask the court could shoot down the fee if that seemed excessive it does motivate the a unity to this type of case that is an extension of humanity the court can choose between protecting the minors like alexis who says she was never interviewed by mr farron camp never even had a phone call from mr farron camp didn't know he was her g l until long after the jail proceedings inter it he can protect the minors or you can protect negligent attorneys now again you don't need immunity for non negligent attorneys they already have  the they can say i exercise reasonable care here's my proof i exercise reasonable care and that the spencers with lawsuits and a guy gets erect leader coy's be frivolous lawsuits but we have one hundred years approximately of experience with not having immunity where we have not been overrun with prevalence lawsuits again this is the only case of this fact and are any of skid fine in the state of illinois so the choice really comes down to holding jails accountable in every way possible and protecting the minors or holding that they are not accountable and that the minor has to take extraordinary measures maybe after they reach majority to try and possibly remedy what has happened in my mind public policy favors  jails have the same do that all attorneys have and that this court well to the accent there is a judgment call to be made will stand on behalf of the minors is that you usually use in your argument that because there are no cases there it's i suppose that inference could be made by going to see other competing inferences no person is seen felt aggrieved by the conduct of the g a o l and i guess we don't necessarily know which way it was but what we liable in damages for their conduct so until there is an illinois case expressly stating otherwise i think all the judges in this case and all judges and attorneys have acted on the assumption there is no me in eighty and theoretically someone could i like to start with all of the justice garments question early in the argument is there a duty to both the child and the court and if we're going to give a duty to both the child and the court won't that create the potential for conflict of interest and it seems the answer to that question that wards attorney we should not assume and make him an attorney by and by implication from a silent order it seems that the plaintiffs argument he said that the guardian ad litum is extra protection protection over the guardian or the extra protection over the guardian as a court it is a court that is charged with the duty to protect the child and to vigilantly guard the child's property and so it is a court that appoints a guardian ad litum to help the court perform its own duty over the extra protection of the guardian the guardian also had an attorney her own attorney who also received money from the child to state much more money than the guardian ad litum either way so there are extra layers of protection over the guardian but the guardian ad litum is the court's arm the court's eyes and ears because the court is the one charged with overseeing the guardian and the guardian's requests for disbursements there's a question about where what is the source of the appointment and i think just as kilbride touched on our interpretation of the statute that was referenced this was not a proceeding to appoint a guardian where he was appointed this was an appointment of a guardian ad litum following the appointment of the guardian following the dispersants from the southern account and the trial court in the underlying case even explained that a seventeen panic seventeen the authority for the appointment of the guardian ad litem comes from the common law so it was understood that this is a common law appointment but again i don't know of the source necessarily changes things because whether it's on the probate act or the common law appointment it was a traditional guardian ad litum appointment to help the court function perform its functions plaintiffs said that she has to go through extraordinary remedies to correct what's been done and i think that overlooks several of vailable remedies she had to tell a court so there was no relief that she could no way further achieve relief for what she says was negligent conduct by the guardian ad litum but there were at least five ways i think she could have changed the result here first when she turned eighteen she said she signed an affidavit saying she reviewed the account she agreed that it should be closed she could have objected to closing the account if that was entered over her objections she could have appealed that order now within two years after that order was entered the skoda civil procedure gives her a procedure by which she could have moved to set aside any of those disbursement orders it's to dash fourteen  one she could set aside those judgements and she could have done that within two years after turning eighteen because that section tolls the time the two years until you reach the age of majority so she could have had the court review prior orders in the underlying probate case and first instance and then she could have and she did sue the actual guardian who was her fiduciary and the court found that the guardian did not breach or fiduciary duties so she could have appealed that order and i think this emphasizes again the duty of the guard in light of his to the court is the court's job to protect the minors interests and the court appoints the agent to help it perform its functions and so i think this case presents a question if the court's agent fails the court fail and if the court fails what is the remedy and the remedy we all know when the court fails as you bring those failures to the attention of the appellate court you review those underlying court orders and that although there is no case law saying you can sue the guardian litum there is plenty of case law where people are upset that the guardian ad litum did not represent the miners interests and when that happens look this court has said in the mccarthy case in the stuns case in the clark case if you review the underlying orders and you see where the years later the miner said that they had actually the parents had actually been reimbursed by the insurance company for those five thousand dollars payments and the court under section fourteen want four to no one set those aside and ordered the guardian to reimburse the estate so there are many mechanisms by which the guardian the child could have recover for the alleged negligence of the guardian ad litum and the what we what the court has to do today is weigh the risks there's a risk of if you have immunity potentially you get negligent guardian ad litem and that's not in the interest of children but on the other hand if you remove the immunity there's a risk that the guardian litum starts to become clouded in his judgments and that's the underlying policy behind judicial immunity and closet judicial unity and that's why the brand case and the davidson case that child representatives who do have an advocacy role for the child were subject to cause i judicial immunity because at the end of the day as brent's a paragraph thirty six of its opinion those determination those advocacy roles of a child representative are to help the court make a neutral determination about the child's best interests so if we're going to remove the immunity we're going to change how the guard and allow them access potentially we're going to increase the cost of the guard litum to the court and to the minor and we may even cause a judge to hesitate appointed a guardian of light in the first place and so we have to weigh what really is in the best interests of the child and so the choice between protecting children and shielding negligent attorneys is not the right choice because it's our view that preserving immunity actually does serve to protect the children for all those reasons so there's no more questions we would ask that you reverse appellate court thank you thank you mr green