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Gibson v. Theut - 3/12/2019

Arizona Court of Appeals Division One holds: (1) neither guardian ad litem nor appointed attorney to minor are entitled to absolute judicial immunity; (2) minors have standing to sue for legal malpractice; and (3) government entities may be liable for negligent hiring in appointment of an incompetent legal representative.


A minor participated in the killing of his father and was sued for wrongful death by his paternal grandparents.  The probate commissioner appointed a guardian ad litem and attorney to the minor in connection with that wrongful death lawsuit.  The paternal grandparents obtained a $50,010,000 default judgment against the co-defendants and tendered a $5,000,000 offer of judgment.  The minor was not informed, pleaded guilty to second degree murder of his father and his paternal grandparents filed and obtained summary judgment and sanctions against the minor for failure to obtain a more favorable judgment than the lapsed offer of judgment.  The minor then asserted negligence claims against the guardian ad litem and his attorney, claiming that they failed to properly defend against the wrongful death lawsuit and against the county and state for failing to ascertain whether the guardian ad litem and his attorney were properly qualified prior to placing them on a list of pre-qualified attorneys.  The superior granted all defendants’ motions to dismiss, holding that the guardian ad litem and attorney had absolute judicial immunity and the vicarious liability and negligence claims against the state were likewise barred.

On appeal, the Court of Appeals reversed in part, affirmed in part and remanded to the superior court.  Addressing the guardian ad litem’s judicial immunity defense, the Court of Appeals held that the guardian ad litem could not assert judicial immunity because he was not performing a court function, but rather acting as an active participant in the litigation.  Turning to the attorney, the Court of Appeals reversed the superior court because, addressing an issue of first impression, an attorney representing a minor in litigation is not shielded from malpractice.  The Court of Appeals also concluded that the attorney, like the guardian ad litem, was not judicially immune from claims of malpractice because his function was that of an advocate and not a judicial officer.  Finally, addressing the claims against the county and state, the Court of Appeals concluded that the minor’s vicarious liability claims were barred as a matter of law because the government had no right to supervise or direct the guardian ad litem or attorney.  The Court of Appeals held the minor may have stated a claim for negligent hiring in alleging that the guardian ad litem and attorney were not sufficiently qualified to handle a complex civil case.

Dissenting in part, Judge Thompson stated that the selection of the guardian ad litem and attorney to the pre-approved list was performed by a commissioner, who did have judicial immunity.  Judge Thompson further observed that the county and state did not proximately cause the minor’s injuries because the negligence of the guardian ad litem and attorney were superseding causes of his injury.

Judge Perkins authored the opinion; Judge Winthrop joined; Judge Thompson concurred in part and dissented in part.

Posted by: William D. Furnish

Posted On: 4/8/2019