RULE 9. Guardian Ad Litem Review Board Complaint System

(a)      Grounds for Discipline. It shall be misconduct and a ground for discipline for a guardian ad litem to

(1)   Violate or attempt to violate these Rules, chapter 32 of Title 4, Title 18 A, Title 19-A, Title 22, or an appointment order issued pursuant to them; knowingly assist or induce another to do so; or do so through the acts of another;
(2)   Engage in conduct that violates the applicable rules of conduct for guardians ad litem in another jurisdiction;
(3)   Commit any criminal or unlawful act that reflects adversely on the guardian ad litem’s honesty, trustworthiness, or fitness as a guardian ad litem;
(4)   Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(5)   Have allegations of abuse or neglect against him or her substantiated by the Maine Department of Health and Human Services;
(6)   Fail to maintain compliance with the requirements in Rule 2 for placement on the Roster;
(7)   In the performance of guardian ad litem duties, by words or conduct, manifest bias or prejudice based upon race, color, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status;
(8)   Willfully violate an order imposing discipline under these Rules; willfully fail to comply with a subpoena validly issued under these Rules; or knowingly fail to respond to a lawful demand from a disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by applicable rules relating to confidentiality; or

(9)   Fail to comply with the duty to report set forth in Rule 5(i)(4).

(b)      Jurisdiction.

(1)   Guardians ad Litem. Any person on the Roster, or formerly on the Roster with respect to acts committed while on the Roster, is subject to the jurisdiction of the Review Board.
(2)   Powers Not Assumed. This Rule shall not be construed to deny to any court the powers necessary to maintain control over its proceedings.

(c)      Period of Limitations. No disciplinary proceeding may be commenced based on conduct alleged to have occurred more than six years prior to the date a complaint is filed.

(d)      Disciplinary Procedure.

(1)   Complaint in Open or Closed Proceeding. Any party to an open or closed proceeding under Title 18 A, Title 19-A, or Title 22, who wishes to complain to the Review Board of misconduct by or incapacity of a guardian ad litem appointed from the Roster in that proceeding, may submit to Central Intake a written complaint on a form approved by the Review Board. A complainant must inform the Review Board whether the case is pending and whether a complaint has been filed with the judicial officer who is conducting hearings on the case. The Review Board may open a file on a complaint but shall not take any action with respect to, or initiate a review with respect to, a pending case until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged.
(2)   Complaint a nonparty. A judicial officer or Board Counsel may submit a complaint to the Review Board regarding guardian ad litem misconduct or incapacity at any time.
(3)   Board Counsel Investigation. Board Counsel shall conduct all investigations, except as otherwise required by these Rules.
         (A)    Board Counsel shall evaluate all relevant information including a court’s decision on whether to remove the guardian ad litem, to determine whether the information or complaint concerns a guardian ad litem subject to jurisdiction under these Rules and whether the alleged facts, if true, would constitute misconduct or incapacity. Board Counsel shall dismiss a complaint if jurisdiction does not exist or if the facts would not constitute misconduct or incapacity.
         (B)    If a complaint is dismissed, Board Counsel shall notify the complainant and the respondent in writing that the complaint was dismissed and the reason for the dismissal. This written notification shall inform the complainant of his or her right to seek review of the dismissal by a public member of the Review Board by submitting a written request for review within 21 days after the date of the dismissal notice. Upon receipt of a request for review, a public member shall be assigned by the Board Clerk to review the complaint and Board Counsel’s investigation materials, and the assigned public member shall either

                  (i)    Approve the dismissal by Board Counsel, and direct the Board Clerk to notify the complainant and the respondent that the matter shall remain closed; or

                  (ii)    Disapprove the dismissal by Board Counsel, and direct that the matter be investigated further and/or that formal charges be filed. The Board Clerk shall notify the complainant and the respondent of the public member’s action in writing.
         (C)    If the matter is not dismissed, Board Counsel shall serve the respondent in writing with notice of the substance of the matter and afford him or her the opportunity to respond. Board counsel shall provide the complainant a copy of any written communication from the respondent relating to the matter, except that information that is subject to the privilege held by a person other than the complainant shall be redacted. Board Counsel shall refer the matter to the Board Clerk for a hearing before a Review Board Panel.
(4)   Pre-Hearing Procedures. If Board Counsel refers a matter to the Review Board Panel, Board Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.
         (A)    Board Counsel shall file the formal charges with the Board Clerk. Board Counsel shall serve a copy of the formal charges on the respondent and shall mail a copy of the formal charges to the complainant.
         (B)    The Board Clerk shall assign the complaint to a three-member Review Board Panel for hearing.
         (C)    The respondent shall file a written answer with the Board Clerk and serve a copy on Board Counsel within 21 days after service of the formal charges, unless the Chair of the Review Board Panel to which the matter is assigned for review extends the time for good cause shown. If the respondent fails to answer within the prescribed time, the factual allegations and the alleged misconduct shall be deemed admitted. Board Counsel shall provide a copy of respondent’s answer to the complainant, or if necessary to protect a person other than the complainant or respondent, Board Counsel shall provide a redacted version of the answer to the complainant.
         (D)    No later than 21 days in advance of the hearing, the Board Clerk shall serve a notice of hearing on Board Counsel and the respondent, stating the date and place of hearing. The Board Clerk shall mail a copy of the notice of hearing to the complainant. The notice of hearing shall advise the respondent of the right to be represented by a lawyer, to cross-examine witnesses, and to present evidence, and shall advise the complainant, if any, of the complainant’s right to make a statement to the Review Board Panel concerning the respondent’s alleged misconduct and the effect of the alleged misconduct on the complainant.
         (E)    At least 14 days before the hearing, the Board Clerk shall prepare and deliver to Board Counsel a statement as to the existence or absence of any disciplinary sanction record, reinstatement to the Roster, or surrender of Roster membership involving the respondent. Board Counsel shall then mail the statement to the respondent. The statement and any reply from the respondent shall be provided to the panel only in accordance with Rule 9(d)(4)(J).
         (F)    Discovery. Within 21 days after the respondent’s answer to the formal charges is filed, Board Counsel and the respondent shall
                  (i)    Exchange the names and addresses of all persons having knowledge of relevant facts;
                  (ii)    Identify which persons are reasonably anticipated to be called as witnesses; and
                  (iii)    Exchange all documents Board Counsel or the respondent reasonably anticipate will be introduced at the hearing.
Upon good cause shown, the Chair of the Review Board Panel may order additional discovery. The Chair of the Review Board Panel shall resolve by order all disputes concerning discovery. All discovery orders are interlocutory and may not be appealed prior to issuance of the Review Board Panel decision.
(5)   Hearing.
         (A)    Nature of the Proceeding. The Chair of the Review Board Panel shall decide pre-hearing motions, shall preside at the hearing, and shall have the power to control the course of proceedings and regulate the conduct of those individuals appearing as counsel, parties, or witnesses. Disciplinary hearings before the Review Board Panel are neither civil nor criminal in nature, and neither the Rules of Civil Procedure nor the Rules of Evidence apply. Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The Chair of the Review Board Panel may exclude irrelevant or unduly repetitious evidence.
         (B)    Proceedings Public. The hearing shall be open to the public, except that to protect the interests of a complainant, witness, child, third party, or the respondent, the Chair of the Review Board Panel may, upon motion filed with the Board Clerk and for good cause shown, issue a protective order prohibiting the disclosure of privileged or confidential information and direct that the proceedings be conducted so as to implement that order.
         (C)    Burden and Standard of Proof. At the hearing, Board Counsel and the respondent shall have the right to present evidence and cross-examine witnesses. The testimony of witnesses shall be by oath or affirmation administered by the Panel Chair. Board Counsel shall have the burden of establishing the basis for discipline by a preponderance of the evidence. A certified copy of a criminal conviction constitutes conclusive evidence that the respondent has committed the underlying crime.
         (D)    Hearings Recorded. The Board Clerk shall cause all proceedings before the panel to be recorded in a form that will permit transcription. A hearing transcript or partial transcript may be ordered at any time by the Review Board Panel, the respondent, or Board Counsel. When ordering a transcript, the respondent or Board Counsel must provide a copy of the requested transcript to the opposing party.
         (E)    Related Pending Proceedings. Upon a showing of good cause, the Review Board Panel may stay a disciplinary matter because of substantial similarity to the material allegations of pending criminal or civil litigation or professional disciplinary action.
         (F)    Cameras and Audio Recordings. Any person or organization requesting permission to record or photograph disciplinary hearings shall file a notice with the Board Clerk in advance of the hearing. Use of cameras and audio recording or electronic devices at disciplinary hearings is governed by the Administrative Order issued by the Supreme Judicial Court governing the use of cameras and audio recording devices in the courts.
         (G)    Failure to Appear. If the respondent fails to appear at the hearing without good cause, he or she shall be deemed to have admitted the factual allegations of misconduct that were to be the subject of the hearing and/or to have waived objection to any motion or recommendations scheduled to be addressed at the hearing. The Review Board Panel may not, absent good cause, continue or delay proceedings due to the respondent’s failure to appear.
         (H)    Inability to Properly Defend. If during a disciplinary proceeding the respondent claims to be incapacitated and that the incapacity makes it impossible to present an adequate defense, Board Counsel may recommend that the Chief Judge immediately suspend the guardian ad litem from the Roster pending a determination of the incapacity. The disciplinary proceeding shall be stayed under this subsection only if the Chief Judge determines that the guardian is unable to present an adequate defense due to incapacity. The incapacitated respondent shall remain on interim suspension until the Chief Judge determines that capacity has been restored and orders that the disciplinary proceedings be resumed.
         (I)    Waiver. Subject to approval by the Panel Chair, the requirements governing the hearing process as established in these Rules may be waived by a stipulated agreement of the parties.
         (J)    Disciplinary History. Board Counsel shall not divulge the statement as to the existence or absence of any sanction record to the Review Board Panel until after the Panel has made a finding of misconduct, unless the statement is admissible as probative evidence on issues pending in the matter before the Panel.
(6)   Review Board Panel Decision. The deliberations of the Review Board Panel following the hearing shall not be open to the public or the parties. The Review Board Panel shall issue a written decision containing its findings of fact, conclusions of law, and decision on dismissal or sanction to the Board Clerk within 30 days after the hearing, unless the time for decision is otherwise extended by the Chair of the Review Board. If a sanction is imposed, the decision must state the basis for imposing the sanction. The Board Clerk shall serve the decision on respondent and Board Counsel, who shall mail a copy to the complainant. The Review Board Panel may render one of the following:
         (A)    Dismissal. If the Review Board Panel finds that Board Counsel has not proven misconduct subject to sanction under these Rules, it shall dismiss the matter;
         (B)    Reprimand. If the Review Board Panel finds that misconduct subject to sanction under these Rules has occurred, it may issue a reprimand if the misconduct is minor; there was no injury to a child, the public, or the court; the respondent did not act intentionally; and there is not a likelihood of recurrence; or
         (C)    Removal. If the Review Board Panel finds that misconduct subject to sanction under these Rules has occurred but does not find that reprimand is appropriate, the Panel shall order the removal of the respondent from the Roster.
(7)   Appeal of Review Board Panel Decision. A decision of the Review Board Panel shall constitute final agency action and is reviewable as provided in Maine Rule of Civil Procedure 80C and the Maine Administrative Procedure Act, 5 M.R.S. § 11001 et seq., except that the requirement of service set out in 5 M.R.S. § 11003(1)(C) shall not apply.

(e)      Complaints Against the Review Board and Board of Overseers Members. If a complaint is filed against a guardian ad litem who is a member of the Review Board or Board of Overseers, the matter shall proceed in accordance with these Rules, except that the Chief Justice of the Maine Supreme Judicial Court shall appoint Special Counsel who shall exercise independent authority to investigate the complaint and, if the Chief Justice deems it necessary, assign an ad hoc Review Board Panel to the case. Special Counsel shall not receive compensation for his or her services but may seek reimbursement from the Review Board for the payment of reasonable expenses and for investigative, administrative, and legal support.

(f)      Service and Notice. Service of formal charges or of any other papers or notices required by these Rules shall be sufficient if made by first class mail addressed to the guardian ad litem’s office and/or residence address as provided by the guardian ad litem in the registration materials required by Rule 8(b). Service is complete upon mailing. The Board Clerk or Board Counsel may, at their discretion, use additional methods of service and notice (e.g., e-mail or telephone communication) if previous attempts at providing service or notice in the manner required by this Rule have failed.

(g)      Subpoena Power.

(1)   Investigatory Subpoenas. Before formal charges have been filed, Board Counsel may compel by subpoena the attendance of witnesses or the respondent and the production of pertinent books, papers, and documents in accordance with Rule 45 of the Maine Rules of Civil Procedure.
(2)   Subpoenas For Hearing. After formal charges are filed, Board Counsel or the respondent may compel by subpoena the attendance of witnesses, including the respondent, and the production of pertinent books, papers, and documents at a hearing under these Rules in accordance with Rule 45 of the Maine Rules of Civil Procedure.
(3)   Enforcement of Subpoenas. The Chief Judge may, upon proper application, enforce the attendance and testimony of any witnesses or the respondent and the production of any documents subpoenaed under these Rules.
(4)   Quashing Subpoena. Any person to whom a subpoena has been issued under this Rule may object to the subpoena, may move to quash or modify the subpoena as set forth in Rule 45 of the Maine Rules of Civil Procedure, and may appear through legal counsel for that purpose. Any objection to a subpoena so issued, or any motion to quash or modify such a subpoena, shall be heard and determined by the chair of the Review Board Panel before which the matter is pending or by the Chief Judge when enforcement of the subpoena is being sought.
(5)   Witnesses And Fees. Subpoena and witness fees and mileage shall be as provided for proceedings in the Maine District Court.
(6)   Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in Maine pursuant to the law of another jurisdiction for use in guardian ad litem discipline proceedings, and where the issuance of the subpoena has been duly approved under the law of the other jurisdiction, the Chair of the Review Board, upon good cause shown, may issue a subpoena in accordance with Rule 45 of the Maine Rules of Civil Procedure.

(h)      Immediate Interim Suspension from the Roster. Board Counsel shall file a petition with the Chief Judge upon receipt of evidence, either from the guardian through report pursuant to Rule 5(i)(4) or from another reliable source, suggesting the existence of a ground for immediately suspending a guardian ad litem from the Roster.

(1)   Petition. A petition for immediate interim suspension shall include the following:
         (A)    The information demonstrating a ground for the immediate suspension of a guardian from the Roster;
         (B)    Except in cases of alleged incapacity, a certification that Board Counsel has filed formal charges against the guardian ad litem in accordance with Rule 9(d)(3); and
         (C)    A certification that Board Counsel has served or made a reasonable attempt to serve the guardian ad litem or the guardian ad litem’s personal representative, if any, with notice of the information filed with the Chief Judge.
(2)   Mandatory Grounds for Immediate Interim Suspension. The Chief Judge shall immediately suspend a guardian ad litem from the Roster if:
         (A)    The Chief Judge finds probable cause to believe that the guardian ad litem has violated these Rules and that the violation threatens immediate and irreparable injury to a child, the public, or the court;
         (B)    The guardian ad litem is incapacitated, and the incapacity threatens immediate and irreparable injury to a child, the public, or the court. For the purposes of this Rule, evidence that the guardian ad litem is “incapacitated” includes evidence that the guardian ad litem: (i) has been judicially declared incompetent; (ii) has been acquitted of a crime by reason of mental illness; (iii) has been committed to a mental health hospital after a judicial hearing; (iv) has been voluntarily admitted to a mental health hospital for acute care; (v) has been voluntarily admitted to a substance abuse facility for extended treatment; or (vi) has been placed by a court under guardianship or conservatorship or the equivalent in another jurisdiction; or
         (C)    The guardian ad litem has been formally charged with a “serious crime” as defined in Rule 1(c)(19).
(3)   Discretionary Grounds for Immediate Interim Suspension. The Chief Judge may immediately suspend a guardian ad litem from the Roster if the Chief Judge concludes that the immediate suspension of the guardian ad litem is necessary to protect a child, the public, or the court.
(4)   Immediate Interim Suspension Order. Upon examination of the evidence transmitted and of any rebuttal evidence that the guardian ad litem has submitted, the Chief Judge may order the immediate suspension of the guardian ad litem from the Roster, pending final disposition of a Review Board Panel hearing predicated on the same grounds. Alternatively, the Chief Judge may order such other action as the Chief Judge deems appropriate. A copy of the Chief Judge’s order shall be served on Board Counsel and the guardian ad litem.
(5)   Notice of Suspension. A guardian ad litem subject to an interim suspension shall comply with the requirements of Rule 9(m).
(6)   Rescission of Interim Suspension. The Chief Judge may, in his or her discretion, vacate the interim suspension if the guardian ad litem shows by clear and convincing evidence that the grounds for the interim suspension no longer exist. The Chief Judge’s decision to vacate the interim suspension shall not automatically terminate any formal disciplinary proceeding pending against the guardian ad litem, the disposition of which shall be determined by the Review Board.
(7)   No appeal. Neither party shall have the right to appeal the decision of the Chief Judge on immediate interim suspension or rescission of interim suspension.
(8)   Further Proceedings When Guardian ad Litem is Alleged to be Incapacitated. If a guardian ad litem is subject to an interim suspension based on alleged incapacity, Board Counsel shall notify the Board Clerk, who shall assign the matter to a Review Board Panel. If Board Counsel proves the respondent’s incapacity by a preponderance of the evidence at a hearing before the Review Board Panel, the Panel shall issue a decision removing the respondent from the Roster for incapacity.

(i)      Discipline by Consent and Surrender of Appointment on Roster.

(1)   Discipline by Consent. A guardian ad litem against whom a complaint or formal charges have been filed may tender to Board Counsel a conditional admission in exchange for a stated form of discipline. The Review Board Panel may approve or reject the tendered conditional admission and discipline order. There is no right to appeal from an order of discipline by consent.
(2)   Surrender of Appointment. A guardian ad litem who is the subject of an investigation under these Rules may submit to the Board Clerk a signed, notarized letter of surrender of appointment to the Roster and shall send a copy of the letter to Board Counsel. Upon receipt of such surrender, the Board Clerk shall file it with the Chief Judge. The Chief Judge may accept the surrender or may enter such order that the Chief Judge deems appropriate. Any order accepting a surrender of appointment shall be a matter of public record unless otherwise ordered in whole or in part by the Chief Judge for good cause shown.

(j)      Reciprocal Discipline.

(1)   Notification. Within 30 days after being disciplined or the equivalent in another jurisdiction, a guardian ad litem on the Roster shall promptly inform Board Counsel.
(2)   After receiving notification from any source that a guardian ad litem on the Roster has been disciplined or was the subject of administrative action in another jurisdiction, Board Counsel shall
         (A)    Obtain a certified copy of the disciplinary order or equivalent; and
         (B)    File formal charges against the guardian ad litem with the Board Clerk and serve the respondent with notice of those charges.
(3)   Discipline To Be Imposed. The Review Board Panel shall conduct a hearing on the formal charges pursuant to Rule 9(d)(4) and impose an appropriate sanction authorized by Rule 9(d)(5), unless the respondent demonstrates by clear and convincing evidence that reciprocal discipline should not be imposed.

(k)      Access to Disciplinary Information.

(1)   Confidentiality. Prior to service of Board Counsel’s formal charges, the proceeding is confidential, except that the pendency, subject matter, and status of an investigation by Board Counsel may be disclosed by Board Counsel if there is a need to notify another person or entity in order to protect a child, the public, or the court.
(2)   Release of Confidential Information To Authorized Entities. In order to protect a child, the public, or the court, Board Counsel may provide access to relevant to authorized entities including courts in Title 18-A, Title 19-A, and Title 22 proceedings; members of the Review Board; the Chief Judge; jurisdictions investigating qualifications for appointment of guardians ad litem or considering reciprocal disciplinary action; relevant professional licensing agencies; and law enforcement agencies.
(3)   Public Information. All filings with the Board Clerk or the Office of the Chief Judge related to proceedings under this Rule shall be available to the public after the filing and service of formal charges, unless the complainant, the respondent, or Board Counsel obtains a protective order for specific testimony, documents, or records.
(4)   Public Proceedings. Upon service of formal charges upon the respondent, all proceedings shall be public except for the deliberations of both the Review Board Panel and the Single Jurist and except for information with respect to which the Review Board Panel, Single Jurist, or Chief Judge has issued a protective order.
(5)   File Retention and Copying. The Review Board shall retain all files. Files may be retained in a digital format. Copying and attestation fees shall be the same as those for proceedings in the Maine Supreme Judicial Court.

(l)      Dissemination of Disciplinary Information.

(1)   Public Notice.
         (A)    The Board Clerk shall issue, electronically or otherwise, a news release to general media outlets throughout Maine regarding the suspension, surrender, or removal of a guardian ad litem from the Roster.
         (B)    The Board Clerk shall publish on the Review Board’s website public hearing decisions issued by Review Board Panels and decisions from appeals pursuant to Rule 9(d)(6).
(2)   Additional Notice. The Board Clerk shall transmit, electronically or otherwise, notice of all public disciplinary sanctions, surrenders, suspensions, and reappointments of Roster membership to members of the Review Board and to the following:
         (A)    The Chief Judge;
         (B)    The Director of the Court Appointed Special Advocates Program;
         (C)    The guardian ad litem disciplinary authority in any other jurisdiction known to the Review Board in which the guardian ad litem has been appointed;
         (D)    All State, Federal, and Tribal Courts in Maine;
         (E)    The regulatory body for the guardian ad litem’s underlying profession; and
         (F)    Any other such organization as determined by the Review Board.

(m)      Guardian ad Litem Duties Following Discipline.

(1)   Recipients of Notice; Contents. Unless otherwise ordered, within 30 days after a surrender or the date of a decision or order imposing suspension or removal from the Roster, respondent shall notify the following in writing of the nature of the discipline, and of the respondent’s disqualification to act as guardian after the effective date of the order:
         (A)    The courts in all Title 18-A, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed;
         (B)    Any parents in all Title 18-A, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed; and
         (C)    Any counsel in all Title 18-A, Title 19-A, and Title 22 proceedings in which the guardian ad litem is currently appointed.
(2)   Duty to Maintain Records. The guardian ad litem shall keep and maintain records of the steps taken to accomplish the requirements of this subsection and shall make those records available to Board Counsel on request.
(3)   Refund of Fees. Within 10 days after entry of the order imposing suspension or removal, the guardian ad litem shall refund any unearned portion of fees paid in advance.
(4)   New Appointments Prohibited. Upon the effective date of an order suspending or removing guardian ad litem from the Roster, the affected individual shall not accept any new appointments as a guardian ad litem under Title 18-A, Title 19-A, or Title 22. The affected individual shall not advertise that he or she is a guardian ad litem and shall discontinue any advertisements indicating that he or she is a guardian ad litem.
(5)   Affidavit Filed. Within 10 days after the effective date of the suspension or removal, the guardian ad litem shall file with Board Counsel an affidavit
         (A)    Showing compliance with the provisions of the decision or order and with this Rule;
         (B)    Identifying all other jurisdictions in which the guardian ad litem is currently qualified to act as a guardian ad litem; and
         (C)    Identifying the residence or other addresses where communications may thereafter be directed.

(n)      Application for Return to Roster. A guardian ad litem who has been removed from the Roster or who has surrendered his or her appointment from the Roster may be reappointed to the Roster only by order of the Chief Judge after submitting an application pursuant to Rule 2 of these Rules.

(1)   A guardian ad litem who has been removed from or who has surrendered from the Roster for incapacity may apply one year after the removal or surrender and, if the application is denied, may reapply no more than once a year thereafter.
(2)   A guardian ad litem who has been removed from the Roster for misconduct or who has surrendered from the Roster after a complaint is filed may apply five years after the removal or surrender and, if the application is denied, may reapply after the time specified by the Chief Judge in the decision denying the application.

(o)      Immunity. Members of the Review Board, Board Counsel, Special Counsel, ad hoc Review Board Panel members appointed by the Chief Justice of the Maine Supreme Judicial Court, and the Board of Overseers and its staff or any person acting on their behalf, shall be immune from suit to the extent permitted by statute and other provisions of law.


Reporter’s Notes

Rule 9 establishes the Guardian ad Litem Review Board Complaint System, as contemplated by 4 M.R.S. § 1557(1). It is loosely based on the disciplinarily rules for attorneys established by Maine Bar Rules 10 to 31.

Rule 9(a) is based on Maine Bar Rule 21, but additional grounds for discipline are included. Rules 9(a)(3) and (4) are substantively equivalent to Maine Rules of Professional Conduct 8.4(b) and (c). Rules 9(a)(6), (7), and (8) are new. Rule 9(a)(7) is based on and substantively equivalent to Maine Code of Judicial Conduct Canon 2.3(B).

Rule 9(c) establishes a limitations period for filing complaints of six years after the act complained of occurred. The Guardian ad Litem Oversight Task Force (“Task Force”) reached a consensus that there be no limitations period for filing complaints. Members noted, however, that older complaints would be difficult to investigate. An additional concern of delaying filing and investigation of complaints was that a problematic guardian might continue poor practice over a lengthy period of time. There was also a concern that records would be unavailable in light of the operation of applicable record-retention schedules. See, e.g., M.R. Prof. Conduct 1.15(b)(2)(iii) (requiring records be kept for eight years after the termination of representation); 13 C.M.R. 10-144-112-7 § 3.5.5 (2009) (requiring hospitals to preserve medical records on paper or by other electronic/optical means for a period of seven years or, if the patient is a minor, for at least six years past the age of majority). Notwithstanding the Task Force recommendation, these considerations weigh in favor of having a limitations period.

Rule 9(d)(1) defines the persons who have standing to file a complaint and the persons subject to a complaint. Only judges, parties to open or closed proceeding under Title 18-A, Title 19-A, or Title 22, and Board Counsel may file a complaint. Only guardians ad litem appointed from the Roster in the proceeding involving the complaining party may be the subject of a complaint.

Rule 9(l)(2) is modeled after Maine Bar Rule 19(b). The entities to whom the Board Clerk shall transmit notice of public disciplinary sanctions or reappointment are those relevant to guardians ad litem listed on the Roster. By notifying the Chief Judge of disciplinary sanctions, it is anticipated that the Chief Judge will share this information with the judicial officers in proceedings in which the guardians ad litem subject to discipline have been appointed. Those judicial officers would then consider the information in deciding under Rule 6 whether a guardian should be removed from a particular case.

Rule 9(m) is based on Maine Bar Rule 31. Among other requirements, a guardian ad litem who is suspended or removed from the Roster must notify the courts, parents, and counsel in proceedings in which he or she is currently appointed, as provided in Rule 9(m)(1); and the guardian ad litem may not accept new appointments, as provided in Rule 9(m)(4).

Maine Bar Rule 32, addressing appointment of counsel to protect clients’ interests when an attorney is suspended, disbarred, disappears, or dies, is not transferable to guardians ad litem and has not been included in Rule 9.


Advisory Note – September 2016

Rule 9(d)(1) is amended to provide for the filing of a complaint in open or closed proceedings. The following language is added: “A complainant must inform the Review Board whether the case is pending and whether a complaint has been filed with the judicial officer who is conducting hearings on the case. The Review Board may open a file on a complaint but shall not take any action with respect to, or initiate a review with respect to, a pending case until the court issues a final judgment in that case, the court enters an order allowing the Board to proceed, or the guardian ad litem is removed or discharged.” The provision that a complaint may also be submitted by a judicial officer or Board Counsel is moved to new Rule 9(d)(2).

Rule 9(d)(2) is added to apply to complaints by nonparties. It provides, “A judicial officer or Board Counsel may submit a complaint to the Review Board regarding guardian ad litem misconduct or incapacity at any time.” All subsequent paragraphs are renumbered. Additionally, Rule 9(d)(3)(A), as renumbered, is amended to require that Board Counsel evaluate all relevant information, “including a court’s decision on whether to remove the guardian ad litem,” when determining whether the information or complaint concerns a guardian ad litem subject to jurisdiction under the Rules and whether the alleged facts, if true, would constitute misconduct or incapacity.

Rule 9(d)(5)(E), as renumbered, deletes the authorization for the Review Board Panel to stay a disciplinary matter because of a substantial similarity to a pending motion under Rule 6 to remove the respondent from a Title 18-A, Title 19-A, or Title 22 proceeding.