RULE 7. Guardian ad Litem Review Board
(a) Guardian ad Litem Review Board
(1) Review Board. The Guardian ad Litem Review Board is established as an independent unit within the Board of Overseers to administer the regulation of guardians ad litem as defined in these Rules.
(2) Appointment. The Maine Supreme Judicial Court shall appoint twelve people to serve on the Review Board. Eight members shall be drawn from the Roster or from the Family Law Section of the Maine State Bar Association. Four members shall be public members, selected as follows. The Governor, the President of the Senate, and the Speaker of the House shall each be invited to submit recommendations for the public members, and the Judicial Branch shall solicit public members though notice on the Judicial Branch Website. When sufficient recommendations are received from executive and legislative leadership, three of the four public members will be drawn from that list. The Maine Supreme Judicial Court shall periodically designate on member of the Board as Chair and another as Vice Chair.
(3) Terms of Office. Review Board members shall be appointed for a term of four years, except that, for the purpose of achieving staggered terms, the initial appointments of four of the members who are on the Roster and two of the public members shall be for two years. No member shall serve more than two consecutive four-year terms. A member whose term has expired may continue to serve on any case that was commenced before the expiration of the member’s term. A member who has served two consecutive four-year terms may not be reappointed before the expiration of at least one year.
(4) Compensation. Review Board members shall receive no compensation for their services but may be reimbursed by the Board of Overseers of the Bar for travel and other expenses incidental to the performance of their duties.
(5) Review Review Board Quorum. Seven members of the Review Board shall constitute a quorum for any meeting. The Review Board may act through the concurrence or vote of a majority of the members present at a duly constituted meeting. After reasonable notice to all members and with the consent of all participating members, a meeting may be duly constituted and action taken by means of a telephone or video conference or other communications equipment enabling all participants and attendees to hear one another. Meetings of the Review Board shall be open to the public, except those portions of the meetings wherein the Review Board (A) consults with counsel pertaining to contemplated or pending litigation, or proceedings pending before a Review Board Panel and/or a Single Jurist; or (B) considers other matters made confidential or private by these Rules, court order, or law.
(6) Representation Prohibition. No member may be legal counsel for a party in any proceeding under Rules 6 through 9. When a Review Board member is employed by a law firm and a member of that firm serves as legal counsel for a party in any proceeding under Rules 6 through 9, the Review Board member shall be ineligible to perform Review Board responsibilities relating to that proceeding. The Review Board member shall remain eligible to perform Review Board responsibilities unrelated to that proceeding, provided that the Review Board member is timely screened from any participation in or relating to that proceeding, at both the Review Board member’s firm and the Review Board.
(7) Review Board members may not testify voluntarily in any proceedings under these Rules or as an expert witness in any court proceeding in the field of guardian ad litem responsibilities.
(8) Guardians ad Litem on the Roster. The Review Board shall maintain current information relating to all guardians ad litem appointed to the Roster including, but not limited to, the following:
(A) Date of birth;
(B) Current office address, telephone number and email address;
(C) Current residence address, telephone number and email address;
(D) Date of appointment to the Roster;
(E) Appointment status and the date of any transfer to or from a status;
(F) Social security or federal identification number;
(G) Other jurisdictions in which the guardian ad litem is appointed guardian ad litem and dates of appointment; and
(H) Nature, date, and place of any discipline imposed in Maine and in any other jurisdiction.
The information submitted pursuant to this rule shall be made available to the public with the exception of information contained in (A) (C) and (F) which shall be confidential.
(9) Review Board Powers and Duties. The Review Board shall have the following powers and duties:
(A) To propose rules of procedure for the Guardian ad Litem Review Board Complaint System for promulgation by the Maine Supreme Judicial Court, and to comment on the enforceability of existing and proposed Maine Rules for Guardians ad Litem. In furtherance thereof, the Review Board may establish or designate such voluntary commissions, agencies, or persons to assist its study as it shall deem advisable;
(B) To review periodically with the Maine Supreme Judicial Court the operation of the system;
(C) To enforce guardian ad litem compliance with these Rules and the procedures and regulations adopted thereunder;
(D) To delegate, in its discretion, to the Chair or Vice Chair the power to act for the Review Board on administrative and procedural matters;
(E) To prepare and filed with the Board of Overseers each April a proposed Review Board Budget for consideration by the Board of Overseers;
(F) To prepare, approve, and file an Annual Report with the Court;
(G) To establish financial policies and procedures, subject to the approval by the Board of Overseers, to effect its responsibilities under these Rules:
(H) To maintain the confidentiality of matters coming before the Review Board; and
(I) To carry out the other powers and duties assigned to the Review Board under these Rules.
(10) Destruction of Confidential Documents. Upon conclusion of service, members shall take reasonable steps to destroy all documents, in paper or electronic format, relating to the proceedings of the Review Board and subject to the confidentiality provisions of these Rules.
(b) Review Board Panels
(1) Panels. The Review Board shall sit in panels of three members to perform the duties assigned to Panels under these Rules. The Board Clerk shall select the Panels on a rotating basis depending on the availability of the members. Each panel shall consist of two members on the Roster and one public member. An effort shall be made to include mental health professionals as well as attorneys on each Review Board Panel. The Chair or the Vice Chair of the Review Board shall appoint a roster lawyer member of each Panel to serve as chair of that Panel.
(2) Quorum. Three members shall constitute a quorum of a Review Board Panel. However, one Roster member and one public member of a Review Board Panel shall constitute a quorum at a hearing with consent of all parties. In the event that a two-member Panel is deadlocked, a new three-member Panel shall be appointed.
(3) Powers and Duties. Review Board Panels and Chairs of each Review Board Panel shall have the powers and duties assigned to Panels and Panel Chairs in Rule 9 with respect to hearings on guardian ad litem misconduct and incapacity.
(4) Recusal and Disqualification of Panel Members.
(A) Panel members shall refrain from taking part in any proceeding in which a judge, similarly situated, would be required to recuse. If a member is disqualified or recused, another member shall be appointed by the Board Clerk. No preemptory challenges to a panel member are allowed.
(B) A motion to recuse a panel member shall be filed with the Board Clerk within 10 days after service of the first hearing notice containing the names of the panel members assigned to the matter. The Review Board Chair shall rule on the motion, unless the request is for the recusal of the Review Board Chair, in which case the Chief Judge shall act on the motion. Failure to timely file a motion to recuse shall be treated as a factor in deciding whether the motion should be granted.
(C) If the ground for disqualification or recusal is not reasonably discovered within the deadline established in Rule 7(b)(4)(B), a motion to recuse a panel member shall be filed with the Board Clerk within 10 days after the ground was discovered or in the exercise of reasonable diligence should have been discovered.
(D) A licensed Maine attorney who was previously a member of a Review Board Panel shall comply with the provisions of Rule 1.12 of the Maine Rules of Professional Conduct with respect to participating in any proceedings under these Rules.
(E) In the event that Board Counsel files formal charges and the respondent is a member of the Review Board, such member shall be recused from all Review Board responsibilities until such time as the matter is concluded.
(5) Improper Communication. Except as otherwise explicitly permitted under these Rules, members of a Review Board Panel shall not meet or communicate concerning matters affecting a particular case or pending proceeding except with other assigned panel members.
(c) Board Counsel
(1) Powers and Duties. Board Counsel shall perform all prosecutorial functions on behalf of the Review Board as described in Rule 9 of these Rules. In Addition, Board Counsel shall
(A) Supervise staff needed for the performance of prosecutorial functions;
(B) Issue written guidelines for determining which maters shall be dismissed for failure to allege facts that, if true, would constitute grounds for disciplinary action; and
(C) Encourage and promote competent and ethical practice by members of the Roster by organizing, participating in, and presenting continuing education programs.
(2) Ex Parte Communication.
(A) Members of a Review Board Panel shall not communicate ex parte with Board Counsel regarding a pending or impending investigation or disciplinary matter except as provided in Rule 9 or by law, except for scheduling, or administrative purposes or emergencies that do not encompass substantive matters or issues on the merits. When such ex parte communication is contemplated, the Panel members must ensure that
(i) It is reasonable to believe that no party will gain a procedural or tactical advantage as a result of the ex parte communication; and
(ii) All other parties are notified of the substance of the ex parte communication and are given an opportunity to respond.
(B) A violation of this rule shall be a ground for Review Board member discipline, as appropriate, and cause for removal from the Review Board.
(3) Recusal. Board Counsel shall be subject to Maine Bar Rule 2(f) regarding recusals.
(d) Central Intake The Central Intake Office established by Maine Bar Rule 3 shall
(1) Receive complaints regarding the conduct of guardians ad litem who are or were on the Roster, provided that this Rule shall not be construed to limit the authority of any authorized agency to institute proceedings;
(2) Assist complainants in completing and filing complaints and, where appropriate, recommend that the complainant file a complaint with another agency that has jurisdiction over the matter, and;
(3) Forward complaints to Board Counsel.
(e) Board Clerk. The Board clerk shall have the powers and duties assigned to the Board Clerk in Rule 9 of these Rules. In addition, the Board Clerk has the power and duty
(1) To promptly notify the complainant and respondent of the status and disposition of each matter;
(2) To record disposition of all complaints.
(3) To maintain disciplinary records, subject to the file retention requirements of Rule 9(k)(5) including, but not limited to, a single log of all complaints received, investigative files, and other records as the Maine Supreme Judicial Court may require to be maintained;
(4) To compile statistics to aid in the administration of the Guardian ad Litem Review Board Complaint System, including, but not limited to, statistical summaries of docket processing and case disposition, and other data as the Maine Supreme Judicial Court may require to be maintained. Statistical summaries shall contain at a minimum:
(A) The number of pending cases at each stage in the disciplinary process;
(B) The number of new cases docketed each year;
(C) The number of cases carried over from the prior year; and
(D) The number of cases closed each year
(E) The number of guardians ad litem removed from the roster in the previous year;
(5) To provide legal and administrative support to the Review Board and Review Board Panels; and
(6) To provide written and electronic information about the complaint process to the public and to all parties.
Reporter’s Notes – July 2015
Rule 7 establishes generally the powers and duties of the Guardian ad Litem Review Board (“Review Board”), Review Board Panels, Board Counsel, the Central Intake Office, and the Board Clerk. The proposed rule is based on and largely consistent with Maine Bar Rules 1 through 3 and portions of Maine Bar Rule 9 addressing Grievance Commission panels.
Rule 7 contemplates that the Review Board will be administered as an independent unit of the Board of Overseers of the Bar, thus minimizing the need for additional resources and capitalizing on the expertise of those who currently resolve complaints involving attorneys. At least one staff attorney within the Board of Overseers will be assigned to serve as Board Counsel. The Board of Overseers Central Intake Office and Board Clerk will support the Review Board and Review Board Panels.
Rule 7(a) establishes the structure of the Review Board, and addresses generally its powers and duties. Similar to the Board of Overseers under Maine Bar Rule 1(a), Rule 7(a)(1) charges the Review Board with the responsibility for administering the regulation of guardians ad litem on the Roster pursuant to the Guardian ad Litem Review Board Complaint System. To implement this responsibility, Rule 7(a)(9) anticipates that the Review Board will monitor the efficacy of the Complaint System and propose changes to the Maine Supreme Judicial Court when necessary. Similar to the Grievance Commission under Maine Bar Rule 9, Rule 7(b) provides that the Review Board will sit in panels of three members to perform the assigned duties with respect to complaints involving guardians ad litem.
Rule 7(a)(8) requires the Review Board to maintain current information relating to guardians ad litem on the Roster. Because some of this information will be confidential by statute, it is anticipated that the Review Board will adopt policies limiting public disclosure of certain information.
Rule 7(c) sets forth generally the role of Board Counsel, which is similar to that of Bar Counsel under Maine Bar Rule 2. The functions and powers and duties of Central Intake in Rule 7(d) are similar to those in Maine Bar Rule 3, with the exception that Central Intake may not dismiss complaints against guardians ad litem.
The functions of the Board of Overseers of the Bar, Bar Counsel, and Central Intake that are not transferable to the regulation of guardians ad litem have not been included in Rule 7, including Maine Bar Rule1(f), (h)(4) to (8), (10) to (12), and (14) to (16); Maine Bar Rule 2(e) and (g); and Maine Bar Rule 3(b)(2) and (5) to (7).
Rule 7(a)(2) provides that twelve members of the Review Board shall be appointed, four of whom shall be public members. The Guardians ad Litem Oversight Task Force (“Task Force”) recommended that two Review Board members be members of the public, but the number has been increased to four to ensure a public member is available for each three-person Review Board Panel pursuant to Rule 7(b)(1).
Rule 7(b)(1) gives the Board Clerk the authority to select the Review Board Panels on a rotating basis, and the Chair or Vice Chair of the Review Board appoints each panel chair. This process is different from the selection of members of Grievance Commission panels under Maine Bar Rule 9(a) in which panels are preselected by the Board of Overseers and alternate members are appointed by the Board of Overseers. The process in Rule 7(b)(1) has been chosen because there are fewer Review Board members than Grievance Commission members and no alternates.
Rule 7(b)(1) also provides that each panel shall consist of two members on the Roster and one public member. It states that an effort will be made to include mental health professionals as well as attorneys on each Review Board Panel. The Task Force recommended that each panel have one member with the same professional background as the subject of the complaint. Although it would be impracticable to guarantee that each panel will include a member with the same professional license as the subject of the complaint, an effort will be made to include a mental health professional if the subject of the complaint is an LCSW, LPC, LCPC, LMSW, LMFT, LPaC, psychologist, or psychiatrist. See Rule 2(b)(2)(A)(ii).
Advisory Note – September 2016
Rule 7(a)(8) is amended to provide that the Review Board shall maintain the enumerated information for all rostered guardians ad litem and to provide, “The information submitted pursuant to this rule shall be made available to the public with the exception of information contained in (A) (C) and (F) which shall be confidential.”