RULE 10-106. ATTORNEY FOR MINOR OR DISABLED PERSON
West's Annotated Code of MarylandMaryland RulesEffective: January 1, 2020
Effective: January 1, 2020
MD Rules, Rule 10-106
RULE 10-106. ATTORNEY FOR MINOR OR DISABLED PERSON
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: See 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.
Committee note: Methods of complying with subsection (b)(1)(B) include maintaining appropriate insurance, providing an attestation of financial circumstances, or filing a bond.
(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, § 13-705(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.
(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, § 13-705 (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, 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.
(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).
(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.
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.
Committee note: An attorney for a minor or alleged disabled person, whether employed privately or appointed by the court, is an advocate for his or her client, not an independent investigator, and needs to be mindful of the attorney-client privilege and an attorney's responsibilities under Rule 19-301.14. 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.
Source: This Rule is derived in part from former Rules R76 and V71 and is in part new.
[Adopted June 5, 1996, eff. Jan. 1, 1997. Amended Dec. 7, 2015, eff. Jan. 1, 2016; June 6, 2016, eff. July 1, 2016; Oct. 10, 2017, eff. Jan. 1, 2018; Nov. 19, 2019, eff. Jan. 1, 2020.]
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.
The June 6, 2016, order revised internal references in the Rule.
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.
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.
The November 19, 2019 order added a new section (e) clarifying the role that an attorney for the minor or alleged disabled person serves in a guardianship proceeding, added a Committee note and a cross reference following section (e), and made stylistic changes.
MD Rules, Rule 10-106, MD R GUARD AND FIDUCIARIES Rule 10-106
Current with amendments received through July 15, 2020.
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