Ethics Committee Advisory Opinion #1987/8-16
July 12, 1988
While nonrefundable fee retainers are normally permissible in N.H., they are still subject to reasonableness mandated by Rule 1.5, and are an impermissable imposition charged by a guardian ad litem in a divorce case. (Rules 1.5; 1.16)
There is no voluntary, contractual relationship between a court appointed guardian ad litem in a divorce case, and the child’s parents, and consequently there can be no fee negotiation disclosure. (Rules 4.2; 4.3)
It is preferable to have a written fee agreement. (Rule 1.5(b))
The issue presented in this inquiry is whether it is ethical for a court-appointed guardian ad litem to require a minimum fee and a retainer to be paid prior to performing any work in a divorce case involving nonindigent individuals.
The letter of inquiry provides a sound basis for understanding the practical problems faced by lawyers serving as guardians ad litem. Unlike attorneys in normal lawyer-client relationships, individuals appointed to act as guardians ad litem for children in divorce cases have no voluntary, contractual relationship with the individuals who must pay for their services – i.e., the parents. Rather, they are “advocates for the children and…impartial court officials.” Preface to Guideline for Guardians Ad Litem. Despite a Court order allocating payment responsibility to the parents, the inquiring attorney reports that unless a retainer is obtained at the outset of the case, payment is often not made.
The inquiring attorney’s solution to this dilemma is to require $1800 to be paid prior to commencing his representation. The first $900 is a “minimum fee” and the remainder is “put in trust to be used for future legal fees and expenses.” He proposes to ask the Clerk of Court to notify the parties of this requirement and presumably to get their assent prior to appointing his office.