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Judicial Immunity Does Not Protect GAL or Attorney

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judicial immunity

Judicial immunity protects judges and court personnel from being sued by unhappy litigants. Does that protection extend to people appointed by the judge under court rules? Sometimes, but not in every instance.

Steve Gibson’s murder

In 2013,Steve Gibson was brutally murdered in his Peoria, Arizona, home. Police soon determined that Gibson’s wife, son, and daughter were involved. The three, along with another teenager, conspired to kill Gibson, according to the police. The actual killers were teenage son Steven Gibson, Jr., and the other teenage boy.

The police charged son Steven Gibson, Jr., with murder. In 2014, then aged 17, he plead guilty to second-degree murder and hindering prosecution. He was sentenced to 22 years in prison for his part in the crime.

Meanwhile, the victim’s parents filed a lawsuit against their son’s wife and children. While Steven Gibson, Jr.’s criminal charges were pending, his grandparents secured a $50,010,000 judgment against the other two family members. The grandparents had also sued Steven Gibson, Jr., but his civil liability was still pending when he plead guilty.

The court appoints a guardian ad litem and an attorney

Because Steven Gibson, Jr., was still a minor, the probate court appointed a Phoenix-area attorney as his guardian ad litem. The guardian ad litem’s role, as we have written before, was to represent the minor’s interests in the pending litigation, and to act in his best interests.

But that doesn’t necessarily mean that the guardian ad litem would have any responsibility for, or ability to manage, the lawsuit against Mr. Gibson. Consequently, the probate judge later appointed yet another attorney to represent Mr. Gibson — as his lawyer.

Just before Mr. Gibson’s guilty plea — but after the $50 million judgment had been entered against his mother and sister — the grandparents made an offer to the court-appointed attorney and the guardian ad litem. They suggested that if Mr. Gibson would consent (through the two appointees), they would agree to a judgment of merely $5 million against him. The court-appointed attorney and the guardian ad litem never responded to that suggestion, and it expired just after Mr. Gibson’s guilty plea was entered. Apparently, they never even told the defendant about the offer.

Summary judgment entered against Steven Gibson, Jr.

Eventually, the victim’s parents asked the court to enter summary judgment on their claim against Mr. Gibson. The fact that he had plead guilty made it difficult to defend against the claim, but there was still the matter of determining the judgment amount. The court-appointed attorney and the guardian ad litem did not tell Mr. Gibson about the hearing, and did not put on any evidence. In fact, they told the court that they didn’t want to put on any testimony to minimize the damages because it would make the grandparents suffer more grief.

The trial judge ultimately entered judgment against Mr. Gibson for $50,060,000. Because that was more than the $5 million offer, the judge also awarded attorneys fees against Mr. Gibson. That added another $1,142,465.21 to the judgment.

After all the criminal and civil proceedings were concluded, and Mr. Gibson reached his majority, he sued his court-appointed attorney and his guardian ad litem for negligence in their representation of his interests. He also sued the county and the state. He argued that his attorney and guardian ad litem were appointed by a state agent (the judge) from a list maintained by the county. Neither the state nor the county pre-qualified, monitored or supervised the appointees, he claimed.

The trial judge in Mr. Gibson’s lawsuit ruled that the court-appointed attorney, the guardian ad litem, the original judge and the county all had judicial immunity. That doctrine protects judges — and the people operating under the umbrella of the court’s function — from being sued by unhappy litigants. The basic theory underlying the doctrine of judicial immunity: the courts must be free to operate without fear of lawsuits in order to protect the independence and functional ability of the courts. Consequently, all Mr. Gibson’s claims were dismissed.

The Court of Appeals disagrees (partially)

Last week, the Arizona Court of Appeals reversed parts of the trial court’s rulings against Mr. Gibson. The appellate court agreed that claims against the state and the county should be dismissed. Those dismissals, though, were less about judicial immunity than about the lack of government responsibility for pre-qualifying appointees for ability to handle complicated wrongful death litigation.

But the claims against the court-appointed attorney and the guardian ad litem were referred back to the trial court for further proceedings. Judicial immunity does not protect either the attorney or the guardian ad litem in these facts, ruled the appellate court. On the basis of Mr. Gibson’s allegations, the trial judge should not have dismissed the litigation. Gibson v. Theut, March 12, 2019.

Does the appellate court decision mean that the court-appointed attorney and/or the guardian ad litem are liable to Mr. Gibson? No. So far, it only means that the lawsuit against them can continue. A number of issues remain unresolved. For example: what is the real difference between a $5 million judgment and a $52 million judgment in these circumstances? Were there things that the attorney or guardian ad litem could have introduced if they had been more active in defending Mr. Gibson’s interests? How actively should the attorney and guardian ad litem have involved Mr. Gibson himself? What is the difference in potential liability between the court-appointed attorney and the guardian ad litem?

These and other questions will likely be part of the continued proceedings once the trial judge takes up the case again. We may never learn how it turns out (cases like this often are settled without further court opinions or public information). But we do know this much: a court-appointed attorney and a guardian ad litem can not rely on the comfort of judicial immunity for protection in Arizona any longer.


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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.