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In Re Kersten

OPINION FILED SEPTEMBER 29, 1977.

IN RE JESSICA HOPE KERSTEN, A MINOR. — (H. JOSEPH GITLIN, GUARDIAN AD LITEM, PETITIONER-APPELLANT.)


APPEAL from the Circuit Court of McHenry County; the Hon. CONRAD F. FLOETER, Judge, presiding.

MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

H. Joseph Gitlin, an attorney and counselor at law, was appointed guardian ad litem for Jessica Hope Kersten, a minor, in certain juvenile court proceedings.

On December 10, 1975, in accordance with the provisions of section 4-5(1)(b), (4) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 704-5(1)(b), (4)), said guardian ad litem petitioned the court for reasonable fees, and petitioner is appealing from the ruling of the trial court relative thereto.

This is a juvenile court proceeding and as such has social connotations far beyond the ordinary criminal case. A guardian ad litem in a juvenile court case represents not only the particular child involved in the litigation, but also the broader interests of society implicit in the establishment of the juvenile court in the first place. It is recognized that most of the matters considered in such a case are factual, rather than legal. While the testimony may be drawn out and tedious, usually no serious or subtle legal issues are involved.

The statute provides that the parents of the child involved are to be looked to first for the fees of the guardian ad litem. They have no voice in his selection, and his attitude and his actions may be quite contrary to their immediate interest, yet they have a responsibility for his fees. If they are too poor to pay the fees that is a real reason why forbearance should be practiced by the guardian ad litem — he should not expect to receive a full professional fee for representing a child whose parents had no say in selecting him.

Also, the statute does not say the guardian ad litem shall be paid a "reasonable fee." The word "reasonable" appears in the following context:

"The reasonable fees of a guardian ad litem appointed under this Section shall be fixed by the court and charged to the parents of the minor, to the extent they are able to pay. If the parents are unable to pay those fees, they shall be paid from the general fund of the county." Ill. Rev. Stat. 1975, ch. 37, par. 704-5(4).

• 1 The emphasis in the above language appears to be on the court's role in fixing the fees, rather than on the requirement that they be "reasonable." Standing by itself, the word "reasonable" might be taken to mean reasonable to a private client. However, in the context in which it is used, a fair interpretation is that it means "reasonable" considering it is a juvenile court case. As was said in Lyle v. Lyle (Fla. App. 1964), 167 So.2d 256, 257:

"`* * * Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney's fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. * * * (emphasis added).'"

In support of his petition for fees in this case, the guardian ad litem (petitioner) testified. A stipulation was entered into between the State and Gitlin, providing that the itemizations in the petition for fees as to the services rendered would stand in lieu of testimony on that point. This stipulation was accepted by the court.

Thereafter, petitioner testified as to his qualifications and experience as a lawyer and particularly as an expert in the field of family law. His qualifications and experience in this field are impressive.

He further testified that his usual and customary fee for representation in family law matters is $65 per hour and that the usual and customary fee of attorneys practicing in McHenry County is between $40 and $50 per hour.

The State's Attorney declined to cross-examine the witness. There was no examination of the witness by the court.

The court, in announcing its decision, stated that it found the amount of court time devoted to this case by the guardian ad litem was 9.25 hours and that his office time spent was 4.91 hours. It should be noted that the record indicates that petitioner herein ...


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