Justice Nancy M. Gould's  Order re  Guardian Ad Litem Fees Revised 7/14/2001 As Chief Justice of Administration and Management for the Trial Court, John J. Irwin, Jr. issued Memo #14 on 28 February 1997.  Although Irwin is now retired, the infamous order is still in effect.  It orders Probate & Family Court judges to violate Massachusetts General Law chapter 215, section 56A, in order to relieve the Commonwealth of its statutory burden and assess the parties for GAL fees. While my client was still represented by prior counsel, his wife moved for the appointment of a guardian ad litem and for the parties to share the GAL's fees.  Judge Nancy M. Gould allowed the wife's motion, saddling the husband with half of the fees.  His then-lawyer did not agree to the motion, but did not appeal the interlocutory ministerial order.  (This is but another nail in the coffin of the famous and very expensive Boston lawfirm for a malpractice suit.  Other negligence was not immediately appealing a removal order by Judge Gould which issued without the husband's consent, without) an evidentiary hearing, and without an investigation of where the children were being brought and with whom they would be living). After I came aboard as successor counsel, the GAL sent more bills.  I moved for restitution of the fees paid and an end to the order.  The judge took my motion under advisement and finally last week denied the husband's motion.  The denial shall be appealed.   It will be a wondrous happening should the Appeals Court or the  Supreme Judicial Court of Massachusetts reverse the interlocutory order. In either event, suit shall be brought against the appropriate judges for restitution and money damages.  Suits against judges are taboo.  Judges are protected by absolute immunity . . . except when they act outside their jurisdiction or the nature of their act is ministerial or administrative or legislative.    Given that a divorce does not rise or fall on the payment of a GAL's fees, the order as to who shall pay them is ministerial . . . just taking care of court business.  In Supreme Court of Virginia v. Consumers Union of America, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (judges could be enjoined from enforcing bar membership requirements), the judges themselves promulgated the requirements in the form of court rules.  In so doing, the judges "acted in a legislative capacity, which . . . gave them an institutional stake in the litigation's outcome.  It is there not surprising that the Supreme Court . . . treated the judicial defendants as having acted in a nonadjudicatory (enforcement) capacity."  In re Justices of Supreme Court of Puerto Rico. 95 F.2d 17, 23 (C.A. Puerto Rico, 1982). Judge Gould as well as every other Probate and Family Court and District Court judge who ordered the parties to pay a GAL's fees  are vulnerable to suit . . . as are, of course, Judge Irwin, who, acting in a legislative capacity, ordered the judges to break the law, and his successor, who has done nothing to vacate Irwin's order, and the Chief Justices of the Probate and Family and District courts, who followed Judge Irwin's order and expected their respective judicially-robed staff to continue breaking the law. NOTE:  When reading Judge Gould's decision below, be aware that much of what she says does not hold water: (1) There is nothing in the record that I have seen which shows or proves that the husband, now my client, ever agreed to pay the GAL's fees.  THAT IS A LIE BY THE JUDGE!  (2) The judge states the definition of "judicial estoppel": "an equitable doctrine 'which precludes a party from asserting a position in one legal proceeding which is contrary to a position it has already asserted in another.'"   Given that my client NEVER asserted any position other than the one he asserted in his motion for restitution of fees, the judge is wrong.  In fact, given that the judge could have checked the record even more easily than I, the judge's so-called legal argument is unconscionable and desecrates the position she holds.   She mistated the record in April, but to her credit she gave me an apology in the (of course, closed) courtroom. (3) The judge could change her order in the interest of justice.  There is nothing in the rules which prevented her from acting in a manner consistent with fundamental fairness and justice.