In litigation generally, and in probate disputes specifically, the court often appoints counsel. In New Jersey, for example, in guardianship proceedings, R. 4:86-4 requires the appointment of counsel for the alleged incapacitated person. Often, trust and estate litigation centers on bitter family disputes, and emotions — and claims of liability — can erupt. A pivotal question thus arises as to whether those appointed by the court are immune from such liability. Surprisingly, the law is not as extensive or settled as one might expect. In fact, in large measure, attorneys need to draw analogies to other contexts in which professionals are appointed.
The general rule, in New Jersey and nationally, is that the court-appointed person enjoys immunity from liability only under certain circumstances. As discussed below, immunity does not necessarily follow from the court appointment, and the details and nature of the court appointment seem to govern whether immunity applies.
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