Colorado Denies Privilege for Guardian Ad Litem
Lisa Bliss, Litigation News Associate Editor – December 20, 2011

The recent Colorado Supreme Court decision in People v. Gabriesheski [PDF] highlights the tension between the potential dual roles of a lawyer serving as guardian ad litem. The implications of this tension on the attorney-client privilege could have a chilling effect on the ability of an at-risk child to have conversations with his or her lawyer/guardian remain confidential.

On one hand, the guardian may serve as a fact witness advocating on behalf of the best interests of the child. On the other, the guardian may be acting in a client-directed role, which may include the sort of counsel and advice that underlies the attorney-client privilege.

The Colorado result, in which the guardian was compelled to testify, is at odds with the ABA’s Model Act on Child Representation in Abuse and Neglect Cases [PDF], enacted earlier this year. The Model Act provides guidance for defining the duties of lawyers representing children in abuse and neglect cases. It recommends that every child in an abuse and neglect matter be appointed a lawyer who is bound by the rules of professional conduct, including confidentiality.

No Privilege to Bar Testimony of Conversation Regarding Alleged Abuse
The Colorado Supreme Court recently held that neither the attorney-client privilege nor the duty of confidentiality protects a child’s communications with an attorney appointed to serve in a guardian ad litem role. Based on the Colorado laws governing the guardian ad litem-child relationship, the court in People v. Gabriesheski declined to impute the “legislatively-imposed, evidentiary consequences of an attorney-client relationship” or the attendant duty of confidentiality.

In Gabriesheski, the state appealed the exclusion of testimony in a prosecution for the sexual assault of a child by an adult in a position of trust. The case involved a defendant charged with the sexual assault of his stepdaughter. The court appointed a guardian ad litem for the child, as required by statute, after the state filed a petition for dependency and neglect in juvenile court.

Prior to the defendant’s criminal trial, the child recanted her accusations. The prosecution indicated that the guardian ad litem would testify that the child’s mother pressured the girl to recant.

The lower court excluded testimony of the guardian ad litem regarding the recantation of the defendant’s stepdaughter based on the defendant stepfather’s assertion that the attorney-client privilege and duty of confidentiality applied to communications between the stepdaughter and the guardian ad litem. The court of appeals affirmed the lower court.

Distinguishing the role of a guardian ad litem from that of an advocate, the Colorado Supreme Court found that no attorney-client relationship existed. Thus, the communications were not protected.

Colorado Role for Guardian Is “Best Interests of the Child”
Under Colorado Revised Statutes § 19-1-103(59) [PDF], guardians ad litem must be credentialed as attorneys licensed to practice in the state. According to the court in Gabriesheski, the guardian, “[r]ather than representing the interests of either the petitioner or respondents in the litigation, or even the demands or wishes of the child . . . is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”

The court reasoned that although guardians ad litem may be performing functions that bear on their professional obligations as lawyers, there is no statutorily designated attorney-client relationship. The court noted that other jurisdictions that follow the best-interest-of-the-child approach to the guardian ad litem’s role have declined to extend the attorney-client privilege and the duty of confidentiality to the guardian ad litem-child relationship.

Role Lawyer Plays as Guardian Likely Key to Outcome
States diverge widely as to the roles of guardians ad litem and the credentials required for the position. Some states appoint guardians ad litem who are attorneys and some who are lay people. Some states appoint guardians ad litem to represent the best interests of the child, and others require the guardian to take a client-directed, approach, taking into consideration the wishes of the child as part of the representation, according to Casey Trupin, Seattle, cochair of the ABA Section of Litigation’s Children’s Rights Litigation Committee.

A dissenting opinion in the Gabriesheski case noted that a 2005 study found that the United States has 56 individual systems of representation in place for children. Responding to the inconsistency among states, in August 2011, the ABA House of Delegates approved its previously mentioned Model Act.

In that regard, the Model Act includes separate definitions for “Child’s lawyer” and “Best interest advocate.” It defines the best-interest advocate as “an individual, not functioning or intended to function as the child’s lawyer, appointed by the court to assist the court in determining the best interests of the child.”

The Model Act makes it clear that the child’s lawyer may not act as the best-interest advocate, in part because of the duty of confidentiality attendant to the role as advocate for the child. Similarly, it urges restraint in the child’s lawyer as he or she requests the appointment of a best-interest advocate, as the mere request “may undermine the relationship the lawyer has established with the child.”

Committee Advocates the Universal Appointment of Lawyers for Children
The Model Act states that the “court shall appoint a child’s lawyer for each child who is the subject of a petition in an abuse and neglect proceeding . . . A child in a dependency or neglect case needs somebody with whom he or she can have a confidential relationship. To the extent that is not available to a child in these kinds of proceedings, it can result in a disservice to children and their interests,” says Trupin. He also notes that a “child’s ability to both claim the privilege and receive protection of confidential information he shares with his attorney depends on the jurisdiction and its view of the role of a guardian ad litem.”

“The attorney-client privilege and duty of confidentiality are fundamental to our justice system,” Trupin adds. He concludes that children cannot obtain an effective voice in such proceedings unless they are free to share with their legal representative information that is relevant to their case without worrying about possible disclosure.

“Failure to recognize that there is a confidential, attorney-client relationship between a child and his guardian ad litem is problematic for several reasons,” believes Francesca Hamilton-Acker, cochair of the Section of Litigation’s Children’s Rights Litigation Committee. “A lack of confidentiality puts the burden on kids to make decisions that they may or may not be equipped to make.”

This could have a chilling effect, Hamilton-Acker believes, as a guardian must tell the child that information the child discloses may not be held in confidence. The guardian will have to tell the child the consequences of such disclosure, including possible retaliation and the related risks. In this regard, she says, “Guardians are disadvantaged because they cannot assure their minor clients that the information discussed between them will be held in confidence.”

The outcome of the Gabriesheski case was somewhat surprising to Hamilton-Acker, who notes a growing trend for recognition and protection of the rights of children, especially in court proceedings. “The rationale of the attorney-client privilege and duty of confidentiality is to facilitate full development of factual information to enable the attorney to provide effective representation,” she says.

“It does not make sense that abused children would not have the same protections as the other parties to an action have for their attorney-client relationships,” she adds. “A child’s position in a dependency proceeding is that of a victim.”

In addition to the provisions in the Model Act, other states that are currently evaluating the contours of the guardian ad litem-child relationship may consider the outcome in Gabriesheski, notes Trupin. For example, in states like Washington and Florida, child advocates are currently urging appellate courts to recognize that foster children have a constitutional right to an attorney. It may be that the issues in Gabriesheski are waiting in the wings.

Keywords: litigation, Colorado Supreme Court, guardian ad litem, attorney-client privilege, abuse, children's rights

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