In a new case in 2011 – the Colorado Supreme Court totally changed the attorney client relationship between a juvenile and the attorney appointed by the Judge to represent the juvenile’s interests to the court – known as the Guardian Ad Litem or GAL.
What this new decision means is that – any communications between the accused juvenile and the Guardian are NOT privileged and therefore not confidential.
The case is – The People of the State of Colorado, v. Gabriesheski. the case held that …because a child subject to a dependency and neglect proceeding is not a “client” of the guardian ad litem, the attorney-client privilege does not apply.
Here is the law in Colorado:
Attorney Client Confidentiality….the evidentiary privilege protecting communications between attorney and client relating to legal advice is a matter of law in Colorado Section 13-90-107(1)(b), C.R.S. (2010)…. but the law does not define the attorney-client relationship itself.
The courts have held that “a client” is a person who employs or retains an attorney for advice or assistance on a matter relating to legal business,
….an attorney-client relationship is established when it is shown that the client seeks and receives the advice of the lawyer on the legal consequences of the client’s past or contemplated actions.
All guardians ad litem appointed to serve in dependency and neglect proceedings must be credentialed as attorneys licensed to practice in the jurisdiction, Section 19-1-103(59), and are statutorily assigned obligations usually associated with legal representation, like the examination of witnesses, they are ultimately tasked with acting on behalf of the child’s health, safety, and welfare. SeeSection 19-3-203.
GAL’s are Different than Other Lawyers Appointed by the Court
Rather than representing the interests of either the petitioner or respondents in the litigation, or even the demands or wishes of the child, the legal responsibility..the guardian ad litem is tasked with assessing and making recommendations to the court concerning the best interests of the child.
The Court writes: “Nothing in the term “guardian ad litem,” which on its face indicates merely a guardian for purposes of specific proceedings or litigation, suggests an advocate to serve as counsel for the child as distinguished from a guardian, charged with representing the child’s best interests. ….. In the absence of some clearer expression of legislative intent to do so, we are unwilling to impute to the statutory guardian ad litem-child relationship the legislatively-imposed, evidentiary consequences of an attorney-client relationship.
The dissent in this case attacked the decision:
JUSTICE MARTINEZ, dissenting.
I respectfully dissent.
The Role of the Guardian Ad Litem
The majority’s decision deprives children of the right to legal representation. In addition, the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child’s best interests to do so.
This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child’s fundamental right to be represented in court, and fails to protect the legal rights of children.
The majority’s opinion ignores both our statutory language and the growing trend recognizing that children should be represented by lawyers acting in full accordance with legal ethical rules.
The better outcome, and the one intended by our statutory scheme, recognizes the attorney-client privilege, but permits the guardian ad litem to decide whether to assert the privilege on behalf of the child.
The statutory definition is not the only place in our law that acknowledges the unique role of the guardian ad litem. The duties of the guardian ad litem are further described in section 19-3-203(3), C.R.S. (2011), which states that the guardian ad litem “shall be charged in general with the representation of the child’s interests.”
The statute then enumerates the guardian ad litem’s duties to investigate the facts, talk with the child, examine witnesses, make recommendations to the court concerning the child’s welfare, and participate in proceedings to the degree necessary “to adequately represent the child.” Once again, within the same statute, the language suggests that a guardian ad litem represents both the child and the child’s interests. Moreover, while many of these responsibilities are typical duties of an attorney, because of the emphasis on representing and acting in the child’s best interests, it is clear that a guardian ad litem is a special kind of attorney.