Recently, the Supreme Court in Colorado held that the attorney-client privilege does not protect statements made by children to their guardians ad litem in dependency and neglect proceedings. See, People v. Gabriesheski, Colo., No. 08SC945, 10/24/11. The court looked at four areas of laws to make this determination: the attorney ethics rules on confidentiality, the statute that codifies the attorney-client evidentiary privilege, the statutes that address guardians ad litem in dependency and neglect proceedings, and a directive by the chief justice promulgated under a statutory delegation of authority to prescribe procedures for guardians ad litem in matters affecting children.
However, the court decided that while guardians ad litem are associated with legal representation, their main responsibility is to act on behalf of the child and their job is to make recommendations to the court in regard to the best interests of the child. There may be serious implications to this holding. Justice Alex J. Martinez of the court argued in his dissenting opinion that “[b]ecause 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.” See, 27 Law. Man. Prof. Conduct 689 (located here).
A potential problem I see with the Colorado Supreme Court’s holding is if a child discloses accusations of abuse but later recants upon learning that his/her guardian ad litem will disclose the information to the court and in front of his/her parent potentially. This may cause issues of trust between the child and the guardian ad litem, who’s responsibility it is to protect the child’s well-being. Can you think of any other potential implications this may have?
For a full text of the opinion, click here.