The attorney-client privilege is a common law evidence rule that prevents courts from ordering lawyers or clients to reveal the content of their communications. However, the attorney-client privilege can only be invoked if certain requirements are met. First, there must be a “communication.” This “communication” can be face-to-face, over the phone, or through a letter, an e-mail, etc. Second, the communication must be between an attorney and his or her client.
Third, the communication must be made in confidence. Finally, the purpose of the communication must be for obtaining legal advice.
Under the second requirement, state law varies on whether communications with agents of a lawyer, such as a secretary, paralegal, or an investigator, or communications with interpreters and guardians appointed for children, are also privileged. In a recent case, People v. Gabriesheski, the Colorado Supreme Court found that the attorney-client privilege did not protect communications between a child and her guardian ad litem.A guardian ad litem is a person who is usually appointed by the court to protect the legal interests of a child. In this case, the court appointed the child a guardian after she alleged that her stepfather had sexually assaulted her. The prosecution later attempted to present testimony by the child’s guardian about the mother’s apparent attempts to get the child to recant the allegations of abuse.
In finding that the attorney-client privilege did not apply in this case, the court reasoned that: “Because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child.” Unlike the typical attorney-client relationship, the court found that the “guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child” and is therefore not subject to the typical attorney-client confidentiality rule or attorney-client privilege. The court went on to say that: “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”.
Those who criticize the approach of the majority in this case (which is also the approach of other states that find that the attorney-client privilege does not protect communications between a child and her guardian ad litem) argue that it does not give children enough protection. Unlike a child with an attorney, where the attorney will be held to the duty of confidentiality and the attorney-client privilege, children who have been appointed guardians may potentially be at risk because the guardians may have to disclose certain information which could pose a harm to the child. In Gabriesheski, the dissent voiced this concern: “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.” The dissent urged that children should be “represented by lawyers acting in full accordance with legal ethical rules” and warns that the “majority’s decision deprives children of the right to legal representation”. As can be seen just by this one court opinion in one state, there are various views on what is really in the best interests of the child in these types of situations.
People v. Gabriesheski- No. 08SC945- Colorado Supreme Court- October 24, 2011- Full Opinion Available At: http://www.cobar.org/opinions/opinion.cfm?opinionid=8255&courtid=2