Attorneys often stand in as guardians ad litem. But in Colorado, all guardians ad litem must hold a license to practice law.
Despite this requirement, a recent Colorado Supreme Court ruling states the attorney-client privilege does not apply to guardians ad litem. Confidentiality between a guardian and an abused or neglected child does not exist.
Guardians are not advocates, explained the court. Their job is to represent the child's best interests, not the child's interests.
The question of guardian ad litem confidentiality was presented as part of the state's case against Mark Gabriesheski. His 16-year-old step-daughter accused him of sexual assault. A dependency and neglect action was filed, and she was appointed a guardian ad litem.
The teen eventually recanted her accusations, which were central to the prosecution. Prosecutors then asked the guardian to testify as to the mother's attempts to pressure the teen to recant. The defense objected on attorney-client privilege grounds, and the girl would not consent.
The trial court agreed and the case was dismissed.
Confidentiality obviously prevented the guardian and the court from acting in the child's best interests. It's unknown what happened to the girl, but she could have very well been sent back to live with her alleged abuser.
Some child advocates approve of the decision for this reason. However, some disagree, citing confidentiality as the only way to build trust with a child who already distrusts adults.
At least six other states (Alaska, Arkansas, Illinois, Massachusetts, New Hampshire, Rhode Island) agree with the Colorado Supreme Court. Do you? Should guardian ad litem confidentiality exist?
- Colo. Supreme Court: Guardian Ad Litem Conversations With Kids Not Confidential (Law Week Colorado)
- Cops Searching Laptops: How to Protect Attorney-Client Privilege (FindLaw's Technologist)
- Accidentally Waived Privilege: Firm Can't Blame e-Discovery Vendor (FindLaw's Technologist)