WHAT IS YOUR RELATIONSHIP STATUS? Searching for clarity in the legal relationship between child and guardian ad litem.

By Jason Carrithers[1] and Jeffrey C. Koy[2]

Who is your client, and what are your duties and obligations to your client?  For most attorneys, these questions are easily answered.  Most attorneys know who their client is, and the client knows their attorney and what their duties are to them.   An attorney's duties to her client are well defined by the Colorado Rules of Professional Conduct (“RPC”).  Most of the time, there is also a specific agreement outlining the scope of representation.  The question of whether an attorney-client relationship exists is almost never an issue.

But what happens when an attorney is appointed to represent a child as a guardian ad litem (“GAL”)?  For these attorneys, the questions are not so easily answered.  Several types of cases involve the appointment of an attorney as a GAL, such as probate, dependency and neglect, or juvenile delinquency cases.[3]

Because appointment of a GAL is mandatory in dependency cases, this article will focus upon these cases.  A dependency and neglect action is a case where the state, through the local department of social services, intervenes in a family’s life to protect a child from abuse or neglect.  In these cases, the social services agency is represented by an attorney, the parents have a right to an attorney and if they are indigent an attorney is appointed for them, and the child is appointed an attorney.[4]  The attorney for the child is usually appointed as a GAL.  A GAL is an attorney appointed to “represent a person” who must “act in the best interests” of the person she is representing.[5]

For decades, this has been the accepted mode of representation.  The Chief Justice Directives (“C.J.D.”)[6] have addressed the basic duties of GALs[7] and the Colorado legislature has created an office to oversee GALs.[8]  Yet, these directives are unclear as to the scope of the attorney-client relationship, or whether an attorney-client relationship between a GAL and a child even exists. 

A recent criminal case provides the most recent and significant inquiry into the relationship between a GAL and the child. In People v. Gabriesheski, the defendant was charged with subjecting his step-daughter to unlawful sexual contact.[9]  Due to additional concerns within the family, a separate dependency and neglect case was filed, and a GAL was appointed for the step-daughter.  During the course of the GAL’s representation, the step-daughter communicated information to the GAL during several private conversations.  This information was relevant to the criminal case, and the prosecutor endorsed the GAL as a witness to testify about the content of these conversations.

The trial court, however, found that the child was the client of the GAL, and, as an attorney, the GAL was subject to the rules and standards of the legal profession.  This included the obligation to maintain confidentiality and privilege.  Accordingly, the trial court ordered that the GAL’s statements would be excluded unless the prosecutor could establish that the child had waived attorney-client privilege.

Unable to establish a waiver, the prosecutor appealed the ruling arguing that no attorney-client relationship exists between a GAL and a child.  The prosecutor argued that a GAL represents the child’s best interests, not the child.

The court of appeals affirmed the trial court order.  The appellate court held that the trial court did not err when it ruled that “in representing the child’s best interests, the GAL was also representing the child.”[10]

In reaching this conclusion, the appellate court first reviewed the statute[11] that requires a GAL to be appointed for the child in all dependency cases, and requires the GALs to follow the C.J.D. concerning their duties.  The appellate court then considered C.J.D. 04-06 which governs the “duties or responsibilities of guardians ad litems in legal matters affecting children.”[12]  The directive states: “All attorneys appointed as a GAL … shall be subject to all of the rules and standards of the legal profession.”[13]

The appellate court then noted that RPC 1.14 provides that attorneys representing minors shall maintain “as far as reasonably possible …. a normal client-lawyer relationship with the client.”  Further, the appellate court noted that RPC 1.6 is contemplated by C.J.D. 04-06 and therefore, the GAL is required to hold communications with the child in confidence.

The Colorado Supreme Court granted certiorari, and the case has received substantial attention from within the juvenile and family law field.  The Office of the Child’s Representative, Colorado Bar Association, National Association of Counsel for Children (“NACC”), the University of Colorado, and the Rocky Mountain Children’s Law Center each sought and were granted permission to participate as amici curiae in the proceedings.[14]

The amici briefs were split as to how the Supreme Court should resolve the issue.  The Office of the Children’s Representative and the Colorado Bar Association argued that no attorney-client relationship exists between a GAL and a child.  These organizations took the position that the GAL’s primary role is that of an agent of the court, and the GAL represents the concept of “best interests,” not representing the actual person.

The NACC, University of Colorado, and the Rocky Mountain Children's Law Center argued that a child is person deserving of legal representation and the client of a GAL.  While the attorney-client relationship between a GAL and a child is not the same as that between an attorney and adult, the amici argued the GAL must adhere to the basic rules of the profession while exercising a higher degree of objectivity in carrying out her responsibilities.

Oral argument was held in September 2010.[15]  For the first time in decades, the Colorado Supreme Court has the chance to clarify the relationship between a guardian ad litem and children.  Children, and the attorneys who represent them, eagerly await the Supreme Court’s decision.

 


[1] Jason Carrithers is the Director of the Child Advocacy Practicum at the University of Denver Sturm College of Law through the Rocky Mountain Children's Law Center. For more information, please visit: http://rockymountainchildrenslawcenter.org/programs/denveruniversity.

[2] Jeffrey C. Koy is the Director of Training and Litigation at the Rocky Mountain Children's Law Center. For more information, please visit: http://rockymountainchildrenslawcenter.org/about_us/koy.

[3] See Colo. R. Civ. P. 17(c).

[4] Colo. Rev. Stat. § 19-1-111(1), (6).

[5] Colo. Rev. Stat. § 19-1-103 (59).

[6] See Sup. Ct. of Colo., Chief Justice Directive 04-06: Court Appointments through the Office of the Child’s Representative (July 2006) [hereinafter CJD], available at http://www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm (replacing CJD's 96-02 and 97-02). 

[7] Id. at 5-9.

[8]  Colo. Rev. Stat. § 13-91-101 et seq.

[9] 205 P.3d 441 (Colo. App.  2008).

[10] Id. at 445.

[11] Id. at 444 (analyzing  Colo. Rev. Stat. § 19-1-111(1)).

[12] Id.

[13] Id.

[14] Amici Curiae, People v. Gabriesheski, No. 08SC945, 2009 WL 1111429 (Colo. Apr. 27, 2009).

[15] Oral Argument, People v. Gabriesheski, No. 08SC945, 2010 WL 5823809 (Sept. 28, 2010), available at http://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm/year/2010.