New Insight – And Some Lingering Questions – About Guardian Ad Litem Disclosure

Rebecca Aviel[1]

In an effort to protect the interests of children enmeshed in dependency and neglect proceedings, the Colorado state legislature has provided for the mandatory appointment of attorneys to serve in the unique capacity of a guardian ad litem (“GAL”). However, as other writers have noted,[2] the legislature hasn’t been all that clear about the model of representation that it contemplated. The statutory definition of a guardian ad litem is “a person appointed by a court to act in the best interests of a person whom the person appointed is representing.”[3] While this language suggests a role other than traditional legal counsel, the very same definitional provision goes on to specify that a GAL appointed to represent a person in a dependency and neglect proceeding must be a licensed attorney.[4] The statute requiring the appointment of a guardian ad litem in dependency and neglect proceedings is similarly ambiguous: it states that “[t]he guardian ad litem shall be charged in general with the representation of the child's interests,” but also instructs the GAL to participate in the proceedings “to the degree necessary to adequately represent the child.”[5] Many of the obligations identified in the statute are duties associated with legal representation, such as examining witnesses and appealing matters to the court of appeals or supreme court.[6] The other statute referencing the mandatory appointment of guardian ad litems in dependency and neglect cases offers no additional clues, simply instructing GALs to abide by the relevant Chief Justice Directives.[7] In sum, while three different statutes speak to the obligations of a lawyer serving as a GAL in dependency and neglect proceedings, neither alone nor in combination do they provide complete clarity about the nature of the GAL’s role. By requiring the appointment of a licensed attorney who must “adequately represent the child,” did the legislature intend to create an attorney-client relationship between the GAL and the child? Or did it intend to provide the court with a quasi-judicial officer who would use a lawyer’s professional skills to ascertain the child’s interests in a posture distinct from that of traditional legal counsel?

The consequences of this distinction were made manifest in a case recently decided by the Colorado Supreme Court, People v. Gabriesheski.[8] After his step-daughter reported multiple instances of sexual assault, Mark Gabriesheski was charged criminally, and a dependency and neglect proceeding was initiated in juvenile court.[9] Consistent with the statutory scheme described above, a guardian ad litem was appointed to represent the child’s interests in the dependency and neglect proceeding. [10]

Prior to the criminal trial, the child recanted the allegations. The prosecution gave notice that it intended to call the GAL as a witness to establish that the child had been pressured to recant by her mother.[11] Specifically, the GAL would testify regarding a conversation between the GAL and the child during which the child had said that things would be easier for her if she admitted to lying about the sexual abuse, and that it would make her mother happy if she said the abuse never occurred.[12]

The defense objected to the proposed testimony on the grounds that the communications between the child and the GAL were privileged and confidential, and the trial court agreed, ruling that the GAL would not be permitted to testify.[13] The appellate court affirmed the ruling and the prosecution sought review in the Colorado Supreme Court.[14] After canvassing the statutory language set forth above, a majority of the court concluded that there was insufficient expression of legislative intent to create an attorney-client relationship, with the full spectrum of “evidentiary consequences,” between a child and the appointed GAL.[15] Justice Martinez, concerned about depriving children of the right to legal representation, authored a dissent.[16] He urged a conclusion that reflected a hybrid model of representation: “In my view, the guardian ad litem in a dependency and neglect proceeding is bound by the attorney-client privilege and the duty of confidentiality, but the guardian ad litem, acting in the child's best interests, decides whether to invoke the privilege on behalf of the child.”[17]

As the Gabriesheski opinion is given practical effect, the divergence between the majority and the dissent may not be as pronounced as the opinions themselves suggest. The Chief Justice Directive governing the appointment of GALs has been revised to reflect the Gabriesheski holding.[18] Interestingly, the new directive is consistent with the dissent’s proposed hybrid model in some significant ways. The directive clarifies that a GAL’s statutory responsibilities “do not set forth a traditional attorney-client relationship between the appointed attorney and the child.”[19] However, other language in the revised directive seems to assume that some measure of confidentiality is indeed expected from the GAL: it states that “an attorney’s obligation not to reveal confidential information provided by the child does not apply if the information must be revealed to ensure the child’s best interests.”[20] This suggests that the role carries with it a default expectation of confidentiality, one that yields only when the GAL herself has determined that disclosure would be in the child’s best interests.

To be sure, this is a significant deviation from the traditional attorney-client relationship, in which disclosure over the client’s objection is limited to a few carefully circumscribed situations; none of the exceptions to confidentiality that apply to a traditional attorney-client relationship allow for disclosure whenever the attorney has a different view of the client’s best interests than the client.[21] It has thus been made clear that a GAL has discretion to disclose information that an attorney in a traditional attorney-client relationship would not be permitted to reveal.

However, important questions remain about the scope of GAL disclosure: what if the child wishes the information in question to remain confidential, and the GAL agrees that confidentiality would be in the child’s best interests? Can a third party obtain disclosure in the course of civil or criminal discovery over the unified opposition of the child and GAL? In the Gabriesheski case, it was the criminal defendant who wanted the conversation excluded – the conversation was unfavorable to the defense because it suggested that the original allegations, and not the attempted recantation, were truthful.[22] The child, in keeping with her recantation, declined to provide the waiver that would be necessary in a traditional attorney-client relationship, and thus the GAL’s authority to disclose over the child’s objection was squarely presented.[23]

But imagine a situation in which the conversation between the child and the GAL is favorable to a defendant in a criminal proceeding, and it is the defendant who wants to introduce the conversation into evidence. The child wants the conversation to remain confidential, and the GAL has no reason to conclude that the child’s best interests require disclosure. Can the defendant require the GAL to testify on the theory that the conversation is relevant, discoverable, and not protected by the attorney-client privilege?[24] On the one hand, the Gabriesheski opinion states that without clear legislative direction the court is “unwilling to impute to the statutory guardian ad litem-child relationship the legislatively-imposed, evidentiary consequences of an attorney-client relationship.”[25] On the other hand, the revised Chief Justice Directive suggests that an attorney serving as a GAL does in fact have a client–but it is the child’s best interests rather than the child herself.[26] In this situation, is the conversation between the child and the GAL protected by an attorney-client privilege that would block the compelled disclosure sought by the defendant? This seems to be a question left open by the opinion and the subsequent directive.

Together, Gabriesheski and the revised Chief Justice Directive provide a much sharper picture of the GAL’s unique role in dependency and neglect proceedings. But both the legislature and the courts may yet have more work to do in this challenging and sensitive area.


[1] Rebecca Aviel is an assistant professor at the University of Denver Sturm College of Law.  Her research and teaching interests include family law, legal profession and professional responsibility, and constitutional law.  

[2] Jason Carrithers and Jeffrey C. Koy, What is Your Relationship Status? Searching for Clarity in the Legal Relationship Between Child and Guardian Ad Litem, 88 Denv. U. L. Rev. Online (2011), available at /practitioners-pieces/2011/3/14/what-is-your-relationship-status-searching-for-clarity-in-th.html

[3] Colo. Rev. Stat. §19-1-103(59) (2011).

[4] Id.

[5] §19-3-203 (emphasis added).

[6] Id.

[7] §19-1-111. Chief Justice Directives are “policy statements” regarding various administrative aspects of the state court system; they are promulgated pursuant to the Colorado Supreme Court’s “general power to administer the Colorado judicial system.” See Bye v. Dist. Court, 701 P.2d 56, 59 (Colo. 1985).

[8] People v. Gabriesheski, 262 P.3d 653 (Colo. 2001).

[9] Id. at 655.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 656.

[14] Id. at 654.

[15] Id. at 658-59.

[16] Id. at 664.

[17] Id.

[18] Sup. Ct. of Colo., Chief Justice Directive 04-06 (as revised December 2011), available at

[19] Id. at 6.

[20] Id.

[21] See Colorado Rules of Professional Conduct 1.6.

[22] Gabriesheski, 262 P.3d at 655-56.

[23] Id. at 655.

[24] Here is where the difference between confidentiality and privilege is pertinent. While the confidentiality rule sets forth the ethical obligations of an attorney, laying out what an attorney must do to avoid professional discipline, it is the rules of evidence that determine whether otherwise relevant and admissible evidence must be excluded because it is privileged. See, e.g., Fred C. Zacharias, Harmonizing Privilege and Confidentiality, 41 S. Tex. L. Rev. 69, 71-75 (1999). Colorado’s attorney-client privilege is codified at Colo. Rev. Stat. §13-90-107(1)(b).

[25] Gabriesheski, 262 P.3d at 659.

[26] Sup. Ct. of Colo., Chief Justice Directive 04-06, at 6 (as revised December 2011), available at