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Colo. Supreme Court Nixes Attorney-Client Privilege for Children in Guardianship Cases

Posted Nov 3, 2011 1:27 PM CDT
By Martha Neil

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In a decision that is controversial among child advocates, the Colorado Supreme Court has ruled that attorney-client privilege is trumped, in guardianship cases, by the duty of a child's attorney to protect his or her client from abuse.

A divided court ruled that a lawyer acting as a guardian ad litem is supposed to help the court act in the child's best interest even if the child doesn't want the lawyer to reveal information, the Denver Post reports.

The case involves an alleged sexual assault on a girl by a man acting in a caretaker role. He was criminally charged, but the girl refused to testify. The prosecution sought to have her guardian ad litem testify about what she had said, but the defendant's counsel objected. A trial judge ruled that the attorney for the girl could not testify without her consent, which she refused.

Some child advocates are disappointed by the ruling, saying that it will make it difficult for children who may not be trusting of adults to begin with to confide in a guardian ad litem.

Among them, Law Week Colorado reports, is Jeff Koy. He headed the litigation team for the Rocky Mountain Children’s Law Center, which filed an amicus brief in the case.

“The children we represent have often been through horrific abuse before landing in state care,” Koy told the legal publication after the court's Oct. 24 decision. “They need someone to confide in. Until today, that person was their GAL.”

However, others agree with the supreme court, the Post reports.

Linda Weinerman, who heads the state agency that retains guardians ad litem, said the ruling accords with the approach she took when she was doing the job: "I'd tell kids I'm representing you and I will not tell things you don't want me to tell unless I think they are things that will affect your safety. My job is to protect your safety."

Law Week Colorado links to a copy of the 5-2 opinion (PDF), which includes the dissent.

"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," the majority writes.

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