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National Crime Victim Law Institute

People v. Gabriesheski, — P.3d —, No. 08SC945, 2011 WL 5037195 (Colo. Oct. 24, 2011) (en banc).

November 01, 2011

Defendant was charged with two counts of sexual assault on a child by one in a position of trust, arising out of allegations made against him by his sixteen-year-old stepdaughter.  Before trial, the child-victim recanted and the prosecution provided notice of its intent to call as witnesses the child-victim’s guardian ad litem and the social worker assigned to the case.  According to the prosecution’s offer of proof, these witnesses were prepared to offer testimony relating to their “knowledge of attempts by the mother to pressure her daughter to recant.”  Defendant objected, invoking, inter alia, the privileged nature of communications between the child-victim and the attorney appointed as her guardian ad litem.  The trial court ruled that neither the guardian ad litem nor the social worker would be permitted to testify at trial.  In light of this ruling, the prosecution was unable to go forward, and the court dismissed the charges without prejudice.  The prosecution appealed, and the court of appeals affirmed the trial court’s ruling, holding, inter alia, that the attorney-client privilege protected communications between the guardian ad litem and the child-victim.  As the court of appeals reasoned, because a Chief Justice Directive subjects guardians ad litem to “all of the rules and standards of the legal profession,” this necessarily created an attorney-client relationship between the child-victim and her attorney guardian ad litem.  Colorado’s Supreme Court reversed, holding, inter alia, that an attorney-client relationship is not formed between a child-victim and the guardian ad litem.  The court reasoned that although guardians ad litem are required by statute to be licensed attorneys, the guardian ad litem does not represent “the interests of either the petitioner or respondents in the litigation, or even the demands or wishes of the child.”  Rather, the guardian ad litem is “statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”  The court acknowledged that guardians ad litem are required by the Chief Justice Directive to adhere to the Rules of Professional Conduct, but concluded that this does not create an attorney-client relationship between a guardian ad litem and a child-victim.  As the court explained, nothing about the guardian ad litem appointment “suggests an advocate to serve as counsel for the child as distinguished from a guardian, charged with representing the child’s best interests.”  Consequently, the court was unwilling to “impute to the statutory guardian ad litem-child relationship the legislatively-imposed, evidentiary consequences of an attorney-client relationship,” in the absence of clearer legislative intent to do so.  In a strongly worded dissent, two Justices disagreed with the majority’s decision in its entirety.  The dissenters argued, inter alia, that the majority’s decision “will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings” and pointed out that “guardians ad litem will be required to disclose information about their wards even when it is not in the child’s best interest to do so.”  The dissenters viewed the majority’s opinion as being “at odds with a child’s fundamental right to be represented in court” and as “fail[ing] to protect the legal rights of children.”  The dissenters contended that the “better outcome, and the one intended by [Colorado’s] statutory scheme, recognizes the attorney-client privilege, but permits the guardian ad litem to decide whether to assert the privilege on behalf of the child.”