July 22, 2014

Guardians ad Litem and the Attorney-Client Privilege: The Aftermath of the Gabriesheski Decision

information is provided below.

People v. Gabriesheski

Dependency and Neglect Proceeding—Attorney–Client Privilege—Confidentiality of Communications—Guardian ad Litem—Social Worker—Witnesses.

The People sought review of the court of appeals’ judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust in People v. Gabriesheski, 205 P.3d 441 (Colo. App. 2008). Following the district court’s exclusion of testimony concerning the recantation of the defendant’s step­daughter, the alleged child-sexual-assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that section 16- 12-102(1), C.R.S. (2010), gave it jurisdiction to entertain the People’s appeal, but it affirmed both of the trial court’s evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem appointed in a parallel dependency and neglect proceeding, the court of appeals held that the child’s communications with the guardian fell within the attorney-client privilege, as set out at section 13-90-107(1)(b), C.R.S. (2010). With regard to the exclusion of testimony by a social worker also involved in the dependency and neglect proceeding, the court found her to be both a professional who could not be examined in a criminal case without the consent of the parent-respondent, as dictated by section 19-3-207, C.R.S. (2010), and a licensed professional who could not be examined without the consent of her client, according to section 13-90-107(1)(g), C.R.S. (2010).

The Colorado Supreme Court affirms in part and reverses in part, holding that the court of appeals did have jurisdiction to entertain the People’s appeal, but disapproved of its conclusions with regard to both of the trial court’s evidentiary rulings. The supreme court finds that 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. Further, the supreme court finds that because the trial court apparently understood section 19-3-207 to bar the examination of the social worker in the defendant’s criminal case as long as she qualified as a professional involved in the dependency and neglect proceeding, it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be ones made in compliance with court treatment orders, or to demonstrate the applicability of section 13-90-107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

CLE Program: Guardians Ad Litem and the Attorney-Client Privilege – The Aftermath of the Gabriesheski Decision

This CLE presentation will take place on Monday, November 7. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

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