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Weighing the Attorney-Client Privilege Against the Protection of Abused Children

November 2011
Practice: Professional Liability
Offices: Boston
People: Gary M. Ronan

In an October 24, 2011, decision, the Colorado Supreme Court held that the guardian ad litem for a minor child may testify in a criminal case against the child’s accused abuser concerning the child’s statements to the guardian, even over the child’s objection that the testimony should be excluded on the basis of the child’s attorney-client privilege.

The child first stated that the abuse had occurred, but later recanted her accusation. The prosecution, in order to undermine the child’s credibility in recanting, sought to call the child’s guardian to testify that the child had told the guardian that it would make things easier for the child and please her mother if she admitted to lying about the abuse. The child moved to exclude the proposed testimony on the ground that the child’s statements to her guardian were protected by the attorney-client privilege. The trial court sided with the child and excluded the testimony.

On appeal, the Colorado Supreme Court reversed the trial court’s holding. It found that a child who is the subject of a dependency and neglect proceeding is not the client of her court-appointed guardian ad litem. Accordingly, neither the attorney-client privilege nor the ethical rules governing attorney confidentiality apply, and the guardian is free to testify over the child’s objection. The Court reasoned that the guardian is charged with protecting the best interests of the child, not with advocating for her positions (as he would be if he were her attorney).

The decision weighs two competing interests: protecting children from abuse, on the one hand, and allowing them to confide in their guardians without fear of their confidences being disclosed, on the other.

This blog entry was originally posted on Legal OnRamp.  Goulston & Storrs attorneys provide blogs, discussion forums, collaboration, and pertinent news and related key cases regarding attorney-client privilege and work product protection information for Legal OnRamp.

This information should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

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