Post by katieperkinsufr on Sept 29, 2013 8:15:23 GMT -7
Colorado Denies Privilege for Guardian Ad Litem (Dec 2011).
By Lisa Bliss, Litigation News Associate Editor – December 20, 2011
The recent Colorado Supreme Court decision in People v. Gabriesheski [PDF] highlights the tension between the potential dual roles of a lawyer serving as guardian ad litem. The implications of this tension on the attorney-client privilege could have a chilling effect on the ability of an at-risk child to have conversations with his or her lawyer/guardian remain confidential.
People v. Gabrieshesk
Georgia State Bar makes decision on child's attorney v. BIC attorney = CONFLICT, must withdraw (Jan. 2012)
www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=547
Conclusion
At the point that the attorney concludes that the child's wishes and best interests are in conflict, the attorney should petition the court for removal as the child's guardian ad litem, disclosing only that there is a conflict which requires such removal. The attorney should not reveal the basis of the request for the appointment of a guardian ad litem to preserve confidentiality and so as not to compromise the child's position. The attorney should not reveal further information received during the representation, nor should the attorney otherwise use the information received from the child in confidence to advocate a position not desired by the child. The attorney is under an affirmative ethical obligation to seek to have a new guardian ad litem appointed following his withdrawal as guardian. If the conflict between the attorney's view of the child's best interests and the child's view of his or her own interests is severe, the attorney may seek to withdraw entirely following Rule 1.16 or seek to have a separate guardian appointed.
By Lisa Bliss, Litigation News Associate Editor – December 20, 2011
The recent Colorado Supreme Court decision in People v. Gabriesheski [PDF] highlights the tension between the potential dual roles of a lawyer serving as guardian ad litem. The implications of this tension on the attorney-client privilege could have a chilling effect on the ability of an at-risk child to have conversations with his or her lawyer/guardian remain confidential.
People v. Gabrieshesk
Georgia State Bar makes decision on child's attorney v. BIC attorney = CONFLICT, must withdraw (Jan. 2012)
www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=547
Conclusion
At the point that the attorney concludes that the child's wishes and best interests are in conflict, the attorney should petition the court for removal as the child's guardian ad litem, disclosing only that there is a conflict which requires such removal. The attorney should not reveal the basis of the request for the appointment of a guardian ad litem to preserve confidentiality and so as not to compromise the child's position. The attorney should not reveal further information received during the representation, nor should the attorney otherwise use the information received from the child in confidence to advocate a position not desired by the child. The attorney is under an affirmative ethical obligation to seek to have a new guardian ad litem appointed following his withdrawal as guardian. If the conflict between the attorney's view of the child's best interests and the child's view of his or her own interests is severe, the attorney may seek to withdraw entirely following Rule 1.16 or seek to have a separate guardian appointed.
