Defense Counsel's Duties in Juvenile Delinquency Cases Should a Guardian ad Litem be Appointed, 1118 COBJ, Vol. 47, No. 10 Pg. 48

Position:Vol. 47, 10 [Page 48]

47 Colo.Law. 48

Defense Counsel's Duties in Juvenile Delinquency Cases Should a Guardian ad Litem be Appointed?

Vol. 47, No. 10 [Page 48]

The Colorado Lawyer

November, 2018



This article explores ethical and strategic issues that defense counsel face when considering appointment of guardians ad litem in juvenile delinquency proceedings.

Statutory factors govern the discretionary appointment of a guardian ad litem (GAL) in delinquency proceedings, and ethical and strategic considerations impact defense counsel's assessment of whether to request appointment of a GAL. For example, ethical issues arise when defense counsel has confidential information indicating that a juvenile client's wishes are contrary to his or her personal safety.

Juvenile court has historically been less formal than adult criminal court and more focused on rehabilitation than punishment, and juveniles are not afforded all of the same rights as adult defendants. Juveniles, by nature, are not as well-equipped as adults to make important decisions about their lives and futures. This can lead many juvenile defense attorneys to believe they have a duty to stop a client from making a bad decision, or ask for the appointment of a GAL to act in the client's best interests. However, defense counsel is duty-bound to advocate for the client's expressed interests, whether the client is a 10-year-old child or a 45-year-old adult, and whether the client is making what the defender believes to be a good or a poor decision.

This article examines these issues in the context of defense counsel's duty to represent the expressed interests of juvenile clients and the duty of confidentiality pursuant to the Colorado Rules of Professional Conduct (Colo. RPC), national standards for juvenile defense, and statutes regarding the appointment of a GAL in a delinquency case.

Defense Counsel's Duties

In 1967, the U.S. Supreme Court afforded juveniles in delinquency court fundamental legal rights, including the right to counsel, in the landmark decision In re Gault.1 Attorneys defending juveniles in delinquency court have the same ethical duties as all defense attorneys, including the duty to represent the expressed interests of the client2 As with all clients, defense counsel for juveniles are bound by confidentiality and the attorney-client privilege.3

These ethical obligations mean that, just as when representing an adult, defense counsel m ust advocate at the direction of the client regardless of whether the attorney agrees with the client's position. This is true even if defense counsel believes that the client's decision is clearly not in his or her best interests.4 This does not mean that defense counsel must immediately and blindly follow the client's expressed interests; to the contrary, defense counsel has an affirmative duty to counsel and advise clients toward decisions that are in their best interests.[5] Advice and counsel are only effective when defense counsel spends significant time with the client to learn about the client's life circumstances, learning and comprehension abilities, and goals. This approach allows counsel to employ age-appropriate communication strategies.

But if defense counsel has thoroughly and competently advised and counseled the client and the client persists in pursuing a course of action that counsel believes is not in the client's best interests, counsel must advocate for that position.6 This is true even if the course of action might be harmful or even dangerous to the juvenile client. Often, defense attorneys believe that they have an ethical duty to actively prevent a juvenile client from making a decision that will put him or her in danger. However, defense counsel's duty of confidentiality to clients is fundamental to our system of justice, and this duty applies with equal strength to juvenile and adult clients.7 Pursuant to Colo. RPC 1.6(b)(1), counsel may reveal confidential information to the extent he or she reasonably believes necessary "to prevent reasonably certain death or substantial bodily harm." This type of harm is reasonably certain to occur "if it will be suffered imminendy or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat."8

Colo. RPC 1.14(b) provides:

When die lawyer reasonably believes that die client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in die client's own interest, die lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have die ability to take action to protect die client, and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

In such case, counsel "is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interest."9

Note that a juvenile does not have diminished capacity simply due to age,10 nor does defense counsel's assessment that a juvenile client has made a poor decision mean that the juvenile suffers from diminished capacity.11

The GAL's Role in a Delinquency Case

In delinquency cases, a GAL is an attorney who is appointed when there is no parent or guardian who can effectively act in the juvenile client's best interest, or when the best interests of the juvenile otherwise require such appointment.12 The court is specifically precluded from deeming die GAL as a substitute for the juvenile's defense counsel,13 and GALs in juvenile delinquency proceedings are not considered to be parties to the case.14 The GAL's role is to represent the juvenile's best interests in a manner that promotes and protects the juvenile's rights,15 and the GAL's duties and role in the case are set out by court order and in Chief Justice Directive (CID) 04-06.16

In a juvenile delinquency case, all appointments of GALs are discretionary.17 By statute, the court may appoint a GAL when a parent, guardian, or relative18 fails to appear at the first or any subsequent hearing; when die court finds that a conflict of interest exists between the juvenile and the parent, guardian, or relative; or when the court makes specific findings that appointment of a GAL is necessary to serve the best interests of the juvenile.[19] Additionally, if a GAL has not already been appointed when the issue of competency is raised in a juvenile delinquency proceeding, die court may appoint a GAL.20 A GAL may be appointed in a direct file case,21 and a GAL appointment may continue following transfer of the juvenile delinquency case to adult court.22 GAL appointments in direct file cases and cases transferred from juvenile to adult court continue to be discretionary appointments and must meet one of the three criteria listedin CRS §19-1-111(2)(a)(I) to (III).23

The specific duties of a GAL in a juvenile delinquency proceeding are outlined in CID 04-06.24 Generally, a GAL meets with the juvenile, family, and community supports such as teachers or therapists to ensure tiiat die juvenile understands the proceedings and can exercise his or her legal rights effectively, as well as to advocate for court orders that will promote the juvenile's best interests.25

Although the GAL is specifically bound by the rules of professional conduct, the GAL's client is not die juvenile but rather the juvenile's best interests;26 therefore, no attorney-client...

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