COA reverses sanctions against lawyer

A guardian ad litem‘s (GAL) communications with the child she was appointed to serve were not subject to the attorney-client privilege and work product protection, the Western District of the Missouri Court of Appeals ruled on June 17, reversing a sanctions order.

Felisha and Nathan DeSpain were married in 2005 and had two children together. When Felisha filed a petition to dissolve the marriage, their son was 14 years old, and their daughter was nine.

Throughout the dissolution proceeding, Felisha was represented by Rose C. Briscoe.

Because of allegations of abuse Felisha made against Nathan in the dissolution proceeding, and in separate orders of protection against him, the circuit court appointed Brandi Judah to serve as GAL for the children.

Felisha expressed concerns to Briscoe that Judah was not spending sufficient time with the children. She also shared that her son had complained that Judah was forcing him to have unwanted and traumatic contact with Nathan, and that Judah was not listening to the son’s wishes or communicating his preferences to the circuit court.

The circuit court also appointed a therapist to engage in family therapy with the children and Nathan and testify as to her observations.

During two sessions with the therapist — one with the son, Judah and the therapist, and another that involved Nathan, the son and the therapist — the son surreptitiously recorded the sessions and shared them with Felisha.

Felisha told Briscoe, who requested that Felisha send them to her.

Briscoe emailed Judah, informing her of the recordings and asking for her recommendation in the case. Judah declined to share. Briscoe then filed a motion seeking to continue the upcoming trial, remove Judah as GAL and excuse the children from further family counseling sessions with the therapist.

After a final judgment was entered in the dissolution action, the circuit court imposed sanctions on Briscoe. The court concluded that communications between Judah, as a GAL, and the children were protected by the attorney-client relationship, and that the family counseling sessions conducted by the therapist were subject to the therapist-patient privilege recognized in § 337.636.

Briscoe appealed.

In a unanimous opinion authored by Judge Alok Ahuja, the court reversed.

Although 452.423.3(1) provides that a GAL shall be the child’s “legal representative,” and the Standards for Guardians Ad Litem promulgated by the Missouri Supreme Court require that a GAL be a licensed attorney, “other provisions of the Supreme Court’s GAL Standards make clear that a guardian ad litem is not the child’s attorney,” the court wrote. “The Standards clearly distinguish between a guardian ad litem’s advocacy of what the GAL independently determines to be in the child’s best interests, and advocacy for the child’s own wishes (as an attorney representing a client would typically do).”

The standards strongly indicate that a GAL does not function as an attorney for a child, but instead operates in the manner of a court-appointed investigator or expert, the court explained.

Like the standards, Missouri case law recognizes that a GAL does not function in the traditional role of an attorney for the children, but instead serves largely as an arm of the court, the court said, and cited similar opinions from various other states holding that a GAL does not operate in the traditional role of an attorney for the child, and that communications with a GAL are therefore not subject to the attorney-client privilege or work product immunity.

“In sum, we conclude that no attorney-client privilege attaches to communications between a guardian ad litem and the child whose best interests the GAL is appointed to represent,” the court said. “The expectation that a guardian ad litem will testify to facts that they have learned, without obtaining consent from any other person to such testimony, is inconsistent with the attorney-client privilege.”

The court also agreed with Briscoe that the circuit court erred in granting sanctions based on her purported violation of the therapist-patient privilege.

“Where Therapist was court-appointed to evaluate and report to the court concerning the relationship between Father and his children, Son was not consulting Therapist for the purpose of therapeutic treatment,” the court wrote. “The therapist-patient privilege found in § 337.636 did not apply to Therapist’s sessions with Son, and the therapist-patient privilege could therefore not serve as a basis for the award of sanctions against Briscoe.”

In closing, the court noted that even if the recordings were not privileged, Briscoe’s conduct may warrant the imposition of sanctions in the discretionary exercise of the circuit court’s inherent authority, remanding to the circuit court to decide whether imposition of sanctions on Briscoe were warranted independent of any claims of privilege.

Jonathan Sternberg in Kansas City, who represented Briscoe, said the court reached the correct decision and provided clarification for lawyers going forward.

“Anyone appointed by a court — including guardians ad litem — to do something as an officer of the court, who are often lawyers or doctors or psychologists who ordinarily have privileges, needs to understand that things are different when you are a court officer,” he said.

St. Joseph attorney Terri D. Lowdon, who represented Judah, did not respond to a request for comment.

The case is DeSpain v. DeSpain, No. WD87182.