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96/97-03

 

Abstract 96/97-03

Summary of Facts Provided

An attorney acting as guardian ad litem (GAL) for a child in a dependency and neglect action receives a written report from the child's therapist concerning issues raised in a motion previously filed by GAL. GAL submits the therapist's report to the court to supplement the motion, certifying service to all parties/counsel of record. An attorney representing another party informs GAL that he considers GAL's filing of the report to be ex parte communication with the court, and expresses the intent to file a grievance if GAL takes similar action in the future.

Issues and Conclusions

A. Is filing an expert therapist's report in a dependency and neglect action, where all parties/counsel of record are served, a prohibited ex parte communication?

No. Colorado Rule 3.5(b) prohibits communicating ex parte with a judge "except as permitted by law." Filing a therapist's report with the court, with copies to all parties/counsel, is not a violation. The Colorado Children's Code at C.R.S. 19-1-107(2) permits the filing of reports regarding a child's mental, physical, and social history with the court so long as the author is available as a witness subject to cross-examination. It does not violate the constitutional right to confront witnesses or due process, where the report is made available to all interested parties in sufficient time before a hearing to permit the parties to compel attendance of the author and to subject the author to examination under oath. People in the Interest of A.M.D., 648 P.2d 625 (Colo. 1982).

B. Is GAL required to report the lawyer's threat to file a grievance to the appropriate professional authority?

Yes, if GAL has actual knowledge that the lawyer's threat was made to obtain an advantage in the dependency and neglect proceedings. Colorado Rule 4.5 prohibits a lawyer from threatening disciplinary charges to obtain an advantage in a civil action. Such conduct raises a substantial question as to a lawyer's honesty, trustworthiness or fitness as a lawyer. Thus, Colorado Rule 8.3 requires GAL to report the lawyer's threat, if GAL has actual knowledge that the threat was made to obtain an advantage in the dependency and neglect proceedings. GAL is not required to report unless GAL has such actual knowledge. Committee Comment to Colorado Rule 8.3. Actual knowledge may be inferred from the circumstances. Colorado Rules, Terminology, definition of "knows."