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In this article, we will answer a reader question: “are Guardian Ad Litem communications and work product covered by attorney-client privilege?”
A Guardian Ad Litem is a family law attorney appointed by judges to investigate, report to the court and advocate for the best interests of children or disabled adults. GALs are most common in cases involving child custody or guardianship. To learn more about GALs, check out our article, Guardian Ad Litems in Illinois Child Custody Cases Explained.
A Guardian Ad Litem can be distinguished from an Attorney for the Child and a Child’s Representative. An Attorney for the Child is an attorney appointed by the court to serve as a child’s attorney. A Child’s Representative falls somewhere between an Attorney for the Child and a Guardian ad Litem. The Child’s Representative is an attorney charged with advocating fot the best interests of the child, but unlike an Attorney for the Child, the Child’s Representative is required to meet with the child and both parents in child custody cases. Unlike a Guardian ad Litem, the Child’s Representative does not submit a report to the court and cannot be cross-examined by the parties. For more on this check out our article: What is the Difference Between a Guardian Ad Litem, an Attorney for the Child, and a Child’s Representative?
Attorney-client privilege protects certain communications between attorneys and clients as well as certain attorney work product from discovery by other parties in legal cases. In order for a communication to qualify as privileged:
- An attorney-client relationship must exist,
- The communication must have been made in confidence to the attorney for the purpose of obtaining legal advice, and
- The communication must remain confidential.
Privileged work product consists ofmaterials prepared in anticipation of litigation by an attorney, reflecting the attorney's thoughts, opinions, or strategies; as opposed to facts. For more on attorney client privilege, check out: What Does Attorney-Client Privilege Protect in Illinois?
Even though a Guardian Ad Litem is empowered to advocate for the child’s best interests, attorney-client privilege does not exist between a Guardian Ad Litem and the child for whom the GAL was appointed. Therefore, communications and work product of the GAL are subject to discovery.
However, attorney-client privilege does exist between the child and an Attorney for the Child or Child’s Representative. This means that the work product of attorneys functioning in these roles as well as confidential communications between the attorney and the child are privileged and protected from discovery by the parents or other parties.
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