dissenting.
I respectfully dissent. Although I disagree with the majority's opinion in its entirety, I address the guardian ad litem issue first, because the majority's decision will have such a major negative impact on the juvenile justice system. As to the jurisdictional issue, I write separately in order to state my concern that the majority's decision will give the prosecution unlimited power to appeal any decision of a trial court simply by requesting a dismissal. Although I would hold that the court of appeals lacked jurisdiction to hear the appeal, I recognize that we can still address the guardian ad litem issue through our discretionary jurisdiction pursuant to Colorado Appellate Rule 21. Lastly, I address the majority's completely unnecessary decision to reverse the court of appeals on an aspect of an evidentiary question that was not even addressed by the parties.
I. The Role of the Guardian Ad Litem
The majority's decision deprives children of the right to legal representation. In addition, the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child's best interests to do so. This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child's fundamental right to be represented in court, and fails to protect the legal rights of children. The majority's opinion ignores both our statutory language and the growing trend recognizing that children should be represented by lawyers acting in full accordance with legal ethical rules. The better outcome, and the one intended by our statutory scheme, recognizes the attorney-client privilege, but permits the guardian ad litem to decide whether to assert the privilege on behalf of the child.
The majority claims that Colorado's statutory scheme is silent about whether an attorney-client relationship exists between a guardian ad litem and a child in a dependency and neglect proceeding. From this assertion, the majority presumes that the correct course of action is to eschew any duty of confidentiality in order to avoid "creating an evidentiary privilege." This assumption is incorrect for two reasons: (1) Colorado's statutory scheme is not silent, but instead uses language evoking a hybrid role for a guardian ad litem; and (2) because guardians ad litem are required to be attorneys, and are explicitly required to comply with the rules of professional conduct, a standard that eschews attorney-client privilege and the duty of confidentiality is at odds with well-established principles.
In many jurisdictions, the laws governing guardians ad litem have been unclear about the role of confidentiality in the relationship between a guardian ad litem and a child. See Roy T. Stuckey, Guardians Ad Litem As Surrogate Parents: Implications for Role Definition and Confidentiality, 64 Fordham L.Rev. 1785, 1786, 1792 (1996). While some jurisdictions have required guardians ad !item to adhere to the traditional attorney-client privilege,1 other jurisdictions have held that the privilege does not apply, liberally permitting disclosure of communications even *662without a waiver2 Other states fall some where on the spectrum between privilege and no privilege, emphasizing the importance of confidentiality, but permitting disclosure under certain The United circumstances3 States as a whole still reflects a lack of consensus as to the role of the guardian ad litem. In fact, a 2005 study found that the United States has fifty-six individual systems of representation in place for children. Jean Koh Peters, How Children Are Heard in Child Protective Proceedings, in the United States and Around the World in 2005: Survey Findings, Initial Observations, and Areas for Further Study, 6 Nev. L.J. 966, 968 (2006). The trend, however, has been a growing consensus among scholars and practitioners that children should be represented by lawyers acting in full accordance with legal ethical rules. Id. at 968-69.
a. Colorado's Statutory Language
Despite the majority's assertion that our laws are silent on the issue, Colorado's laws use language evincing adherence to both the traditional attorney-client privilege and a best-interests standard, under which the guardian ad litem would represent the best interests of the child. For example, the statutory definition of a guardian ad litem is both someone who is appointed "to act in the best interests" of another person and an attorney who is "appointed to represent a person in a dependency and neglect proceeding." § 19-1-108(59), C.R.S. (2011) (emphasis added). The dichotomy within this definition suggests that the guardian ad litem's duty is both to the child and to the best interests of the child. The majority completely disregards Colorado's statutory definition of a guardian ad litem, and instead relies on a broad definition of a guardian ad litem extracted from Black's Law Dictionary. As discussed above, the definition of a guardian ad litem varies widely from state to state and therefore, Black's definition is not helpful in specifically ascertaining the intent of Colorado's legislature. The statutory definition controls, and that language indicates a hybrid role for guardians ad litem in Colorado.
The statutory definition is not the only place in our law that acknowledges the unique role of the guardian ad litem. The duties of the guardian ad litem are further described in section 19-38-2088), CRS. (2011), which states that the guardian ad litem "shall be charged in general with the representation of the child's interests." (emphasis added). The statute then enumerates the guardian ad litem's duties to investigate the facts, talk with the child, examine witnesses, make recommendations to the court concerning the child's welfare, and participate in proceedings to the degree necessary "to adequately represent the child." Once again, within the same statute, the language suggests that a guardian ad litem represents both the child and the child's interests. Moreover, while many of these responsibilities are typical duties of an attorney, because of the emphasis on representing and acting in the child's best interests, it is clear that a guardian ad litem is a special kind of attorney.
b. The Effect of Chief Justice Directive 04-06
To clarify the duties of the guardian ad litem, the legislature has delegated the establishment of more specific practice standards to the chief justice. § 19-1-111(6), C.R.S. (2011). Chief Justice Directive 04-06 states, notably, that an attorney appointed as a guardian ad litem "shall be subject to all of the rules and standards of the legal profession...." C.J.D. 04-06(V)(B). This directive also requires a guardian ad litem in a dependency and neglect case to provide accurate and current information directly to the court and to "[tlake actions within the scope of his *663or her statutory authority and ethical obligations necessary to represent the best interests of the child." C.J.D. 04-06(V)(D)(1) & (8) (eraphasis added). Therefore, this directive does not relieve a guardian ad litem from fulfilling his or her ethical obligations as an attorney. The majority downplays the significance of this directive, emphasizing instead that the directive does not, and potentially cannot, create an evidentiary privilege. This argument is misleading, however, because it rests on the false assumption that C.J.D. 04-06 is the source of the evidentiary privilege. C.J.D. 04-06 simply clarifies that an attorney appointed as a guardian ad litem in a dependency and neglect proceeding is required to act in full accordance with the rules governing attorney conduct. Attorney-client privilege applies as the result of the relationship between the attorney-guardian ad litem and the child, created by statute.
c. The Attorney-Client Relationship
The majority concludes that a guardian ad litem represents the child's best interests, but not the child, because to hold otherwise would: impose the evidentiary consequences of an attorney-client relationship onto the statutory guardian ad litem-child relationship. Thus, without discussion or analysis, the majority presumes that a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem. I disagree, and would instead conclude that the child is the client of the guardian ad litem, and that, therefore, attorney-client privilege applies.
An attorney-client relationship "may be inferred from the conduct of the parties." People v. Bennett, 810 P.2d 661, 664 (Colo.1991). In determining whether an attorney-client relationship exists, we apply a subjective test, of which an important factor is "whether the client believes that the relationship existed." Id. As the majority noted, we have held that a client is a person who employs or retains an attorney for advice or assistance on a matter relating to legal business. People v. Morley, 725 P.2d 510, 517 (Colo.1986). Although we have not explicitly addressed the present situation, in other contexts, we have not made the existence of an attorney-client relationship contingent on whether counsel was retained by the defendant or the court. People v. Harian, 54 P.3d 871, 878 (Colo.2002) ("[OJnee counsel is appointed, the attorney-client relationship is no less inviolable than if the counsel had been retained by the defendant." (quoting People v. Isham, 928 P.2d 190, 198 (Colo.App. 1995))). Accordingly, the fact that a guardian ad litem is appointed by the court, rather than sought out by the child, is not a disposi-tive factor in determining whether the attorney-client relationship exists. Instead, we must look to statutes, the conduct of the parties, and the subjective belief of the child.
Although our statutory language requires the guardian ad litem to represent the best interests of the child, this does not necessitate a conclusion that there is no attorney-client relationship between a child and an appointed guardian ad litem. In other areas of Colorado's domestic relations law, the General Assembly has used similar "best-interests" language even when it is clear that an attorney is appointed to serve as the legal representative of the child. For example, in a custody proceeding, the court has the discretion to appoint a child's representative. § 14-10-116(1), C.R.S. (2011). The child's representative serves as the "legal representative of the child," but also represents the "best interests of the child." Like the guardian ad litem in a dependency and neglect case, the child's representative is required to be an attorney and to comply with all the provisions of the Colorado rules of professional conduct. This duty is described both in section 14-10-116 and in C.J.D. 04-O6(V)(B). In contrast, a child and family investigator may be appointed in a custody proceeding to serve as the "investigative arm of the court." C.J.D. 04-08(IV)(B)(8). While the investigator may be an attorney, he or she is not permitted to provide legal advice or act as a lawyer, and is not required to comply with the rules of professional conduct for attorneys. C.J.D. 04-08(IV)(B)(4). The same person may not serve as both the child's representative and the family investigator. § 14-10-116.5(1), C.R.S. (2011).
The contrast between the role of child's representative and investigator highlights *664the difficulty of rectifying a guardian ad li-tem's varying responsibilities with the obligation to adhere to legal ethical standards. The contrast also demonstrates, however, that the General Assembly may use the "best interests" language even when it intends for an attorney to represent a child in an attorney-client relationship. The language in the guardian ad litem statute more closely resembles the language describing the child's representative, particularly in light of the express requirement that the guardian ad litem adhere to the legal rules of professional conduct. Accordingly, I would hold that the statutory language requires a conclusion that an attorney-client relationship exists between a child and a guardian ad litem in a dependency and neglect proceeding, and that the guardian ad litem represents both the child and the child's best interests.4
The conduct of the parties further confirms my conclusion that the attorney-client relationship exists. When a dependency and neglect petition is filed, it means that there is reason to believe that the child's parents are not acting in the child's best interests. The guardian ad litem steps into the shoes of the parents, acting on behalf of the parents in pursuit of the best interests of the child. In Colorado, however, the guardian ad litem is also required to be an attorney and perform typical duties of an attorney in court. Both of these roles make it essential for the guardian ad litem to earn the child's trust. The consensus among academics and practitioners is that the duty of confidentiality enhances the representation because it encourages full disclosure from the child, which may lead to the discovery of information which would not otherwise come to light. See, eg., Gail Chang Bohr, Ethics and the Standards of Practice for the Representation of Children in Abuse and Neglect Proceedings, 32 Wm. Mitchell L.Rev. 989, 1002-08 (2006). Furthermore, when a child confides in a guardian ad litem attorney, the child most likely expects confidentiality, because the child has no other legal representative.
I recognize that there may be times where it would be in the best interests of a child to reveal information to the court, but the child does not consent to disclosure. In my view, the guardian ad litem in a dependency and neglect proceeding is bound by the attorney-client privilege and the duty of confidentiality, but the guardian ad litem, acting in the child's best interests, decides whether to invoke the privilege on behalf of the child. In this way, both the child's legal rights and best interests are represented by an attorney. In determining whether to reveal a communication without the child's consent, the guardian ad litem should, as a good parent would, speak with the child first and consider the child's wishes. Additionally, the guardian ad litem should take into account the age and maturity of the child in making its determination. While a guardian ad litem for a younger child will likely make most or all of the decisions, a guardian for an older mature child might function more like an attorney for an adult, allowing the child to play a larger role in the decision-making.
I would hold that the attorney-client privilege does apply to confidential communications made between a guardian ad litem and a child in a dependency and neglect proceeding, and that the responsibility to decide whether to assert the privilege on behalf of the child is placed with the guardian ad litem.
II. Jurisdiction
I also dissent from the majority's holding that a dismissal for failure to prosecute constitutes a final judgment for purposes of appeal. The majority's holding gives the prosecution unlimited power to appeal any decision of a trial court simply by requesting a dismissal. The majority justifies this result by claiming that the prosecution will always make the correct ethical judgment about when to dismiss a case. In my view, the General Assembly did not intend to give the prosecution the unchecked right to appeal an otherwise unappealable interlocutory order. Instead, the General Assembly enact*665ed the amendment to section 16-12-102(1), C.R.S. (2011), to prevent double jeopardy issues when the court dismissed or reduced a charge. Therefore, I would hold that, because a dismissal for failure to prosecute is not a final order, it cannot be the basis for an appeal under section 16-12-102(1).
The legislature has specified that a final order includes a pre-trial dismissal of at least one count of a charging document, but in order to serve as the sole basis for an appeal, the dismissal must also satisfy the final judgment rule. See People v. Guatney, 214 P.3d 1049, 1050 (Col.2009). Therefore, the dismissal must leave nothing further for the court to do in order to completely determine the rights of the parties with regard to the dismissed charges. Id. at 1051. Because a dismissal for failure to prosecute does not satisfy the definition of a final judgment, it cannot be considered the type of final order contemplated by the statute.
The distinction lies in the reason behind the dismissal. When a court dismisses a charge on its own cognizance, such as for a lack of probable cause, the dismissal is a final judgment because the dismissing court has nothing further to do regarding those charges. As a result, the prosecution is left with mo other choice but to go forward on any remaining charges or appeal. If the prosecution does not appeal, the opportunity to prosecute the dismissed charge is lost completely due to double jeopardy concerns. In contrast, when a pre-trial dismissal is caused by a failure to prosecute, the prosecution may simply refile the charges at a later time. Consequently, there could be something further for the dismissing court to do, and so long as refiling is a possibility, the rights of the parties with regard to those charges cannot be said to have been completely determined. Therefore, a dismissal for failure to prosecute is distinct from a dismissal initiated by the court.
Although prosecutors in Colorado are granted uncommonly broad authority to appeal, this power is not supposed to be unlimited, as the majority's holding would make it. The legislative history is consistent with the notion that section 16-12-102(1) was not meant to provide appellate review of eviden-tiary rulings underlying a dismissal order for failure to prosecute. In 1998, section 16-12-102(1) was amended to add that any order dismissing one or more counts of a charging document prior to trial shall constitute a final appealable order. Ch. 251, see. 9, § 16-12-102, 1998 Colo. Sess. Laws 948. The amendment was proposed in response to the Gallegos case, in order to clear up confusion on the issue of whether an appeal would be allowed of an order that dismissed one or more, but not all charges at a preliminary hearing. Hearing on HB. 1088 Before the S. Judiciary Comm., 1998 Leg., 2d Regular Sess., 61st Gen. Assemb. (Colo.1998) (referring to People v. Gallegos, 946 P.2d 946 (Colo.1997)). The hypothetical situation discussed during the committee hearings involved a first degree murder charge dismissed or reduced to second degree by the court at a preliminary hearing. Without the right to appeal at that stage, the case would go forward on the second degree charge and jeopardy would attach, making it impossible for the prosecution to ever appeal the reduction or dismissal of the original charge. Based on this example, it is clear that the General Assembly intended to make a dismissal of charges appealable when the court initiates the dismissal over the objection of the prosecution. Conversely, the amendment was not intended to give the prosecution the authority to dismiss charges and then challenge, not the order of dismissal, but any ruling made by the trial court, even those which would ordinarily be unappeala-ble. Therefore, I conclude that section 16-12-102(1) does not permit an appeal of a dismissal for failure to prosecute.
When a prosecutor requests a dismissal, the court's discretion to withhold consent and approval is extremely limited. For example, this court has held that "a trial court's refusal to grant a prosecutor's request to dismiss a charge was an abuse of discretion absent [clear and convincing] evidence that the prosecutor was attempting to harass the defendant or prejudice his defense." People v. Frye, - P.3d -, - (Colo.App.2010) (selected for official publication) (citing People v. Lichtenstein, 630 P.2d 70, 78 (Colo.1981)). Thus, when a court dismisses a case *666for failure to prosecute, it is essentially performing a ministerial function at the behest of the prosecution.
By allowing a dismissal for failure to prosecute to serve as the basis of an appeal, the majority is "transform[ing] the trial court's essentially ministerial role in approving a prosecution's request for dismissal into the means for gaining an appeal of right of what is, in essence, an interlocutory order of a kind not appealable under the interlocutory appeal provisions of section - 16-12-102(2). ..." Id. at -- (citing cf, People v. Donahue, 750 P.2d 921, 922-28 (Colo.1988) (suppression orders are appealable by interlocutory appeal, not by voluntarily dismissing the case and appealing on a "question of law")). In other words, it gives the prosecution a way to get around the limitations on interlocutory appeals by merely requesting that the charges be dismissed and then appealing.
The majority's mistaken approach makes the scope of appellate review entirely coterminous with the strategy and tactics of prosecutors. While the majority notes that the decision to request dismissal should not be taken lightly, appealability should not hinge on the majority's purported confidence that strategic and tactical decisions of each individual prosecutor will be properly constrained by their ethical standards. Accordingly, I would hold that section 16-12-102(1) may not be used as a basis for appellate jurisdiction when the only alleged final order is a dismissal for failure to prosecute.
IIL - Social Worker Testimony
Lastly, I dissent from the majority's conclusions regarding the testimony of the social worker. In disapproving of the trial court's reliance on section 19-8-207, C.R.S. (2011), as a basis for prohibiting examination of the social worker, the majority has gone out of its way to reverse the court of appeals on an issue that was never addressed by the parties or the trial court. The majority dwells on the lack of findings regarding the existence of the social-worker-client relationship and the question of whether the statements were made pursuant to compliance with treatment orders. However, the parties did not even argue about these issues. Because the prosecution implicitly conceded that the relationship existed and that the statements were made pursuant to compliance with treatment orders, the parties and the court of appeals focused on whether the proposed statements fall under the exception to the privilege.
Section 19-8-207(2) prohibits the testimony of any treating professional involved in a dependency and neglect case, but makes an exception for discussions of future misconduct or past misconduct unrelated to the allegations involved in the treatment plan. The People sought to admit testimony of the social worker which would suggest that T.W.'s mother had pressured TW. to recant the allegations of sexual abuse.
I agree with the court of appeals that the statements cannot be said to be "unrelated to the allegations" of sexual abuse, because the proposed testimony goes "directly to the veracity of the allegations," and would not fall under the exception to the privilege. People v. Gabriesheski, 205 P.3d 441, 444 (Colo.App.2008). Therefore, although the exact statements at issue were not in the record before us, the description of the proffered testimony provides sufficient information to determine that the trial court did not abuse its discretion in excluding the testimony.
Likewise, the court of appeals did not err when it concluded that section 13-90-107(1)(g), C.R.S. (2011), serves as an additional ground for precluding the testimony. Section 183-90-107(1)(g) prohibits a social worker from being examined without consent, as to any communication made by the client in the course of professional employment. The parties argued the applicability of this statute before the trial court, but because the trial court decided to exclude the social worker's testimony based on section 19-3-207, the trial court did not address section 13-90-107 in its ruling.
The majority complains that the court of appeals should not have addressed section 13-90-107 because the trial court did not make findings regarding the existence of the social-worker-client relationship. The court of appeals merely noted that section 13-90-107 further supports the conclusion that the *667social worker could not testify. Because neither the trial court nor the court of appeals relied on 13-90-107, and because the plain language of the statute supports the conclusion that the social worker's testimony was inadmissible, the majority's decision to remand for additional findings on the existence of the social-worker-client relationship is completely unnecessary.
For the reasons described above, I respectfully dissent.
I am authorized to state that Chief Justice BENDER joins in this dissent.
. See, eg., Mich. Comp. Laws § 712A.13a(1)(c) (2011)("An attorney defined under this subdivision owes the same duties of undivided loyalty, confidentiality, and zealous representation of the child's expressed wishes as the attorney would to an adult client.").
. See, eg., Ark. Supreme Court Admin. Order No. 15.1: Qualifications and Standards for Attorneys Appointed to Represent Children and Parents, § 2() ("Aitorney-client or any other privilege shall not prevent the ad litem from sharing all information relevant to the best interest of the child with the court.").
. See, eg., Minn. Rules of Guardian Ad Litem Procedure in Juvenile and Family Court, R. 905.01(c) (the guardian ad litem shall "maintain the confidentiality of information related to a case, with the exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests of the child 2").
. In lieu of this dual-role, children could be represented by both an attorney and a guardian ad litem in every dependency and neglect proceeding, but such an outcome strains scarce resources.