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Hopp & Flesch11/21/2005
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
EN BANC
JUSTICE COATS dissents
I. Introduction
We review the court of appeals' decision in Back-street v. Hopp & Flesch L.L.C., 107 P.3d 1022 (Colo. App. 2004), which held that a sheriff's department advisement to its employee, Raquel Back-street, that any statements she made during an internal civil investigation could not be used against her in subsequent criminal proceedings, constituted a grant of use immunity under the apparent authority doctrine. Id. at 1026. The court of appeals overturned the trial court's ruling on summary judgment. The trial court held it was not malpractice, as a matter of law, for Back-street's lawyer, Kevin Flesch, to advise her that any statements she made during the internal investigation would not be protected by the Fifth Amendment of the U.S. Constitution and therefore her statements could be used against her in a pending felony prosecution. Id. at 1024. The court of appeals concluded that whether Flesch breached his duty of care to Back-street by advising her not to make statements during the investigation was an issue to be resolved by the trier of fact and thus the malpractice claim was improperly dismissed on summary judgment. Id. at 1026.
We undertake two analyses, embodying wholly different legal principles, to determine if the trial court's grant of summary judgment was appropriate: (1) whether the sheriff's department's non-statutory offer of use immunity to Back-street was effective under the apparent authority doctrine as the court of appeals held; and, if not, (2) whether Flesch's advice to Back-street constituted professional malpractice because the written advisement was sufficiently coercive so that any statements she made to the sheriff's department would violate her Fifth Amendment privilege against self-incrimination and thus be barred from use in later criminal proceedings.
Under these facts, we hold that Back-street did not rely upon the sheriff's advisement that her statements could not be used in later criminal proceedings. Therefore, the apparent authority test as set forth in People v. Fisher, 657 P.2d 922 (Colo. 1983), has not been satisfied. For the apparent authority doctrine to apply, the government official making the offer of immunity must in fact lack authority to grant immunity; and the person to whom the offer is made must rely upon the offer of immunity. Since Back-street was represented by counsel who advised her that, contrary to the wording of the sheriff's advisement, any statements she made in the internal investigation could be used against her in a criminal proceeding, she did not rely on the advisement. Thus, we cannot imply use immunity based on the facts here.
We further hold that Flesch did not commit malpractice by advising Back-street not to participate in the internal investigation because her statements could be used in subsequent criminal proceedings. The sheriff's advisement here, which instructed Back-street that she could be disciplined or terminated if she did not cooperate with the internal investigation, was ambiguous. As a matter of law, the advisement could reasonably be construed to either satisfy or not satisfy the test of whether testimony is unconstitutionally compelled, as articulated in People v. Sapp, 934 P.2d 1367 (Colo. 1997). Thus, by advising Back-street not to participate in the internal investigation, Flesch did not breach his duty to Back-street to employ the level of judgment ordinarily possessed by members of the legal profession. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999).
We therefore conclude, as a matter of law
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