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Hopp & Flesch11/21/2005
ed against her in criminal proceedings. Relying on Flesch's advice, Back-street again declined to take part in any internal affairs interviews.
The state eventually dismissed the pending felony charges against Back-street. Still on administrative leave without pay, Back-street retained another attorney to represent her for the remainder of the sheriff's office internal investigation. Back-street was then recommended for termination due to her refusal to cooperate in the internal investigation. She was eventually reinstated with back pay after an administrative hearing, but was required to forfeit thirty days of back pay for refusing to cooperate with the internal affairs investigation.
Back-street then sued Flesch for damages based on professional negligence and other theories. Back-street claimed that Flesch's advice that she not participate in the internal investigation was negligent because she had received use immunity through the sheriff's advisement. Flesch moved for dismissal and summary judgment, arguing that his advice did not fall below the requisite standard of care as a matter of law.
Treating Flesch's motion as a request for determination of a question of law under C.R.C.P. 56(h), the trial court concluded that, as a matter of law, Flesch's advice to Back-street that she should not participate in the interview did not fall below a minimum standard of care. In reaching that decision, the trial court found that, under Colorado case law, the sheriff's advisement regarding the internal affairs interview did not rise to the level of coercion to cooperate sufficient to violate Back-street's Fifth Amendment privilege against compelled self-incrimination. In a subsequent order, the trial court granted the motion for summary judgment as to all of Back-street's claims.
On appeal, Back-street contended that the trial court erred in its ruling as a matter of law that statements made to her employer, the sheriff's office, during the internal investigation could be used later in the pending criminal proceeding. The court of appeals held that, because the sheriff's office had apparent authority to make a binding promise of immunity, the sheriff's advisement constituted an enforceable offer of use immunity to Back-street. Back-street, 107 P.3d at 1026. That court then concluded that whether Flesch's advice breached a duty of care to his client under such circumstances is a matter to be decided by a trier of fact and therefore inappropriate for resolution on summary judgment. Id.
III. Analysis
We review an entry of summary judgment based on a determination of a question of law under C.R.C.P. 56(h) de novo. West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo. 2002).
This is a case about legal malpractice. The central question we must address is whether any legal theory sustains the claim that Flesch committed malpractice by advising Back-street that any statements she made during the internal investigation would not be protected under the Fifth Amendment and could therefore be used against her in a criminal proceeding. However, the court of appeals did not reach a malpractice analysis because it construed the sheriff's advisement used in this case as a binding grant of use immunity under the apparent authority doctrine. Thus, before considering the malpractice claim, we first examine the principles underlying immunity and self-incrimination and then address apparent authority.
A. The Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment of the U.S. Constitution, which applies to the states through the Due Process Clause of the Fourteenth Amendment, guarantees that no perso
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