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Hopp & Flesch11/21/2005
consequently she could not meet the requirement of the second Fisher factor. Thus we conclude that, based on a Fisher analysis, the court of appeals erred in determining that the sheriff's advisement could be transformed into use immunity under the apparent authority doctrine.
C. Professional Negligence
Having eliminated the theory of apparent authority to support the result reached by the court of appeals that the grant of summary judgment against the plaintiff was improper, we now return to the issue of malpractice. If the wording contained in the sheriff's advisement is sufficiently coercive under federal constitutional law, as interpreted by this court in People v. Sapp, to trigger Back-street's Fifth Amendment privilege against self-incrimination, then Flesch could have committed malpractice by advising Back-street that it was not.
To establish a legal malpractice claim, the plaintiff must show her attorney was negligent by proving three elements: (1) the attorney owed a duty of care to the client; (2) the attorney breached that duty; and (3) by breaching his duty, the attorney proximately caused damage to the client. Stone v. Satriana, 41 P.3d 705, 712 (Colo. 2002). Our analysis focuses on the second element --- the duty owed by Flesch to his client, Back-street.
An attorney owes his client a duty "to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession in carrying out the services for his client." Bebo Constr. Co., 990 P.2d at 83. We have noted that, in determining whether a lawyer has exercised judgment ordinarily possessed by members of his profession, the relevant focus is on what a lawyer would have done at the time, excluding "the benefit of hindsight." Stone, 41 P.3d at 712. To analyze Flesch's judgment in this case, we must first explore the constitutional principles underlying his advice to Back-street.
Under Garrity, if the sheriff's office compelled Back-street's participation in the internal investigation through threat of discharge, any statements she made would have been inadmissible in a later criminal proceeding as a violation of her Fifth Amendment privilege against self-incrimination. Therefore, the analysis of the malpractice issue turns upon the question examined by the trial court -- whether the sheriff's advisement was adequate to trigger Back-street's Fifth Amendment privilege against self-incrimination under Garrity. Stated another way, the question we must address is whether the advisement was sufficiently coercive to create an objectively reasonable fear that she would be fired if she did not cooperate with the sheriff's office investigation.
This court applied Garrity in Sapp, 934 P.2d 1367. In Sapp, officials wished to question police officers as part of an internal investigation of alleged misconduct. Id. at 1368-69. After giving statements during the investigation, the officers faced criminal charges based on those statements. Id. at 1369. The officers sought to have the statements suppressed in the criminal proceeding, arguing that they were improperly compelled to give the information in violation of their Fifth Amendment privilege against self-incrimination. Id. In determining whether the statements were in fact compelled, and therefore inadmissible in the criminal trials, this court in Sapp adopted the two-prong test articulated in United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988). Under the test, "statements are compelled by threat of discharge from employment where: (1) a person subjectively believes that he will be fired for asserting the Fifth Amendment privilege, and (2) that belief is objectively reasonable under the circumstances."
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