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Hopp & Flesch11/21/2005
Sapp, 934 P.2d at 1373. Whether an employee's subjective belief that he will be terminated for asserting his Fifth Amendment privilege is objectively reasonable under the circumstances is a question of law. Id. To be objectively reasonable, the belief must result from significant coercive action of the state, which in turn must be "more coercive than that resulting from the general obligation imposed on a witness to give truthful testimony." Id.
Applying Sapp, we reason that whether the sheriff's advisement in this case was sufficiently coercive to trigger Back-street's privilege against self-incrimination is subject to differing legal conclusions. It is not clear that the sheriff's advisement in this case, which informed Back-street that she could be fired, reaches the level of "significant coercive action of the state" required by Sapp. 934 P.2d at 1373. The trial court found it did not, absent a direct threat or rule mandating termination for non-cooperation.
However, the Sapp test is not formulated for cases in which there is a clear threat of mandatory termination. The analysis is devised for the type of circumstances this case presents ---those that are ambiguous as to whether they present a threat of job loss significant enough to be considered improper compulsion in violation of the Fifth Amendment privilege against self-incrimination. We stated in Sapp that the government must play a "significant role in creating the impression that [an employee] might be discharged for asserting the privilege." 934 P.2d at 1374 (emphasis added). If a government employer informed its employee that she would definitively be terminated for invoking her Fifth Amendment privilege, then there would be no need to engage in the two-prong Sapp test. There would be no question that the employee subjectively believed she would lose her job, and that her belief was objectively reasonable. But where the government creates an impression that the employee might be fired, here by use of the phrase "could result in your dismissal," a Sapp analysis is necessary to determine whether the level of compulsion was unconstitutional.
The sheriff's advisement in this case is sufficiently ambiguous so that reasonable minds could differ on what result a court would reach under a Sapp analysis. The advisement states that Back-street could be terminated for not cooperating with the internal investigation, not that she would definitely be terminated. Thus, this ambiguous sheriff's advisement, as a matter of law, can be interpreted under Sapp to lead to either conclusion: that the advisement was either inadequate or adequate to clothe Back-street with the protective cloak of the Fifth Amendment privilege. Because our analysis occurs in the context of summary judgment granted in an attorney malpractice case, we do not decide at this time which interpretation is appropriate. We leave that for another day and now turn to an analysis of the duty of care owed by Flesch, the attorney, to his client, Back-street.
IV. Application
We now apply the principles just discussed to the issue of whether Flesch committed malpractice by advising Back-street that her statements would not be protected under the Fifth Amendment and could therefore be used against her in a criminal proceeding.
We note that where, as here, an employee is facing felony charges in addition to workplace sanctions, her attorney may be faced with a choice between protecting his client from one or the other. In this case, defense lawyer Flesch exercised caution by advising his client to be more concerned about the potential ramifications of felony convictions, including the loss of liberty, than the possible civil consequence
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