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Hopp & Flesch11/21/2005
s of not cooperating with her employer. This, as stated by one of Flesch's experts, is certainly an accurate reflection of judgment ordinarily possessed by members of the legal profession, and particularly so when the client has already made potentially incriminating statements.
Therefore, because this particular sheriff's advisement could be construed to both meet and not meet the Sapp test, and because Flesch was clearly acting within the requisite standard of care owed to his client Back-street, malpractice cannot occur.
V. Conclusion
For the reasons stated, we reverse the judgment of the court of appeals and return this case to that court with directions to remand it to the trial court for entry of judgment in favor of Flesch and against Back-street.
JUSTICE COATS, dissenting
Although I too believe the court of appeals' reliance on our due process/promissory estoppel line of authority is misplaced, I nevertheless agree with its decision to remand for further proceedings. Where it is at least clear (even according to the majority) that Back-street's attorney failed to appreciate, and therefore failed to properly advise his client of, the effect of the sheriff's "Garrity advisement," I believe the allegation that he failed to employ the knowledge, skill, and judgment ordinarily possessed by members of the legal profession presents a question that cannot be resolved on the record before us. Because I am particularly concerned that the majority, in finding the threat of job loss in this case to be ambiguous, misconstrues a matter of United States constitutional law already resolved by the United States Supreme Court, I write separately to express my dissenting view.
For almost 40 years it has been settled that the due process protection of the Fifth and Fourteenth Amendments against coerced statements prohibits the use in subsequent criminal proceedings of statements obtained under threat of removal from office, whether the threatened office-holders are policemen or "other members of our body politic." Garrity v. New Jersey, 385 U.S. 493, 500 (1967). While the Supreme Court has subsequently made clear that the Fifth Amendment privilege against self-incrimination is broadly applicable in this context and that threats of dismissal from public employment are equally coercive of a waiver of that privilege, see Lefkowitz v. Turley, 414 U.S. 70 (1973), Garrity itself was clearly decided as a matter of due process, Garrity, 385 U.S. at 499-500; accord id. at 506-510 (Harlan, J., dissenting) (taking the majority to task for creating a new doctrine of involuntariness, as a matter of law, without consideration of the totality of the factual circumstances). It is therefore inconsequential, at least in this case, where the threats were made by a law enforcement agency, whether the information sought by the sheriff's department would have been demanded of Back-street in a proceeding to which the privilege applied.
My primary disagreement with the majority, however, arises from its characterization of the threat in this case as ambiguous and fairly construed as either sufficiently coercive, or not sufficiently coercive, to render a waiver of the privilege against self-incrimination involuntary. Maj. op. at 19-20. The majority makes clear that it considers a threat of discharge clearly coercive only if the threat puts the employee on notice that he will definitely be discharged for failing to answer his employer's questions, and not when it merely threatens that he "will be subject to administrative charges which could result in dismissal." I not only find this distinction unconvincing, but also completely devoid of support in the prior hol
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