Ambiguous Garrity Warning Absolves Lawyer Of Malpractice

Raquel Backstreet was employed as a nurse at the Arapahoe County, Colorado Sheriff’s Department in the County’s detention center. During the course of her job, Backstreet made an error in administering medication to an inmate. The inmate sued the County, Backstreet, and others for medical malpractice.

In the ensuing investigation, the inmate’s medical record was discovered to have been altered. During an interview by a criminal investigator from the Sheriff’s Office, Backstreet stated that she might have altered the record. Backstreet was suspended with pay pending the outcome of the investigation.

Approximately six months later, the State filed felony criminal charges against Backstreet for forgery, tampering with evidence, and misconduct. Backstreet then hired attorney Kevin Flesch to defend her in the criminal case. Flesch also represented her in the ongoing Sheriff’s Office internal investigation.

A month later, a County official asked Backstreet to participate in an internal affairs interview as part of that investigation. The Sheriff’s Office provided Backstreet and Flesch with a written advisement informing Backstreet that none of her statements could be used against her in a subsequent criminal proceeding. The advisement further stated that if she did not participate in the internal investigation, Backstreet “could” be disciplined or terminated. The advisement was accompanied by a letter informing Backstreet that any “information during the internal affairs interview cannot be used in a criminal investigation,” citing Garrity v. New Jersey, 385 U.S. 493 (1967).

Despite the assertions contained in the advisement, Flesch advised Backstreet not to participate in any internal affairs interview. Flesch reasoned that Backstreet’s statements would not be deemed to be compelled by the State and therefore not be protected under a Fifth Amendment privilege against self incrimination. Relying on Flesch’s advice, Backstreet declined to take part in an internal affairs interview.

The State eventually dismissed the pending felony charges against Backstreet. Backstreet was eventually suspended for 30 days without pay for refusing to cooperate in the internal affairs investigation.

Backstreet sued Flesch for damages based on professional negligence and other theories. Backstreet claimed that Flesch’s advice that she not participate in the internal investigation was negligent because she had perceived immunity through the advisement issued by the Sheriff’s Office. The Colorado Court of Appeals rejected Backstreet’s lawsuit. The Court concluded that “it is not clear that the Sheriff’s advisement, which informed Backstreet that she could be fired, reaches the level of significant coercive action of the State required in order for immunity to be granted. The Sheriff’s advisement in this case is sufficiently ambiguous so that reasonable minds could differ on what result a court would reach under an immunity analysis.

“The advisement states that Backstreet could be terminated for not cooperating with the internal investigation, not that she definitely would be terminated. Thus, this ambiguous Sheriff’s advisement, as a matter of law, can be interpreted to lead to either conclusion: That the advisement was either inadequate or adequate to cloak Backstreet with the protective cloak of the Fifth Amendment privilege. In this case, 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 consequences of not cooperating with her employer. Flesch was clearly acting within the requisite standard of care owed to his client, and malpractice cannot occur.”

A dissenting justice believed that the law was clear that the Sheriff’s Office had granted Backstreet immunity, and that Flesch should never have advised his client not to cooperate with the internal investigation.

Hopp & Flesch v. Backstreet, 2005 WL 3097462 (Colo. 2005).

This article appears in the January 2006 issue