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People in the Interest of K.S-E.

2021 COA 93. No. 19CA1948.  Fifth Amendment—Right to Advice of Counsel—Direct Contempt.

July 8, 2021

Mother retained Rosenfeld to represent her in a dependency and neglect proceeding. During a pretrial hearing, the People called mother as a witness, and she was advised of her Fifth Amendment rights due to a pending criminal action that was attendant to the proceedings. Following the advisement, the court directed Rosenfeld to not stand and object to questions on Fifth Amendment grounds on mother’s behalf. Rosenfeld responded that he would continue to stand up and advise mother to invoke her rights, which he did for a number of questions. The court advised Rosenfeld that it would hold him in direct contempt if he continued this behavior. During the remainder of the examination, Rosenfeld periodically knocked on the table, and mother invoked her Fifth Amendment privilege in response to several questions without Rosenfeld verbally advising her to do so. The court asked Rosenfeld whether his knocking was a form of communication to mother that violated the court’s earlier order. Rosenfeld expressed confusion as to the scope of the order, stating that he thought he had only been ordered not to stand and object on Fifth Amendment grounds. Ultimately, the court found Rosenfeld in direct contempt and removed him as mother’s attorney.

Rosenfeld filed a motion for reconsideration, and the judge recused herself. The case was assigned to another judge who subsequently denied Rosenfeld’s motion to dismiss the contempt citation and fined him $1,000, to be stayed pending exhaustion of Rosenfeld’s appellate remedies.

On appeal, Rosenfeld argued that the contempt order was unlawful under the Fifth Amendment, and because compliance with the order involved a substantial risk of irreparable harm to mother, he was under no duty to comply, so the order could not sustain a finding of direct contempt. The Fifth Amendment includes a right to the advice of counsel on a question-by-question basis in determining whether to assert one’s privilege against self-incrimination. Because the district court’s order prohibited Rosenfeld from contemporaneously advising his client, it was unlawful under the Fifth Amendment. Further, given mother’s pending criminal action and the uncertainty as to her competency, the order carried a substantial risk of irreparable harm to mother. Therefore, Rosenfeld was under no duty to comply with it. Accordingly, Rosenfeld’s violation of the order could not support a contempt finding.

The order was vacated.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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