dissenting.
Although I too believe the court of appeals’ reliance on our due process/promissory es-toppel 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 Backstreet’s attorney failed to appreciate, and therefore failed to properly advise his client of, the effect of the sheriffs “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, 87 S.Ct. 616, 17 L.Ed.2d 562 (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, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), Garrity itself was clearly decided as a matter of due process, Garrity, 385 U.S. at 499-500, 87 S.Ct. 616; accord id. at 506-510, 87 S.Ct. 616 (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 *1186made by a law enforcement agency, whether the information sought by the sheriffs department would have been demanded of Backstreet 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 1184. 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 [his] dismissal.” I not only find this distinction unconvincing, but also completely devoid of support in the prior holdings of this or other jurisdictions, and in direct conflict with both the rationale of and specific advisement in Garrity itself.
In Garrity, the Supreme Court made clear that the appellant’s statements were deprived of their voluntary character by a warning that if he exercised his privilege to refuse to answer, “he would be subject to removal from office.” Garrity, 385 U.S. at 494, 87 S.Ct. 616; see also id. at 505 n. 1, 87 S.Ct. 616 (Harlan, J., dissenting) (“The warning given to Chief Garrity is typical.... ‘[Y]ou, as a police officer under the laws of our state, may be subjected to a proceeding to have you removed from office if you refuse .... ’ ”). As in Garrity, the warning given Backstreet informed her that if she refused to testify or answer questions, she would be subject to administrative charges and that those charges could result in her dismissal. Nowhere did Garrity, or any other pronouncement of the Court, suggest that an employee’s free choice would not be imper-missibly burdened by such a threat, merely because it fails to mandate discharge as an automatic consequence of refusing to speak.
We, along with a number of other jurisdictions, have previously held that an employee’s subjective fear of being fired for failing to cooperate is not sufficient to support an objectively reasonable expectation of discharge. People v. Sapp, 934 P.2d 1367, 1373 (Colo.1997); e.g., United States v. Friedrick, 842 F.2d 382, 396 (D.C.Cir.1988). Rather, we held, “[t]he state must have played a significant role in creating the impression that [the employee] might be discharged for asserting the privilege .... ” Sapp, 934 P.2d at 1374 (emphasis added). We concluded merely that in order to be significant, the state’s role in creating such beliefs must have been more coercive than the requirement that a witness testify truthfully. Id. Neither this court nor the Supreme Court, however, has ever suggested that the right to refuse is impermissibly burdened only by a promise of discharge, as distinguished from a mere threat of discharge, no matter how directly linked to a refusal to cooperate.
I therefore consider it clear that the sheriffs “Garrity advisement” in this case was not only designed for the express purpose of, but would actually have had the effect of, rendering any statements made by Backstreet to the sheriffs investigator (and any evidence derived from them) involuntary and inadmissible in a subsequent criminal proceeding.1 While I can appreciate counsel’s dilemma in advising a client about the risks and potential consequences of criminal prosecution despite such a warning, he is nevertheless not relieved of making a reasonable assessment of the law and assisting his client to choose among uncertain outcomes.
Even the majority is unwilling to say that Backstreet’s counsel properly advised her about the effect of the advisement. It apparently holds merely that in light of the uncertainties, and the corresponding seriousness of a felony conviction, counsel’s advice to his client that her statements could still be used against her in a criminal proceeding could not amount to malpractice. While I do not *1187suggest that advising non-cooperation was malpractice, it is clear to me that counsel’s advice, and failure to clarify any uncertainties in favor of his client, were based on a misunderstanding of the law. The question whether this course of action amounted to a failure to employ the degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession was not properly resolved by the trial court because of its similar misunderstanding of the law. Because I do not believe the matter is resolvable, as a matter of law, on the record before us, I would remand for further proceedings.
I therefore respectfully dissent.
. It is less clear to me that the advisement’s prediction about its legal effect amounted to a promise of immunity, sufficient to permit discharge upon Backstreet's refusal. See Lefkowitz, 414 U.S. at 80-81, 94 S.Ct. 316 (citing Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968) and Uniformed Sanitation Men Ass'n., Inc. v. Sanitation Comm’r, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968)).