in Interest of K.S-E

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 8, 2021

2021COA93

No. 19CA1948, People in Interest of K.S-E. — Constitutional
Law — Fifth Amendment — Right Against Self-Incrimination

A division of the court of appeals concludes, as a matter of

first impression, that the Fifth Amendment guarantees a testifying

witness the contemporaneous advice of counsel — on a question-

by-question basis — in determining whether to invoke the privilege

against self-incrimination. The division further concludes that the

violation of a court order unlawfully prohibiting such advice could

not sustain a finding of contempt where compliance with the order

carried a substantial risk of irreparable harm.
COLORADO COURT OF APPEALS 2021COA93

Court of Appeals No. 19CA1948
Arapahoe County District Court No. 18JV969
Honorable Natalie T. Chase, Judge
Honorable Sheila A. Rappaport, Judge

The People of the State of Colorado,

Appellee,

In the Interest of K.S-E., a Child,

and Concerning Alan Rosenfeld,

Attorney-Appellant.

ORDER VACATED

Division III
Opinion by JUDGE TAUBMAN*
Furman and Gomez, JJ., concur

Announced July 8, 2021

Philip J. Weiser, Attorney General, Leeann Morrill, First Assistant Attorney
General, Denver, Colorado, for Appellee

Kilmer, Lane & Newman, LLP, David A. Lane, Liana Gerstle Orshan, Denver,
Colorado, for Attorney-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Alan Rosenfeld, an attorney licensed to practice law in

Colorado, appeals the district court’s order holding him in direct

contempt for conduct during his representation of S.S. (mother) in a

dependency and neglect proceeding.

¶2 To resolve this appeal, we must examine the lawfulness of a

court order implicating mother’s Fifth Amendment rights, the

violation of which gave rise to Rosenfeld’s contempt citation.

Specifically, we are asked to determine, as a matter of first

impression, whether the court could lawfully prohibit Rosenfeld

from contemporaneously advising mother, on a question-by-

question basis, to invoke her privilege against self-incrimination as

she was testifying. Because we conclude that the Fifth

Amendment’s concomitant right to advice of counsel encompasses

contemporaneous advice, we conclude that Rosenfeld was entitled

to advise mother about her Fifth Amendment rights on a question-

by-question basis.

¶3 Moreover, applying the exception from Maness v. Meyers, 419

U.S. 449 (1975), for the first time in Colorado, we conclude that the

risk of irreparable harm from the court’s unlawful order was

sufficient to excuse Rosenfeld’s noncompliance. Accordingly, we

1
vacate the district court’s order holding Rosenfeld in direct

contempt and its imposition of punitive sanctions.

I. Background

¶4 Mother retained Rosenfeld to represent her in Arapahoe

County District Court Case No. 18JV969, a dependency and neglect

proceeding involving her child, K.S-E.

¶5 On January 24, 2019, before trial, the People and the

guardian ad litem (GAL) appointed to represent K.S-E.’s interests

filed a joint motion seeking the appointment of a GAL to represent

mother’s interests. As grounds therefor, they alleged that mother

was not competent to understand the proceedings. Mother opposed

the motion.

¶6 On January 31, 2019, the district court judge, Judge Natalie

Chase, conducted a pretrial readiness conference with the parties

and counsel. That same day, Rosenfeld filed a motion in limine to

exclude “any mention in front of the jury in this matter of pending

criminal charges against the mother,” which arose from an incident

in which mother allegedly kidnapped K.S-E.

¶7 At the pretrial conference, the district court addressed the

joint motion to appoint a GAL to represent mother’s interests, for

2
which it decided to conduct and on-the-spot “Sorensen-type

hearing.”1 The People called mother as a witness. Before beginning

direct examination, the People informed the court that mother “has

a pending criminal action that’s attendant to these proceedings and

the factual allegations overlap” and asked that she be advised about

her Fifth Amendment rights. The court agreed and gave a “full

advisement” to mother.

¶8 Following the advisement, the People and the child’s GAL

asserted that Rosenfeld should not be allowed to “stand up and

invoke [the Fifth Amendment] on [mother’s] behalf.” Rosenfeld

responded that “I will stand up and advise her to invoke,” to which

the court responded, “No” and “I don’t think you get to do that.”

¶9 The People then began direct examination, during which the

following exchanges occurred:

1The court appears to have been referencing In re Marriage of
Sorensen, 166 P.3d 254 (Colo. App. 2007). There, a division of this
court held that, in a dissolution of marriage action, where “a factual
question clearly existed whether wife was competent and could
adequately direct counsel or otherwise understand the nature of the
proceedings,” “an evidentiary hearing [was] required to determine
whether wife met the standard under People in Interest of M.M.[, 726
P.2d 1108, 1120 (Colo. 1986),] and, thus, whether she needed a
guardian ad litem to act as her fiduciary.” Sorensen, 166 P.3d at
258.

3
[The People]: So why did you run with [K.S-E.]?

[Rosenfeld]: Objection. I will advise her to —

[The Court]: Sit down.

[Rosenfeld]: — (indiscernible) Fifth Amendment
right.

[The Court]: You — I already told you you don’t
get to do that. She makes the determination.

[Rosenfeld]: And I get to advise her when it’s
appropriate. I will.

....

[The People]: And what information did you
have during that period that led you to believe
that you needed to take her?

[Rosenfeld]: Objection, again. I’d advise my
client to waive — to exercise her —

[The Court]: If you keep —

[Rosenfeld]: — Fifth Amendment right.

[The Court]: — doing this, I’m going to hold
you in direct contempt. I — it is her voluntary
decision.

[Mother]: I —

[Rosenfeld]: Your honor, you may — and I
don’t want — I’m not asking you to, but I
understand what your — what your position
is. But I have a responsibility to my client,
and she has a right to be advised when there
are questions.

4
[The Court]: You had the opportunity to advise
her out in the hall about this. You don’t get to
interrupt during every question, period.

[Rosenfeld]: Only questions that implicate the
Fifth Amendment, Your Honor.

[The Court]: Sir, you do not — you show me
case law for a civil proceeding that you get to
interrupt when you believe it’s appropriate to
tell her. I’m not aware of any. Do you have
any? I’m speaking to you.

....

[Rosenfeld]: Sure. I do not have the case law
in front of me right now. But I am absolutely
certain in my profession[al] [responsibility] and
my obligation to — to give her that advice on a
question-by-question basis.

....

[The Court]: You had the opportunity to advise
her out in the hall. Would you like another
one?

[Rosenfeld]: Sure.

[The Court]: All right. You may advise her out
in the hall, but that’s it, period. Go ahead.

¶ 10 After a short recess, and before the People resumed their

examination of mother, the court reiterated its order:

[The Court]: So, I’m going to go with the
original, like, here’s the deal though. You
don’t get to stand up and say, “I’m advising her
to take the Fifth.” She’s been out — out in the

5
hall with you multiple times today. It will be
her decision and it will be a voluntary decision
if she’s going to answer the question. Per
question. Okay?

¶ 11 During the remainder of direct examination, mother invoked

her Fifth Amendment privilege against self-incrimination in

response to several questions without Rosenfeld verbally advising

her to do so. After cross and redirect examination, but while

mother was still on the witness stand, the court asked mother: “Did

your counsel advise you out in the hall that he would knock on the

table for you [to invoke your] Fifth Amendment right, to plead the

Fifth.” Rosenfeld objected on the basis of attorney-client privilege,

and mother responded by stating “[a]ttorney-client privilege.” The

following exchange then occurred:

[The Court]: So, Mr. Rosenfeld, why is that you
have been knocking on the table every time
she’s pled the Fifth?

....

[Rosenfeld]: Actually, Your Honor, there have
been sometimes that I’ve knocked on the table
and she hasn’t pled the Fifth. So, I don’t agree
with your premise.

[The Court]: So, you’re going to say that every
time that she pled the Fifth, you didn’t knock?
’Cause I heard it.

6
[Rosenfeld]: Oh, no, that’s just — that — that
— that’s a different question. I was saying
that there have been — there have been times
in this short proceeding when I either knocked
or put my hand on the table and — and she
did not plead the Fifth Amendment.

[The Court]: As an officer of the court, and you
knew this court’s orders with regards to the
Fifth, did you instruct her that you would
knock on the table as an advisement to plead
the Fifth? Yes or no? It’s simple. Yes or no?

[Rosenfeld]: Well, that directly implicates
attorney-client communication. So, I don’t
believe I can answer that, Your Honor.

[The Court]: Okay. If you want me to go down
that path, then I can hold you in contempt
based on what I saw. Yes? No?

[Rosenfeld]: Are you asking me to —

[The Court]: I’m going to hold a negative
inference on what you’re saying to me right
now. And I will hold you in — in direct
contempt. Are we clear? It —

[Rosenfeld]: Yes, you’re clear.

[The Court]: — a knocking is not
communication. It is advising her when I
directly told you you cannot do that, in a
different form for each and every question. I
directly told you that.

¶ 12 After another short recess, the court informed the parties that

“[w]e’re going to proceed right now forthwith with direct contempt

7
whether it happened or not.” The court characterized its earlier

order as directing Rosenfeld “not to stand or give any

communication to [mother] — on whether she was going to plead

the Fifth or not.” The court and Rosenfeld then had a lengthy

discussion about whether his knocking violated the court’s earlier

order. Rosenfeld expressed some confusion as to the scope of the

order, stating that he was under the impression he had only been

ordered not to stand and object on Fifth Amendment grounds.

However, he acknowledged that he was, “in a variety of forms,

sometimes trying to get her attention . . . [and] [t]rying to protect

her Fifth Amendment rights and advise her about whether or not

the questions were potentially in violation of her Fifth Amendment

[rights].”

¶ 13 Ultimately, the court found Rosenfeld in direct contempt for

violating its order:

She’s on the witness stand. You don’t get to
tell her what to say or not to say. That’s the
whole point of why I issued the order. And if
you had confusions as to the order, you should
have addressed it instead of trying to be
sneaky behind this Court’s back, which is
exactly what you just admitted to. You and
your actions, this Court is finding is so
extreme that this is absolutely something this

8
Court would never expect from any lawful
attorney practicing law in this court or any
other court. And that this Court warned you.
And I don’t even need to warn you now, you’ve
admitted to it, that your conduct is so offensive
to the authority and dignity of this Court that I
have no choice but to find you in direct
contempt. To think that just because I said no
standing up — if that’s what I really said —
you don’t get to advise her, you know the
intent. You were trying to be sneaky behind
this Court’s back, but I caught on. And that’s
not okay.

¶ 14 When the hearing on the joint motion to appoint a GAL for

mother resumed, the court noted, “I held Mr. Rosenfeld in direct

contempt” and listed several concerns about allowing him to

continue to represent mother. The court ultimately removed

Rosenfeld as the attorney for mother and ordered him to appear on

February 7, 2019, for sentencing on the direct contempt finding.

¶ 15 The day before the sentencing hearing, Rosenfeld filed a

motion to reconsider the contempt finding on the ground that the

court’s order prohibiting him from contemporaneously advising his

client was unlawful. He also requested that Judge Chase recuse

herself from the contempt proceedings. Judge Chase continued the

sentencing hearing to March 7, 2019, at which point she denied

Rosenfeld’s motion to reconsider her finding of direct contempt.

9
However, she recused herself from any further involvement, and the

case was assigned to Judge Sheila Rappaport.

¶ 16 Rosenfeld then filed a motion to dismiss the contempt citation,

largely raising the same arguments as in his earlier motion for

reconsideration. At a hearing on July 30, 2019, Judge Rappaport

denied the motion and set a sentencing hearing for October 3,

2019. At the October hearing, Judge Rappaport imposed a $1,000

fine against Rosenfeld, which she stayed pending exhaustion of

Rosenfeld’s appellate remedies.

¶ 17 Rosenfeld now appeals the court’s order holding him in

contempt and its imposition of punitive sanctions.

II. Standard of Review

¶ 18 “A finding of contempt is within the trial court’s sound

discretion and may not be reversed absent an abuse of that

discretion.” People ex rel. State Eng’r v. Sease, 2018 CO 91, ¶ 24,

429 P.3d 1205, 1211. A district court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, or unfair or is

contrary to law. Id.; Sos v. Roaring Fork Transp. Auth., 2017 COA

142, ¶ 48, ___ P.3d ___, ___. However, the lawfulness of a district

court’s order — the violation of which may give rise to a finding of

10
contempt — is subject to de novo review. See Hartsel Springs Ranch

of Colo., Inc. v. Cross Slash Ranch, LLC, 179 P.3d 237, 239 (Colo.

App. 2007) (In an appeal from a contempt citation, “we review the

trial court’s . . . legal conclusions de novo.”); White v. Adamek, 907

P.2d 735, 737-38 (Colo. App. 1995) (reviewing de novo whether a

district court’s order, violated by the defendant, was lawful).

III. Applicable Law and Analysis

¶ 19 As an initial matter, we note that the parties espouse opposing

views as to the scope of the court’s order. Rosenfeld construes the

order as having prohibited him only from standing and objecting on

Fifth Amendment grounds. The district court, however, maintains

on appeal that the order prohibited any attempt to advise mother to

invoke her privilege against self-incrimination on a question-by-

question basis. Though Judge Chase later clarified that she

intended the latter, the record indicates that her initial order did

not expressly preclude Rosenfeld from knocking on the table or

otherwise communicating with mother.

¶ 20 The lack of clarity in the court’s order raises the question of

whether it unambiguously prohibited Rosenfeld’s conduct. See

Hartsel Springs Ranch of Colo., Inc., 179 P.3d at 239 (“Generally,

11
there can be no contempt unless an order or decree requires a party

to do, or refrain from doing, some specific act.”). However,

Rosenfeld only points out the order’s potential ambiguity to suggest

that punitive sanctions were improper because he did not willfully

violate the order. See In re Marriage of Cyr, 186 P.3d 88, 92 (Colo.

App. 2008) (“Punitive sanctions for contempt must be supported by

findings of fact establishing beyond a reasonable doubt . . . the

contemnor’s willful refusal to comply with the order.”). Because we

do not reach the issue of whether Rosenfeld’s alleged violation was

willful, we do not address the potential ambiguity of the court’s

order. Accordingly, though the issue is not free from doubt, we will

assume that the order was broad enough to prohibit Rosenfeld from

contemporaneously advising mother on a question-by-question

basis.

¶ 21 To the extent the court’s order prohibited such conduct,

Rosenfeld contends that the order was unlawful under the Fifth

Amendment. He further contends that because compliance with

the order carried a substantial risk of irreparable harm to mother,

he was under no duty to comply. Thus, he argues, his violation of

12
the court’s order could not sustain a finding of direct contempt. We

agree.

A. Contempt in General

¶ 22 “[T]he purpose[s] of the contempt power [are] to maintain the

dignity and authority of the court and to preserve its functionality.”

People v. Aleem, 149 P.3d 765, 781 (Colo. 2007). Thus, “[a] court

may hold a party in contempt for any conduct which interferes with

the court’s administration of justice, is derogatory to the dignity of

the court, or tends to bring the judiciary into disrespect.” Id. at

774. As relevant here, such conduct may include a party’s failure

to comply with a court order. See C.R.C.P. 107(a)(1) (defining

contempt as including “disobedience . . . by any person to . . . any

lawful . . . order of the court”); see also Sease, ¶ 37, 429 P.3d at

1213.

¶ 23 “Contempt proceedings are governed by C.R.C.P. 107.” Sease,

¶ 21, 429 P.3d at 1210. The rule distinguishes between two types

of contempt — direct and indirect. “Direct contempt,” the type

involved here, is contempt that “the court has seen or heard and is

so extreme that no warning is necessary or that has been repeated

despite the court’s warning to desist.” C.R.C.P. 107(a)(2). “Indirect

13
contempt” refers to contempt that “occurs out of the direct sight or

hearing of the court.” C.R.C.P. 107(a)(3).

¶ 24 Rule 107 vests the court with the authority to impose remedial

or punitive sanctions on a contemptuous party for certain defined

behavior. See C.R.C.P. 107(a)(4), (5); Aleem, 149 P.3d at 781 (Rule

107 “limits the court’s contempt power by defining the type of

behavior that courts may punish with contempt sanctions.”).

Punitive sanctions — the type imposed against Rosenfeld — “are

criminal in nature and are designed to punish ‘by unconditional

fine, fixed sentence of imprisonment, or both, for conduct that is

found to be offensive to the authority and dignity of the court.’” In

re Marriage of Cyr, 186 P.3d at 91 (quoting C.R.C.P. 107(a)(4)).

B. The Court’s Order Was Unlawful Under the Fifth Amendment

¶ 25 Because, as discussed below, a party may be excused from

compliance with an unlawful order in exceptional circumstances,

we begin by considering Rosenfeld’s contention that the court’s

order was unlawful under the Fifth Amendment.

¶ 26 The Fifth Amendment to the United States Constitution, which

is applicable to the states through the Fourteenth Amendment,

guarantees that no person “shall be compelled in any criminal case

14
to be a witness against himself.” U.S. Const. amend. V; see People

v. Ruch, 2016 CO 35, ¶ 20, 379 P.3d 309, 313. Thus, “[t]he Fifth

Amendment provides a witness with a privilege to decline to answer

questions if the answers would incriminate him or her” in future

criminal proceedings. People v. Smith, 275 P.3d 715, 720 (Colo.

App. 2011); accord Ruch, ¶ 20, 379 P.3d at 313. The privilege

against self-incrimination “can be asserted in any proceeding, civil

or criminal, administrative or judicial, investigatory or

adjudicatory.” Kastigar v. United States, 406 U.S. 441, 444 (1972).

¶ 27 As relevant here, the United States Supreme Court has also

recognized that the Fifth Amendment embraces a concomitant right

to the advice of counsel distinct from that protected by the Sixth

Amendment. Maness, 419 U.S. at 465-66.

¶ 28 In Maness, an attorney was held in contempt in a civil

proceeding solely for advising his client to refuse, on Fifth

Amendment grounds, to comply with a subpoena duces tecum that

sought to compel the client to produce obscene magazines. Id. at

450-55. In reversing the district court’s contempt citation, the

Court observed that

15
[t]he privilege against compelled self-
incrimination would be drained of its meaning
if counsel, being lawfully present, as here,
could be penalized for advising his client in
good faith to assert it. The assertion of a
testimonial privilege, as of many other rights,
often depends upon legal advice from someone
who is trained and skilled in the subject
matter, and who may offer a more objective
opinion. A layman may not be aware of the
precise scope, the nuances, and boundaries of
his Fifth Amendment privilege. It is not a self-
executing mechanism; it can be affirmatively
waived, or lost by not asserting it in a timely
fashion.

Id. at 465-66 (footnotes omitted).

¶ 29 Accordingly, the Court held that “an advocate is not subject to

the penalty of contempt for advising his client, in good faith, to

assert the Fifth Amendment privilege against self-incrimination in

any proceeding embracing the power to compel testimony.” Id. at

468. “To hold otherwise,” it explained, “would deny the

constitutional privilege against self-incrimination the means of its

own implementation. When a witness is so advised the advice

becomes an integral part of the protection accorded the witness by

the Fifth Amendment.” Id.

¶ 30 Thus, the Court acknowledged that the constitutional privilege

against compulsory self-incrimination embraces a witness’s right to

16
the advice of counsel in a civil proceeding. See id. at 470 (Stewart,

J., concurring in the result) (so articulating the court’s holding).

The premise underlying the conclusion that
the constitutional privilege against compulsory
self-incrimination includes the right to the
unfettered advice of counsel in civil
proceedings must be that there is a
constitutional right, also derived from the
privilege against compulsory self-
incrimination, to some advice of counsel
concerning the privilege in the first place.

Id. at 471.

¶ 31 Accordingly, the Fifth Amendment includes a concomitant

right to the advice of counsel in determining whether to assert one’s

privilege against self-incrimination. However, does that right

guarantee a testifying witness the contemporaneous advice of

counsel on a question-by-question basis? This question appears to

be one of first impression in Colorado. Indeed, the Maness Court

left largely undefined the scope of the right and how it operates as a

matter of practical application. However, for the reasons discussed

below, we answer this question in the affirmative.

¶ 32 It is well established that the privilege against self-

incrimination “is an option of a refusal, not a prohibition of

inquiry,” and thus it “may not be asserted as a blanket claim in

17
advance of the questions actually propounded.” Ruch, ¶ 23, 379

P.3d at 313 (quoting People v. Austin, 159 Colo. 445, 450, 412 P.2d

425, 427 (1966)). Rather, as the Colorado Supreme Court has

recognized, “[t]he proper procedure” when invoking the privilege “is

to wait until a question which tends to be incriminating has been

asked and then decline to answer.” Austin, 159 Colo. at 450, 412

P.2d at 427; accord People in Interest of I.O., 713 P.2d 396, 397

(Colo. App. 1985). This is in part because the availability of the

privilege turns on the nature of a particular question and the

exposure that it invites. See, e.g., Rogers v. United States, 340 U.S.

367, 373 (1951) (A witness “cannot invoke the privilege where

response to the specific question in issue . . . would not further

incriminate her.”); Wilson v. United States, 558 A.2d 1135, 1141

(D.C. 1989) (“[A] witness may invoke the privilege only as to those

specific questions to which his answers would incriminate him.”),

overruled on other grounds by Carter v. United States, 684 A.2d 331

(D.C. 1996).

¶ 33 Thus, the determination of whether to invoke the privilege

must be made on a question-by-question basis. Yet, as the Maness

Court explained, a witness cannot be expected to soundly make

18
such a determination absent the advice of counsel — accordingly,

the right to such advice is subsumed within the Fifth Amendment.

See 419 U.S. at 466 (“The assertion of a testimonial privilege . . .

often depends upon legal advice from someone who is trained and

skilled in the subject matter,” as “[a] layman may not be aware of

the precise scope, the nuances, and boundaries of his Fifth

Amendment privilege.”). In fact, where a witness has difficulty

understanding the proceedings, some courts have gone so far as to

suggest that a witness’s attorney may interpose the privilege on the

witness’s behalf on each potentially incriminating question. See

People v. Macias, 44 Colo. App. 203, 207, 616 P.2d 150, 153 (1980)

(The district court did not abuse its discretion where “[t]he court

observed that the witness had difficulty understanding the

questions asked, and, rather than requiring her to decide whether

the questions were self-incriminating, the court allowed her

attorney to interpose the privilege for her.”); see also Garcia-

Quintero v. Gonzales, 455 F.3d 1006, 1019 (9th Cir. 2006) (stating

in dicta that “[u]pon hearing a question put forth by the

Government that he thought triggered the Fifth Amendment,

Garcia-Quintero’s attorney could have objected, or asked to consult

19
with his client”) (footnote omitted), overruled on other grounds by

Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam).

¶ 34 In sum, then, a witness has a Fifth Amendment right to the

advice of counsel in determining whether to invoke the privilege,

but any such determination must necessarily be question-specific.

Thus, it follows that the right must encompass a guarantee to

contemporaneous advice on a question-by-question basis.2 See

Hoffman v. United States, 341 U.S. 479, 486 (1951) (The Fifth

Amendment “must be accorded liberal construction in favor of the

right it was intended to secure.”). Because the district court’s order

here prohibited Rosenfeld from contemporaneously advising his

client, we conclude that the order was unlawful under the Fifth

Amendment.3

2 To the extent the facts of this case implicitly present an ancillary
question as to whether a witness must exercise the right by
requesting advice of counsel or whether an attorney may simply
interpose advice, the parties do not raise the issue. Thus, we do not
address it.
3 Rosenfeld also suggests that the order was unlawful under the

Sixth Amendment. However, as the district court points out on
appeal, the United States Supreme Court clearly held in Perry v.
Leeke that the Sixth Amendment does not afford a witness a
“constitutional right to consult with his lawyer while he is
testifying.” 488 U.S. 272, 281 (1989). Still, Perry concerned only

20
C. Rosenfeld Was Excused From Complying With the Order

¶ 35 Our conclusion as to the unlawfulness of the court’s order,

however, does not end our inquiry. Simply because the district

court’s order was unlawful does not necessarily excuse Rosenfeld’s

noncompliance; a party generally must comply even with an

unlawful order or risk being held in contempt. Indeed,

it is fundamental to our legal system that “all
orders and judgments of courts must be
complied with promptly. If a person to whom a
judge directs an order believes that order is
incorrect the remedy is to appeal, but, absent
a stay, he must comply promptly with the
order pending appeal. Persons who make
private determinations of the law and refuse to
obey an order generally risk criminal contempt
even if the order is ultimately ruled incorrect.”

People v. Coyle, 654 P.2d 815, 820 (Colo. 1982) (quoting Maness,

419 U.S. at 458); see also People v. Jones, 262 P.3d 982, 987 (Colo.

App. 2011) (stating in dicta that a party is “not free to disregard a

ruling she th[inks] to be incorrect: her remedy [is] to appeal after

judgment”). But see C.R.C.P. 107(a)(1) (defining contempt as

the reach of the Sixth Amendment’s right to counsel, not the
concomitant right to advice of counsel under the Fifth Amendment.
Thus, Perry does not affect our analysis of the lawfulness of the
court’s order under the Fifth Amendment.

21
including “disobedience . . . by any person to . . . any lawful . . .

order of the court”) (emphasis added); White, 907 P.2d at 739

(“[T]hat part of the sentencing order . . . was not a lawful order, and

Adamek’s violation of that order cannot support the contempt

finding entered by the trial court.”); see also People v. Voth, 2013

CO 61, ¶ 15, 312 P.3d 144, 148 (“A trial court necessarily abuses

its discretion if its ruling is based on an erroneous view of the

law.”).4

¶ 36 However, in Maness, the Court recognized an exception to that

general rule in the context of the Fifth Amendment:

When a court during trial orders a witness to
reveal information . . . [c]ompliance could
cause irreparable injury because appellate
courts cannot always “unring the bell” once
the information has been released.
Subsequent appellate vindication does not
necessarily have its ordinary consequence of
totally repairing the error. In those situations
we have indicated the person to whom such an
order is directed has an alternative:

“[W]e have consistently held that the necessity
for expedition in the administration of the
criminal law justifies putting one who seeks to
resist the production of desired information to

4Though there appears to be conflicting authority as to whether an
unlawful court order can support a finding of contempt, Rosenfeld
concedes the point.

22
a choice between compliance with a trial
court’s order to produce prior to any review of
that order, and resistance to that order with
the concomitant possibility of an adjudication
of contempt if his claims are rejected on
appeal.”

419 U.S. at 460 (citation omitted).

¶ 37 In other words, if an order is found to be unlawful under the

Fifth Amendment, and if obedience to the order carries with it a

substantial risk of irreparable harm, a party’s failure to comply with

the order cannot support a finding of contempt. See In re Novak,

932 F.2d 1397, 1401-02 (11th Cir. 1991) (the collateral bar rule

ordinarily requiring compliance with an unlawful order is subject to

various exceptions, including when an order “require[s] an

irretrievable surrender of constitutional guarantees”); see also In re

Grand Jury Proceedings, 601 F.2d 162, 169 (5th Cir. 1979)

(contempt order reversed when it infringed on attorney-client

privilege, applying Maness to apply to any order requiring surrender

of rights or privileges that would cause irreparable injury).

¶ 38 To be sure, the case before us is factually distinguishable from

Maness. In Maness, the district court erroneously determined that

the attorney’s client could not assert the privilege against self-

23
incrimination, and thus it sought to compel the production of

incriminating evidence despite the client’s invocation of the

privilege. Here, however, the district court never suggested that

Rosenfeld’s client could not invoke the privilege. Indeed, the record

indicates that mother successfully did so on several occasions

during the competency hearing, albeit on Rosenfeld’s cue. However,

in our view, the risk of irreparable harm to mother was nonetheless

substantial enough to implicate the exception outlined in Maness.

¶ 39 At the outset of the hearing, the People indicated that they

intended to inquire into mother’s pending criminal charges.

Though we question the relevance of such an inquiry to mother’s

competency, the People nonetheless directly questioned mother

about the underlying facts of the pending charges, putting her at

risk of incriminating herself.

¶ 40 The district court posits, however, that any incriminating

testimony given by mother would be inadmissible in a later criminal

prosecution under section 19-3-207, C.R.S. 2020, a statute

intended to limit the admissibility of certain evidence that was

“derived directly from testimony obtained pursuant to compulsory

process in a proceeding under [article 3 of title 19].” § 19-3-207(1).

24
Specifically, the district court directs us to section 19-3-207(3),

which provides that “[n]o admission made by a respondent in open

court or by written pleading filed with the court to a petition in

dependency or neglect may be used against him or her in any

criminal prosecution, except for purposes of impeachment or

rebuttal.” However, in People v. Stroud, 2014 COA 58, ¶ 28, 356

P.3d 903, 909, a division of this court expressly rejected the district

court’s position.

¶ 41 In Stroud, the division examined the scope of section 19-3-

207(3) and concluded that the term “admission” as used in the

provision “only refers to a parent’s formal admission or denial of the

allegations in a petition.” Stroud, ¶ 27, 356 P.3d at 909. Therefore,

it reasoned, section 19-3-207(3) does not preclude a trial court “in a

subsequent criminal case” from “admit[ting] statements — i.e.,

testimony — made during a contested dependency and neglect

adjudicatory or termination of parental rights hearing.” Stroud,

¶ 28, 356 P.3d at 909. And in any event, even under the district

court’s interpretation of section 19-3-207(3), mother’s testimony

25
could have been used against her in her criminal trial for purposes

of impeachment or rebuttal. See § 19-3-207(3).5

¶ 42 Thus, contrary to the district court’s position, no state statute

or rule guarantees a privilege or assures that mother’s testimony at

the hearing would be inadmissible in a later criminal prosecution.

¶ 43 Moreover, compounding the risk of harm to mother was the

apparent uncertainty as to her competency. In their joint motion to

appoint a GAL for mother, the People and the GAL appointed to

K.S-E. claimed that mother “appears confused about the

proceedings, her rights, and her options. She appears unable to

advocate for herself or her best interests. The [County]

Caseworkers and the GAL have significant concerns about Mother’s

ability to comprehend these proceedings, given her current mental

health status.” The motion ultimately alleged that “Respondent

Mother is incapable of effectively participating in an adjudication

proceeding and thus in need of a fiduciary representative.”

5 We note that it is unclear whether section 19-3-207(3), C.R.S.
2020, applies to statements made at a Sorensen hearing and
therefore express no opinion on the issue.

26
¶ 44 Given that the People had called her competency into

question, there was reason to doubt whether mother would be able

to effectively assert the privilege without the contemporaneous

advice of counsel, even though the court had advised her of her

Fifth Amendment rights. Indeed, as the Maness Court observed,

even where a witness’s competency is not in doubt, the guidance of

counsel is ordinarily required to enable an individual to effectively

avoid prejudice to the invocation of his or her Fifth Amendment

privilege. 419 U.S. at 465-66.

¶ 45 In sum, then, there was a distinct risk that (1) any

incriminating information mother offered in her testimony would

later be used against her and (2) she would be unable to effectively

assert her privilege against self-incrimination without the

contemporaneous advice of counsel. Presented with those risks,

Rosenfeld was faced with a dilemma: comply with the district

court’s unlawful order at the risk of mother incriminating herself or

disobey the order at his own risk of a contempt citation. Rosenfeld

chose the latter option, prioritizing his client’s interests over his

own. Ultimately, we conclude that Rosenfeld’s choice was not

merely principled, but legally justified. Because compliance with

27
the court’s unlawful order carried a substantial risk of irreparable

harm to mother, we conclude that Rosenfeld was under no duty to

comply with it. See id. at 460. Accordingly, Rosenfeld’s violation of

the order could not support a finding of contempt. We therefore

vacate the court’s order holding Rosenfeld in contempt and its

imposition of punitive sanctions. See Jones, 262 P.3d at 991

(vacating a contempt order is the appropriate remedy).6

IV. Conclusion

¶ 46 The order is vacated.

JUDGE FURMAN and JUDGE GOMEZ concur.

6 Having vacated the court’s contempt order, we need not address
Rosenfeld’s alternative argument that he was excused from
compliance with the court’s unlawful order because it was
“transparently invalid,” a theory rooted in federal law that has yet to
be applied in Colorado. Nor must we reach his remaining
contentions that there was insufficient evidence to support a
contempt finding or that he was not afforded adequate due process.

28