BENDER, Justice.
I. Introduction
We review the court of appeals’ decision in Backstreet v. Hopp & Flesch L.L.C., 107 P.3d 1022 (Colo.App.2004), which held that a sheriffs department advisement to its employee, Raquel Backstreet, that any statements she made during an internal civil investigation could not be used against her in subsequent criminal proceedings, constituted a grant of use immunity under the apparent authority doctrine.1 Id. at 1026. The court of appeals overturned the trial court’s ruling on summary judgment. The trial court held it was not malpractice, as a matter of law, for Backstreet’s lawyer, Kevin Flesch, to advise her that any statements she made during the internal investigation would not be protected by the Fifth Amendment of the U.S. Constitution and therefore her statements could be used against her in a pending felony prosecution. Id. at 1024. The court of appeals concluded that whether Flesch breached his duty of care to Backstreet by advising her not to make statements during the investigation was an issue to be resolved by the trier of fact and thus the malpractice claim was improperly dismissed on summary judgment. Id. at 1026.
We undertake two analyses, embodying wholly different legal principles, to determine if the trial court’s grant of summary judgment was appropriate: (1) whether the sheriffs department’s non-statutory offer of use immunity to Backstreet was effective under the apparent authority doctrine as the court of appeals held; and, if not, (2) whether Flesch’s advice to Backstreet constituted professional malpractice because the written advisement was sufficiently coercive so that any statements she made to the sheriffs department would violate her Fifth Amendment privilege against self-incrimination and thus be barred from use in later criminal proceedings.
Under these facts, we hold that Backstreet did not rely upon the sheriffs advisement that her statements could not be used in later criminal proceedings. Therefore, the apparent authority test as set forth in People v. Fisher, 657 P.2d 922 (Colo.1983), has not been satisfied. For the apparent authority doctrine to apply, the government official making the offer of immunity must in fact lack authority to grant immunity; and the person to whom the offer is made must rely upon the offer of immunity. Since Backstreet was represented by counsel who advised her that, contrary to the wording of the [1179]*1179sheriffs advisement, any statements she made in the internal investigation could be used against her in a criminal proceeding, she did not rely on the advisement. Thus, we cannot imply use immunity based on the facts here.
We further hold that Flesch did not commit malpractice by advising Backstreet not to participate in the internal investigation because her statements could be used in subsequent criminal proceedings. The sheriffs advisement here, which instructed Backstreet that she could be disciplined or terminated if she did not cooperate with the internal investigation, was ambiguous. As a matter of law, the advisement could reasonably be construed to either satisfy or not satisfy the test of whether testimony is unconstitutionally compelled, as articulated in People v. Sapp, 934 P.2d 1367 (Colo.1997). Thus, by advising Backstreet not to participate in the internal investigation, Flesch did not breach his duty to Backstreet to employ the level, of judgment ordinarily possessed by members of the legal profession. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83 (Colo.1999).
We therefore conclude, as a matter of law, that Flesch’s conduct did not fall below the requisite standard of care that he owed to Backstreet and reverse the decision of the court of appeals. We return this case to that court with directions to remand it to the trial court to dismiss the claim of professional negligence based on the attorney’s advice regarding the sheriffs department employment civil investigation and to comply with the court of appeals’ original remand order regarding petitioner’s other claims.2
II. Facts and Proceedings Below
Backstreet, plaintiff below, was employed by the Arapahoe Country Sheriffs Department as a nurse in the county’s detention center. During the course of her employment, Backstreet made an error in administering medication to an inmate. The inmate sued Arapahoe 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 sheriffs office, Backstreet, who was not then represented by counsel, 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 official misconduct. The sheriffs office changed her status to suspension without pay. Backstreet then hired the law firm of Hopp & Flesch, L.L.C. and attorney Kevin Flesch, defendants below, to defend her in the criminal case.3 Flesch also represented her in the ongoing sheriffs office internal investigation. A month later, a county official asked Backstreet to participate in an internal affairs interview as part of that investigation. However, when the sheriffs office informed Flesch that he could not be present during internal affairs interviews, he advised Backstreet not to participate.
The sheriffs office attempted several more times to schedule an internal affairs interview with Backstreet. In the course of doing so, the sheriffs 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 provided, in pertinent part:
You are entitled to all rights and privileges guaranteed by the laws and the Constitution of this State and the Constitution of [1180]*1180the United States, including the right not to be compelled to incriminate yourself in a criminal matter, however, this is not a criminal investigation. I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to administrative charges which could result in your dismissal from the Sheriffs Office. If you do answer, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding.
(Emphasis added.) The advisement was accompanied by a letter informing Backstreet that any “information obtained during the internal affairs interview cannot be used in the criminal investigation,” citing Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Sapp, 934 P.2d 1367, and including a copy of Garrity ,4
Despite the assertions contained in the sheriffs advisement, Flesch advised Backstreet not to participate in any internal affairs interviews. Flesch reasoned that, under applicable ease law, Backstreet’s statements would not be deemed to be compelled by the state and would therefore not be protected under her Fifth Amendment privilege against self-incrimination. Hence, the statements could then be used against her in criminal proceedings. Relying on Flesch’s advice, Backstreet again declined to take part in any internal affairs interviews.
The state eventually dismissed the pending felony charges against Backstreet. Still on administrative leave without pay, Backstreet retained another attorney to represent her for the remainder of the sheriffs office internal investigation. Backstreet was then recommended for termination due to her refusal to cooperate in the internal investigation. She was eventually reinstated with back pay after an administrative hearing, but was required to forfeit thirty days of back pay for refusing to cooperate with the internal affairs investigation.
Backstreet then 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 received use immunity through the sheriffs advisement. Flesch moved for dismissal and summary judgment, arguing that his advice did not fall below the requisite standard of care as a matter of law.
Treating Flesch’s motion as a request for determination of a question of law under C.R.C.P. 56(h), the trial court concluded that, as a matter of law, Flesch’s advice to Backstreet that she should not participate in the interview did not fall below a minimum standard of care. In reaching that decision, the trial court found that, under Colorado case law, the sheriffs advisement regarding the internal affairs interview did not rise to the level of coercion to cooperate sufficient to violate Backstreet’s Fifth Amendment privilege against compelled self-incrimination. In a subsequent order, the trial court granted the motion for summary judgment as to all of Backstreet’s claims.
On appeal, Backstreet contended that the trial court erred in its ruling as a matter of law that statements made to her employer, the sheriffs office, during the internal investigation could be used later in the pending criminal proceeding. The court of appeals held that, because the sheriffs office had apparent authority to make a binding promise of immunity, the sheriffs advisement constituted an enforceable offer of use immunity to Backstreet. Backstreet, 107 P.3d at 1026. That court then concluded that whether Flesch’s advice breached a duty of care to his client under such circumstances is a matter to be decided by a trier of fact and therefore inappropriate for resolution on summary judgment. Id.
III. Analysis
We review an entry of summary judgment based on a determination of a question [1181]*1181of law under C.R.C.P. 56(h) de novo. West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.2002).
This is a ease about legal malpractice. The central question we must address is whether any legal theory sustains the claim that Fleseh committed malpractice by advising Backstreet that any statements she made during the internal investigation would not be protected under the Fifth Amendment and could therefore be used against her in a criminal proceeding. However, the court of appeals did not reach a malpractice analysis because it construed the sheriffs advisement used in this ease as a binding grant of use immunity under the apparent authority doctrine. Thus, before considering the malpractice claim, we first examine the principles underlying immunity and self-incrimination and then address apparent authority.
A. The Fifth Amendment Privilege Against Self-Incrimination
The Fifth Amendment of the U.S. Constitution, which applies to the states through the Due Process Clause of the Fourteenth Amendment, guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amends. V, XIV, § 1; Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In addition to protecting a person from being required to testify against herself in a criminal trial, the Fifth Amendment privilege against self-incrimination also allows her to refuse to answer questions in any type of proceeding where her answers might incriminate her in later criminal proceedings. E.g., Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The privilege is generally not automatically invoked, meaning if one “desires the protection of the privilege, he must claim it or he will not be considered to have been ‘compelled’ within the meaning of the Amendment.” Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943)).
However, the Supreme Court has recognized exceptions to the general rule that the Fifth Amendment privilege against self-incrimination is not automatically invoked. One exception to this general rule applies when a suspect gives a confession while in police custody. Id. at 429, 104 S.Ct. 1136. A second exception pertains to situations where one is penalized for invoking the privilege in such a way that precludes the choice to remain silent, thus compelling incriminating testimony. Id. at 434, 104 S.Ct. 1136.
In Garrity v. New Jersey, the Supreme Court addressed how this second exception arises in cases where public employees are questioned by their employers regarding alleged wrongdoing. 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The Court in Garrity held that when an employee is faced with the choice between forfeiting his job or incriminating himself, his decision to make a statement is not born of “free and rational choice.” Id. at 497, 87 S.Ct. 616. Thus, any statements made under such circumstances would be compelled and, under the Fifth Amendment, could not be used in a criminal proceeding.
The Fifth Amendment privilege against self-incrimination as articulated in Garrity, often called “Garrity immunity,” differs from an affirmative grant of use immunity by the state. Garrity immunity is a self-executing invocation of the Fifth Amendment privilege against self-incrimination that is triggered by a public employer’s actions. When a public employee is unconstitutionally coerced into making a statement under threat of job loss, a court must intervene and grant what amounts to use immunity in order to prevent the person’s statements from being used against him in a criminal proceeding in violation of the Fifth Amendment. Hence, while Garrity immunity and state-granted use immunity may produce the same ultimate result in this case — protecting a public employee, here Backstreet, from her statements being used against her in a criminal proceeding — the two are nonetheless grounded in different principles.
The next step in our analysis requires us fo examine the circumstances under which a court can find an offer of use immunity binding on the state, when the offer was made by [1182]*1182a government official who is unauthorized to grant immunity.
B. Non-statutory Immunity
The court of appeals embraced the legal theory that the sheriffs advisement constituted an affirmative offer of use immunity from the sheriffs office to Backstreet, which could be made binding on the state under the apparent authority doctrine — that is, made binding even though the sheriffs office did not have authority to make such an offer under Colorado statute. A Colorado statute sets forth the parameters for offering immunity to witnesses who refuse to testify on the basis of the privilege against self-incrimination. Under the statute, a district attorney, attorney general, or state special prosecutor may request immunity for a witness. § 13-90-118(2), (3), C.R.S. (2005). Officials of the sheriffs department are not listed among those that may request immunity-
However, as the court of appeals correctly noted, an official not listed in section 13-90-118 may make an offer of immunity that can be made binding on the government if that official has apparent authority to make such an offer. Backstreet, 107 P.3d at 1025 (citing People v. Romero, 745 P.2d 1003 (Colo.1987)). In the context of unreasonable search and seizure, we explained that “apparent authority is not authority at all, but merely the appearance of authority.” Petersen v. People, 939 P.2d 824, 830 (Colo.1997). Thus, under the apparent authority doctrine, although the sheriffs office was not authorized to offer Backstreet use immunity, a court can impose a valid grant of use immunity under certain circumstances. Nevertheless, we disagree with the court of appeals’ conclusion that the facts in this case meet the requirements of the apparent authority doctrine.
In People v. Fisher, this court set forth the criteria for determining whether a person accused of criminal conduct may enforce an offer of immunity by an official not listed in section 13-90-118. 657 P.2d 922 (Colo.1983). To assess whether such an offer of immunity is binding, three inquiries must be made: (1) whether the defendant’s privilege against self-incrimination is implicated; (2) whether the defendant “reasonably and detrimentally relied upon [the government official’s] promise by performing his side of the bargain;” and (3) whether a “remedy short of actual enforcement [of the promise] would ... approximate fundamental fairness.” Id. at 927-28.
In assessing whether the circumstances of this case meet the Fisher test, the court of appeals relied on previous decisions of this court — Romero, 745 P.2d 1003; People v. Manning, 672 P.2d 499 (Colo.1983); and Fisher, 657 P.2d 922. The court of appeals concluded that the sheriff’s department in this case was like the government officials in those cases, who had made offers of use immunity that could be found binding under the apparent authority doctrine. Backstreet, 107 P.3d at 1026. However, the cases cited by the court of appeals are distinguishable from this case and we deem them inapposite.
The circumstances in each of those cases met all the Fisher requirements, specifically the second requirement of detrimental reliance. Fisher was represented by counsel, but his lawyer was not present at the time government officials promised that his statements would not be used in subsequent criminal prosecutions. Neither Romero nor Manning was represented by counsel at the time government officials offered them immunity. Consequently, Fisher, Romero, and Manning made statements detrimentally relying upon those promises. Had the defendants in those cases been assisted by counsel and been advised that those officials did not have statutory authority to offer binding immunity, they could not have relied on the offers.5 Thus, a finding of use immunity under the apparent authority doctrine could only apply in a con[1183]*1183text, unlike this ease, in which a defendant was not assisted by counsel.
Because Backstreet was advised by Flesch regarding the sheriffs office’s promise that any statements she made during the internal investigation would not be used in a criminal proceeding, apparent authority cannot apply here. In effect, Flesch counseled Backstreet not to participate in the internal investigation because the sheriffs advisement was insufficient to prevent her statements from being used in criminal proceedings. Based upon that advice, Backstreet chose not to rely at all on the promise of the sheriffs office; consequently she could not meet the requirement of the second Fisher factor. Thus we conclude that, based on a Fisher analysis, the court of appeals erred in determining that the sheriffs advisement could be transformed into use immunity under the apparent authority doctrine.6
C. Professional Negligence
Having eliminated the theory of apparent authority to support the result reached by the court of appeals that the grant of summary judgment against the plaintiff was improper, we now return to the issue of malpractice. If the wording contained in the sheriffs advisement is sufficiently' coercive under federal constitutional law, as interpreted by this court in People v. Sapp, to trigger Backstreet’s Fifth Amendment privilege against self-incrimination, then Flesch could have committed malpractice by advising Backstreet that it was not.
To establish a legal malpractice claim, the plaintiff must show her attorney was negligent by proving three elements: (1) the attorney owed a duty of care to the client; (2) the attorney breached that duty; and (3) by breaching his duty, the attorney proximately caused damage to the client. Stone v. Satriana, 41 P.3d 705, 712 (Colo. 2002). Our analysis focuses on the second element — the duty owed by Flesch to his client, Backstreet.
An attorney owes his client a duty “to employ that degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession in carrying out the services for his client.” Bebo Constr. Co., 990 P.2d at 83. We have noted that, in determining whether a lawyer has exercised judgment ordinarily possessed by members of his profession, the relevant focus is on what a lawyer would have done at the time, excluding “the benefit of hindsight.” Stone, 41 P.3d at 712. To analyze Fleseh’s judgment in this case, we must first explore the constitutional principles underlying his advice to Backstreet.
Under Garrity, if the sheriffs office compelled Backstreet’s participation in the internal investigation through threat of discharge, any statements she made would have been inadmissible in a later criminal proceeding as a violation of her Fifth Amendment privilege against self-incrimination. Therefore, the analysis of the malpractice issue turns upon the question examined by the trial court — whether the sheriffs advisement was adequate to trigger Backstreet’s Fifth Amendment privilege against self-incrimination under Garrity. Stated another way, the question we must address is whether the advisement was sufficiently coercive to create an objectively reasonable fear that she would be fired if she did not cooperate with the sheriffs office investigation.
This court applied Garrity in Sapp, 934 P.2d 1367. In Sapp, officials wished to question police officers as part of an internal investigation of alleged misconduct. Id. at 1368-69. After giving state-[1184]*1184raents during the investigation, the officers faced criminal charges based on those statements. Id. at 1369. The officers sought to have the statements suppressed in the criminal proceeding, arguing that they were improperly compelled to give the information in violation of their Fifth Amendment privilege against self-incrimination. Id. In determining whether the statements were in fact compelled, and therefore inadmissible in the criminal trials, this court in Sapp adopted the two-prong test articulated in United States v. Friedrick, 842 F.2d 382 (D.C.Cir.1988). Under the test, “statements are compelled by threat of discharge from employment where: (1) a person subjectively believes that he will be fired for asserting the Fifth Amendment privilege, and (2) that belief is objectively reasonable under the circumstances.” Sapp, 934 P.2d at 1373. Whether an employee’s subjective belief that he will be terminated for asserting his Fifth Amendment privilege is objectively reasonable under the circumstances is a question of law. Id. To be objectively reasonable, the belief must result from significant coercive action of the state, which in turn must be “more coercive than that resulting from the general obligation imposed on a witness to give truthful testimony.” Id.
Applying Sapp, we reason that whether the sheriffs advisement in this case was sufficiently coercive to trigger Backstreet’s privilege against self-incrimination is subject to differing legal conclusions. It is not clear that the sheriffs advisement in this case, which informed Backstreet that she could be fired, reaches the level of “significant coercive action of the state” required by Sapp. 934 P.2d at 1373. The trial court found it did not, absent a direct threat or rule mandating termination for noncooperation.
However, the Sapp test is not formulated for cases in which there is a clear threat of mandatory termination. The analysis is devised for the type of circumstances this case presents — those that are ambiguous as to whether they present a threat of job loss significant enough to be considered improper compulsion in violation of the Fifth Amendment privilege against self-incrimination. We stated in Sapp that the government must play a “significant role in creating the impression that [an employee] might be discharged for asserting the privilege.” 934 P.2d at 1374 (emphasis added). If a government employer informed its employee that she would definitively be terminated for invoking her Fifth Amendment privilege, then there would be no need to engage in the two-prong Sapp test. There would be no question that the employee subjectively believed she would lose her job, and that her belief was objectively reasonable. But where the government creates an impression that the employee might be fired, here by use of the phrase “could result in your dismissal,” a Sapp analysis is necessary to determine whether the level of compulsion was unconstitutional.
The sheriffs advisement in this case is sufficiently ambiguous so that reasonable minds could differ on what result a court would reach under a Sapp analysis. The advisement states that Backstreet could be terminated for not cooperating with the internal investigation, not that she would definitely be terminated. Thus, this ambiguous sheriffs advisement, as a matter of law, can be interpreted under Sapp to lead to either conclusion: that the advisement was either inadequate or adequate to clothe Backstreet with the protective cloak of the Fifth Amendment privilege. Because our analysis occurs in the context of summary judgment granted in an attorney malpractice case, we do not decide at this time which interpretation is appropriate. We leave that for another day and now turn to an analysis of the duty of care owed by Flesch, the attorney, to his client, Backstreet.
IV. Application
We now apply the principles just discussed to the issue of whether Flesch committed malpractice by advising Backstreet that her statements would not be protected under the Fifth Amendment and could therefore be used against her in a criminal proceeding.
We note that where, as here, an employee is facing felony charges in addition to workplace sanctions, her attorney may be faced with a choice between protecting his client from one or the other. In this case, defense [1185]*1185lawyer Fleseh 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. 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.7
Therefore, because this particular sheriffs advisement could be construed to both meet and not meet the Sapp test, and because Fleseh was clearly acting within the requisite standard of care owed to his client Backstreet, malpractice cannot occur.
Y. 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 to dismiss the claim of professional negligence based on the attorney’s advice regarding the sheriffs department employment civil investigation and to comply with the court of appeals’ original remand order regarding petitioner’s other claims.
Justice COATS dissents.