A former Arapahoe County judge who resigned this spring for misconduct unlawfully directed an attorney not to advise his client about her constitutional rights, the Court of Appeals decided on Thursday.

A three-judge panel for the court determined that Alan Rosenfeld was allowed to give advice to his client, a mother participating in child welfare proceedings, about her Fifth Amendment right against self-incrimination while she was being questioned. District Court Judge Natalie T. Chase not only prohibited Rosenfeld from doing so, but held him in contempt of court after he refused to disclose his private conversations with his client.

“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,” wrote Judge Daniel M. Taubman in the panel’s July 8 opinion. “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.”

The ruling was yet another rebuke to Chase, who the state Supreme Court censured in April and accepted her resignation after she admitted to using the N-word in front of court employees and directed her staff to perform non-work-related duties, among other incidents.

David Lane, a partner at the firm Killmer, Lane & Newman who represented Rosenfeld before the appellate panel, called Rosenfeld courageous for committing to the defense of his client.

“The Colorado Court of Appeals sent a clear message to defense attorneys who confront similarly authoritarian judges: ‘Have the fortitude to take your contempt citation, and we have your back on appeal.’ That is a powerful holding in a powerful and righteous opinion,” Lane said.

On Jan. 31, 2019, Rosenfeld attended a pretrial conference in Chase’s courtroom pertaining to child dependency and neglect proceedings. At the time, the mother, identified as S.S, was facing criminal charges in a separate case for allegedly kidnapping the child. Before S.S. testified, Chase informed her of her Fifth Amendment rights.

The government then claimed Rosenfeld should not be allowed to stand up and invoke the mother’s right against self-incrimination on her behalf. That prompted an extended confrontation between the judge and Rosenfeld over his right to advise S.S.

“I don’t think you get to do that,” Chase said after Rosenfeld asserted his right to do so.

“I get to advise her when it’s appropriate. I will,” Rosenfeld responded.

Chase eventually warned Rosenfeld she would hold him in contempt if he kept interrupting to advise S.S. to invoke the Fifth Amendment.

“I have a responsibility to my client, and she has a right to be advised when there are questions,” Rosenfeld said.

“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,” Chase retorted. “I’m not aware of any. Do you have any? I’m speaking to you.”

There was a short recess in which Rosenfeld got to speak to his client in the hallway. Upon reconvening, Chase reiterated that Rosenfeld would not get to stand up and advise S.S. during questioning. The questioning from the government proceeded and the mother invoked her Fifth Amendment right against self-incrimination without Rosenfeld speaking.

However, Chase then asked S.S.: “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, saying such conversations fell under attorney-client privilege. Chase grilled Rosenfeld about his knocking, and the attorney countered that “there have been sometimes” he knocked on the table and S.S. did not plead the Fifth.

“It is advising her when I directly told you [that] you cannot do that….I directly told you that,” the judge said. She then proceeded to determine whether to hold Rosenfeld in contempt of court, discussing with Rosenfeld whether his knocking violated her earlier order not to “stand up” and advise his client.

Chase ultimately found Rosenfeld in contempt, unleashing a torrent of biting criticism: “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 Court would never expect from any lawful attorney practicing law in this court or any other court.”

She added: “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 OK.”

The judge then removed Rosenfeld as the mother’s attorney. District Judge Sheila A. Rappaport of Denver subsequently took over Rosenfeld’s sentencing. In October 2019, she levied a $1,000 fine, but allowed Rosenfeld to appeal Chase’s contempt order before imposing the punishment.

“This case to me represents the fundamentals of our Constitution being absolutely disregarded and ignored,” Lane, the attorney for Rosenfeld, told the appellate judges during oral argument. “I don’t believe [Chase] actually understood that you are allowed to invoke a client’s Fifth Amendment rights in a civil proceeding.”

Leeann Morrill of the state attorney general’s office countered that Rosenfeld’s “surreptitious coaching of mother’s sworn testimony constituted direct contempt because it was both extreme, deceitful behavior and willfully violated the trial court’s direct order.”

For the first time in Colorado, the Court of Appeals panel addressed whether witnesses have the right, on a question-by-question basis, to receive advice from counsel about self-incrimination. The panel decided they do.

“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,” wrote Taubman, a retired judge who sat on the panel at the chief justice’s assignment.

Because Chase’s order was unlawful, and S.S. incriminating herself would have had implications for her criminal trial, Rosenfeld was correct not to comply with the order.

Although Chase has left the bench, her actions continue to come under scrutiny. Also on Thursday, a separate Court of Appeals panel reversed a defendant’s convictions in another case Chase handled.

One month after her censure in April, yet another appellate panel ordered a review of one of Chase’s parental rights decisions, after the child’s parents raised a possibility of bias based on Chase’s admitted racist behavior.

And in a further challenge to Chase’s handling of cases, The Gazette reported in May that a mother who Chase jailed for more than nine months on contempt orders is alleging the judge’s actions were unconstitutional.

Rosenfeld told Colorado Politics he was relieved the Court of Appeals vindicated his conduct.

“I think it should be incumbent on the state to now look at every case that Judge Chase handled to try to undo the damage that she caused,” he said.

The case is People in the Interest of K.S-E.