In re Attorney F.
285 P.3d 322
Colo.2012Background
- Attorney F, a deputy district attorney, was accused of knowing misrepresentation during trial of G.T. for sexual assault on a child.
- Defense counsel elicited testimony from the victim's mother that contradicted the victim; after lunch, Attorney F spoke with the witness in the presence of a victim advocate.
- Attorney F did not immediately rectify the misstatement on the record during recross; later she learned of the misstatement and did remedial actions including interviewing the witness and disclosing a memorandum to defense counsel.
- Defense counsel questioned whether Attorney F had spoken with the witness during lunch; Attorney F gave inconsistent or noncommittal responses, which witnesses disputed.
- The Hearing Board found a violation of Colo. RPC 8.4(c) and 8.4(d) for knowingly misrepresenting to defense counsel and concluded a public censure was mandated by case law.
- The Supreme Court reverses the sanction, remanding for redetermination of an appropriate sanction and upholds the PDJ’s denial of removing the discipline listing from a public website.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Public censure vs private admonition | F contends the board was not required to impose public censure. | Board believed case law mandated public censure for knowing misrepresentation. | Board erred; discretion to select sanction exists; remand for redetermination. |
| Public posting of discipline during appeal | Discipline listing on website conflicted with stay pending appeal. | Website posting complies with public-record rules and should remain public. | Denial of removal affirmed; posting consistent with rules. |
Key Cases Cited
- People v. Rolfe, 962 P.2d 981 (Colo. 1998) (public censure appropriate when knowing misrepresentation)
- People v. Small, 962 P.2d 258 (Colo. 1998) (public censure for knowingly false testimony; private admonition insufficient)
- People v. Bertagnolli, 861 P.2d 717 (Colo. 1993) (public censure for knowingly misleading statements; private admonition rejected)
- People v. Lopez, 845 P.2d 1153 (Colo. 1998) (ABA Standard 2.6 guidance; private admonition generally inappropriate for knowing misconduct)
- In re Rosen, 198 P.3d 116 (Colo. 2008) (two-step framework; flexibility to depart from presumptive sanctions)
- In re Roose, 69 P.3d 43 (Colo. 2003) (ABA Standards as guiding authority; emphasizes discretion)