In re Attorney F.

2012 CO 57, 285 P.3d 322, 2012 WL 3900749, 2012 Colo. LEXIS 669
CourtSupreme Court of Colorado
DecidedSeptember 10, 2012
DocketNo. 11SA343
StatusPublished
Cited by64 cases

This text of 2012 CO 57 (In re Attorney F.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Attorney F., 2012 CO 57, 285 P.3d 322, 2012 WL 3900749, 2012 Colo. LEXIS 669 (Colo. 2012).

Opinion

Justice MARQUEZ

delivered the Opinion of the Court.

[ 1 In this attorney discipline proceeding, the respondent, Attorney F1, appeals from the decision and order of the Hearing Board imposing a sanction of public censure for [323]*323Attorney F's knowing misrepresentation to opposing counsel. Attorney F does not challenge the Hearing Board's conclusion that she violated Rules 8.4(c) and 8.4(d) of the Colorado Rules of Professional Conduct by making a knowing misrepresentation. Instead, she contends that the Hearing Board erred in imposing a public censure. She argues that the Hearing Board was inclined to impose a private admonition but mistakenly believed that this court's precedent prohibited the Board from imposing any sanction less than a public censure. We hold that the Hearing Board erred in concluding that it was required by our case law to impose a public censure instead of a private admonition. Accordingly, we reverse the sanction imposed by the Hearing Board and remand for further proceedings consistent with this opinion.

T2 Attorney F also contends that the Presiding Disciplinary Judge erred by denying her motion to compel the Office of Attorney Regulation Counsel to remove a website display indicating the fact that the Hearing Board had determined that a public censure was warranted in her case. Because the website display complies with our rules regarding attorney discipline proceedings, we affirm the Presiding Disciplinary Judge's order denying Attorney Fs motion to compel.

I. Facts and Procedural History

13 Attorney F is a deputy district attorney. The misconduct at issue occurred during her prosecution of G.T. for sexual assault on a child. On the second day of trial, defense counsel cross-examined S.M., the vie-tim's mother, and elicited testimony that arguably contradicted the victim's account of the alleged abuse. During the lunch recess, Attorney F had a conversation with S.M. about the contradictory testimony.2 A victim advocate who worked with Attorney F was present for portions of this conversation. Before the proceedings resumed, one of the defense attorneys saw S.M. leave a meeting room followed shortly by Attorney F.

T4 After lunch, Attorney F rehabilitated S.M. on redirect examination, addressing two specific aspects of her earlier testimony. On recross, defense counsel engaged in the following colloquy with S.M.:

Q. Okay. By the way, I assume you didn't speak with anyone from the district attorney's office over the lunch recess; is that right?
A. No.
Q. You did not?
A. No.

Although S.M.'s testimony was incorrect, Attorney F did nothing to immediately rectify the situation, such as requesting a bench conference or redirecting S.M. on the issue.

T5 Later that afternoon, Attorney F realized she had forgotten to have her forensic interviewer authenticate a video recording and requested a recess to obtain the authentication. While Attorney F was rushing around, the victim advocate approached Attorney F and asked, "What are we going to do about [S.M.]?" Attorney F replied, "What about her?" The victim advocate explained, "She lied on the witness stand." Attorney F told the victim advocate that she could not deal with the matter at the moment and suggested that they talk about it later. Before the Hearing Board, Attorney F testified that she did not appreciate the significance of the victim advocate's remark because she was rushed and focused on obtaining the authentication.

T 6 During the same afternoon recess, defense counsel approached Attorney F at the prosecution table and asked her whether she had spoken with S.M. over the lunch recess. Attorney F testified before the Hearing Board that the question was "vague," that she was not really paying attention to it, and that she gave a "noncommittal" answer. But both defense attorneys testified that the question was straightforward and that Attorney F directly answered that she had not spoken with S.M. during the recess. In addition, the victim advocate testified that later that evening, Attorney F told her that defense counsel had inquired whether Attorney F had conferred with S.M. during lunch and that Attorney F had answered "no." The [324]*324victim advocate testified that she then exclaimed, "Oh my God! What were you thinking?" and that Attorney F responded, "I wasn't thinking; I just froze."

T7 After her discussion with the victim advocate, Attorney F realized the seriousness of the situation and contacted her supervisors that evening. She arranged to have an investigator immediately interview S.M. regarding her false testimony and instructed the investigator to document the interview in a memorandum, which she disclosed to defense counsel the following morning. The memorandum represented that S.M. had not understood defense counsel's questions during recross examination. Attorney F also contacted defense counsel regarding the false testimony and arranged for S.M. to be available the following morning for further testimony.

T8 The following morning the trial court held an in camera hearing regarding Attorney Fs alleged misconduct. The trial court decided to give the jury a curative instruction stating that S.M. had been asked on recross examination whether she had spoken with any member of the district attorney's office during the lunch break; that S.M.'s response was no; that this response was not true; that in fact, during the lunch break the prosecutor personally spoke with S.M. regarding two areas of testimony under eross-examination; and that the prosecutor did not inform the defense of this conversation until after court had adjourned for the day. The jury ultimately acquitted G.T. on all charges, and the trial judge reported Attorney Fs conduct to the Office of Attorney Regulation Counsel.

T9 The Hearing Board found the testimony of the defense attorneys eredible and the victim advocate's testimony especially compelling. Accordingly, the Hearing Board found that Attorney F violated Colo. RPC 8.4(c) and 8.4(d) 3 by knowingly misrepresenting to defense counsel that she did not speak with S.M. over the lunch recess.4 The Hearing Board concluded that it was bound by this court's case law to impose a public censure as a sanction for Attorney F's misconduct.

T10 Shortly after the Hearing Board issued its decision on October 19, 2011, the Office of Attorney Regulation Counsel updated Attorney Fs listing on its public website to reflect the date of the Hearing Board's decision, its sanction of "PUBC," and an effective date of the discipline. On October 31, 2011, Attorney F sought a stay of the discipline pending appeal. Attorney F simultaneously moved to compel the Office of Attorney Regulation Counsel to remove from the website the publication of any discipline associated with the case. The Hearing Board granted the stay on November 8, 2011. The same day, the Presiding Disciplinary Judge denied Attorney F's motion to compel, concluding that Colorado Rule of Civil Procedure 251.31(a) requires that onee a formal complaint is filed, "all records" pertaining to the disciplinary process are open to public serutiny. The Presiding Disciplinary Judge observed, however, that the effective date of the discipline posted on the webpage was inaccurate given the stay entered pending appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 CO 57, 285 P.3d 322, 2012 WL 3900749, 2012 Colo. LEXIS 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-attorney-f-colo-2012.