text:
    2002 WY 163
    Robert A. HART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-247.
    Supreme Court of Wyoming.
    Oct. 29, 2002.

      Carol Seeger of Carter Law Office, Gillette, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   VOIGT, Justice.

[¶ 1] Robert A. Hart (Hart) entered a conditional plea of nolo contendere to one count of taking indecent liberties with a minor, reserving his right to appeal the district court’s pretrial ruling on the admissibility under W.R.E. 404(b) of certain uncharged misconduct evidence. We affirm.

ISSUE

[¶ 2] The single issue before this Court is the propriety of the district court’s ruling that certain uncharged misconduct evidence would be admissible at trial.

FACTS

[¶ 3] On November 14, 2000, a sixteen-year-old girl (hereinafter C.B.) reported to the Moorcroft police that during a car trip from Rapid City, South Dakota, to Moorcroft on September 10, 2000, Hart had fondled her thighs, breasts, and vagina, and that he had digitally penetrated her vagina. Hart is the husband of C.B.’s great-aunt, who was present in the car’s back seat with Hart and C.B. Hart’s wife was sleeping during the alleged incident. C.B.’s grandfather and great-uncle occupied the front seat. Hart was charged with one count of taking indecent liberties with a minor, in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001).

[¶ 4] On May 9, 2001, Hart filed a request for a pretrial hearing to determine the admissibility under W.R.E. 404(b) of any uncharged misconduct evidence. On the day of the hearing on the motion, the State filed a Notice of 404(b) Evidence, in which it listed four witnesses who would testify about prior uncharged misconduct by Hart. Those witnesses were:

1. P.R. A thirty-eight-year-old cousin of C.B.’s mother would be called to testify that Hart had molested her from her earliest childhood memories until she was about ten years old. The molestations, which consisted of Hart fondling her breasts and vaginal area with his hands and penis, usually took place during times when P.R. was staying overnight at Hart’s residence, but also occurred at her home and on a fishing trip. Hart’s wife was often present, either sleeping in another room or in the same room, but unaware of what was happening.

2. T.L. A thirty-nine-year-old cousin of C.B.’s mother would be called to testify that Hart had molested her from the time she was ten years old until she was thirteen years old. As with P.R., the molestations, which consisted of Hart fondling and penetrating her with his hands and penis, would occur when T.L. stayed overnight at Hart’s residence and Hart would come into her bedroom when he returned from working a swing or second shift. T.L. would also testify that she told her uncle, L.R., about the molestation.

3. L.R. L.R. was expected to testify that T.L. did, indeed, tell him at the time about the molestation, but that he did nothing about it because he did not believe her.

4. D.B. C.B.’s mother- would be called to testify that when she was nine or ten years old, she was molested by Hart at Hart’s residence in a manner and under circumstances similar to those described by P.R. and T.L.

[¶ 5] In a decision letter issued after the hearing, the district court ruled as follows:

In light of the nature of the particular allegations made against the Defendant, and given the nature and similarity of the proposed 404(b) evidence, specifically the testimony of [P.R.] and [T.L.], the court finds that the same should be admitted.
With regard to the proffered testimony of [L.R.] and [D.B.], the court reserves its ruling as the admissibility of the same hinges on trial developments.

[¶ 6] Subsequently, Hart’s attorney filed a Request for Specific Findings of Fact and Conclusions of Law Relating to Admissibility of 404(b) Evidence, in which he argued that, in its decision letter, the district court (1) did not identify the purpose or purposes for which the proposed evidence was being admitted; and (2) did not analyze how the evidence was more probative than prejudicial. Without further hearing, the district court issued a second decision letter, the substantive portion of which is as follows:

As per Vigil v. State, 926 P.2d 351 (Wyo.1996) the test the court is to apply in gauging 404(b) submissions is the same as provided for under the comparable federal rule. Consequently, the court in making its analysis has looked to federal authorities as well as state authorities. Based upon all of the authorities, the court in the prior analysis determined, and should have stated that such evidence may be used to show:
1. Motive;
2. Intent and/or modus operandi;
3. Identification;
4. Plan or scheme; and,
5. Absence of mistake or accident.
In this case the allegations are that Defendant committed improper sexual acts against a minor. Moreover, the alleged act is to have been committed in the presence of other adults. The evidence noticed under 404(b) is remarkably similar. While the court is troubled by the remoteness in time issue, the offered witnesses are to testify that this same Defendant took sexual advantage of them when they were minor children. The circumstances of the proposed testimony is such that it appears that Defendant’s actions against the 404(b) witnesses were very similar to the allegations made in the current action. All of the women are/were minors and relatives. Adults were present at the times of the alleged acts. Defendant is alleged to have operated in a fashion that would call the credibility of purported victims into question.
Given the circumstances of the proposed 404(b) witness[es] as presented at the hearing, the fact that they had no reason to communicate with each other regarding this matter, the fact that at least one of them reported abuse as a child and was disbelieved, among other things, the court is of the opinion that the proposed testimony is reliable enough to be considered by the trier of fact for the purposes stated herein. The fact that the proposed witnesses are now adults appears to the court to lend credence to the proposed testimony. Why would these two women, although related, essentially strangers, come forth after all of these years with stories of sexual abuse at the hands of Defendant? Why would these stories have so many similarities to the current allegations? Thus, under the test which this court has applied under Rule 403, the offered 404(b) testimony is more probative than prejudicial.

[¶ 7] Following this ruling, Hart and the State entered into a plea agreement wherein Hart entered a conditional plea of nolo con-tendere to the charged offense, but reserved his right under W.R.Cr.P. 11(a)(2) to appeal the district court’s rulings under W.R.E. 404(b). Judgment was entered against Hart and, after a presentence investigation, he was sentenced to the custody of the Department of Corrections for a period of not less than thirty months and not more than seventy-two months. The sentence was suspended, however, under Wyo. Stat. Ann. § 7-13-107 (LexisNexis 2001), and Hart was given one year in the county jail, to be followed by six years of supervised probation. Hart timely appealed.

DISCUSSION

[¶ 8] Wbere an objection has been lodged at trial, as in the instant case, the standard for review of rulings under W.R.E. 404(b) is abuse of discretion. Johnson v. State, 936 P.2d 458, 462 (Wyo.1997) (quoting Sturgis v. State, 932 P.2d 199, 201 (Wyo.1997)). The rulings of the district court are entitled to considerable deference on appeal, and will not be reversed so long as there exists a legitimate basis for the ruling. Brower v. State, 1 P.3d 1210, 1213 (Wyo.2000). In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo.2002), we recently reviewed Wyoming’s uncharged misconduct evidence jurisprudence. We will not repeat that discussion here. Suffice it to say that, while continuing to adhere to the test for the admissibility of such evidence found in Vigil v. State, 926 P.2d 351 (Wyo.1996), we did in Gleason, 2002 WY 161, ¶¶ 26-30, 57 P.3d at 332, require trial courts in the future to ensure that the record reflects not only specific identification of the proper purpose or purposes for which such evidence is being admitted, but also sufficient analysis of pro-bativeness and prejudicial effect to allow for appellate review. Because the instant case was heard before Gleason was published, we will not herein apply that ease’s more demanding standards.

[¶ 9] The State’s notice of uncharged misconduct evidence did not set forth any proposed purpose for the testimony. During the hearing, the prosecutor argued that the uncharged misconduct evidence was probative of motive, intent, identity, absence of mistake or accident, and credibility of the victim. In addition, although he did not use the phrase modus operandi or the words plan or scheme, he did argue for the probative value of the “pattern” of Hart’s conduct. In its second decision letter, the district court found the evidence admissible to prove motive, intent and/or modus operandi, identification, plan or scheme, and absence of mistake or accident. We must assume, because that is all the information we have, that the State would have been allowed to argue, and the jury would have been instructed, that the testimony of the four uncharged misconduct evidence witnesses could be considered as proof of all the purposes listed by the district court.

[¶ 10] Wyoming has a long line of cases in which similar uncharged misconduct has been admitted in child sexual abuse and indecent liberties cases, most often as probative of motive or intent. See Gleason, 2002 WY 161, ¶ 19, 57 P.3d at 332, slip op. at 7. For instance, in Brown v. State, 736 P.2d 1110, 1113 (Wyo.1987), testimony by the victim and her half-sister in a prosecution for incest, implicating defendant in prior sexual abuse, was held admissible because aberrant sexual behavior is probative of motive. Similarly, in Elliott v. State, 600 P.2d 1044,1048-49 (Wyo.1979), testimony of the victim’s older sister as to similar misconduct by the defendant with her was held admissible in a trial for second-degree sexual assault to prove motive based on pedophilia. The record in the instant case is sufficient for us to conclude that it was not an abuse of discretion for the district court to find the uncharged misconduct evidence to be relevant and to be probative of motive and intent. Ignoring for now the question of remoteness in time, which will be discussed later herein, the district court’s decision as it relates to motive and intent was an appropriate exercise of discretion, given the facts and arguments presented, and given Wyoming precedent at the time.

[¶ 11] Identity, of course, is one of the purposes listed within W.R.E. 404(b) for the introduction of uncharged misconduct evidence. Perhaps not surprisingly, this Court has held that evidence may be admitted under the rule when the identity of the perpetrator of the charged crime is at issue. McCone v. State, 866 P.2d 740, 752 (Wyo.1993); Longfellow v. State, 803 P.2d 848, 853 (Wyo.1990). We have also held that identity is always an element of the crime charged that must be proved by the-State, and that, therefore, it is always a material issue, whether or not in dispute, when applying W.R.E. 404(b). Rivera v. State, 840 P.2d 933, 940 (Wyo.1992); Pena v. State, 780 P.2d 316, 321 (Wyo.1989). Consequently, if uncharged misconduct evidence tends to prove the identity of the perpetrator of the charged crime, it is not rendered inadmissible because it tends to prove that he committed another crime. Pena, 780 P.2d at 321 (quoting Valerio v. State, 429 P.2d 317, 318 (Wyo.1967)).

[¶ 12] The preceding analysis, however, takes the evidence only so far toward admission. Even if evidence is relevant and probative of identity, the district court still must determine whether it is more prejudicial than probative. The record in the instant case does not reveal how the district court balanced probative value against prejudicial effect as the evidence related to proof of identity. There clearly was no need for the uncharged misconduct testimony to prove that it was Hart who was sitting in the back seat with C.B. Not only did Hart not deny that fact, but also there were three people in the car in addition to C.B. who could have identified Hart. Had proof of identity been the only identified purpose for admission of the uncharged misconduct testimony, it would have been an abuse of discretion for the district court to admit it without balancing its probative value against its prejudicial effect.

[¶ 13] The same problem does not exist as to admission of the evidence to prove that Hart did not mistakenly or accidentally touch C.B. Hart denied touching C.B. at all, but he also said that the only way he could have touched her would have been by accident. Had he chosen to pursue that defense at trial, the evidence of his prior sexual assaults in a similar manner and under similar circumstances would have been highly probative on that issue. It was not an abuse of discretion for the district court to determine that the evidence was more probative than prejudicial in that regard.

[¶ 14] The district court listed mo-dus operandi and plan or scheme as separate purposes for admission of the evidence. Generally, modus operandi evidence is not submitted to prove modus operandi, itself, but to prove the identity of the perpetrator. The theory is that when the unique characteristics of a crime known to have been committed by the defendant are repeated in the charged crime, the fact that the defendant committed the prior crime is proof that he also committed the charged crime. Germany v. State, 999 P.2d 63, 68 (Wyo.2000) (quoting Pena, 780 P.2d at 322); Johnson, 936 P.2d at 463; Bishop v. State, 687 P.2d 242, 245 (Wyo.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985), abrogated on other grounds by Vigil, 926 P.2d at 356-57. Somewhat similarly,

[e]vidence of other crimes or misconduct to demonstrate a plan simply depends upon a showing of a relationship between the crimes and the defendant.... These prior bad acts also corroborated identity.

Rivera, 840 P.2d at 940. In truth, except perhaps in the pure “signature crime” context, there is not a clear line that can be drawn between evidence revealing a modus operandi and evidence revealing a plan or scheme. Some courts discuss the concept in terms of a “pattern,” just as did the prosecutor in the instant case. See, for example, United States v. Beasley, 809 F.2d 1273, 1277 (7th Cir.1987).

[¶ 15] The district court’s second decision letter emphasized, in addition to the remarkable similarity between the prior acts and the charged act, the credibility and reliability of the proposed uncharged misconduct evidence testimony. Coupled with the latter observation is the district judge’s statement that Hart “is alleged to have operated in a fashion that would call the credibility of purported victims into question.” This suggests that the district court also was admitting the evidence to bolster the credibility of the victim and to corroborate her testimony, both of which are permitted purposes. Heinemann v. State, 12 P.3d 692, 701 (Wyo.2000), cert. denied, 532 U.S. 934, 121 S.Ct. 1386, 149 L.Ed.2d 310 (2001). Where a defendant denies that the charged act took place, evidence of prior similar acts may serve to rebut the allegation of victim fabrication. People v. Janes, 942 P.2d 1331, 1336-37 (Colo.App.1997).

[¶ 16] The proponent of uncharged misconduct evidence is not limited to but one proposed purpose for its admission. Gleason, 2002 WY 161, ¶ 26, 57 P.3d at 332; Sturgis, 932 P.2d at 203. On the other hand, if the purpose or purposes are not specifically identified, the balance of the Vigil test cannot be applied. Obviously, relevance and probativeness cannot be determined without knowing what it is the evidence is meant to prove. Neither can the trial court balance probativeness against prejudicial effect. Further, as pointed out by defense counsel in the instant case, the jury cannot be instructed to limit its consideration of the evidence to a particular consequential fact, such as motive, until such has been identified.

[¶ 17] A similar problem arises where the trial court, in admitting evidence under W.R.E. 404(b), simply announces that such evidence is more probative than prejudicial, without any reflection in the record of the analysis that resulted in that determination. In Gleason, 2002 WY 161, ¶ 27, 57 P.3d at 332, slip op. at 9-11, we set out the factors that should be considered in that process, quoting Rigler v. State, 941 P.2d 734, 737 n. 1 (Wyo.1997) and citing Dean v. State, 865 P.2d 601, 609-10 n. 2 (Wyo.1993), abrogated and modified on other grounds by Vigil, 926 P;2d 351. At the motion hearing in the instant case, defense counsel went .through those factors one by one, and appellate review would be enhanced had the district court done the same in its decision letter.

[¶ 18] The question before this Court is whether the district court adequately scrutinized the State’s proposed uncharged misconduct evidence. While the record does not contain the detail we will require in the future, it is sufficient to demonstrate that the district court utilized the Vigil test in considering admissibility, that it identified appropriate purposes for admission, and that it balanced probative value against prejudicial effect. To that extent, there was a “legitimate basis ... for the ... ruling_” Brower, 1 P.3d at 1213.

[¶ 19] That leaves only the question of the legal effect of the fact that the prior acts were so remote in time. P.R., who was thirty-eight years old at the time of trial, intended to testify about events that occurred until she was about ten years old, so those events occurred, at the earliest, twenty-eight years earlier. T.L., who was thirty-nine years old at the time of trial, was to testify about molestations that occurred from the age of ten to the age of thirteen, meaning those events occurred between twenty-six and twenty-nine years earlier. While D.B.’s age is not cited in the record, she is a cousin to P.R. and T.L., and her testimony' would have been about molestations that occurred when she was nine or ten years old.

[¶ 20] Both counsel and the district court realized that a significant fact in the balance between probativeness and prejudicial effect was the remoteness in time of the prior incidents. At the end of the motion hearing, the district judge commented that, “in terms then of the remoteness in time, I’ve got to make a determination whether it’s gotten to a place now where it’s more prejudicial than probative.” In its second decision letter, the district court reiterated this concern and then admitted the evidence because it found the witnesses to be very reliable and because the prior acts were very similar to the charged act.

[¶ 21] As we stated earlier herein, it is not our task to apply the Vigil test. Rather, on the point at issue, it is simply our task to determine whether the district court abused its discretion in finding the testimony admissible despite the remoteness concern. The record reveals' support for the district court’s findings that the witnesses appeared reliable and the events were very similar. It is not our role to second-guess the district court in that situation. Rather, we must decide whether, as a matter of law, W.R.E. 404(b) does not envision admission of uncharged misconduct evidence that occurred nearly thirty years earlier. In that regard, it must be remembered that proximity in time is not a requirement for admission; rather, it is but one factor to be considered. United States v. Burk, 912 F.2d 225, 228 (8th Cir.1990) (quoting United States v. Drew, 894 F.2d 965, 970 (8th Cir.), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990), cert. denied, 516 U.S. 817, 116 S.Ct. 72, 133 L.Ed.2d 33 (1995)).

[¶ 22] It probably could go without saying that courts should be extremely cautious in admitting evidence of “old” acts. United States v. Simtob, 901 F.2d 799, 808 (9th Cir.1990). At the same time, however, there is no specific time limitation in determining remoteness of the similar act. Frenzel v. State, 849 P.2d 741, 752 (Wyo.1993), cert. denied, 522 U.S. 959, 118 S.Ct. 388, 139 L.Ed.2d 303 (1997) (citing Britton v. State, 845 P.2d 1374, 1376 (Wyo.1992)). Rather, we have previously emphasized the discretionary nature of such decisions:

We do not choose to impose an arbitrary year or month limitation of evidence admissible under W.R.E. 404(b). The trial judge must be afforded certain discretion in evidentiary rulings. Tennant v. State, 786 P.2d 339 (Wyo.1990); Pena v. State, 780 P.2d 316 (Wyo.1989). The test for remoteness cannot be a mechanical process based only on the amount of time that elapsed between the prior act and the present offense. United States v. Scott, 701 F.2d 1340, 1345 (11th Cir.1983). Decisions have upheld the admission of evidence of crimes committed more than eight years before the current charge. See, e.g., United States v. Lopez-Martinez, 725 F.2d 471, 476 (9th Cir.1984) (admission of prior act committed eight years before was acceptable because it was similar enough to the charged crime to be relevant); United States v. Foley, 683 F.2d 273, 278 (8th Cir.1982) (eleven years acceptable; in determining whether evidence is too remote, the court should apply a reasonableness standard); United States v. Engleman, 648 F.2d 473, 478 (8th Cir.1981) (thirteen years acceptable); Gezzi v. State, 780 P.2d 972 (Wyo.1989) (evidence of acts going back seven or eight years). Questions concerning remoteness of evidence are left to the sound discretion of the trial court and are subject to challenge only for clear abuse of discretion. Goodman v. State, 601 P.2d 178, 184 (Wyo.1979).

Britton, 845 P.2d at 1376. See also United States v. Olivo, 80 F.3d 1466, 1468-69 (10th Cir.), cert. denied, 519 U.S. 906, 117 S.Ct. 265, 136 L.Ed.2d 189 (1996).

[¶ 23] In Griswold v. State, 994 P.2d 920, 926 (Wyo.1999), we declined to set an arbitrary ten-year time limit for admissibility of uncharged misconduct evidence under W.R.E. 404(b), and reiterated the Britton emphasis on the trial judge’s discretion. We also stated that, rather than making testimony inadmissible, remoteness in time of the prior act may affect the weight of the evidence. Griswold, 994 P.2d at 926. See also People v. Douglas, 50 Cal.3d 468, 268 Cal.Rptr. 126, 149, 788 P.2d 640, 663 (1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1023, 112 L.Ed.2d 1105 (1991); Harp v. State, 518 N.E.2d 497, 500 (Ind.App.1988); and State v. Whitlow, 285 Mont. 430, 949 P.2d 239, 245 (1997). Remoteness in time renders the evidence inadmissible only if the remoteness is so great that the evidence has no value. State v. Martin, 279 Mont. 185, 926 P.2d 1380,1386 (1996).

[¶24] The standard is one of reasonableness. Burk, 912 F.2d at 228. In determining the reasonableness of the admission of remote acts of uncharged misconduct, we must consider the context in which the evidence was introduced and the theory supporting its admissibility. United States v. Obiuwevbi, 962 F.2d 1236, 1241 (7th Cir.1992); Beasley, 809 F.2d at 1277. Uncharged misconduct may be extremely probative despite the passage of a substantial amount of time. People v. Soto, 64 Cal.App.4th 966, 75 Cal.Rptr.2d 605, 621 (1998). Relevance is, of course, dependent to some degree on time; the degree of' similarity between the charged crime and the prior act must be inversely proportional to the time span. Allen v. State, 644 A.2d 982, 988 (Del.Supr.1994) (quoting Com. v. Shively, 492 Pa. 411, 424 A.2d 1257, 1259 (1981)). Probativeness is lessened further where, in addition to the passage of considerable time, the remote acts are “factually distinct” from the charged act. State v. Parks, 71 Or.App. 630, 693 P.2d 657, 658-59 (1985) (admission of a prior alleged assault approximately twenty years before the charged shooting reversed because prior act was “too remote and factually distinct” to have any tendency to prove defendant’s state of mind at time of shooting).

[¶ 25] In child sexual assault cases, several courts have admitted evidence of the sexual exploitation of children twenty years or more earlier. See, for example, United States v. Meacham, 115 F.3d 1488, 1492 (10th Cir.1997) and Sewell v. State, 244 Ga.App. 449, 536 S.E.2d 173,177 (2000). One circumstance where such evidence has been admitted is where there has been a pattern of molesting prepubeseent females. State v. Jackson, 625 So.2d 146, 149 (La.1993). Some courts have admitted remote acts under the theory that the sexual abuse of children within a family may only occur generationally, as the children reach the appropriate age for exploitation. State v. Weatherbee, 158 Ariz. 303, 762 P.2d 590, 592 (1988); Heuring v. State, 495 So.2d 893, 894 (Fla.App.1986), vacated on other grounds, 513 So.2d 122 (Fla.1987); State v. McGuire, 135 Idaho 535, 20 P.3d 719, 723 (2001).

[¶26] The Heuring case provides some useful analysis for eases of this nature. Heuring was convicted of the sexual battery of his stepdaughter. The trial court admitted the testimony of Heuring’s daughter that he had sexually molested her twenty years previously. In affirming Heuring’s conviction, the District Court of Appeals of Florida reasoned as follows:

Remoteness may relate to passage of time or to present relationship with an issue. If mere passage of time were determinative of remoteness, we would hesitate to consider twenty-year-old incidents relevant. In determining whether evidence is too remote to be relevant, and therefore admissible, the court must consider not the passage of time alone, but the effect of the passage of time on the evidence. Remoteness in terms of the passage of time precludes the use of evidence that has become unverifiable through loss of memory, unavailability of witnesses and the like. It may also suggest that the absence of similar conduct for an extensive period of time indicates that such conduct is no longer characteristic of the accused. But it is not the propensity towards such conduct that is relevant. It is the manner of perpetrating the crime which is relevant.
In this case, the type of crime committed can occur only generationally. The appellant twice had the opportunity to sexually batter young females under his familial authority and did so in like manner on each occasion. The daughter’s memory of the incident and its details lost nothing through the passage of time. Appellant took the position that he never sexually battered any child, not that he couldn’t remember.

Heuring, 495 So.2d at 894 (emphasis in original). In a specially concurring opinion, Judge Smith voiced some concerns over the majority’s analysis of relevance and the generational nature of the crime, concurring instead because the evidence revealed a “pattern of criminality” that Florida precedent found relevant. Id. at 894-95 (Smith, J., specially concurring).

[¶ 27] On further appeal, the Supreme Court of Florida reversed Heuring’s conviction on other grounds, but affirmed the admission of the daughter’s prior acts testimony. Heuring v. State, 513 So.2d 122, 124 (Fla.1987). In doing so, the higher court commented as follows on the reasoning of the District Court of Appeals:

As the court noted, the opportunity to sexually batter young children in the familial setting often occurs only generationally. Heuring sexually battered the young female members of his family when the opportunity arose. Heuring does not dispute the court’s finding that the passage of time had no effect on the witness’s memory. We agree with the district court that the passage of time in this instance did not affect the reliability of the evidence.

Id. at 124. After quoting at length a California court’s analysis of the inference of identity that may arise from evidence of a “signature crime,” the Florida Supreme Court then came to the following conclusion:

Cases involving sexual battery committed within the familial context present special problems. The victim knows the perpetrator, e.g., a parent, and identity is not an issue. The victim is typically the sole eye witness and corroborative evidence is scant. Credibility becomes the focal issue. In such cases, some courts have in effect relaxed the strict standard normally applicable to similar fact evidence. These courts have allowed evidence of a parent’s sexual battery on another family member as relevant to modus operandi, scheme, plan, or design, even though the distinction between sexual design and sexual disposition is often tenuous. We find that the better approach treats similar fact evidence as simply rele- - vant to corroborate the victim’s testimony, and recognizes that in such cases the evidence’s probative value outweighs its prejudicial effect.

Id. at 124-25.

[¶ 28] We have quoted at length from these two Hearing opinions because the reasoning contained therein is quite similar to the reasoning of the prosecutor and the district court in the instant case. Although he offered the common “laundry list” of purposes for admissibility of the uncharged misconduct evidence, the prosecutor’s argument at the motion hearing emphasized two points: the pattern of Hart’s criminal conduct and the need to corroborate the victim’s somewhat unusual story. Similarly, while the district court’s second decision letter listed numerous purposes for admission of the testimony, emphasis was placed on victim credibility and the reliability of the proposed witnesses’ testimony.

[¶ 29] It is at this point that we need to remind ourselves that we do not apply the Vigil test to proposed uncharged misconduct evidence. That is done by the trial court. The question for this Court is simply whether the district court abused its discretion.

Under the rule, the judge errs if the judge fails to exercise discretion, refuses to exercise discretion, or does not ensure that the record reflects an exercise of discretion.

2 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 8:02 at 11(1999) (footnotes omitted). We hold that the district court in the instant case has not abused its discretion in the way it analyzed and admitted the proposed evidence. On the specific issue of remoteness in time, we reach the same conclusion. The district court specifically addressed the remoteness issue and found the testimony of the proposed witnesses to be highly probative and reliable, despite the passage of time. The record supports that finding, and we will not substitute our judgment for that of the district court. There is nothing in the record to suggest that the proposed testimony was either stale absolutely, due solely to the passage of time, or stale relatively, because of any events or changes during the intervening period. See 2 Edward J. Imwinkelried, Uncharged Misconduct Evidence, supra, § 8:08.

CONCLUSION

[¶ 30] The district court did not abuse its discretion in finding admissible the testimony as to similar acts of misconduct by Hart more than twenty-five years before the charged offense. The testimony was offered for proper purposes under W.R.E. 404(b) and its nature was such that it remained reliable, relevant, and probative. We cannot say that its prejudicial effect outweighed its probative value. The remoteness in time of the uncharged misconduct testimony was a factor to be considered by the jury in determining the weight the testimony should be given. Because this case was heard before the opinion in Gleason was published, we find the record sufficient to sustain the district court’s decision.

[¶ 31] Affirmed.

      . W.R.E. 404(b) provides as follows:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      . Under Vigil, the trial court must apply the following test in determining the admissibility of uncharged misconduct evidence under W.R.E. 404(b): (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. Vigil, 926 P.2d at 357 (quoting United States v. Herndon, 982 F.2d 1411, 1414 (10th Cir.1992)). This test encompasses the requirement for relevancy under W.R.E. 401 and 402, as well as the requirement to determine prejudicial effect under W.R.E. 403.

      . As noted in Gleason, 2002 WY 161, ¶ 19 n. 3, 57 P.3d at 332 n. 3, three new rules-F.R.E. 413, 414, and 415 — have been added to the Federal Rules of Evidence specifically authorizing the admissibility of similar crimes evidence in sexual assault and child molestation cases. Under those rules, admissibility is not limited to the "proper purposes” of Rule 404(b). A similar exception has been recognized by the courts of at least one state, Arizona, where uncharged misconduct evidence involving "sexual aberration” is admissible to prove the defendant’s "propensity to commit similar crimes.” State v. Roscoe, 184 Ariz. 484, 910 P.2d 635, 642, cert. denied, 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996).

      . It is, of course, the similarity that makes the evidence relevant. State v. Rucker, 267 Kan. 816, 987 P.2d 1080, 1087 (1999). The acts, or their surrounding circumstances, must be similar, though not identical. State v. Whitlow, 285 Mont. 430, 949 P.2d 239, 244 (1997).

      . Some justifications for admission seem indistinguishable. In Rivera, for example, this Court held that similar uncharged misconduct evidence "disclosed motive by demonstrating a common style of misconduct to achieve sexual gratification and served to demonstrate Rivera planned and intended to effect sexual intrusion in each instance.” Rivera, 840 P.2d at 940. Similarly, in State v. McGuire, 135 Idaho 535, 20 P.3d 719, 722-23 (2001), the defendant's conduct was admitted to show a common scheme or plan for the intent of sexual gratification.

      . One commentator has suggested that the types of distinctions made in Hewing are meaningless:
      The First District Court of Appeal allowed the admission of [the daughter's] testimony in Hewing because it established a pattern of criminality. Though rejecting the district court’s rationale, the Florida Supreme Court affirmed the result, holding that the better view was to treat the evidence as relevant to corroborate the victim's testimony, not to establish a pattern of criminality. However, the court was simply playing a game of semantics. There is no difference, in effect, between admitting evidence to show a pattern of criminality and admitting evidence to corroborate the victim's testimony. The evidence was relevant to corroborate the victim's testimony because it established a pattern of criminality. The effect of the court’s decision is to allow evidence to establish that the defendant had the propensity to commit the offense in order to bolster the credibility of the victim. Whether it is to corroborate the victim’s testimony, or to establish a pattern of criminality, the evidence will be admitted solely to show the defendant's propensity to commit crimes, which is strictly prohibited by section 90.404(2).
      John McCorvey, Note, Corroboration or Propensity? An Empty Distinction in the Admissibility of Similar Fact Evidence, 18 Stetson L.Rev. 171, 187-88 (1988) (footnote omitted). This insightful analysis underscores the difficult line-drawing inherent in exercising discretion under Rule 404(b).


source: Caselaw Access Project

author: Justice COATS

license: Public Domain

text:
    In the Matter of Attorney D., Attorney-Respondent.
    No. 01SA361.
    Supreme Court of Colorado, En Banc.
    Oct. 15, 2002.
    As Modified on Denial of Rehearing Nov.18, 2002.

      Charles Mortimer Jr., Attorney Regulation Counsel Denver, Colorado, for Petitioner.
    Phillip S. Figa Englewood, Colorado, for Attorney-Respondent.
    Steven Silvern, Denver, Colorado, Pro Se.
   Justice COATS

delivered the Opinion of the Court.

The Attorney Regulation Counsel petitioned for relief pursuant to C.A.R. 21 from an order of the Presiding Disciplinary Judge, authorizing discovery by the respondent in a disciplinary proceeding. The order of the PDJ came in response to a motion seeking protection from a subpoena duces tecum, commanding the attorney who reported the respondent’s conduct to appear for a deposition and produce a substantial number of documents. After hearing the objections of both the Attorney Regulation Counsel and the reporting attorney, the PDJ partially granted the Motion for Protective Orders, substantially limiting the subpoena duces te-cum on the grounds that it sought the disclosure of privileged material and information not likely to lead to admissible evidence. He nevertheless permitted the deposition of the reporting attorney to go forward and ordered the production of a number of the subpoenaed documents, which he considered to be potentially relevant to a standard of care for arbitral disclosures and the statute of limitations on disciplinary proceedings.

We issued a rule to show cause. Because we find that the Presiding Disciplinary Judge misperceived the relevance of the opinions and prior conduct of the reporting attorney with respect to arbitral disclosures, as well as the relevance of the point in time at which the reporting attorney became aware of the respondent’s conduct, the rule is made absolute and the matter is remanded for reconsideration of the Motion for Protective Orders.

I. PROCEDURAL HISTORY

The subpoena duces tecum and Motion for Protective Orders at issue here grow out of a disciplinary proceeding in which the respondent is charged with violations of RPC 8.4(c). The complaint, filed by the Attorney Regulation Counsel pursuant to C.R.C.P. 251.14, contains two claims. The first alleges that the respondent violated RPC 8.4 by engaging in conduct involving dishonesty, misrepresentation, deceit, and fraud, by signing an oath in connection with the respondent’s appointment by State Farm Insurance Company as an arbitrator in 1992. The oath verified the absence of existing or past financial, business, or professional relationships with any of the parties or their attorneys that would affect the respondent’s impartiality or create an appearance of partiality or bias. The second claim alleges violations of RPC 8.4 in three instances in 1992 and 1998 in which the respondent failed to disclose his ongoing relationship with State Farm as an expert witness and arbitrator to the claimants in arbi-trations over which he presided.

The Attorney Regulation Counsel filed the complaint after receiving information from an attorney involved in civil litigation against the respondent, in which information about the respondent’s arbitral practices on behalf of State Farm had been discovered and collected. According to his representations to the Presiding Disciplinary Judge and this court, the reporting attorney informed the Attorney Regulation Counsel of the results of his investigation only after being contacted by an assistant disciplinary counsel and after being admonished of his duty to report professional misconduct pursuant to RPC 8.3. He also represented that although he cooperated with the disciplinary counsel, he acted pursuant to a formal subpoena, in compliance with the terms of a settlement agreement between his client and the respondent.

In addition to a subpoena for the reporting attorney’s deposition, the respondent served him with a subpoena duces tecum, ordering the production of numerous records, documents, files, articles, and lists of cases and files, which included virtually all cases related to his service as an expert witness or arbitrator and ail files reflecting information gathered about State Farm. In response, the reporting attorney filed a Motion for a Protective Order, in which the Attorney Regulation Counsel joined. The motion was immediately heard and partially granted.

In his ruling, the PDJ found portions of the subpoenaed material to be either irrelevant or privileged, and portions of it to im-permissibly require the generation of lists that did not already exist. Nevertheless, the PDJ found some of the requested documents to be potentially relevant to the statute of limitations, which makes reference to the point in time at which- the complaining witness discovered or reasonably should have discovered the misconduct, and he found some of the requested documents potentially relevant to what he referred to as the “standard of care or standard of practice” for arbitral disclosures, on the grounds that such a standard might relate to a mitigating factor. The PDJ therefore ordered that the reporting attorney submit to questioning concerning these two areas, and the PDJ made himself available to resolve individual objections as they arose.

Although the deposition apparently began, it was not completed, and the Attorney Regulation Counsel petitioned for relief from this court. We stayed the order and issued a rule to show cause. The respondent in the underlying disciplinary proceeding responded to the order to show cause, and both the Attorney Regulation Counsel and the reporting attorney replied.

II. C.A.R. 21 AND C.R.C.P. 251.1(d)

Exercise of the supreme court’s original jurisdiction is entirely within its discretion. People v. District Court, 869 P.2d 1281, 1285 (Colo.1994). Relief pursuant to C.A.R. 21 is-appropriate to correct an abuse of discretion by a lower'court where no other remedy would be adequate. Id.; People v. District Court, 664 P.2d 247, 251 (Colo.1983). Although challenges to discovery rulings are typically the subject of an appeal, People v. District Court, 894 P.2d 739, 742 (Colo.1995), it can be appropriate to review discovery orders interlocutorily, by way of original proceeding, where the impact of the ruling would be substantial and incurable at a later time. See People v. District Court, 664 P.2d at 251; see also People v. District Court, 898 P.2d 1058, 1060 (Colo.1995); People v. District Court, 869 P.2d at 1285.

For a number of reasons, it is particularly appropriate to review this disciplinary discovery order at this time. The newness of the Rules Regarding Attorney Discipline and Disability Proceedings and the substantial changes they have effected in existing procedures raise significant questions about the discoverability of the practices and opinions of an attorney reporting misconduct. Even more than usual, the need to protect against unnecessary invasion of privacy and burdensome or oppressive discovery of a non-party is important in this context to avoid creating unnecessary disincentives to the reporting of attorney misconduct. See In the Matter of Smith, 989 P.2d 165, 172 (Colo.1999). The express reservation in C.R.C.P. 251.1(d) of authority to review any determination made in the course of a disciplinary proceeding is indicative of the unique role of the supreme court in supervising such proceedings.

III. C.R.C.P. 251.18(f)(4): DISCOVERY IN DISCIPLINARY PROCEEDINGS

Although discovery in disciplinary proceedings is governed by C.R.C.P. 251.18 rather than C.R.C.P. 16 and 26, see C.R.C.P. 251.18(f)(4)(A), many of the discovery procedures of the civil rules are expressly incorporated by Rule 251.18. Much of their general, interpretative case law will therefore be equally applicable in the disciplinary context. The scope of discovery under the Colorado Rules of Civil Procedure, which we have characterized as very broad, Williams v. District Court, 866 P.2d 908, 911 (Colo.1993); Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo.1982), has included any matter relevant to the claim or defense of any part that is not privileged. C.R.C.P. 26(b)(1).

Even though these rules permit broad discovery, it is not unlimited. See Leidholt v. District Court, 619 P.2d 768, 770 (Colo.1980). The discovery process can be abused by disproportionate and inappropriate requests that increase the cost of litigation, harass an opponent, or tend to delay a fair and just determination of the legal issues. Id. Discovery must also be limited to avoid unnecessarily infringing upon privacy and confidentiality. Corbetta v. Albertson’s, Inc., 975 P.2d 718, 720 (Colo.1999). While the information sought in discovery need not be admissible at trial, it must at least be reasonably calculated to lead to the discovery of admissible evidence. Martinelli v. District Court, 199 Colo. 163, 168, 612 P.2d 1083, 1087 (1980).

Because a balance must be struck between the need for information and these countervailing considerations, a motion to compel discovery is generally committed to the discretion of the trial court, and its determination will be upheld on appeal absent a clear abuse of discretion. Williams, 866 P.2d at 911; Gagnon v. District Court, 632 P.2d 567, 569 (Colo.1981); see also Bond v. District Court, 682 P.2d 33, 40 (Colo.1984); In re Marriage of Mann, 655 P.2d 814, 816 (Colo.1982). Where, however, it is clear that the trial court misconceives the materiality of certain matters to the proceeding before it, its assessment of the relevance of information tending to prove those matters or the likelihood that such information will lead to the discovery of relevant evidence is also necessarily affected.

A. STANDARD OF CARE

The respondent explained that he sought discovery of the past practices of the reporting attorney and his office in connection with the appointment of arbitrators, as relevant to the standard of care applicable to the profession in choosing arbitrators and making disclosures. The Presiding Disciplinary Judge considered discovery relative to such a standard of care appropriate, but only to the extent that it might relate to a mitigating factor. Relying on language from People v. Reichman, 819 P.2d 1035 (Colo.1991), the disciplinary judge found that the conduct of other lawyers could be taken into account as mitigation in sanctioning an attorney for misconduct. In response to objections that the reporting attorney had nevertheless not been retained or endorsed as an expert witness, the PDJ made clear that he did not consider the standard of care or practice to be a matter requiring expert opinion but that the defendant or any other lawyer in the state with knowledge of the standard of practice would be subject to subpoena on that issue.

This court has consistently recognized the ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) as the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct. In the Matter of Pautler, 47 P.3d 1175, 1183 (Colo.2002); In the Matter of Attorney C., 47 P.3d 1167, 1173 (Colo.2002); In re Myers, 981 P.2d 143, 144 (Colo.1999); In re Quiat, 979 P.2d 1029, 1042 (Colo.1999); People v. Susman, 787 P.2d 1119, 1120 (Colo.1990). The purpose behind the creation of these Standards was to enhance the consistency of sanctions imposed in attorney disciplinary proceedings. See ABA Standards, Preface 01:801-01:803. The Standards describe a range of available sanctions and require, in choosing the appropriate one, consideration of the duty that was violated, the lawyer’s mental state, the actual or potential injury caused by the lawyer’s misconduct, and the existence of various aggravating or mitigating factors. ABA Standards 3.0.

The mitigating circumstances that may justify a reduction in the degree of discipline to be imposed, are enumerated by the Standards as:

(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcohol or drug abuse when;
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.

ABA Standards 9.32.

Even taking the PDJ’s reference to mitigation broadly, as including any consideration that might affect the sanction for a violation, neither the ABA Standards nor the prior holdings of this court suggest that the conduct of other attorneys or their personal interpretations of the rules of conduct are themselves relevant. Expert testimony concerning practice in a particular area of the law might be admissible under some circumstances, to assist the board with such things as the practical implications of ethical rules, the difficulty of their application, or even the way they are commonly understood among practitioners, but the conduct of other individual attorneys in similar circumstances will rarely if ever be relevant to establishing either the occurrence of a violation or the propriety of a sanction. The fact that other particular attorneys may have engaged in the same practice as the respondent, even if those attorneys are numerous, amounts to neither justification nor mitigation for violation of an ethical standard.

Both the mental state and motives of the respondent himself are clearly material to the propriety of a sanction. See ABA Standards 3.0 and 9.32(b). With regard to the imposition of sanctions, however, the mental state of the respondent refers to his intent or awareness with respect to either his conduct or a result of his conduct. See ABA Standards definitions. It does not refer to his awareness or construction of a particular ethical proscription or his intent to violate it. Cf § 18-1-504(2), C.R.S. (2001) (“A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense.”). Similarly, “the absence of a dishonest or selfish motive,” which is included among the enumerated mitigating factors of the ABA Standards for Imposing Sanctions, refers to the lawyer’s motive for his conduct, without regard to any awareness on his part whether that conduct is specifically proscribed as unethical. While not necessarily irrelevant, a respondent’s awareness that his conduct will violate an ethical proscription is not itself material.

By contrast, the fact that an attorney is acting in conformity with a commonly-accepted practice may very well be probative of his lack of improper motive or intent. Conforming to an accepted practice, either from a belief in its validity because of its general acceptance or merely as a matter of routine, although not dispositive, provides some explanation for the conduct apart from dishonesty or selfishness. But the question whether a practice is standard or accepted in the professional community is a matter of specialized knowledge or opinion. It is not rationally based on the perceptions of witnesses without specialized training or knowledge but arises only from particular experience with and knowledge of the legal community and area of practice. See CRE 701-702. Attempting to establish that a practice is commonly accepted by producing specific examples of conduct is too tenuous to justify the discovery of the prior behavior on practices of other particular attorneys.

Whether, or under what circumstances, an unconsenting witness might actually be forced to testify as an expert at trial need not be resolved here. It seems clear from the record that the reporting attorney in this case was never identified or retained as an expert witness by any party and was not subject to discovery as an expert witness by stipulation or order of the court, in the absence of which he should not have been subject to discovery as an expert witness. See C.R.C.P. 251.18(f)(4)(C)(iii); C.R.C.P. 26(b)(4)(A). In any event, however, it is difficult to envision circumstances in which a reporting attorney would not be entitled to protection from annoyance, embarrassment, oppression, or undue expense, see C.R.C.P. 26(c), if not actually infringement on privilege or confidentiality, see Corbetta, 975 P.2d at 720, as a result of a demand by the respondent in a disciplinary proceeding for materials concerning his awareness of legal standards in the community. The need is far too slight and the potential for abuse far too great to permit discovery of the files or opinions of a reporting attorney in a disciplinary proceeding under the guise of seeking mitigating evidence of common practices. Cf. In the Matter of Smith, 989 P.2d at 172 (emphasizing the need to protect those reporting attorney misconduct from abusive process in the form of retaliatory lawsuits).

And we have not before suggested otherwise. In People v. Reichman, 819 P.2d at 1039, where “the respondent’s motives and the erroneous belief of other public prosecutors that the respondent’s conduct was ethical” were referred to as mitigating factors, the decision of this court did not approve the admissibility of specific evidence of similar misconduct by other prosecutors or lay opinion concerning standards of practice, and it did not involve a question of discovery at all. More importantly, however, the erroneous belief of other public prosecutors (apparently as evidenced by published case law, id. at 1036), to which the decision referred, was not an erroneous construction of the proscription against dishonesty, fraud, deceit, and misrepresentation. It was a misconception about the effect of a competing duty to prosecute crime. The prominence of a belief that such a competing public duty would excuse or justify misrepresentation, although that belief turned out to be erroneous, was clearly relevant as an explanation for the respondent’s sanctionable conduct, apart from any dishonest or selfish motive. Our holding in Reichman never suggested that a less serious sanction might be appropriate merely because other prosecutors believed the conduct to be ethical or because they would have done the same thing themselves.

Permitting examination of the reporting attorney himself, as well as his files, for indications of his own prior conduct or his opinions about ethical or legal obligations concerning arbitral disclosures appears to have been based on a misunderstanding of their materiality and amounted to an abuse of discretion.

B. STATUTE OF LIMITATIONS

The respondent also asserted, and the disciplinary judge agreed, that a number of the documents were potentially relevant to the limitations period referred to in C.R.C.P. 251.32(i). Paragraph (i) is entitled, “Statute of Limitations,” and provides that a “request for investigation against an attorney shall be filed within five years of the time that the complaining witness discovers or reasonably should have discovered the misconduct.” Although there was little discussion of the rule at the hearing before the PDJ (or in the briefs before this court), there appeared to be a general acceptance by all involved that the rule would bar the disciplinary proceeding unless the reporting attorney requested the investigation within five years of his discovery of the conduct forming the basis for at least some of the charges. The PDJ’s order therefore permitted examination of the reporting attorney and documents for information relevant to the question when the reporting attorney learned of the conduct forming the basis of the charges.

Despite Rule 251.32(i)’s title, its actual text, which fails to bar the filing of a complaint or the administration of discipline and conditions its bar to a request for investigation upon the knowledge or negligence of a “complaining witness,” leaves the meaning of the rule far from clear. Whatever its precise nature and scope, however, the time bar created by the rule is expressly excused “for misconduct alleging fraud, conversion, or conviction of a serious crime, or for an offense the discovery of which was prevented by concealment, by the attorney.” Id. By expressing these exemptions in broad, generic terms — allegations of fraud, conversion, serious crime, or conduct involving concealment — the rule restricts the effect of any intended time bar to less serious kinds of misconduct.

Particularly, the term “fraud,” when not limited by context or express definition, has a generic meaning that includes virtually any kind of deception or unfair way of inducing another to surrender rights or property. See Nichoalds v. McGlothlin, 330 F.2d 454, 457 (10th Cir.1964); see generally Black’s Law Dictionary 660 (6th ed. 1990)(“A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.”). While the conduct involving dishonesty, deceit, or misrepresentation that is designated “misconduct” in RPC 8.4(c) might be considered broader than “fraud” in some contexts, the conduct of denying or failing to disclose a financial, business, or professional relationship in connection with appointment as an insurance arbitrator, which is the misconduct charged in this case, falls clearly within the meaning of “fraud” as that term is used in Rule 251.32(i). Therefore, neither the timing of the charged misconduct’s commission nor the timing of its discovery could bar the disciplinary proceeding in this ease.

IV. CONCLUSION

Because we find that the Presiding Disciplinary Judge misperceived the relevance of the opinion and prior conduct of a lay witness concerning a standard of care or practice for arbitral disclosures, and the relevance of the discovery by the reporting attorney of the alleged misconduct, we hold that the PDJ abused his discretion in fashioning the protective order in this case. The Rule is therefore made absolute, and the case is remanded for further proceedings consistent with this opinion.,

      . Prior to 1998, the official responsible for prosecuting ethical violations was designated the “Disciplinary Counsel.” See C.R.C.P. 241.4, 12 C.R.S. (1997). Since the 1998 amendments to the system, this body is now referred to as "Attorney Regulation Counsel.” See C.R.C.P. 251.3.

      . The subpoena duces tecum actually demanded:
      1) All records, documents, and files related to your service as an expert witness in any claim, arbitration, or litigation, including but not limited to PIP, UM/UIM., or mandatory arbitration matters.
      2) All records, documents, and files related to your service as an arbitrator in any claim, arbitration, or litigation, including but not limited to PIP, UM/UIM., or mandatory arbitration matters.
      Si All records, documents, and files in any claim, arbitration, or litigation, including but not limited to PIP, UM/UIM, or mandatory arbitration in which you were appointed an arbitrator.
      4) All records, documents, and files in which you selected or appointed an expert witness in the area of insurance, insurance coverage, or bad faith.
      5) All records, documents, and files in which you selected an attorney as an expert witness in any matter or area, or on any subject, including but not limited to attorney fees and costs in PIP or UM/UIM matters.
      6) Any documents reflecting your disclosures to parties in matters in which you were engaged as a testifying expert witness.

        7) All articles (including drafts) you have written for CTLA publications or any other legal publication pertaining to State Farm Insurance Company and all documents you reviewed or considered in the preparation of such articles.
      8) Copies of all requests for disciplinary investigation or civil lawsuits filed against you, your firm, or any former professional colleague with whom you have practiced law.
      9) A list of all cases or files in which you or other firm members or employees have served as an expert witness or arbitrator reflecting:
      (a) Date of appointment.
      (b) Compensation earned.
      (c) Person making the appointment.
      (d) Role served by the appointee.
      (e) Litigants or parties involved.
      (f) Identity of other arbitrators or experts involved.
      (g) Identity of all counsel involved.
      10) A list of cases or files in which you appointed another attorney as an expert witness or arbitrator reflecting:
      (a) Date of appointment.
      (b) Person appointed.
      (c) Compensation paid.
      (d) Role served by the appointee.
      (e) Litigants or parties involved.
      (f) Identity of other arbitrators or experts involved.
      (g) Identity of all counsel involved.
      11) Your files reflecting information you have gathered about State Farm Insurance Company, its claim-paying practices, and the policies, practices, and procedures of the attorneys it has hired.

      . See C.R.C.P. 251.32(i).

      . Effective Jan. 1, 2002, the precise language of C.R.C.P. 26(b)(1) was amended to comport with the 2000 amendments to F.R.C.P. 26(6)(1).

      . See generally Janet Fairchild, Annotation, Right of Independent Expert to Refuse to Testify as to Expert Opinion, 50 A.L.R.4th 680, 1986 WL 361487 (1986)(recognizing a split among jurisdictions concerning whether, or under what circumstances, a witness may be compelled to give an expert opinion, including consideration of such factors as whether the expert’s testimony will involve facts or opinion; the contractual basis of expert’s appearance; the availability of other qualified experts; the expert’s previous relationship with the parties or issues; and the inconvenience or hardship involved).


author: Justice RICE

text:
    In the Matter of Steven W. HICKOX, Attorney-Respondent.
    No. 01SA371.
    Supreme Court of Colorado, En Banc.
    Oct. 28, 2002.
    John S. Gleason, Attorney Regulation Counsel, Debora D. Jones, Assistant Regulation Counsel, Denver, Colorado, Attorney for Petitioner.
    George S. Meyer, Denver, Colorado, Attorney for Attorney-Respondent.
   Justice RICE

delivered the Opinion of the Court.

In this case, the People appeal the form of discipline imposed on Respondent, Steven W. Hickox. The Hearing Board found that Respondent violated Colorado Rule of Professional Conduct (RPC) 8.4(b) and C.R.C.P. 251.5(b) by pleading guilty to disturbing the peace, assault, and domestic violence. In addition, the Board found that Respondent violated Colo. RPC 3.4(c) and C.R.C.P. 251.20(b) by failing to report his guilty plea to the Regulation Counsel.

The Hearing Board, after considering the aggravating and mitigating circumstances, concluded that the proper form of discipline was a private letter of admonition. We granted review and now hold that the sanction imposed by the Hearing Board was insufficient. We impose a suspension for a period of six months.

I. FACTS AND PROCEDURAL HISTORY

Respondent, Steven W. Hickox, was admitted to the bar in 1981. This is the fourth time he has been the subject of disciplinary proceedings. He received private letters of admonition in 1992 and 1994 and a public censure in 1995. See People v. Hickox, 889 P.2d 47 (Colo.1995).

This proceeding arose out of an incident of domestic violence between Respondent and his estranged wife, Cinthia Belle. In 1997, after six years of marriage, Belle initiated a dissolution of marriage proceeding. In September 1999, two weeks before the permanent orders hearing, Belle went to the Respondent’s home, the former marital residence, to mark her personal property. While Belle was in the residence, Respondent suspected that she had removed the phone number of his girlfriend from a bulletin board. He became angry and grabbed Belle by her right wrist. He turned her right arm behind her back while escorting her up the basement staircase. Belle stumbled and fell. She crawled up the remaining stairs, regained her footing, and walked out of the house. Belle called the police and Respondent was arrested.

In December 1999, Respondent pled guilty to disturbing the peace, assault, and domestic violence. He received a deferred judgment and sentence for one year and was ordered to pay restitution. He was also required to attend thirty-six weeks of anger management counseling.

Soon after his guilty plea in the criminal case, Respondent learned that Belle had filed a grievance against him. He mistakenly believed that this relieved him of his obligation to self-report the conviction. Therefore, he failed to report his conviction to the Regulation Counsel as required by C.R.C.P. 251.20(b).

The Hearing Board found that Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) by pleading guilty to a criminal act and Colo. RPC 3.4(c) and C.R.C.P. 251.20(b) by failing to report his guilty plea. The Board concluded that Respondent’s conduct warranted only a private letter of admonition. The People petitioned this court for review and that review was granted.

II. ANALYSIS

The Hearing Board found that Respondent violated two rules of professional conduct. We do not disturb this finding. The only issue, therefore, is whether the sanction imposed by the Board was appropriate. After reviewing the discipline selected by the Board, as well as the mitigating and aggravating factors identified by the Board, in light of our prior decisions, we conclude that the sanction imposed by the Board was manifestly insufficient. The appropriate sanction in this case is suspension.

We will affirm the decision of the Hearing Board unless we determine that its findings of fact are clearly erroneous or that the form of discipline it imposed (1) bears no relation to the conduct, (2) is manifestly excessive or insufficient in relation to the needs of the public, or (3) is otherwise unreasonable. C.R.C.P. 251.27(b); In re Elinoff, 22 P.3d 60, 63 (Colo.2001). As in any other appeal, we review conclusions of law de novo. In re Quiat, 979 P.2d 1029, 1038 (Colo.1999).

The Hearing Board found, by clear and convincing evidence, that Respondent violated two Rules of Professional Conduct. Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) based on his pleading guilty to a criminal act. Rule 8.4(b) provides that it is professional misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Under C.R.C.P. 251.5(b), grounds for discipline include, “[a]ny act or omission which violates the criminal laws of this state.”

In addition, the Board found that Respondent violated Colo. RPC 3.4(c) and C.R.C.P. 251.20(b) based on his failure to advise the Office of Attorney Regulation Counsel of his conviction. Rule 251.20(b) requires that an attorney, “upon being convicted of a crime, ... shall notify the Regulation Counsel in writing of such conviction within ten days after the date of the conviction.” A violation of this Rule also constitutes a violation of Colo. RPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal).

The Board’s findings of fact are supported by the evidence and we will not disturb them. Instead, the only issue in this ease is whether the form of discipline imposed by the Hearing Board — a private letter of admonition — is manifestly insufficient in relation to the needs of the public.

There are four forms of discipline which the Hearing Board could impose: disbarment, suspension, public censure, or private admonition. See C.R.C.P. 251.6. The ABA Standards for Imposing Lawyer Sanctions (1991 & 1992 Supp.) describe the circumstances in which each of these sanctions may be appropriate.

Disbarment is appropriate where a lawyer engages in, (1) “serious ■ criminal conduct” such as crimes involving fraud or misrepresentation, theft, distribution of controlled substances, or murder, or (2) “any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation, that seriously adversely reflects on the- lawyer’s fitness to practice.” ABA Standard 5.11.

Suspension is appropriate when “a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.” ABA Standard 5.12 (emphasis added).

Public Censure is appropriate when a lawyer knowingly engages in “any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.” ABA Standard 5.13.

Finally, private admonition is appropriate when a lawyer “engages in any other conduct that reflects adversely on the lawyer’s fitness to practice law.” ABA Standard 5.14.

The presence of aggravating or mitigating factors may increase or decrease the sanction. See ABA Standards 9.2 and 9.3.

We hold that suspension is the appropriate discipline in this case. Respondent’s conduct satisfies the requirements of ABA Standard 5.12 in that he knowingly engaged in criminal conduct and the nature of the conduct “seriously adversely reflects on [his] fitness to practice.” The presumptive sanction is therefore suspension, not a private admonition as determined by the Hearing Board.

Specifically, Respondent’s conduct was undoubtedly “criminal.” Respondent stipulated prior to the hearing that he pled guilty to disturbing the peace, assault, and domestic violence. Athough the stipulation did not identify the specific statute or municipal ordinance to which Respondent pled guilty, Respondent’s attorney admitted that Respondent pled guilty to third degree assault, a class 1 misdemeanor. § 18-3-204, 6 C.R.S. (2002).

In addition, we conclude that Respondent’s conduct “seriously adversely reflects on [his] fitness to practice.” We have traditionally taken a serious view of misconduct by an attorney involving the infliction of bodily harm on another. In numerous recent decisions, we have considered similar conduct and found it sufficiently serious to warrant suspension. In each case, the length of the suspension depended on the seriousness of the assault and the aggravating and mitigating factors present. See People v. Musick, 960 P.2d 89 (Colo.1998) (approving a suspension of one year and a day where respondent physically assaulted his girlfriend on three separate occasions); People v. McGuire, 935 P.2d 22 (Colo.1997) (approving a suspension of six months where respondent, shortly after two DUI convictions, was convicted of disturbing the peace and damaging private property in connection with a domestic disturbance); People v. Nelson, 941 P.2d 922 (Colo.1997) (approving a suspension of thirty days where respondent was convicted of third degree assault); People v. Reaves, 943 P.2d 460 (Colo.1997) (approving a suspension of six months where respondent, within a span of fifteen months, was convicted of driving while ability impaired, as well as harassment and disorderly conduct arising out of two separate incidents of domestic violence); People v. Shipman, 943 P.2d 458. (Colo.1997) (approving a suspension of six months where respondent pled guilty to assault and battery arising from an altercation with his wife and later was convicted of driving while ability impaired); People v. Knight, 883 P.2d 1055 (Colo.1994) (approving a suspension of six months after respondent pled guilty to third degree assault on his wife where the evidence showed that he beat his wife on three separate occasions, threw her to the ground, and kicked her in the stomach).

Because Respondent was convicted of criminal conduct which “seriously adversely reflects on [his] fitness to practice,” we conclude that the presumptive form of discipline is suspension. However, this sanction may be increased or decreased depending on the presence of certain aggravating or mitigating factors. To support a private admonition in this case, as the Hearing Board ordered, we would expect to find substantial mitigating factors and few, if any, aggravating factors. However, our review reveals that while there were a few mitigating factors, there were also aggravating factors.

The Hearing Board identified three mitigating factors. See ABA Standard 9.32 (identifying factors which may be considered in mitigation). First, the Board noted that Respondent and Ms. Belle had no prior or subsequent incident of violence. Second, Respondent completed the thirty-six week anger management counseling program ordered by the court. Third, Respondent expressed remorse for his misconduct.

The Hearing Board also identified four potential aggravating factors: (1) the vulnerability of the victim, (2) Respondent’s substantial prior experience in the practice of law, (3) Respondent’s prior disciplinary offenses, and (4) the fact that Respondent violated multiple rules of conduct. See ABA Standard 9.22 (identifying factors which may be considered in aggravation).

First, the Board considered the vulnerability of the victim, Ms. Belle. The vulnerability of the victim is a proper factor to consider for aggravation. See ABA Standard 9.22(h); People v. Brailsford, 933 P.2d 592, 595 (Colo.1997). In Brailsford, respondent pled guilty to third degree sexual assault arising out of an attack on his wife. We held that the hearing board erred by not finding that the victim was vulnerable. Id. at 595. We noted that the respondent used the privacy associated with the marital relationship to assault his wife at a time and place when rescue was unlikely. Id. In addition, we noted that the victim was especially vulnerable because of the disparity in size of the parties. Id.

The People claim that Ms. Belle was vulnerable because she was in a weakened physical condition resulting from the effects of cancer treatment. In 1995, Belle was diagnosed with breast cancer and underwent substantial surgery, chemotherapy, and radiation treatment. There was evidence presented that she continued to be in a weakened state at the time of the incident. However, the Hearing Board found, by clear and convincing evidence, that Belle had recovered from the cancer by the time of the incident.. It concluded that she was not vulnerable and therefore it did not consider that as an aggravating factor. Although we might have found otherwise,, because this is ultimately a question of fact, we defer to the Hearing Board’s conclusion that the victim was not vulnerable.

The second aggravating factor considered by the Board was Respondent’s substantial experience in the practice of law. See ABA Standard 9.22(i). The Board concluded, however, that this factor was not relevant since greater or lesser experience would not necessarily make the misconduct at issue here less likely. We agree.

The third aggravating factor identified by the Board was the prior disciplinary record of the Respondent. This is the fourth time Respondent has faced disciplinary sanctions. None of the prior offenses involved a criminal conviction or failure to report a conviction. Respondent received a private letter of admonition in 1992 and another in 1994. In 1995, he was publicly censured for violating five separate disciplinary rules. See People v. Hickox, 889 P.2d 47 (Colo.1995).

In light of this history of prior discipline, the Hearing Board did not give proper weight to Respondent’s prior disciplinary record in determining the sanction. The Board concluded that because the prior violations were “remote in time” and unrelated to the current misconduct, they should not be “given great weight in arriving at the appropriate sanction.” People v. Hickox, 01PDJ042, (Nov. 8, 2001) (opinion and order imposing sanctions) at 6; see ABA Standard 9.32(m) (noting that remoteness of prior offenses is a mitigating factor).

However, in 1999, when this incident occurred, Respondent’s prior disciplinary offenses were only seven, five, and four years old, respectively. This is not “remote.” It is true that the prior disciplinary offenses involved misconduct that was different than the assault at issue here. However, prior disciplinary offenses need not be of a similar nature in order to be an aggravating factor. See ABA Standard 9.22(a). This court has frequently considered prior disciplinary conduct of a dissimilar nature an aggravating factor. See People v. Bertagnolli, 922 P.2d 935, 938 (Colo.1996) (noting that a prior disciplinary violation for making a false statement to an arbitration panel should be considered an aggravating factor when determining the appropriate sanction for conviction of two counts of third degree sexual assault); People v. Goldberg, 770 P.2d 408, 411 (Colo.1989) (noting that respondent’s “unprofessional conduct taken alone might not warrant suspension, but the lengthy history of repeated violations requires suspension.”); People v. Zinn, 746 P.2d 970, 971 (Colo.1987) (noting that respondent’s history of disciplinary violations for failing to diligently represent his clients, for failing to promptly withdraw from representation, and for making deceptive statements during representation, should be considered when determining his sanction for improperly communicating with an adverse party). We conclude that the Board erred in not weighing Respondent’s prior disciplinary offenses more heavily in determining the appropriate sanction.

Finally, the Board considered the fact that this case involved multiple disciplinary violations. Shortly after his guilty plea on the criminal charges, Respondent learned that Ms. Belle had filed a grievance with the Office of Attorney Regulation Counsel. He mistakenly believed that this relieved him of his obligation to self-report. The Board correctly found that Respondent’s failure to report his conviction violated Colo. RPC 3.4(c) and C.R.C.P. 251.20(b). However, because of Respondent’s “genuine misconception” about the applicability of the requirement and the absence of any adverse impact upon the regulatory process, the Board concluded that no increased sanction was needed.

The rule requiring attorneys to report a conviction is clear; it provides no exception for a mistaken belief or misconception regarding its applicability. Accordingly, the Board should have considered Respondent’s failure to self-report as an aggravating factor.

III. CONCLUSION

We hold that the criminal conduct in this case “substantially reflects adversely on [Respondent’s] fitness to practice.” ABA Standard 5.12. Therefore, the proper form of discipline is suspension. We recognize that the level of violence involved in Respondent’s conduct was less than that involved in some of this court’s prior cases involving domestic violence by attorneys. However, because of Respondent’s prior disciplinary record, we conclude that a suspension is warranted. Based on our review of the aggravating and mitigating factors, Respondent shall be suspended from the practice of law for a period of six months, effective thirty days after the date of this opinion.

      . Photographs of Ms. Belle's injuries were introduced at the hearing. They reveal severe bruising on her right wrist and other bruises on her left arm, left leg, and right hip.

      . Respondent argues that the Hearing Board sanction is consistent with the current practice of the Office of Regulation Counsel in granting diversion in domestic violence cases. He provides summaries of several recent diversion agreements where the level of violence was similar to that at issue here. Private discipline, such as private admonitions or diversion agreements, are not binding precedent and citation to them has been discouraged by this court. People v. Small, 962 P.2d 258, 260 n. 1 (Colo.1998).

      . Although we defer to the Board on this issue, there was substantial evidence presented at the hearing that would indicate to us that the victim was vulnerable at the time of the assault. From April 1995 through February 1996, Ms. Belle underwent surgery, radiation treatment, multiple rounds of chemotherapy, and a bone marrow transplant. The treatments resulted in osteoporosis, arthritis, and painful swelling in her left arm because of the removal of her lymph nodes. Although the extent to which she had recovered from these conditions was in controversy, it was undisputed that at the time of the assault she remained on disability benefits, was unable to work full time, and continued to suffer pain and swelling in her left arm. In fact, Respondent testified that he intentionally grabbed the victim by her right arm in order to avoid further damaging her injured left arm.

      . In that case, this court noted that because of the multiple offenses, it was a “close question” whether a public censure or a period of suspension was appropriate. Hickox, 889 P.2d at 49. However, because he acted negligently, rather than with a more culpable mental state, we accepted the stipulated sanction of public censure. Id. We noted, however, that "some members of the court would have rejected the stipulation because the recommended sanction was too lenient.” Id.


text:
    Robert J. REAVES, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 02PDJ048.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Nov. 19, 2002.
    Opinion issued by a Hearing Board consisting of the Presiding Disciplinary Judge ROGER L. KEITHLEY and Hearing Board Members THOMAS J. OVERTON and MARILYN L. ROBERTSON, both members of the bar.
   OPINION AND ORDER READMITTING ROBERT J. REAVES TO THE PRACTICE OF LAW

ATTORNEY REINSTATED TO THE PRACTICE OF LAW

On September 23, 2002, a reinstatement hearing was held pursuant to C.R.C.P. 251.29(b) before a Hearing Board consisting of the Presiding Disciplinary Judge (“PDJ”) and two hearing board members, Thomas J. Overton and Marilyn L. Robertson, both members of the bar. George S. Meyer represented Robert J. Reaves (“Reaves”), attorney registration no. 16675. James C. Coyle, Deputy Attorney Regulation Counsel, represented the People of the State of Colorado (the “People”). Patricia Gatewood, C.J. White, Ph.D., Sidney McDaniel, Herb Marcus and Fred Lopez testified on behalf of Robert Reaves, who also testified on his own behalf. Exhibits A and D were offered by Reaves and admitted into evidence.

The Hearing Board considered the testimony and exhibits admitted, assessed the credibility of the witnesses, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Reaves has taken the oath of admission and was admitted to the Bar of the State of Colorado on July 7, 1987, and is registered upon the official records of the Supreme Court under attorney registration no. 16675. Reaves was suspended from the practice of law for a period of six months by Order of the Supreme Court issued August 18, 1997. The suspension was effective immediately. People v. Reaves, 943 P.2d 460 (Colo.1997). The six-month suspension arose from three convictions consisting of driving while ability impaired, harassment, and disorderly conduct arising from two separate domestic violence incidents involving his wife.

In the first incident, Reaves was arrested on a domestic violence charge involving his wife on October 22, 1993. He pled guilty to harassment, a class 3 misdemeanor, see § 18 — 9—lll(l)(a), 8B C.R.S. (1986). He received a deferred judgment contingent on the completion of twenty-four months probation and forty-eight hours useful public service. He was also required to complete a domestic violence evaluation and required to abide by the evaluator’s recommendations. Reaves complied with the conditions of the deferred judgment and the matter was dismissed.

In the second incident, on November 27, 1993, Reaves was again arrested for domestic violence involving his wife. When the police arrived, Reaves did not answer the door. When the police gained entry twenty minutes later, Reaves falsely told them that he had been sleeping for the past two hours and asked them what was going on. He was taken into custody. He pled guilty to disorderly conduct, a class 1 petty offense, see § 18-9-106(l)(a), 8B C.R.S. (1986), and was placed on eighteen months probation.

In the third incident, Reaves was arrested on April 10, 1994 for driving under the influence of alcohol. Reaves pled guilty to driving while ability impaired and was sentenced to forty-five days in jail, suspended; twenty-four months probation; forty hours of Level II alcohol education, and forty-eight hours of useful public service. He was also required to use antabuse during probation, pay $416 in court costs, attend a victim impact panel, and regularly participate in the Colorado Lawyer’s Health Program for attorneys with substance abuse problems.

With regard to each of the above convictions, Reaves stipulated that his conduct constituted separate violations of Colo. RPC 8.4(b)(it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer) and C.R.C.P. 241.6(5)(any act or omission which violates the criminal laws of this state or any other state, or of the United States shall constitute grounds for discipline). Reaves stipulated that his failure to report each of the three convictions in writing within ten days of the conviction to the Office of Disciplinary Counsel constituted a violation of C.R.C.P. 241.16(b)(Every lawyer subject to these Rules, upon being convicted of a crime ... shall notify the Disciplinary Counsel in writing of such conviction within ten days after the date of the conviction). Reaves was ordered to pay costs of the disciplinary proceeding within thirty days of the date of the opinion. Reaves, 943 P.2d at 463.

Following his suspension in August 1997, Reaves worked as a teacher with neglected and delinquent juvenile offenders and children with behavior disorders at Denver Children’s Home and Mountview Youth Detention Center. He taught literacy and life skills to at-risk youth.

Reaves has been teaching eighth grade social studies to students at Martin Luther King for the last two years, and has consistently received outstanding teacher evaluations. Additionally, C.J. White, Ph.D, Chairman of the African-American Studies Department at Metropolitan State College employed Reaves as a part-time Adjunct Professor in that department, primarily in the areas of African-American studies and history. As indicative of his trust in Reaves, White asked Reaves to work as an appointed consultant/speaker to the community representing the African-American Studies Department at Metropolitan State College.

Sydney R. McDaniel, a CAC III Alcohol and Drug Counselor for the State of Colorado, confirmed that Reaves has abstained from the use of alcohol for many years, that he is in remission and has abstained from any use of alcohol for over eight years with no relapses.

Since the incidents giving rise to his suspension, there have been no further instances of domestic violence. Reaves attributed the domestic violence events as resulting directly from his alcohol abuse and anger control. His recovery is founded on anger management education, domestic abuse counseling, alcohol counseling, and his sustained sobriety. He has successfully rebuilt his marriage.

Reaves has remained current in the law by taking Continuing Legal Education courses. He has completed a total of forty-seven general and eight ethics credits since November 1999. For approximately an eighteen month period, Reaves performed paralegal services for an attorney who found Reaves to be competent and thorough. While performing paralegal activities, Reaves drafted pleadings and performed research.

Fred Lopez, an attorney with the Public Defender’s office for the Aurora Municipal Court who had supervised Reaves prior to his suspension, held Reaves’s lawyering skills in high regard. While under Lopez’s supervision, Reaves was known as a skilled trial lawyer who was always prompt and prepared. Lopez stated that he would be willing to re-employ Reaves.

During the course of the reinstatement hearing, the People stipulated that Reaves had substantially complied with the terms and conditions of the matters giving rise to his suspension, with all disciplinary orders, and with all of the requirements for reinstatement under C.R.C.P. 251.29. The People stipulated to Reaves’ reinstatement.

II. CONCLUSIONS OF LAW

Initiation of the reinstatement process begins with the submission of a Petition for Reinstatement. C.R.C.P. 251.29 provides in part:

(b) An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.

C.R.C.P. 251.29(c) requires that the attorney’s Petition for Reinstatement set forth, in part:

(3) The facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;
(4) Evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended attorneys;
(5) Evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

The attorney seeking reinstatement must establish the three elements set forth in the rule by clear and convincing evidence. See C.R.C.P. 251.29(d). Thus, an attorney who desires reinstatement after suspension must bear the burden of proving that he or she is: (1) rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized. Goff v. People, 35 P.3d 487, 494 (Colo.2000).

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. In People v. Klein, 756 P.2d 1013 (Colo.1988), the Supreme Court set forth criteria which must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. Klein requires:

Any determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the petitioner’s state of mind and professional ability, including character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, present business pursuits, personal and community service, and the petitioner’s recognition of the seriousness of his previous misconduct.

The Hearing Board accepted the People’s stipulation that Reaves has substantially complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The stipulation establishes that portion of the three-part reinstatement test and the requirements imposed by C.R.C.P. 251.29(c)(4).

Reaves’s prior disciplinary matter arose from three convictions, driving while ability impaired and two separate incidents of domestic violence. All three of the episodes reveal character deficits present at the time the events transpired. Reaves acknowledges that his character deficits emerged as a result of his alcohol abuse.

In an effort to understand the underlying reasons for his behavior, Reaves has sought professional evaluation and counseling. Reaves served twenty-four months probation including required use of antabuse, performed forty-eight hours useful public service, completed a domestic violence evaluation, completed forty hours of Level II alcohol education, attended a victim impact panel, regularly participated in the Colorado Lawyer’s Health Program for attorneys with substance abuse problems, and paid the costs ordered by the court. As a result of these activities he had successfully maintained his marriage with no further incidents of domestic abuse.

Reaves candidly recognizes the seriousness of his previous misconduct, and has actively taken numerous steps to prevent its reoccur-rence. Understanding that alcohol was the root of his problem, Reaves has undertaken therapy and classes for his alcohol addiction. He has had no recurrences of alcohol use during the last eight years.

Reaves has remained current in his study of the law through legal education courses, and, though his work as a paralegal, demonstrated competence in the practice of law. His prior supervisor spoke highly of his professional competence and confirmed that he would offer Reaves a position as an attorney once he was reinstated. More important than the opinion of those for whom he has worked, however, is Reaves’s own conduct.

Reaves’s willingness to counsel at-risk youth and share with them his own mistakes is strong evidence of his genuine understanding of his prior misconduct and real character change. During his suspension, Reaves contributed to the community by renewing his Colorado teacher’s license and teaching middle school at Martin Luther King Jr. High School. He also taught neglected and delinquent juvenile offenders at the Denver Children’s Home and Mountview Youth Center. Reaves has continued teaching students as a part-time faculty member in the African-American Studies Department at Metropolitan State College. In that capacity, Reaves also performs community service by community outreach in his appointed role as representative of the African-American Studies Department.

Reaves expressed sincere remorse for his actions resulting in the underlying disciplinary proceeding, is committed to remaining substance free, and is committed to contributing to society through the practice of law.

Under the factors set forth in Klein, 756 P.2d at 1016, and Goff, 35 P.3d at 494, and the requirements of C.R.C.P. 251.29, Reaves established by clear and convincing evidence that he is rehabilitated, has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline, and is fit to practice law.

Recognizing that recurrence of substance abuse is an ever-present possibility among those addicted to substances, Reaves’s reinstatement to the practice of law is expressly conditioned upon his abstinence from all alcohol and non-prescription drug use for a period of twelve months. See C.R.C.P. 251.29(e).

III. ORDER OF REINSTATEMENT

It is therefore ORDERED:

ROBERT J. REAVES, attorney registration number 16675 is reinstated to the practice of law effective thirty-one days from the date of this order subject to the following conditions:

1. Reaves shall abstain from all alcohol and non-prescription drug use for a period of twelve months. In the event the Office of Attorney Regulation Counsel becomes aware that Reaves has violated this condition, the reinstatement order shall be subject to revocation upon motion of the People.
2. Reaves shall pay all the costs of the reinstatement proceeding. The People shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days thereafter to file a Response.

      . Although Reaves was only suspended for a period of six months, he did not apply for reinstatement within the time frame set forth in C.R.C.P. 251.29(B).

      . The Complaint did not charge Reaves with a violation of Colo. RPC 8.4(c) for attempting to deceive the police.

      . C.R.C.P. 241.6 was replaced by C.R.C.P. 251.4 effective January 1, 1999.

      . Effective January 1, 1999, Disciplinary Counsel was designated as the Office of Attorney Regulation Counsel. See C.R.C.P. 251.3.

      . C.R.C.P. 241,16 was replaced by C.R.C.P. 251.20 effective January 1, 1999.

      . This subsection incorporates the concept that neither the passage of time nor the absence of additional misconduct, standing alone, is sufficient to establish rehabilitation. See In re Sharpe, 499 P.2d 406, 409 (Okla.1972).