Colorado disbarment should serve as a warning to California lawyers

The Office of the Presiding Disciplinary Judge, the office appointed by the Colorado Supreme Court to preside over lawyer discipline, disbarred an attorney, formerly of the Denver District Attorney's Office, for violations of Colorado Rules of Professional Conduct 8.4(c) and 8.4(h)--sections prohibiting dishonest conduct and conduct harming others that adversely reflects on an attorneys' fitness to practice law.

The disbarred attorney, Yujin Choi, joined the Denver District Attorney's Office (DA's Office) shortly after being admitted to the Colorado Bar in May 2019, where she worked until her termination on Nov. 2, 2022.

The events leading to Choi's termination and ultimate disbarment occurred over the last two weeks of October 2022. On the evening of Friday, Oct. 14, while at a happy hour with some co-workers, Choi texted a supervisor (who was not present at the happy hour) that she had received a "disgusting" text from a person in the DA's Office. When asked to identify the author of the text in question, Choi declined. However, shortly after this exchange, Choi told her coworkers she received a harassing text message from Daniel Hines, a DA's Office investigator whom Choi reported in 2021 for making a harassing comment and showed her coworkers the text. About an hour later, Choi sent her supervisor screenshots of three additional texts purportedly from Hines, and sent the same screenshots to two other coworkers, telling the coworkers that the texts were from Hines. The first text in the screenshot, the text that Choi showed her coworkers at the happy hour, displayed a time stamp showing the text was sent over forty minutes after Choi initially reported receiving a harassing text to her supervisor.

The following Monday, Choi approached another of her supervisors and reported receiving sexually harassing text messages from Hines. Further, one of the coworkers present at the happy hour reported the text messages to her supervisor--leading the district attorney to open an investigation.

The next day, when Choi was asked to participate in a meeting related to the investigation, Choi said she did not want the matter investigated nor did she want to make a statement. Later the same day, the investigator confronted Hines with a printout of the text messages. Hines denied sending the texts, and, among other things, offered his iPhone for investigation, and voluntarily downloaded his cell phone records while the investigator observed to show he did not send the text messages in question.

When the investigator met with Choi, she allowed the investigator to inspect her phone, but the investigator was not able to locate the text messages at issue. Choi shared a previously downloaded copy of her cell phone records which showed she received a single text message from Hines on Oct. 15--conflicting with Hines' cell phone records. Immediately following this exchange, in a meeting with her supervisor, Choi was visibly upset and contemplated performing a factory reset of her phone. Her supervisor sent her home for the weekend.

That weekend, according to Choi, both her cell phone and her personal laptop suffered water damage such that recovery of the devices was unlikely. To resolve the conflict between Hines' and Choi's cell phone records, the investigator executed a search warrant for their cell phone records. The records from the cell phone company confirmed that Hines did not send Choi text messages. A further inspection of the cell phone record Choi sent the investigator revealed that, prior to sending the record, Choi edited the record to add Hines' phone number.

The People of the State of Colorado brought claims against Choi for violation of: (1) RPC 8.4 (c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation, except that a lawyer may advise, direct, or supervise others, including clients, law enforcement officers, and investigators, who participate in lawful investigative activities;" and (2) RPC 8.4 (h) which prohibits lawyers from engaging in "any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on a lawyer's fitness to practice law."

The People alleged that Choi: (1) manufactured the four text messages from Hines and disseminated them to coworkers; (2) altered her cell phone record so that it showed Hines texted her when he had not; and (3) destroyed her phone and laptop to avoid having them examined. The Hearing Board found that data extraction from Hines' cell phone coupled with the records from the cell phone company presented clear and convincing evidence that Choi fabricated at least one text message, and that, by sharing these fabricated texts with numerous co-workers, Choi intended to deceive the DA's Office. The alteration of her cell phone records was a further dishonest act in violation of RPC 8.4(c). While the Hearing Board found that Choi's alteration of her cell phone record and destruction of her personal property were acts intended to hamper the investigation rather than to directly harm others, the Hearing Board found that her creation and dissemination of fake text messages was done to intentionally harm Hines in violation of RPC 8.4(h).

The Hearing Board applied the American Bar Association's Standards for Imposing Lawyer Sanctions Standard 5.11(b): "Disbarment is generally appropriate when: . . .(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice." In analyzing the aggravating and mitigating factors that supported their decision, the Hearing Board particularly focused on Choi's refusal to acknowledge the wrongful nature of her conduct and what it suggested about her ability to be rehabilitated as justification for her disbarment.

California does not have a rule similar to Colorado's RPC 8.4 (h). California Rule of Professional Conduct 8.4(c) varies from the language of Colorado's RPC 8.4(c) only in that it adds that the misrepresentation must be "reckless or intentional"--language added to clarify an attorney's negligent misrepresentation is not grounds for disciple under this rule. Given California's history of disciplinary proceedings for violation of California's RPC 8.4(c), Colorado's disbarment of Choi, a first-time offender whose manufactured evidence was not related to a case before the court, could prompt the State Bar to argue for heightened discipline against California lawyers for violation of California's RPC 8.4(c).