concurring in part and dissenting in part.
I join Section III of the majority's opinion affirming the Hearing Board's decision that Fisher violated several Rules of Professional Conduct. I dissent, however, from Section IV of the opinion, which denies Regulation Counsel's cross-appeal and affirms the Board's determination that Fisher did not violate certain other Rules of Professional Conduct. The majority acknowledges that the Board provided little guidance as to why it found no violation with regard to these allegations. Maj. op. at 1199. Yet it affirms the Board's decision based on the fact that it is able to "articulate a reason the Board could have been unconvinced of a violation." Id. at 1200 (emphasis added). In my view, we should not affirm a "no violation" determination by the Board simply because we can articulate a possible justification for that result. Instead, when the Board's rationale is sufficiently unclear so as to hinder our review of its "no violation" determination, we should remand the case to the Board.
Under CRCP. 251.27(b), we review the Board's factual findings under a standard of clear error, and its legal conclusions de novo. The problem in this case is that with regard to its determination that Fisher did not violate Rules 1.7(b), 8.3(a), 3.4(c), and 8.4(c), the Board did not set forth its rationale to a sufficient degree to enable us to apply the standard of review articulated by Rule 251.27(b). In other words, it is impossible to review the Board's determinations of "no violation" in this case because there are no factual findings or rationale to review. The majority recognizes this problem, noting that "Iwlhen the Board returns a finding of no violation, it does not make a factual finding that we can review." Maj. op. at 1199.
The majority's solution to this problem is to treat the Board's finding of "no violation" as the equivalent of a factfinder's verdiet of no liability in a civil case. See id. at 1200 (relying on In the Matter of Rosen, 198 P.3d 116, 119 (Colo.2008), which considered the regulation counsel's challenge to a no violation finding according to "the standard re*1205quired for a motion for directed verdict or motion for judgment notnotwithstanding the verdict" under the Rules of Civil Procedure (emphasis added)). The standard for granting either a motion for a directed verdiet or a motion for judgment notwithstanding the verdict is essentially the same: the verdict must be preserved unless "no reasonable person could reach the same conclusion as the jury." Hall v. Frankel, 190 P.3d 852, 862 (Colo.App.2008). Drawing on this standard, the majority holds that the Board's determination of no violation will be affirmed as long as "we can articulate a reason the Board could have been unconvinced of a violation, whether or not it represents the Board's actual reasoning." Maj. op. at 1200. In other words, if the majority can come up with a "possible reason{ ]" for the Board's determination it will affirm the Board, because a "reasonable person" could have come to that conclusion. Id.
The majority's assumption that the Hearing Board's determination of no violation should be analogized to a civil verdiet of no liability has remained largely unexamined by this court. See Rosen, 198 P.3d at 119 {adopting the analogy without discussion); maj. op. at 1199-1200 (relying on Rosen). In my view, the analogy is flawed. We require no more of a civil jury than a verdict of "no liability" or, in certain cases, short answers to specific questions. See generally CJI-Civ. 4th. But the Hearing Board does not return a verdict, as the majority suggests. Maj. op. at 1199-1200. Rather, the Board "shall prepare an optmion setting forth its findings of fact and its decision" - C.R.C.P. (emphasis added). At the very least, the Board's opinion must adequately set forth the grounds of decision so that we can review it under the standards set forth by C.R.C.P. 251.27(b).
Unlike the majority, I would not establish a dual system of review depending upon whether the Board found or did not find a violation. Our rules do not outline two different standards of review. See C.R.C.P. 251.19(a) and 251.27(b) (making no distinction between appeals of determinations of violations and determinations of no violations). The majority posits that it might be difficult for the Board to articulate why a violation was not proven, or that the panel members may be unconvinced that a violation occurred for different reasons. Maj. op. at 1199. Yet in my view, these concerns would apply equally to the Board's determination that a violation occurred.
The majority describes the difference between the review standards it articulates as "subtlle]." Id. at 1199. To be sure, reviewing factual findings for clear error where we have the Board's rationale, and determining whether a possible explanation can be found where we do not, are both deferential standards. What differs is the quality of our review. In the former instance, we have the benefit of the Board's explanation of how it viewed the evidence, how it applied the law to that evidence, and how it arrived at the result it did. In the latter, we are simply searching for a rational explanation for its result-which may or may not have been the grounds for its determination. Even the majority acknowledges that "a clear explanation of the short-comings of the evidence [leading the Board to find no violation] would facilitate our review." Id. at 1200. I see no reason why we would systematically hinder our review of no violation determinations.
The majority compounds this error by admonishing Regulation Counsel that their appeals should be few and far between. According to the majority, "[ajppeals from the Hearing Board's finding of no violation should be taken sparingly, as it is unusually difficult to show error." Id. at 1200. Demonstrating that the Board's factual findings are clearly erroneous in the case of a violation determination may also be "unusually difficult," but we have never suggested that appeals of violation determinations should not be brought. Again, I see no reason for us to discourage one side or the other from appealing in the attorney regulation context. Our duty is to ensure that the public is served by ethical and competent attorneys. C.R.C.P. 251.1(a). In my view, we can best discharge that duty by applying the same standards to all attorney regulation appeals.
The facts of this case illustrate the pitfalls of the majority's dual standard. Regulation Counsel alleged that Fisher violated Rule *12061.7(b), which prevents an attorney from representing a client if "the representation ... may be materially limited by ... the lawyer's own interests," Colo. RPC 1.7(b) (2007), unless the attorney "(1) reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation." Colo. RPC 1.7(b)(1)-(2) (2007). Regulation Counsel argued that, in taking an interest in the house to secure his fees, Fisher had a conflict of interest that would materially limit his representation of Ms. Varner. The Hearing Board concluded that "evidence of a conflict is not clear and convincing." Hearing Bd. decision at 10. Leading up to this conclusion, the Board stated that Fisher "had a right to collect his attorney's fees in the domestic court" and to "assert the lien in the action in which [he] performed his services." Id.; see also id. (noting again that Fisher "had a right to collect his fees"). The Board also stated that "there is no evidence to suggest [Fisher] did not earn the fees he collected." Id. (emphasis added). The Board then concluded that the evidence of a conflict was not clear and convincing. Id.
When read as a whole, the Board's opinion suggests that its no violation determination was based on a mistake of law-namely, that there can be no conflict of interest as long as an attorney had earned and had a right to collect the fees. The question posed by Rule 1.7(b), however, is not whether the fees were earned and could be collected, but rather whether the deed of trust on the residence securing those fees posed a risk that Fisher's representation of Ms. Varner "may be materially limited." See Colo. RPC 1.7(b) (2007). By positing a scenario under which the Board could have found no material limitation, maj. op. at 1201,1 the majority affirms a determination of no violation that the Board might not have reached had it not been harboring under a mistake of law. In my view, we should not affirm the Board's determination under these cireumstances, but rather remand the case.
I agree with the majority that we should defer to the Board's determinations. As the majority notes, "The advantage of having a trier of fact hear testimony is that she is able to evaluate the credibility of the witnesses, detect nuances in testimony, and determine the overall persuasiveness of the evidence." Id. at 1199. But that is precisely why the Board should set forth its analysis of the evidence that led it to the conclusion it reached, as opposed to this court coming up with a possible explanation for its conclusion. Because the majority affirms the Board's no violation determinations rather than remanding the case, I respectfully dissent from its opinion.
I am authorized to state that Chief Justice MULLARKEY and Justice RICE join in this dissent.. I disagree with the majority that its possible rationale could support the Board's finding of no violation. | It posits that
[the Hearing Board may have found that Fisher's interest would not negatively affect Ms. Varner. In fact, Ms. Varner and Fisher's interests were aligned with regard to the sale of the residence.
Maj. op. at 1201. Yet the interests of Ms. Varner and Fisher in the sale of the residence were not aligned. Ms. Varner's interest was to obtain the highest possible sale price. Fisher's interest was to obtain a sale price that was high enough so that his deed of trust would be paid off. Indeed, the majority concludes that, under Colo. RPC 1.8(a), the interests were "adverse." Maj. op. at 1196. Thus, under Rule 1.7(b)(1), the only ques-
tion is whether "the lawyer reasonably believe[d] the representation w[ould] not be adversely affected." Colo. RPC 1.7(b)(1). In my view, it would be difficult to show that one could reasonably believe that conduct categorically prohibited as adverse under 1.8(a) would not adversely affect an attorney's representation under 1.7(b)(1). I also disagree with the majority's focus on whether Fisher's representation was in fact affected by his interest in the residence. See maj. op. at 1201 (concluding that his interest did not negatively affect Ms. Varner). The question is not whether Fisher's interest in the residence did in fact adversely impact the representation, but rather whether he reasonably believed, at the time the conflict appeared, that it would not. See Colo. RPC 1.7(b)(1) (2007).