dissenting:
The majority holds that the hearing board concluded that Elinoff had the specific intent to commit bribery and that there was substantial evidence in the record to support this conclusion. While I agree there is substantial evidence to support such a conclusion, I believe it is unclear whether that is the conclusion reached by the hearing board. The board's opinion is ambiguous and does not reveal whether the hearing board believed Elinoff's testimony that he was only joking and attempting to teach his client a lesson. Thus, this case should be remanded to the hearing board to clarify its findings. Accordingly, I respectfully dissent.
I agree with the majority that it is the board's responsibility to measure the weight of the evidence and resolve the credibility of the witnesses in attorney discipline cases. People v. Robnett, 859 P.2d 872, 877 (Colo.1993). Moreover, factual findings of the board are binding on this court unless, upon review of the record as a whole, the findings are unsupported by substantial evidence. People v. Garnett, 725 P.2d 1149, 1152 (Colo.1986).
Here, the board's opinion leaves questions about whether the board found Elinoff's testimony completely credible and in fact believed that Elinoff was joking. Moreover, it appears that the board may have believed, somewhat inconsistently, that Elinoff was joking yet still had the specific intent to commit bribery. If the board believed that Elinoff was, in fact, only joking when he offered money to the officers, then the board could not have logically found that he had the specific intent to commit bribery.
Similarly, it is not clear whether the board found Elinoff's testimony at least partly incredible. Since the board found that Elinoff had the specific intent to commit bribery, it is logical that it found his testimony that he was only joking to be incredible. However, one member of the board wrote separately, concurring in the findings, but dissenting regarding the initial sanction imposed. In support of a more lenient sanction, this particular board member expressed his opinion that Elinoff made full and free disclosure to the board, admitted that his conduct was inappropriate, and testified truthfully. Moreover, in the board's second opinion, the board concluded that Elinoff's recognition of his misconduct, and other mitigating factors previously presented, warranted reduction of the sanction imposed. Thus, it seems to be an anomaly that the board lauded Elinoff for his credibility, yet must have found that his testimony was at least partly incredible.
The majority cites to a portion of the board's opinion, giving emphasis to certain language in one paragraph that supports the finding of specific intent to commit bribery. See maj. op. at 62-63. Specifically, the majority emphasizes the following statements of the board: "Elinoffs testimony leaves no doubt that his intent in offering the money to the officers was an attempt to convince them to release his client from custody.... Eli-noffs offer of money was unmistakenly an effort to influence the detectives' decision to jail the client." I agree that these statements are strong support for the majority's interpretation that the board found that Eli-noff had the specific intent to commit bribery.
However, when reviewing other statements in that same paragraph, a different interpretation is also possible. Specifically, the board finds:
He admitted that his purpose, or motive, in doing so [offering money to the police] was to prove to his client that the detectives would not release his client.... His belief that they would not do so does not alter his intent, it merely bears upon the potential of success.... Elinoffs motive may have been to prove to his client that nothing he could do would prevent the officers from transporting the client to jail. ... Whether his motive is characterized as joking or serious, Elinoffs offer of money to the officers to release his client was bribery.
These statements suggest that the board believed that Elinoffs offer of money to the officers was done in order to prove to his client that he would have to go to jail. Such a finding is inconsistent with specific intent to commit bribery. If Elinoff only intended to prove to his client that he was going to *66jail, then Elinoff could not also have had the specific intent to actually commit bribery. Similarly, if the board believed that Elinoff was joking about his offer to the police, then it is inconsistent for the board to have found specific intent to commit bribery. Thus, if the board believed Elinoff and found that he was either attempting to prove that his client was going to jail or that he was joking, then the board could not have properly found that Elinoff had the. specific intent to commit bribery. Therefore, it is possible that the board did not understand the nature of specific intent to commit bribery. As such, there is some question as to the board's meaning and, thus, the majority's interpretation.
I concede that it is likely that the majority has correctly interpreted the hearing board's decision to have found that Elinoff had the specific intent to commit bribery and was not merely joking with the officers. However, I am concerned that the probability that the majority's interpretation is correct flows more from skepticism about Elinoffs claim that he was joking than from a fair reading of the hearing board's opinion. A serious matter such as the one presented in this case should not be finally resolved while there is uncertainty regarding the correct interpretation of the board's opinion. Instead, this court should render a decision based on the undisputed, actual findings of the board, which are clearly articulated. This can easily be accomplished by simply remanding this case for clarification.
Most importantly, remand of this case for clarification by the board can be accomplished simply and quickly, and is required under the cireumstances of this case to ensure that the board's initial findings are what the majority interprets them to be. The simple fact that an interpretation of the board's decision is required in order to render a decision in this case warrants remand and clarification from the board. Accordingly, I would remand this case and request that the board clarify their findings.
MULLARKEY, C.J., joing in the dissent.