I respectfully dissent. The sanction imposed is not appropriate for the conduct at issue, and is not comparable to other cases involving similar violations.
*587I. Pautler's Motive
As established by the majority opinion, Pautler was motivated to deceive Neal by a concern for public safety and the urgent need to bring Neal into custody. The majority also finds that Pautler had a "secondary motive," that is, to keep Neal talking about his crimes without benefit of counsel and thereby gain an advantage in subsequent legal proceedings. I do not find evidence that would support this conclusion.
Pautler did indeed testify that he feared that a defense attorney, if called to the seene, would advise Neal to stop talking to the sheriffs. Deputy Sheriff Zimmerman testified to having the same fear, because she felt it crucial that the officers maintain communication with Neal as long as possible until he was apprehended. Their belief was not without grounds. Public defender Aber testified that if called, a defense attorney's primary responsibility would have been to talk Neal into turning himself in. In response to a question as to whether it would be appropriate for a defense attorney to have advised Neal to stop talking to the police, Aber also testified that it would be "totally proper for a lawyer to tell a client to exercise his right against self-incrimination."
The witnesses are in agreement on this particular point, for good reason. Any one who has been involved with the criminal justice system is well aware that a competent defense attorney will, and should, advise a client to stop talking to the police so as prevent the suspect from incriminating himself. In almost any instance, it would be reprehensible for a prosecutor to pose as a defense attorney so as to keep a suspect talking, particularly if the purpose was to elicit damaging statements. But that is not the cireumstance here.
The tapes introduced into evidence show that Neal repeatedly emphasized his obsession with trust. Over the course of many hours, Detective Zimmerman gained Neal's trust, and as pointed out by the majority, was ultimately able to convince him to turn himself in. However, at the time that Neal requested an attorney, he was still not ready to actually surrender. This was made clear in a conversation subsequent to Pautler's in which Neal's friend (the broadcast journalist), tried to cajole Neal into starting the process of turning himself in. It was only after Zimmerman got back on the phone that Neal finally agreed to work out the details of his surrender and follow through.
Whether or not a public defender would have been able to accomplish the same result is not at issue. What is at issue is Pautler's state of mind, and I find it plausible and credible that he, Zimmerman, and the rest of the law enforcement team found it intolerable that their contact with Neal might be cut off at such a crucial juncture in the negotiations. Without opining as to whether Pautler followed the correct course of action, I do not find any evidence to attribute Paut-ler's statement (that he did not want a defense attorney to tell Neal to stop talking to the officers) to anything but a legitimate desire to keep Neal in contact with the negotiators for the purpose of effectuating his surrender.
Other evidence also belies the inference that Pautler was motivated by a desire to keep Neal talking about his crimes. The tapes show that by the time Neal requested a lawyer, he had already confessed, in great detail, to the crimes he had committed. In the short conversations that Pautler had with Neal, there was no attempt to elicit any information, and the tapes further show that after those conversations, the entire focus of the communication was to bring Neal into custody. There is furthermore no evidence to indicate that between the time that Neal was apprehended and the following morning, at which time Aber was appointed to represent him, that anyone tried to elicit any damaging information from Neal.
As Pautler himself now admits, the better course would have been for him to have contacted the public defender soon after Neal's apprehension and inform them of the ruse. However, in light of the other evidence produced at the hearing, the fact that Pautler did not personally advise the public defender of the deception is not enough to prove that he wanted Neal to keep incriminating himself. Although I find Pautler's explanation, that he knew that the public de*588fender would eventually learn of the ruse through discovery, to be somewhat cavalier, I do not find evidence to attribute a more duplicitous purpose to his silence. I therefore do not find that the aggravating factor of a selfish or dishonest motive has been established to a clear and convincing standard.
IL Actual and Potential Harm
I do not find, as an aggravating factor, the potential harm presented by the fact that Neal could have detected Pautler's deception. Had Pautler, as emphasized by the People's expert witness Sears, instructed a law enforcement officer to pose as a public defender, no ethical violation would have been found. Yet the risk would have been as great, if not greater, that Neal would have detected a deception. I do not disagree with the concept that it is important for attorneys not to personally perpetuate deceit, but that is not the point considered here. With regard to the issue of potential harm, I do not find that it arose solely and ineluctably as a result of unethical conduct. Nor do I find that Pautler's recognition that disastrous results could have ensued, had Neal discovered his ruse, to be particularly alarming in light of the risks that Pautler also perceived to be inherent in the other alternatives.
I do find that Pautler could have mitigated any potential or actual harm by contacting the public defender soon after Neal's arrest and advising them of what had occurred. Pautler testified that he knew his actions would be called into question, which shows that he anticipated that some issue would later arise, but on this record it is impossible to say more. I find only that Pautler knew that some issue would be raised, and based upon his experience, that he should have foreseen some challenge to the criminal proceedings which might have been moderated had he expeditiously disclosed the night's events to the public defender. I therefore find this failure to mitigate to be an aggravating factor.
III. Precedent from Prior Cases
Because I do not find that the aggravating factor of a selfish or dishonest motive has been established, I also find that most of the cases cited by the majority are not applicable here. In each of those cases in which a substantial sanction was imposed, the violation was committed for reasons of personal gain, sloth, or to skew the legal process to gain a tactical advantage. There are very few cases in which it was found that the attorney had a "good" motive underlying his violation. See People v. Reichman, 819 P.2d 1035 (Colo.1991); In the Matter of Malone, 105 A.D.2d 455, 480 N.Y.S.2d 603 (N.Y.App.Div.1984); In the Matter of John Matthew Chancey, No. 91CH348, (Review Board of the Ilinois Attorney Registration and Disciplinary Commission, April 21, 1994) In these cases, the most serious sanction was public censure. To the extent that prior cases should influence the imposition of a sanction, I find that these cases are more persuasive.
IV. Pautler's Failure to Recognize His Improper Conduct
As pointed out by the majority, an aggravating factor under § 9.22(g) is presented due to Pautler's testimony that if confronted with the same situation, he would do the same thing. Although I find it distasteful to second guess Pautler's actions and choices that night, and even have sympathy for the situation in which he found himself, I cannot agree with his belief that he does not, even in this extreme situation, have an obligation to obey the ethical rules.
Nevertheless, even though I agree that this aggravating factor is present, and that it is serious, I do not find that Pautler poses a risk to the Rules of Professional Conduct that is implied by the majority. Pautler has no prior disciplinary history, and enjoys a reputation for integrity even among the attorneys who have filed this grievance against him. If he is again struck by lightning, and placed in this extraordinary cireumstance, his actions can be judged accordingly at that time. But I find nothing in the record to suggest that he poses a substantial risk of violating the rules again, or does not take his ethical obligations seriously. On the contrary, the testimony presented shows that he has, until this point, followed them faithfully.
*589This is not to say that this aggravating factor should not be given some weight, only that I believe that the majority has accorded it too much weight because of its concern that Pautler poses a risk of ongoing violations, and that his sanction should serve as a lesson to deter similar conduct lest his example open the doors to "justifiable deception." I find no need to make an example of Paut-ler, because I perceive no general threat that other attorneys will see his case as an excuse to disregard the rules. The great majority of attorneys are motivated by a desire to conduct themselves ethically and avoid any violation. The fact that Pautler has been found in violation is itself a sufficient message, if one is needed, and increasing the sanction for this purpose is not necessary. Moreover, I do not find deterrent aimed at the legal community to be an appropriate factor in imposing sanctions on an individual.
Finally, I am concerned about the precedent this will set for future cases. Pautler's assertion that he would do the same thing is his, and his alone. The unfortunate consequence, however, is that the bar for violations of Colo. RPC 8.4(c) and Colo. RPC 4.3 has now been set at a 90-day suspension, even in cases where substantial mitigating cireumstances, including imminent harm to the public, no prior disciplinary history, cooperation with disciplinary counsel, the belief of other prosecutors that the violation was ethical, and excellent reputation, exists. Before this case, such a sanction was reserved for conduct that was far more self-serving and calculated. I find no reason to so precipitously raise the standard.
Absent the aggravating factors of failure to mitigate and refusal to recognize wrongful conduct, I would have found the sanction of public censure to be appropriate. Even so, a period of suspension should be minimal and held in abeyance pending a shorter period of probation.
For these reasons, I respectfully dissent from the majority's decision with regard to the imposition of the sanction.
IV. ORDER
It is therefore ORDERED:
1. Mark C. Pautler, registration number 06438, is SUSPENDED from the practice of law for a period of three months.
2, The period of suspension from the practice of law is stayed and Mark C. Pautler is placed on probation for a périod of twelve months. During the period of probation, Mark C. Pautler's practice of law is subject to the following terms and conditions:
A. Pautler will take and pass the Multi-state Professional Responsibility Examination.
B. Pautler will take 20 hours of acered-ited Continuing Legal Education in ethics in addition to that required by C.R.C.P. 260.2.
C. In all professional encounters subject to the prohibitions of Colo. RPC 4.8, Pautler shall be accompanied by and directly supervised by another attorney who has been licensed to practice law in Colorado for at least five years.
D. Pautler shall not engage in any conduct which results in the imposition of any form of discipline as provided in C.R.C.P. 251.6 or C.R.C.P. 251.7; an order of immediate suspension as provided in C.R.C.P. 251.8 or 251.8.5 or the filing of a Complaint provided in C.R.C.P. 251.14.
E. Failure to comply with any term or condition of the probation shall constitute grounds for revocation of the probation and imposition of the period of suspension.
3. Mark C. Pautler is ORDERED to pay the costs of these proceedings within sixty (60) days of the date of this Order.
4. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.