I respectfully dissent. The case against Respondent should be dismissed for failure to prove by clear and convincing evidence that Respondent violated Colo. RPC 8.8(d).
This disciplinary action arises from two criminal proceedings in which exculpatory information first came to the attention of the Respondent-prosecutor (a) the day before and (b) a few hours before scheduled preliminary hearings. Both involve allegations that *541the new information should have been disclosed to defense counsel prior to the preliminary hearing and before any criminal charges were even bound over to the district court, much less set for trial. In each case, the exculpatory information was in the possession of the defendants' counsel within two or three days of the first time it came to the attention of the Respondent. Although the majority has been unable to cite any case standing for the proposition that facts such as these justify a conclusion that Colo. RPC 3.8(d) has been violated, the Respondent is held to have violated that Rule and is being publicly reprimanded.
The majority opinion adopts a rule of disclosure by prosecutors in criminal cases that goes beyond the requirements of due process, beyond the clearly understood meaning of Rule 16 of the Colorado Rules of Criminal Procedure and beyond any reported case in the United States. Its scope places at serious risk the license to practice law of any prosecutor who delays for a moment in disclosing information which may be exeulpato-ry without allowing any period even to verify the validity of any such allegedly exculpatory information. This ruling places a substantial club over prosecutors in the hands of the defense which can be unrelated to the merits of the criminal case. Moreover, the majority decision places the disciplinary authorities in the position of overseeing, second-guessing, and ultimately exercising a continuous invisible hand over the prosecution of criminal cases.
The rule adopted by the majority, even if it were to be deemed correct, should only be adopted clearly, openly and in advance of its application by a specific rule-making proceeding conducted by the Colorado Supreme Court and its appropriate advisory rule committees after due and open deliberation.
Although I see nothing in the facts of this case that would warrant public discipline against Respondent, given the majority's determination that Respondent has violated Colo. RPC 3.8(d), I agree that the punishment should be a public reprimand. Unless the majority decision is reversed, its expansive view of a prosecutor's obligations will lead to disciplinary actions and injuries to the livelihood and professional reputations of prosecutors. Thus, it is crucial that this decision be made as public as possible so that all prosecutors might have notice of the far-reaching principle adopted herein. The overriding necessity to make this interpretation of Colo. RPC 8.8(d) more available, and to create the deterrent effect on prosecutors that is apparently being sought here, requires that this disciplinary action be made public. '
The facts found by the majority involve few significant disputed facts, although the implications of some of them are worth further comment below. I agree with the majority that the central issue is whether, in either or both of the criminal cases at issue here, the admitted disclosure of all facts known by the Respondent, within two or three days after she herself first became aware of them and at the very outset of the criminal proceedings, was not "timely" as required by Colo. RPC 83.8(d). I would further add, that the issue must include the determination that the failure to disclose those facts immediately was "clearly and convincingly" untimely. C.R.C.P. 251.18(d).
It is useful to understand what this case does not involve:
e This case does not relate to a prosecutor who completely failed to disclose a fact that "tends to negate the guilt of the accused or mitigates the offense" (hereafter, for brevity, referred to as "exculpatory information"), as in Committee on Prof'l Ethics v. Ramey, 512 N.W.2d 569, 572 (Iowa 1994), or in State v. Harwood, 94 Idaho 615, 495 P.2d 160, 162 (1972)(reversing eriminal conviction where the prosecutor, who was not being disciplined, failed to turn over crucial ballistics information), cited by the majority;
It does not relate to a case where a prosecutor withheld exculpatory information until the trial was virtually completed, or in which the prosecutor delayed turning over exculpatory information because of any personal animus toward the defense counsel, as in Office of Disciplinary Cnsl. v. Jones, 66 Ohio St.3d 369, 613 N.E.2d 178 (1993);
*542e It does not involve a prosecutor failing to comply with court ordered disclosures that had the effect of allowing criminal proceedings to drag on for months longer than they otherwise would have, as in Cuyahoga County Bar Ass'n v. Gerstenslager, 45 Ohio St.3d 88, 543 N.E.2d 491 (1989);
e It does not involve a conviction of a greater crime or imposition of a more severe punishment than would otherwise have been given;
e -It does not involve a case in which the prosecutor affirmatively mislead defense counsel about exculpatory information;
e It does not relate to a case where the prosecutor was found to have violated the Colorado Rules of Criminal Procedure relating to disclosure requirements or was found in contempt of court or where any other sanction was imposed for the prosecutor's impropriety;
e It does not involve the defense being saddled with greater expense in defending the case than would have occurred if the exculpatory information had been given earlier; and
*e It does not even involve a case in which the prosecutor waited a month, or a week before providing the exeulpatory information to the defense, or waited until closely before trial to reveal the information.
Regulation counsel must establish its claims by "clear and convincing evidence." C.R.C.P. 251.18(d). While there is little dispute about the underlying events in this proceeding, and to that extent the evidence is clear and convincing, the key factor which must be proven here is whether the Respondent's disclosures were proven clearly and convincingly to be untimely. Since there apparently is no law setting forth how timeliness should be interpreted,21 one must set forth some analysis as to how the word "timely" is to be viewed.
In addition to the total absence of case authority supporting the majority's conclusion or providing fair notice to the Respondent that her actions were disciplinable, among the troubling features of the majority's ruling is that the determination of unethical conduct has not taken into adequate account the existence and language of rules that all prosecutors know exist and use on a daily basis - the Colorado Rules of Criminal Procedure.
The failure to disclose certain exculpatory information to criminal defendants was first identified as a constitutional violation with the seminal opinion of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, a defendant's conviction for murder was reversed upon the post-trial revelation that the prosecution had failed to disclose an accomplice's confession to the homicide. The Supreme Court found that the total withholding of crucial information from the defendant violated the defendant's right to due process of law under the United States Constitution.
However, under Brady and its progeny, the undisclosed information had to be "material" in the sense that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); and see People v. District Ct., 808 P.2d 831, 834 (Colo.1991).
In 1970, the Colorado Code of Professional Responsibility, DR 7-103(B), adopted ethical disclosure obligations identical to the ABA Model Code requiring prosecutors to make "timely" disclosure of exculpatory information. That Code provision states:
A public prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant, . of the existence of evidence, known to the prosecutor or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. (emphasis added.)
*543As phrased and interpreted, these provisions were broader in what must be disclosed than the requirements under Brady. However, neither the commentaries explaining this Rule nor the cases interpreting it included any substantive discussion to the meaning of the term "timely."
Indeed, a glance at the Colorado decisions cited in the annotated version of the Colorado Revised Statutes, reflects that all of the cases were concerned about disclosures before and in conjunction with the trial of the case. See e.g., People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973); People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972); People v. Drake, 841 P.2d 864 (Colo.App.1992). No cited case has applied DR 7-108 (or its equivalent in any state) either in the context of disclosures actually made within three days of gaining knowledge or in the context of those made before or immediately following the preliminary hearing stage of criminal proceedings.
Following the promulgation of the ethical standards in the ABA Model Code, the American Bar Association first adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function § 3-38.11(a) in 1971. That subsection required prosecutors to make disclosures "at the earkest feasible opportunity." Although the Commentary to § 3-38.11 says it is "similar to" DR 7-108(B), it does not discuss the basis for or the intent of changing the words from "timely" to "at the earliest feasible opportunity." No cited case has applied Standard 3-83.11 either in the context of disclosures actually made within three days of gaining knowledge or in the context of those made before or immediately following the preliminary hearing stage of criminal proceedings.
In 1993, Colorado adopted its Rules of Professional Conduct, largely based on the ABA Model Rules of Professional Conduct. Colo. RPC 8.8(d) provides, in pertinent part:
The prosecutor in a criminal case shall:
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(d) make timely disclosure to the defense of all evidence of information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense ...
Providing for "timely" disclosure of exculpatory information maintains the original phraseology of the Code DR 7-108 without suggesting or adopting the phraseology of the intervening ABA Standard 3-38.11. Again, the Commentary for the Model Rule provides no explanation for the meaning of the word "timely" or for how or even whether that word should be read in context with the ABA Standard 3-38.11. The separate Colorado Comment relating to Colorado's version of Colo. RPC 8.8(d) simply states that:
Because this provision [Colo. RPC 8.8] is based to a considerable extent on the ABA Standards of Criminal Justice Relating to the Prosecution Function which many jurisdictions have adopted and because it deals with a specialized area of practice, the Committee felt it should leave this provision as it was set out in the Model Rules.
Thus, neither the ABA nor Colorado provided any clarification of what they thought was meant by the term "timely." No cited case has applied Colo. RPC 3.8(d) either in the context of disclosures actually made within three days of gaining knowledge or in the context of those made before or immediately following the preliminary hearing stage of criminal proceedings. As already noted, the only Colorado cases relating to this deal with disclosures in conjunction with the trial of the criminal case.
Perhaps the most important source for determining the meaning of the word "timely" as it relates to the prosecutor's duty to disclose exculpatory information is and should be found in the language of Rule 16 of the Colorado Criminal Rules of Procedure. Like Colo. RPC 8.8(d), Rule 16 is also a rule of the Colorado Supreme Court. It would be incongruous and dangerous for one rule of the Court to suggest that certain conduct is allowable while another rule of the same Court made the same conduct disciplinable. It would also be pernicious to have the more stringent standard contained in an opinion of the Presiding Disciplinary Judge which is not even generally published and which relates to a generally applicable and not clearly articulated disciplinary rule, rather than to have it set forth clearly in the Colorado *544Rules of Criminal Procedure which all practitioners recognize and utilize as specifically governing criminal proceedings. Colo. RPC 3.8(d) and Colo. R.Crim. P. 16 should be harmonized so that identical conduct is either permitted or prohibited under both rules. This is particularly true where the intended purpose of the two rules seems to be the same and to spring from the same background and rationale.
Rule 16 is designed to implement Brady and to provide for a system of disclosure of information, inculpatory and exeulpatory, before trial. Equally clearly, however, Rule 16 clearly expanded the rights of defendants to information beyond that constitutionally mandated in Brady.
Nothing in the cases cited by the majority opinion supports the majority's interpretation of the timeliness requirement as being immediate. Nor is it apparent that Rule 16 requires or contemplates such drastic measures. Rule 16 Pt. I(a)(1) requires prosecutors to disclose certain specified information including police reports, witness and expert statements, grand jury transcripts, physical evidence, wiretaps, prior criminal records of witnesses, and a list of trial witnesses. Subsection (a)(2) requires disclosure of exculpatory information. Subsection (b)(1) requires disclosure of police reports, witness statements, physical evidence and the witness list "as soon as practicable but not later than twenty days after the defendant's first appearance at the time of or following the filing of charges, ..." Subsection (b)(8) provides that all other disclosures (including exeulpa-tory information) are to be made "as soon as practicable but not later thon thirty days before trial" Thus, whereas Colo. RPC 3.8(d) requires disclosure in a "timely" fashion, Rule 16 states that the disclosures are to be made "as soon as practicable." Rule 16 says nothing to suggest that disclosures must be made immediately. Rule 16 suggests that the most definitive and objective feature of disclosure is that it be made either within 20 days of official charges being made (if they are the documents and evidence that were likely to be used in making the charging decision), or at least 80 days before trial.
The factual foundation presented to the Hearing Board shows that Skidmore involved allegations of domestic violence by a woman who accused her boy friend of shoving or pushing her and causing a stereo she was carrying to fall and break her finger. The preliminary hearing was set for the afternoon of May 19, 1998. On either May 18 or the morning of May 19, Respondent noticed for the first time a handwritten letter which had been attached to the file which purported to be a recantation by the victim claiming that her injury was merely caused by an accidental bumping. The majority finds that Respondent's mailing of this letter to the defendant's lawyer the next day, after the defendant waived his preliminary hearing, was not "timely."
Although the Respondent did not assert that she doubted the authenticity of the letter, she did recognize it as consistent with a familiar pattern of recantation by domestic abuse victims. There is nothing in the majority's ruling, however, that would excuse immediate disclosure of the information just because the prosecutor wished first to verify the authenticity of or cireumstances surrounding the letter. The majority states that Respondent "had sufficient time and opportunity" to disclose the information to the defense counsel. However, it is virtually impossible to conceive of a situation, given today's means of instant communications, in which the prosecution would ever not have sufficient time and opportunity to disclose information. Thus, it is apparent that the majority has read the word "timely" in Colo. RPC 8.8(d) to mean "immediately."
Indeed, Attorney Regulation Counsel in its Brief Concerning Discipline was clear and straightforward as to its view of this matter:
It is the position of the Regulation Counsel that Colo. RPC 8.8(d) imposes an obligation to immediately disclose evidence of an exculpatory nature without regard to the nature of the pending proceeding or the materiality of the evidence to the proceeding.
(Id. at 3; emphasis added.)
The majority asserts that had the defense counsel known of this letter he might not have waived his right to a preliminary hear*545ing and that defendant was deprived of the "possibility" that he might have been able to persuade the county court judge conducting the preliminary hearing that the victim's testimony was "incredible as a matter of law."
In his testimony to the Hearing Board, the complainant-defense counsel (who was the same defense lawyer in both cases and the same complainant in both disciplinary charges), made the genuinely astonishing assertion, as noted in the majority opinion, that he had advised his client to waive the preliminary hearing and face felony charges because "a jury of twelve was strategically more favorable than a jury of six." In other words, defendant's counsel claims he told the defendant that it was better to face the possibility of a felony domestic abuse conviction than to be assured that he could only be faced with a third degree misdemeanor conviction. Notwithstanding this testimony, the majority credits complainant's assertion that if he had known of the letter he would have subpoenaed in the victim to testify in person at the preliminary hearing in an effort to prove that she was "incredible as a matter of law." Due to this highly speculative possibility, the majority has determined that even at the stage of a preliminary hearing a prosecutor must, at the potential cost of his or her ability to practice law, hand over this information essentially immediately.
In any event, almost immediately after complainant received the exculpatory information, he filed a motion for sanctions against Respondent. In fact, the district attorney's office dismissed the criminal charges shortly thereafter because it had then personally interviewed the purported victim. There is no evidence that the dismissal had anything to do with the sanctions motion.
Under this application of Colo. RPC 8.8(d), a prosecutor will have no opportunity to determine whether any exculpatory information, such as a handwritten letter, has been coerced or is even genuine, before having to deliver it to the defense months before the defendant would have any substantive use for the information.
The majority's new rule seems particularly unnecessary when one considers the level of the examination of proof required and al-
lowed at a preliminary hearing in Colorado. The law is clear and was recently summarized by the Colorado Supreme Court in People v. Hall, 999 P.2d 207, 221 (Colo.2000):
To establish probable cause in a preliminary hearing, the prosecution must "present evidence sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that the defendant committed the crime charged." The prosecution does not have to establish ... even the likelihood that the defendant committed the crime.
... The court must view all the evidence and draw all inferences in favor of the prosecution, and the court must not accept the defendant's version of the facts over the legitimate inferences that can be drawn from the prosecution's evidence. The court should not review the merits of the prosecution's factual assertions because that function should be left for the trier of fact if the case goes to trial. (Citations omitted.)
Given this state of the law, it is genuinely speculative to assume that even the immediate disclosure of the information available to the prosecutor would have or could have made any difference whatsoever in the outcome of the proceeding. Nor would the two 'or three day delay in disclosure have made any difference as to the defendant's conviction or level of punishment.
The stepbrother sexual abuse case presented to the Hearing Board was a sexual assault case against a minor boy involving an eleven year-old girl. Together with an independent witness, Respondent interviewed the eleven year-old victim two or three hours before the preliminary hearing. In that interview, Respondent learned that the victim was changing her story. The victim denied her earlier story that the defendant had committed sexual assault by oral-genital contact and told the Respondent that the defendant had committed sexual assault by rubbing his penis against her vagina. It is undisputed that Respondent knew from past similar experience that this defense counsel, complainant, would move to disqualify the entire Cortez, Colorado, district attorneys' office if Respondent were to tell him what *546the victim had told her and there was any subsequent variation of the victim's statement when the victim testified at the preliminary hearing. Defense counsel would claim that Respondent bad to be a witness in the trial to an inconsistent statement and, along with the rest of the lawyers in the office, should be disqualified under Colo. RPC 3.7.22
For reasons beyond Respondent's control, the independent witness was unable to prepare her written statement of the victim's interview until the next day - the day after the preliminary hearing. When this statement was completed, it was sent to the defense counsel and was received by him two days after the preliminary hearing.
Instead of risking disqualification of the entire office, a serious problem in a small and relatively remote location like Cortez, Respondent decided to make the defense counsel aware of the change in statement by asking the victim about it while she was testifying at the preliminary hearing. The victim in fact testified about her different version of the sexual assault, and defense counsel cross-examined her vigorously on the change. Nonetheless, Respondent did not specifically elicit the single fact that the vice-tim denied having previously said that the defendant had engaged in oral-genital contact.
Complainant-defense counsel speculates, and the majority agrees, that had he known all of the details of the victim's changed statement he might have been able to persuade the judge that the victim was "incredible as a matter of law." Again, the majority ruling in this case places the burden on a prosecutor to disclose every bit of exceulpato-ry information immediately, at the risk of her ability to practice law and her professional reputation, even though such a step would occur months before trial and at the risk of disqualifying the entire office.
The majority rejects the position that Respondent should have been allowed to take the simple step of having the independent witness reveal the contents of the interview, even though that only took a couple of days and was accomplished long before any prospective trial or substantive hearing in the case. As before, on learning the new information, the complainant immediately filed another motion for sanctions against Respondent, which were not granted. This stepbrother sexual abuse case was also dismissed on the district attorney's motion well before trial.23
The adoption of the rule applied by the majority will certainly give disgruntled defendants and their attorneys ample grounds for complaining about any failure to disclose exculpatory information, regardless of how important or tangential, within minutes of the time it is received. Indeed, given the concern expressed by the majority in the Skidmore matter that Respondent allowed her earlier tendered plea offer to stand for a day even after she became aware of the letter, it is easy to anticipate that defendants routinely will be seeking disciplinary sance-tions every time they enter a plea and discover that the prosecutor did not tell them that the prosecutor had just learned that some witness (regardless of the importance of the witness) was going to be out of town for trial.
It requires little imagination to anticipate prosecutors' abiding sense of paranoia when, after reading this decision, they realize that Respondent here was given leniency because of her inexperience, lack of explicit knowledge about the extent of the reach of Colo. RPC 3.8(d), and the fact that she consulted with her boss on one of the matters first. Experienced prosecutors will properly fear for their licenses and not just public humiliation.*54724
It requires little speculation to imagine the opportunities the Office of Attorney Regulation Counsel will have to prosecute prosecutors for events which result in no harm, do not relate to the guilt or innocence of the defendant and may well be used for harassing, intimidating, disqualifying, vindictive, or punitive purposes by defendant's counsel (although such motives would not be any defense to the disciplinary charges).
It is clearly within the province of the Supreme Court of Colorado to decide that in fact it wants prosecutors to disclose all matters "immediately," without considering the significance or insignificance of the information, and without regard to the collateral consequences of having to make such instan-tancous decisions. However, there is nothing in either Colo. RPC 8.8(d) or Rule 16 that suggests that such a determination has yet been made by the Supreme Court. If the Supreme Court wants to take this action, it could do so by unequivocal amendment to the most pertinent set of rules applicable to criminal prosecutions - the Colorado Rules of Criminal Procedure and specifically Rule 16. Since the Court has not done so, it does not seem appropriate for this Hearing Board effectively to create such a largely invisible amendment to Colo. R.Crim. P. 16.
IV. ORDER
It is therefore ORDERED:
1. PAMELA F. MUCKLOW is PUB-LICALLY CENSURED effective thirty-one days from the date of this Order;
2. Pamela F. Mucklow is ordered to pay the costs of these proceedings within sixty (60) days of the date of this Order;
3. The People shall submit a Statement of Costs within fifteen (15) days of the date of this Order. Respondent shall have ten (10) days thereafter to submit a response thereto.
. This fact, by itself, raises some doubts as to whether in a case as unprecedented as this, it can be claimed to be clearly and convincingly untimely.
. Although outside the issues raised by the present complaint, the fact that such a tactic has been used by this and other defense counsel seems to be a highly questionable use of the Rules of Professional Conduct.
. Given the lack of any appreciable harm in either case and the fact that a trial date had not yet even been set in either case, one must suspect that it was not the complainant's finely tuned ethical sensitivities [but cf., text accompanying note 22, above] that caused him to file, first, motions for sanctions in the trial courts and, then, the present disciplinary complaint. One might speculate that it could have had more to do with the fact that Respondent's boss, the new District Attorney, had recently won election a few months before by beating the incumbent District Attorney - the complainant.
. Presumptively, Respondent's boss would not have gotten off with only a public censure had complainant grieved him instead of Respondent.