ABA Sanctions Standards Are Guideposts, Not Gatekeepers: Colorado Supreme Court Confirms Broad Scope of Colo. RPC 4.4(a) and Permits Use of ABA Standard 7.2 Beyond Enumerated Categories

Introduction

In In re Raykin, 2025 CO 12 (Colo. Mar. 24, 2025), the Colorado Supreme Court addressed two interlocking questions central to attorney discipline: (1) whether Colorado Rule of Professional Conduct 4.4(a) reaches attorney misconduct that does not concern methods of obtaining evidence, and (2) how the American Bar Association’s Standards for Imposing Lawyer Sanctions (2d ed. 2019) (“ABA Standards”) function in Colorado’s disciplinary framework—specifically whether ABA Standard 7.2 may guide sanctioning for professional-duty violations beyond the enumerated categories in ABA Standard 7.0.

The case arose from an attorney’s profane and disparaging outbursts during a hybrid IEP (Individualized Education Plan) meeting with public school personnel, attended by the attorney’s minor client and the child’s parents. Following an investigation by the Office of Attorney Regulation Counsel (OARC) and a disciplinary proceeding before the Presiding Disciplinary Judge (PDJ), a Hearing Board found a violation of Colo. RPC 4.4(a), publicly censured the attorney, and required an independent medical examination (IME). The attorney appealed.

The Supreme Court affirmed. In doing so, it explicitly clarified that the ABA Standards are “a starting point—an important guiding authority—but not a text that supersedes the Colorado Rules of Professional Conduct,” and that ABA Standard 7.2 may be used to calibrate sanctions for violations of “duties owed as a professional” even when the misconduct is not among the categories listed in ABA Standard 7.0.

Summary of the Opinion

Violation of Colo. RPC 4.4(a): The Court held that Rule 4.4(a) contains two distinct, disjunctive prohibitions: (1) using means that have no substantial purpose other than to embarrass, delay, or burden a third person; or (2) using methods of obtaining evidence that violate the legal rights of a third person. The rule is not confined to evidence-gathering conduct. The Hearing Board’s finding that the attorney’s conduct served no substantial purpose other than to embarrass, delay, or burden third persons was affirmed.
Sanctioning Framework: The ABA Standards are guiding—not controlling—authorities. While ABA Standard 7.2 presumes suspension for knowing violations of duties owed as a professional, the Hearing Board appropriately treated it as a starting point and, given mitigation, imposed a public censure plus an IME.
Scope of “Duties Owed as a Professional”: The Court confirmed that such duties extend beyond the specific topics enumerated in ABA Standard 7.0. Courts may rely on ABA Standard 7.2 to determine sanctions for other professional-duty violations, consistent with ABA annotations and Colorado precedent.
Other Rulings: The Court affirmed, without opinion, the PDJ’s denial of a motion to dismiss and the PDJ’s rejection of a Stipulation to Discipline, deferring to the PDJ’s authority under applicable rules.

Analysis

Precedents Cited and Their Influence

In re Rosen, 198 P.3d 116 (Colo. 2008): The Court reiterated Rosen’s core teaching that the ABA Standards are “our guiding authority” in selecting sanctions and that aggravating/mitigating factors are illustrative, not mechanical. That stance underpins the opinion’s conclusion that Standards guide but do not confine sanctioning discretion.
In re Abrams, 2021 CO 44, ¶ 13, 488 P.3d 1043, 1050: Cited for the deferential appellate posture to the Hearing Board’s disciplinary choices—affirm unless “manifestly excessive,” unrelated to the conduct, or otherwise unreasonable. This frames why the Court left intact the censure and IME.
People v. Maes, 2024 CO 15, ¶ 11, 545 P.3d 487, 490 and People v. Cali, 2020 CO 20, ¶¶ 15, 18, 459 P.3d 516, 519: These cases supply the textualist method for interpreting rules akin to statutes, leading to a plain-language reading of Rule 4.4(a).
Armintrout v. People, 864 P.2d 576, 581 (Colo. 1993): Establishes that “or” is disjunctive absent contrary intent. This is the interpretive keystone for rejecting the attorney’s argument that Rule 4.4(a) is limited to evidence-gathering misconduct.
People v. Easley, 956 P.2d 1257 (Colo. 1998) and In re LeBlanc, 972 So.2d 315 (La. 2007): Both decisions demonstrate judicial reliance on ABA Standard 7.2 to impose suspensions for misconduct involving duties owed as a professional beyond the enumerated categories in ABA Standard 7.0. The Colorado Supreme Court cites these to confirm that 7.2’s reach is not confined to 7.0’s list.
OPDJ authorities: People v. Raines, 510 P.3d 1089 (Colo. O.P.D.J. 2022); People v. Piccone, 459 P.3d 136 (Colo. O.P.D.J. 2020); People v. Beecher, 224 P.3d 442 (Colo. O.P.D.J. 2009): These disciplinary decisions reflect Colorado’s practice of treating suspension as a presumptive starting point for certain violations of RPC 4.4(a), which informed the Hearing Board’s analytical starting point under ABA Standard 7.2.

Legal Reasoning

1) Rule 4.4(a) is disjunctive and not limited to evidence-gathering. The text provides that, in representing a client, a lawyer shall not:

use means that have no substantial purpose other than to embarrass, delay, or burden a third person; or
use methods of obtaining evidence that violate the legal rights of such a person.

The Court emphasized that the “or” separating these prohibitions is disjunctive (per Armintrout), and the different terms—“means” versus “methods”—mark distinct categories of conduct. Thus, harassment and burdening of third persons during representation violate the rule even when the conduct has nothing to do with obtaining evidence. The attorney’s repeated profanity, insults, and belittling of school-district staff—especially in the presence of a minor client—fit squarely within the first clause.

2) ABA Standards are a starting point, not controlling law. Echoing Rosen, the Court reconfirmed that Colorado uses the ABA Standards as “guiding authority” in determining sanctions; they do not supersede the Colorado Rules of Professional Conduct and are not to be applied mechanically. This resolves the appellant’s argument that the Hearing Board misapplied the Standards.

3) ABA Standard 7.2 applies to professional-duty violations beyond the topics listed in ABA Standard 7.0. Although 7.0 lists specific categories (e.g., false/misleading communications about services, improper solicitation, unreasonable fees), the Court explained that “duties owed as a professional” are broader under the Colorado Rules than the enumerated items in 7.0. The ABA’s own annotations recognize courts impose suspensions under 7.2 for “various other kinds of misconduct.” Colorado’s and other courts’ cases (Easley; LeBlanc) confirm that practice. Therefore, the Hearing Board appropriately used 7.2—presuming suspension for knowing professional-duty violations that cause injury or potential injury—as the starting point.

4) Sanction selection and mitigation. Applying ABA Standard 3.0 (duty, mental state, injury) and 9.0 (aggravating/mitigating factors), the Hearing Board treated suspension as a presumptive starting point (per 7.2) but credited substantial mitigation—including the attorney’s genuine contrition, acknowledgement of harm, steps toward treatment (therapy, medication), and an articulated commitment to change. The Board found the mitigating evidence “overwhelms the lone factor in aggravation” and imposed a public censure with a condition that the attorney obtain an IME at his expense to address his diagnoses. The Supreme Court found that disposition reasonable and within the Board’s discretion.

Impact

Clarifies the scope of Colo. RPC 4.4(a): Colorado lawyers are now on unambiguous notice that Rule 4.4(a) reaches non-evidentiary misconduct toward third persons during representation. Abusive, profane, demeaning, or harassing conduct that serves no substantial purpose other than to embarrass, delay, or burden violates the rule—even outside discovery or investigation contexts.
Affirms flexible use of ABA Standard 7.2: Disciplinary authorities and courts may start with Standard 7.2’s presumption of suspension for a wide range of professional-duty violations, not just those listed in Standard 7.0. This enhances coherence in sanctioning while preserving case-specific calibration through mitigation and aggravation.
Reinforces that ABA Standards guide but do not bind: The decision fortifies Colorado’s approach that the Standards are tools, not constraints, thereby protecting the primacy of the Colorado Rules of Professional Conduct and enabling equitable tailoring of sanctions.
Endorses use of IME conditions in appropriate cases: While not creating a categorical rule, the decision confirms that a public censure may be paired with an IME requirement to address underlying diagnoses tied to misconduct, especially where the attorney embraces intervention and the record shows ongoing treatment needs.
Signals expectations for professionalism in sensitive settings: The facts—a lawyer’s outbursts during a special-education IEP meeting attended by a minor—underscore the profession’s heightened duty to model civility and avoid conduct that burdens third persons, particularly in educational and child-centered forums.
Practical effect on disciplinary litigation: Respondents should not bank on narrowing the scope of 7.0 to avoid 7.2. Sanction arguments will be more persuasive if they squarely address Standard 3.0’s factors and present robust mitigation, including proactive remedial steps and candid acknowledgement of harm.

Complex Concepts Simplified

Colo. RPC 4.4(a): A conduct rule that, during representation, prohibits two things: (a) using means with no substantial purpose other than to embarrass, delay, or burden third persons, and (b) using evidence-gathering methods that violate their legal rights. The rule’s two clauses are separate; violating either one is enough.
“Means” vs. “Methods”: “Means” refers broadly to ways a lawyer acts or communicates in representation. “Methods” refers more narrowly to techniques used to gather evidence. The distinction matters; harassment can violate the “means” clause even if no evidence-gathering is involved.
ABA Standards 7.0 and 7.2: Standard 7.0 lists examples of professional-duty violations; Standard 7.2 says suspension is generally appropriate when a lawyer knowingly violates a duty owed as a professional, causing injury or potential injury. Colorado treats 7.2 as a starting point even when misconduct isn’t one of 7.0’s enumerated examples.
Guiding versus binding authority: In Colorado, the ABA Standards guide sanction selection; they are not controlling law and do not limit the Colorado Rules of Professional Conduct.
Public censure vs. suspension: A public censure is a formal, public condemnation of conduct without removing the lawyer from practice. A suspension removes the lawyer’s ability to practice for a defined period (often with conditions for reinstatement).
Independent Medical Examination (IME): A neutral evaluation by a qualified professional to assess diagnoses and inform conditions or monitoring in discipline. Here, the IME is required at the lawyer’s expense to address acknowledged mental-health diagnoses tied to the misconduct.
Aggravating and mitigating factors (ABA Standard 9.0): Circumstances that respectively heighten or lessen sanction severity—for example, prior discipline (aggravation) or genuine remorse and rehabilitation efforts (mitigation). They allow individualized outcomes even when a Standard presumes a particular sanction.
Standards of review: The Court reviews legal conclusions de novo and factual findings for clear error, and it will affirm sanctions unless manifestly excessive, unrelated to the conduct, or otherwise unreasonable.

Conclusion

In re Raykin solidifies two important points in Colorado attorney discipline. First, Colo. RPC 4.4(a) is disjunctive: a lawyer violates the rule by using “means” that have no substantial purpose other than to embarrass, delay, or burden third persons during representation—even when the conduct is unrelated to evidence gathering. Second, the ABA Standards operate as guideposts, not gatekeepers. Standard 7.2’s presumption of suspension may be used to frame sanctioning for professional-duty violations beyond Standard 7.0’s enumerated categories, with the final sanction tailored through the structured consideration of duty, mental state, injury, and mitigation/aggravation.

The decision affirms a public censure and an IME in a case marked by egregious incivility but also substantial mitigation and genuine rehabilitation efforts. For practitioners, the message is clear: zealous advocacy does not license harassing or demeaning conduct toward third persons, especially in sensitive contexts. For disciplinary bodies and courts, Raykin provides a clear, reaffirmed methodology—textual interpretation of conduct rules, principled use of the ABA Standards as a starting point, and individualized sanctioning that balances accountability with demonstrated remediation.

Case: In re Raykin, 2025 CO 12 (Colo. Mar. 24, 2025), No. 24SA216, appeal from PDJ Case No. 23PDJ046. Opinion by Justice Hart, joined by Chief Justice Márquez and Justices Boatright, Hood, Gabriel, Samour, and Berkenkotter. Link: https://colorado.vlex.io/vid/in-re-raykin-1075482204