Original Proceeding in Discipline Appeal from the Presiding
Disciplinary Judge, 23PDJ046
2
Attorney-Respondent Igor Raykin, pro se Aurora, Colorado
Attorneys for the People of the State of Colorado: Jessica E.
Yates, Attorney Regulation Counsel Jonathan P. White,
Assistant Regulation Counsel Denver, Colorado
JUSTICE HART delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
3
OPINION
HART,
JUSTICE
¶1
This matter asks us to consider the relationship between the
Colorado Rules of Professional Conduct and the American Bar
Association's ("ABA") Standards for Imposing
Lawyer Sanctions (Am. Bar Ass'n, 2d ed. 2019) ("ABA
Standards"), when the Office of the Presiding
Disciplinary Judge ("PDJ") imposes sanctions on an
attorney for violating our rules of professional conduct.
¶2
In May 2022, during a meeting with the staff of the Mesa
County Valley School District 51 (the "school
district"), attorney Igor Raykin directed several
inappropriate expletive-laden outbursts at the staff in the
presence of his minor client and his client's parents.
Raykin's conduct at the meeting was reported to the
Office of Attorney Regulation Counsel ("OARC").
OARC investigated and filed a complaint with the PDJ, (1)
alleging that Raykin had violated Colo. RPC 4.4(a), which
addresses an attorney's respect for the rights of third
persons, and (2) seeking sanctions for the violation.
¶3
A Hearing Board concluded that Raykin's conduct at the
meeting violated Colo. RPC 4.4(a) because the conduct had no
substantial purpose other than to delay, embarrass, or burden
the school district's staff. After weighing the
aggravating and mitigating circumstances, the Hearing Board
determined that the appropriate sanctions were a public
censure and an independent medical examination
("IME").
4
¶4
Raykin appealed the Hearing Board's determination, as
well as two other PDJ orders, to this court. Raykin's
primary objection to the Hearing Board's sanctions relies
on the language and structure of the ABA's Standards for
Imposing Lawyer Sanctions, which we use as "our guiding
authority" in determining appropriate sanctions. In
re Rosen, 198 P.3d 116, 119 (Colo. 2008). We take this
opportunity to make clear that the ABA's standards are a
starting point-an important guiding authority-but not a text
that supersedes the Colorado Rules of Professional Conduct.
In this case, the PDJ correctly determined that Raykin's
conduct violated his duties as a professional. The sanctions
imposed are appropriate, and we affirm the Hearing
Board's final decision and the PDJ's denial of both
prehearing motions.[1]
5
I.
Facts and Procedural History
¶5
This matter involves events that occurred during a May 18,
2022 meeting with the school district's staff to review
the Individual Education Plan ("IEP") of one of
Raykin's clients. The meeting was hybrid, with Raykin,
his client, and the client's parents attending remotely.
¶6
The school district's representatives in attendance
included Tammy Eret Lynch, the school district's outside
counsel; Walter Fox, a special education instructor; and Jan
Blair, a special education consultant who led the meeting.
¶7
Over the course of the approximately eighty-minute call,
Raykin made several profane and disparaging comments directed
toward the school district's staff that started about
twenty-three minutes into the meeting. During an argument
with Blair, Raykin said, "Shut up, Jan." A few
seconds later, he pointed his finger at the screen and again
said, "Shut up, Jan." A minute later, Raykin told
Blair again to shut up.
¶8
Soon after, apparently having received an incorrect document
by email, Raykin said the following to Blair and Lynch:
"You people can't even send the right f**king
document." Lynch told Raykin that he should not be
cursing in the meeting, to which he replied, "I sure as
f*** am." Blair muted Raykin the next time he began
cursing. Raykin unmuted himself and said, "Every time I
unmute myself, I'm going to say f*** again. That's
how I am going to start every sentence."
6
¶9
A few minutes later, Raykin called Blair a "miserable
person." He then said, "One of us is a lawyer, and
the other one is you." Approximately two minutes later,
Blair told Raykin, "We wish you would be quiet," to
allow the meeting to continue. Raykin replied to Blair,
saying, "I wish you would actually stop working here and
go work where you really belong, which is in the gutter, ok?
So please go ahead and get yourself employed where you need
to be."
¶10
About sixty-two minutes into the meeting, Blair interrupted
Raykin. Raykin responded by saying, "My God, Jan, you
really don't know how to shut up, do you? I mean, it is
unbelievable how little you actually listen to people. You
are an incredible person." A few seconds later, Raykin
said, "Jan, really, I feel so bad for your
ex-husbands," after which someone snickered. Toward the
end of the meeting, Raykin shook his finger at Blair and Fox
and said, "I don't like you." Raykin went on to
say he was frustrated and his frustration was why he
continued using the word "f***." A few minutes
later, Raykin commented, "You guys are full of
s***," followed by him telling Lynch and Blair to
"shut the f*** up" shortly before the meeting
ended.
¶11
The next day, Raykin sent an email to Lynch referring to
Blair as a "despicable creature and a cancer to
kids."
¶12
After a request for investigation was filed with OARC, Raykin
submitted his initial response on August 24, 2022. In this
response letter he wrote, "I did call
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Blair a 'despicable creature and a cancer to kids.'
Ok, I like to call things what they are." Raykin further
wrote, "If I have to scream at someone or intimidate
them or release my anger in order to get what's best for
a [child with special needs], then so be it." In the
same response letter, Raykin stated, "I have attention
deficit disorder, intermittent explosive disorder, and
oppositional defiant disorder. Frankly, I don't think any
of these things are 'disorders.' I have dealt with
these things since adolescence." Raykin also wrote,
"But sometimes these conditions are useful. And if these
conditions are necessary to represent kids more effectively,
then I suppose that having them is better than not having
them." He further commented, regarding the school
district, "If they want to bully my clients by smiling
in their faces while preparing to screw them over, then
I'm going to bully them back."
¶13
On November 23, 2022, Raykin wrote a supplemental response to
OARC. In it, he mentioned again that he has been diagnosed
with various disorders, including intermittent explosive
disorder. He said he understood how his earlier response
letter could be "hurtful," and that it was
"unproductive," "dumb," and
"selfish."
¶14
On February 29, 2024, Raykin wrote a letter of apology to
Blair, Lynch, Fox, and the other school district employees
who attended the May 18, 2022 meeting. In it, he acknowledged
victimizing people in the room. He admitted to being "a
8
bully, an immature person who couldn't control himself, a
hypocrite, a person who was setting a terrible example for
the kid he was representing." He also wrote,
"I'm not the kind of person who changes through
positive rewards. I'm much more likely to change when the
consequences of not doing so are simply too heavy." He
described working on his anger, including through cognitive
behavioral therapy, to help with self-control. He said he
took medication for his disorder, including on the day of the
IEP meeting, but that "didn't stop [him]." He
commented that working on his anger would be an "ongoing
process" and one "without end."
¶15
OARC scheduled a two-day disciplinary hearing, during which
Raykin testified to the Hearing Board. He explained that
growing up, "yelling was just normal in my family"
and was how they expressed themselves. He recalled having
anger issues in adolescence that included breaking things. He
spoke of his anger costing him jobs, relationships, and
friendships. He testified that when he started practicing law
and representing students in special education, he took a
conciliatory approach. He believed this approach was
ineffective, so he changed his approach to "bringing the
fight."
¶16
Raykin acknowledged he previously had "other
outbursts" in his legal practice, but none like that at
the IEP meeting. Raykin said that approximately ten years ago
he began to accept that he has a mental health issue. He
detailed for the
9
Hearing Board taking medication to treat his anger issues and
how this helped but did not fully resolve the episodes. He
began seeing an anger management specialist during OARC's
investigation, and he argued that he viewed his mental health
issues as a mitigating factor in the case.
¶17
The Hearing Board asked Raykin if he was amenable to an IME.
Raykin responded, "I am amenable to everything. So
regardless of whether this is a private admonition or a
public censure, you know, that's not my primary concern
here. My primary concern is I don't want to have these
episodes, outbursts, again, in my private life or my
professional life ...."
¶18
The Hearing Board concluded that Raykin violated Colo. RPC
4.4(a) during the meeting with the school district. And in
determining the appropriate sanctions, the Hearing Board
appropriately noted that the ABA's standards and Colorado
Supreme Court case law guide the imposition of sanctions for
lawyer misconduct.
¶19
The Hearing Board first identified the relevant ABA Standards
for consideration: 3.0 (duty, mental state, and injury),
4.0-7.0 (presumptive sanctions), and 9.0 (aggravating and
mitigating factors). After articulating the relevant
aggravating factor and various mitigating factors, the
Hearing Board began its analysis with ABA Standard 7.2,
noting that it was the proper starting point based on three
other Colorado disciplinary cases where the PDJ had imposed
suspension
10
as a sanction for a violation of Colo. RPC
4.4(a).[2] However, the Hearing Board found that ABA
Standard 7.2-while it presumes a sanction of suspension-was a
starting point, but did not dictate which sanction should be
imposed in Raykin's case. Instead, after applying
mitigating credit, the Hearing Board concluded that a public
censure and an IME would most appropriately address
Raykin's conduct and support his continuing work as an
attorney.
¶20
The PDJ ultimately issued an opinion that ordered Raykin be
publicly censured, and that he obtain, at his own expense, an
IME by a qualified examiner to address his diagnoses.
¶21
Raykin filed a notice of appeal with this court pursuant to
C.R.C.P. 242.33.
II.
Standard of Review
¶22
This court has plenary power "to review any
determination made in a [lawyer disciplinary] proceeding . .
. and to enter any order in such a proceeding." C.R.C.P.
242.2. We review the Hearing Board's conclusions of law
de novo and its findings of fact for clear error. C.R.C.P.
242.33(c). "We will affirm a hearing board's
decision unless we determine that its findings of fact are
clearly erroneous or that the form of discipline imposed is
manifestly excessive, bears no relation to
11
the complained-of conduct, or is otherwise
unreasonable." In re Abrams, 2021 CO 44, ¶
13, 488 P.3d 1043, 1050.
¶23
We review questions of court rules interpretation de novo.
People v. Maes, 2024 CO 15, ¶ 11, 545 P.3d 487,
490. In so doing, we employ the same techniques used to
interpret statutes. Id. We first look to the
language of the rule, reading the words and phrases in
context and construing them according to rules of grammar and
common usage. People v. Cali, 2020 CO 20, ¶ 15,
459 P.3d 516, 519. If a rule is unambiguous, we apply it as
written. Id. at ¶ 18, 459 P.3d at 519.
III.
Analysis
¶24
Raykin appeals the Hearing Board's conclusion that he
violated Colo. RPC 4.4(a) and challenges the sanctions that
the Hearing Board imposed. We address each issue in turn.
A.
Finding that Raykin Violated Colo. RPC 4.4(a)
¶25
Raykin challenges the Hearing Board's ultimate finding
that he violated Rule 4.4(a). But he does not challenge the
factual findings of the Hearing Board and, indeed, admits
that his behavior at the IEP meeting was inappropriate.
Instead, he argues that Rule 4.4(a) does not prohibit his
conduct because the rule applies only to lawyer conduct
involving methods of obtaining evidence. We conclude that the
rule is not limited in this way for two reasons.
12
¶26
Colo. RPC 4.4(a) states, "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."
¶27
This rule does contain a limitation: its application is
limited by the opening clause to conduct that occurs when a
lawyer is representing a client. Raykin argues that the
entire rule is further limited by its final clause to conduct
that pertains to a lawyer's methods of obtaining
evidence. He is incorrect.
¶28
As we have previously explained, when the word "or"
is used in a statute, "it is presumed to be used in the
disjunctive sense, unless legislative intent is clearly to
the contrary." Armintrout v. People, 864 P.2d
576, 581 (Colo. 1993). In other words, by separating the
first set of prohibitions in Colo. RPC 4.4(a)-using
"means that have no substantial purpose other than to
embarrass, delay, or burden a third person,"-from the
second-using "methods of obtaining evidence that violate
the legal rights of such a person"-with the word
"or," the rule indicates two different
prohibitions. Nothing in Rule 4.4(a) supports a reading that
prohibits lawyer conduct that has "no substantial
purpose other than to embarrass, delay, or burden a third
person" only when such conduct relates to obtaining
evidence.
13
¶29
A second indicator is the use of different words to describe
the actions prohibited under the rule-"methods"
rather than "means." Rule 4.4(a) prohibits a lawyer
from using (1) "means that have no substantial purpose
other than to embarrass, delay, or burden a third
person"; and (2) "methods of obtaining
evidence that violate the legal rights of such a
person." When a lawyer engages in either type of
conduct, each instance is individually sufficient to support
a finding that the lawyer violated the rule.
¶30
Here, the Hearing Board reasonably concluded that
Raykin's conduct at the IEP meeting served no purpose
other than to embarrass, delay, or burden a third person.
Raykin himself described his conduct during the OARC process
as "hurtful," "dumb," and
"selfish," and admitted to having been a
"bully" and a "terrible example" to his
client. We therefore affirm the Hearing Board's
conclusion that Raykin violated Colo. RPC 4.4(a).
B.
Imposition of Sanctions
¶31
Raykin further argues that the sanctions he received were
both excessive and impermissible. His argument starts with a
somewhat technical but very important premise. Raykin asserts
that ABA Standard 7.2, which the Hearing Board relied on as a
starting point to determine the appropriate sanction, cannot
apply to him because it is a subcategory of ABA Standard 7.0,
"Violations of Duties Owed as a Professional," and
because the language of ABA Standard 7.0 limits
14
those duties to a particular set of conduct. His conduct, he
argues, is not covered in that set. Importantly, however, we
have been clear that the ABA Standards are a guide
for when the PDJ imposes sanctions, and we review sanctions.
They are not the final word.
1.
Violation of Duties Owed as a Professional
¶32
ABA Standard 7.0 is the only ABA Standard that specifically
addresses the duties attorneys owe as professionals. That
standard reads as follows:
Absent aggravating or mitigating circumstances, upon
application of the factors set out in Standard 3.0, the
following sanctions are generally appropriate in cases
involving false or misleading communication about the lawyer
or the lawyer's services, improper communication of
fields of practice, improper solicitation of professional
employment from a prospective client, unreasonable or
improper fees, unauthorized practice of law, improper
withdrawal from representation, or failure to report
professional misconduct.
ABA
Standard 7.0.
¶33
The ABA Standards are structured such that 7.1, 7.2, 7.3, and
7.4 are listed underneath 7.0 as the sanction types that are
"generally appropriate" for different levels of
misconduct listed in 7.0. The Hearing Board's starting
point for Raykin's sanction was ABA Standard 7.2, which
provides, "Suspension is generally appropriate when a
lawyer knowingly engages in conduct that is a violation of a
duty owed as a professional and causes injury or potential
injury to a client, the public, or the legal system."
15
¶34
But the Colorado Rules of Professional Conduct include many
other duties owed as a professional beyond those listed in
ABA Standard 7.0. Some of them are covered by other ABA
Standards, but not all. Raykin's conduct here is a good
example. No one-not even Raykin himself-would argue that his
behavior met professional standards. He has admitted as much.
It would be absurd to conclude that because the ABA Standards
do not specifically prohibit acting like "a bully, an
immature person who couldn't control himself, a
hypocrite, [and] a person who was setting a terrible
example" at a meeting while representing a minor client,
such behavior does not violate an attorney's professional
duties.
¶35
Moreover, while the text of the ABA Standards themselves
might suggest a closed set of professional duties, the
annotations explain otherwise. "Courts impose
suspensions under Standard 7.2 for various other kinds of
misconduct that violates the lawyer's duty owed as a
professional." ABA Standard 7.2 annotation (Other
Misconduct) (emphasis added).
¶36
Both our court and others have relied on ABA Standard 7.2 to
impose sanctions on a lawyer who violated a duty not
enumerated in ABA Standard 7.0. For example, in People v.
Easley, 956 P.2d 1257, 1259 (Colo. 1998), we relied on
ABA Standard 7.2 to suspend a lawyer who engaged in a sexual
relationship with a client who was a plaintiff in a sexual
harassment lawsuit. In a Louisiana case, a lawyer contributed
to the legislative campaign of a judge's niece following
a
16
favorable judgment entered by that judge. In re
LeBlanc, 972 So.2d 315, 319 (La. 2007). The Supreme
Court of Louisiana imposed sanctions, relying on ABA Standard
7.2 as a starting point to determine the appropriate sanction
and concluded that the lawyer had "violated duties owed
to the legal system and to the profession." Id.
¶37
In Rosen, we held that while the ABA Standards
enumerate aggravating and mitigating factors in prescribing
discipline, those factors are intended as
illustrative and "are not to be applied
mechanically in every case." 198 P.3d at 121. We
conclude similarly here that the ABA Standards are a guiding
authority, but they do not limit sanctions under ABA Standard
7.2 to conduct enumerated in ABA Standard 7.0.
IV.
Conclusion
¶38
Here, after thoroughly considering the mitigating factors and
the aggravating factor in its opinion imposing sanctions, the
Hearing Board explained that it was "more than impressed
with the level and extent of [Raykin's] genuine
contrition." And rather than imposing the presumptive
sanction of a suspension, the Board found public censure more
appropriate, in part because "the mitigating evidence
here overwhelms the lone factor in aggravation."
17
¶39
The Hearing Board's reliance on ABA Standard 7.2 as a
starting point in determining the appropriate sanction for
Raykin's violation of Colo. RPC 4.4(a) was appropriate,
and we affirm the sanctions imposed.
---------
Notes:
[1] Raykin raised six issues in his
C.R.C.P. 242.33 Notice of Appeal. Four of the issues relate
to the merits of the Hearing Board's finding that Raykin
violated Colo. RPC 4.4(a) and the imposition of sanctions for
the violation. Of the other two issues raised, one is a
challenge to the PDJ's denial of Raykin's motion to
dismiss the complaint. We affirm the PDJ's denial without
opinion, deferring to the PDJ's discretion to rule on
such dispositive motions pursuant to C.R.C.P. 242.6(c)(3).
And, in any event, the matter is moot. The other issue Raykin
presents challenges the PDJ's denial of the parties'
Stipulation to Discipline. We likewise affirm without
opinion, deferring to the PDJ's authority to make such
decisions. This opinion is therefore focused on the Hearing
Board's order finding that Raykin violated Colo. RPC
4.4(a) and the accompanying sanctions.
[2] 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).