Disciplinary Counsel v. Zenas Zelotes (2013)

MEMORANDUM OF DECISION

The plaintiff, the Chief Disciplinary Counsel, brings this presentment against the defendant, Attorney Zenas Zelotes and asks for his suspension from the practice of law.   Based upon the evidence presented, the court finds the following relevant facts.

Michael Aliano (Michael) and his wife Terry Aliano (Terry), Connecticut residents, were having some problems in their marriage.   On March 19, 2010, they were in New London, Connecticut to try to reconcile, and were at a jazz bar together.   The defendant was there with his girlfriend Sharon and struck up a conversation with the Alianos.   The couples exchanged phone numbers and began seeing one another as couples, in a social capacity.   The defendant became friendly with Michael and Terry and socialized together as a threesome.   Thereafter, in June 2010 the defendant started seeing Terry alone, going on walks in the park together, going to movies, for drinks and began “dating.”

The defendant had an “intimate” relationship with Terry.   Tr. p. 85.¹

He believed he had an obligation to help her proceed with her divorce, and promote her welfare, and make her a happier person.

On more than one occasion, their date consisted of sitting close together at the kitchen island in Terry's and Michael's marital home, (without the presence of Michael) holding hands, sharing a glass of wine,² with candles, music and dimmed lights.   Tr. p. 10–11.   Their first kiss came on such an occasion on September 24, 2010.   The defendant filed his appearance on behalf of Terry in the Aliano divorce case three days later on September 27, 2010.   Tr. p. 88.   (Terry's prior counsel was out of the case.)

Sometime in December 2010, Michael came home earlier than expected;  Tr. p. 96, and the defendant and Terry were again sitting together at the kitchen island with the same ambience and sharing wine.   The defendant described Michael's demeanor (not surprisingly) as antagonistic.   Tr. p. 99.

Michael filed a motion in the divorce case to disqualify the defendant from representing Terry in the matter.   Schluger, J. granted the Motion on January 24, 2011.   After the disqualification the defendant and Terry ceased their intimate relationship and presumably their “dating.” ³

The plaintiff's presentment complaint contains several alleged violations of the Rules of Professional Conduct.   These include 1.8(j).  This section prohibits sexual relations with a client unless the relationship predates the representation.   The defendant denies any sexual relations with Terry at any time during their courtship.   The court cannot find, one way or the other, on this issue, but focuses rather on Rules 1.7(a)(2) ⁴ and Rule 8.4(4).   Rules of Professional Conduct (RPC).

The risk that existed under 1.7(a)(2) in this case is that their intimacy and the love that the defendant professed for his client might have terminated or its level diminished, bringing into question the future level of competency, diligence and detachment of the defendant.   Thus, the court concludes that because of his “personal interest,” the plaintiff has proven, by clear and convincing evidence, the violation by the defendant of Rule 1.7(a)(2) of the RPC.

The Rules of Professional Conduct also state that a lawyer shall not “engage in conduct that is prejudicial to the administration of justice.”  RPC 8–4.   The facts show that the defendant knowingly injected himself into the personal life of Terry Aliano, and into the marital status of her and her husband, Michael Aliano.   He became more than her friend but developed an “intimate” relationship with her and they began to “date.”   He encouraged her to go forward with her divorce against Michael, Tr. p. 135;  and filed an appearance on her behalf in lieu of prior counsel.   He believed he was looking out for her welfare and would make her a happier person.   The court concludes that attorneys in Connecticut and a reasonable general public would regard the defendant's conduct as appalling, and would thoroughly disapprove.   The court shares that view.  “It is professional misconduct for a lawyer to ․ engage in conduct that is prejudicial to the administration of justice.”  RPC 8.4(4).   Based on the relevant facts that have been set forth, the court rules that the plaintiff has proven, by clear and convincing evidence, a violation of the Rules of Professional Conduct 8.4(4).

However, a Disciplinary Committee need not prove the violation of a specific rule.  “Rather, reference to a specific rule simply assists the trial court in drawing its conclusions as to whether under the totality of circumstances, professional misconduct occurred.”  Statewide Grievance Committee v. Botwick, 226 Conn. 299, 310, 627 A.2d 901 (1993).   Under the totality of the circumstances here, the court concludes that, by clear and convincing evidence, the defendant has committed professional misconduct.

As punishment, the plaintiff asks the court to suspend the defendant for a period of five years.   The court is aware of the American Bar Association's Standard for Imposing Lawyers Sanctions for misconduct.   Prior disciplinary sanction (in 2005), lack of remorse, and failure to perceive the risks involved in his activities, are among the aggravating factors in this case.   Mitigating factors include remoteness of his disciplinary sanction,⁵ and a misplaced belief that his actions were of a benevolent nature and inured to the benefit of Terry Aliano.

The court hereby suspends the defendant from the practice of law for a period of five months commencing August 1, 2013.

BY THE COURT

D'ANDREA, J.T.R.

FOOTNOTES

FN1. References to the transcript are to the transcript dated February 14, 2013 unless otherwise stated..  FN1. References to the transcript are to the transcript dated February 14, 2013 unless otherwise stated.

FN2. A prior ruling by the DCF had prohibited the use of alcohol in the house, which ruling was to be and was displayed prominently on the door of the kitchen refrigerator.  (The marital home included two children.).  FN2. A prior ruling by the DCF had prohibited the use of alcohol in the house, which ruling was to be and was displayed prominently on the door of the kitchen refrigerator.  (The marital home included two children.)

FN3. The court finds that “dating” to the defendant means one thing with respect to Terry and another thing to his girlfriend Sharon.   The defendant denies “dating” with a sexual relationship with Terry, but admits that “dating” with Sharon included sexual activity.   Tr. p. 130, 131, 132..  FN3. The court finds that “dating” to the defendant means one thing with respect to Terry and another thing to his girlfriend Sharon.   The defendant denies “dating” with a sexual relationship with Terry, but admits that “dating” with Sharon included sexual activity.   Tr. p. 130, 131, 132.

FN4. The Rules prohibit a lawyer from representing a client where there is a significant risk that the representation will be “materially limited ․ by a personal interest of the lawyer.”  RPC 1.7(a)(2)..  FN4. The Rules prohibit a lawyer from representing a client where there is a significant risk that the representation will be “materially limited ․ by a personal interest of the lawyer.”  RPC 1.7(a)(2).

FN5. The court, however, does not consider eight years to be particularly remote..  FN5. The court, however, does not consider eight years to be particularly remote.

D'Andrea, Frank H., J.T.R.