Chief Disciplinary Counsel v. Zelotes

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CHIEF DISCIPLINARY COUNSEL
v. ZENAS ZELOTES
(AC 35867)
Beach, Alvord and Bear, Js.
Argued April 22—officially released August 19, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Frank H. D’Andrea, Jr., judge
trial referee.)
Zenas Zelotes, self-represented, the appellant
(defendant).
Suzanne B. Sutton, first assistant chief disciplinary
counsel, with whom was Karyl L. Carrasquilla, assis-
tant disciplinary counsel, for the appellee (plaintiff).
Opinion
BEAR, J. In this presentment1 filed by the plaintiff,
Chief Disciplinary Counsel, alleging misconduct by the
defendant, Attorney Zenas Zelotes, the defendant
appeals from the judgment of the trial court concluding
that he violated rules 1.7 (a) (2) and 8.4 (4) of the Rules
of Professional Conduct (rule), and ordering that he be
suspended from the practice of law for a period of five
months. On appeal, the defendant claims that (1) the
court’s findings and the record evidence are inadequate
to establish a concurrent conflict under rule 1.7 (a) (2);
(2) the court erred in finding that he violated rule 8.4
(4); (3) he was denied due process of law because
he did not have fair notice that his conduct could be
considered professional misconduct; and (4) the court
denied him the benefit of his affirmative defenses. We
affirm the judgment of the trial court.
The following facts, which were found by the trial
court and which are not contested by the parties, and
the court’s conclusions in this case, inform our review.
‘‘Michael Aliano (Michael) and his wife Terry Aliano
(Terry), Connecticut residents, were having some prob-
lems in their marriage. On March 19, 2010, they were
in New London . . . to try to reconcile and were at a
jazz bar together. The defendant was there with his
girlfriend, Sharon [Wise], and struck up a conversation
with the Alianos. The couples exchanged phone num-
bers and began seeing one another as couples, in a
social capacity. The defendant became friendly with
Michael and Terry and socialized together as a three-
some. 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. . . . 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, with candles, music and dimmed
lights. . . . Their first kiss came on such an occasion
on September 24, 2010. The defendant filed his appear-
ance on behalf of Terry in the Aliano divorce case three
days later on September 27, 2010. . . .
‘‘Sometime in December, 2010, Michael came home
earlier than expected . . . 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. . . .
‘‘Michael filed a motion in the divorce case to disqual-
ify the defendant from representing Terry in the matter.
[The court] Shluger, J., granted the motion on January
24, 2011. After the disqualification, the defendant and
Terry ceased their intimate relationship and presumably
their ‘dating.’ . . .
‘‘The plaintiff’s presentment complaint contains sev-
eral alleged violations of the Rules of Professional Con-
duct. These include [rule] 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) and
rule 8.4 (4). . . .
‘‘The risk that existed under [rule] 1.7 (a) (2) in this
case is that their intimacy and the love that the defen-
dant 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) . . . .
‘‘The Rules of Professional Conduct also state that a
lawyer shall not ‘[e]ngage in conduct that is prejudicial
to the administration of justice’ . . . Rules of Profes-
sional Conduct 8-4 (4). The facts show that the defen-
dant 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 . . . and
filed an appearance on her behalf in lieu of prior coun-
sel. 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 appall-
ing, and would thoroughly disapprove. The court shares
that view. ‘It is professional misconduct for a lawyer
to . . . [e]ngage in conduct that is prejudicial to the
administration of justice’ . . . Rules of Professional
Conduct 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 cir-
cumstances, professional misconduct occurred.’ State-
wide Grievance Committee v. Botwick, 226 Conn. 299,
310, 627 A.2d 901 (1993). Under the totality of the cir-
cumstances here, the court concludes that, by clear
and convincing evidence, the defendant has committed
professional misconduct. . . . The court hereby sus-
pends the defendant from the practice of law for a
period of five months commencing August 1, 2013.’’2
(Citations omitted; footnotes omitted.) This appeal
followed.
The following well established principles govern the
relationship between the Superior Court and members
of the bar. ‘‘The Superior Court possesses inherent
authority to regulate attorney conduct and to discipline
the members of the bar. . . . The judiciary has the
power to admit attorneys to practice and to disbar them
. . . to fix the qualifications of those to be admitted
. . . and to define what constitutes the practice of law.
. . . In the exercise of its disciplinary power, the Supe-
rior Court has adopted the Code of Professional
Responsibility [now the Rules of Professional Con-
duct]. . . .
‘‘Disciplinary proceedings are for the purpose of pre-
serving the courts from the official ministration of per-
sons unfit to practice in them. . . . The proceeding to
disbar [or suspend] an attorney is neither a civil action
nor a criminal proceeding, but is a proceeding sui gene-
ris, the object of which is not the punishment of the
offender, but the protection of the court. . . . Once
the complaint is made, the court controls the situation
and procedure, in its discretion, as the interests of jus-
tice may seem to it to require. . . . [T]he power of the
courts is left unfettered to act as situations, as they
may arise, may seem to require, for efficient discipline
of misconduct and the purging of the bar from the
taint of unfit membership. Such statutes as ours are
not restrictive of the inherent powers which reside in
courts to inquire into the conduct of their own officers,
and to discipline them for misconduct. . . . In [disci-
plinary] proceedings . . . therefore, the attorney’s
relations to the tribunal and the character and purpose
of the inquiry are such that unless it clearly appears
that his rights have in some substantial way been denied
him, the action of the court will not be set aside upon
review. . . .
‘‘[T]he clearly erroneous standard . . . is the prefer-
able standard of review in attorney grievance appeals.
. . . The clearly erroneous standard of review provides
that [a] court’s determination is clearly erroneous only
in cases in which the record contains no evidence to
support it, or in cases in which there is evidence, but
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Citations
omitted; internal quotation marks omitted.) Chief Dis-
ciplinary Counsel v. Rozbicki, 150 Conn. App. 472,
478–79, 91 A.3d 932 (2014).
‘‘Additionally, because the applicable standard of
proof for determining whether an attorney has violated
the Rules of Professional Conduct is clear and convinc-
ing evidence . . . we must consider whether the [fact
finder’s] decision was based on clear and convincing
evidence.’’ (Citation omitted.) Briggs v. McWeeny, 260
Conn. 296, 322–23, 796 A.2d 516 (2002). ‘‘[C]lear and
convincing proof denotes a degree of belief that lies
between the belief that is required to find the truth or
existence of the [fact in issue] in an ordinary civil action
and the belief that is required to find guilt in a criminal
prosecution. . . . [The burden] is sustained if evidence
induces in the mind of the trier a reasonable belief that
the facts asserted are highly probably true, that the
probability that they are true or exist is substantially
greater than the probability that they are false or do
not exist.’’ (Internal quotation marks omitted.) Henry
v. Statewide Grievance Committee, 111 Conn. App. 12,
21 n.9, 957 A.2d 547 (2008). With these principles in
mind, we turn to the defendant’s claims on appeal.
I
The defendant claims that the ‘‘findings and evidence
were inadequate—as a matter of law—to sustain a find-
ing of a ‘concurrent conflict’ under rule 1.7 (a) (2).’’ He
asserts that, because he challenges only the propriety
of the court’s conclusion and not any of the court’s
factual findings, the appropriate standard of review for
this claim is plenary. The plaintiff argues that ‘‘the trial
court’s finding of a rule 1.7 (a) violation was not clearly
erroneous, was based on sound legal grounds and was
supported by the evidence.’’ On the basis of the undis-
puted facts, we agree with the plaintiff.
As stated previously, the preferred standard of review
in attorney grievance appeals is the clearly erroneous
standard. Chief Disciplinary Counsel v. Rozbicki,
supra, 150 Conn. App. 479. Accordingly, we will exam-
ine the record to ascertain if it contains evidence to
support the court’s determination that the defendant
was in violation of rule 1.7 (a). See id. Additionally, we
will consider whether the court’s decision was based on
clear and convincing evidence. See Briggs v. McWeeny,
supra, 260 Conn. 322–23.
Rule 1.7 of the Rules of Professional Conduct pro-
vides: ‘‘(a) Except as provided in subsection (b), a law-
yer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent
conflict of interest exists if: (1) the representation of
one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of
one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former cli-
ent or a third person or by a personal interest of the
lawyer.
‘‘(b) Notwithstanding the existence of a concurrent
conflict of interest under subsection (a), a lawyer may
represent a client if: (1) the lawyer reasonably believes
that the lawyer will be able to provide competent and
diligent representation to each affected client; (2) the
representation is not prohibited by law; (3) the repre-
sentation does not involve the assertion of a claim by
one client against another client represented by the
lawyer in the same litigation or the same proceeding
before any tribunal; and (4) each affected client gives
informed consent, confirmed in writing.’’
The court found, inter alia, that the defendant specifi-
cally violated rule 1.7 (a) (2), which, in this case,
required the court to have found by clear and convincing
evidence that there was a significant risk that the defen-
dant’s representation of Terry Aliano would be materi-
ally limited by his personal interest. The defendant
argues that the court’s finding of a concurrent conflict
‘‘rested on nothing more than mere speculation that a
chain of events whose occurrence theoretically could
one day lead counsel to act counter to his client’s inter-
ests might in fact occur.’’ He contends that our review
of the record will necessitate a conclusion that the
evidence does not support the court’s conclusion of a
violation of rule 1.7 (a). We are not persuaded.
The uncontested findings of the trial court along with
the defendant’s own trial testimony reveal the follow-
ing. When the defendant met Terry Aliano in March,
2010, Terry and her husband were attempting to recon-
cile after having filed for dissolution of their marriage.
The defendant and his girlfriend3 became friendly with
the Alianos and began to socialize with them through
July or August, 2010, including with the Alianos’ chil-
dren. Despite the defendant’s having a girlfriend, with
whom he had a sexual relationship and with whom he
appears to have remained involved, and despite know-
ing that the Alianos were attempting to reconcile their
marriage and keep their family together, he decided,
in June, 2010, while he and his girlfriend were still
socializing with the Alianos, that he wanted to get close
to Terry ‘‘to gain her confidence . . . .’’
The defendant testified that he had ‘‘resolved to date
Terry Aliano in an effort to say, sweetheart, this is what
the other sides look like, to get her excited about life,
to get her remembering what it was like to do the things
that she loved to do that she couldn’t do in the relation-
ship because I believe that if I gave her the emotional
strength, if she remember[ed] what it was like to be in
a healthy relationship and happy, then she would have
the conviction and the courage that she needed to move
forward in the divorce.’’ He stated that he wanted to
be Terry’s protector, and that he had a ‘‘moral obliga-
tion’’ to give her ‘‘the strength and the encouragement
to move forward with [her divorce attorney].’’4
The defendant testified that in June, 2010, he began
advising Terry about her divorce, both as a friend and
as an attorney. When questioned by the court, however,
he asserted that his conversations with Terry were privi-
leged because he is an attorney. The defendant also
testified that he started spending time alone with Terry
in June, 2010, and they began dating, going on walks
in a park together, going to movies, and going out for
drinks. He also gave her legal advice about her divorce,
‘‘educating her about her rights, about remedies,’’
despite his knowledge that she had an attorney, whom
the defendant held ‘‘in high regard’’ and with whose
representation he did not want to interfere. The defen-
dant testified that he had an intimate relationship with
Terry but that they did not engage in sexual intercourse.
They held hands, hugged, shared wine,5 lit candles, lis-
tened to music, and dimmed the lights. Their first kiss
occurred on September 24, 2010, three days before the
defendant filed his official appearance on behalf of
Terry in the Aliano dissolution case.6
The defendant testified that he had a retainer
agreement with Terry that called for his standard charg-
ing rate of either $200 or $250 per hour, and that Terry
had paid him a retainer of $10,000—$9000 of which
went to his fees, and $1000 of which was applied to
other fees and costs. He also stated that he had put his
bankruptcy practice on hold so that he could devote
his full attention to the Aliano case. He further stated
that the cost of his services had amounted to approxi-
mately $20,000, but, because the trial court did not
award attorney’s fees to Terry, he ultimately released
her from the balance that she owed. Additionally, the
defendant testified that he had worked out a quid pro
quo with Terry where she would work for his law office
in exchange for some of the money she owed him.
He also testified that Terry had complained about the
paralegal costs of her former attorney, so the defendant
told her that he would ‘‘take [her] under [his] wing.’’
He told her that she could perform some of the paralegal
functions for him and reduce her costs by ‘‘play[ing]
an active role’’ in the case. The defendant told Terry:
‘‘But if you are with me, then not only are you going
to be shielded from that potential cost, but you are
going to also be able to put the time and labor and love
into making sure that this case is properly presented.
So, it’s going to mitigate your financial risk.’’ The day
after this conversation, Terry asked the defendant to
file an appearance on her behalf. The defendant did not
pay Terry for her paralegal services, and he did not
recall if the quid pro quo was written into his
retainer agreement.
Additionally, during the defendant’s representation
of Terry, he sometimes visited the marital residence
where both Terry and Michael continued to reside. On
one of those visits in particular, Michael returned to
the home at approximately 11:20 p.m. and witnessed
his wife and the defendant sharing a glass of wine by
candlelight. When Michael tried to engage in conversa-
tion with the defendant, the defendant told him that
‘‘the Rules of Professional Conduct prohibit[ed] [him]
from engaging [Michael] in conversation’’ and that
Michael needed to communicate only through his own
attorney. Although the defendant testified before the
trial court that he was visiting Terry only as a social
guest, he also stated that when Michael was present,
he quoted the Rules of Professional Conduct to Michael,
took out legal books, and he showed Terry how to mark
exhibits, create a trial notebook, and create a table of
contents. He also testified that, although he was at the
Alianos’ marital home purely as a social guest, there
were times when his communication with Terry while
in the home was privileged because, in his words: ‘‘If
it’s a communication to counsel for the purpose of
obtaining advice in connection with a legal matter, then
that would be privileged. Now, if, in the next sentence,
we are talking about the Super Bowl, then that would
not be privileged . . . .’’
On the basis of this evidence and the court’s findings,
the court found, by clear and convincing evidence, that
the defendant had violated rule 1.7 (a) (2). We conclude
that the record fully supports the court’s decision.
In People v. Beecher, 224 P.3d 442, 444 (Colo. O.P.D.J.
2009), the respondent attorney was found, in part, to
have violated rule 1.7 (b), which mimics our rule 1.7
(a) (2), by his intimate, nonsexual relationship with his
client during her dissolution of marriage case. The court
found that the attorney’s relationship with the client
was so close that it compromised the attorney’s respon-
sibilities to his client. Id., 450. Specifically, the court
found that the attorney had lived, worked, and traveled
with the client, who was emotionally strained because
of her divorce, and that he ‘‘saw himself as [the client’s]
personal protector, as opposed to her counsel in her
divorce . . . . In this role he lost all objectivity and
the independent judgment needed to help [the client]
navigate through an emotionally trying divorce.’’ Id.
Additionally, although the attorney believed that no
conflict existed, the court found that ‘‘his belief was
unreasonable . . . [and that the client’s] ability to
make an informed decision on this issue had been
severely compromised.’’ Id., 450–51. Similarly in the
present case, the defendant saw himself as Terry’s pro-
tector. He then intentionally interjected himself into
the middle of her dissolution, giving her legal advice,
despite knowing that she was represented by counsel,
telling her to proceed with the dissolution instead of
attempting to reconcile with her husband, and inten-
tionally seeking to date her and gain her confidence.
In Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361
(1994), the court discussed ‘‘Formal Opinion Number
92-364 of the American Bar Association (ABA) Standing
Committee on Ethics and Professional Responsibility
(the committee). . . . [The committee found that]
there are several provisions of the Model Rules that
may be implicated by a sexual relationship, particularly
one that arises after the formation of the attorney-client
relationship. First, because of the dependence that so
often characterizes the attorney-client relationship,
there is a significant possibility that the sexual relation-
ship will have resulted from exploitation of the lawyer’s
dominant position and influence and, thus, breached
the lawyer’s fiduciary obligations to the client. Second,
a sexual relationship with a client may affect the inde-
pendence of the lawyer’s judgment. Third, the lawyer’s
engaging in a sexual relationship with a client may
create a prohibited conflict between the interests of
the lawyer and those of the client. Fourth, a non-profes-
sional, yet emotionally charged, relationship between
attorney and client may result in confidences being
imparted in circumstances where the attorney-client
privilege is not available, yet would have been, absent
the personal relationship.’’ (Citation omitted; internal
quotation marks omitted.) Id., 530–31.
The court then explained: ‘‘As noted in the ABA opin-
ion, if the lawyer’s interests in the relationship with the
client interfere with decisions that must be made in the
client’s behalf, the lawyer’s representation of that client
will have been impaired and perhaps materially limited.
The ABA committee further opined that a sexual rela-
tionship between an attorney and client may confuse
the line to be drawn in protecting client confidences.
This is caused by the fact that only those confidences
imparted in the context of the attorney-client relation-
ship are protected by privilege. Confidences imparted
in a personal relationship, except for husband and wife,
are not protected.
‘‘The ABA committee also observed that the attorney-
client relationship is a fiduciary one and that a lawyer’s
fiduciary obligation is heightened if the client is emo-
tionally vulnerable to the extent that the client’s ability
to make reasoned judgements about the future is
affected. This could be of particular concern in a
divorce proceeding where emotions run high and the
proceedings may present the equivalent of a life crisis
for the client. The nature of the representation may
also affect the degree of dependence the client feels
toward the attorney. Obviously, in a divorce or other
advers[e] domestic relations proceeding, the issues are
more emotionally charged. Thus, as the committee
observed, the more vulnerable the client, the more
imperative it becomes for the lawyer to maintain a
normal attorney-client relationship.’’ Id., 531.
Although in the present case, the defendant testified
that his relationship with Terry was nonsexual, and the
court determined that it had no evidence to reach a
contrary determination, the intimate and romantic
nature of the defendant’s relationship with Terry is not
contested. Moreover, although the defendant contends
that this intimate relationship predated his filing of an
appearance in the Alianos’ divorce proceeding, it is
uncontested that he gave Terry legal advice about her
divorce beginning in June, 2010, despite the fact that
she already was represented by counsel, and despite
the fact that the defendant and his girlfriend socialized
with the Alianos and their children. Additionally, it is
uncontested that the defendant set out to date Terry
and to gain her confidence in June, 2010, in an effort
to give her the ‘‘conviction and the courage that she
needed to move forward in the divorce,’’ apparently at
the same time he was giving her legal advice, although
he was not her attorney at that time, and socializing
with her husband and children.
The defendant proudly admits that he did not main-
tain a normal attorney-client relationship with Terry,
and that, because of their intimate relationship, he was
willing to ‘‘go the extra mile.’’ See generally In the Mat-
ter of Tsoutsouris, 748 N.E.2d 856, 860 (Ind. 2001) (‘‘[i]n
their professional capacity, lawyers are expected to
provide emotionally detached, objective analysis of
legal problems and issues for clients who may be
embroiled in sensitive or difficult matters’’ [internal
quotation marks omitted]). He injected himself into the
middle of the Alianos’ marriage issues and dissolution
proceedings, and he antagonized Michael Aliano. See
Chestone v. Chestone, 322 N.J. Super. 250, 259, 730 A.2d
890 (App. Div. 1999) (‘‘We recognize that the nature
of family litigation sometimes causes the litigants to
become emotionally involved. Unfortunately, on occa-
sion, the emotional involvement leads to acrimony.
When those two factors are present the parties, on
occasion, permit their emotions and acrimony to pre-
dominate over reason. The attorney, on the other hand,
must be detached from emotion and acrimony.’’). The
defendant drank wine with Terry while the children
were home despite an agreement that Terry had made
with the Department of Children and Families prohib-
iting anyone who was under the influence of alcohol
from caring for the children, a copy of which was hung
on her refrigerator. The defendant also put his bank-
ruptcy practice on hold so that he fully could concen-
trate on this one case.
He also testified that, when he was discussing with
Terry the possibility of representing her, he worked out
a quid pro quo with her to help offset her legal expenses
and agreed to write off the balance of his fees if the
court did not award those fees in the dissolution action.
The defendant told Terry that if she were represented
by him, that he would take her under his wing, that she
would be shielded from the higher costs of her other
attorney, and that she would mitigate her financial risk.
Despite all of this, the defendant declares that ‘‘the
court correctly observe[d]—that at no time—has [the
defendant] expressed remorse’’ and that he ‘‘remains
resolute.’’7
On the basis of these uncontested factual findings of
the trial court and the defendant’s own trial testimony,
we conclude that the court’s finding that the defendant
violated rule 1.7 (a) (2) by having a concurrent conflict
that created a significant risk that his representation
of Terry would be materially limited by his personal
interest is fully supported by clear and convincing evi-
dence, and is not clearly erroneous.8
II
The defendant also claims that the court erred in
finding that he violated rule 8.4 (4) because: (1) his
conduct purely was personal and beyond the scope
of rule 8.4 (4); (2) there are no clear and meaningful
standards for the imposition of discipline under rule
8.4 (4); and (3) the court’s finding of a rule 8.4 (4)
violation ‘‘tramples upon core constitutional rights to
pursue and maintain intimate associations.’’ We will
consider each of these in turn.
A
The defendant claims that the court erred in finding
that he violated rule 8.4 (4) because his conduct purely
was personal and beyond the scope of rule 8.4 (4). He
argues that our ‘‘Supreme Court has not yet articulated
the test to be used to determine if conduct—which does
not violate any other disciplinary rule—is indepen-
dently punishable as prejudicial to the administration
of justice—it is a matter of first impression.’’ (Empha-
sis in original.) Because we have concluded in part I
of this opinion that the court’s finding that the defendant
violated rule 1.7 (a) (2) was supported by clear and
convincing evidence and was not clearly erroneous, the
defendant’s argument that there cannot be an indepen-
dent violation of rule 8.4 (4) is moot.
B
The defendant next claims that we must determine
‘‘whether the judge imposed discipline in the absence
[of] clear and meaningful standards. As concerns [rule]
8.4 (4)—clear and meaningful standards are a constitu-
tional requirement.’’ (Emphasis in original.) He also
argues that the trial court’s ‘‘subjective declaration that
. . . ‘under the totality of the circumstances, profes-
sional misconduct occurred’ does not satisfy the
requirement that an independent [rule] 8.4 (4) violation
rest on clear and meaningful standards.’’ (Emphasis
in original.) The defendant alleges that the lack of stan-
dards is a due process violation.
It is unclear to us exactly what the defendant is claim-
ing. He appears to argue that rule 8.4 (4) does not
contain clear and meaningful standards of application,
that an independent violation of rule 8.4 (4) cannot
occur in the absence of clear and meaningful standards,
and that the court thus erroneously found that he vio-
lated rule 8.4 (4) and imposed discipline in the absence
of clear and meaningful standards. The plaintiff
responds by stating that rule 8.4 is constitutional and
by demonstrating that the defendant had adequate
notice and an opportunity to be heard. In his reply brief,
the defendant responds that the plaintiff did not address
edges that rule 8.4 is constitutional but asserts that he
is making an ‘‘as-applied challenge’’ to the rule. He then
argues that ‘‘(1) no clear and meaningful standards
exist; that (2) [he] lacked fair notice of the (nonexis-
tent) standards; and that (3) these (nonexistent) stan-
dards fail to comport with the requirements of strict
judicial scrutiny.’’ (Emphasis in original.)
We readily understand if the plaintiff was confused by
the defendant’s claim and his arguments. After careful
consideration, and on the basis of the arguments set
forth in the defendant’s brief and his reply brief, we
conclude that the only reasonable interpretation of the
defendant’s arguments is that he is claiming that rule
8.4 is unconstitutional because there are no clear and
meaningful standards established for its application,
which appears to be a vagueness argument rather than
an as-applied challenge.
As generally stated, ‘‘[t]he void-for-vagueness doc-
trine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discrimi-
natory enforcement. . . . [The doctrine] embodies two
central precepts: the right to fair warning of the effect
of a governing statute or regulation and the guarantee
against standardless law enforcement. . . . The United
States Supreme Court has emphasized that the more
important aspect of the vagueness doctrine is not actual
notice, but . . . the requirement that a legislature
establish minimal guidelines to govern law enforce-
ment. . . . Thus, [i]n order to surmount a vagueness
challenge, a statute [must] afford a person of ordinary
intelligence a reasonable opportunity to know what is
permitted or prohibited . . . and must not impermissi-
bly [delegate] basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and dis-
criminatory application. . . . Finally, [i]f the meaning
of a statute can be fairly ascertained a statute will not
be void for vagueness . . . for [i]n most English words
and phrases there lurk uncertainties. . . . [T]he statute
must contain some core meaning within which the
defendant’s actions clearly fall. . . . References to
judicial opinions involving the statute, the common law,
legal dictionaries, or treatises may be necessary to
ascertain a statute’s meaning to determine if it gives fair
warning.’’ (Citations omitted; internal quotation marks
omitted.) State v. McMahon, 257 Conn. 544, 551–53, 778
A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct.
1069, 151 L. Ed. 2d 972 (2002).
Despite what the defendant argues in his reply brief,
he has not briefed an ‘‘as-applied’’ challenge to rule 8.4.
The defendant appears to set forth a claim that rule 8.4
is unconstitutionally vague, and he ‘‘expressly acknowl-
edges [that rule] 8.4 is constitutional.’’ (Emphasis in
original.)
As the United States Court of Appeals for the Fifth
Circuit explained in Howell v. State Bar of Texas, 843
F.2d 205, 208 (5th Cir.), cert. denied, 488 U.S. 982, 109
S. Ct. 531, 102 L. Ed. 2d 563 (1988), the rules of practice
‘‘appl[y] only to lawyers, who are professionals and
have the benefit of guidance provided by case law, court
rules and the ‘lore of the profession.’ ’’ In explaining a
rule identical to our rule 8.4 (4), the court in Howell
stated: ‘‘DR 1-102 (A) (5) provides in pertinent part that
a lawyer shall not ‘[e]ngage in conduct that is prejudicial
to the administration of justice.’ This provision is not
peculiar to the State of Texas. It was part of the Ameri-
can Bar Association’s Code of Professional Responsibil-
ity promulgated in 1969 and subsequently adopted by
almost every State in the Union. There was nothing
startlingly innovative in DR 1-102 (A) (5)’s contents.
Since the early days of English common law, it has
been widely recognized that courts possess the inherent
power to regulate the conduct of attorneys who practice
before them and to discipline or disbar such of those
attorneys as are guilty of unprofessional conduct.’’ Id.,
206; see also Massameno v. Statewide Grievance Com-
mittee, 234 Conn. 539, 553–54, 663 A.2d 317 (1995)
(‘‘Superior Court possesses inherent authority to regu-
late attorney conduct and to discipline the member of
the bar’’ [internal quotation marks omitted]).
We conclude that although the plain text of rule 8.4
(4) may lack detail and precision; see 2 G. Hazard &
W. Hodes, The Law of Lawyering (3d Ed. Supp. 2009)
§ 65.6, pp. 65-15 and 65-16; its meaning is clear from
the rules, the official comments to the rules, and case
law interpreting rule 8.4 (4) or rules that substantively
are identical to our rule 8.4 (4). Attorneys are suffi-
ciently on notice of what behavior is proscribed and
what conduct is required of them. See id.; Howell v.
State Bar of Texas, supra, 843 F.2d 208 (rule prohibiting
conduct prejudicial to administration of justice is nei-
ther vague nor overbroad because case law and ‘‘lore
of the profession’’ provide sufficient guidance to
attorneys).9
C
The defendant also claims that the court erred in
finding that he violated rule 8.4 (4) because the court’s
finding of a rule 8.4 (4) violation ‘‘tramples upon core
constitutional rights to pursue and maintain intimate
associations.’’ He argues that the court ‘‘punish[ed] the
time, place and manner of [his] and Terry’s dating prac-
tices—impermissibly trampl[ing] upon their respective
rights to maintain and pursue an intimate association.’’
(Emphasis omitted.) We disagree.
‘‘[A] comprehensive disciplinary scheme has been
established to safeguard the administration of justice,
and designed to preserve public confidence in the sys-
tem and to protect the public and the court from unfit
practitioners. . . . General Statutes § 51-90g and the
parallel rules of practice authorize the grievance com-
mittee to act as an arm of the court in fulfilling this
responsibility. . . . These rules exist within the
broader framework of the relationship between attor-
neys and the judiciary. . . . This unique position as
officers and commissioners of the court . . . casts
attorneys in a special relationship with the judiciary
and subjects them to its discipline. . . .
‘‘An attorney as an officer of the court in the adminis-
tration of justice, is continually accountable to it for
the manner in which he exercises the privilege which
has been accorded him. His admission is upon the
implied condition that his continued enjoyment of the
right conferred is dependent upon his remaining a fit
and safe person to exercise it, so that when he, by
misconduct in any capacity, discloses that he has
become or is an unfit or unsafe person to be entrusted
with the responsibilities and obligations of an attorney,
his right to continue in the enjoyment of his professional
privilege may and ought to be declared forfeited. . . .
Therefore, [i]f a court disciplines an attorney, it does
so not to mete out punishment to an offender, but [so]
that the administration of justice may be safeguarded
and the courts and the public protected from the mis-
conduct or unfitness of those who are licensed to per-
form the important functions of the legal profession.’’
(Citations omitted; internal quotation marks omitted.)
Massameno v. Statewide Grievance Committee, supra,
234 Conn. 554–55.
In this case, we do not agree with the defendant’s
contention that the court disciplined him under rule 8.4
(4) for ‘‘the time, place and manner of [his] and Terry’s
dating practices . . . .’’ (Emphasis omitted.) As the
facts set forth fully in part I of this opinion establish, and
which need not be restated, the defendant’s behavior in
this case created a significant risk that his representa-
tion of Terry would be materially affected by his per-
sonal interest. It is the timing and totality of this
behavior, not the time, place and manner of his dating,
that is prejudicial to the administration of justice.
III
The defendant next argues that he was denied due
process of law because he did not have fair notice that
his conduct could be considered professional miscon-
duct under the rules. He contends that even if his other
claims fail and the court properly determined that his
conduct was within the scope of the rules, that alone
‘‘would not . . . form a sufficient basis to impose disci-
pline.’’ He purports: ‘‘Not once has a Connecticut law-
yer—ever—been disciplined under rule 8.4 (4) on
account of the time, place and manner he or she main-
tained a pre-existing nonsexual relationship. Not once
has a Connecticut court held that the mere existence
of an intimate relationship is—alone—sufficient to
establish a concurrent conflict. Not once. The resulting
suspension is unconscionable. There is no fair notice.’’
(Emphasis omitted.)
The problem with the defendant’s argument, as
explained throughout this opinion, is that the court did
not suspend him for ‘‘the mere existence of an intimate
relationship . . . .’’ (Emphasis omitted.) The defen-
dant clearly fails to recognize the seriousness and the
disturbing nature of his continuing conduct, and he now
contends that the court’s action in suspending him was
‘‘unconscionable.’’
First, we reiterate that the court reasonably could
have concluded that the defendant’s conduct violated
both rule 1.7 (a) (2) and rule 8.4 (4). We also reiterate
that the rule prohibiting conduct that is prejudicial to
the administration of justice is neither vague nor over-
broad because case law and ‘‘lore of the profession’’
provide sufficient guidance to attorneys in determining
proper conduct. Howell v. State Bar of Texas, supra,
843 F.2d 208. The defendant also offered no argument
that rule 1.7 was vague or overbroad.
To the extent that the defendant’s arguments relate
to the specific sanction imposed by the court, as our
Supreme Court previously has noted, ‘‘it is not the func-
tion of this court to determine the sanction we would
have imposed on the [defendant had we been] faced
with that task. . . . In matters of attorney misconduct,
[the trial] court is free to determine in each case, as
may seem best in light of the entire record before it,
whether a sanction is appropriate and, if so, what the
sanction should be. . . . As with any discretionary
action of the trial court, appellate review requires every
reasonable presumption in favor of the action, and the
ultimate issue for us is whether the trial court could
have reasonably concluded as it did.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Briggs v. McWeeny, supra, 260 Conn. 335–36.
‘‘The trial court has inherent judicial power, derived
from judicial responsibility for the administration of
justice, to exercise sound discretion to determine what
sanction to impose in light of the entire record before
it. . . .
‘‘The American Bar Association has promulgated
standards for the imposition of sanctions. . . . [A]fter
a finding of misconduct, a court should consider: (1)
the nature of the duty violated; (2) the attorney’s mental
state; (3) the potential or actual injury stemming from
the attorney’s misconduct; and (4) the existence of
aggravating or mitigation factors. . . .
‘‘The aggravating factors referenced in the standards
include (a) prior disciplinary offenses; (b) dishonest or
selfish motive; (c) a pattern of misconduct; (d) multiple
offenses; (e) bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with rules
or orders of the disciplinary agency; (f) submission
of false evidence, false statements, or other deceptive
practices during the disciplinary process; (g) refusal to
acknowledge wrongful nature of conduct; (h) vulnera-
bility of victim; (i) substantial experience in the practice
of law; [and] (j) indifference to making restitution. . . .
The mitigation factors include: (a) absence of a prior
disciplinary record; (b) absence of a dishonest or selfish
motive; (c) personal or emotional problems; (d) timely
good faith effort to make restitution or to rectify conse-
quences of misconduct; (e) full and free disclosure to
disciplinary board or cooperative attitude toward pro-
ceedings; (f) inexperience in the practice of law; (g)
character or reputation; (h) physical or mental disability
or impairment; (i) delay in disciplinary proceedings; (j)
interim rehabilitation; (k) imposition of other penalties
or sanctions; (l) remorse; [and] (m) remoteness of prior
offenses.’’ (Citations omitted; internal quotation marks
omitted.) Chief Disciplinary Counsel v. Rozbicki,
supra, 150 Conn. App. 487–88.
In the present case, the court’s memorandum of deci-
sion reveals that it carefully considered the appropriate
standards for imposing discipline. The court considered
the defendant’s prior disciplinary sanction, which
occurred in 2005, the defendant’s continued lack of
remorse, and his ‘‘failure to perceive the risks involved
in his activities . . . .’’ The court also carefully exam-
ined mitigating factors, including the defendant’s ‘‘mis-
placed belief that his actions were of a benevolent
nature and enured to the benefit of Terry Aliano.’’ On
the basis of the serious nature of the defendant’s mis-
conduct, we conclude that the trial court reasonably
could have concluded that the defendant was unfit to
practice law and, consequently, that a suspension was
warranted. See Statewide Grievance Committee v.
Shluger, 230 Conn. 668, 680, 646 A.2d 781 (1994). We are
not persuaded that the trial court acted unreasonably
or that the ‘‘resulting suspension is unconscionable.’’
(Emphasis omitted.) Accordingly, we conclude that the
trial court acted within its discretion in suspending
the defendant from the practice of law for a period of
five months.
IV
The defendant’s final claim is that the court denied
him due process by ‘‘fail[ing] to adjudicate core issues
essential to this action . . . .’’ He asserts that the court
failed to consider and adjudicate the meritorious good
faith affirmative defenses that he raised. The defendant
argues that, because he had a good faith belief that his
conduct was outside of the scope of the rules and that
he was exercising his core constitutional rights, his
conduct was not actionable. He also argues that the
court improperly declined to apply the rule of lenity
and that he was entitled to such application because
of ambiguity in the rules. The defendant contends that
he ‘‘was afforded an opportunity to be heard—but not
a meaningful opportunity satisfying the requirements
of due process. As concerns these questions of law—
[he] was afforded a trial—in name only.’’ (Internal quo-
tation marks omitted.) The plaintiff argues that the trial
court considered all of the defendant’s defenses, which
were raised in motions, briefs and at oral argument. It
also argues that the rule of lenity does not apply here
because there is no ambiguity in the rules that the
defendant violated. We agree with the plaintiff.
The defendant does not argue that he was barred
from presenting a defense; he argues that the court did
not consider the defenses he raised and that it failed
to apply the rule of lenity. Essentially, the defendant
argues that, because he believed he was acting outside
the scope of the rules, and no attorney previously had
been disciplined merely for engaging in an intimate
relationship with a person who was not a client at
the time the intimacy began, he either could not be
disciplined or the rule of lenity should have been applied
because he could not have known that the conduct was
improper under the rules.10
Again, the problem with the defendant’s argument is
that he fails to see the serious nature of his conduct.
He was not disciplined for a mere intimate relationship
with a nonclient. First, although the defendant contends
that his intimate relationship with Terry predated his
filing of an appearance in her dissolution case, it is
uncontested that he gave Terry legal advice about disso-
lution issues beginning in June, 2010. At that time, Terry
already was represented by counsel and that fact was
known by the defendant. The defendant and his girl-
friend, Wise, also socialized with the Alianos and their
children, while, at the same time, the defendant inten-
tionally schemed to date Terry and to gain her confi-
dence beginning in June, 2010. He admittedly did this
in an effort to persuade and encourage Terry to proceed
with her pending dissolution case, despite knowing that
she was represented by counsel and was attempting to
reconcile her marriage and her family. The defendant
also proudly admits that he did not maintain a normal
attorney-client relationship with Terry, but that because
of their intimate relationship he was willing to ‘‘go the
extra mile.’’ The defendant injected himself into the
middle of the Alianos’ marriage, and antagonized
Michael Aliano. The defendant shared wine with Terry
while the children were home despite an agreement
that Terry had made with the Department of Children
and Families prohibiting anyone who was under the
influence of alcohol from caring for the children; a copy
of this agreement was hung prominently on Terry’s
refrigerator, and, although the defendant was not sub-
ject to this agreement, his client, Terry, was a party to
it. The defendant also put his bankruptcy practice on
hold so that he fully could concentrate on this one case,
and he worked out a quid pro quo with Terry to help
offset her legal expenses. He additionally agreed to
write off the balance of his fees if the court did not
award those fees in the dissolution action. The defen-
dant told Terry that if she were represented by him,
that he would take her under his wing, that she would
be shielded from the higher costs of her other attorney,
and that she would mitigate her financial risk.
These are the facts that led the court to not accept
the defendant’s ‘‘good faith affirmative defense[s],’’
although it certainly did recognize that the defendant
mistakenly thought his actions were noble.11 This case
presents much more than a mere intimate relationship
starting before Terry was an ‘‘official’’ client. The defen-
dant’s belief that his actions were proper and that he
had no way of knowing that he could be subject to
discipline may be an attempt to explain away or to
justify his actions, but, as the court found by clear and
convincing evidence, his misguided belief is not a valid
or acceptable defense to rules 1.7 (a) (2) and 8.4 (4).
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Practice Book § 2-47.
2
General Statutes § 51-84 provides: ‘‘(a) Attorneys admitted by the Supe-
rior Court shall be attorneys of all courts and shall be subject to the rules
and orders of the courts before which they act.
‘‘(b) Any such court may fine an attorney for transgressing its rules and
orders an amount not exceeding one hundred dollars for any offense, and
may suspend or displace an attorney for just cause.’’
3
The defendant also had represented this girlfriend in her marital dissolu-
tion proceedings. He testified that their relationship, which was sexual,
began well before his representation of her, however.
4
The defendant testified that he felt this way because of something Wise
had told him about Michael Aliano, the details of which are not important
to this opinion, as the defendant did not offer the details for their truth.
The defendant also testified that ‘‘the duty—the lawyer’s obligation is to
look out for the client’s comprehensive quality of life, that a lawyer, in
addition to the considerations of the case, can factor in other considerations,
such as economic, religious, sociological . . . what have you.
‘‘Now, ultimately, [Terry’s] quality of life benefited from the promotion,
the assistance, and the maintenance of an intimate relationship. It was a
positive in her life, positive in my life.’’
He also admitted that he had told the grievance committee that he would
advise a woman going through a divorce to ‘‘find a competent trial lawyer
and make him your boyfriend,’’ and that if you ‘‘aggravate a client, maybe
you lose their business [but if] you aggravate a sweetheart, you are sleeping
on the couch . . . .’’ Further, the defendant testified that he ‘‘believe[d]
that a litigant benefits from dating a talented trial lawyer . . . .’’
Additionally, the defendant testified that ‘‘a lawyer’s love and affection
for his client is a motivating factor to give—to go the extra mile. You know,
now, it doesn’t mean that if the intimate relationship ends that the lawyer
is somehow precluded from providing exceptional representation or making
the extra effort, but certainly if you care about your client, if you genuinely
care about the cause that you are litigating, you are going to go the extra
mile. But this—there is no requirement that you go the extra mile. It’s just
something that you do selfishly because you care.’’ The court then asked
the defendant what he meant by going ‘‘an extra mile . . . .’’ The defendant
explained that he might ‘‘writ[e] a more extensive brief in support of the
client’s cause.’’ The court next asked the defendant if he represented differ-
ent clients differently, to which the defendant responded, ‘‘I think that could
be argued. I think that’s a fair statement . . . .’’
5
The defendant and Terry shared wine in the Aliano home while the
children were present in the home despite an agreement that each of the
Alianos had with the Department of Children and Families stating that each
party ‘‘agreed not to allow anyone [who] . . . is under the influence of
alcohol or drugs to care for the children.’’ A copy of this agreement hung
prominently on the refrigerator door in the Aliano home.
The defendant argues that the agreement is irrelevant because he ‘‘was
not caring for the children—their mother—Terry Aliano was. A court cannot
discipline [the defendant]—because the mother—Terry Aliano drank a glass
of wine.’’ The plaintiff responds that the document illustrated ‘‘that [the
defendant], while representing Mrs. Aliano, engaged in conduct which
caused her to violate a [Department of Children and Families’] agreement.
It was not used to infer some sort of agreement on his part personally to
refrain from drinking. [The defendant’s] misunderstanding of the evidence
is indicative of how his personal interest clouded his professional judgment.’’
6
The defendant testified that Terry approached him and said that her
attorney needed another $30,000, but that she did not have the money. The
defendant then told Terry that he was ‘‘available for [her]’’ if she needed
him, and that, although he was not a family law practitioner, he had ‘‘an
exceptional command of the facts of [the] case by virtue of the time that
[they had] spent daily talking about [the] case, day after day after day, [and
that he had] a command of [the] case that no other attorney could reasonably
expect to acquire because of [their] relationship . . . .’’ The defendant also
told Terry: ‘‘[L]ook, I genuinely care for you. This is not—if you ask me to
represent you, this is not just an ordinary case. You are not going to get
an average attorney or some average attorney who just treats it like any
other [case].’’
7
During his defense testimony at trial, the defendant testified on the issue
of remorse as follows: ‘‘The last thing that I would say, Your Honor, is sister
counsel has talked about a lack of remorse, and she’s right. I am about as
remorseful as Rosa Parks on the [front] of the bus. Now, I’m sure some folks
might’ve said, hey, Rosa, why are you upsetting the white folks? Wouldn’t it
have been easier for you to just get up and go to the back of the bus? I
suppose she could’ve. But, well, you know how that story played out. And
I suppose the same could be said of me. Hey, Mr. Zelotes, wouldn’t it have
been easier if the angry white man walked in the door, that you just got
up, went to the back of the bus. What sister counsel calls a lack of remorse,
I call principle and adherence to integrity.’’
8
The defendant also complains that the trial court failed to discuss rule
1.7 (b) in its decision. He argues that even if he violated rule 1.7 (a) (2) by
having a concurrent conflict, the evidence clearly demonstrates that Terry
waived the conflict and consented to his representation, and that his only
failure was that he did not get her informed consent in writing, which, he
argues, merely is a violation of rule 1.7 (b) (4). We do not agree.
Pursuant to the relevant portion of rule 1.7 (b), even if there is a concurrent
conflict, a lawyer may represent a client only if ‘‘(1) the lawyer reasonably
believes that the lawyer will be able to provide competent and diligent
representation to each affected client . . . and (4) each affected client gives
informed consent, confirmed in writing.’’ Accordingly, the lawyer’s belief
must be reasonable, and the lawyer must obtain written informed consent
from the client. See 1 G. Hazard & W. Hodes, The Law of Lawyering (3d
Ed. Supp. 2004) § 11-8, p. 11-22 (rule 1.7 [a] [2] ‘‘contemplates a case-by-
case weighing of the facts and permits representation only where there is
both fully counseled client consent and a reasonable belief on the part of
the lawyer that the conflict is not insurmountable, as required by rule 1.7
[b]’’ [emphasis in original]).
In the present case, it is undisputed that the defendant failed to obtain
his client’s written informed consent. Therefore, we conclude that rule 1.7
(b) does not apply to this case. Because rule 1.7 (b) does not apply without
the informed written consent of the defendant’s client, we need not discuss
or opine on the reasonableness of the defendant’s belief that he could
provide competent and diligent representation to his client under the circum-
stances of this case or whether the client’s purported consent in this case
was informed.
9
In Henry v. Statewide Grievance Committee, supra, 111 Conn. App. 12,
we noted the broad reach of rule 8.4 (4): ‘‘We begin by noting that rule 8.4
(4) casts a wide net over an assortment of attorney misconduct. O’Brien
v. Superior Court, 105 Conn. App. 774, 805, 939 A.2d 1223 (DiPentima, J.,
concurring in part and dissenting in part), cert. denied, 287 Conn. 901, 947
A.2d 342 (2008).’’ (Internal quotation marks omitted.) Henry v. Statewide
Grievance Committee, supra, 24. In footnote 11 of that opinion, we also
noted that ‘‘Connecticut courts, although only occasionally considering the
matter, have upheld findings of rule 8.4 (4) violations where an attorney
wrote a letter accusing a judge of extorting money from his client; Notopoulos
v. Statewide Grievance Committee, 277 Conn. 218, 236, 890 A.2d 509, cert.
denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); where an
attorney refused to attend several criminal pretrial conferences; Statewide
Grievance Committee v. Whitney, 227 Conn. 829, 830, 633 A.2d 296 (1993);
and where an attorney failed to pay a judgment that had been rendered
against him in a timely manner. Daniels v. Statewide Grievance Committee,
72 Conn. App. 203, 210, 804 A.2d 1027 (2002).’’ Henry v. Statewide Grievance
Committee, supra, 24 n.11.
We further noted that ‘‘[o]ur sister states have found 8.4 (4) violations
under even further reaching circumstances. See, e.g., In re Selmer, 749
N.W.2d 30, 36 (Minn. 2008) (failure to file income tax); State ex rel. Oklahoma
Bar Assn. v. Whitworth, 183 P.3d 984, 991 (Okla. 2008) (failure to appear
in court on behalf of client); North Carolina State Bar v. Ethridge, [188
N.C. App. 653, 664–65, 657 S.E.2d 378 (2008)] (preparation and recordation
of deed conveying client’s property to self contrary to client’s intent); In re
Abbott, 925 A.2d 482, 486–87 (Del.) (submission of brief including inflamma-
tory language), cert. denied sub nom. Abbott v. Office of Disciplinary Coun-
sel, 552 U.S. 950, 128 S. Ct. 381, 169 L. Ed. 2d 263 (2007); Attorney Grievance
Commission v. Mba-Jonas, 397 Md. 690, 701, 919 A.2d 669 (2007) (careless
management of escrow account); Florida Bar v. Barcus, 697 So. 2d 71,
72–74 (Fla. 1997) (appeal filed solely for purpose of delaying foreclosure);
Attorney Grievance Commission v. Garland, 345 Md. 383, 390, 396–97, 692
A.2d 465 (1997) (failure to appear at alcohol treatment facility in violation
of court order); Attorney Grievance Commission v. Singleton, 315 Md. 1,
6, 553 A.2d 222 (1989) (failure to notify client of own suspension from legal
practice).’’ Henry v. Statewide Grievance Committee, supra, 111 Conn. App.
24 n.11.
10
In Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 210–
11, 804 A.2d 1027 (2002), we explained that a violation of rule 8.4 (4) does
not require scienter or knowledge that the conduct is a violation of the rule:
‘‘We also reject the plaintiff’s argument that the failure to pay a judgment
promptly does not constitute a violation of rule 8.4 (4) and that intent is a
prerequisite finding to a violation of that rule. Regarding that point, the
[trial] court correctly stated: ‘Judges no less than lawyers are chargeable
for deviations from the codes governing their conduct, even though the
application of the canons to particular circumstances may not be readily
apparent. [Patterson v. Council on Probate Judicial Conduct, 215 Conn.
553, 567, 577 A.2d 701 (1990)]; Grievance Committee v. Rottner, 152 Conn.
59, 65–66, 203 A.2d 82 (1964). A judge may be sanctioned for a wilful violation
of one of the canons of judicial conduct if he intended to engage in the
conduct for which he is sanctioned whether or not [he] knows that he
violates the rule. In re Flanagan, 240 Conn. 157, 183, 690 A.2d 865, cert.
denied, 522 U.S. 865, 118 S. Ct. 172, 139 L. Ed. 2d 114 (1997).’ . . . That
reasoning equally is applicable to lawyers and, therefore, we conclude that
the [trial] court properly held that rule 8.4 (4) does not have a scienter
requirement.’’
11
When examining the mitigating factors, the court considered the defen-
dant’s ‘‘misplaced belief that his actions were of a benevolent nature and
enured to the benefit of Terry Aliano.’’