Dating, Divorce and the Rules of Professional Conduct

Source: Disciplinary Counsel v. Zelotes, 062813 CTSUP, FSTCV126013168S

Zelotes, a lawyer, and and his girlfriend Sharon met another couple, Michael and Terry Aliano, in a jazz bar in New London. The Alianos ‘were having some problems in their marriage and were in New London to try to reconcile……” “The defendant …[and] his girlfriend ….struck up a conversation with the Alianos. The couples exchanged phone numbers and began seeing each other as couples, in a social capacity. The defendant became friendly with Michael and Terry and socialized together as a threesome. Thereafter, in June of 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. So far, no problem ….. under the Rules of Professional Conduct at least. But then Zelotes formed the belief that “he had an obligation to help her [Terry] 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 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 24th, 2010.” The defendant filed his appearance on behalf of Terry in the Aliano divorce case three days later on September 27, 2010.” Now there is, in my opinion, a big problem under the RPC.

Sometime in December of 2010, Michael came home earlier than expected; and and the defendant and Terry were again sitting together at the kitchen island with the same ambiance and sharing wine. The defendant described Michael’s demeanor (not surprisingly) as antagonistic.” Now there was another problem. “Michael filed a motion in the divorce case to disqualify the defendant from representing Terry in the matter.” The motion was granted. “After the disqualification the defendant and Terry ceased their intimate relationship and presumably their “dating.”

The presentment was based in part on Rule 1.8(J), which prohibits sexual relations with a client unless the relationship predates the representation. The defendant denied any sexual relations and the court was unable to find one way or the other on that issue.

The Court based its decision to impose discipline on Rules 1.7(a)(2) (conflict of interest based on personal interest of the lawyer) and Rule 8.4(4) (conduct prejudicial to the administration of justice).

Disciplinary Counsel sought a five year suspension. The Court suspended Zelotes for five months, citing as aggravating circumstances (prior) disciplinary sanction (in 2005), lack of remorse, and failure to perceive the risks involved in his activities….” Mitigating factors include remoteness of his disciplinary sanction, and a misplaced belief that his actions were of a benevolent nature and inured to the benefit of Terry Aliano.”

No remorse. An inability to perceive the risks involved in his activities. What risks? Put yourself in the shoes of Michael and Terry. Your marriage has some problems. You go on a date to a jazz club as part of an effort to reconcile, meet a nice couple, exchange phone numbers and then the four of you begin socializing. Then the socializing begins to involve only three people, Michael, Terry and Zelotes. Friends. And then, secretly, Terry and Zelotes begin dating using Michael and Terry’s home for intimate get togethers.. Might that have an effect on Michael’s and Terry’s efforts to reconcile? Assume the marriage was irretrievable, there remains the divorce process, an example of the administration of justice. ¬†Might the secret relationship between Terry and Zelotes make the divorce – the administration of justice – more acrimonious, more difficult, stressful, expensive. Certainly Michael was betrayed by an apparent friend. And then imagine that that mutual friend files an appearance on Terry’s behalf, morphing from apparent friend, to betrayer to adversary in the divorce case. Zelotes engaged in a sequence of events that was likely to make Terry and Michael’s divorce all the more difficult. It is hard to square that sequence of events with responsible lawyering. Even assuming Zelotes believed with all his heart that he was doing a good thing, his belief was unreasonable and his decision to represent Terry was, in the Court’s opinion, a clear violation of the Rules of Professional Conduct. Moral of the story: combing dating with lawyering should raise a red flag especially when the lawyering involves representing the object of one’s affections in her divorce.