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In re Reciprocal Discipline of Zelotes

United States District Court, D. Connecticut

January 23, 2017



          Stefan R. Underhill United States District Judge

         The Grievance Committee of the United States District for the District of Connecticut (hereinafter “Grievance Committee”) has brought this presentment action to obtain reciprocal discipline against Attorney Zenas Zelotes for violations of the Rules of Professional Conduct (hereinafter “RPC”). I held a hearing on June 1, 2015, and took the matter under advisement. For the reasons stated below, I grant reciprocal discipline against Attorney Zenas Zelotes for a term of five months' suspension from practice before this Court. In the interests of justice and fairness, however, given the length period during which this matter has been under advisement, I set aside that order and substitute a sanction of public remand.

         I. Background

         The Chief Disciplinary Counsel initiated a presentment action against Zelotes in the Superior Court of Connecticut, Judicial District of Stamford/Norwalk. See Disciplinary Counsel v. Zelotes, 2013 WL 3769820, at *1 (Conn. Super. Ct. June 28, 2013), aff'd sub nom. Chief Disciplinary Counsel v. Zelotes, 152 Conn.App. 380 (2014). The trial court found Zelotes violated rules 1.7(a)(2) and 8.4(4) of the RPC and ordered a suspension from the practice of law for five months. Id. at *6. The Connecticut Appellate Court affirmed the trial court's decision and upheld the length of suspension. Disciplinary Counsel v. Zelotes, 152 Conn.App. 380, 410 (2014).

         Zelotes has expressly acknowledged the facts giving rise to this case. The Connecticut Appellate Court has adopted the trial court's factual findings, which were undisputed. The following facts are relevant to this discussion and come from the findings of the trial court as adopted by the Appellate Court.[1] Michael Aliano and his wife Terry Aliano were having marital problems. On March 19, 2010, they met Zelotes and his girlfriend at a jazz club in Norwalk, CT. The couples exchanged phone numbers and began seeing one another socially. Zelotes became friendly with both Alianos, and after socializing with the both of them for some time, Zelotes started seeing Terry alone, beginning in June 2010. Thereafter, Zelotes began an intimate relationship with Terry. On September 27, 2010, shortly after their intimate relationship began, Zelotes entered an appearance on behalf of Terry in the Aliano divorce. In December of 2010, Michael came home and saw Zelotes and Terry sitting in the kitchen sharing wine. Michael filed a motion in the divorce case to disqualify Zelotes from representing Terry, which was granted. After the disqualification, Zelotes and Terry ceased their intimate relationship. Zelotes was charged with violating Rule 1.7(a)(2). Zelotes' violation of Rule 1.7(a)(2) was based on the court's finding 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.” Zelotes, 152 Conn.App. at 383. Zelotes was also charged with violating Rule 8.4(4), which prohibits conduct prejudicial to the administration of justice, by “encourag[ing] [Terry] to go forward with her divorce against Michael . . . and fil[ing] an appearance on her behalf in lieu of prior counsel.” Id. at 384.

         II. Standard of Review

         Local Rule 83.2(f)(2) governs when reciprocal discipline should be imposed in federal court. See In re Williams, 978 F.Supp.2d 123, 123-24 (D. Conn. 2012). Under Local Rule 83.2(f)(2), when the Grievance Committee petitions for the imposition of reciprocal discipline via a presentment action, the identical discipline must be imposed unless it clearly appears on the face of the record in the prior disciplinary proceeding:

a. That the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
b. That there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the discipline imposed; or
c. That the imposition of the same discipline by the Court would result in grave injustice;
d. Or that the misconduct established is deemed by the Court to warrant substantially different discipline.

D. Conn. L. Civ. R. 83.2(f)(2). If the court finds that one or more of these exceptions exists, it may enter “such other order as it deems appropriate.” Id. “The standard of review in this proceeding is highly deferential to the state court's determination.” In re Williams, 978 F.Supp.2d at 125 (citing Theard v. United States, 354 U.S. 278, 282 (1957); see also In re Roman, 601 F.3d 189, 192-94 (2d Cir. 2010); In re Edelstein, 214 F.3d 127, 132 (2d Cir. 2000)). The burden falls on Zelotes to demonstrate by clear and convincing evidence that reciprocal discipline should not be imposed. In re Roman, 601 F.3d at 194 (citing In re Friedman, 51 F.3d 20, 22 (2d Cir. 1995)). When the presentment is contested, as it has been here, the court should not act as a rubber stamp in the name of reciprocity. In re Williams, 978 F.Supp.2d at 125. Instead it must determine whether the record of the prior proceeding discloses a substantial defect covered by one of the exceptions to reciprocal discipline. Id.

         III. Discussion

         A. Recipro ...

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