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 problems 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 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. . . . 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 appearance 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 disqualify the defendant from representing Terry in the matter. [The court] Shluger, J., granted the motion on January24, 2011. After the disqualification, the defendant and Terry ceased their intimate relationship and presumably their 'dating.' . . .
"The plaintiff's presentment complaint contains several alleged violations of the Rules of Professional Conduct. 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 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) . . . .
"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 Professional Conduct 8-4 (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 . . . 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 . . . [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 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. . . . The court hereby suspends the defendant from the practice of law for aperiod 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 Superior Court has adopted the Code of Professional Responsibility [now the Rules of Professional Conduct]. . . .
"Disciplinary proceedings are for the purpose of preserving the courts from the official ministration of persons 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 generis, 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 justice 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 [disciplinary] 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 preferable 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 Disciplinary 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 convincing evidence . . . we must consider whether the [fact finder's] decision was based on clear and convincing evidence." (Citation omitted.) Briggs v. McWeeny, 260Conn. 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.
The defendant claims that the "findings and evidence were inadequate—as a matter of law—to sustain a finding of a 'concurrent conflict' under rule 1.7 (a) (2)." He asserts that, because h...
