The saga of Zenas Zelotes, the lawyer who championed his right to have an "intimate" relationship with his clients, reached another milestone the other day when Judge Frank D'Andrea ordered him suspended for five months. For those who have not followed this tale, it all began when Mr. Z was caught in flagrante delicto with his client by her then divorcing husband. Allegedly (though I don't think this is really disputed) they were sharing wine, listening to mood music, and cuddling in the client's candle-lit kitchen while supposedly preparing her trial testimony.
On motion by the husband, Zelotes was disqualified from further representing the client. In an ironic twist, the husband was ordered to pay the cost of new counsel. As things are wont to happen, the husband filed a grievance. Cuckolds are an angry lot.
Though the divorce case judge had found that lawyer and client had probably engaged in sex (probability being the operative standard of proof), the grievance folks could not so find, as there is a higher burden (clear and convincing evidence) in disciplinary matters. But they did find a conflict and conduct prejudicial to the administration of justice and the case went to trial de novo in the Superior Court.
The disciplinary trial seemed to lack some of the drama of the grievance hearing, where Zelotes at one point threw a handful of condoms onto counsel table to make a point about "client barriers." Zelotes maintained, as he has from the beginning of the case, that he has a right to love whomever he pleases, that as the union was never consummated he did not violate the prohibition on sex with clients, and that lawyers who have a personal interest in their clients would have a real incentive to give better service (no pun intended).
Judge D'Andrea found that the relationship between lawyer and client was too freighted, so much so that it might impede Zelotes' ability to avoid the "personal interest" material limitation conflict found in Rule 1.7. That was curious because I don't think there was evidence that Zelotes had ever pulled any punches while representing his client, but a potential conflict can sometimes be as bad as a real one. He also found that the relationship was conduct prejudicial to the administration of justice, a concept found in Rule 8.4(4) which has been the lawyer disciplinarian's "catch-all" for as long as it has been on the books.
Relying on a rule from a case called Botwick that allows disciplinary counsel to avoid the rigors of pleading and proving specific rule violations, the judge seems to have found the whole enterprise (candles and all) unseemly and concluded that any rational judge or lawyer would conclude that there should be a disciplinary response. While the Connecticut Supreme Court has criticized this rule as "loose textured" and warned that it raises the specter of creating common law disciplinary crimes in what is supposed to be a rule-based regime, the catch-all continues to catch many.
The idea behind the rule is not new. It can be found in earlier iterations of the lawyers' code which predate the modern rules of professional conduct. The notion is that lawyers have a special responsibility as actors in the legal drama and should not do anything that would weaken or erode the public's faith in the courts and the system of justice.
A lawyer colleague of mine in another state was prosecuted under this rule when he adopted the stage name of Rex Havoc, and engaged in semi-pro wrestling to raise money for charity. He would wear a mask and carry a briefcase into the ring. The crowd hated him, and, as such, he was a popular draw. Unfortunately, some of his peers thought that he might be demeaning the profession and brought him up on charges. (He beat the charges but retired the act.)
The adoption of the rules of professional conduct paralleled the move from common law crimes to the criminal code and was supposed to move us to a regime where the limits of acceptable conduct were found as bright lines and safe harbors. Nevertheless, the conduct prejudicial trap continued, and when nothing else quite fits, serves as an opportunity for a judge to craft a disciplinary response to troubling conduct.
I understand that Zelotes will appeal. Whether "Zenas Zelotes, the loving lawyer" will get the same result as "Rex Havoc, the wrestling lawyer" remains to be seen. But you can bet I will attend the oral argument on this one.•