William E. Conner (2009)

On July 8, 2008, the Supreme Court Professional Conduct

William E. Conner, on the memorandum of law and orally, pro se. to press. Errors may be reported by E-mail at the following address:

professional conduct committee. Landya B. McCafferty, of Concord, on the brief and orally, for the

editorial errors in order that corrections may be made before the opinion goes No. LD-2008-005 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Original Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as on the motion in abeyance until Young and the respondent paid the assessed

p. 2 early 2002, the Trial Court ( responses to them, and did not inform the Abbenes that they had been filed. In

for voluntary non-suit. Following the hearing the trial court held its decision

fees. Young and the respondent essentially ignored these motions, filed no

award attorney’s fees. already been effectively dismissed and that the trial court was preparing to meritless lawsuits. In July 2002, the trial court held the hearing on the motion Abbenes in order to avoid claims of malpractice for filing, and then neglecting, respondent began discussing ways to pay the fee awards without informing the res judicata and the statute of limitations, as well as requests for attorney’s

the Abbenes. Further, the letter did not inform the Abbenes that the case had

approximately $16,000. In a series of e-mail messages, Young and the many of the defendants submitted motions to dismiss the action as barred by subcontractors in the construction of the Abbenes’ home. Soon after filing, second, Young and the respondent sued numerous entities alleged to be

decisions which they claimed had been, but in fact were not, discussed with

series of orders assessing attorney’s fees against the Abbenes for a total of a later hearing on the issue. Beginning in May 2002, the trial court issued a construction case. The trial court did not rule upon the motion, but scheduled respond, or the trial court’s decision to grant the first motions. to challenge the arbitration award, was dismissed as untimely filed. In the In April 2002, the respondent moved for a voluntary non-suit of the had not informed the Abbenes of the dispositive motions, their failure to

used to finance the Abbenes’ home construction litigation.

successful. In that letter, Young and the respondent referred to strategies and letter to the Abbenes informing them that the construction case might not be neither Young nor the Abbenes appeared, Young and the respondent wrote a Following a March 2002 status conference, at which the respondent but

Abbenes’ behalf relating to the construction case. The first suit, which sought vacate the trial court’s orders. Even at this point, Young and the respondent motions. Shortly thereafter, the respondent attempted, unsuccessfully, to

respondent in relation to an unrelated personal injury case they were pursuing, malpractice by Scott. Young also convinced the Abbenes to hire him and the

disbarred for misconduct in an unrelated case. make them whole by pursuing new litigation. We note that Young has been

In mid-2001, Young and the respondent initiated two actions on the

new litigation relating to the construction of their home, as well as potential 359 (2006). The Abbenes paid Young and the respondent $7,500 to pursue

David A. Young had convinced the Abbenes that he and the respondent could Despite their wish to avoid further litigation, by early 2001 Attorney them; and (6) Rule 8.4(a) for violations of the above-referenced rules. p. 3 Abbenes and to deceive them about the status of their cases, as well as lying to

the Abbenes; (5) Rule 8.4(c) for attempting to conceal information from the

attempting to avoid a malpractice action at the expense of his duty of loyalty to mounting fees; (4) Rule 1.7(b) for operating under a conflict of interest when with the Abbenes and inform them of the status of their cases and the

against Young and the respondent with the PCC.

neglecting the construction case; (3) Rule 1.4(a)-(c) for failing to communicate

accrued attorney’s fees personally. The Abbenes then filed formal complaints

respond to dispositive motions or limit the Abbenes’ losses; (2) Rule 1.3(a) for merit, and/or barred by law or the statute of limitations, as well as for failing to 1.1(a) for filing cases on the Abbenes’ behalf knowing that they were without

not forthcoming with much of the requested information. wanted to know the reasons the fees had been assessed. The respondent was respondent to the PCC. In early 2003, the Abbenes were ordered to pay the 3 recommended that the Abbenes hire independent counsel, and referred the hearing with their case files. Following this hearing, the trial judge

issue was the sanction. The respondent stipulated to having violated: (1) Rule

owed, as well as recommendations about how to pay the fees. They also

Abbenes fired the respondent and requested that he appear at the show cause disbarred, but that he be permitted to apply for readmission “after an The PCC’s Hearing Panel recommended that the respondent be

violations of the New Hampshire Rules of Professional Conduct. Thus, the only

respondent a breakdown of the costs of the construction case, and the fees to any service on the Abbenes, however, they had requested from the show cause why they should not be required to pay the fees themselves. Prior Young’s and the respondent’s neglect and malfeasance. In February 2003, the themselves. Only then did the Abbenes learn the duration and extent of notice of the show cause hearing, the Abbenes decided to review the court’s file Before the PCC, the respondent stipulated to the facts and the resulting

requiring the Abbenes to be served personally to appear before the court and

the Abbenes served personally for a show cause hearing. Upon receiving the In January 2003, the trial court granted the defendants’ request to have

fees had been assessed, but did not disclose the amounts. Abbenes about them. Eventually, the respondent informed the Abbenes that

personally. Following this order, some of the defendants sought an order to collect their fees from Young and the respondent, or from the Abbenes suit, entered final judgment for the defendants and authorized the defendants In December 2002, the trial court denied the motion for a voluntary non-

attempting to structure a method of paying the fees without informing the fees. Young and the respondent then exchanged further correspondence the legal profession. While the respondent certainly violated other duties owed, p. 4 and to act in the interests of his clients. We regard these as bedrock duties of to Rule 1.7(b). In so doing, the respondent violated his duties to be truthful

for the most serious misconduct.

violations. The respondent’s mental state may be one of intent, knowledge, or

violations; it might well be and generally should be greater than the sanction

integrity of the legal profession, and preventing similar conduct in the future.

mitigating factors.” PCC, the respondent’s most severe violations were those of lying to his clients

Next, we review the respondent’s mental state at the time of these

generally the appropriate sanction. Standards, supra §§ 4.31, 4.61. the sanction for the most serious instance of misconduct among a number of the most serious. We note also that for either of these violations disbarment is see, e.g., N.H. R. Prof. Conduct 1.1, 1.4, we, like the PCC, consider these to be the ultimate sanction.

appropriate sanction. protecting the public, maintaining public confidence in the bar, preserving the

caused by the lawyer's misconduct; and (d) the existence of aggravating or We review first the duties violated by the respondent. According to the

ABA recommends that the sanction imposed should at least be consistent with

the sanction, we consider the effect of any aggravating or mitigating factors on

first step is to categorize the respondent’s misconduct and identify the sanction of disbarment, we focus not on punishing the offender, but on Id.; Standards, supra § 3.0. In applying these factors, the

duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury Standards, we consider the following factors when imposing sanctions: “(a) the (Standards) for guidance. See Douglas’ Case, 156 N.H. at 621. Under the We look to the ABA Standards For Imposing Lawyer Sanctions (1992)

and circumstances.” Wolterbeek’s Case, 152 N.H. 710, 714 (2005). seeks the sanction of disbarment, we review its recommendation, Id. “In deciding the appropriate sanction, we consider the case on its own facts participant in the New Hampshire Lawyers’ Assistance Program. As the PCC could apply for readmission after three years, so long as he was an active

N.H. 613, 621 (2007). When determining whether to impose the ultimate for a violation of the rules governing attorney conduct. Douglas’ Case, 156 We retain the ultimate authority to determine the appropriate sanction

suspension, subject to various conditions. The respondent, for his part, argues for a sanction only of a long-term R. 37(16), keeping in mind that the sole issue before us is the proper sanction.

disbarment was the appropriate sanction, with the proviso that the respondent appropriate interval and with appropriate supervision.” The PCC agreed that which included a public censure.

p. 5 approximately $12,000. the commission of multiple offenses; and (3) has a prior disciplinary record, dishonesty to protect himself; (2) engaged in a pattern of conduct resulting in PCC found as aggravating factors that the respondent: (1) acted with

money through a malpractice action against Young, they have yet to recover

taken steps toward rehabilitation in dealing with his substance abuse issues. sanction, however, we must review any aggravating and mitigating factors. The misconduct; (3) had suffered from depression and alcoholism; and (4) has problems” at the time of these events; (2) showed sincere remorse for his 5

consequential sum. Although the Abbenes have managed to recover some

in substantial financial harm to the Abbenes. Before deciding on the ultimate disbarment given the lengthy and deliberate violation of ethical rules resulting factors. These are that the respondent: (1) was facing a “series of personal it would be difficult to conclude that the sanction could be any other than proper sanction is disbarment. Although there are mitigating factors here, the resulted from events contemporaneous with, though unrelated to, those here. After reviewing these factors we conclude, as did the PCC, that the

him. See Standards, supra § 9.32(e). thoroughly cooperative in the investigation and prosecution of the case against See Standards, supra § 9.32(c), (l). We also note that the respondent has been total, the respondent’s actions cost the Abbenes more than $40,000, a for the services of the respondent to pursue essentially meritless lawsuits. In to pay the significant attorney’s fees levied, but also in the money lost paying

Additionally, the PCC found what it refers to as “important” mitigating violations indicate the appropriate baseline sanction to be disbarment. Indeed,

agree that these aggravating factors apply. We note that the prior censure

deception, we must conclude, as did the PCC, that the respondent acted

substantial financial harm to the Abbenes, not only in that they were required

Reviewing these factors, we conclude, as did the PCC, that these

period of at least a year, and involved collusion with Young to further the

at 132 (brackets and quotations omitted). At a minimum, there was a legal system, or the profession which results from a lawyer’s misconduct.’” Id. conduct. “The Standards define ‘injury’ as ‘harm to a client, the public, the We next consider the actual or potential injury from the respondent’s

deceiving his clients and operating under a conflict of interest occurred over a Grew’s Case, 156 N.H. at 366. Given that the respondent’s conduct of not the external pressures that could potentially have hindered his judgment.” cmt. “What is relevant . . . is the volitional nature of the respondent’s acts, and negligence. Grew’s Case, 156 N.H. 361, 366 (2007); Standards, supra § 3.0 case. p. 6 expenses incurred in the investigation and enforcement of discipline in this respondent is ordered to reimburse the attorney discipline system for all

Assistance Program. Finally, by the terms of the stipulation with the PCC, the

equivalent program approved and monitored by the New Hampshire Lawyers’

participant in the New Hampshire Lawyers’ Assistance Program or an PCC that as a condition of his reapplication, the respondent shall be an active readmission no earlier than three years from July 1, 2008. We agree with the 6

the date of this cessation. Accordingly, the respondent may apply for

disbarment is to protect the public, rather than to punish the offender,

sanction in this case. We conclude that the three-year term ought to run from voluntarily ceased his practice in New Hampshire in anticipation of a potential readmission after three years. Further, the respondent has stated that he

again practice law. Given that the purpose of imposing the sanction of

BRODERICK, C.J., and GALWAY, J., concurred.

Sup. Ct. R. 37(19). meaningful term of disbarment. Thus, the respondent may apply for

correct the personal problems that have plagued him may yet permit him to

imposed for similar misconduct.

ought to be permitted the opportunity to reapply for admission after a Coddington’s Case, 155 N.H. 66, 68 (2007), we believe that the respondent

(collecting cases). We acknowledge, however, that the respondent’s efforts to

abide no less a sanction than disbarment. This sanction is in line with those respondent’s deliberate deception of his clients over a substantial period can