William E. Conner (2008)

The parties entered into a Stipulation of Facts and Rules violated. The Professional Con~uct

Committee makes factual findings and rulings as detailed below:

referenced in the Stipulation, the transcript of the hearing and Memoranda, the Professional Conduct

Motions, the Stipulation as to William E. Conner, the Jointly Submitted Emails and Letters

Having reviewed the record, including the Notice of Charges, Answer, Complaint History,

abstained from the proceeding.

Martin, and James J. Tenn, Jr. David N. Page was absent. Thomas P. Connair and David N. Cole

Chair;.i~...la.f} J. Cron.~eim; Gerald J.AJ.o Daley; PJchard H. Darling; Gretchen Rule Ha...'11el; Ja...'11es R.

Panel included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair; Toni M. Gray, Vice

William C. Conner, Esquire, appeared on his own behalf. The Professional Conduct Committee

McCafferty, Esquire, Disciplinary Counsel appeared for the Attorney Discipline Office. Respondent,

referenced matter pursuant to New Hampshire Supreme Court Rule 37A(III)d(2)(B). Landya B.

On January 15, 2008, the Professional Conduct Committee heard oral argument in the above-

Conner, William E. and Young, David A. advs. Professional Conduct Committee and

Gerald A. Daley' Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair James 1. Tenn, Jr. David N. Cole David N. Page* Toni M. Gray,' Vice Chair . 603-224-5828 • Fax 228-9511 James R. Martin Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Gretchen Rule Hamel Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Richard H. Darling*

Cloutier, docket No. 94-C-177 (hereinafter referred to as the"Cloutier Case").

("HCSC") against the general contractor and the architect. The case was entitled, Abbene v.

5. Mr. Scott brought suit on the Abbenes' behalf in Hillsborough County Superior Court -North

for the defects.

4. The Abbenes sought the advice of Michael J. Scott, Esq., to assist them in pursuing recovery

Abbenes discovered a number of alleged defects in the constmction.

Hampshire, the Abbenes received an occupancy pennit. Shortly after occupancy, the

3. On August 31, 1993, after the constmction of their custom home it, Bedford, New

Abbenes file original lawsuit against general contractor

Hampshire 03 p. 2 257.

Hampshire 03766. Mr. Conner's current address is: 116 Newport Road, New London, New

New Hampshire 03766-1533; and (c) Attorney at Law, 30 Bank Street, Lebanon, New

New Hampshire 03784-31 p. 2 21; (b) Attorney at Law, 85 Mechanic Street, Suite 260, Lebanon,

the following addresses: (a) Conner Law Office, 1 Oak Ridge Drive, Suite 8B, West Lebanon,

to practice on October p. 2 22, 1993. At times material to this proceeding, Mr. Conner has utilized

p. 2 2. Mr. Conner is an attorney licensed to practice law in New Hampshire. Mr. Conner was admitted

professional misconduct against Mr. Conner and Mr. Young.

Complainants, Michael and Elena Abbene, of Bedford, New Hampshire, asserted allegations of

1. In sworn complaints dated April p. 2 28, 2003, and two subsequent letters dated July 16,2003,

the following findings of fact by clear and convincing evidence:

Committee, upon consideration and review of the Stipulation, detennined that the record supports p. 3 3

$7,500.00 to do it. (This litigation is hereinafter referred to as the"Arbitration Case.") Mr.

could successfully overturn the arbitration award and that it would cost them no more than

12. By early 2001, Mr. Young had convinced the Abbenes that, with Mr. Conner's assistance, he

enforce the arbitration award.

11. On September 1 p. 3 3,2000, the HCSC granted the defendants' request to enter judgment and

10. Phase 2 proceeded and the Abbenes were generally unsuccessful during that Phase.

vacate the Phase 1 award.

9. By Order dated November p. 3 30,1998, the HCSC denied the Abbenes' request to modifY or

qualifications.

Mr. Scott did not, at any time during the appeal, raise the issue of the Phase 1 arbitrator's

HCSC. Although the Phase 1 arbitrator was a mechanical rather than a structural engineer,

of $ p. 3 33,050.00 in repair costs. Mr. Scott appealed the Phase 1 arbitrator's award to the

8. During Phase 1, the arbitrator confirmed the existence of certain defects and estimated a total

defects.

examine the Phase 1 arbitrator's findings and allocate liability between the defendants for any

that the Phase 1 arbitrator be a structural engineer. In Phase 2, a different arbitrator was to

each alleged defect and, if a defect existed, assess the cost of repair. The stipulation required

7. In Phase 1 of the arbitration, an engineer would examine the Abbenes' home and investigate

would coordinate the arbitration in two phases.

case to arbitration. The stipulation provided that the American Arbitration Association

6. By stipulation dated November 11, 1996, the parties in the Cloutier Case agreed to submit the p. 4 4

directly to Mr. Conner to save time.

Mr. Young. Mr. Young instructed the Abbenes that Michael's mother should send a check

17. The i-\.bbenes prevailed upon Michael Abbene's mot.her to borrow sufficient fhnds to retain

had selected Mr. Conner to assist him.

16. Mr. Young explained to the Abbenes that he would act as their primary lawyer, but that he

Young to represent them.

damages they had incurred in the constmction of their home, the Abbenes retained Mr.

15. Persuaded that Mr. Young, with Mr. Conner's assistance, could help them recover the

malpractice claim against Mr. Scott.

"Malpractice Case.") Messrs. Young and Conner both believed the Abbenes had a strong

malpractice action eventually brought against Mr. Scott is hereinafter referred to as the

claims they might have against Mr. Scott for his handling of the Cloutier Case. (The

1 p. 4 4. Additionally, Messrs. Young and Conner advised the Abbenes with respect to malpractice

Construction Case.

Conner, who did not research the issue further, that the statute of repose applied to the

limitations and the Construction Case would not be time-barred. Mr. Young persuaded Mr.

passed since they discovered the defects in their home, there was an 8-9 year statute of

13. Messrs. Young and Conner also advised the Abbenes that, although more than 3 years had

"Construction Case").

eventually brought against multiple subcontractors is hereinafter referred to as the

subcontractors, none of whom Mr. Scott had named in the Cloutier Case. (The case

Young also discussed his plans to make the Abbenes whole by bringing suit against the p. 5 5 previously confmned.

judgments in the Cloutier Case and to overturn the arbitration awards that the HCSC had

Arbitrator Award in HCSC. In that motion, Messrs. Young and Conner sought to reopen the

2 p. 5 5. In Apri12001, Messrs. Young and Conner filed a Motion to Bring Forward and Set Aside

$18,163.11 from the Petco Case settlement funds to flmd the Construction Case litigation.

Construction Case on an"as needed" basis, Mr. Young persuaded the Abbenes to pay

$ p. 5 5,067.19 in cash. While the Abbenes had originally hoped to pay expenses for t.lJ.e

24. Per the terms of Mr. Young's May 10, 2001, disbursement letter, the Abbenes received

settlement in t..t,.e Petco Case a..l1d the disbursement terms.

23. By letter to the Abbenes dated May 10, 2001, Mr. Young memorialized the $4 p. 5 5,000.00

in the amount of $4 p. 5 5,000.00.

22. Thereafter, Mr. Young was able to negotiate a settlement in the Petco Case for the Abbenes

21. On February 7, 2001, both Mr. Young and Mr. Conner filed Appearances in the Petco Case.

20. Mr. Young persuaded the Abbenes to allow him to represent them on the Petco Case as well.

the Abbenes in the Petco Case.

Michael had sustained on the premises of Pet co. Jack S. White, Esq., had been representing

0027. (Hereinafter referred to as the"Petco Case.") The Petco Case related to a knee injury

HCSC entitled, Abbene v. Manchester Run. LP. Petco Animal Supply. Docket No. oo-c-

19. Mr. Young also learned from the Abbenes that they had a personal injury lawsuit pending in

to Mr. Conner for $7, p. 5 500.00.

18. To that end, on or about January 18,2001, Michael's mother, Patricia Daidone, wrote a check p. 6 6

June 2001: Young and Conner file the Construction Case

one-year time limit.

31. In the Order, Judge Conboy held that the Motion to Bring Forward was filed well outside the

had denied the Abbenes' prior appeal of the Phase 1 award.

The Motion to Bring Forward was filed on April 2 p. 6 6, 2001, more than 2\1., years after HCSC

January 15, 1998, and the original appeal of that award was denied on November 30,1998.

for review"within one year after the award is made." The Phase 1 award was made on

30. RSA 542;8 requires a party aggrieved by &1. arbitrator's award to apply to u~e superior court

including that the motion was time-barred under RSA 542:8 (1997).

present, the HCSC (Conboy, J.) denied the Motion to Bring Forward on all grounds,

29. After a hearing in December 2001, at which the Abbenes, Mr. YOlmg, and Mr. Conner were

agreement or a new arbitration proceeding.

stmctural engineer constituted a mutual mistake, justifYing recission of the arbitration

28. Messrs. Young and Conner argued that the appointment of a mechanical rather than a

awarded the Abbenes a larger sum for repair.

structural engineer would have correctly assessed the costs of the defects and would have

defects, he underestimated the costs of repair. According to Messrs. Young and Conner, a

27. Messrs. Young and Conner argued that, while the Phase 1 arbitrator correctly identified the

structural engineer, as required by the terms of the arbitration agreement.

2 p. 6 6. The theory underlying the motion was that the Phase 1 arbitrator was a mechanical and not a p. 7 7

Orders dated January 18, 2002, and to Enlarge the Time for Response."

39. On or about January 2 p. 7 7,2002, Mr. Conner filed a"Motionfor Reconsideration and to Vacate

series of defendants' dispositive motions and requests for attorney's fees.

forward copies of them to the Abbenes. On January 18,2002, the Court granted the first in a

38. Messrs. Young and Conner did not respond to any of these dispositive motions and did not

requests for attorney's fees.

3 p. 7 7. Thereafter, numerous defendants filed dispositive motions, including motions to dismiss and

action.

gave the Abbenes 30 days to amend the writ to allege facts sufficient to state a cause of

36. By orders dated September 24, 2001, the Court (Brer'..nan, 1.) granted motions to dismiss and

action.

statute of repose (RSA 508:4-b), and failure of the plaintiffs to adequately plead a cause of

requests for attorney's fees, raising as defenses the statute oflimitations (RSA 508:4, I),

35. Shortly thereafter, the defendants began filing motions to dismiss the Construction Case and

Abbenes' home.

defendants, all of whom were alleged to have been subcontractors for the construction of the

34. The writ of summons asserted claims grounded in contract and negligence against 19 named

completed in August 1993.

33. The Construction Case arose from the construction of the Abbenes' home, which had been

Abbene v. Stanley Stevens, et a!., docket no. 01-C-55J."

County Superior Court-North. The Construction Case was entitled"Michael and Elena

32. On June 1 p. 8 8,2001, Messrs. Young and Conner filed the Construction Case in Hillsborough 8

court's orders in this matter. So Ordered. plaintiffs [sic] negligence in litigating this case that led to the [sic] motion in the light most favorable to the plaintiffs, it is the Motion denied. No supporting affidavit filed. Taking the plaintiffs

41. In an Order dated February 27,2002, the Court denied the motion as follows:

lawsuit. ... on what are essential! y orders terminating this criti cal without further notice, hearing, or opportunity to be heard 7. It appears the Court has dismissed the various defendants

ever received from the Court. Pi~-L..li.......... UJ..l.l.l6 UU.L'-' vv oJ ., .... L VB. U.l.l..:> va.,:,""".HU .l.iV.l.l'-' VVU':' 't"\"''''-~al ho." ... ~nn- r"I"f"" H7a-'" C'C>.+............ +1-.;",...... nco"'" n ..... rl ................ "'" " ... , .... ,., 6. Plaintiffs' counsel had asked to be notified only when a

40. In that motion, Mr. Conner asserted: p. 9 9

discussed with you at the beginning. raised as a defense against it and will continue to be raised, as we subcontractors, but coverage under this statute has already been under a New Hampshire statute that allows actions against lawsuit. The second issue is the statute of limitations. We sued trial at this point because they were not brought during the original concerned that a judge will simply not allow them to be taken to when the initial lawsuit was filed. They were not, and we are against the subcontractors could, and should, have been brought bar recovery because they are predicated on the fact that actions overly legalistic, both of these concepts will probably operate to concepts of collateral estoppel and res judicata. Without getting the multiple defendants. The most major issue are the legal Secondly, we have two basic issues to deal with regarding

actions ag~i11st t.he various builders. legal underpinnings and a strong moral argument to continue with motion to bring forward was lost, we believe it removed the basic had a hope of reactivating the prior lawsuit. Fran..ldy, -when the First, you will recall that this suit was begun when we still

allow Bill and me to make some recommendations about it. The time has come to discuss the future of this lawsuit and

Dear Michael and Elena:

Re: Construction Lawsuit

Messrs. Young and Conner wrote a letter to the Abbenes dated March 20, 2002:

was present but the Abbenes were not present for that conference. After that conference,

44. A status conference in the Construction Case took placed on March 12,2002. Mr. Conner

other problems with respect to the Construction Case.

to dismiss, their failure to respond to the motions, the Court's order granting the motions, and

43. Neither Mr. Conner nor Mr. Young had made the Abbenes aware of the defendants' motions

2002.

42. In an Order dated February 28, 2002, the Court scheduled a status conference for March 12, p. 10 10

shortly. We'll look forward to discussing our options with you

Mike Scott this week and would welcome your comments. I have attached a draft of a letter we propose to send to

voluntary non-suit. This will cease the action immediately. like to terminate the case at this time by filing what is called a looking into a malpractice action against Mike Scott. We would getting you your best chance of relief and financial recovery: Hillsborough Superior Court action at this time and focus on appropriate action. However, our suggestion is that we stop the are ready to consider appealing them if that seems the most the judge. A number of the actions have been dismissed and we

from the defendants for dismissal oftheir individual cases and we Conboy's decision, we informed you that motions had come in Y Oil will recall that when we \V-ere waiting for Judge

this area. Conboy's decision if you would like to reinforce your thoughts in regard to the selection of an arbitrator. Please re-read Judge made a mistake in handling the earlier case to your detriment with several times. Mike is a likeable young lawyer whom we believe malpractice action. You will recall that we have all discussed this your best chance of recovery is to proceed against Mike in a Conboy's decision regarding the knowledge of Mike Scott, that We believe that, at this point, especially given Judge

detrimental impact on any related lawsuits. rationale in that decision, if it went against us, would have a correctly, not to appeal primarily based on the fact that the case in a very well reasoned decision that you decided, we believe was largely based on the success ofthe other case. We lost that The bottom line is that success against the subcontractors

emotional effort on your part to move the case along. recoveries, hardly justifYing the ongoing time, expense, and defendants is small, and, if successful, may only result in minimal therefore limiting all damages to the initial arbitrator's award. [sic] recovery will be held to the Conboy ruling based on res judicata, We also must consider the strong possibility that any p. 11 11 the constmction of their home. an alternative process for recovery of claims arising from this matter and the clients have made the decision to pursue 2. A number of defendants have already been dismissed in

Court. I. This motion is filed to dismiss this action in the Superior

Motion for Voluntary Nonsuit, stating in support thereof: William E. Conner, Esq., and David A. Young, Esq., and file this Michael Abbene and Elena Abbene, by and through their attorneys NOW COME plaintiffs in the above captioned matter,

49. On or about April 18, 2002, Mr. Conner filed a"Motion for Voluntary Nonsuit," stating:

the Constrtlction Case.

denial ofthe Motion to Bring Forward in the Arbitration Case had a detrimental impact on

48. In the March 20 letter, Messrs. Young and Conner falsely suggested that Judge Conboy's

Young and Conner that they had explained in advance to the Abbenes.

defendants' motions to dismiss the Construction Case was a strategy adopted by Messrs.

47. In the March 20 letter, Messrs. Young and Conner falsely suggested that not responding to

assess attorney's fees against them.

Construction Case had essentially been dismissed by default and the Court was poised to

46. In the March 20 letter, Messrs. Young and Conner failed to infonn the Abbenes that the

Conner jointly composed the letter as Mr. Conner typed it.

45. Mr. Conner typed the above March 20 letter in Mr. Young's presence. Messrs. Young and

CC: Bill Conner

52. In a Memorandum to Mr. Young dated May 10, 2002, Mr. Conner wrote:

individual defendants against the Abbenes.

51. In a series of orders begip~n-ilJ.g on May 6, 2002, "llJe Court assessed attorneys' fee 3\vards for

Mav 2002: Court awards fees in Construction Case

So Ordered.

pleadings filed in the ordinary course. not to take any further action at this time except in response to the plaintiffs' motion for volunta.-ry nonsuit. The court has decided In about 60 days, a one-hour hearing shall be scheduled on

party's motion and request individually and independently. summary judgment and for final default. The court decided each matter ranging from requests for attorney's fees to motions for issued orders on a total of eleven motions from defendants in this counsel at the Stahls Conference on March p. 12 12, 2002 and has today The court has considered the information it received from

on Motion for Voluntary Nonsuit" as follows:

4, 2002, the Court issued a"Court Memorandum on Status Conference and Order for Hearing

50. After the March p. 12 12,2002, status conference, at which Mr. Conner was in attendance, on May

A. Grant plaintiffs' Motion for Vohmtary Nonsuit.

Honorable Court to: WHEREFORE, your plaintiffs respectfully request this

original amount you took for the case is in play. Abbene's [sic] with a request for more moneys [sic] when the have the funds. What do you suggest? We cannot go to the I am fully aware of my responsibility in this matter. But I don't

expenses, let alone the luxu..ry of discretionary fbnds. since then and I'm getting quite desperate for general operating money and nothing has changed. Still, not another new client read in my office, expressed by [sic] feelings well regarding simply no way I can do it. My email to you last week, which you We need to figure out how to cash flow these amounts. There is

suit against us. the Abbene's [sic] will find out and we'll have a nice malpractice The biggest risk here is that, if the arnounts rerllain outstanding, possible. One has already told the court that we have not paid yet. The issue is simple: We need to pay these attorneys as soon as

Jackson Lumber $1,064.25 Vaillancourt Plum. $1,389.00 Southern Poured Can. $1,773.32 John Manseau Miller Eng. ABD Woodworks $1,063.00 Not Just Kitchens $5,177.20

The total is very high.

yesterday. fees in the Abbene's [sic] case as the last orders came in The bad news is that the judge has granted all of the requests for

bad news. Well, it looks like the damage is all in. There's good news and

SUBJECT: Abbene DATE:May 10, 2002 FROM: Bill TO: David p. 14 14 15th on which payment to your finn will be made. pay them. Hopefully, we will be able to give you a date by July Understand that we are responsible for these fees and will

our clients with them. method of cash fio"ving t..lJem [sic], as \ve do not intend to burden these fees ourselves, and are attempting to detennine the best quite high. As I indicated in court at an earlier hearing, we will pay Please know that the total amount of assessed fees was

the orders in this matter. payment of court ordered fees to your finn and others pursuant to assured that David Young and I are attempting to structure the I wanted to follow up on your letter of the 24th. Please be

Dear Attorney Johnson:

Re: Abbene v. Stevens et al

attorneys representing a defendant in the Construction Case:

54. In a letter dated Jlme 28, 2002, Mr. Conner wrote to Matthew R. Johnson, Esq., one of the

Dave

Thanks

matters. the Abbenne's[sic] would put us in a position for us to resolve all need to settle the claim. My hope is twenty or thirty thousand for case and detennine the bottom linethat [sic] the Abbennes [sic] insurance company to cover the attorney's fees on the construction hope is that we can secure a large enough settlement from the If you could email me back on that process. Obviously my

suit against Mike Scott? drafted a fee agreement between you and them for the malpractice Abbenne [sic]-Have you discussed with the Abbenne's [sic] or

Bill

53. On June 25,2002, Mr. Young wrote the following email to Mr. Conner:

this case .... p. 15 15

57. On July 9, 2002, Mr. Young wrote the following email to Mr. Conner:

Bill

both from an angry judge and angry clients .... [sic] in their name. Remember, we could get referred to the PCC in the Abbene's and let them know of the damage that is acruing recent email regarding no fLmds, we've got no choice but to bring to get hammered. Ifwe don't have a plan, as indicated in your that hearing with no plan for payment of the attorney's fees, expect July 23rd for the motion for voluntary non-suit. If we walk into sent. The bigger issue with Abbene is the upcoming court date of expect to if they don't make an offer from the materials already her. Have not heard from the carrier regarding the file issue, but insurance carrier to contact us in a reasonable time, or we'll contact Abbene: Conboy decision mailed. Next step is to wait for the

56. In response to that email, on July 8, 2002, Mr. Conner wrote to Mr. Young:

Dave

Thanks,

Scott between you and the Abbennes' [sic]?.... to draft a fee agreement specific to the malpractice case against you have discussed with the carrier? Have you had an opportunity file copied? Do we have any responsibilities to assist them which resolved? Also, has the carrier made any arrangements to have the insurance carrier? What is the next step to getting this case Abbenne [sic] Was the Convoy [sic] decision forwarded to the

Bill ....

55. On July 7,2002, Mr. Young wrote to Mr. Conner in an email regarding the Abbene case:

cc: David A. Young, Esq.

regarding this letter. Please feel free to contact me if you have any questions p. 16 16 to the abbenes [sic] so i [sic] don't look like an idiot. What was was pissed. Please give me a better idea before you or i [sic] talk talk about it you say sindy [sic] didn't file something and the Judge a brief description of what happened. Everytime [sic] we start to process, [sic 1 If you want me on the line ,you [sic] have to give me Abbene --When do you or we call the abbenes [sic] to start this

Good Morning Bill,

·61. On July 20,2002, Mr. Young wrote the following email to Mr. Conner:

money. collecting at my regular rate, not a one half rate. It's a lot of back, I need to maximize my time. That means billing and -IfI or we get stlmg from Abbene, a.l1d I have to pay them

the pee on us bot.~... the penalties. I expect that, when he tells Elana, [sic 1 they'll go to Abbene -Fine, I'll talk to Mike and ask him to loan funds to cover

David ...

60. Late that same date, Mr. Conner wrote the following in an email to Mr. Young:

hearing on the 23'd.

59. On that same date, Mr. Young informed Mr. Conner via email that he was unavailable for the

the 23rd at 9, but I think you may not be available. plan on attending if free just so the judge can recognize you. It' s make a PCC referral if this case doesn't get handled. You should with no plan in place and can not [sic 1 do so as the judge will likely and see if he can front us some money. I cannot walk into court with Mike during the day soon to let him know what's going on arrangements to offer other counsel re fees. We better plan to meet Abbene: We have the hearing next week on the non-suit and no

58. On July 17,2002, Mr. Conner wrote the following email to Mr. Young:

do that sooner rather than later, to try to work out a plan. stuff until late, .., If we need to talk with the Abennes, lets [sic 1 Abbene ... Remember, I was not brought into the loop on this

Bill ... p. 17 17 number of months before that gets heard. David Young has due from the appellant's side this coming Friday. It will be a dollar case that is under appeal to the Supreme Court with briefs figure out how we could come up with it. We have a half million dismiss this case because of that. We're in the process of trying to couple of months. We understand the court may not choose to this. Neither of us has had a decent run of cash flow in the last other attorney on this matter, would hold our clients harmless from we had indicated that we would, David Young and myself, the interested in getting those fees, the difficulty is at the last hearing I've had some communication with some people that are

granted a request for a total of over $15,700 in attorney's fees. perfectly candid with the court, the court has assessed a total or ... Our interest is in having the suit dismissed, but I have to be

63. Mr. Co:nner bega.ll the hea-ring as follows:

was present.

62. The hearing on the Motion for Vohmtary Nonsuit occurred on July 23, 2002. Mr. Conner

Young and Conner correspond about liability for attorney's fees July -November 2002: Hearings on motion for non-suit and

construction matter. attorney proceeds to pay the liabilities first oil the above previous funds have been used [ sic] [W]e have agreed to use any on the Scott malpractice claim with the Abbene. [sic] All call the abbenes [sic] today. You need to do a new fee agreement around maybe you could get me the info this morning and we can them. I will be leaving 10 or 11 am this morning-sat. If you are defendant, could you fax me any coorespondance [sic] to or from who? We have previously explored a structured payment with the order or motion to me? What is the exact monies owed and to was a critical event that the judge is mad about could you fax the the late filings deal with more than one defendant? [sic] If there late? Was there more than one motion or filing that was late? Did p. 18 18 flow in hand to resolve all these issues. put enough in place so that when he returns we will have the cash August to spend a three month tour in Afghanistan. We hope to and he;s going to be activated sometime during the month of months, he's a major in the army reserve serving as a Green Beret ____ ~..... , ............ '-'........... "'>J o'V..L.I..L6 " ...... vv 6v ............... yy..lJ..J. ... '"'.LV-'- U. .... ..,. .... p..l. ..... \..I..l r1;:!t~. n~",rl;1 v rmng ll;! crl\lncr tA hp ('Tnn'::>' ~ uihil"" f"n"1" <::I r>r\H-nl"" r..f' We would respectfully request 180 days be the drop dead

flow to satisfY this without the necessity to come before the court. are both still trying to figure out how we could maximize our cash r-IIR. C01\TNER: That's still a work itl prOgless. David and I

THE COURT: When can you pay by?

TIlne. MR. CONNER: Fifteen thousand seven thirty-eight zero

What was the total? do at this point, Mr. Conner, when do you think you could pay? THE COURT: You know more about your financial situation than I

64. After several defense counsel spoke, the Court asked Mr. COILl1er:

court indicating that all outstanding awards have been satisfied. taken care of by that time then I presume I'll do a notice to the p. 18 180 days and schedule a status at that time. Ifwe get everything and costs on this matter to give us a window of say a maximum of keeps this matter open because of the unpaid award oflegal fees court as to what the court wants us to do, and to request if the court I guess my request at this point is to have guidance from the

will also generate some additional fees. also could come to fruition in 90 to 120 days and that, we believe, constitution issue which is being dealt with in another venue which do that, and there is another matter relating to this whole told them they shouldn't have to do that, and we would like not to Theoretically, our clients could advance us the money. We

guidance on how best to do this. claim they are on. What we would like to do is ask the court worked it out with our clients we will hold them harmless from any relying on our small practice routine cash flow, and since we have within the next 60 to 90 days. In the meantime, both of us are another matter that is going to produce substantial income probably p. 19 19 to do so?/ this with the abbene's [sic]. IDo we have an ethical responsibility complaints being incomplete in some fashion. I have not discussed on the motions to dismiss. The judge was also unhappy about the incurred the costs on this case were more than missing the deadline Abbene -- On monday [sic] you told me that the issues that

David ...

66. On July 31, 2002, Mr. Conner wrote in an email to Mr. Young:

So Ordered.

October 28, 2002, to ensure that this order is being complied with. A status conference is scheduled for 9:00 a.m. Monday,

date. cause hearing if they have not been paid their fees and costs by that before Monday, November 4, 2002. Any party may request a show case. All costs and fees ordered in this matter shall be paid on or plaintiff s attorneys have paid the costs and fees awarded in this The decision on this motion is held in abeyance until the

held:

65. In an"Order On Plaintiffs' Motion for Vohmtary Nonsuit" dated July 23,2002, the Court

each account, but certainly no later than 180 days to resolve it. and see if we could agree to some type of a prorated payment on Perhaps I could correspond with all the attorneys involved

about not wanting to partially pay one to the detriment of another. amended is now $3300, and I think we've had kind of a normality Your Honor. One is $5100 and the one that was just recently partial payments by agreement, but two of the ones are quite large, so we have the total now. Certainly we could start making some weeks or so ago when a request for supplemental fees was granted, Secondly, the fmal amount wasn't arrived at until five

any dismissal. these fees. Certainly that was understood that they would survive circumstances were we attempting clever use of a nonsuit to avoid I just want to point out, Your Honor, under no p. 20 20

David ...

70. On September 24, p. 20 2002, Mr. Conner wrote the following in an email to Mr. Young:

Defendants or a lien on the DSSC case as a payout provision. Abbene ... We need to discuss a payment schedule with the

Good morning Bill, ...

69. On August 19, p. 20 2002, Mr. Young wrote the following in an email to Mr. Conner:

and pay with DSSC or Scott monies? Also do we have a plan or schedule for payment is the plan to hold _ll,,-bbene - Did you send a nevv fee agreement to the abbenes? [sic]

Bill, ...

68. On August 6, p. 20 2002, Mr. Young wrote the following in an email to Mr. Conner:

Dave

included the flat fee on that accounting. have the abbene [sic 1 accOlmting from the personal injury case we incorporated as an expense on that case i [sic 1 don't know. You decision and that it is the fault of Scott, perhaps the $15,000 can be construction case, this should be modified to reflect the Conboy Abbene -- The rate was 33.3 % minus the flat rate monies on the

Bill, ...

67. On August 1, p. 20 2002, Mr. Young wrote the following in an email to Mr. Conner:

Bill

other way - but no one has paid any actual cash out on this liability I'd rather fess up now and see if we can raise the money some

already, but I wouldn't bet the ticket on it. ... don't think that we need to tell them any more than they know Yes and no. Ifwe can pay the fees, this case just goes away and I p. 21 21 question or seek other relief. I don't know what else is available at transactions with them to pay this off on or before the date in ourselves, butwe may end up having to go to them to arrange have provided stimulus for us to come up with the monies Our clients are well aware of what is going on and they

based on our own cash flow here. myself have had difficulty in coming up with an effective plan I say we, I mean David Young and myself. Attorney Young and We've had difficulty in coming up with a structure method. When The status report is not that good at this point, Your Honor.

defendants on or before the 4th of November. order for status conference today and a payment being made to the months ago, the end of July, July 23rd, I believe, which gave an We're here on a status based on the court's order several

MR. CONNER: Thank you, Your Honor.

attendance. lvfr. Corllier began the hearing with ti1.e following remarks:

72. On October 28, 2002, the HCSC held a status conference, at which Mr. Conner was in

agreement. Abbenes a fee agrement [sic 1 modeled after the construction heard back from Scott? From the carrier? Did you send the we were hoping to pay it out of Scott settlement funds. Have you [sic 1 did not discuss amounts except to say it was thousands and lmderstand that attorneys fees for the opposing side was awarded i Abbene -- I spoke with the abbenes [sic llast friday, [sic 1 they

I hope your weekend went well.

Good Morning Bill,

71. On October 15,2002, Mr. Young wrote in an email to Mr. Conner:

Bill

any direct action to collect would fall on them. clients', not ours. We have the moral obligation to pay them, but I just want to remind you that the outstanding liabilities are our

And, I'm apparently stuck with Abbene and Corey's penalties .... p. 22 22

... it means the other lawyers will start going after Abbene [sic] ... ... The Abbene thing was simply the final jud~ment

75. On December 17, 2002, Mr. Conner wrote in an email to Mr. Y Olmg:

So Ordered.

attorney's fees awarded by this court in this case. recover from the plaintiffs and/or their cOlmsel all costs and defendants. The defendants are authorized by this judgment to denied. The plaintiffs have defaulted and final judgment is for the The plaintiff's [sic] motion for voluntary nonsuit ... is

and issued a judgment as follows:

74. In an Order dated December 12,2002, the Court denied the Motion for Voluntary Nonsuit

December 2002: Court enters judgment against Abbenes

without further expense to their clients.

Each expressed a similar concern about resolving the matter with a final judgment and

73. After Mr. Conner's opening statements, counsel for each defendant addressed the Court.

THE COURT: Thank you.

will be home again, in te=s of all candor to the court .... months and then a period when he gets back out of Bragg and then around six weeks, then he will go to Afghanistan for probably four problematic. He will be in the country for, he thinks, something Young being called up at Fort Bragg it becomes even a bit more part to avoid payment, simply a cash flow issue. With Attorney There is no denial of the awards, there's no attempt on our

5th of November at this point. hold what will be a flurry of show cause motions to be filed on the another 60 days to see if we could put something together that will this point other than asking the court for a reasonable extension of available for the next week. We want to set up a conference call p. 23 David is going out of town and will be in Colorado but will be

additional info is ok by Friday. Thursday PM as from my original phone call but the other We would like to have the infonnation on a breakdown by

winnings. front the money for this if need be and deduct it from your payment with the attorneys. We spoke with David and he will agreeable to this. We also mentioned about setting up a stmctured copy of the Conboy decision. You said they might not be rolling over the costs onto the Scott case and of course attaching a Also, as discussed we want you to present to the attorneys about

correspondence from the attorneys for the contractors. \Ve -would like copies of the cou..rt documents along with the because of inappropriate attorney conduct because of late filiugs. want to know what part of the fees are those assessed by the court costs for each. You stated that the judge assessed amOlL.">1ts. We We want a complete list of defendants and their attorneys and the full breakdown of the costs associated with our construction case. Per our telephone conversation today, Michael and I would like a

Dear Bill,

78. In a letter dated that same date, the Abbenes wrote to Mr. Conner:

Construction Case litigation.

77. On January 15,2003, Mr. Conner spoke on the telephone with the Abbenes about the

January 2003: Young and Conner correspond with Abbenes about award of fees; negotiations

"directly to Michael Abbene and Elena Abbene ...."

prayer for relief, the defendants requested that the Clerk of Court issue a notice of hearing

show cause why they should not be ordered to pay the attorney's fees obligation. In the

"Motion to Show Cause," seeking an order that the Abbenes make a personal appearance and

76. On or about December 18, 2002, two named defendants in the Construction Case filed a p. 24 24

against the Abbenes .... Consider this letter my plea for relief short of taking direct action

regarding this matter, as recently as two days ago .... ... David and I have spoken with Michael and Elena Abbene

have sufficient funds to pay the attorney's fees:

80. In his January 17,2003, letter to Mr. Dunn, Mr. Conner explained that the Abbenes did not

Case.

assign the attorney's fees from the pending Malpractice Case and other small personal injury

award offees ...." Mr. Conner's settlement proposal was for Messrs. Conner and Young to

an offer of settlement"intended for all attorneys representing clients who have received an

79. In a letter dated January 17,2003, Mr. Conner wrote to Andrew D. Dunn, Esq., and included

Elena & Michael Abbene

Sincerely,

the conference call. Please contact us to let us know when you are available to set up

the others no later than Friday, Jan. 17,2003. We will be expecting the first fax from you by tomorrow 5PM and

want any late filings of any kind or to miss any deadlines. be filed in the time frame they are supposed to be filed. We do not moving along and perform all the filings etc. that are supposed to regularly as you promised in November. We want the case to be with the malpractice case against Mike Scott and keep us updated In the meantime, while David is away, we want you to continue

that we all can be on -you, David Young, Michael and me. p. 25 25 Dear Mr. Conner:

January 17,;;003, settlement proposal. Mr. Durm wrote:

87. In a letter to Mr. Conner dated January 28,2003, Mr. Dunn responded to Mr. Conner's

Abbenes indicated that they were going to Court to review their file themselves.

the show cause hearing and Mr. Conner's failure to forward relevant documents to them. The

86. In a letter to Mr. Conner dated January p. 25 25, 2003, the Abbenes expressed concern regarding

19,2003.

85. In an Order dated January 24,2003, the Court scheduled the show cause hearing for February

plaintiffs themselves, Michael Abbene and Elena Abbene."

and ordered that notice of the show cause hearing (as yet unscheduled) be"sent directly to the

84. In an Order dated January 21,2003, the Court granted the defendants' Motion to Show Cause

court's orders regarding the judgments" and would forward them to the Abbenes.

Construction Case but promised that he would"arrange to have copied all of the copies of the

telefax, Mr. Conner indicated that he had not had time to copy the documents in the

Conner informed them that he and Mr. Y Olmg were no longer working together. In that

83. In a telefax dated January 17,2003, but received by the Abbenes on January 29,2003, Mr.

this .... suffer no harm because of as soon as I can and my prime goal is to provide that you two ·.. As indicated in the letter [to Mr. Dunn], I will take care of this

82. In his cover letter accompanying the spreadsheet, Mr. Conner wrote to the Abbenes:

indicated a total obligation of$16,964.49.

summarizing the attorney's fees obligation in the Construction Case. The spreadsheet

81. On that same date, Mr. Conner forwarded the Abbenes, via telefax, a spreadsheet p. 26 26 Court for the February 19, 2003, show cause hearing.

requested that he bring both the Construction Case and Malpractice Case files with him to

90. In a letter to Mr. Conner dated February 11, 2003, the Abbenes terminated his services and

well. Early on during this time-frame, the Abbenes believed Mr. Young.

Abbenes that Mr. Conner concealed the problems with t.l}e Construction Case from]lim as

judgment and attorney's fees entirely on Mr. Conner. Mr. Young falsely informed the

unaware of the problems with the Construction Case, and he laid the blame for the default

ingratiate rJmself to L~e Abbenes. To that end, 1'v1r. Young told the Abbenes that he \-vas

89. During this time-frame, Mr. Young attempted to distance himselffrom Mr. Conner and to

time, he learned the extent of his attorneys' neglect in the Construction Case litigation.

88. On January 28, 2003, Mr. Abbene went to the HCSC and reviewed his file. For the first

the case. propositions on to my clients and to the other counsel involved in actually been paid and released. I will, however, pass your were barred by the statute oflimitations and in some cases had brought against my clients at least were without merit because they enough experience in litigation to know that the claims that they Moreover, I believe that the Abbenes were sophisticated and have suspect that would be barred by the statute of limitations as well. a malpractice action against the Abbenes' prior counsel, as I arbitration proceeding. I have my doubts as to the sustainability of are likely to get much of a recovery out of your reopened accommodate you in could. Honestly, I do not believe that you I sympathize with your personal plight. I would like to

95. In an Order dated March 5, 2003, Judge Brennan ruled as follows:

Construction Case to the Professional Conduct Committee.

94. In a letter dated March 4, 2003, Judge Bren.rlan referred M..r. COILl1er'S conduct in t.ne

March 2003: Court makes PCC referral against Conner

independent counsel.

in the matter. The Court expressed reluctance to so order and advised the Abbenes to hire

that the Court structure an Order such that his"clients," the Abbenes, would be held harmless

the matter and their inability to take action to mitigate the damages. Mr. Young requested

93. During the hearing, Mr. Young repeatedly expressed the Abbenes' lack of knowledge about

via telephone.

Conner, Mr. Lynch, the Abbenes and defense counsel were present. Mr. Young participated

92. The show cause hearing took place on February 19,2003, in Judge Brennan's chambers. Mr.

must follow atthis point ...." end. Now it's gone. I'm saddened, but your wishes are what I Understand that this case was a primary basis for repayment on my assume for a fee which he will now earn instead of me. that cash flow, and David says he will assign a new counsel to it, I may be) the liabilities on the construction suit. Now I won't have and at a level which would allow me to repay (or pay, as the case disappointed because I saw this case as a great one to settle early consultation with David. You should know that I was particularly to remove me from the Scott case. I assume this was done in ... As you might expect, I was quite disappointed that you decided

his services on the Malpractice Case as follows:

received their letter terminating his services. Mr. Conner expressed his regret at terminating

91. In a telefax to the Abbenes dated February 12, 2003, Mr. Conner acknowledged that he p. 28 28

concludes that the record supports the following Rulings of Law by clear and convincing evidence:

The Professional Conduct Committee, upon consideration and review of the Stipulation,

II RULINGS OF L.Ld;,.,V

Mr. Conner.

that Mr. Young be added to their pending Professional Conduct Committee complaint against

97. In a letter to the Professional Conduct Committee dated July 16,2003, the Abbenes requested

formal grievance against Mr. Conner.

96. In a letter to the Professional Conduct Committee dated April p. 28 28, 2003, the Abbenes lodged a

April - July 2003: Abbenes file PCC complaints against Conner and Young

defendants. The plaintiffs shall pay the ordered costs and fees to the

attorney's neglect or malpractice. appropriate action to recover damages resulting from their to recover from their attorney outside of court, may file an v. Ray, 131 N.H. 550, 554. The plaintiffs', [sic] if they are unable authority are in essence the acts and omissions of his client." Cass Attorney Conner's"actions and omissions within the scope of his consequences of their attorney's negligent acts or his failure to act. The court fmds that the plaintiffs are liable for the

and costs being awarded to the defendants. against nineteen defendants resulted in substantial attorney's fees reasonably consider the legal foundation for the plaintiffs' suit defendants' numerous dispositive motions, and his failure to and Elena Abbene. Attorney Conner's failure to respond to the William Conner, was negligent in representing his clients, Michael In this case it appears that the plaintiff s [sic] attorney, p. 29 -"

credentials.

en2:ineer.'-', " Mr. Scott had waived (on behalf of the Abbenes) anv - /" '-' chaIIen2:e - - - -- - -- - to the arhitrator's - - - - - -

arbitrator's resume and, by failing to object to the arbitrator's background as a mechanical

that they knew or should have known that Mr. Scott had received a copy of the Phase 1

105. Messrs. Young and Conner advised the Abbenes to file the Arbitration Case despite the fact

104. Allegations set forth above are incorporated by reference.

constitutes a violation of N.H. R. Prof. Conduct J.1(a).

103. There is clear and convincing evidence that the conduct oflv1r. Conner in this regard

Young and Conner failed to provide competent representation to the Abbenes.

102. By counseling the Abbenes to file the Arbitration Case under these circumstances, Messrs.

101. Thus, as of the date of filing the Arbitration Case, it was time-barred.

to vacate or modifY that award was approximately 2Yz years old.

the Abbenes' behalf, the Phase 1 award was over two years old and the Court order declining

100. As of April 26, 2001, the date that Messrs. Young and Conner filed the Arbitration Case on

such an action.

to the provisions ofRSA 542:8, which imposes a one year time period within which to file

99. Messrs. Young and Conner advised the Abbenes to file the Arbitration Case without regard

98. Allegations set forth above are incorporated by reference.

Abbenes to file L~eir cause of action on or-before approximately August 31, 1996.

Abbenes discovered the defects immediately thereafter. Thus, RSA 508:4 required the

114. The construction of the Abbenes' home was completed on or about August 31, 1993. The

filed within three years from the date of discovery of the defects.

to the provisions of RSA 508:4, which requires that a cause of action for known defects be

113. Messrs. Young and Cormer advised the Abbenes to file the Construction Case without regard

112. Allegations set forth above are incorporated by reference.

Construction Case: Barred by Statute of Limitations

constitutes a violation of N.H. R. Prof. Conduct l.l(a).

111. There is clear and convincing evidence that the conduct of Mr. Cormer in this regard

Y Olmg and Cormer failed to provide competent representation to the Abbenes.

110. By counseling the Abbenes to file the Construction Case under these circumstances, Messrs.

judicata effect of the prior judgment in the Cloutier Case.

109. Messrs. Y Olmg and Cormer advised the Abbenes to file the Construction Case despite the res

108. Allegations set forth above are incorporated by reference.

constitutes a violation ofN.H. R. Prof. Conduct l.l(a).

107. There is clear and convincing evidence that the conduct of Mr. Cormer in this regard

YOlmg and Cormer failed to provide competent representation to the Abbenes.

106. By counseling the Abbenes to file the Arbitration Case under these circumstances, Messrs. p. 31 31

constitutes a violation ofN.H. R. Prof. Conduct 1.1 (a).

122. There is clear and convincing evidence that the conduct of Mr. Conner in this regard

and Conner failed to provide competent representation to the Abbenes.

121. By failing to prosecute the Abbenes' Constmction Case as set forth herein, Messrs. Young

minimizing the Abbenes' potential liability for those fees.

claims for attorney's fees ~, immediately seeking a voluntary dismissal), thereby

had no merit, Messrs. Young and Conner failed to take timely steps to limit defendants'

120. Further, once it became apparent to Messrs. Young and Conner that the Constmction Case

default and to substantial liabilities.

requests, and motions for approval of attorney's fees, thereby exposing their clients to a

119. Messrs. Y Olmg and Conner failed to respond to dispositive defense motions, discovery

118. Allegations set forth above are incorporated by reference.

constitutes a violation of N.H. R. Prof. Conduct l.J(a).

117. There is clear and convincing evidence that the conduct of Mr. Conner in this regard

Young and Conner failed to provide competent representation to the Abbenes.

116. By counseling the Abbenes to file the Construction Case under these circumstances, Messrs.

limitations had expired.

after the Abbenes had discovered the defects and almost five years after the statute of

115. Messrs. Young and Conner filed the Construction Case on June 18, 2001, almost eight years

, .' p. 32 32

Court had granted the defendants' dispositive motions and requests for attorney's fees.

130. ~Y1essrs. Young a..~d Conner also"failed to inform t.1}e .. i\bbenes L1J. a timely ma..1l..11erthat t.lJ.e

requests for attorney's fees filed by defendants in the Construction Case.

129. Messrs. Young and Conner failed to inform the Abbenes about the dispositive motions and

128. Allegations set forth above are incorporated by reference.

of N.H. R. Prof. Conduct 1.3(a).

127. There is clear and convincing evidence that the conduct of Mr. Conner constitutes a violation

representation of the Abbenes was neither reasonably prompt nor diligent.

126. By failing to prosecute the Abbenes' Construction Case, Messrs. Young's and Conner's

minimize the Abbenes' potential liability for those fees.

claims for attorney's fees (~, immediately seeking a voluntary dismissal), and thereby

had no merit, Messrs. Y Olmg and Conner failed to take timely steps to limit defendants'

125. Further, once it became apparent to Messrs. Young and Conner that the Construction Case

default and to substantial liabilities.

and motions for approval and awards of attorney's fees, thereby subjecting their clients to a

124. Messrs. Young and Conner failed to respond to critical defense motions, discovery requests,

123. Allegations set forth above are incorporated by reference.

Construction Case. [198]

Messrs. Young and Conner failed to pay the attorney's fees awarded to the defendants in the

fact that the Abbenes would have a legal malpractice suit against them in the event that

138. Messrs. Young and Conner communicated to one another as early as May 10,2002, about the

13 7. Allegations set forth above are incorporated by reference.

of N.H. R. Prof. Conduct 1.4(a), 1.4(b), and 1.4(c).

136. There is clear and convincing evidence that the conduct ofMr. Conner constitutes a violation

and/or to make other informed decisions regarding their representation.

attorney's fees, the Abbenes were unable to take timely action to mitigate their liability

135. By failing to inform the Abbenes of the status of the lawsuit and their mounting liability for

Conner failed to keep the Abbenes reasonably informed regarding the status of that lawsuit.

134. By failing to inform the Abbenes of the status of the Construction Case, Messrs. Young and

their liability for attorney's fees until the February 19, 2003, show cause hearing.

1 p. 33 33. The Abbenes did not learn ofthe actual status of the Construction Case and the full extent of

defendants.

132. As of March 2002, attorney's fees of approximately $15,000 had been awarded to the

attorney's fees were being assessed against them.

Conner did not inform the Abbenes that the case had effectively been dismissed and that

their assessment of the case and recommendation for further action, Messrs. Young and

131. In Messrs. Young's and Conner's March 20,2002, letter to the Abbenes, purporting to offer p. 34 34

of interest.

awarded, Messrs. Young and Conner were operating under a clear and irreconcilable conflict

146. When t..he ConsLruction Case,vas dismissed a.l1d the defenda..1"J.ts' attorney's fees v/ere beL'tJ.g

145. Allegations set forth above are incorporated by reference.

Abbenes under these circumstances constitutes a violation ofN.H. R. Prof. Conduct 1. 7(b).

144. There is clear and convincing evidence that Mr. Conner's continued representation of the

disciplinary action.

pending matters was materially limited by their own interests in avoiding liability and

1 43. Joint representation of the Abbenes by Messrs. Young and Conner in connection with all

candid with the Abbenes about the case.

connection with the Construction Case, causing them not to communicate with and not to be

142. Accordingly, Messrs. Young and Conner were operating under a conflict of interest in

Abbenes and their duty of loyalty owed to the Abbenes.

disciplinary action and/or liability to the Abbenes was directly adverse to the interests of the

141. Messrs. Young and Conner knew or should have known that their interest in avoiding

cause of action against them for negligence in their handling of the Construction Case.

140. Messrs. Young and Conner also realized and were concerned that the Abbenes might have a

defendants' attorney's fees in the Construction Case.

Committee complaint against them as soon as the Abbenes learned about their liabilities for

concerns with respect to the possibility of the Abbenes filing a Professional Conduct

139. Subsequent email communication between Messrs. Young and Conner indicate similar p. 35 35

152~ Allegations set forth above are incorporated by reference.

N.H. R. Prof. Conduct 8.4(c).

151. There is clear and convincing evidence that Mr. Conner's conduct constitutes a violation of

misrepresentation.

interests of their clients constitute conduct involving dishonesty, fraud, deceit or

status of the Construction Case and the failures of Messrs. Young and Conner to protect the

150. Ivir. Young's and l'-'lf. Conner's efforts to cover-up and conceal from the Abbenes the true

awarded in the Construction Case.

cause order requiring the Abbenes to explain why they had not paid the attorneys fee's

until January, 2003, when the Court issued (and mailed directly to the Abbenes) its show

149. The aforementioned cover-up and deceit on the part of Messrs. Young and Conner continued

professional liability.

conceal from the Abbenes material facts relating to their performance and to avoid

messages between Messrs. Young and Conner, as summarized above, illustrate their intent to

148. Messrs. Young's and Conner's letter of March 20, 2002, to the Abbenes and various email

recovering damages in the Malpractice Case.

relating to the status of the Construction Case and diverted their attention to the prospect of

professional liability, Messrs. Young and Conner concealed from the Abbenes material facts

147. As a consequence of the aforementioned conflict of interest and in an effort to avoid p. 36 36

concludes that the appropriate discipline in this matter is disbarment.

Having made the above-referenced findings and rulings, the Professional Conduct Committee

8.4(a).

there is necessarily clear and convincing evidence of a violation ofN .H. R. Prof. Conduct

159. Because there exists clear and convincing evidence that Mr. Conner violated the above mles,

violation of N.H. R. Prof. Conduct 8.4(c).

158. There is clear and convincing evidence that Mr. Conner's conduct in this regard constitutes a

misrepresentation.

157. The writing of the March 20 letter constitutes conduct involving dishonesty, fraud, deceit or

about the tme status of the Construction Case.

156. Messrs. Young and Conner wrote the March 20 letter with the intent to deceive the Abbenes

the Abbenes about problems regarding the Constmction Case and the statute of limitations.

155. Further, in the above letter, Messrs. Young and Conner falsely stated that they had warned

the Construction Case.

denial of the Motion to Bring Forward in the Arbitration Case had a detrimental impact on

154. In the March 20 letter, Messrs. Young and Conner falsely suggested that Judge Conboy's

Young and Conner that they had explained in advance to the Abbenes.

defendants' motions to dismiss the Constmction Case was a strategy adopted by Messrs.

153. In their March 20 letter, Messrs. Young and Conner falsely suggested that not responding to p. 37 37

meritless lawsuit barred by law and barred by the statute oflimitations. In pursuing these cases, Mr.

basic responsibilities to his client. He was involved with misleading the Abbenes in filing a

In reviewing the first factor, the duty violated, we conclude that Mr. Conner failed in his most

155, 160 (2005).

serious misconduct." Douglas' Case, 156 N.H. 613, 621 (2007) quoting Richmond's Case, 152 N.H.

number of violations; it might well be and generally should be greater than the sanction for the most

should at least be consistent with the sanction for the most serious instance of misconduct among a

In instances of multiple charges of misconduct,"the ABA recommends L':lat the sanction imposed

lawyer's misconduct; (d) the existence of aggravating or mitigating factors." Standards, supra, §3.0.

Under the Standards, we are to consider the following factors when imposing sanctions:"(a)

Lawyer Sanctions (2005) (Standards) for guidance. Grew's Case, supra at 365; Coffey's Case, 152

In reaching this decision, we use the American Bar Association's Standards for Imposing

violations of the Rules of Professional Conduct.

with the fundamental abdication of his responsibility to his client and commits a pattern of serious

Conner's conduct, a factor that is most critical in a case such as this where an attorney is involved

In making the recommendation for disbarment, we focus in this case on the severity of Mr.

quoting Coddington's Case, 155 N.H. 66, 68 (2007).

profession, and prevent similar conduct in the future." Grew's Case, 156 N.H. 361, 365 (2007),

to protect the public, maintain public confidence in the bar, preserve the integrity of the legal

We recognize that"the purpose of attorney discipline is not to inflict punishment, but rather p. 38 --.;

13. That meets the definition of deceit. I was deceitful and cannot deny it. Tr been filed in the beginning until sometime after the knowledge became clear. Abbenes that the case was going down the tubes and that it never should have I can't denv that I did not - that I intention all v did not'" - - -- tell - did not tell t.he

Mr. Conner candidly acknowledged:

the circumstances. Rather, he commenced a conscious, intentional and systematic plan of deceit. As

reaching this obvious conclusion, Mr. Conner did not take the required and necessary step to address

before the Professional Conduct Committee, January IS, 2008, page 9, hereinafter Tr _. Yet in

filed" and that"it was clear that (he) had made a substantial mistake." Transcript, Oral Argument

Abbenes. Mr. Conner, in his own words, realized"early on ... that the case should never have been

We next consider Mr. Conner's mental state throughout the period he represented the

his extended representation of the Abbenes.

representing a client. Mr. Conner failed in making proper choices, not once, but repeatedly through

The duties that Mr. Conner violated were central to an attorney's responsibility in

choose the former not sometimes, but always. temporary advantage will be frequent. Attorneys, mindful of their oath, must It is in the nature of a profession built on trust that choices between truth and

As the Hearing Panel noted:

his own self interest at the expense of his clients. See Standards, §4.3-5.1.

In choosing between informing his clients of the state of these cases or protecting himself, he chose

conflict of interest between he and the Abbenes, a conflict he hid and did not disclose to his clients.

mislead the Abbenes as to his claimed legal strategy. This led Mr. Conner into creating a clear

He not only failed to inform his clients of the merits and status of these cases, he affirmatively

Conner failed to respond to discovery requests, dispositive motions and motions for attorneys fees. p. 39 I guess fully incriminate myself in

advs. Sherry E. Rowell, Professional Conduct Committee, #03-104.

Conner's prior disciplinary record which includes a prior public censure. See, Conner. William E.

Wolterbeek's case, 152 N.H. 710, 717 (2005). A further aggravating factor in this case includes Mr.

misconduct that resulted in the commission of multiple offenses. See, Standards, §9.32(b ),( c),( d).

Abbenes, acted dishonestly and for the purpose of protecting himself. He engaged in a pattern of

Mr. Conner, in making the calculations that he did during the period he represented the

aggravating and mitigating factors included in the ABA Standards.

In reaching our conclusion regarding sanctions, we have also considered a number of both

attorneys fees against the Abbenes. The harm to the Abbenes is both clear and substantial.

t..hese cases but also the need to respond to multiple counterclaims. Ultimately, it led to an 3\vard of

litigation that cost the Abbenes their time and their money. The result was not only the dismissal of

Abbenes were led by cOlllsel into filing what only can be characterized as frivolous litigation -

We next address the harm to the Abbenes caused by Mr. Conner's conduct. In this case, the

misrepresentations to his clients and continued until the time this complaint was filed.

We conclude that Mr. Conner's conduct was intentional, involved repeated omissions or

everything that went on ... Tr. 11. the complaint in such a manner as to gained, no help to myself, no help to the Abbenes in any way, and answered Mr. Young's e-mails, I realized at that point that there was no value to be Once the PCC:filing was made and I saw the claims against me supported by

As Mr. Conner acknowledged, again, candidly to the Committee:

with the Abbenes only after he was confronted with his own misconduct.

of the Professional Conduct complaint with this Committee. As a result, Mr. Conner was forthright

Not only did Mr. Conner engage in this acknowledged deceit but it continued until the filing p. 40 40

alcoholism, Standards, §9.32(h) and has persuasively demonstrated remorse in regard to his

at the time of these events, Standards, §9.32(c), was impacted by issues related to depression and

The Committee therefore notes as mitigators that Mr. Conner had significant personal issues

an excuse or a cause for his decisions.

for Mr. Conner's circumstances at the time he represented the Abbenes, however, they do not create

recognizes the importance of continuing his course of recovery. These difficulties create a context

participated in AA meetings to support his recovery. He has seen an alcohol counselor and credibly

fuld has addressed certain personal difficulties. He has been sober for five years and has consistently

Following the receipt of the complaint, Mr. Conner has candidly acknowledged what he did

a period vvhere he slovvly realized that he suffered from depression 3J."'1d alcoholism.

now disbarred. Further, he represented the Abbenes during a tumultuous period in his personal life,

Abbenes. He was clearly impacted by the unfortunate influence of David YOlmg, a lawyer who is

sincere remorse for his conduct. He placed in context the decisions that he made in representing the

Mr. Conner, in his presentation both to the Hearing Panel and to this Committee expressed

personal issues and has been fully forthcoming in acknowledging the breadth of his misconduct.

representation had on the Abbenes, he has done everything in his power to deal with significant

It would appear that once Mr. Conner fully realized his circumstances and the impact that his

Abbenes, but also from the time of the filing of the complaint with the Committee to the present.

series of personal problems that he faced, not only during the time of his representation of the

In reviewing the record as a whole, Mr. Conner's conduct must be placed in the context of a

presented by Mr. Conner.

While these aggravating factors are to be considered, important mitigating factors are also p. 41 41

For the above reasons, the Professional Conduct Committee recommends to the New

the New Hampshire Lawyers Assistance Program as a condition of his readmission.

37(2)( d). Should Mr. Conner seek re-admission, consideration should be given to his participation in

would need to comply with the reinstatement requirements of New Hampshire Supreme Court Rule

no earlier than three years following the date of the final Order of the Supreme Court. Mr. Conner

disbarring Mr. Conner in this case and allow him, if he chooses, to start the process of reinstatement

As a result, the Committee respectfully recommends that the Supreme Court issue an Order

not object to Lhe inclusion of a time frame in an Order of disbarment.

Abbenes. He has taken significant steps to address his personal issues. Disciplinary Counsel does

Mr. Conner seems to genuinely appreciate the severity of his conduct and the impact it had on the

in its decisions recommending disbarment, we are persuaded to include such a provision in this case.

While the Professional Conduct Committee has not previously included this kind of guidance

process of reinstatement.

disbarment is to be imposed, that the Order include guidelines as to when he may seek to begin the

emotion about his desire to practice law in the future. He therefore requested that if an Order of

representation of the Abbenes. Both before the Hearing Panel and this Committee, he spoke with

Mr. Conner recognizes that significant discipline will be imposed as a consequence of his

Standards, §9.32G).

to take important steps toward his own rehabilitation by dealing with his substance abuse issues.

representations of the Abbenes, Standards, §9.32(1). In additi0n, Mr. Conner has taken and continues p. 42 42

File David A. Young William E. Conner, Esquire Landya B. McCafferty, Disciplinary Counsel Distribution:

for disbarment of William E. Conner in the New Hampshire Supreme Court.

Therefore, the Professional Conduct Committee directs Disciplinary COlllSel to file a petition

that he be assessed all such costs and expenses.

discipline case. See, New Hampshire Supreme Court Rule 37(19). It is therefore also recommended

incurred by the Professional Conduct Committee in the investigation and prosecution of this attorney

Rule 8.4(a). Mr. Conner has agreed in the stipulation to pay the expenses attributable to him and

of Professional Conduct, Rules 1.1 (a), Rule l.3(a), Rule 1.4(a)-1(c), Rule 1.7(b), Rule 8.4(c) and

Hampshire Supreme Court that William E. Connerbe disbarred for violating New Hampshire Rules