David H. Bownes (2010)

Corrections. Mr. Fleury while Mr. Fleury was in the custody ofthe New Hampshire Department of New Hampshire Rules of Professional Conduct in connection with his representation of June 26, 2009, by Roland P. Fleury. Mr. Fleury alleged that Mr. Bownes violated the 2. The subject disciplinary proceeding was initiated by a complaint filed with the ADO on

Bownes's office is presently located at 20 Canal Street, Laconia, New Hampshire. Mr. Bownes operated a law office at 486 Union Avenue, Laconia, New Hampshire. Mr. admitted to the New Hampshire Bar in 1982. At all times material to this proceeding, I. The Respondent, David H. Bownes, Esq., is a New Hampshire attorney who 'was

as set forth in the Stipulation are established by clear and convincing evidence:

in this matter, and the Committee accepts the Stipulation. Accordingly, the facts described below

The Respondent and the Attorney Discipline Office (ADO) have stipulated. as to the facts

Richard H. Darling were absent.

James R. Martin and Jennifer 1. Parent. Alan J. Cronheim was recused. Thomas P. Connair and

Toni M. Gray, Vice Chair; Susan R. Chollet; David N. Cole; Gerald A. Daley; Julie A. Introcaso;

matter. Members present included: Margaret H. Nelson, Chair; Benette Pizzimenti, Vice Chair;

On July 20, 2010, the Professional Conduct Committee deliberated the above captioned

Bownes, David H advs. Roland Paul Fleury # 09-026

Alan J. Cronheim Holly B. Fazzino, Admin. Coordinator Thomas P. Connair * non attorney member David N. Cole Jennifer L. Parent Susan R. Chollet James R. Martin Toni M. Gray,' Vice Chair 603-224-5828· Fax 228-9511 Julie A. !nlrocaso Benelle Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Chenell Drive, Suite 102 Gerald A. Daley'

County Sheriffs Department, Mr. Bownes obtained an accident report in February 2007. 11. After corresponding with the Manchester Police Department and the Hillsborough

therapy. type injury" aggravated the underlying condition. Mr. Fleury was referred for physical consult conducted in June 2005 in conjunction with the CT scan, the recent"whiplash­ revealing evidence of a prior injury sustained in 1994. According to a neurological Fleury underwent an x-ray of the cervical spine and later a CT scan of the same area, complained of pain in his neck, tingling in his hands, headaches, and dizziness. Mr. 10. Mr. Fleury's medical records reflected that, shortly after the accident, Mr. Fleury

no additional medical records were generated after that time. relevant medical records pertaining to Mr. Fleury's condition. According to Mr. Fleury, Hampshire Department of Corrections. By August 2005, Mr. Bownes had received all copies of medical records from the Androscoggin Valley Hospital and the New 9. Mr. Bownes obtained medical records releases from Mr. Fleury and used them to obtain

referred for medical consultation with a specialist and a CT scan. Mr. Fleury's physical activity due to cervical pain. On May 27, 2005, Mr. Fleury was 8. On May 16, 2005, the prison issued a medical restriction pass addressing limitations in

describing the accident and his medical condition. 7. Mr. Fleury corresponded with Mr. Bownes during the period January to June 2005,

fee basis. 6. Mr. Bownes agreed to represent Mr. Fleury and to handle the matter on a contingency

Bownes with a description of the accident, as well as Mr. Fleury's medical symptoms. pursuing a personal injury claim on behalf of Mr. Fleury. Mrs. Fleury provided Mr. 5. On or about January 13,2005, Mr. Fleury's parents met with Mr. Bownes about

against the side of the van. collision. According to Mr. Fleury, he was shackled, but not seat-belted, and was thrown Mr. Fleury claimed to have sustained injuries when the van braked suddenly to avoid a prison after a court appearance at the Hillsborough County Superior Court in Manchester. Hillsborough County Sheriff s Department. Mr. Fleury was being transported back to 4. On January 10, 2005, Mr. Fleury was a passenger in a police van operated by the

at 80 Lowell Street, Manchester, New Hampshire. Hampshire Correctional Facility in Berlin, New Hampshire. Mr. Fleury currently resides 3. At all times material to this proceeding, Mr. Fleury was a resident of the Northern New p. 3 Page 3 of9

interests or the attorney-client relationship. Mr. Fleury, and to provide such representation with no avoidable harm to Mr. Fleury's 19. Mr. Bownes had a duty to act with reasonable promptness and diligence in representing

establishes the following violations by clear and convincing evidence:

Stipulation, as to the Rules of Professional Conduct that were violated. The Stipulation

The Respondent and the ADO have stipulated, and the Committee accepts the

expired in January 2008. further advised that the three-year statute oflimitations applicable to Mr. Fleury's claim have sent Mr. Fleury a letter advising him of the decision to close the file. Mr. Bownes 18. In his letter of June 15, 2009, to Mr. Fleury, Mr. Bownes acknowledged that he should

also received Mr. Fleury's letter dated December 5, 2007. responding to Mr. Fleury's March 8, 2009, letter. Mr. Bownes acknowledged tllat he had 17. On June 15,2009, Mr. Bownes wrote to Mr. Fleury and apologized for the delay in

expired on his claim. report on the case. Iv!r. Fleury expressed his hope that the statute of limitations had not 16. By letter dated March 8, 2009, Mr. Fleury wrote to Mr. Bownes requesting a status

15. The statute of limitations applicable to Mr. Fleury's claim expired in January 2008.

did not respond. report on the case. Mr. Bownes received Mr. Fleury's letter on December 7,2007, but 14. By letter dated December 5, 2007, Mr. Fleury wrote to Mr. Bownes requesting a status

close the file. 13. Mr. Bownes did not advise Mr. Fleury of his assessment of the case or his decision to

maintain a record of his determination to close the file. basis would not be in the best interests of his office. Mr. Bownes did not make or accident for which he could recover, and that pursuit of the matter on a contingency fee not sufficient evidence that Mr. Fleury sustained injuries caused by the January 10,2005, about November 2007 to close Mr. Fleury's file. Mr. Bownes determined that there was 12. Mr. Bownes reviewed the medical and other information he obtained and decided in or p. 4 Page40f9

account the severity of the misconduct." Coffey'S Case, 152 N.H. 503, 513 (2005). Although the

in the future." E.g., Conner's Case, 158 N.H. 299, 303 (2009)."The sanction must take into

confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct

The purpose of the Court's disciplinary power"is to protect the public, maintain public

Bownes's conduct, as described herein, violated Rule 8.4(a). 25. Having found the foregoing violations, there is clear and convincing evidence that Mr.

action that might be pursued in order to protect Mr. Fleury's interests. d. failing to advise Mr. Fleury in a timely fashion regarding alternative courses of claim on Mr. Fleury's behalf; and c. failing to inform Mr. Fleury in a timely fashion of his determination not to pursue a the prospects of recovery; b. failing to inform Mr. Fleury in a timely fashion of his assessment of the claim and status of his case; a. failing to respond in a timely fashion to Mr. Fleury's requests for updates on the

24. Mr. Bownes breached said duties by the following:

his case and the representation. handling for !vIr. Fleury so as to permit lVIT. Fleury to Blake informed decisions regarding Mr. Bownes also had a duty to explain the legal and practical aspects of the matter he was his claim and to promptly comply with Mr. Fleury's reasonable requests for information. 23. Mr. Bownes had a duty to keep Mr. Fleury reasonably informed regarding the status of

relationship with Mr. Fleury. 22. Mr. Bownes's aforesaid breach also caused the termination of his attorney-client

harm that could have been avoided by Mr. Bownes. 21. Mr. Bownes's aforesaid breach effectively extinguished Mr. Fleury's claim, causing a

statute oflimitations. dispose of the matter, in a prompt and timely manner prior to expiration of the applicable 20. Mr. Bownes breached said duty by failing to handle Mr. Fleury's claim, or otherwise p. 5 Page 5 of9

Fleury.

claim to be. Mr. Bownes's conduct also caused harm to his attorney-client relationship with Mr.

personal injury claim, however lllcertain or modest Mr. Bownes might have considered that

the analysis, Mr. Bownes's failures caused Mr. Fleury to lose any opportunity to pursue a

product of negligence, rather than any intentional act or willful purpose. As to the third prong of

the second prong of the sanction analysis, the Committee believes Mr. Bownes's conduct was the

communicate with Mr. Fleury about his assessment and handling ofthe claim. With respect to

reasonable diligence in assessing and handling Mr. Fleury's personal injury claim and his duty to

Under the first prong of the analysis, Mr. Bownes violated both his duty to act with

sanction. ld.

the existence of any aggravating or mitigating factors and whether they affect the baseline

baseline sanction is determined, the Court then looks to the fourth and final part of the analysis:

misconduct and determining a baseline sanction. See Conner's Case, 158 N.H. at 303. Once the

The first three parts of the analysis create the framework for characterizing the

(2007)); Standards §3.0.

existence of aggravating or mitigating factors." ld. (quoting Douglas' Case, 155 N.H. 613, 621

mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the

analysis for courts to consider in imposing sanctions:"(a) the duty violated; (b) the lawyer's

to them for guidance. Conner's Case, 158 N.H. at 303. The Standards set forth a four part

Court has not adopted the ABA Standards for Imposing Lawyer Sanctions ("Standards"), it looks p. 6 Page 6 of9 2 Section 4.44 uses the tenn"Admonition." The most analogous sanction in New Hampshire is a Reprimand. I Section 4.43 uses the term"Reprimand." The most analogous sanction in New Hampshire is a Public Censure.

to his client.

Bownes acted negligently and without reasonable diligence, and his conduct caused actual injury

The Committee finds that the baseline sanction in this case is a public censure. Mr.

and causes little or no actual or potential injury to a client. and does not act with reasonable diligence in representing a client, 4.44 Admonition 2 is generally appropriate when a lawyer is negligent

causes injury or potential injury to a client. does not act with reasonable diligence in representing a client, and 4.43 Reprimand! is generally appropriate when a lawyer is negligent and

4.42 Suspension is generally appropriate when:

4.41 Disbarment is generally appropriate when:

Lack of Diligence.

determining a baseline sanction. Relevant provisions set forth below appear at Standards § 4.4:

In conjunction with the foregoing assessment, the Standards offer material guidance in p. 7 Page 7 of9 and resources relating to: a) receipt and filing of, and timely response to, all b. The focus of such audit shall be on Mr. Bownes's office practices, systems,

audit is undertaken. office management. The consultant must be approved by the ADO before the of his office management practices by a professional consultant skilled in Mr. Bownes shall arrange for and undergo, at his own expense, a formal audit a. Mr. Bownes shall complete mandatory diversion under Rule 37A (I)(g)(4)-(8).

Respondent receive (I) a Public Censure, and (2) an office practices audit as described below:

The parties have stipulated to, and the Committee accepts the Stipulation, that the

attitude toward the disciplinary proceedings.

Mitigating factors include the absence of a dishonest or selfish motive and a cooperative

Naismith, # 08-022 (Complaint Screening Committee, September 12,2008).

adequate and timely communications with his clients. See Bownes, David H advs. Donald

Screening Committee issued a Warning to Mr. Bownes about the importance of maintaining

(Professional Conduct Committee, February 19,2008). In September 2008 the Complaint

bearing on the representation. See Bownes, David H advs. Christopher Downes # 04-098

thoroughly, and effectively communicate with his clients about financial and substantive matters

provide better documentation of his handling of client funds, and that he should more carefully,

Committee, January 28, 2000). In February 2008 Mr. Bownes received a Warning that he must

I.1S(a)(2). See Bownes, David H advs. Carl H Graf, # 99-013 (Professional Conduct

records of the handling, maintenance and disposition of his client's funds, in violation of Rule

prior disciplinary record. Mr. Bownes was issued a Reprimand in 2000 for failing to maintain

Aggravating factors include Mr. Bownes' substantial experience in the practice of law and his

The Committee then looked at factors that might aggravate or mitigate the sanction. p. 8 Page 8 of9

publication of this matter.

shall reimburse the Committee for all cost associated with the investigation, prosecution, and

The parties have stipulated, and the Committee accepts the Stipulation, that Mr. Bownes

1.4: Client Communication and 8.4(a): General Rule.

for an office practices audit to the Respondent for violating N.H. Prof. Conduct 1.3: Diligence,

For all of the above reasons the Committee issues a Public Censure with the requirement

contempt and subject to further orders of the Committee. Conduct Committee on a petition to show cause why he should not be held in compliance therewith, Mr. Bownes shall be brought before the Professional of the mandatory diversion, and/or fails to allow the ADO to oversee his e. In the event that Mr. Bownes is unable or unwilling to comply with the terms

issued in this matter. which report shall be filed wiL1. the ADO vvit1.in nine months of the order documenting the results of the audit and Mr. Bownes' s response thereto, d. At Mr. Bownes's expense, the consultant shall prepare a written report,

months of the order issued in this matter. form of a written report submitted by Mr. Bownes under oath, within six consultant's recommendations and show proof of same to the ADO, in the the consultant's recommendations. Mr. Bownes shall fully implement the been completed and whether and to what extent Mr. Bownes has implemented contact the consultant to determine whether and to what extent the audit has final order issued in this proceeding. The ADO shall have the authority to c. Mr. Bownes shall undergo the audit within three months of the date of the

commitments. tracking case development; and d) calendaring and acting upon deadlines and communications and materials; b) client communications; c) planning and p. 9 Page 9 of9

File Roland Paul Fleury David H. Bownes, Esquire Edward D. Philpot, Jr., Esquire James 1. Kruse, Assistant Disciplinary Counsel Distribution: