William Dunn (2016)

3. Mr. Dunn has nodisciplinaryhistory.

currentlyon inactivestatusthere. 2. Mr. Dunn was alsoadmittedtopracticelaw inIowa (admittedJune 17,1966),but is

practicein 1974. 1. Mr. Dunn is anattorneylicensedto practice law in NewHampshire. He was admittedto

The followingfactual findings are supported by clear andconvincingevidence:

all costsofinvestigationand prosecution. Conduct (the"Rules")as stipulated,and approved theagreementtoreimbursetheCommittee for Committee thenapproved thefindingsofviolationsoftheNew Hampshire Rules ofProfessional The Committee approved the facts asstipulated,by clearand convincingevidence.The

H. Harris, andGeorges J. Roywere absent. Movafaghi,RichardD. Sager, andMartha Van Oot. Susan R.Chollet,RichardH. Darling,Scott Krans, Vice Chair, Elaine Holden, Vice Chair, Peter G. Beeson,MargaretR. Kerouac, Mona T. CostsofDisciplinaryMatter.Members presentincluded David M.Rothstein,Chair,HeatherE. theStipulationas to Facts,Violationsand Sanction (the"Stipulation")and theAgreement to Pay On May 17,2016, theProfessionalConduct Committee (the"Committee") deliberated

Dunn, WilliamH. advs.AttorneyDiscipline Office -#13-006

ScottH. Harris BarbaraJ. Guay, LegalAssistant Richard H. Darling* * non attorneymember Susan R. Chollet* Martha Van Oot PeterG. Beeson Richard D. Sager ElaineHolden,* Vice Chair 603-224-5828 ♦ Fax 228-9511 Georges J. Roy* Heather E. Krans, Vice Chair Concord, New Hampshire03301 Mona T. Movafaghi David M. Rothstein,Chair 4 Chenell Drive,Suite102 Margaret R. Kerouac

family, collecting life insurance, threatening a lawsuit against Mr.Donovan's former counsel in Washington on a wrongful death lawsuit brought onbehalfofMr. Donovan's aircraft, selling aircraft hangars and a factory (the collateral for the debts), working with which Mr.Dunn oversaw in the courseofhandling the Estate,includingsellingseven corporations.This resultedin a numberofout-of-the-ordinarybusinesstransactions 11. The Estateinvolvedsome unusual assets,includingairplanesand closelyheld

$15,000 each month. obligationsofthe Estate exceeded $2,000,000, and monthly debt service was over $8,389,864, and after total claimed deductions, the taxable estate was$1,401,051.Debt 10. The Estate was large and in some respects complex. The total gross estate was

B. Mr. Dunn's tasksand billings.

Dunn's representationceased on thatdate. pursuanttoRSA 553:10,and AttorneyMcLaughlin was appointedas Administrator.Mr. 9. On April 10, 2013, theProbateCourt removed Mr. Slocum as Executor and Trustee,

staffmembers. Slocum, he employed as many as twoassociates(at the rateof$165/hour)and fourother from Mr.Dunn's rateof$225/hour. During theperiodthatMr. Dunn representedMr. executor/trusteeagreedto pay, and Mr. Dunn agreed tocharge$200/hour,a discount 2013. He and Mr.Slocum entered into a written feeagreementpursuanttowhich the 8. Mr. Dunn served as counsel to Mr. Slocum from approximately July 28, 2009 until April

EQ-00160,5thCircuit,ProbateDivision,Newport("theTrust"). Court. In re: TheTimothy M. Donovan Revocable Trustof2001, Case No. 320-2011ofMr. Donovan's revocabletrust, which also fellunderthesupervisionoftheProbate 7. Mr. Slocum served as Executorfrom July 2009 to April2013. He alsoservedasTrustee

Division,Newport ("theEstate"). EstateofTimothy M. Donovan, CaseNo. 320-2009-ET-0183,5thCircuit,Probate Washington. Mr. Donovan's Will named Michael J.Slocum, CPA as Executor. In re: 6. Timothy M. Donovan died on June 29, 2009, when his experimental glider crashed in

A. Mr. Dunn's RepresentationoftheExecutor intheDonovan Estate.

did not conclude untilNovember 2015. 5. Underlying litigation, including mediation efforts overseen by Attorney Phil McLaughlin,

case was referred toDisciplinaryCounsel on May9,2014. husband'sestate and what she believed to be excessive feeschargedby Mr. Dunn. The Discipline Office("ADO") based on Mr.Dunn's representationoftheexecutorofher 4. By letter dated January11,2013,Cathy Carter filed agrievancewiththeAttorney p. 3 Page 3of9

fees ordered by theProbateCourt. At the conclusionofthe Donovan probate matters, the escrowed reserve wassufficientto cover all reductions in ultimatelysaved taxesin anamount over $1,500,000. 2Thisinvolvedcomplicatedresearchand negotiationoverthetaxstatusofacommon law marriage.The Estate This work wasneverdisclosedto theProbateCourt, and never billed.

reductionsand because oftheamount Mr. Dunn keptin escrow, were not. payments actuallyreceivedby the Dunn Law Office,followingtheCourt-ordered C. In hindsightthebillingswere unreasonable insome respects,though the

beneficiary)likewiseobjected to the legal and fiduciary fees. him, and to Mr.Dunn's legal fees. Ms. Carter (Mr.Donovan's second wifeand also a for appearing in supportofthe Executor at the hearing on the failed attempt toremove reflected in those Accountings, to the expert witness fees paid toAttorneyRuth Anselm 16. Mr. Donovan's siblings, through their attorney, objected to Mr.Slocum's fiduciary fees

Court.3 ofthe feesreceivedfrom theExecutorto provide forpossiblereductionsby the Probate Rolfe, 136 N.H. 294, 299 (1992), on the issueofprobate fees, Mr. Dunn escrowed 40% 15. Following his understandingofthe practiceofthe attorneysinvolvedin In re: Estateof

spent on the case. case.Accordingly,he completed all tasksexhaustively,and recorded all thetime he performancewould be subjectto strictreviewby thebeneficiaries,as turned out to be the with his duties to the Executor. In thisregard,Mr. Dunn knew that the tasks and his 14. In Mr. Dunn's judgment,the work he and hisstaffperformed was necessary tocomply

were approved forpayment by the Executor. The invoices for his fees werepreparedinaccordancewith his written fee agreement, and Accountingsset forth, interalia, the attorneys' fees for which Mr. Dunn sought approval. and Mr. Slocum signed, four Accountings, as well asAmended Accountings.Those 13. During the periodoftime that Mr. Dunn represented Mr. Slocum, Mr. Dunnprepared,

yearofMr. Slocum's service. start, asevidencedby an unsuccessfulMotion toRemove Executor filedwithinthe first 12. The relationshipbetween the Executor and the beneficiaries wascontentiousfrom the

returns.2 promissory note designed to evadetaxes,1and preparing Federal Estate and Income Tax vetting Mr.Donovan's two computers for information, settling a potentially fraudulent purchase and saleagreement forwhat turnedoutto benon-existentland in theBahamas, employer, Corning, and obtaining a $950,000 settlement for the Estate, investigating a p. 4 Page 4of9 testator'sestateatthetime ofdeath 5Ademptionconcernstheconsequencesof atestamentarygiftwhen thedesignatedassetno longerexistsinthe hearingaffordedto Mr.Dunn by the ProbateCourt. Ray 8, LLC, in themanagement and terminationofa lease with Corning. Thesereductionswere orderedwithouta the completeeliminationoffees forprofessionalservices rendered to abusinessowned by Mr. Donovan's Estate, Xfor work insistedupon by Ms. Carter - the initial work up of the personal injury case. Additional amounts included hearing(despitetheExecutor,and Mr. Dunnon hisbehalf,prevailingin thematter).$11,000of thereductionwas 4The reductionincludedtheCourt-orderedeliminationofpaymenttoAttorneyAnselm - $5,000- fortheRemoval

lawyertime ($155)on April 4,2011 to take photosofa trailerand "missingrusty locate the key at thedecedent'shangar, inAugust of2010; billing.9 hoursof attorneyhours to check on andduplicatean airplanekey,includingeffortsto obtaininga VIN number for a 1995 Toyota onDecember 30, 2009;billing3.75 2009 to"attemptto locate Jayco camper key;" Mr. Dunn billing .2 hours for related items at hangar;" Mr. Dunn's associate billing .75 hours on December 2, include: billing one hour on July12,2009 for Mr. Dunn to "go through airplaneor by hiring a non-lawyer at a reasonable hourly rate. Examplesofthese efforts associate that could have been accomplished by Mr.Dunn's administrativestaff, (b) Mr. Dunn charged attorneyrates fornon-professionaltasksperformed by an

webcast. that Mr.Dunn couldhave viewed the oralargument via theSupreme Court's and Mr.Dunn's negotiationswith Corning. TheProbateCourt found,however, positions taken by Ms.Carter'scounsel could affect the tax liabilityofthe Estate, children. Mr.Dunn believedit wasimportanttoattendthe oralargument,as the attorney.This was a disputedissue asbetween Ms. Carterand theDonovan ademption.5 In an Amended Accounting, Mr. Dunn reduced the billing to one before theSupreme Court, by counsel for CathyCarter,on the issueof travelfrom Claremont toConcord on March 17,2011 to observeoralargument (a) Mr. Dunn originally billed$1400 for time incurred by himself and his associate to

respects: aspectsthereof,were unreasonableand thereforeviolatedRule 1.5in the following 19. Mr. Dunn admitsthat, inhindsight,thetotalityofthe feessubmitted,and some ofthe

The largestreductionin fees,of42%, was from the First Accounting.4 the variousAccountings,theProbateCourt reduced Mr.Dunn's fees byaboutof29%. 18. In ordersadjudicatingthe objectionsofthe beneficiaries to Mr.Dunn's fees as set forth in

reasonablenessoffees. at 299.The Rolfe factorsarethesame factorssetforthinRule 1.5governing determiningreasonableness,the ProbateCourt looks to the factorssetforthin Rolfe, 136 "shallbe subjectto theapprovaloftheCourt."Attorneys'feesmust be reasonable.In 17. CircuitCourt ProbateDivisionRule 88providesthat the feesoffiduciariesand attorneys p. 5 Page 5 of9

invoices. time spent andthensubmittingrequests to the Court for itsapprovalbased on his he satisfiedhisobligationsboth to theEstateand under theRules by accuratelynotingall "gatekeeper"fordeterminingreasonablenessoffees, Mr. Dunnbelievedat the time that timekeeperin his firm on theDonovan Estate.Knowing thattheProbateCourt was the ProbateCourt,he erredon the sideofexhaustion,tracking all time spentby any 20. At the time that Mr.Dunn was submittingtheAccountingsand hisrequestsfor fees to the

reasonableness ofhisfeesto theProbate Court. D. Mr. Dunn believedhe could leavethe determinationofthe

Branch website in 10 minutes or less. ExtensionofTime (NHJB-2132-P) thatcan becompleted on-lineon theJudicial deadlineto file anaccounting.The probatecourthas aForm for aMotion for 1.75 hours, for a totalof$402.50 in attorney fees, todrafta motion toextenda (d) Over two days in2011, Mr. Dunn charged.9hours,and hisassociatecharged

example: servicesofotherprofessionalsretainedby Mr. Dunn or Mr.Slocum. For whether hiswork was necessaryand appropriateand/orwhether itduplicatedthe as toenablethebeneficiaries,and ultimately theProbateCourt, todetermine (c) Mr. Dunn failedinseveralinstancestodescribehiswork with sufficientdetailso

pins"and send them to wrongful death counsel inWashington. p. 6 Page 6of9 'clearlyexcessive'tojustifya findingofa breachofethics."). found to be'unreasonable'and therefore subject to appropriate reduction by a court without necessarily being so 6SeealsoMcKenzie Constr.,Inc. v Maynard, 758 F.2d97,100 (3rdCir.1985)("[I]nacivilaction,a feemay be

supra, K 19, a-c. staff, and morethoughtfullyrevised his fee requests to avoidrequestslikethose noted acknowledgesthat hecouldhave betteraccomplishedhistime-keepingand thatofhis 28. Mr. Dunn had a duty to maximize the Estate for thebenefitofthebeneficiariesand

F. The issueisunlikelyto recur in Mr. Dunn's practice.

27. The ProbateCourt found themodified feeswere fair andreasonableon July30, 2015.

Rolfe, 136 N.H. 294 (1992)." reasonablewithinthe parameters andmeaning ofProbateDivisionRule 88 and In re: approve the fees asmodified,and finding that the adjustedamount offees "are fair and 26. In each matter,the partiessubmitteda jointmotion to the ProbateCourt,askingto

Dunn's work forthe Executor on June 15,2015. The parties reachedagreementon the appropriateamount offees to be paid for Mr. Dunn's work fortheTrusteefollowinga mediationoftheissueon November 18,2014. 25. The parties reachedagreementon the appropriateamount offees to be paid for Mr.

the issue, and the court wasempowered to resolve the dispute. 24. In this case, the parties' fee dispute arose in the probate court, the parties had their say on

E. The billingdisputeswere resolvedin the probate court.

Conduct Rule 1.5.6 misconductcomplaint."EthicsCommittee Comment on New Hampshire Professional hint that arejectionofa portionofthe[fee]applicationmight raise the specterofa dictate the same result in the disciplinary process:"None ofthe cases containseven a unreasonable in one forum (e.g., an application for fees in the probate process) does not considering attorneys' fees requests, the rejectionofa portionofan attorney's fees as 23. The New Hampshire EthicsCommittee has similarlyobservedthat, in the case law

ABA Model Rule 1.5,Comment [9]. another party concernedwiththe fee shouldcomply withthe prescribed procedure." resolutionoffee disputes, "the lawyer entitled to such a fee and a lawyer representing 22. The Model Rules provide that, when aprocedureexists in the principal forum for

mechanism forresolvingdisputes over those fees. already in place foroverseeingthe reasonablenessofhis fees.That system includeda 21. The parties agree that Mr. Dunn undertook thisengagement knowing a system was p. 7 Page 7of9 and prosecution. and accepts therecommended sanctionofa reprimand and an order to pay costsofinvestigation violationsofRules 1.5 and 8.4(a). For thereasonsset forthbelow,theCommittee agreeswith The Stipulationincludedan agreementon recommended sanctionsbased on the

StipulationH 35.

Dunn's conduct,as describedherein,violatedRule ofProfessionalConduct 8.4(a). Having found theforegoingviolation, there is clear andconvincingevidencethat Mr.

Stipulation1fl)33-34.

describedherein, supra, lfl[19,a-c. insufficientlydescribedhiswork so thecourtwas unable toadequatelyassessitsvalue,as them to the court,when he chargedassociatetime fornon-professionaltasks,and when he violated Rule 1.5 when, e.g., he failed to adequately review his bills inadvance ofsubmitting Rule 1.5prohibitsa lawyerfrom chargingorcollectingan "unreasonablefee." Mr.Dunn

evidence: Dunn has violatedthefollowingRules ofProfessionalConduct by clearand convincing The Committee concludesthat there is clear andconvincingevidencethatWilliam H.

Stipulationfl[1-30.

matter. Thepartiesagreesimilarconductisunlikelytorecurin the future. not thatoccurs,Mr. Dunn is now welleducatedon theissuesthatled to thisdisciplinary practicinglaw. Encounteringsuch asituationagain in hiscareerisunlikely.Whether or 30. Mr. Dunn had neverhandledan estate matterofthiscomplexityin his fourdecadesof

the Court todetermine reasonableness. (2) toelaborateorprovidefurther detail for blocksoftimethatwere too vague to allow portionoftime spent should be writtenoffas duplicative or otherwise not reasonable, and fees, prior tosubmittinghis invoices to the Probate Court: (1)determinewhetherany 29. In hindsight,Mr. Dunn recognizesthat heshouldhave undertakenan initialreviewofhis p. 8 Page 8 of9 7 Section7.3usestheterm"Reprimand."The mostanalogoussanctioninNew HampshireisaPublicCensure.

factors. Eg.,Conner's Case, 158 N.H. 299, 303 (2009). In this case,thereis only one The baselinesanctionmust beconsideredin lightofany aggravatingand mitigating

Prong IV: Aggravating and MitigatingFactors

Dunn's conductis apubliccensure. See Standards § 7.3. Under the foregoing circumstances, the parties agree that the baseline sanction for Mr.

causesinjuryorpotentialinjury to a client, thepublic,or the legal system. engages inconductthat is a violationofa dutyowed as aprofessionaland 7.1 Reprimand7 is generally appropriate when alawyernegligently

Professional)ofthe Standards, which providesas follows: Mr. Dunn's violationofRule 1.5 implicates Section 7.0(ViolationsofDutiesOwed as a

Dunn. submitobjectionsto thevariousfeerequestscontainedin theAccountings submittedby Mr. keeper indeterminingreasonablefees, thebeneficiariesspentmoney paying theirattorneysto Mr. Dunn's conduct caused injury to thebeneficiaries.Although theCourt actedas gate

injurycaused by Mr. Dunn's misconduct. The thirdprong ofthesanctionanalysis requires anassessmentoftheactualor potential

Prong III:Injuryor PotentialInjury

the parties agree that Mr.Dunn's mental state was negligent. With respectto Mr.Dunn's mental state under the secondprong ofthesanctionanalysis,

Prong II:Mental State:Knowing or Negligent

Estatefortheirbenefit. See Standards § 7.0. Executor,who in turnowed dutiesthatflowed to thebeneficiariesoftheEstateto maximize the Under the firstprong oftheanalysis,Mr. Dunn violateddutiesowed to hisclient,the

Prong I:Duty Violated p. 9 Page 9of9

File William C. Saturley,Esquire cc: Sara S. Greene, DisciplinaryCounsel

July 11, 2016

entiretyand issuesthisreprimand. For alloftheabove reasons,the Committee approves thestipulationand conditionsin its

shall beresponsiblefor all costsassociatedwith theinvestigationand prosecutionofthis matter. prosecutionofthisdisciplinarymatter. The Committee approves this agreement. Mr. Dunn William H.Dunn has signed anagreementto pay costsoftheinvestigationand

citationomitted). preventsimilarconduct in thefuture." Grew's Case, 156 N.H. 361, 365(2007) (quotationand public,maintainpublicconfidencein the bar, preserve theintegrityofthe legalprofession,and purposeoftheCourt'sdisciplinarypower "is not to inflictpunishmentbut rather toprotectthe Case, 152 N.H. 155, 159-60 (2005). This sanction is also in accordwith the Standards. The in accord with the purposesofattorney discipline. Conner'sCase 158 N.H. at 303; Richmond's appropriate discipline in this matter is a reprimand. TheCommittee'srecommended sanction is Having made theaforementionedfindings and rulings, theCommittee concludesthat the

departure to areprimandas the appropriate sanction. mitigating factors evident in this case outweigh the aggravating factors and warrant a downward remorse, andcharacterand reputation. See Standards § 9.32. The parties agreed that the yearsofpractice, full and free disclosure to the ADO and cooperative attitude in proceedings, Mitigatingfactorsincludethe absenceofa priordisciplinaryrecordin Mr.Dunn's 42

9.22. aggravating factor: Mr.Dunn's substantial experience in the practiceoflaw. See Standards §