Brian D. Kenyon (2016)

findingsby clearand convincing evidence: The Committee determined thatthe Record supportsthe following factual

reprimand was an appropriatesanction. Finally,the Committee agreed thatthe Stipulation'srecommendation ofa the Committee for allcostsofinvestigationand prosecutionof thismatter. (the"Rules")as stipulated,and voted to approve the agreement to reimburse the findingsofviolationsofthe New Hampshire Rules ofProfessionalConduct stipulated,by clearand convincing evidence. The Committee then approved Having reviewed the Record, the Committee approved the factsas

were absent. Martha Van Oot. Elaine Holden, Margaret R. Kerouac, and Susan R. Chollet David W. McGrath, Mona T. Movafaghi, Georges J.Roy, Richard D. Sager and Chair; Heather E. Krans, Vice Chair;PeterG. Beeson, Richard H. Darling, (collectively,the "Record"). Members presentincluded David M. Rothstein, "Stipulation"),and theAgreement to Pay Costs ofDisciplinaryMatter "Committee") deliberatedthe Stipulationas to Factsand Rule Violation(the On September 20, 2016, the ProfessionalConduct Committee (the

Kenyon, Brian D. advs. Attorney DisciplineOffice-#14-021

Margaret R. Kerouac 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, Suite 102 David W. McGrath

therebybreachinga duty owed to CSNH; a) failedto properlyacclimatematerialata jobsitebefore installation,

7. Among CSNH's allegationswere thatEd's Carpet:

additionalprojectsthatEd's Carpet worked on as a subcontractor. School, but subsequentlyfiledan amended counterclaimto includetwo counterclaimregardingwork done by Ed's Carpet atMont Vernon Elementary contractand negligentperformance ofwork. CSNH initiallysubmitted a 6. CSNH filedcounterclaimsagainstEd's Carpet allegingbreach of

The matterwas assigned to Mr. Kenyon, who filedthe writon March 29, 2010. CSNH for itsfailureto pay $5,166.98 for ajob thatEd's Carpet had performed. retainedthe Marshall Law Firm to bringa breach of contractmatteragainst In March 2010, the principalofEd's Carpet,Mr. Edward Cross ("Mr. Cross"), contractorthathiressub-contractorssuch as Ed's Carpet forvariousprojects. flooring.ConstructionServicesof New Hampshire, LLC ("CSNH") isa general 5. Ed's Carpet isa flooringcompany thatinstallscarpetand other

Rockingham SuperiorCourt ("themalpracticeaction"). and Hardwood, Inc. v.Brian D. Kenyon, Esq., Docket No. 218-2013-cv-1058, Enclosed was a copy ofthe complaint from a mattercaptioned Ed's Carpet Tile allegingmalpracticebe forwarded to theAttorney DisciplineOffice ("ADO"). Court AdministrativeOrder 2010-06, which requiresthatcivilcomplaints ofRockingham County SuperiorCourt, submitted in accordance with Supreme 4. This matterarisesfrom a referralfrom Raymond W. Taylor, Clerk

3. Mr. Kenyon has no disciplinaryhistory.

Marshall Law Office locatedat47 Depot Road, East Kingston, New Hampshire. 2. At alltimes materialto thisproceeding,Mr. Kenyon worked atthe

in 1978. He has not been admitted to practicelaw in any otherjurisdiction. law in New Hampshire. Mr. Kenyon was admitted to the New Hampshire Bar 1. Brian D. Kenyon ("Mr. Kenyon") isan attorneylicensedto practice

counsel for Defendant/Counter-Claimant on June 14, 2011" and Ed Cross is anecessarywitness hereinand hisdepositionwas taken by motion in limine on October 25, 2011 asserting,in relevantpart,that"Plaintiff failedto disclosean expertwitness. Mr. Kenyon filedan objectionto the cause or causes of the complained-of floorcovering failures,because ithad preclude Ed's Carpet from offeringany expertopinion testimony relatingto the 12. On October 12, 2011, CSNH fileda motion in limine seeking to

to thisdecision. crediblethan Mr. Cloutier. Mr. Kenyon did not document hisfilewith respect offer.Finally,Mr. Kenyon believedthejurywould findMr. Cross farmore to intimidateMr. Cross, itsformer subcontractor,intoacceptinga settlement do so. Further,they believedthatCSNH's counterclaimswere a bluff,intended Cross could offerallthe necessaryopinion testimony and he was expected to They chose not to do sobecause ofcostconcerns. Instead,they concluded Mr. issueof hiringan independent expertto defend againstthe counterclaims. 11. Mr. Kenyon would testifythathe and Mr. Cross discussedthe

opposing counsel. furtherdisclosures.Mr. Kenyon alsofailedto confirm hisexpectationwith allowed attrialto supportthe defenses to the counterclaims,without making negligentlymade the assumption thatMr. Cross'sopinion testimonywould be with respectto opinion testimony Mr. Cross might offer. Mr. Kenyon counsel forCSNH. During the deposition,counsel for CSNH posed questions 10. On about June 14, 2014, Mr. Cross'sdepositionwas taken by

Court Rule 35. might serve as an expertwitnessin a manner which complied with Superior thatincludedMr. Cross. Mr. Kenyon failedto provide noticethatMr. Cross 9. On or about May 11, 2011, Mr. Kenyon discloseda witnesslist

causationexpert. owner, Dennis Cloutier,as an experton constructionrepairestimates,and 2) a expertwitness priorto eitherdeadline. CSNH disclosedtwo experts:1) its 2011 to defend againstthe counterclaims. Mr. Kenyon did not disclosean disclosuresforJanuary 11, 2011 for itsclaims as a plaintiff,and February 11, 8. The trialcourtsetdeadlinesfor Ed's Carpet'sexpertwitness

by Ed's Carpet. the floorhad not been prepared properlybefore the levelerwas installed in the underlyingconcreteslab,when the reason for the defectswas that c) advised thatdefectsin flooringitinstalledresultedfrom moisture

wear, which the manufacturer denied was covered under warranty;and b) refusedto replaceor pay forcarpetingthatexperienced unusual p. 4 Page 4of8

21. The dismissalwas upheld by the Supreme Court.

orders. failedto disclosean expertwitnessin compliance with the Rules and court regardingthe standardof care applicableto an attorney,sincethe plaintiff motion in limine to precludethe plaintifffrom offeringexperttestimony Kenyon, with prejudice.Ironically,the dismissalresultedfrom the defense's 20. The trialcourtdismissed the malpracticeactionagainstMr.

had failedto noticeMr. Cross as an expertwitness. allegations,counsel for Ed's Carpet allegedin relevantpartthatMr. Kenyon the Rockingham County SuperiorCourt on September 20, 2013. Among other 19. Ed's Carpet filedthe malpracticeactionagainstMr. Kenyon with

neverthelesschose not to pursue an appeal to the Supreme Court. him the officehad a policynot to charge for thework on an appeal. Mr. Cross 18. Mr. Kenyon explained the appeal processto Mr. Cross and told

Verdictand a Motion for New Trial. The courtdenied both motions. 17. Following the verdict,Mr. Kenyon filedboth a Motion to SetAside

juryawarded $25,404.01 in damages. awarded $5,166.98 in damages. CSNH prevailedon itscounterclaimsand the 16. Ed's Carpet prevailedon itsbreach ofcontractclaim and thejury

causationrelatingto the counterclaims. Dennis Cloutier,testified.Further,CSNH had a second experttestifyon 15. During the trial,CSNH's experton constructionrepairestimates,

thesecircumstances. have ruleddifferently,and would have allowed the experttestimonyunder 14. There isa reasonablepossibilitythata differenttrialjudge would

trial.Mr. Cross testifiedas a factwitness only. before trial,but itprohibitedMr. Cross from testifyingas an expertduring the November 4, 2011. The court(Delker,J.)did not ruleon the motion in limine 13. The case was triedbefore a jurybetween November 2, 2011 and

surpriseatthe time oftrial." opinions,the basisforsaidopinionsand hisqualificationsto avoid any "Defendant/Counter-Claimant have been sufficientlyapprisedof Plaintiffs p. 5 Page 5 of8

thatMr. Kenyon violatedRules ofProfessionalConduct 1.1,1.3,and 8.4(a). The Committee concludes thatthereisclearand convincing evidence

Respondent's Rule 1.1 and 1.3 violations. the Rules ofProfessionalConduct and, in thiscase,isderivativeof Rule 8.4(a)providesthatit isprofessionalmisconduct for alawyer to violate

with respectto the counterclaims. Cross'sopinion testimony,therebylimitingMr. Kenyon's client'sdefense opposing partyto successfullybringa motion in limine to exclude Mr. February 11, 2011. The failureto meet the disclosuredeadlineallowed the witnessbefore the establishedexpertwitness disclosuredeadlineof Mr. Kenyon breached thisduty by failingto discloseMr. Cross as an expert

client. Mr. Kenyon had a duty to actwith reasonablediligenceon behalfofhis

amount of the requestedcounterclaimsto CSNH, resultingin harm to Mr. testimony and likelycontributedto thejury'sdecisionto award the full Mr. Kenyon's failureresultedin the exclusionofMr. Cross'sopinion

expertwitness. interests.Mr. Kenyon failedto timelyand formallydiscloseMr. Cross as an thathisclient'smatterwas undertaken with no avoidable harm to its Mr. Kenyon failedto attendto detailsand schedules sufficientlyto assure

representation. Mr. Kenyon owed a duty to hisclient,Ed's Carpet,to provide competent

ProfessionalConduct 1.1 and 1.3;and 8.4(a). The partiesstipulatedthatMr. Kenyon violatedNew Hampshire Rules of

II. RULINGS OF LAW p. 6 Page 6of8 underlyinglitigationbecause CSNH prevailedon itscounterclaimsand Kenyon's conduct potentiallycontributedto hisclient'sinjuryin the actualor potentialinjurycaused by Mr. Kenyon's misconduct. Mr. The thirdprong of the sanctionanalysisrequiresan assessment ofthe

Prong III:Injuryor PotentialInjury

respectto the ruleviolations. The partiesagree thatMr. Kenyon's mental statewas negligentwith

Prong II:Mental State:Intent/Knowing or Negligent

hisclient. Under the firstprong of the analysis,Mr. Kenyon violateddutiesowed to

Prong I:Duty Violated

sanction. See id. any aggravatingor mitigatingfactorsand whether they affectthe baseline Court then looks to the fourthand finalpartof the analysis:the existenceof Conner's Case, 158 N.H. at303. Once the baselinesanctionisdetermined, the characterizingthe misconduct and determining a baselinesanction. See The firstthreepartsofthe analysiscreatethe framework for

3.0. factors." Id. (quoting Douglas' Case, 156 N.H. 613, 621 (2007)); Standards § by the lawyer'smisconduct; and (d)the existenceofaggravatingor mitigating violated;(b)the lawyer'smental state;(c)the potentialor actualinjurycaused partanalysisforcourtsto considerin imposing sanctions:"(a)the duty guidance. Conner's Case, 158 N.H. at303. The Standards setfortha four- Although the Court has not adopted the Standards, itlooks to them for

the misconduct." Coffey's Case, 152 N.H. 503, 513 (2005). N.H. 299, 303 (2009). "The sanction. . .must take intoaccount the severityof profession,and preventingsimilarconduct in the future." Conner's Case, 158 maintainingpublicconfidence in the bar,preservingthe integrityofthe legal The purpose ofthe Court'sdisciplinarypower is"protectingthe public,

month suspension. Imposing Lawyer Sanctions (2005) ("Standards") supportthe sanctionofa six- Both case law and the American Bar Association's Standards for

III. ANALYSIS p. 7 Page 7of8

investigationand prosecutionofthismatter. agreement. Mr. Kenyon shallbe responsibleforallcostsassociatedwith the and prosecutionofthisdisciplinarymatter. The Committee approves this Mr. Kenyon has signed an agreement to pay costsof the investigation

omitted). The sanctionisalsoin accord with the Standards. in the future." Grew's Case, 156 N.H. 361, 365 (2007) (quotationand citation bar,preservethe integrityofthe legalprofession,and preventsimilarconduct punishment but ratherto protectthe public,maintain publicconfidencein the (2005). The purpose of the Court'sdisciplinarypower "isnot to inflict e.g.,Conner's Case 158 N.H. at303; Richmond's Case, 152 N.H. 155, 159-60 This sanctionisin accord with the purposes ofattorneydiscipline. See

partiesagree to a reprimand. The Committee approves thisagreement. mitigatingfactorsoutweigh the aggravatingfactorsin thismatter,and the freedisclosureto theADO; and a cooperativeattitudetoward proceedings. The of apriordisciplinaryrecord;absence of adishonestor selfishmotive; fulland However, severalmitigatingfactorsare alsopresent,including:absence

Standards § 9.22. present: Mr. Kenyon's substantialexperiencein the practiceoflaw. See aggravatingand mitigatingfactors.In thiscase,one aggravatingfactoris Having determined the baselinesanction,the Committee must consider

case isa publiccensure. clientor party...."The Committee findsthatthe baselinesanctionin this isviolatinga courtorderor rule,and causes injuryor potentialinjuryto a that"[sjuspensionisgenerallyappropriatewhen a lawyer knows thathe or she based on the assertionthatno validobligationexists. Standards § 6.22 states to obey any obligationunder the rulesofa tribunalexcept foran open refusal In determining a baselinesanction, Standards § 6.2 addressesthe failure

readilydetermined. testimony and/orotherfactorsaffectedthejury'sdecisioncannot be beforea jury,the degree towhich the exclusionofMr. Cross'sopinion thejuryawarded $25,404.01 to CSNH. Given thatthe matterwas tried p. 8 Page 8 of8

File William C. Saturley,Esquire cc: ElizabethM. Murphy, AssistantDisciplinaryCounsel

8.4(a). thisReprimand forviolatingN.H. Rules of ProfessionalConduct 1.1,1.3,and For allof the above reasons,the ProfessionalConduct Committee issues