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In re Conner

Supreme Court of Vermont

June 1, 2018

In re William E. Conner, Esq.

          ORIGINAL JURISDICTION Professional Responsibility Board DOCKET NO. 2018-097

          ENTRY ORDER

         In the above-entitled cause, the Clerk will enter:

         ¶ 1. This is a reciprocal-discipline petition concerning respondent William E. Conner, Esq., an attorney admitted to practice in Vermont. In March 2018, Disciplinary Counsel for the Professional Responsibility Board filed notice with this Court that respondent had been disbarred from the practice of law in New Hampshire. The notice included a certified copy of the New Hampshire Supreme Court's disbarment decision, which issued in January 2009. See In re Conner's Case, 965 A.2d 1130 (N.H. 2009). The New Hampshire Supreme Court disbarred respondent effective July 1, 2008, the date that respondent voluntarily stopped practicing in New Hampshire in anticipation of being sanctioned. It allowed respondent to apply for readmission three years after this date. The question here is whether this Court should impose identical discipline pursuant to Administrative Order 9, Rule 20(D). As set forth below, we conclude that the imposition of identical discipline is warranted and we disbar attorney Conner effective as of the date of this order.

         ¶ 2. Respondent stipulated to the underlying facts in the New Hampshire matter and to his complicity therein. We summarize the New Hampshire Supreme Court's findings here. In 2001, respondent and another lawyer persuaded a couple to hire them to pursue additional litigation in a home-construction case although the matter had already been the subject of an arbitration award. Respondent filed two actions. The first action challenged the arbitration award, and it was dismissed as untimely filed. Respondent filed the second action against various alleged subcontractors. The subcontractors moved to dismiss on res judicata and statute-of-limitations grounds and they sought attorney's fees. Respondent essentially ignored these motions; he filed no responses and did not inform the clients that they had been filed. This pattern continued even after some of the motions were granted. Respondent did not attend a status conference in the case. He later informed the clients that the construction case might not be successful. He lied about having discussed certain issues with the clients and neglected to tell them that the case had already been effectively dismissed and that the court was preparing to award attorney's fees. The court awarded approximately $16, 000 in attorney's fees. Respondent and his co-counsel then discussed how to pay the fee awards without informing their clients so as to avoid a malpractice claim. Eventually, respondent and his co-counsel informed the clients about the attorney's fee award but did not disclose the amount.

         ¶ 3. In December 2002, the court entered final judgment for the defendants and authorized the defendants to collect their fees from respondent, his co-counsel, or the clients personally. In January 2003, the clients discovered the duration and extent of respondent's and his co-counsel's neglect and malfeasance. They fired respondent and the trial court referred him to the New Hampshire Professional Conduct Committee (PCC). The clients were then ordered to pay the accrued attorney's fees personally.

         ¶ 4. In the New Hampshire PCC proceedings, respondent agreed that he violated numerous New Hampshire Rules of Professional Conduct, including: Rule 1.1(a) for filing cases on his clients' behalf knowing that they were without merit and/or barred by law or the statute of limitations, and failing to respond to dispositive motions or limit the clients' losses; Rule 1.3(a) for neglecting the construction case; Rule 1.4(a)-(c) for failing to communicate with his clients and inform them of the status of their cases and the mounting fees; Rule 1.7(b) for operating under a conflict of interest when attempting to avoid a malpractice action at the expense of his duty of loyalty to his clients; Rule 8.4(c) for attempting to conceal information from the clients and to deceive them about the status of their cases, as well as lying to them; and Rule 8.4(a) for violating the above-referenced rules.

         ¶ 5. In deciding the appropriate sanction for respondent's actions, the New Hampshire Supreme Court looked to the ABA Standards for Imposing Lawyer Sanctions (1992) and concluded that respondent should be disbarred. It found that the most serious violations involved lying and failing to act in his clients' interests, which violated bedrock duties of the legal profession. The court noted that for either of these violations, disbarment was generally the appropriate sanction. The court concluded that respondent acted intentionally and deliberately. It further found that respondent's conduct caused his clients substantial financial harm. The court determined that, based on these violations, the appropriate baseline sanction was disbarment. "Indeed, " the court observed, "it would be difficult to conclude that the sanction could be any other than disbarment given the lengthy and deliberate violation of ethical rules resulting in substantial financial harm to the [clients]." In re Conner's Case, 965 A.2d at 1135.

         ¶ 6. In reaching its decision, the court considered aggravating and mitigating factors. As aggravating factors, it found that respondent: "acted with dishonesty to protect himself"; "engaged in a pattern of conduct resulting in the commission of multiple offenses"; and he had "a prior disciplinary record, which included a public censure." Id. The court noted "that the prior censure resulted from events contemporaneous with, though unrelated to, those involved here." Id.

         ¶ 7. The court also recognized the presence of mitigating factors, including that: respondent was facing a "series of personal problems" at the time of the events; he "showed sincere remorse for his misconduct"; he "suffered from depression and alcoholism"; and he "ha[d] taken steps toward rehabilitation in dealing with his substance abuse issues." Id. Respondent also cooperated in the investigation and prosecution of the case against him. Nonetheless, the court concluded that respondent's "deliberate deception of his clients over a substantial period [could] abide no less a sanction than disbarment." Id. The court acknowledged, however, that respondent's "efforts to correct the personal problems that had plagued him [might] yet permit him to again practice law." Id. Because the sanction was designed to protect the public rather than punish the offender, the court concluded that respondent could apply for readmission after three years, running from July 1, 2008, the date that respondent voluntarily stopped practicing in New Hampshire in anticipation of a potential sanction in this case. As a condition of his reapplication, the court required that respondent actively participate in the New Hampshire Lawyers' Assistance Program or an equivalent program approved and monitored by the New Hampshire Lawyers' Assistance Program. He was also ordered to reimburse the attorney discipline system for all expenses incurred in the investigation and discipline process.

         ¶ 8. In March 2018, pursuant to Administrative Order 9, Rule 20(B), this Court issued an order directing respondent and Disciplinary Counsel to inform the Court within thirty days of any claim that imposition of the identical discipline in Vermont would be unwarranted and the reasons therefore, based on the grounds set forth in A.O. 9, Rule 20(D). Rule 20(D) provides that when a lawyer admitted to practice in Vermont has been disciplined in another jurisdiction, the Court:

shall impose the identical discipline unless the Court finds that upon the face of the record from which the discipline is predicated it clearly appears, or disciplinary counsel or the lawyer demonstrates, that:

(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2)There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as ...

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