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Bar News - August 19, 2015

Professional Conduct Committee

Dunn, David C. advs. Attorney Discipline Office #14-027

Mr. Dunn’s disciplinary matter came to the attention of the Attorney Discipline Office by way of Mr. Dunn’s self-report dated July 16, 2014. The professional misconduct in this matter arises from Mr. Dunn’s representation of Danielle Osgood during 2011-2013. Ms. Osgood retained Mr. Dunn around October of 2011 to draft her estate plan. Mr. Dunn drafted a Last Will and Testament (the “original Will”) and the Danielle L. Osgood Irrevocable Trust Agreement (the “original Trust”) for Ms. Osgood’s review. The original Trust named four beneficiaries: Henry Roy, Kenneth Phillips, Elaine Levesque, and Karin Weber. The original Trust named Mr. Roy as Trustee and was signed by Ms. Osgood in the presence of Mr. Dunn and Mr. Roy, both of whom signed the original Trust. Mr. Roy signed as Trustee. Mr. Dunn notarized Ms. Osgood’s signature as well as Mr. Roy’s signature on the original Trust. The original Will directs that all of Ms. Osgood’s estate pass to the “Danielle L. Osgood Revocable Trust of 2012.” This reference to a revocable trust was a typographical error, as Ms. Osgood had decided upon and executed an irrevocable trust for her estate plan. No one noticed this typographical error at the time.

In the fall of 2013, while Mr. Dunn was continuing to recover from brain surgery that he had undergone in 2012, Mr. Roy called Mr. Dunn to say that Ms. Osgood wished to make changes to the beneficiaries she identified in the original Trust. Mr. Dunn recalls that he initially informed Mr. Roy that because the original Trust was an irrevocable trust, changes in beneficiaries could only be made under certain narrow circumstances not present in the matter. Nonetheless, Mr. Dunn ultimately drafted a second, altered irrevocable trust agreement and gave it to Mr. Roy. The altered trust agreement included only two beneficiaries: Henry Roy and Kenneth Phillips (the “altered Trust”). He made this change relying on Mr. Roy’s representation that it was Ms. Osgood’s intention. Mr. Dunn did not speak with Ms. Osgood directly to confirm she desired these changes. Sometime thereafter, in the fall of 2013, Mr. Roy took the altered Trust to Ms. Osgood and they both signed it. The last page of the altered Trust contains only the signature page, and is falsely dated (type written) the “6th day of January, 2012.” The first page of the altered Trust is also falsely dated January 6, 2012. Mr. Dunn did not notarize anyone’s signature on the altered Trust. Ms. Osgood died on May 21, 2014 at the age of 92. Shortly thereafter, Mr. Roy brought to Mr. Dunn’s attention the typographical error in the original Will executed in January of 2012, which erroneously referenced Ms. Osgood’s “revocable” Trust instead of the “irrevocable” Trust she actually executed. Sometime shortly after Ms. Osgood’s death, Mr. Dunn altered the original Will by correcting a single word – he changed the incorrect reference to Ms. Osgood’s revocable trust to reference the irrevocable trust (the “altered Will”). The altered Will had the original Will’s last page attached to it, and showed a date of January 6, 2012. Mr. Dunn never filed this altered Will with the probate court. Rather, he gave a copy of it to Mr. Roy.

Mr. Dunn’s conduct in altering the original Trust constitutes a violation of Rule 4.1. Mr. Dunn knew that he backdated the altered Trust and that it was unenforceable. He further knew or should have known that under the circumstances others would reasonably rely on the altered Trust as the controlling and valid Trust document of Ms. Osgood’s estate. By altering the Trust document and presenting it to Mr. Roy as a valid instrument, knowing Mr. Roy intended to present it to Ms. Osgood for her signature, Mr. Dunn knowingly made a false statement of material fact or law to a third person.

Mr. Dunn’s conduct in drafting the altered Trust constitutes a violation of Rule 8.4(c). Mr. Dunn’s conduct in drafting the altered Trust with “January 6, 2012” as the date of execution constituted a misrepresentation, since the altered Trust was not drafted or executed until the fall of 2013. Mr. Dunn engaged in misrepresentation because he knew that the altered Trust was not valid and not the controlling Trust document of Ms. Osgood’s estate, yet he presented Mr. Roy with the altered Trust knowing Mr. Roy would utilize it as a valid document and present it to Ms. Osgood for her signature, and that she in turn would rely on the altered Trust as a valid document. Mr. Dunn engaged in misrepresentation because he knew that if Mr. Roy, in his capacity as Trustee, attempted to administer the altered Trust, the two beneficiaries (Levesque and Weber) who were omitted under the altered Trust would never receive notice that they were beneficiaries under the original Trust.

The Committee issued a Public Censure, and reimbursement of all costs associated with the investigation and prosecution. An Order is available on our website and at the Attorney Discipline Office at 4 Chenell Drive, Suite 102, Concord, NH 03301.

July 10, 2015

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