Robert M. Fojo (2021)

of Professional Conduct 1.3, 1.4, 1.5, 1.15, 3.3, and 8.4(a) and (c). p. 4 that Fojo's conduct violated Supreme Court Rule 50, as well as Rules The evidence clearly supports the ADO's petition, and demonstrates

In the Referee's Recommendations, Judge Smukler stated as follows: On January 12, the referee submitted a fourteen-page report to the court.

several exhibits. He did not request an evidentiary hearing. Attorney Fojo, represented by counsel, submitted a hearing memorandum and In support of its proffer, the ADO submitted over 100 documentary exhibits. held at the Supreme Court on January 4, 2022, and proceeded by offers of proof. R. 37(16)(d), (f); Gallant's Case, 170 N.H. 528, 533-34 (2017). The hearing was public and the preservation of the integrity of the legal profession. See Sup. Ct. interim suspension from the practice of law is necessary for the protection of the Smukler as referee to conduct a hearing on the issue of whether Attorney Fojo's On December 23, we appointed retired Superior Court Justice Larry M.

suspension otherwise remained in effect. him to represent a client at a criminal sentencing hearing that day. His hearing and stayed his interim suspension for the limited purpose of allowing moved to stay the suspension. On December 22, we granted his request for a be lifted. That same day, Attorney Fojo requested an immediate hearing and Fojo of his right to request a prompt hearing on whether the suspension should suspension under Supreme Court Rule 37(16)(d) and (f) and notifying Attorney On December 21, the court issued an order imposing an interim

responded to the petition. electronic filing system. Neither Attorney Fojo nor his counsel immediately Fojo's counsel was simultaneously notified of the petition through the court's a copy of the petition on Attorney Fojo and his counsel by email. Attorney Supreme Court Rules 37(16)(f) and 37(9-A). On the same day, the ADO served suspension from the practice of law. In its petition, the ADO relied upon petition in this court for Attorney Robert M. Fojo's immediate interim On December 17, 2021, the Attorney Discipline Office (ADO) filed a

order: Esquire, the court on February 25, 2022, issued the following In Case No. LD-2021-0012, In the Matter of Robert M. Fojo,

case because he decided the issues on offers of proof, based upon a paper record, may give less than ordinary deference to the factual findings of the referee in this the same decision as the referee. Gallant's Case, 170 N.H. at 534. However, we discipline case, reviewing only whether a reasonable person could have reached Ordinarily, we defer to the factual fmdings of a referee in a lawyer

B)(g), filed a petition for reinstatement. We heard oral argument on February 15. parties filed briefs, and Attorney Fojo, relying upon Supreme Court Rule 37(9- February 10. On February 7, we scheduled oral argument for February 15. Both recommendation, and, on January p. 5 26, we ordered the parties to file briefs by Attorney Fojo challenged the referee's findings, rulings, and

remain in place." the integrity of the legal profession, I recommend that the interim suspension suspension is necessary for the protection of the public and the preservation of its burden of demonstrating by a preponderance of the evidence that an interim referee made this recommendation to the court: "Because the ADO has sustained Trust Accounts program" and that IOLTA accounts are "for clients' funds"). The See Sup. Ct. R. 50(1) (explaining that "IOLTA" stands for "Interest on Lawyers

be appropriate. as a series of negligent bookkeeping errors, a suspension would still errors. Nonetheless, even if Fojo's conduct could fairly be construed earnestly sought to prevent harm to his clients by correcting those who has made unintentional bookkeeping errors and who has Simply put, Fojo's conduct is not the conduct of an attorney

then lied about it to his clients and to the ADO. . . . creditors. More important, Fojo misappropriated client funds and diligence by not promptly disbursing funds due to them or their about the status of their cases and failed to act with reasonable In addition, Fojo failed to keep his clients reasonably informed

and that he was otherwise compliant with Rules 50 and 1.15. monthly reconciliations, that he was not "out of trust" at any point, to the New Hampshire Bar Association that he performed such resulting in commingling. . . . Nonetheless, Fojo annually certified earned fees in his IOLTA account for extended periods of time, "out of trust" in at least three client matters, and regularly left his IOLTA account, failed to maintain client ledgers, was significantly Among other things, Fojo failed to perform monthly reconciliations of p. 6 3

ensure that members of the bar meet those standards. Tocci, 1 p. 6 37 N.H. at 135; perform its functions, we have the inherent authority to establish procedures to . . . ."). Because the judicial branch requires a qualified and ethical bar to branch possesses all the authority necessary to perform its judicial functions pt. II, art. 73-a; see Petition of Tocci, 137 N.H. 131, 135 (1993) ("[T]he judicial and the practice and procedure to be followed in all such courts." N.H. CONST. court shall "make rules governing the administration of all courts in the state (2010). Moreover, Part II, Article 73-a of the State Constitution provides that the of Brooks, 140 N.H. 813, 817 (1996); see also RSA 311:8 (2015); RSA 490:4 We have inherent and statutory authority to discipline attorneys. Petition

from which Rule p. 6 37 is derived. discipline attorneys — the common law, statutes, and the State Constitution — indicted for a felony. Attorney Fojo overlooks the true sources of our authority to the ADO investigation, and who has not been convicted of a serious crime or substantial threat of serious harm to the public, yet may have cooperated with attorney who is credibly alleged to have engaged in conduct that poses a not supplant our authority to take immediate disciplinary action against an constitute the due process required. We disagree. These specific procedures do procedures set forth in the applicable rule must be followed because they argues that, when the circumstances fall within one of these rules, the specific ADO's investigation of a matter "alleging serious misconduct"). Attorney Fojo (authorizing summary suspension of an attorney who fails to cooperate with the substantial threat of serious harm to the public"); Sup. Ct. R. 37(9-B)(a) suspension of an attorney alleged to have "engaged in conduct that poses a been indicted for any felony); Sup. Ct. R. 37(9-A)(a) (authorizing interim suspension upon proof that attorney has been convicted of a serious crime or has certain circumstances. See, e.g., Sup. Ct. R. 37(9)(a), (i) (providing for immediate Rule 37 provides specific procedures for immediate suspension under

suspension procedures outlined in other provisions of Rule p. 6 37. immediate interim suspension but, rather, must be read as supplementary to contention that Rule 37(16) is not a stand-alone, independent basis for an did not comport with Supreme Court Rule 37. Central to this argument is his violated because the procedures employed in imposing the interim suspension We first address Attorney Fojo's argument that his due process rights were

p. 6 37(16)(i)." Gallant's Case, 170 N.H. at 53 p. 7 4. the ultimate authority to determine whether suspension is necessary under Rule 97 (2012). As to the referee's legal rulings, our review is de novo and we "retain available for our review. Id.; see Lawrence v. Philip Morris USA, 164 N.H. 93, 96and all of the documents and proffers upon which he based his decision are 4

166. He did make such a request, and the hearing occurred promptly — two hearing before a referee. See Sup. Ct. R. 37(16)(d); Reiner's Case, 152 N.H. at order, Attorney Fojo was given the opportunity to request a post-suspension documentary evidence of his misconduct. Following our interim suspension ADO investigated Attorney Fojo for several months and collected extensive precipitously. Prior to petitioning this court for an immediate suspension, the applicable rule — Rule 37(16). Sup. Ct. R. 37(16)(d), (f). The ADO did not act not comport with Rule 37, he was, in fact, afforded the process required by the Contrary to Attorney Fojo's claim that the interim suspension process did

Therefore, Attorney Fojo's reliance on Rules 37(9-A) and (9-B) is misplaced. preserve the integrity of the legal profession and public confidence in the bar. inherent ability to act quickly when necessary to protect the public and to Nor will we read Rules 37(9-A) and (9-B) as abrogating or constraining our Rule 37(16) cannot serve as an independent basis for an interim suspension. delegable duty to protect the public — we reject Attorney Fojo's argument that plenary authority over attorney discipline — indeed our unique and non- "expeditious" disciplinary action). Given this court's long-established and Barnard's Case, 101 N.H. at 3 p. 7 4 (recognizing our inherent authority to take allegations of fraud or malpractice against an attorney (emphasis added)), with RSA 311:8 (recognizing the court's power to "inquire in a summary manner into" Respondent attorney shall be entitled to be heard after any ex parte order."), and temporary orders as justice may require either with or without a hearing. disciplinary action. Compare Sup. Ct. R. 37(16)(d) ("The court may make such profession"). Likewise, Rule 37(16)(d) codifies our inherent power to take swift protection of the public and the preservation of the integrity of the legal the court may discipline attorneys "as the court deems necessary for the N.H. 243, 244 (1956) (quotation omitted); see Sup. Ct. R. 37(16)(f) (providing that maintenance of public confidence in the bar as a whole." Harrington's Case, 100 discipline advances the purpose of "the protection of the public, as well as . . . the Rule 37(16) (1) codifies our longstanding view that our responsibility for attorney Rule 37 must be read in the context of our inherent authority. Indeed,

the community." Barnard's Case, 101 N.H. 33, 3 p. 7 4 (1957). action in the suspension or removal of members of the bar for the protection of over attorney discipline includes the "power to take reasonable and expeditious Brooks, 140 N.H. at 817 (quotation omitted). Accordingly, our inherent authority attorneys within this State falls squarely upon the shoulders of this court." These authorities confirm that "[t]he task of supervising and disciplining

profession" in this court). (199 p. 8 5) (recognizing that Part II, Article 73-a "vest[s] discipline of the legal see also Opinion of the Justices (Judicial Salary Suspension), 1 p. 7 40 N.H. 297, 299 5

ongoing and posed a continuing danger to the public and to the integrity of the and for being "out of trust" with regard to her account, his misconduct was aware of the ADO'S investigation into his misappropriation of that client's funds December, the ADO had a well-founded concern that, although Attorney Fojo was Fojo had previously lied to it about this same client's funds. Thus, by midlien." All of this conduct occurred after the ADO had reason to believe Attorney from the [client's] settlement will have to be allocated to satisfy the [outstanding] time when he did not have an IOLTA account — that "the remaining funds . . . admitted as much when, on November 19, he represented to the ADO — at a therefore, "out of trust" with respect to at least one client. Indeed, Attorney Fojo 27 and December 13, he did not have an IOLTA account. Attorney Fojo was, least one client during this time period, for the six-week period between October Although Attorney Fojo was entrusted with maintaining the funds of at

own money. Fojo did not do so until December 13, at which time he deposited $100 of his prompted on November 18 by the ADO to open a new IOLTA account, Attorney that Attorney Fojo had not yet opened a new IOLTA account. Even after being subpoenaed the records for that account. On November 17, the ADO learned brought it to the ADO's attention at that time only because the ADO had recently Attorney Fojo did not alert the ADO of this fact until November 16, and he deficient IOLTA record-keeping, closed his IOLTA account on October 27. misappropriation of client funds deposited in his IOLTA account, as well as Attorney Fojo, despite knowing that the ADO was investigating his

"nothing had changed" since the end of September 2021. We disagree. was no emergency that justified an immediate interim suspension because that, as of December 21, 2021, when the interim suspension was ordered, there circumstances, those circumstances were not present in this case. He maintains court has inherent power to take immediate disciplinary action under certain Attorney Fojo also contends that, even if, contrary to his arguments, the

briefing and heard oral argument. These procedures comply with Rule 37(16). hearing. Attorney Fojo challenged the referee's determination; we ordered The referee issued his fourteen-page recommendation eight days after the the legal profession. See Sup. Ct. R. 37(16)(f); Reiner's Case, 1 p. 8 52 N.H. at 167. necessary for the protection of the public and the preservation of the integrity of required to prove, by a preponderance of evidence, that the suspension was During the January 4 hearing in front of Judge Smukler, the ADO was

within thirty days of the interim suspension order). (interpreting Rule 37(9)(i) as requiring a post-suspension hearing to be scheduled weeks after issuance of the order. See Reiner's Case, 1 p. 8 52 N.H. at 1 p. 9 67 6

PLLC AS ATTORNEY(S) FOR [the client]." On December 23, the check was carrier issued Attorney Fojo a $40,000 settlement check payable to "FOJO LAW Fojo's client settled her personal injury claim. On December 1 p. 9 6, the insurance respect to a client's $40,000 settlement check. On December 14, 2020, Attorney misappropriation of client funds. Most egregious is Attorney Fojo's conduct with this case involves a series of lies to clients and the ADO and ongoing misuse and attorney who is "out of trust" due merely to mismanagement or oversight; rather, ADO proved, by a preponderance of evidence, that this is not a case of an The record provides ample support for the referee's determination that the

accounts). suspension of attorneys for misuse of client funds or "out of trust" IOLTA severe disciplinary action. See id. (collecting cases involving disbarment or omitted). In cases involving an attorney's misuse of client funds, we often take of professional norms." Coddington's Case, 155 N.H. p. 9 66, 70 (2007) (quotation the least, from misuse of a client's property must stand among the most insistent honesty." Id. (quotation omitted). In addition, a lawyer's obligation to "refrain, at practicing law includes the concomitant responsibilities of truth, candor and completely than a lie." Id. (quotations omitted). "This is because the privilege of negatively on the legal profession and erodes public confidence in the bar more attorney is dishonest." Id. at 538. "No single transgression reflects more "The injury to the public and to the profession is substantial whenever an

burden when an attorney's interim suspension is based on Rule 37(9)(i)). legal profession. Cf. Gallant's Case, 170 N.H. at 53 p. 9 6-37 (discussing the ADO's suspension is necessary to protect the public and to preserve the integrity of the is likely to succeed on the merits of its disciplinary case, and that the interim final discipline, but, rather, to show by a preponderance of evidence that the ADO Attorney Fojo committed professional misconduct that warrants imposition of burden, at this early stage in the disciplinary process, is not to prove that Sup. Ct. R. 37(16)(f); see Gallant's Case, 170 N.H. at 533-34, 536-37. The ADO's the public"; and (2) "the preservation of the integrity of the legal profession." must conclude that the suspension is necessary for both: (1) "the protection of and "rife with error." (Bolding omitted.) To continue an interim suspension, we suspension because the referee's report and recommendation is unsupported We now turn to Attorney Fojo's argument that we should lift his

likewise, supported our interim suspension order. justified the ADO's decision to petition for interim suspension at that time and, that the circumstances — as they evolved in November and December 2021 — to our attention by seeking an interim suspension. Accordingly, we conclude necessary for the ADO, in the discharge of its responsibilities, to bring the matter legal profession. Under these circumstances, it was both reasonable and p. 10 7

suspension will, absent further order of the court, remain in place pending to practice law, Reiner's Case, 152 N.H. at 165, and our ruling that the interim In light of Attorney Fojo's constitutionally protected interest in his license

this court. suspended from the practice of law in New Hampshire pending further order of Reiner's Case, 152 N.H. at 16 p. 10 7. Accordingly, Attorney Fojo shall remain preservation of the integrity of the legal profession. See Sup. Ct. R. 37(16)(f); interim suspension is necessary for the protection of the public and the that the ADO met its burden of proving, by a preponderance of evidence, that the Our independent review of the record confirms the referee's conclusion

violated our order of December 21. approximately $4,500 from his IOLTA account. In doing so, Attorney Fojo . . . any assets of clients." Nonetheless, on December 22, Attorney Fojo withdrew Attorney Fojo from "further use of his IOLTA account" and also from "transferring On December 21, 2021, this court issued the interim suspension order enjoining Finally, Attorney Fojo's misconduct continued even after his suspension.

deposited. arrived — he made disbursements to himself shortly after the check was evidence that Attorney Fojo was aware in December 2020 that the check had settlement check in December 2020. Further, as described above, there is that the company had no contact with Attorney Fojo's office after issuing the insurance company. Indeed, the insurance company claims adjuster attested evidence in the record that he or anyone on his behalf ever contacted the "led to believe the check was lost and had to be re-issued." However, there is no he directed his assistant to reach out to the insurance company, and that he was that he "believed for a long time that the [$40,000] check had not arrived," that grievance as a complaint. In response, Attorney Fojo represented to the ADO filed a grievance alleging misuse of her funds and that the ADO had docketed the of this account. In July 2021, the ADO notified Attorney Fojo that the client had There is also evidence that Attorney Fojo lied to the ADO about the status

period. — after having been "out of trust" with respect to this client for an extended check." Attorney Fojo did not remit any payment to the client until August 2021 issue the check or it wasn't sent out" and that the carrier would "re-issue the her about having received the check, saying that the insurance carrier "didn't client's inquiries about her settlement during early 2021, in May 2021, he lied to to himself totaling $12,000. Attorney Fojo not only twice failed to respond to the 23, 2020 and February 5, 2021, Attorney Fojo made five separate disbursements endorsed and deposited into Attorney Fojo's IOLTA account. Between December p. 11 8

File Andrea Q. Labonte, Esq. Elizabeth M. Murphy, Esq. Mark P. Cornell, Esq. William C. Saturley, Esq. Distribution:

DONOVAN, JJ., concurred. MACDONALD, C.J., and HICKS, BASSETT, HANTZ MARCONI, and

motion is denied. Rule 37(9-B). See Sup. Ct. R. 37(9-B)(g). For the reasons set forth above, that On February 10, 2022, Attorney Fojo petitioned for reinstatement under

a schedule to the court no later than March 4. Attorney Fojo are directed to confer regarding procedural deadlines and submit application of any rule under this section."). To that end, the ADO and justice may require, the professional conduct committee may waive the Ct. R. 1; see also Sup. Ct. R. 37A(III)(Preface) ("As good cause appears and as Fojo may request that the court order such a modification or waiver. See Sup. waiver of certain procedural rules set forth in Rule 37A. The ADO or Attorney order. We are aware that this expedited process will require the modification or attorney discipline system cannot be concluded within four months of this shall prioritize this case. The ADO shall notify the court if proceedings in the final disposition of disciplinary proceedings, the attorney discipline system