Robert M. Fojo (2022)

p. 2 Respondent submitted a request to resign from the practice of law on March 15. The ADO objected to Respondent’s affidavit. The Court rejected the request by Order of March 22. In that Order, the Court set On April 4, 2022, Respondent once again requested that the Court accept his The ADO objected on April 8. By Order of April 20, 2022, the Court rejected Respondent’s request and ordered Respondent wishes to avoid a disciplinary proceeding. He hereby submits The April 26 Affidavit meets the requirements of Supreme Court Rule 37(11). The

raised by the ADO on April 8.

Affidavit meets the requirements of the March 22 Order. The Affidavit remedies the objections

8.

Dated April 26, 2022 in lieu of a proposed procedural order.

Respondent Robert M. Fojo’s Affidavit of Resignation Pursuant to Supreme Court Rule 37(11),

7.

the parties to submit an updated procedural order for the Respondent’s disciplinary matter.

6.

5.

resignation from the New Hampshire Bar and the practice of law.

4.

conditions for the Respondent’s affidavit of resignation.

3.

2.

1.

updated procedural order in his disciplinary matter. The ADO assents to the resignation affidavit.

Respondent Robert M. Fojo asks the Court to accept his resignation in lieu of filing an

and RENEWED (AND ASSENTED-TO) REQUEST TO RESIGN RESPONSE TO THE COURT’S ORDER OF APRIL 20, 2022

Murphy, Esq. on this 26th day of April, 2022. Request to Resign A copy of the foregoing Response to the Court’s Order of April 20, 2022 and Renewed

Dated: April 26, 2022 __ __________

WHEREFORE, Respondent asks the Court to accept his affidavit of resignation.

Counsel, expressed the ADO’s assent to the resignation request contained therein.

9. p. 4 I am the Respondent in this proceeding. I desire to resign my license to practice law in the State of New Hampshire. Per This resignation is freely and voluntarily rendered and is not the product of coercion or There is presently pending an investigation into allegations that I have been guilty of I acknowledge that the material facts upon which the petition, the referee’s report and I know that charges predicated upon the misconduct under investigation cannot be I waive Supreme Court Rule 37(11)(c), which normally requires that the contents

of this affidavit shall not be disclosed publicly or made available for use in any other proceeding.

3.

successfully defended. Sup.Ct.R. 37(11)(a)(4). 

are predicated are true. Sup.Ct.R. 37(11)(a)(3). recommendations dated January 12, 2022, and this court’s order dated February 25, 2022 

37(11)(a)(2). interim basis. The nature of my misconduct is set forth in the petition. Sup.Ct.R. suspension in December 2021, resulting in my suspension from the practice of law on an docketed the matter as a complaint in July 2021 and filed a petition for my immediate misconduct. The investigation is the result of a grievance filed by Paula Dewey. The ADO 

37(11)(a)(1). duress. I am fully aware of the implications of submitting this resignation. Sup.Ct.R. 

Sup.Ct.R. 37(11) I state:

2.

1.

I, Robert M. Fojo, declare as follows under penalty of perjury.

Robert M. Fojo

p. 5 2022.

Signed and sworn to under the pains and penalties of perjury, this p. 5 26th day of April,

ADO’s costs to date. I understand from the ADO that the total of those costs is presently $393.9 p. 5 2.

4. I understand that my resignation will be conditioned on my reimbursement of the p. 6 Respondent, Robert M. Fojo, was admitted to the New Hampshire Bar on The ADO has determined that Respondent has engaged in conduct

involving misappropriation of $14,666.67 from one client and

2.

South River Road, Suite 464, Bedford, NH 03110.

May 26, 2010. Mr. Fojo is currently practicing law at Fojo Law, 264

1.

the ADO states as follows:

integrity of the legal profession.”) and Supreme Court Rule 37(9-A). In support,

deems necessary for the protection of the public and the preservation of the

court may suspend attorneys . . . upon such terms and conditions as the court

practice of law pursuant to New Hampshire Supreme Court Rule 37(16)(f) (“the

the Respondent Robert M. Fojo, Esquire (“Mr. Fojo” or “Respondent”) from the

respectfully petitions this Court to order the immediate interim suspension of

The New Hampshire Supreme Court Attorney Discipline Office (“ADO”)

In the Matter of Robert M. Fojo, Esquire

Fojo was admitted to practice on May 26, 2010.

8.

Rule 50.

conformity with the Rules of Professional Conduct and Supreme Court

public and substantially impairs his ability to continue to practice in

7.

ADO be appointed to conduct an inventory of Mr. Fojo’s client files.

6.

and 37(9-A).

5.

$100.00.

4.

c.

b.

a.

matters:

3.

client funds held in trust in his possession or under his control.

$33,350.00 from another client and has engaged in the mishandling of p. 8 Mr. Fojo was also admitted to practice law in Massachusetts on Mr. Fojo was also admitted to practice law in Florida on September 21, At all times material to this proceeding, Mr. Fojo operated his law office Mr. Fojo has no previous disciplinary history in New Hampshire. On July 19, 2021, Paula Dewey submitted an online grievance to the Ms. Dewey had hired Respondent to represent her regarding a slip That her personal injury claim had settled on December 4, 2020 That as of the date of the grievance, Ms. Dewey had not received That she had been emailing the Respondent and he told her that

Acadia was going “to reissue the check.”

d.

any of her settlement proceeds.

c.

had cleared on December 24, 2020.

Dewey (“settlement check”) had issued on December 16, 2020 and

settlement check payable to Fojo Law PLLC as Attorney(s) for Paula

and according to the records of Acadia Insurance (“Acadia”), a

b.

and fall in which she suffered personal injuries.

a.

Attorney Discipline Office (“ADO”). The grievance alleged the following:

13.

Paula Dewey Matter: Initial Grievance and ADO Investigation

12.

as Fojo Law PLLC, 264 S. River Road, Suite 464, Bedford, NH 03110.

11.

in Florida.

2005. He is currently administratively suspended for failure to pay dues

10.

Massachusetts Bar.

December 16, 2014. He is currently on active status for the

9. p. 9 Attached to the grievance, among other documents, was a copy of the In the first text message, sent on May 11, 2021, Mr. Fojo stated: In the second text message sent on June 25, 2021, Mr. Fojo stated: “I After receipt of the grievance, this matter was docketed by the ADO. Deputy General Counsel for the ADO, Mark P. Cornell requested a Mr. Fojo responded via email on July 28, 2021 to Mr. Cornell, stating in

I would never do that to a client. What occurred was an Settlement or intended to deprive her of them in any fashion. I never misappropriated the funds from Ms. Dewey’s

part:

19.

2020 to July 2021.

reconciliations for the IOLTA account for the time period of December

in the Respondent’s IOLTA account and copies of all monthly

present, copies of ledger cards for all clients and third party funds held

statements for Respondent’s IOLTA account from December 2020 to the

that Mr. Fojo provide a complete copy of Ms. Dewey’s file, copies of bank

mandatory response from Mr. Fojo via letter dated July 21, 2021, asking

18.

17.

have reached out and am determining what happened.”

16.

Thanks for your patience. wasn’t sent out. They are going to re-issue the check. For whatever reason, the carrier didn’t issue the check or it Hi Paula:

15.

received from Mr. Fojo prior to filing the grievance.

Ms. Dewey and two printed screenshots of text messages Ms. Dewey had

negotiated check for $40,000 from Acadia, the general release signed by

14. p. 10 Mr. Fojo’s email explained that the aforementioned internal error Mr. Fojo further explained: Mr. Fojo also stated: “I don’t keep ledger cards. Rule 50(2)(B)(ii) requires In summary, Mr. Fojo advised that he had been using various software Mr. Fojo also informed Mr. Cornell that he was trying to confirm one of

by the next day.

the liens on the Dewey matter with DHHS and hoped to have that done

24.

that he planned to take steps to rectify the situation.

account, that he encountered problems with that record-keeping, and

programs to maintain record-keeping and reconciliations for the IOLTA

23.

every transaction going back to December.”

information…” Mr. Fojo added: “I don’t have monthly reconciliations for

attorneys to keep “ledger or comparable records showing” the relevant

22.

and had to be reissued. some point, we were led to believe that the check was lost believed for a long time that the check had not arrived…. At I did not discover this issue until several months later. I

21.

that belonged to my firm), so I didn’t notice any change. client for tax purposes, and another set of funds were there account at the time (some funds were being held for another fact that the funds were there. There were other funds in the She did not flag it for me, however, and I then overlooked the and my new assistant deposited it in the IOLTA account. When Ms. Dewey’s check came in, I was not in the office,

occurred:

20.

since taken steps to rectify it. internal error that I failed to correct in due time, and I have p. 11 Mr. Fojo did not provide a complete copy of Ms. Dewey’s file until The following day, July 29, 2021, Mr. Fojo supplemented his response to The bank statements for Citizens IOLTA 1166 provided by Mr. Fojo Nonetheless, as of June 30, 2021, the balance in the IOLTA account was As of June 30, 2021, Mr. Fojo had not disbursed any funds to Ms. Dewey As of June 30, 2021, Mr. Fojo had not paid any costs or medical bills on By July 20, 2021, the balance in the Citizens IOLTA 1166 was $699. Following a request from the ADO to pay Ms. Dewey any amount she was

$12,000.00.

2021, made a partial payment to Ms. Dewey in the amount of

owed consistent with Rule 1.15, Mr. Fojo, by letter dated August 9,

32.

31.

Ms. Dewey’s behalf from the Citizens IOLTA 1166.

30.

from the Citizens IOLTA 1166.

29.

$5,225.00.

28.

on December 23, 2020.

“FOJO LAW PLLC AS ATTORNEYS FOR PAULA DEWEY” was deposited

reflected that the settlement check for $40,000.00 made payable to

27.

reconciliations were provided.

matter. No ledger cards, records comparable to ledger cards, or

along with copies of various emails and other documents on the Dewey

from the Citizens Bank account ending in 1166 (“Citizens IOLTA 1166 ”),

Mr. Cornell by providing via email the requested IOLTA bank statements

26.

November 21, 2021.

25. p. 12 However, as of that date, Mr. Fojo was not holding sufficient funds in The IOLTA balance as of August 2, 2021 was $7,163.50. Mr. Fojo received a $10,000 wire transfer from “Bluebell International, Mr. Fojo, in effectuating the $12,000 payment to Ms. Dewey on August 9, Mr. Fojo included with his partial payment to Ms. Dewey an invoice for $1,574.65 Marcam & Associates (Cheshire Medical Center) $32.00 Brattleboro Memorial Hospital - Invoice for Medical $280.00 Superior Court - Filing Fee $4,878.69 Other Medical Expenses (not paid by Acadia) $13,333.33 of $40,000.00 Contingency Fee (33.33333333%) In his August 9, 2021 letter to Ms. Dewey, Mr. Fojo stated, “I am still Ms. Dewey has represented to the ADO that she has been in contact with

They told her that if there was a lien it would be through Rawlings

New Hampshire Healthy Families and she did not owe them anything.

39.

amount of a lien it asserted. I will continue to keep you posted.”

awaiting word from New Hampshire Healthy Families concerning the

38.

e)

d)

c)

Records

b)

a)

follows:

$20,098.67 in which he itemized his alleged fees and expenses as

37.

of trust.

2021, utilized the funds of other clients, thereby placing other clients out

36.

Inc.” into his Citizens IOLTA 1166 on August 5, 2021.

35.

34.

trust for Ms. Dewey to cover such a payment to her.

33. p. 13 The ADO has contacted representatives of the DHHS regarding any liens DHHS would not release information until Ms. Dewey signed an As of the date of this filing DHHS has yet to confirm to the ADO whether On September 27, 2021, Mr. Cornell and Elizabeth Burnett, paralegal for Mr. Fojo provided paper copies of documents from his file for Ms. Dewey. The documents provided contained no other medical bills for Ms. Dewey. The file did not contain any information on the DHHS lien Mr. Fojo

2021 letter to Ms. Dewey and to Mr. Cornell.

claimed to be attempting to resolve, as he represented in his August 9,

46.

45.

Marcam & Associates).

medical bill for the Cheshire Medical Center (now in collections with

The documents provided contained only a copy of the lien for $1,574.55

44.

the ADO, met in person with Mr. Fojo.

43.

ADO Further Investigation/Subpoenaed Bank Records

the coming days.

there is a lien in place. It is expected that information will be available in

42.

authorization by email during the afternoon of December 17, 2021.

December 17, 2021. DHHS is reviewing the matter, having received the

authorization. Ms. Dewey provided DHHS with the authorization on

41.

relating to Ms. Dewey’s injury.

40.

lien.

Rawlings Group and is in the process of confirming they do not hold a

Group. Ms. Dewey has represented she has never received a bill from p. 14 The ADO has repeatedly requested proof of those medical expenses as As a follow up to the September 27, 2021 meeting, Mr. Cornell requested, The receipt and disbursement journal produced on November 3, 2021, This journal was incomplete and missing client reference information Mr. Fojo stated in his November 3, 2021, email “I will send some Mr. Fojo responded with the explanatory notes on November 11, 2021.

2021.

Mr. Fojo did not respond to the follow-up questions, until November 19,

52.

related to the information previously provided.

notes that had been promised, as well as a list of follow-up questions

Cornell sent a follow-up email to Mr. Fojo requesting the explanatory

send the explanatory notes as promised. On November 9, 2021, Mr.

explanatory notes in a separate email, likely tomorrow.” Mr. Fojo did not

51.

IOLTA to specific clients.

that would allow the ADO to attribute specific disbursements from the

50.

attributed to each client.

information provided did not indicate the portion of the transaction

addition, some of the transactions were for more than one client, but the

did not identify the clients associated with all of the transactions. In

49.

for the Citizens IOLTA 1166 from January 2019 to June 2021.

disbursement journal that included a list of deposits and disbursements

and on November 3, 2021, Mr. Fojo produced, a receipt and

48.

well as proof of the alleged DHHS lien. Mr. Fojo has not provided them.

47. p. 15 The Attorney Discipline Office was able to recreate a receipt and According to the information provided, Mr. Fojo attributed the following December 23, 2020 for $2,000.00 December 30, 2020 for $2,000.00 February 3, 2021 for $4,000.00 February 5, 2021 for $2,000.00 February 5, 2021 for $2,000.00 Mr. Fojo withdrew funds attributed to Ms. Dewey’s matter from the On November 16, 2021, the ADO subpoenaed the records from Mr. Fojo’s

through the present date.

Citizens IOLTA 1166 and Citizens Operating 1169 from June 1, 2019

56.

received and deposited into his IOLTA account.

not aware that the settlement check for Ms. Dewey’s matter had been

inconsistent with his statement in his response to the ADO that he was

Citizen IOLTA 1166 account beginning on December 23, 2020. This is

55.

e)

d)

c)

b)

a)

30, 2021:

matter, from the date of deposit of the settlement check through June

account ending in 1169 (“Citizens Operating 1169”) to Ms. Dewey’s

online transfers from the Citizens IOLTA 1166 to his Citizens operating

54.

clients who had funds in the Citizens IOLTA 1166.

the Attorney Discipline Office was able to create ledger cards for all of the

since June 1, 2019. After associating these transactions with clients,

disbursement journal for the Citizens IOLTA 1166 and all transactions

53. p. 16 The same day, in response to receiving notice of the subpoena, Mr. Fojo Mr. Fojo represented that he did this at the bank’s suggestion, due to Mr. Fojo claimed that the only funds remaining in the Citizens IOLTA On October 25, 2021, two days before the Citizens IOLTA was closed, the Mr. Fojo provided the ADO a list of clients to whom the $10,451.34 were $1,000.00 Fojo Law Operating Account $3,000.00 Fojo Law Operating Account Fojo Law Operating Account $3,250.00 Shepherds Hill Condominium $201.00 Fojo Law Operating Account Fojo Law Operating Account $10,451.34 None of these matters pertained to Ms. Dewey or Ms. Dewey’s DHHS lien. When the ADO inquired as to the monies that should be held in Mr.

not say I was holding funds for her. Rather, at my meeting Regarding the funds you are attributing to Ms. Dewey, I did

email:

Fojo’s IOLTA on behalf of Ms. Dewey’s DHHS lien, Mr. Fojo responded via

63.

62.

Rose Marte

Investments Association Thibeault

Andrea Thurber $3,000.00 Robert Thate Nick Consoles

attributed as follows:

61.

balance in the account was $10,451.34.

60.

were earned fees, so he deposited them into his operating account.

59.

fraudulent deposits from an outside source.

58.

weeks prior, on October 27, 2021.

advised Mr. Cornell that he had closed his Citizens IOLTA more than two

57. p. 17 As of November 18, 2021, Ms. Dewey confirmed to the ADO she had not Mr. Cornell met in person a second time with Mr. Fojo along with his Mr. Fojo advised that some of the line items that he had previously Mr. Cornell had requested on November 23, 2021, and then again on

December 1, 2021, complete copies of the client file for Dewey and for

67.

incorrect clients and that he needed to make corrections.

provided to Mr. Cornell for the disbursement journal were attributed to

66.

present for the meeting.

Disciplinary Counsel, Elizabeth Murphy and Ms. Burnett were also

attorney, William Saturley, Esq. on December 2, 2021. Assistant

65.

Dewey confirmed the same on December 14, 2021.

received evidence that her medical bills/liens were paid by Mr. Fojo. Ms.

received any additional payments from Mr. Fojo, nor has she ever

64.

by next week. I will continue to update you about this. lien. I hope to have it clarified any day now, and hopefully individual to obtain the necessary information about the firm. I provided it. We have now resumed calling that issue. They requested a letter of representation from my finally connected with someone with knowledge about this DHHS. After numerous phone calls every other day, we were nightmare trying to confirm the amount of the lien with more money to Ms. Dewey than I should have. It has been a to satisfy that lien. I also mentioned that I likely distributed mention below) from the settlement will have to be allocated yet, and the remaining funds (the $7,901.33 figure you there was a large DHHS lien that has not been confirmed with Attorney Cornell on September 27, I explained that p. 18 He also requested on these dates the client files for two additional client Just prior to the December 2, 2021 meeting, Mr. Fojo provided links to The electronic Dewey file produced by Mr. Fojo did contain some health The Dewey file included a copy of the lien to Cheshire Medical Center, The file did not contain any evidence payments of these medical bills or In an email dated December 13, 2021, Mr. Fojo, through counsel, The file did not contain evidence of the amount of the DHHS lien, only a

on that letter and confirmed that she was not aware of it.

was sent months into the ADO investigation. Ms. Dewey was not copied

letter of representation to the DHHS dated October 8, 2021. This letter

74.

that were not included in the file.

acknowledged that there were no payments made on medical bill or liens

73.

liens.

72.

listed in Mr. Fojo’s invoice to Ms. Dewey on August 9, 2021.

but no additional documentation regarding the medical bills and/or liens

71.

totaling $902.00.

insurance claims forms for other smaller medical bills, in an amount

70.

files at the meeting.

provided supplemental paper copies of the Curtis Pedeare and Dewey

the electronic files for clients Dewey, Jha and Curtis Pedeare. Mr. Fojo

69.

matters: Santanu and Satish Jha and Curtis Pedeare.

68.

Mr. Fojo.

documentation that Ms. Dewey’s medical bills and/or liens were paid by p. 19 The ADO received the Subpoenaed records from Citizens Bank on A review of the Subpoenaed records of the Citizens IOLTA 1166 and On December 23, 2020, a settlement check in the amount of $40,000.00 Mr. Fojo’s fee agreement with Ms. Dewey entitled him to a 1/3 fee, or Between December 23, 2020 to February 5, 2021, Mr. Fojo paid himself These transfers all occurred prior to Mr. Fojo telling Ms. Dewey that he On August 9, 2021, after Mr. Dewey’s grievance was filed with the ADO, There were no other distributions out of the Citizens IOLTA 1166 on Mr. Fojo should be holding in trust for Ms. Dewey at least $14,667.67

paid to Ms. Dewey)].

[(settlement funds of $40,0000 – (Mr. Fojo’s fee of $13,333.33 + $12,000

83.

behalf of Ms. Dewey.

82.

payable to Ms. Dewey. This check was negotiated on August 19, 2021.

Mr. Fojo issued check number 5036 in the amount of $12,000.00

81.

had not received the settlement check for her case.

80.

$12,000.00.

via online transfers into his Citizens Operating 1169 the total amount of

79.

$13,333.33.

78.

was deposited in in the Citizens IOLTA 1166 on behalf of Ms. Dewey.

77.

Satish Jha, and Curtis Pedeare matters:

confirms the following transactions for the Paula Dewey, Shantanu and

76.

December 3, 2021.

75. p. 20 As of October 27, 2021, Mr. Fojo closed his Citizens IOLTA 1166, leaving Mr. Fojo’s current IOLTA account has a balance of $100.00. Mr. Fojo is out of trust in the Dewey matter in the amount of $14,667.00. Mr. Fojo represented Satish Jha and Shantanu Jha in a contract dispute Messrs. Jha signed a hybrid fee agreement on January 4, 2019 that In addition, the fee agreement provided that in the event of a recovery, Mr. Fojo filed an appearance on January 15, 2019. The matter settled prior to any summary judgment motions, on or Mr. Fojo thus would have been entitled to $150,000, or 30% of the total According to the bank records, on January 13, 2020, $500,000 was On January 28, 2020, Mr. Fojo wire transferred to his client a total of

$288,000.

94.

their claim.

deposited in the Citizens IOLTA 1166 on behalf of Jha in settlement of

93.

recovery of $500,000.

92.

around December 15, 2019, for $500,000.

91.

90.

judgment or 40% if obtained after summary judgment.

Mr. Fojo would receive 30% of any recovery obtained before summary

89.

entitled Mr. Fojo to a $12,000 flat fee, which Messrs. Jha paid.

88.

South Superior Court.

with a former employer. Case No. 226-2018-CV-00239, Hillsborough

87.

86.

85.

a $0 balance.

84. p. 21 From January 13, 2020 to February 1, 2021, Mr. Fojo paid himself, This amount is in addition to the $12,000 flat fee. Mr. Fojo’s payments to himself of $195,020 represents 39% of the In any event, the remaining balance of the funds held in trust for the Jha Despite holding only $16,980 in trust for the Jha matter, Mr. Fojo issued Effectuating such payment would have required the use of the funds of Mr. Fojo was out of trust in the Jha matter, at least, in the amount of On April 16, 2021, check number 5033 was presented to Citizens Bank There were no additional deposits in the Jha matter from February 1,

2021 through May 5, 2021.

103.

$67,000.00.

by the bank on April 19, 2021, whereby Citizens Bank credited back the

for payment on April 16, 2021. However, it was subsequently reversed

102.

$50,020.00

101.

other clients.

100.

Treasury in the amount of $67,000.

check number 5033, dated January 15, 2021, payable to the US

99.

matter, after the aforementioned disbursements, was $16,980.00.

98.

$150,000.

$500,000 recovery. His fee agreement entitled him only to 30%, or

97.

96.

$195,020.00.

online transfers into Citizens Operating 1169, the total amount of

according to his own disbursement journal provided to the ADO, via

95. p. 22 Thereafter, on May 5, 2021, Mr. Fojo wire transferred from the Citizens In a meeting with the ADO on December 2, 2021, Mr. Fojo represented to Mr. Fojo represented to the ADO that he thereafter gave a “credit” to Jha. The IOLTA bank records do not evidence any “credit.” There is no Mr. Fojo represented Curtis Pedeare in a personal injury matter The fee agreement in the Pedeare matter provided for a 1/3 attorneys fee On August 6, 2020, Mr. Fojo deposited $50,000 into the Citizens IOLTA On August 10, 2020, Mr. Fojo issued a check in the amount of $33,584 On the same day, Mr. Fojo issued a check in the amount of $16,416 to

himself.

112.

to Mr. Pedeare.

111.

Insurance.

1166 in the Pedeare matter. The payor on the check was Geico General

110.

of the amount recovered.

109.

stemming from an injury on August 25, 2017.

108.

“credit” to client Jha.

deposit by Mr. Fojo of his own funds into the IOLTA to effectuate any

107.

106.

thirty percent (30%) fee.

the ADO that Jha had disputed his fee, and that Mr. Fojo agreed to a

105.

the wire transfer in the amount of $50,020.

other clients to make this payment. He was out of trust at the time of

IOLTA 1166 to Jha the amount of $67,000. Mr. Fojo used the funds of

104. p. 23 These disbursements zeroed out the funds held for Mr. Pedeare. On February 16, 2021, Mr. Fojo deposited an additional $50,000 into the The payor on the check was Geico Advantage Insurance Company. The second check was from Geico as part of Mr. Pedeare’s Between February 24, 2021, and May 3, 2021, Mr. Fojo transferred This amount is well over a 1/3 contingency fee. Thirty three percent Mr. Fojo did not disburse any portion of the $50,000 received on Mr. Fojo did not disburse any portion of the $50,000 received on Mr. Fojo did not provide Mr. Pedeare with a settlement summary setting Mr. Fojo appears to be out of trust in the amount of $33,500 on behalf of On November 30, 2021, months after the ADO investigation began, Mr.

Fojo produced a document entitled “Addendum to Engagement Letter.”

123.

Mr. Pedeare.

122.

matter and the method of its determination.

forth in writing the remittance to the client from his personal injury

121.

February 16, 2021 to any medical provider on behalf of Mr. Pedeare.

120.

February 16, 2021 to Mr. Pedeare.

119.

(33%) of $50,000 is $16,665.

118.

ADO’s investigation.

according to his disbursement journal that he re-created during the

$39,000 to his operating account attributed to the Pedeare matter,

117.

uninsured/underinsured motorist coverage.

116.

115.

Citizens IOLTA 1166 on behalf of Mr. Pedeare.

114.

113. p. 24 The document was signed by Mr. Fojo and Curtis Pedeare and is dated The Addendum purports to amend the original Engagement Letter The Addendum does not appear to pertain to a new or distinct legal It states in full: Notably, the Addendum does not disclose to Mr. Pedeare, the actual

Mr. Fojo to keep as fees.

amount or sum of money that Mr. Pedeare is (ex post facto) authorizing

128.

fees, and expert fees. mediation fees, transcription fees, printing fees, other filing necessary travel costs, mileage, mail or courier fees, discover, preserve, and present evidence, reasonable and the following: court costs, all out-of-pocket expenses to associated with the aforementioned services, including any of reimbursed from those funds for any out-of-pocket costs and telephone conversations. Fojo Law was also entitled to be and preparation and production, legal research, meetings, preparation of legal documents and filings, document review preparation and participation, correspondence, review and following: conferences, advice, court sessions, deposition Pedeare. These services include, but were not limited to, the compensation for services rendered by Fojo Law to Mr. liens were deducted from it) are and were paid to Fojo Law as (after Fojo Law's Fee, out-of-pocket costs, and any medical in the Fees and Costs Section of that Engagement Letter P.L.L.C., and Curtis Pedeare. The remaining funds referenced Engagement Letter, dated April 1, 2018, between Fojo Law, This addendum is made on November 30, 2021, to the

127.

matter that Mr. Fojo handled for Mr. Pedeare.

126.

contingency fee agreement for a personal injury matter.

entered into by Mr. Pedeare and Mr. Fojo in 2018, which was a standard

125.

November 30, 2021.

124. p. 25 The ADO asked Mr. Fojo, during an in-person meeting on December 2, Mr. Fojo would not elaborate, claiming that Mr. Pedeare had not waived Rule 1.6(b)(3) contains an exception allowing an attorney to disclose On December 14, 2021, Mr. Fojo was reminded of this exception and As of the date of this filing, no additional files have been produced. At the ADO’s urging, given that Mr. Fojo closed his old IOLTA, Mr. Fojo That IOLTA has a balance of $100, consisting solely of Mr. Fojo’s own Mr. Fojo did not perform monthly reconciliations. Mr. Fojo did not maintain client ledgers.

137.

136.

money (presumably to cover bank costs or fees if necessary).

135.

December 13, 2021.

opened a new IOLTA account ending in 6068 at Bank of America on

134.

Opening Balance of $100, Despite Being Out of Trust $98,036.67 December 2021: Mr. Fojo Opens a New IOLTA Account With An

133.

December 15, 2021.

asked to produce all Pedeare client matters by the close of business on

132.

proceeding concerning the lawyer’s representation of the client.”

reasonably believes necessary “to respond to allegations in any

otherwise confidential client information to the extent the lawyer

131.

confidentiality about any other matters.

130.

$50,000 deposited on February 16, 2021.

Pedeare that would justify the fees he took from the second deposit of

2021, to describe any other legal matter that Mr. Fojo handled for Mr.

129. p. 26 Mr. Fojo was out of trust in at least three client matters, Despite the above facts, Mr. Fojo knowingly falsely reported on his trust Mr. Fojo’s conduct in this case raises questions under the following New Mr. Fojo’s conduct in this case raises questions under the following New Allegations set forth above are incorporated by reference. Rule 1.3 states as follows: Mr. Fojo had a duty to act with reasonable diligence and promptness in Mr. Fojo breached this duty by failing to promptly inform Ms. Dewey of Mr. Fojo breached this duty when he did not promptly remit to Ms. Mr. Fojo breached this duty when he did not promptly remit payment to

third parties entitled to such payments from the settlement funds, which

147.

Dewey the settlement funds she was owed.

146.

the receipt of her personal injury settlement funds.

145.

representing Ms. Dewey in her personal injury case.

144.

in representing a client. A lawyer shall act with reasonable diligence and promptness

143.

142.

Hampshire Rules of Professional Conduct.

141.

Hampshire Rules of Professional Conduct.

140.

performing monthly reconciliations, and was compliant with Rule 50.

2019 through May 31, 2021 that he was never out of trust, was

account compliance certificates for the reporting years covering June 1,

139.

138. p. 27 As such, there is clear and convincing evidence that Mr. Fojo failed to Allegations set forth above are incorporated by reference. Rule 1.4 states as follows: Mr. Fojo had a duty to keep Ms. Dewey reasonably informed as to the

disbursement of any settlement funds.

status of her matter, including communication regarding the receipt and

151.

to make informed decisions regarding the representation. such explanation is reasonably necessary to permit the client matter and alternative courses of action to the extent that (b) A lawyer shall explain the legal and practical aspects of a Professional Conduct or other law. client expects assistance not permitted by the Rules of the lawyer's conduct when the lawyer knows that the (5) consult with the client about any relevant limitation on information; and (4) promptly comply with reasonable requests for the matter. (3) keep the client reasonably informed about the status of which the client's objectives are to be accomplished; (2) reasonably consult with the client about the means by consent is required by these Rules; circumstance with respect to which the client's informed (1) promptly inform the client of any decision or (a) A lawyer shall:

150.

149.

diligently represent Ms. Dewey in violation of Rule 1.3.

148.

Center for $1,574.65.

included, at a minimum, a medical bill due to the Cheshire Medical p. 28 Mr. Fojo breached his duty to Ms. Dewey by failing to adequately and Mr. Fojo’s failure to adequately and accurately communicate with Ms. Mr. Fojo had a duty to keep Mr. Pedeare reasonably informed as to the Mr. Fojo breached his duty to Mr. Pedeare by failing to adequately and Mr. Fojo’s failure to adequately and accurately communicate with Mr. p. 27 As such, there is clear and convincing evidence that Mr. Fojo’s failure to Allegations set forth above are incorporated by reference. Rule 1.5 states in pertinent part as follows:

the legal service properly; the questions involved, and the skill requisite to perform (1) the time and labor required, the novelty and difficulty of the following: determining the reasonableness of a fee or expenses include amount for expenses. The factors to be considered in collect an illegal or unreasonable fee or an unreasonable (a) A lawyer shall not enter into an agreement for, charge, or

159.

158.

accurately communicate with his clients violated Rule 1.4.

157.

Pedeare violated Rule 1.4.

156.

the receipt and disbursement of his second settlement check.

accurately communicate with Mr. Pedeare, in particular, with regard to

155.

disbursement of any settlement funds.

status of his matter, including communication regarding the receipt and

154.

Dewey violated Rule 1.4.

153.

disbursement of her settlement funds.

accurately communicate with Ms. Dewey with regard to the receipt and

152. p. 29 Mr. Fojo had a duty to provide his clients with settlement statements as Mr. Fojo breached that duty when he failed to provide Ms. Dewey, at the

conclusion of her contingent fee matter, with a written statement stating

161.

set forth in Rule 1.5(a)(c).

160.

the method of its determination. there is a recovery, showing the remittance to the client and a written statement stating the outcome of the matter and, if contingent fee matter, the lawyer shall provide the client with contingent fee is calculated. Upon conclusion of a whether such expenses are to be deducted before or after the be liable whether or not the client is the prevailing party, and appeal, litigation and other expenses for which the client will shall accrue to the lawyer in the event of settlement, trial or determined, including the percentage or percentages that client and shall state the method by which the fee is to be contingent fee agreement shall be in writing signed by the contingent fee is prohibited by law or these rules. A which the service is rendered, except in a matter in which a (c) A fee may be contingent on the outcome of the matter for representation. within a reasonable time after commencing the communicated to the client, preferably in writing, before or and expenses for which the client will be responsible shall be scope of the representation and the basis or rate of the fee (b) When the lawyer has not regularly represented the client, the (8) whether the fee is fixed or contingent. lawyers performing the services; and (7) the experience, reputation, and ability of the lawyer or with the client; (6) the nature and length of the professional relationship circumstances; (5) the time limitations imposed by the client or by the (4) the amount involved and the results obtained; services; (3) the fee customarily charged in the locality for similar legal other employment by the lawyer; acceptance of the particular employment will preclude (2) the likelihood, if apparent to the client, that the p. 30 The “invoice” Mr. Fojo provided more than 8 months after Ms. Dewey’s Mr. Fojo breached that duty when he failed to provide Mr. Pedeare, at As such, there is clear and convincing evidence that Mr. Fojo’s failure to Allegations set forth above are incorporated by reference. Rule 1.15 states as follows:

distribution of such other property or any portion thereof. All shall be preserved for a period of six years after final of clients or third persons shall be kept by the lawyer and aspect of those Rules. Sufficient records of all other property Supreme Court Rules and shall comply with every other third party funds as may be required by the New Hampshire minimum financial records with respect to the client and Supreme Court Rules. The lawyer shall maintain the accordance with the provisions of the New Hampshire representation separate from the lawyer's own property, in is in a lawyer's possession in connection with a (a) A lawyer shall hold property of clients or third persons that

166.

165.

Rule 1.15: Safekeeping Property and Supreme Court Rule 50

provide settlement statements violates Rule 1.5.

164.

client and the method of its determination.

stating the outcome of the matter and showing the remittance to the

the conclusion of his contingent fee matter, with a written statement

163.

not documented in the client file.

Fojo, it lists as “other” medical bills a total that cannot be verified and is

due and payable to her and, based on the client file as provided by Mr.

this duty because such invoice did not state what funds were actually

settlement funds were deposited into Mr. Fojo’s IOLTA did not satisfy

162.

the method of its determination.

the outcome of the matter and showing the remittance to the client and p. 31 Mr. Fojo had a duty to handle all client funds in a manner consistent Mr. Fojo breached that duty to his clients when he:

168.

with Rule 1.15 and Supreme Court Rule 50.

167.

property as to which the interests are not in dispute. The lawyer shall promptly distribute all portions of the be kept separate by the lawyer until the dispute is resolved. whom may be the lawyer) claim interests, the property shall possession of property in which two or more persons (one of (f) When in the course of representation a lawyer is in such property. person, shall promptly render a full accounting regarding entitled to receive and upon request by the client or third any funds or other property that the client or third person is lawyer shall promptly deliver to the client or third person otherwise permitted by law or by agreement with the client, a the client or third person. Except as stated in this rule or third person has an interest, a lawyer shall promptly notify (e) Upon receiving funds or other property in which a client or receiving financial institution. and (B) availability of such funds to the lawyer from the other form of deposit by such receiving financial institution, to the sum of such disbursements, or (ii) clearance of any certified check, or electronic transfer of funds at least equal receiving financial institution, of cash, bank cashier's check, (A) (i) deposit, receipt of which is acknowledged by the (d) Funds may be disbursed from lawyer trust accounts upon incurred. withdrawn by the lawyer only as fees are earned or expenses and expenses that have been paid in advance, to be (c) A lawyer shall deposit into a client trust account legal fees purpose. on that account, but only in an amount appropriate for that account for the sole purpose of paying bank service charges (b) A lawyer may deposit the lawyer's own funds in a client trust and appropriately safeguarded. client and third party property shall be identified as such p. 32 Misappropriated approximately $14,666.67 in settlement funds Was out of trust in the amount of $14,666.67 in Ms. Dewey’s Used the funds of other clients to pay Ms. Dewey $12,000 in Was out of trust in the amount of $50,020 in the Shantanu and Used other clients’ funds to issue check no. 5033, dated January Used funds of other clients to make a wire transfer on May 5, 2021 Misappropriated $33,350 from Curtis Pedeare; Was out of trust in the Curtis Pedeare matter in the amount of the Failed to disburse any portion of the $50,000 received on February Left earned fees for extended periods of time in his client trust

account, resulting in commingling;

j.

Pedeare;

16, 2021 to Mr. Pedeare or to any medical provider on behalf of Mr.

i.

$33,350;

h.

g.

in the Jha matter in the amount of $67,000;

f.

in the Jha matter;

15, 2021, payable to the U.S. Treasury in the amount of $67,000,

e.

Satish Jha matter;

d.

August 2021;

c.

matter;

b.

Ms. Dewey’s medical expenses or liens;

either owed to Ms. Dewey or that should have been used to satisfy

a. p. 33 Commingled by leaving 30% of the $500,000 (the legal fee portion) Failed to maintain client ledgers or comparable records; and Failed to reconcile his client trust account on a monthly basis. As such there is clear and convincing evidence of violations of Rule 1.15 Allegations set forth above are incorporated by reference. Rule 3.3 states as follows: ex parte proceeding, a lawyer shall inform the tribunal

facts are adverse. tribunal to make an informed decision, whether or not the of all material facts known to the lawyer that will enable the (c) In an measures, including, if necessary, disclosure to the tribunal. related to the proceeding shall take reasonable remedial is engaging or has engaged in criminal or fraudulent conduct proceeding and who knows that a person intends to engage, (b) A lawyer who represents a client in an adjudicative that the lawyer reasonably believes is false. than the testimony of a defendant in a criminal matter, tribunal. A lawyer may refuse to offer evidence, other measures, including, if necessary, disclosure to the if its falsity, the lawyer shall take reasonable remedial lawyer, has offered material evidence and comes to know lawyer, the lawyer’s client, or a witness called by the (3) offer evidence that the lawyer knows to be false. If a opposing counsel; or adverse to the position of the client and not disclosed by controlling jurisdiction known to the lawyer to be directly (2) fail to disclose to the tribunal legal authority in the previously made to the tribunal by the lawyer; to correct a false statement of material fact or law (1) make a false statement of fact or law to a tribunal or fail (a) A lawyer shall not knowingly:

171.

170.

and Supreme Court Rule 50.

169.

m.

l.

Jha settlement in his client trust account for more than a year;

k. p. 34 Mr. Fojo violated Rule 3.3 by knowingly submitting false Trust Account As such, there is clear and convincing evidence of a violation of Rule 3.3. Allegations set forth above are incorporated by reference. Rule 8.4(c) states as follows: Mr. Fojo had a duty to not engage in dishonesty, fraud, deceit or Mr. Fojo breached that duty when he informed Ms. Dewey that Acadia Mr. Fojo breached that duty when he failed to inform Mr. Pedeare of the

legal fees at the time Mr. Pedeare signed the “Addendum.”

actual sum of money Mr. Pedeare was authorizing Mr. Fojo to keep as

178.

IOLTA, and he had taken legal fees from the settlement.

that Acadia had already issued a check, such check was deposited in his

Insurance was going to reissue the settlement check at a time he knew

177.

misrepresentation.

176.

misrepresentation; (c) engage in conduct involving dishonesty, fraud, deceit or It is professional misconduct for a lawyer to:

175.

174.

173.

of his client trust account.

in his client trust account and that he performs monthly reconciliations

through May 31, 2021 falsely representing that he was never out of trust

Compliance Certificates for the reporting periods covering June 1, 2019

172.

Rule 1.6. requires disclosure of information otherwise protected by conclusion of the proceeding and apply even if compliance (d) The duties stated in paragraphs (a) and (b) continue to the p. 35 As such, Mr. Fojo’s deceit and misrepresentations constitute violations of In the event that any one of the above alleged rule violations is proven by The conduct as set forth above demonstrates that continuing to allow Mr. The ADO will continue to investigate this matter. Under the foregoing circumstances, an interim suspension is necessary The ADO requests that Mr. Fojo be suspended under Rule 37(16)(f). Supreme Court Rule 37(16)(f) states: Immediate summary suspension under Rule 37(16)(f) is appropriate

under these circumstances for the protection of the public and the

186.

the court may deem appropriate. the professional conduct committee for such discipline as of the legal profession. The court may remand the matter to protection of the public and the preservation of the integrity terms and conditions as the court deems necessary for the licensed attorneys or publicly censure attorneys upon such The court may suspend attorneys or disbar New Hampshire

185.

184.

Mr. Fojo Should be Summarily Suspended Pursuant to Supreme Court

disciplinary process for Mr. Fojo’s docketed matter.

The suspension should remain in effect pending completion of the

to protect the public and maintain the integrity of the legal profession.

183.

182.

public.

Fojo to practice law poses a substantial threat of serious harm to the

181.

violation of N.H. R. Prof. Conduct 8.4(a).

clear and convincing evidence, this would necessarily constitute a

180.

Rule 8.4(c).

179. p. 36 In the alternative to the relief requested under Rule 37(16)(f), the ADO Mr. Fojo has engaged in conduct that poses a threat of serious harm to The ADO requests that it be appointed to conduct an inventory of Mr. That this Court find and rule pursuant to New Hampshire

preserve the integrity of the legal profession; or

suspended from the practice of law to protect the public and to

Supreme Court Rule 37(16)(f) that Mr. Fojo should be summarily

Court:

WHEREFORE, the Attorney Discipline Office respectfully prays that this

Fojo’s clients.

such other actions as may be necessary to protect the interests of Mr.

including all funds held by Mr. Fojo in any IOLTA accounts, and to take

Fojo’s client files and other client property in Mr. Fojo’s possession,

189.

is not suspended from the practice of law.

There is a danger that Mr. Fojo will continue this course of conduct if he

and well of being significantly out of trust in another client matter.

the public by misappropriating two client’s personal injury settlements

188.

requests that Mr. Fojo be suspended under 37(9-A).

187.

Mr. Fojo Should be Suspended Pursuant to Supreme Court Rule 37(9-A)

requesting a hearing.

preservation of the integrity of the legal profession, subject to Mr. Fojo p. 37 In the alternative that this Court find and rule pursuant to New Order Mr. Fojo to immediately cease all use of his IOLTA; Order Mr. Fojo to inform all clients of his suspension, and submit Enjoin Respondent from transferring, assigning, hypothecating, or Appoint the ADO in accordance with Supreme Court Rule 37(17) to Assess all expenses that may be incurred by the ADO in the

investigation and prosecution of this matter; and

action as is necessary to protect the interests of his clients;

take possession of Mr. Fojo’s files and accounts and to take such

whether real, personal, beneficial or mixed;

in any manner disposing of or conveying any assets of clients,

37(13)(b),(d);

an affidavit attesting to same, as set forth in Supreme Court Rule

completion of the disciplinary process;

the practice of law on an immediate, interim basis, pending

of harm to the public and that this Court suspend Mr. Fojo from

Conduct, and that his course of conduct creates a substantial risk

continue to practice in conformity with the Rules of Professional

in the course of conduct that substantially impairs his ability to

Hampshire Supreme Court Rule 37(9-A) that Mr. Fojo has engaged

B. p. 38 Enter such further orders as it may deem just and necessary to day of December 2021, to Robert M. Fojo, via the

03302. Esquire, at Preti Flaherty Beliveau & Pachios, PO Box 1318, Concord, NH email and first class mail with a copy to his counsel, William C. Saturley, was delivered on this 17 th aforesaid “Petition for Immediate Interim Suspension from the Practice of Law” Hampshire Supreme Court Attorney Discipline Office, certify that a copy of the I, Elizabeth M. Murphy, Assistant Disciplinary Counsel of the New

Dated: December 17, 2021 By: /s/Elizabeth M. Murphy

Dated: December 17, 2021 By: /s/Mark P. Cornell

protect the public.

H. of Professional Conduct 1.3, 1.4, 1.5, 1.15, 3.3, and 8.4(a) and (c). p. 53 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. 54 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. 55 3

ensure that members of the bar meet those standards. Tocci, 1 p. 55 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. 55 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. 55 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. 55 37(16)(i)." Gallant's Case, 170 N.H. at 53 p. 56 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. 56 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. 56 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. 57 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. 56 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. 57 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. 57 52 N.H. at 1 p. 58 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. 58 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. 58 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. 58 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. 59 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. 59 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. 60 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