The Fogg Of Disbarment

A disbarment from the New Hampshire Supreme Court based on misconduct in two matters.

In the Fogg matter

The [Professional Conduct Committee]  found that the respondent violated this [conflicts] rule when he represented both Ms. Fogg, who had an interest to sell the marital property, and Pan American Fund, an entity interested in purchasing the property. The evidence supporting this finding is clear and convincing. The respondent contends that there was no conflict because his clients had parallel interests. We disagree. Based upon the record, we agree with the PCC’s inference that Ms. Fogg wanted to sell her property at a maximum value ― she had to pay Mr. Fogg within eighteen months and would have wanted to retain any excess proceeds earned by the sale. In contrast, Pan American Fund was considering purchasing the property, and the PCC reasonably inferred that it would seek  the lowest possible purchase price. Thus, the interests of Ms. Fogg and Pan American Fund were in conflict.

He filed a frivolous claim against Ms. Fogg

The record supports the PCC’s finding by clear and convincing evidence that, when the respondent brought the foreclosure action against Mr. Fogg demanding a sum of money, he knew that he had no legal or factual basis to do so.

And in the Florida matter he transferred funds in violation of a federal injunction

As to the Florida matter, the PCC found that the respondent violated Rules 1.2, 1.4, 1.15, 3.4, 8.4(a), and 8.4(c).

All of these rule violations stem from the fact that the federal court in Florida issued an injunction prohibiting Wood or “any and all persons acting under Defendant’s direction or control” from taking any action regarding HPC’s property interests, and that, despite knowing about the court order, the respondent facilitated the sale of property in Idaho and distributed the sale proceeds at the direction of Wood. The respondent asserts that during and after the sale he proceeded in accordance with instructions he received from
Blackport and, therefore, he did not believe he was violating the court order. Specifically, he contends that even though he knew about the injunction, he was uncertain whether Wood had been removed as manager of Blackport and whether Blackport was part of the preliminary injunction. He further asserts that he was not aware of an attempt to remove Blackport as the manager of HPC…

There is ample evidence in the record that clearly and convincingly supports the PCC’s finding that the respondent violated Rule 8.4(a) and (c) because he violated the Rules of Professional Conduct and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Sanction

The respondent’s failure to comply with the federal injunction inflicted injury on the legal system and on his client. Disbursing the funds from the sale of the Idaho property under the direction of Wood, without informing HPC, inflicted injury on third parties, namely, HPC and its investors, who had title to the property and should have been informed about the transfer of the property. With respect to the Haase matter, representing both Ms. Fogg and Pan American Fund while issuing a promissory note and improperly representing the Fogg property as security, inflicted injury on both of the respondent’s clients. Moreover, the respondent made a false statement when he represented to Haase that a $22,350 mortgage existed on the Fogg property and issued a foreclosure notice to Mr. Fogg demanding $47,891.13, without any legal or factual basis for doing so…

The respondent argues that the sanction should be proportional to the various transgressions and, if we determine that the rule violations did occur, then a lesser sanction than disbarment should be imposed. We are not persuaded.

(Mike Frisch)