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In re Fogle

Supreme Court of New Jersey

April 11, 2018

IN THE MATTER OF KEVIN C. FOGLE AN ATTORNEY AT LAW

          Argued: January 18, 2018

          District Docket No. XIV-2017-0084E Decision

          Joseph A. Glyn appeared on behalf of the Office of Attorney Ethics.

          Respondent did not appear for argument, despite proper service.

          Ellen A. Brodsky Chief Counsel

          Bruce W. Clark, Vice-Chair

         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a motion for reciprocal discipline, filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-14, following respondent's one-year-and-one- day suspension[1] in Pennsylvania 'for his violation of multiple RPCs and Pa.R.D.E.s. The OAE seeks a three-month suspension.

         For the reasons set forth below, we determine to grant the motion for reciprocal discipline and impose a three-month prospective suspension on respondent for his violation of New Jersey RFC 1.4(b) (failure to communicate with the client), RPC 1.15(a) (failure to safeguard funds), RPC 1.15(b) (failure to promptly notify client of receipt of funds and to promptly deliver the monies), RPC 1.15(d) (failure to comply with the recordkeeping requirements of R. l:21-6(c)), RPC 1.16(a)(1) (failure to withdraw from representation of a client when the representation will result in the violation of the RPCs), RFC 1.16(d) (failure to protect the client's interest on termination of representation), RPC 4.2 (communication with a person represented by counsel), RPC 8.1(b) (failure to cooperate with disciplinary authorities), and RPC 8.4(d) (conduct prejudicial to the administration of justice). Although respondent violated a number of Court Rules that are similar to the Pa.R.D.E.s, those violations do not constitute grounds for imposing discipline beyond the RPCs.

         Respondent was admitted to the New Jersey and New York bars in 2014. In 2013, he was admitted to the Pennsylvania bar. At the relevant times, he maintained an office for the practice of law in Harrisburg, Pennsylvania.

         Respondent has no history of discipline in New Jersey. However, the Court entered an Order, effective October 30, 2017, declaring him ineligible to practice based on his failure to comply with the mandatory continuing legal education requirements. He remains ineligible to date.

         On September 21, 2015, the Supreme Court of Pennsylvania (Pennsylvania Court) administratively suspended respondent, effective October 21, 2015, for his failure to comply with the annual registration requirements set forth in Pa.D.R.E. 219. On August 11, 2016, the Pennsylvania Office of Disciplinary Counsel (ODC) issued a Petition for Discipline, charging respondent with unethical conduct in two client matters, plus non-compliance with a number of Pa.R.D.E.s. following his administrative suspension. Respondent did not file an answer to the petition and, thus, the allegations were deemed admitted.

         Despite respondent's default, on November 14, 2016, he appeared at, and participated in, a pre-hearing conference. He also entered into a Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) (Joint Petition) with the ODC, which was approved by the Disciplinary Board of the Pennsylvania Court (Pennsylvania Board) on an unidentified date. The Joint Petition formed the basis for the Pennsylvania Court's February 24, 2017 suspension order. Thus, we rely on the facts set forth in the Joint Petition.

         As stated above, on September 21, 2015, the Pennsylvania Court administratively suspended respondent for his failure to comply with Pa.R.D.E. 219 (September 2015 order). The effective date of the suspension was October 21, 2015.

         Also, on September 21, 2015, Pennsylvania's Attorney Registrar, Suzanne E. Price, sent a certified copy of the September 2015 order to respondent, together with a copy of Pa.R.D.E. 217[2] and 219 and the "relevant" Pennsylvania Board rules governing formerly admitted attorneys. Respondent failed to comply with any of those rules. In particular, he did not notify his litigation clients, Michael G. Hagar and Eileen Tomeo, whom he ultimately "abandon[ed]," of the suspension. He also failed to notify opposing counsel and the Montgomery County Court of Common Pleas. Finally, respondent failed to file the required "Statement of Compliance."

         MICHAEL G. HAGAR MATTER

         On June 3, 2014, Michael G. Hagar retained respondent to represent him in a wrongful eviction action against his former landlord, who also had retained Hagar's $625 security deposit. Pursuant to the terms of a written fee agreement, Hagar paid respondent a $1, 000 flat fee, which he agreed to hold in trust until the fee was earned.

         On an unidentified date, the landlord refunded $477 of the security deposit. Although respondent agreed to hold the funds in trust, he did not deposit the monies in an attorney trust account.

         On September 4, 2014, respondent filed suit against Hagar's former landlord in the Montgomery County Court of Common Pleas. In October 2014, respondent informed Hagar that he had charged him too little for the representation. In March 2015, respondent proposed that he and Hagar enter into a new fee agreement. Hagar refused.

         Respondent and Hagar continued to have regular communication about the matter until mid-April 2015. By June 2015, however, respondent had ignored all of Hagar's text and voice mail messages seeking information about depositions, updates, and the status of the $477 refund.

         Since March 23, 2015, the court's docket has reflected no activity in the litigation. Although respondent remained counsel of record for Hagar, he "abandoned" his client and never disbursed the $477 to him.

         On an unidentified date, Hagar filed a grievance against respondent. On February 17, 2016, ODC sent a DB-7 letter[3] to respondent, by certified mail, return receipt requested, notifying him of the grievance, in addition to his disregard of the September 2015 administrative suspension order. Although respondent signed the return receipt card, he did not submit a reply to the letter or contact ODC.

         On June 24, 2016, ODC sent respondent a DB-7A letter, by regular and certified mail, return receipt requested, notifying him of "additional rule violations" and requesting the production of "Required Records," pursuant to Pennsylvania RPC 1.15(e). Although the certified letter was returned to the ODC with a label stating "return to sender, not deliverable as addressed, unable to forward," respondent received the letter sent by regular mail.

         Respondent ignored the DB-7A letter and did not produce the "Required Records."

         EILEEN TOMEO MATTER

         On January 25, 2015, respondent agreed to represent Eileen Tomeo in an appeal from an eviction, but he did not memorialize their agreement in writing. On that same date, Tomeo paid respondent a $1, 500 advance retainer, which, she understood, he would bill against at a $195 hourly rate. Respondent deposited Tomeo"s check into an unidentified, non-trust account with Citizens Bank.

         On February 2, 2015, respondent appealed the eviction order to the Montgomery County Court of Common Pleas. Attorney David W. Conver represented the landlord, Jefferson Apartments, Inc. (Jefferson).

         On March 24, 2015, respondent wrote to Conver and suggested that their clients resolve the action by entering into a new lease agreement. Without Conver's consent, respondent copied Jefferson on the letter.

         Tomeo rejected the new lease terms. Having now exhausted the advance retainer, respondent billed her for additional services rendered. Tomeo paid him $1, 000 in April and May 2015. Respondent's last contact with Tomeo was in August 2015.

         On October 19, 2015, Conver mailed a trial praecipe to respondent's office. Shortly thereafter, the court mailed respondent a notice of a pre-trial hearing scheduled for February 12, 2016, Respondent failed to notify Tomeo, Conver, and the court of his September 2015 administrative suspension. When he failed to provide the court with the required pre-conference submissions, court personnel attempted to contact respondent, without success, and later learned of his suspension. Accordingly, on February 8, 2016, the court cancelled the pre-trial hearing, permitted Tomeo time to retain a new attorney, and returned the matter to the trial pool. A copy of the order was mailed to respondent, Conver, Tomeo, and court personnel.

         Although respondent remained counsel of record for Tomeo, he "abandoned" her. On an unidentified date, Tomeo filed a grievance against him.

         On March 11, 2016, ODC sent a DB-7 letter to respondent, by certified mail, return receipt requested, notifying him of the grievance and his disregard of the September 2015 order. Because respondent did not sign for the certified letter, it was served on him personally. Respondent did not submit a reply to the letter.

         On June 24, 2016, ODC sent respondent a DB-7A letter, by regular and certified mail, return receipt requested, notifying hint of "additional rule violations" and requesting the production of "Required Records," pursuant to Pennsylvania RPC 1.15(e). Although the certified letter was returned to the ODC with a label stating "return to sender, not deliverable as addressed, ...


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