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In re Milara

Supreme Court of New Jersey

January 22, 2018

IN THE MATTER OF DIEGO P. MILARA AN ATTORNEY AT LAW

          Argued: October 19, 2017

          District Docket Nos. XIV-2013-0502E, VB-2017-0900E

          Al Garcia appeared on behalf of the Office of Attorney Ethics.

          Gerard E. Hanlon appeared on behalf of respondent.

          Ellen A. Brodsky Chief Counsel.

          DECISION

          Bonnie C. Frost, Chair

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

         This matter was before us on a recommendation for censure filed by the District VB Ethics Committee (DEC). The complaint charged respondent with violating RFC 1.3 (lack of diligence); RPC 1.4(b) (failure to keep the client reasonably informed and failure to comply with reasonable requests for information); RPC 1.15(d) (recordkeeping); RPC 5.5(a)(presumably (1)) (practicing law while ineligible); RPC 8.4(b) (presumably RPC 8.1(b)) (failure to cooperate); RFC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), - and RFC 8.4(d) (conduct prejudicial to the administration of justice). For the reasons stated below, we

         Respondent was admitted to the New Jersey bar in 1991. He has no history of final discipline. However, respondent has been ineligible to practice law in New Jersey since September 24, 2012, for his failure to pay his annual assessment to the New Jersey Lawyers' Fund for Client Protection (the Fund). In addition, respondent was temporarily suspended on January 22, 2015, for failure to cooperate with the Office of Attorney Ethics (OAE). In re Milara, 220 N.J. 341 (2015). He was temporarily suspended again, on June 12, 2017, for failure to comply with a fee arbitration determination. In re Milara. 229 N.J. 262 (2017). Respondent remains suspended to date.

         At the outset of the hearing before the DEC, counsel for respondent stipulated to the facts of the complaint. The panel determined to hear arguments only regarding aggravating and mitigating factors, as well as the appropriate quantum of discipline. Therefore, the following recitation of facts comes directly from the formal ethics complaint. Respondent did not appear or otherwise directly participate in the DEC hearing, as R. 1:20-6(c)(2)(D) requires.

         Josephine Carbone (Carbone), grievant, is the managing member of Carbone Developments, LLC. Respondent represented Carbone in a real estate transaction involving property in Bridgewater, New Jersey (the property). Jane Kourakos managed PanHellenic, LLC (PanHellenic). Carbone was also an owner/member of PanHellenic. PanHellenic and Kourakos also were involved in the purchase of the Bridgewater property.

         Prior to the purchase, Kourakos and PanHellenic had engaged the legal services of Christopher Hyde, for matters related to the property, but not for the purchase. Kourakos and PanHellenic owed Hyde over $27, 000 in legal fees. Pursuant to an agreement, $15, 750 was placed in escrow to satisfy Hyde's legal fees. The escrowed funds were held in respondent's attorney trust account (ATA); however, Kourakos, Hyde, and Carbone could not resolve how the escrowed funds were to be distributed.

         On August 18, 2012, Carbone requested that respondent send her a copy of her client file. After several months of delay, on November 6, 2012, respondent informed Carbone that he had sent part of the file. In fact, he had not.

         Previously, on September 10, 2012, because the parties could not resolve the distribution of escrow funds issue, Hyde had suggested that respondent file an interpleader complaint, to which respondent agreed. Soon thereafter, on September 19, 2012, the Court issued an Order declaring respondent administratively ineligible to practice law for failing to pay his annual assessment to the Fund, effective September 24, 2012.

         Over the course of the following month, Hyde sent several e-mails to respondent inquiring as to the status of the interpleader. On October 26, 2012, notwithstanding his ineligible status, respondent assured Hyde that he would file the interpleader "shortly." Respondent separately informed Kourakos that he would file the interpleader by November 30, 2012.

         On December 21, 2012, respondent notified Hyde and Kourakos by way of e-mail, that he had filed the interpleader complaint with the Superior Court of New Jersey, Hudson County, Civil Division on that same day. Throughout this time, beginning in November 2012 and continuing through January 2013, Carbone attempted to contact respondent, presumably about her file.

         Eventually, on January 29, 2013, respondent told Carbone he would be sending the file to her the next day. He did not. On February 11, 2013, respondent once again informed Carbone that he had located her entire file and would be sending it. Once again, he sent nothing. Three days earlier, on February 8, 2013, the court scheduled a hearing on the interpleader for March 7, 2013 and denied respondent's request to deposit the escrow funds into the court's account.

         Respondent was required to serve the order on all parties within five days of its receipt. Thereafter, the court was unable to contact respondent during the week leading up to the hearing; however, on March 6, 2013, respondent contacted the court and explained that he had failed to serve the order on any of ...


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