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In re Milara

Supreme Court of New Jersey

November 14, 2018

In The Matter of Diego P. Milara An Attorney At Law

         District Docket Nos. VI-2015-0027E; VI-2016-0005E; XIV-2016-0253E; and XIV-2017-0415E

          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.

         These matters were before us by way of default: DRB 17-427 at our March 2018 session, and DRB 18-170 at our July 2018 session. We have consolidated both matters for disposition.

         DRB 17-427 was filed by the District VI Ethics Committee (DEC), pursuant to R. 1:20-4(f). The complaint charged respondent with violations of RPC 1.1(a) (gross neglect) (two counts); RPC 1.3 (lack of diligence) (two counts); RPC 1.4 (presumably (b)) (failure to communicate with the client) (two counts); RPC 1.16(d) (failure to protect a client's interests on termination of the representation) (one count), RPC 8.1(b) (failure to respond to a lawful demand for information by disciplinary authorities) (two counts); and RPC 8.4(a) (violate or attempt to violate the Rules of Professional Conduct) (two counts).

         DRB 18-170 was filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The complaint charged respondent with violations of RPC 1-1(a); RPC 1.3; RPC 1.4(b); RPC 8.1(b) and RPC 8.4(d) (conduct prejudicial to the administration of justice) for failure to comply with the requirements of R0 1:20-20 governing suspended attorneys; RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and a second count of RPC 8.4(d).

         For the reasons set forth below, based on totality of respondent's conduct in both matters, we determined to impose a one-year prospective suspension.

         Respondent was admitted to the New Jersey bar in 1991 and the New York bar in 1993. He has been ineligible to practice law in New Jersey since September 24, 2012, for failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection (the Fund). Respondent was temporarily suspended, effective January 22, 2015, for failure to cooperate with the OAE. In re Milara, 220 N.J. 341 (2015). He was temporarily suspended again, effective June 12, 2017, for failure to comply with a fee arbitration determination. In re Milara, 229 N.J. 262 (2017). He remains suspended to date.

         Finally, on October 4, 2018, respondent was censured for violating RPC 1.3, RPC 5.5(a)(1) (unauthorized practice of law), RPC 8.1(b), and RPC 8.4(c). In re Milara, __N.J.__(2018). In that matter, respondent failed to serve an order on parties in accordance with a court order, practiced law while ineligible, failed to maintain his client's file, failed to cooperate with disciplinary authorities, and made several misrepresentations to the client. In the Matter of Diego P. Milara, DRB 17-274 (January 22, 2018).

         We now turn to the facts of each matter.

         DRB 17-427 (District Docket Nos. VI-2015-0027E and VI-2016-0005E)

         Service of process was proper. On June 13, 2017, the DEC sent a copy of the amended complaint to respondent, in accordance with R. 1:20-4(d) and R. 1:20-7(h), by both regular and certified mail, return receipt requested, at his Newark mailing address. The Court had used that address to serve the May 12, 2017 Order suspending respondent, effective June 12, 2017. The certified mail was returned marked "Return to Sender - Unclaimed - Unable to Forward." The regular mail envelope was not returned.

         On August 29, 2017, the DEC sent a second letter to respondent, at the same address, by regular and certified mail, return receipt requested, informing him that, if he failed to file a verified answer to the complaint within five days of the date of the letter, the allegations of the complaint would be deemed admitted, the entire record would be certified directly to us for the imposition of discipline, and the complaint would be deemed amended to include a violation of RPC 8.1(b). The certified mail envelope was returned marked "Return to Sender - Not Deliverable as Addressed - Unable to Forward". The regular mail was not returned.

         The time within which respondent may answer has expired. As of October 20, 2017, the date of the certification of the record, no answer had been filed by or on behalf of respondent.

         ALLEGATIONS OF THE COMPLAINT COUNT ONE (The Zubizarreto Matter)

         In January 2014, grievant Dania Zubizarreto and her husband, Pedro, retained respondent, for a $2, 000 fee, to negotiate a mortgage modification with Bank of America. Zubizarreto initially paid respondent $1, 000. Respondent sent a letter of representation to Bank of America regarding the mortgage modification, on January 8, 2014. Soon thereafter, however, he ceased communication with Zubizarreto.

         Eventually, Zubizarreto contacted respondent's law partner, Eric Marmolejo, but he had no information regarding the mortgage modification or respondent's whereabouts, was unable to find her client file, and asserted that he was unable to help her. About one year later, in February 2015, the Zubizarretos' home went into foreclosure. According to the complaint, respondent's failure to file the appropriate papers with the bank and the "abandonment" of his clients resulted in the foreclosure action on their home. Zubizarreto hired another firm that successfully completed the mortgage modification.

         On five occasions during the investigation, the DEC sent correspondence to respondent, requesting a written reply to the grievance, as well as any supporting documentation. Respondent replied to none of them.

         COUNT TWO (The Tsapisnos Matter)

         In 2012, Nicholas Tsapisnos retained respondent to file a bankruptcy petition for a $1, 600 flat fee. On numerous occasions, respondent informed Tsapisnos that the creditors' meeting associated with his petition had been cancelled and rescheduled. Tsapisnos eventually learned that respondent had never filed the bankruptcy petition on his behalf. Tsapisnos retained new counsel, for an additional $1, 800 fee, to file a bankruptcy petition and ultimately received a discharge.

         On two occasions during the course of the investigation, the DEC sent correspondence to respondent, requesting a written response to the grievance, along with any supporting documentation. Respondent did not reply to either request.

         DRB 18-170 (District Docket No. XIV-2016-0253E and XIV-2017-0415E)

         Service of process was proper. On January 29, 2018, the OAE sent respondent a copy of the complaint to his home address, in accordance with R. 1:20-7(h), by regular and certified mail. On March 27, 2018, the certified mail was ...


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