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In re Frank

Supreme Court of New Jersey

June 19, 2019

In the Matter of Barry N. Frank An Attorney At Law

         District Docket No. XIV-2016-0493E

          Ellen A. Brodsky Chief Counsel



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

         This matter was before us on a certification of the record filed by the Office of Attorney Ethics (OAE), pursuant to R. 1:20-4(f). The complaint charged respondent with violating RPC 1.3 (lack of diligence); RPC 1.4(a) (failure to inform a prospective client of how, when and where the client may communicate with the lawyer); RPC 1.4(b) (failure to keep the client adequately informed of the status of a matter); RPC 1.4(c) (failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); RPC 1.5(a) (unreasonable fee); RPC 1.15(a) (failure to safeguard funds); RPC 1.16(a)(1) (failure to withdraw from the representation if the representation will result in violation of the Rules of Professional Conduct or other law); RPC 5.5(a)(1) (unauthorized practice of law); RPC 8.1(b) (failure to cooperate with disciplinary authorities); RPC 8.4(b) (committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).

         For the reasons set forth below, we recommend respondent's disbarment.

         Respondent was admitted to the New Jersey bar in 1977, to the New York bar in 1982, and to the District of Columbia bar in 1983.

         Respondent has a lengthy ethics history. On September 16, 2014, he was temporarily suspended for failure to cooperate with the OAE in a prior investigation. In re Frank, 219 N.J. 250 (2014).

         On November 2, 2016, respondent defaulted and the Court censured him for failing to cooperate with disciplinary authorities during the investigation of five ethics grievances. Further, in its order, the Court, again, temporarily suspended respondent pending his cooperation with the investigations related to those matters and his compliance with the Court's 2014 Order for temporary suspension. In re Frank, 227 N.J. 57 (2016). He remains suspended to date.

         On November 3, 2016, the Court temporarily suspended respondent for his failure to comply with a fee arbitration determination. Respondent failed to appear before us on that matter. The Court noted that respondent's prior suspension orders remained in effect. In re Frank, 227 N.J. 190 (2016).

         On March 22, 2018, in another default matter, the Court suspended respondent for one year for his violations of RPC 1.1(a) (gross neglect); RPC 1.5(b) (failure to memorialize the rate or basis of the fee); RPC 1.15(d) (recordkeeping violations); RPC 5.3(b) (failure to supervise nonlawyer assistants); RPC 5.4(b) (forming a partnership with a nonlawyer involving the practice of law); RPC 5.5(a)(2) (assisting a person who is not a member of the bar in the unauthorized practice of law); RPC 7.1(a)(2) (making a false or misleading communication about the lawyer or the lawyer's services); RPC 7.5(a) and (c) (using letterhead that is misleading and contains the name of a person who is not actively associated with the firm as an attorney); RPC 8.1(b); and RPC 8.4(a) (assisting another to violate the Rules of Professional Conduct). The Court ordered that, prior to reinstatement, respondent submit to the OAE proof of his fitness to practice law, as attested to by a mental health professional approved by the OAE. In re Frank, 232 N.J. 325 (2018).

         Service of process was proper in this matter. On July 30, 2018, the OAE sent a copy of the complaint to respondent at his home address by certified and regular mail. The regular mail was not returned. The certified mail card was returned without a signature.

         On September 20, 2018, the OAE sent a second letter to respondent by certified and regular mail, stating 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 regular mail was not returned. The United States Postal Service website indicates that a notice was left on September 24, 2018, but the certified mail return receipt has not been returned.

         As of October 15, 2018, respondent had not filed an answer to the complaint, and the time within which he was required to do so had expired. Accordingly, the OAE certified this matter to the Board as a default.

         We now turn to the allegations of the complaint.

         On September 13, 2006, Gladys Guanga, grievant, signed a "Pick-a-Payment" mortgage note with World Savings Bank, FSB, for $300, 000, to refinance a property she owned in Guttenberg, New Jersey. On October 19, 2006, the mortgage was recorded in Hudson County.

         In August 2007, Guanga was a member of a class action lawsuit filed against multiple defendants, including Wachovia Mortgage, FSB (Wachovia) (formerly World Savings Bank) and Wells Fargo Bank, N.A. (Wells Fargo) alleging, in part, that the lending institutions engaged in deceptive trade practices and violated consumer protection laws. On November 1, 2009, Wells Fargo acquired Wachovia. On July 15, 2010, while the class action suit was pending, Guanga defaulted on her mortgage. On September 13, 2010, she received from Wahovia a notice of intent to foreclose. In November 2010, Guanga retained respondent to assist her in obtaining a loan modification. Respondent's retainer for the loan modification was $12, 789. Thereafter, respondent directed Guanga to stop making mortgage payments.

         On December 10, 2010, a settlement was reached in the class action lawsuit. The settlement agreement provided the sole remedy of settlement for the class members against Wells Fargo. Guanga did not exercise her right under the agreement to "opt out."

         In accordance with the settlement agreement, Guanga received a $178.04 settlement check. As of December 5, 2012, the settlement check had not been cashed. The settlement agreement also required Wells Fargo to make loan modifications ...

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