Attorney Grievance Comm. for the First Judicial Dep't v. Huston (In re Huston)

• Docket Number: Motion No. 2022-05109,Case No. 2022-05739
• Decision Date: 07 March 2023
• Parties: In the MATTER OF Barry S. HUSTON (Admitted as Barry Scott Huston), an attorney and counselor-at law: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Barry S. Huston, (OCA Atty. Reg. No. 1042688), Respondent.
• Court: New York Supreme Court — Appellate Division

184 N.Y.S.3d 57

In the MATTER OF Barry S. HUSTON (Admitted as Barry Scott Huston), an attorney and counselor-at law:

Attorney Grievance Committee for the First Judicial Department, Petitioner,
v.
Barry S. Huston, (OCA Atty. Reg. No. 1042688), Respondent.

Motion No. 2022-05109
Case No. 2022-05739

Supreme Court, Appellate Division, First Department, New York.

Entered March 7, 2023

Attorney Grievance Committee, New York, (Ann Marie Modica-Schaffer, of counsel), for petitioner.

Michelle Aulivola, Esq., for respondent.

Rolando T. Acosta, P.J., Troy K. Webber, Anil C. Singh, Lizbeth González, Bahaati E. Pitt-Burke, JJ.

Per Curiam

Respondent Barry S. Huston was admitted to the practice of law in the State of New York by the Second Judicial Department on April 25, 1973, under the name Barry Scott Huston. By unpublished order dated December 21, 2022, the Appellate Division, Second Department, on its own motion (M286526), transferred this disciplinary proceeding to this Court, thereby conferring jurisdiction over respondent (Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.7 [a] [2]).

In June 2021, the Attorney Grievance Committee for the Tenth Judicial District (AGC) served respondent with a petition containing eight charges of professional misconduct relating to his attorney trust account (escrow account). The petition alleged that respondent violated New York's Rules of Professional Conduct (22 NYCRR 1200.00) rule 1.15 (a) by commingling and misappropriating funds in his law firm's account; rule 1.15 (d) (2) by failing to accurately maintain a ledger or similar record of disbursements and deposits for his law firm's escrow account; rule 1.15 (e) by making cash withdrawals and issuing checks payable to cash against his law firm's escrow account; and rule 8.4 (h) by engaging in conduct that adversely reflects on his fitness as a lawyer based on the misconduct described above.

Respondent interposed an answer and affirmative defenses. By unpublished order entered August 24, 2021, the Appellate Division, Second Department appointed a Referee to hear and report and consider evidence in mitigation and aggravation, if any (M278750). On August 31, 2021, the parties entered into a stipulation amending the verified petition.

On November 17 and 18, 2021, the Referee conducted a hearing. The AGC did not call any witnesses, and instead relied on documentary evidence. Respondent, who was represented by counsel, testified on his own behalf, presented nine character witnesses, and submitted a character letter and documentary evidence. At the conclusion of the hearing, the parties submitted post-hearing briefs. The Referee issued a report dated February 4, 2022,

184 N.Y.S.3d 59

sustaining all eight charges...