In re Barry
| Decision Date | 28 October 2021 |
| Docket Number | PM-144-21 |
| Citation | 2021 NY Slip Op 05916 |
| Parties | In the Matter of Peter Hughes Barry, a Suspended Attorney. (Attorney Registration No. 4260097.) |
| Court | New York Supreme Court |
Calendar Date: August 16, 2021
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Anna E. Remet of counsel), for Attorney Grievance Committee for the Third Judicial Department.
Law Office of James E. Long, Esq., Albany (James E. Long of counsel), for respondent.
Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
Respondent was admitted to practice by this Court in 2004 and has listed a business address in the City of Saratoga Springs, Saratoga County with the Office of Court Administration. Based upon his failure to cooperate with an investigation into his alleged misconduct, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) sought respondent's interim suspension (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.9 [a] [1], [3]; Rules of App Div, 3d Dept [22 NYCRR] § 806.9). Respondent did not respond to the motion and, by November 2018 order, this Court granted AGC's motion and suspended respondent from the practice of law indefinitely, pending his cooperation with AGC's investigation (166 A.D.3d 1373 [2018]).
Thereafter AGC commenced an investigation into allegations that respondent had continued to practice law while suspended in contravention of this Court's November 2018 order. Accordingly, AGC moved for an order immediately disbarring respondent for engaging in the unauthorized practice of law or, alternatively, finding respondent in contempt of the November 2018 order and sanctioning him as a result (see Judiciary Law § 90 [2]). By October 2019 order, this Court granted that part of AGC's motion seeking to find respondent in contempt, found that such conduct constituted conduct prejudicial to the administration of justice and suspended respondent from the practice of law for a period of one year (176 A.D.3d 1474 [2019]). Respondent has not applied for his reinstatement and remains suspended to date.
AGC now seeks to again hold respondent in contempt of the 2018 order of suspension, alleging that respondent has engaged in additional instances of the unauthorized practice of law previously unknown to the Court. Further, AGC alleges that respondent has engaged in conduct in contempt of the 2019 order suspending him for one year. Alternatively, AGC asks this Court to again suspend respondent pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9 (a) (3) and (5) based upon either his failure to cooperate with its investigation into two additional client complaints or due to uncontroverted evidence of misconduct arising from his management of his attorney escrow account and his failure to abide by his biennial registration requirement. Respondent opposes the motion and AGC has in turn submitted a reply with permission of this Court.
Turning first to that part of AGC's motion seeking to find respondent in contempt, an attorney who violates a disciplinary order of this Court may be found in contempt of court and sanctioned accordingly (see Judiciary Law § 90 [2]). This Court has treated the manner of contempt contemplated in Judiciary Law § 90 (2) as akin to a finding of criminal contempt, which requires that AGC establish beyond a reasonable doubt that a respondent willfully violated "'a lawful order of the court clearly expressing an unequivocal mandate'" (Town of Copake v 13 Lackawanna Props., LLC, 73 A.D.3d 1308, 1309 [2010], quoting Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl Conservation of State of N.Y., 70 N.Y.2d 233, 240 [1987]; see Matter of Marmor, 71 A.D.3d 30, 31-32 [2009], mod 82 A.D.3d 1717 [2011]; Matter of Roberts, 245 A.D.2d 951, 952 [1997]; Matter of Abbott, 175 A.D.2d 396, 398 [1991], appeal dismissed 78 N.Y.2d 1124 [1991]; see also Matter of Kalpakis, 67 A.D.3d 185, 187 [2009]). Moreover, where as here, the contempt motion seeks expedited relief in the absence of a fact-finding hearing, we have required that the motion be supported by uncontroverted evidence of a knowing violation of that order via documentary proof or admissions by the attorney in question (see Matter of Attorneys in Violation of Judiciary Law § 468-a [Campito], 179 A.D.3d 1346, 1347 [2020]; Matter of Meagher, 178 A.D.3d 1351, 1353 [2019]).
In support of its allegation that respondent is in contempt of the 2018 order of suspension, AGC asserts that it has recently discovered that respondent was involved in several real estate transactions over and above those that were previously raised in AGC's 2019 contempt motion that resulted in his one-year suspension. To this end, AGC submits records demonstrating that respondent wrote various checks from his attorney escrow account during the period he was suspended, including several to cash, as part of his role in these additional transactions. Moreover, AGC contends that respondent concealed the existence of these transactions despite being the subject of the 2019 motion seeking to hold him in contempt for similar conduct related to two other transactions. In response, respondent contends that he did not intentionally conceal his involvement in these transactions in order to deceive this Court; rather, at the time of the motion practice, he was maintaining his position that he could continue his involvement with these various real estate transactions in his role as a real estate broker.
The language in our November 2018 order suspending respondent clearly forbade him from "hold[ing] himself out in any way as an attorney and counselor-at-law in this State" (166 A.D.3d at 1374). Noting that language, we emphasize that a suspended attorney's continuing use of any medium that conveys that he or she is an attorney in good standing is improper (see Judiciary Law § 478; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.15; see also Matter of Attorneys in Violation of Judiciary Law § 468-a [Campito], 179 A.D.3d at 1347; Matter of Elliott, 118 A.D.2d 293, 295 [1986]). Thus, regardless of respondent's beliefs regarding the propriety of his role and involvement in those transactions, it is indisputable that his continued use of his attorney escrow account was forbidden, and the fact that he was contesting the allegations of contempt in the context of the prior motion does not excuse his actions (see Matter of Herzberg, 163 A.D.3d 220, 225-226 [2018]; Matter of Veski, 42 A.D.3d 122, 124 [2007]; Matter of Brown, 31 A.D.3d 46, 50-52 [2006]). We therefore grant AGC's motion in part, find respondent in contempt of this Court's order and further find that such conduct constitutes conduct prejudicial to the administration of justice (see Matter of Meagher, 178 A.D.3d at 1353; see also Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d]). However, we find that AGC has not met its burden as to the remainder of the allegations concerning respondent's purported contempt, and we therefore deny that part of its motion without prejudice to further formal disciplinary proceedings, should AGC deem them appropriate (see Matter of Giovati, 171 A.D.3d 214, 215 [2019]). [1]
Turning to that part of AGC's motion seeking an interim suspension for respondent's failure to cooperate with its investigation, Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9 (a) (3) provides that the mere failure to comply with a lawful demand of AGC during its investigation is sufficient to form the basis for a suspension (see Matter of Krinsky, 195 A.D.3d 1149, 1150-1151 [2021]). Respondent does not directly address his failure to provide a response to AGC concerning the two recent client complaints. Accordingly, we deem those allegations uncontroverted and find that AGC has sufficiently established respondent's failure to respond to multiple notices directing him to address the allegations in those complaints and that such conduct immediately threatens the public interest. Further, we find that respondent's submission of a response to the instant motion is insufficient to demonstrate his compliance with AGC's investigations (see id. at 1151; see also Matter of Siegel, 193 A.D.3d 1177, 1178 [2021]; Matter of Burney, 183 A.D.3d 1005, 1006-1007 [2020]; Matter of Tan, 164 A.D.3d 1537, 1538 [2018]). Respondent is required to provide a direct response to AGC in order to allow it to complete its investigatory functions.
Further AGC also seeks to suspend respondent based upon uncontroverted evidence of misconduct (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.9 [a] [5]; see generally Matter of Giuliani, 197 A.D.3d 1 [2021]). To this end, AGC has presented clear evidence that respondent wrote various checks from his escrow account to cash. In response, respondent admits his conduct and explains that he did so on the advice of his banking institution, and he then used those funds to purchase cashier's checks to issue to his clients or other entities in the course of various transactions. However, Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15 (e) states that checks written by an attorney from his or her escrow account "shall be made only to a named payee and not to cash." The rule is clear and unambiguous, and respondent was under no circumstances permitted to write checks to cash from his escrow account, regardless of whether he was relying on the advice of his banking institution (see Matter of Cassidy, 181 A.D.3d 51, 53 [2020]; Matter of Kaplan, 113 A.D.3d 184, 186 [2013]; see also Simon's NY Rules of Prof. Conduct § 1.15:58). We therefore find that AGC has submitted uncontroverted evidence of misconduct and grant that part of AGC's...
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