In re Barry, PM–165–19
| Decision Date | 24 October 2019 |
| Docket Number | PM–165–19 |
| Citation | 176 A.D.3d 1474,110 N.Y.S.3d 758 |
| Parties | In the MATTER OF Peter Hughes BARRY, a Suspended Attorney. (Attorney Registration No. 4260097) |
| Court | New York Supreme Court — Appellate Division |
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.
Corrigan, McCoy & Bush, PLLC, (Scott W. Bush of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine and Aarons, JJ.
MEMORANDUM AND ORDER ON MOTION
Respondent was admitted to practice by this Court in 2004 and lists 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 suspension pursuant to Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.9(a)(1) and (3) and Rules of the Appellate Division, Third Department (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 indefinitely, pending his cooperation with AGC's investigation ( 166 A.D.3d 1373, 86 N.Y.S.3d 812 [2018] ). He remains suspended to date.
AGC now moves for an order pursuant to Judiciary Law §§ 90(2) and 486 disbarring respondent without further proceedings based upon allegations that respondent has continued to practice law while suspended or, in the alternative, finding respondent in contempt of this Court's November 2018 suspension order. AGC has further submitted a supplemental affidavit detailing additional allegations of respondent's unauthorized practice of law. Respondent has submitted documents in opposition contending that his actions did not constitute the practice of law. AGC has submitted a reply, and we have heard the parties at oral argument.
Our November 2018 suspension order expressly forbids respondent from "hold[ing] himself out in any way as an attorney and counselor-at-law in this State" during the term of his suspension ( id. at 1374, 86 N.Y.S.3d 812 ). In its motion, however, AGC has provided uncontroverted documentary evidence concerning five separate real estate transactions establishing that respondent violated that directive. Specifically, various interested parties to the transactions – at least one of whom had prior dealings with respondent in advance of his suspension – all expressed their belief that respondent was acting as an attorney, and several documents from those transactions helped substantiate that belief, as they identified respondent as an attorney in some capacity or another.1 Moreover, respondent's issuance of multiple checks from his attorney escrow account and his repeated utilization of his law office email address while communicating with interested parties in those transactions only served to reinforce the misconception that he was an attorney in good standing (see e.g. Matter of Herzberg , 163 A.D.3d 220, 226 n 4, 82 N.Y.S.3d 9 [2018] ; Matter of Kalpakis , 67 A.D.3d 185, 186–187, 885 N.Y.S.2d 748 [2009] ; Matter of Brown , 31 A.D.3d 46, 49, 814 N.Y.S.2d 31 [2006] ; Matter of Gill , 3 A.D.3d 109, 110, 770 N.Y.S.2d 71 [2004] ; Matter of Apollon , 233 A.D.2d 95, 96–98, 662 N.Y.S.2d 815 [1997] ).
Collectively, we find that respondent's actions fostered the impression that he was a licensed attorney and counselor-at-law in this state in good standing, and that conduct was in contempt of the specific directive in our November 2018 order of suspension (see Judiciary Law § 90[2] ; see also Matter of Marmor , 71 A.D.3d 30, 31–32, 890 N.Y.S.2d 833 [2009] ; Matter of Kalpakis , 67 A.D.3d at 187, 885 N.Y.S.2d 748 ; Matter of Ladas , 22 A.D.3d 168, 169, 804 N.Y.S.2d 519 [2005] ; Matter of Przybyla , 4 A.D.3d 8, 10, 769 N.Y.S.2d 815 [2003] ; Matter of Abbott , 175 A.D.2d 396, 397–398, 572 N.Y.S.2d 467 [1991], appeal dismissed 78 N.Y.2d 1124, 578 N.Y.S.2d 880, 586 N.E.2d 63 [1991] ). Further, we conclude that respondent's contemptuous actions necessarily constituted conduct prejudicial to the administration of justice warranting the imposition of discipline (see Judiciary Law § 90[2] ; see generally Matter of Brecker , 309 A.D.2d 77, 78–79, 764 N.Y.S.2d 455 [2003] ; Matter of Klagsbrun, 279 A.D.2d 192, 193–194, 717 N.Y.S.2d 297 [2000], appeal dismissed 96 N.Y.2d 846, 729 N.Y.S.2d 664, 754 N.E.2d 766 [2001] ; Matter of Pollack , 268 A.D.2d 153, 154–155, 706 N.Y.S.2d 120 [2000] ). We therefore grant that part of AGC's motion, find respondent in contempt of this Court's order and impose a one-year suspension for his misconduct.
ORDERED that the motion of the Attorney Grievance Committee for the Third Judicial Department is granted in part and denied in...
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