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In re Linder

Supreme Court of New York, First Department

October 31, 2013

In the Matter of Jacqueline S. Linder (admitted as Jacqueline Susannah Linder), an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Jacqueline S. Linder, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Jacqueline S. Linder, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on September 24, 2008.

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Vitaly Lipkansky, of counsel), for petitioner.

Respondent pro se.

David Friedman, Justice Presiding, Rolando T. Acosta, Paul G. Feinman, Judith J. Gische, Darcel D. Clark, Justices.

PER CURIAM

Respondent Jacqueline S. Linder was admitted to the practice of law in the State of New York by the Second Judicial Department on September 24, 2008. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Judicial Department.

The Departmental Disciplinary Committee moves for an order pursuant to Rules of the Appellate Division, First Department (22 NYCRR) § 603.4(e)(1)(i) and (iii) immediately suspending respondent from the practice of law until further order of the Court based upon her willful failure to cooperate with the Committee's investigation of allegations of professional misconduct and other uncontested evidence of professional misconduct which immediately threatens the public interest.

The Committee opened a sua sponte investigation into respondent's professional conduct as a result of two dishonored check notifications received from the Lawyers' Fund for Client Protection in connection with respondent's IOLA (escrow) account. The first notification, dated November 18, 2011, advised that a check in the amount of $2, 000 issued on respondent's escrow account had been returned on October 21, 2011 due to insufficient funds. The second notification, dated January 11, 2012, advised that an escrow check in the amount of $6, 300 was similarly dishonored on December 14, 2011. The Committee forwarded respondent a copy of the dishonored checks. Respondent was asked to provide an explanation as to the cause, and for her to include her bank and bookkeeping records pertaining to her escrow account during the preceding six-month period. Thereafter, respondent communicated with the Committee in writing and by telephone, requesting and receiving extensions of time to answer the Committee's inquiries until January 11, 2012. When that date came and no response was received, the Committee wrote respondent on January 17, 2012, informing her that she had 10 days to submit a response and no further extensions would be granted. In her subsequent deposition, respondent testified that she never received this letter.

In April 2012, via court-ordered subpoena, the Committee obtained the bank records for respondent's escrow account at Apple Bank for "audit" period of December 30, 2010 to January 31, 2012. The Committee's investigative accountant used these records to create a ledger (an Excel spreadsheet) in which the bank statements, canceled checks and deposit slips were used to reconstruct the account transactions for the audit period.

By letter dated July 23, 2012, the Committee sent respondent a copy of the Excel spreadsheet and directed her to fill in the column entitled "Client Matter" for every deposit and disbursement listed. On July 30, respondent telephoned the Committee requesting additional time to submit all previously requested information and records. The Committee agreed to extend respondent's time to respond to August 30, and then another extension to September 20, 2012. Despite these extensions and a reminder letter dated September 25, 2012, respondent did not provide the promised information.

On October 18, 2012, this Court issued a subpoena duces tecum directing respondent to appear on November 7, 2012 and to bring with her various escrow records, particularly canceled checks, deposit slips, a ledger and retainer agreements. On October 26, 2012, respondent faxed a letter to the Committee wherein she promised to provide the information by October 30, and advised the Committee of her new office address at Fulton Street, although she was still accepting mail at her previous office location. Respondent did not submit the records by October 30, 2012. However, it should be noted that Hurricane Sandy hit New York City on October 29, 2012, and lower Manhattan, including Fulton Street as well as the Committee's offices, were shut down for several days.

On November 29, 2012, respondent appeared, pro se, for her deposition, bringing with her bank statements and copies of checks, and the Excel spreadsheet with some of the "Client Matter" column filled in, as requested. Respondent did not bring the ledger with her, nor did she bring deposit slips. The Committee questioned respondent about her limited and sporadic cooperation with its investigation into the two dishonored escrow checks. Respondent testified that she did communicate on several occasions; she was not deliberately ignoring the Committee; she was busy with her law practice; and once she was served with the subpoena, she believed that she did not have to respond to the Committee's inquiries until the deposition.

The Committee then questioned respondent about her escrow account. According to the bank records, respondent's testimony and her case file, on or about June 29, 2011, respondent, who represented the seller in a real estate transaction deposited a downpayment check in the amount of $10, 500 into her escrow account. Respondent testified that the day before she made this deposit, the balance in the escrow account was $1, and she was required to maintain intact the downpayment funds in her account until the closing, which took place on December 1, 2011. From July 7 through November 30, 2011, respondent disbursed almost all of the downpayment via 24 separate transactions, all but two of which were by checks made payable to herself. There was only one other deposit made to the escrow account during this time period, for $50 on November 15, leaving a balance in the escrow account of $81.75 on November 30, 2011.

On October 21, 2011, the day the $2, 000 check was dishonored, the balance in respondent's escrow account was approximately $1, 096 and, on December 14, 2011, the day the $6, 300 check was dishonored, the balance was about $1, 331. The closing went forward on December 1, 2011. Respondent informed the seller that she did not have the downpayment funds. In May 2013, the seller advised the Committee that respondent ...


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