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In re Barclay

Supreme Court of New York, Second Department

December 26, 2013

In the Matter of Ingrid Barclay, a suspended attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Ingrid Barclay, respondent. (Attorney Registration No. 2436897)

DISCIPLINARY proceeding instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. By decision and order of this Court dated November 21, 2012, the respondent was suspended in the interim pursuant to 22 NYCRR 691.4(l)(1)(i), (ii), and (iii); the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts was authorized to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated June 20, 2012; and the issues raised were referred to the Honorable Jerome M. Becker, as Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on November 13, 1991.

Diana Maxfield Kearse, Brooklyn, N.Y. (Colette M. Landers of counsel), for petitioner.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, DANIEL D. ANGIOLILLO, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a petition dated June 20, 2012. Following a hearing held on January 24, 2013, the Special Referee sustained all of the charges set forth in the petition. The Grievance Committee now moves to confirm the report of the Special Referee and for imposition of such discipline as the Court deems just and appropriate. Although served with a copy of the motion, the respondent has not submitted any papers in response or requested additional time in which to do so.

Charge one alleges that the respondent engaged in a pattern and practice of failing to safeguard, and converting, funds entrusted to her as a fiduciary, incident to her practice of law, in violation of rules 1.15(a) and (b), and 8.4(c) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0). The respondent maintained an attorney escrow account at Capitol One Bank, entitled "Ingrid Barclay, Escrow Management Account."

On or about August 18, 2006, the respondent represented Martin John at a real estate closing regarding premises in Brooklyn (hereinafter the subject premises). The respondent also represented Martin John in an action entitled Martin John v Geraldine John in the Supreme Court, Kings County (hereinafter the John action). At the closing, the attorney for Geraldine John served the respondent with an order to show cause signed by Justice Eric Prus dated August 17, 2006, in the John action, in which Justice Prus ordered that any and all monies received on behalf of Martin John relative to the closing of the sale of the subject premises be immediately placed in an escrow account of the counsel of either Geraldine John or Martin John, and further restrained Martin John and any persons acting under his direction from transferring these monies, pending further order of the court.

At the closing, the respondent received a check in the sum of $41, 903.40 on behalf of Martin John that was payable to her, as attorney. On or about September 5, 2006, the respondent deposited that check into her escrow account. The respondent knew that she was required to maintain those funds in escrow until further order of the court. Between September 2007 and September 2009, the respondent depleted the funds by distributing $11, 000 to Martin John, and by taking or using the balance for herself.

The respondent received a second court order, dated August 18, 2011, in which Justice Prus ordered the respondent to release $24, 000 to Cheryl S. Solomon, the attorney for Geraldine John. The respondent no longer had in her possession the funds she was required to maintain. On or about September 1, 2011, to September 9, 2011, the respondent deposited into her escrow account the sum of $25, 000 that she borrowed from a friend. On or about September 9, 2011, the respondent tendered the sum of $24, 000 from her escrow account by check payable to Cheryl Solomon, as attorney. On December 1, 2011, Justice Prus issued an order authorizing the respondent to "release the escrowed funds held by her to Martin John." To date, the respondent has not given any additional funds to Martin John.

In relation to a matter involving a different client, on or about July 27, 2010, the respondent deposited a check in the sum of $36, 000 from Zengsong Lin into her escrow account, representing the down payment on a contract for the sale of real property owned by her client, Delroy Williamson. The respondent was required to maintain those funds in escrow until at least March 8, 2011. Between July 27, 2010 and March 8, 2011, the respondent withdrew $8, 500 of those funds for herself or issued checks against those funds to pay her personal bills. By January 31, 2011, the balance in the respondent's escrow account had been depleted to $27, 411.76.

Charge two alleges that the respondent knowingly and intentionally violated a court order based on the aforementioned allegations, in violation of rule 8.4(c), (d), and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0).

Charge three alleges that the respondent improperly deposited personal funds in her escrow account, and improperly commingled personal and/or business funds with funds entrusted to her as a fiduciary, incident to her practice of law, in violation of rules 1.15(a) and (b), and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0). Between in or about June 2006 through in or about September 2011, the respondent deposited personal funds into her attorney escrow account, wherein she maintained funds entrusted to her as a fiduciary, and failed to withdraw her legal fees from her attorney escrow account when earned.

Charge four alleges that the respondent failed to maintain a ledger book or similar record of deposits into and withdrawals from her IOLA account, in violation of rules 1.15(d) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0). The respondent failed to maintain a ledger book or similar record of her attorney escrow account showing: the source of all funds deposited therein; the names of all persons for whom funds were held; the amount of such funds; the charges or withdrawals from the account; and the names of all persons to whom such funds were disbursed.

Charge five alleges that the respondent improperly drew checks payable to "cash" from her attorney escrow account, in violation of rules 1.15(e) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0). From in or about June 2006 through in or about September 2011, the respondent issued approximately 80 checks payable to "cash, " totaling $26, 120. Charge six alleges that the respondent improperly designated her attorney escrow account, in violation of rule 1.15(b)(2) of the Rules of Professional Conduct (22 NYCRR 1200.0). The respondent ...


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