Appellate Division: Second Judicial Department

M218133

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN

LEONARD B. AUSTIN, JJ.

2016-05620 In the Matter of Richard J. Barrett, admitted as Richard John Barrett, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Richard J. Barrett, respondent. (Attorney Registration No. 2951325)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against him pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee in connection with the investigation of multiple complaints of professional misconduct filed against him, and other uncontroverted evidence of professional misconduct; (2) to authorize the institution and prosecution of a disciplinary proceeding against the respondent based upon the allegations of professional misconduct alleged in a verified petition dated June 2, 2016; and (3) to refer the issues raised to a 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 March 3, 1999, under the name Richard John Barrett.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), the respondent, Richard J. Barrett, admitted as Richard John Barrett, is immediately suspended from the practice of law in the State of New York, pending further order of the Court; and it is further,

ORDERED that the respondent, Richard J. Barrett, admitted as Richard John Barrett, shall promptly comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of this Court, the respondent, Richard J. Barrett, admitted as Richard John Barrett, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application, or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Richard J. Barrett, admitted as Richard John Barrett, based on the verified petition dated June 2, 2016; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street, Brooklyn, New York 11201, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this decision and order on motion, the respondent, Richard J. Barrett, admitted as Richard John Barrett, shall serve a copy of his answer to the verified petition dated June 2, 2016, upon the Grievance Committee and the Special Referee, appointed herein, and file the original with the Court; and it is further,

ORDERED that the issues raised by the verified petition and any answer thereto are referred to the Honorable Jerome M. Becker, c/o Douglas Becker, Esq., Joseph P. Day Co., 9 East 40th Street, 8th Floor, New York, New York 10016, as Special Referee, to hear and report, and to submit a report, which contains his findings on the issues, within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Richard J. Barrett, admitted as Richard John Barrett, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to comply with the lawful demands of the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts in connection with the investigation of multiple complaints of professional misconduct filed against him, and other uncontroverted evidence of professional misconduct.

The instant motion emanates from an investigation by the Grievance Committee of multiple complaints of professional misconduct filed against the respondent.

The Complaints of Robert F. Beagen and Stephanie Burke, Esq.

In June 2015, the Grievance Committee received a complaint of professional misconduct against the respondent filed by his client in a matrimonial action, Robert F. Beagen, and a complaint filed by Stephanie Burke, Esq, the attorney for Mr. Beagen's former spouse. According to the complaints, in January 2015, Mr. Beagen issued a check to the respondent, in the amount of $125,000 as a partial settlement of the divorce action. In May 2015, the respondent issued a check in the sum of $125,000 payable to Mr. Beagen's former spouse, which was subsequently dishonored. Although the respondent issued a replacement check, it was discovered that the respondent's bank account had been closed, and, therefore, no funds were available.

The Grievance Committee forwarded the Beagen and Burke complaints to the respondent by letters dated June 26, 2015. The respondent was asked to provide his written answers within 10 days of his receipt thereof. Neither letter was returned by the United States Postal Service (hereinafter the USPS). No response was received from the respondent. A second request was made by the Grievance Committee by letter dated July 15, 2015. On July 21, 2015, the respondent received an extension in which to submit his answers until July 31, 2015. Although the respondent received a further extension, until August 3, 2015, no responses to the Beagen and Burke complaints were received from the respondent. By letter dated August 5, 2015, the Grievance Committee sent the respondent a third request for his answers to the Beagen and Burke complaints, by first class and certified mail, and directed him to submit his answers by August 12, 2015. The letter sent to the respondent by first class mail was not returned as undeliverable. The letter sent to the respondent by certified mail was returned by the USPS with the notation "Refused."

Pursuant to subpoena, the Grievance Committee obtained the relevant bank records for the respondent's attorney IOLA account no. ending 5751, at Victory State Bank, entitled "Richard J. Barrett, Attorney at Law, IOLA Account" (hereinafter the IOLA account). The bank records reflect that on January 8, 2015, Mr. Beagen's check no. 169 in the amount of $125,000 was deposited into the respondent's IOLA account. Further, the bank records confirm that on May 14, 2015, the respondent's IOLA check no. 1387, made payable to Mr. Beagen's former spouse in the amount of $125,000, was presented for payment, but was dishonored as the balance in the IOLA account was only $20.97.

The Complaint of Michael A. Tursi

In July 2015, the Grievance Committee received a complaint of professional misconduct against the respondent from Michael A. Tursi. According to the complaint, Mr. Tursi and his two siblings were each entitled to receive $15,000 as beneficiaries under the last will and testament of their uncle, who died on January 1, 2009. The uncle's house was sold later that year, but Mr. Tursi claimed that he and his siblings had not received their bequests almost six years later. At one point, the respondent issued checks for $15,000 to Mr. Tursi and his two siblings, and told Mr. Tursi that he was doing so from his own funds. However, the respondent requested that they hold the checks until money was transferred to cover the checks. The respondent later asked Mr. Tursi and his two siblings not to cash the checks.

By letter dated August 3, 2015, sent by first class and certified mail, the Grievance Committee forwarded the Tursi complaint to the respondent at his office address, requesting that he submit a written answer within 10 days of his receipt thereof. The letter sent by first class mail was not returned as undeliverable; however, the letter sent by certified mail was returned by the USPS with the notation "Refused."

The records for the sale of Mr. Tursi's uncle's house and the respondent's bank records, obtained by the Grievance Committee, confirm that the respondent misappropriated the proceeds of the sale. Specifically, the respondent received two checks as a result of the transaction, a check in the sum of $102,372.84, which he deposited into his IOLA account, and a check in the sum of $40,000, which he deposited into account no. ending 5764, at Victory State Bank, entitled "Richard J. Barrett, Attorney at Law" (hereinafter the business account). On November 18, 2009, when the $102,372.84 check was deposited, the balance in the IOLA account was $46.78, and the respondent subsequently disbursed 11 checks to himself, totaling $60,500, through February 11, 2010, for his own use and benefit. No other deposits were made to the IOLA account during this period. Additionally, on November 18, 2009, when the $40,000 check was deposited, the balance in the business account was negative $1,077.00, and the respondent subsequently depleted $39,518.79 of estate funds for his own use and benefit, through November 25, 2009.

The Complaint of Steven C. Martin

In or about December 2015, the Grievance Committee received a complaint of professional misconduct against the respondent from Steven C. Martin. According to the complaint, Mr. Martin retained the respondent in October 2012 to represent him in connection with his divorce and paid him $24,250. Mr. Martin alleged that the respondent never informed him about case activity, did not provide him with correspondence related to the case, and never sent him itemized bills as required.

By letter dated December 14, 2015, sent by certified mail, the Grievance Committee forwarded the Martin complaint to the respondent at his home and office addresses, requesting that he submit a written answer within 10 days of his receipt thereof. The letter sent to the respondent's home was delivered on December 17, 2015. The letter sent to the respondent's office was returned by the USPS with the notation "Refused."

To date, the respondent has failed to submit his answers to the Beagen, Burke, Tursi, and Martin complaints.

Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law pursuant to 22 NYCRR 691.4(l)(1)(i) and (iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him based upon the verified petition dated June 2, 2016, and the matter is referred to a Special Referee, to hear and report.

ENG, P.J., RIVERA, DILLON, BALKIN and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court