Appellate Division: Second Judicial Department

M224912

E/ct

RANDALL T. ENG, P.J.

REINALDO E. RIVERA

MARK C. DILLON

RUTH C. BALKIN

SYLVIA O. HINDS-RADIX, JJ.

2016-07919 In the Matter of Barbara Lynn Maleno, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Barbara Lynn Maleno, respondent. (Attorney Registration No. 2555068)

DECISION & ORDER ON MOTION

Motion by the Grievance Committee for the Tenth Judicial District, inter alia, (1) to suspend the respondent from the practice of law pending the consideration of charges of professional misconduct against her pursuant to former 22 NYCRR 691.4(l)(1)(i) and (iii), upon a finding that she is guilty of professional misconduct immediately threatening the public interest based upon her failure to cooperate with the lawful demands of the Grievance Committee, and other uncontroverted evidence of professional misconduct; and (2) 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 June 30, 1993.

Upon the papers filed in support of the motion and the papers in opposition thereto, it is

ORDERED that pursuant to 22 NYCRR 1240.9(a), as now in effect, the branch of the motion which is to suspend the respondent, Barbara Lynn Maleno, is granted and Barbara Lynn Maleno 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, Barbara Lynn Maleno, shall promptly comply with the rules governing the conduct of disbarred and suspended attorneys (see 22 NYCRR 1240.15); 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, Barbara Lynn Maleno, 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 herself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Barbara Lynn Maleno, 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 her affidavit of compliance pursuant to 22 NYCRR 1240.15(f); and it is further,

ORDERED that the Grievance Committee shall serve Barbara Lynn Maleno, with a copy of this decision and order on motion together with a notice of petition and the verified petition dated July 13, 2016, pursuant to 22 NYCRR 1240.8(a)(1), and file the notice of petition and the verified petition dated July 13, 2016, as well as proof of service, with this Court, within 20 days after receipt of a copy of this decision and order on motion; and it is further,

ORDERED that the branch of the motion which is to refer the issues raised to a Special Referee, to hear and report, is granted, and the issues raised by the verified petition and any answer thereto are referred to the Honorable Patrick A. Sweeney, 17 Greenknoll Court, Fort Salonga, NY 11768, as Special Referee, to hear and report, with the hearing to be completed within 60 days of the date of this order, or as soon as practicable, 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 the motion is otherwise denied as unnecessary.

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon her failure to cooperate with the lawful demands of the Grievance Committee for the Tenth Judicial District, and other uncontroverted evidence of professional misconduct.

On or about September 21, 2015, the Grievance Committee received a complaint of professional conduct against the respondent from Karen M. Harris. According to the complaint, in or about March 2009, Ms. Harris retained the respondent to represent her in a divorce. On September 27, 2011, Ms. Harris executed a stipulation of settlement in which she was to receive certain proceeds from the refinance of the marital home. Annexed to the Harris complaint are two checks issued to the respondent, which represent the refinance proceeds due Ms. Harris pursuant to the stipulation. The first check, in the sum of $84,543.99 is dated April 15, 2011, and the second check, in the sum of $81,068.99 is dated September 27, 2011. Ms. Harris alleges that the respondent has failed to release her funds notwithstanding her requests that she do so.

The respondent was notified by the Grievance Committee of the Harris complaint by letter dated October 2, 2015, and was requested to submit an answer within 10 days of her receipt thereof. Thereafter, the Grievance Committee granted the respondent's request for an extension until October 30, 2015. At that time, the respondent agreed to provide her trust account records in connection with the Harris funds with her answer.

By letter dated October 29, 2015, the respondent submitted a brief response, which included her retainer statement and a final bill for services totaling $44,772, but not her trust account records. The Grievance Committee notified the respondent, by letter dated October 30, 2015, sent via certified mail return receipt requested, that her response was inadequate as she had failed to address the allegations of the complaint, and failed to provide her trust account records. The respondent was asked to provide her response together with her trust account records within 5 days of her receipt of the Grievance Committee's letter.

By letter dated November 14, 2015, the respondent advised the Grievance Committee that she would submit a response after she had an attorney review the response. By letter dated November 17, 2015, sent via certified mail return receipt requested, the Grievance Committee notified the respondent that her response was due within 5 days of her receipt of the letter and directed that her attorney, if one represented her, to notify the Grievance Committee within 5 days. No response was received from the respondent.

On February 10, 2016, the respondent was personally served with a judicial subpoena, which directed the respondent to appear at the Grievance Committee's office on February 25, 2016, for an examination under oath (hereinafter the EUO), and a judicial subpoena duces tecum, which directed her to produce her legal file in the Harris matter, as well as her trust account records. The respondent's appearance was adjourned, upon her request, until March 1, 2016.

Although the respondent appeared at Grievance Committee's office on March 1, 2016, she received a further adjournment until March 30, 2016, so that she could retain counsel. By request of counsel, the EUO was adjourned until April 20, 2016. Notwithstanding a further adjournment, the respondent failed to appear at the scheduled EUO on May 10, 2016.

Pursuant to subpoena, the Grievance Committee obtained records from JP Morgan Chase Bank, in connection with the respondent's account entitled "Barbara L. Maleno, Attorney Trust Account" (hereinafter the trust account), account number ending 1811, for the period from April 2011 through December 2012. Those records reflect that the respondent deposited the Harris checks into her trust account as follows: the $84,543.99 check was deposited on April 18, 2011, and the $81,068.99 check was deposited on September 29, 2011. The bank records further reflect that while the respondent was entrusted with the Harris funds, the balance in her trust account fell below the amount she was required to maintain on behalf of Ms. Harris on multiple dates. Indeed, by December 31, 2012, the respondent's trust account balance was $40,620.10, well below the $165,612.98 she was required to maintain for Ms. Harris.

By affirmation in opposition, the respondent's counsel does not dispute that the respondent deposited the two Harris checks into her trust account. Further, while the respondent claims that she was due $44,772 for legal fees, the respondent's counsel concedes that the remaining sums were not paid to Ms. Harris, and that the respondent's trust account had a shortfall of approximately $120,000.

Based upon the foregoing, the motion is granted to the extent that the respondent is suspended pursuant to 22 NYCRR 1240.9(a), and the matter is referred to a Special Referee, to hear and report. Further, the Grievance Committee is directed to serve the respondent with a copy of this decision and order on motion together with a notice of petition and the verified petition dated July 13, 2016, pursuant to 22 NYCRR 1240.8(a)(1), and file the notice of petition and the verified petition dated July 13, 2016, as well as proof of service, with this Court, within 20 days after receipt of a copy of this decision and order on motion.

ENG, P.J., RIVERA, DILLON, BALKIN and HINDS-RADIX, JJ., concur

ENTER:

Aprilanne Agostino

Clerk of the Court