In the Matter of a Member of the Bar of the Supreme Court of Delaware: FRED BARAKAT, Respondent
Submitted September 18, 2013.
Board Case No. 2012-0019-B.
Patricia Bartley Schwartz, Esquire, Office of Disciplinary Counsel, Wilmington, Delaware.
Fred Barakat, Esquire, Wilmington, Delaware.
Before HOLLAND, BERGER and JACOBS, Justices.
Pending before us is an attorney disciplinary proceeding. Fred Barakat, Esquire, was found to have failed to maintain a bona fide office for the practice of law in Delaware, and to maintain adequate books and records as required by the Delaware Lawyers' Rules of Professional Conduct (the " Rules" ). In a Report dated July 25, 2013, the Board on Professional Responsibility of the Supreme Court of Delaware (the " Board" ) found that Barakat's course of conduct violated Rules 1.5(f), 1.15(a), 1.15(d), 3.4(c), 8.1(a), 8.4(c), and 8.4(d). Barakat maintains that his conduct has not violated the Rules, and objects to the Board's findings on both factual and legal grounds. The Office of Disciplinary Counsel (" ODC" ) does not object to the Board's Report, which recommends that Barakat be suspended for two years.
We find that, with respect to Counts I through V, and VII through XII of the ODC Petition, Barakat's objections lack merit. Regarding Count VI, we find the record not sufficiently developed to support the Board's finding of a violation, and thus dismiss that Count. We, therefore, adopt the Board's findings on Counts I through V and VII through XII. Lastly, we independently determine that Barakat should be suspended from the practice of law for two years, as the Board recommended.
Barakat has been a member of the Delaware Bar since 1992. Since January 2005, Barakat's address of record with this Court has been 901 North Market Street, Suite 460, in Wilmington, Delaware. Barakat also works from his home in Chadds Ford, Pennsylvania.
Barakat's 901 North Market Street office is not an " office" in the traditional sense. Barakat's lease does not include any designated office space that is exclusively his. Rather, the employees of the landlord collect Barakat's mail and greet any visitors Barakat may have. The building security guards direct visitors to the fourth floor, where a receptionist is stationed during normal business hours. Under this arrangement, Barakat is entitled,
for additional fees, to rent a conference room or office space, and utilize secretarial, reproduction, facsimile, word processing, and shipping services.
The landlord's billing records (the " Occupant Ledger" ), and the testimony of two employees who work on the fourth floor, evidence that Barakat's presence at 901 North Market Street is " sporadic and unscheduled."  The Occupant Ledger reflects that in 2010, Barakat rented conference space approximately three times in April, four times in May, twice in June, once in both September and October, and twice in November. This pattern of use continued through August 2012. In October 2011, Barakat informed the United States Internal Revenue Service (" IRS" ) that " all of [his] work aside from meeting clients, court room appearances and depositions are conducted at [his] home [in Pennsylvania]," and that he has no employees at his Wilmington office.
In 2005, the ODC inquired about Barakat's compliance with Supreme Court Rule 12, which requires Delaware attorneys to maintain a " bona fide" office for the practice of law in Delaware. By letter dated May 5, 2005, the ODC informed Barakat of the requirements of Rule 12. Barakat responded to that letter on May 6, 2005. There is no evidence, however, that he responded to the ODC's later (May 17, 2005) request for additional information.
In 2010, the ODC renewed its inquiry into Barakat's Rule 12 compliance. Barakat responded by letter dated December 19, 2010, asserting that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office. The ODC again reminded Barakat that Rule 12 requires, at a minimum, a " 'responsible person acting on [your] behalf'--i.e., accountable and answerable to you, by employment or by contract."  On July 2, 2011, Barakat sent the ODC a letter, asserting, inter alia, that he had four employees in his Wilmington office and that he would be present in the Wilmington office " some portion of . . . 3 days per week, most weeks."  Based on that representation, the ODC dismissed the investigation with a formal warning, stating that its purpose was " to directly inform and educate [Barakat] as to conduct which . . . has raised
professional concerns." 
Barakat's books and records were first reviewed in 2008 by the firm of Master, Sidlow, the auditors for the Lawyers' Fund for Client Protection (the " LFCP" ). That compliance audit, which covered the six month period ending December 31, 2007, revealed that Barakat's " books and records were deficient based upon his failure to prepare bank reconciliations or client subsidiary ledgers and the inability to prove cash receipt entries to deposit totals."  In a letter dated July 7, 2008, Barakat assured the LFCP that the " deficiencies noted in the report have been corrected and the books are now and will continue to be properly maintained." 
In February 2012, after a judicial referral alerting the ODC to possible professional misconduct, Bryan Morgan, a senior Master, Sidlow accountant, performed a second compliance audit covering the six month period ending December 31, 2011. Mr. Morgan's 2011 Audit Report ...