The Lawyer’s Duties Regarding Deposit Insurance of Attorney Trust Accounts

What exactly are a lawyer’s obligations with respect to client or third-person funds held in an attorney trust account? Must the lawyer worry about the extent to which the funds are federally insured?

Rule 1.15 and Attorney Trust Accounts

The New York rules governing attorneys who hold monies on behalf of clients and third persons appear in three different places. The first is Rule 1.15 of the New York Rules of Professional Conduct. The second is the so-called bounced check rule, which appears in 22 N.Y.C.R.R. Part 1300 and is administered by the New York Lawyers’ Fund for Client Protection. The third is the rules governing Interest on Lawyer Account (IOLA) funds, found in Section 97-v(4)(a) of the State Finance Law, Section 497 of the Judiciary Law and 21 N.Y.C.R.R. Section 7000, which is administered by the IOLA Trust Fund. Since an IOLA account is a type of attorney trust account, and the bounced check rule and the IOLA rule both follow Rule 1.15 with respect to the operation of the account, this article will focus on Rule 1.15.

Rule 1.15 has several different parts. The first, in paragraph (a), prohibits a lawyer from commingling the lawyer’s own funds with funds belonging to another person, such as a client or third person. That historically has been the principal focus of the regulations governing escrow accounts – making sure that the lawyer cannot improperly use client funds by commingling them with the attorney’s own funds.[2] Indeed, the title of that paragraph is “Prohibition Against Commingling and Misappropriation of Client Funds or Property.” That paragraph is the reason that lawyers need one or more operating accounts, separate from the attorney’s trust account, for activities such as receiving fee payments and paying normal operating expenses for the firm.[3]

Paragraph (b)(1) of Rule 1.15, denominated “Separate Accounts,” contains several requirements governing funds belonging to a client or third person that are incident to the lawyer’s law practice:

• The funds must be maintained “in a banking institution” within New York State that agrees to provide dishonored check and overdraft reports under 22 N.Y.C.R.R. Part 1300. The term “banking institution” is defined in this section. It includes “a state or national bank, trust company, savings bank, savings and loan association, or credit union.” Based on the banking institutions on the approved list of the Lawyers’ Fund for Client Protection, to be “within New York State,” the financial institution need not be headquartered here, as long as it has one or more branches in New York.[4] Part 1300 provides that an agreement by a bank to provide dishonored check and overdraft reports must be filed with the Lawyers’ Fund for Client Protection, which maintains a central registry of all banking institutions that have been approved under Part 1300. The list of approved institutions is available on the website of the Lawyers’ Fund.[5]
• Funds may be maintained in a banking institution located outside New York if the banking institution agrees to make bounced check reports under Part 1300 and the lawyer receives prior written approval of every person whose funds may be in the account, after the lawyer informs them of the name and address of the office of the bank where the funds are to be maintained.[6]
• The funds must be maintained “in the lawyer’s own name” or in the name of the law firm that employs the lawyer. Paragraph (b)(2) of Rule 1.15 also requires that the attorney trust account be identified as an “attorney special account,” “attorney trust account” or “attorney escrow account,” and the checks and deposit slips must bear that title.
• The funds must be separate from any business or personal accounts of the lawyer or law firm and separate from any accounts the lawyer may maintain as executor, guardian, trustee or receiver.
• Assuming a lawyer or law firm is not improperly commingling funds and maintains an attorney trust account in an approved institution in an appropriately titled manner, does that end their obligations?

Standard of Care Applicable to Attorney Trust Accounts

The standard of care for attorney trust accounts appears in Rule 1.15(a), which states:

“A lawyer in possession of any funds or other property belonging to another person, where such possession is incident to his or her practice of law, is a fiduciary, and must not misappropriate such funds or property or commingle such funds or property with his or her own (emphasis supplied).”

Comment [1] to Rule 1.15 goes further; it says that a lawyer should use the care required of a professional fiduciary. Two ethics opinions of the New York State Bar Ethics Committee state that the lawyer/escrow agent must meet the same professional and fiduciary standards that are mandated for lawyers and trustees with respect to the preservation, safekeeping and use of client funds and trust property.[7]

When it comes to matters of professional discipline, the Appellate Departments have adopted only the black letter rules. As the introduction to the New York Rules of Professional Conduct volume published by NYSBA states, the comments are published by the Association solely “to provide guidance for attorneys in complying with the Rules.” Consequently, it is unlikely that Comment [1] to Rule 1.15 adds any substantive obligations.

In any event, Comment [1] to Rule 1.15 does not further explain either the “fiduciary” or the “professional fiduciary” standard. The state bar committee that recommended the rules noted that Comment [1] was taken from the ABA Model Rules.[8] The ABA rule, however, does not explain the fiduciary standard. In fact, comment 18D to New York’s Rule 1.6 notes that “Questions of fiduciary duty are legal issues beyond the scope of the Rules.” Does either standard require the lawyer or law firm to ensure that client funds maintained in a bank are entirely federally insured?

Section 44 of the American Law Institute’s Restatement of the Law Governing Lawyers describes the lawyer’s obligation with respect to attorney escrow funds this way:

“A lawyer holding funds or other property of a client in connection with a representation . . . must take reasonable steps to safeguard the funds or property. . . . In particular, the lawyer must hold such property separate from the lawyer’s property, keep records of it, deposit funds in an account separate from the lawyer’s own funds . . . and comply with related requirements imposed by regulatory authorities (emphasis supplied).”

As in the case of Rule 1.15, the focus is on “no commingling” and on good recordkeeping.[9] That is also the thrust of General Business Law Section 778-a,[10] which provides that an escrow agent who undertakes to hold a buyer’s down payment in the purchase and sale of a home has the fiduciary obligation to segregate and safeguard the buyer’s down payment in a special bank account and may not commingle that down payment with the escrow agent’s personal or business funds but may commingle it with other client funds in an IOLA account.

Section 11-2.3(b)(2) of the New York Estates Powers and Trusts Law (the Prudent Investor Act) provides: “A trustee shall exercise reasonable care, skill and caution to make and implement investment and management decisions as a prudent investor would for the entire portfolio, taking into account the purposes and terms and provisions of the governing instrument.” Section 11-2.3(b)(3)(B) further describes this obligation:

“(3) The prudent investor standard requires a trustee:

“(B) to consider, to the extent relevant to the decision or action, the size of the portfolio, the nature and estimated duration of the fiduciary relationship, the liquidity and distribution requirements of the governing instrument, general economic conditions . . . .”

Thus, the question under New York law seems to be what reasonable steps a prudent investor would take, given the size of the deposit, the length of time the escrow agent expects to hold it and other economic factors.[11]

Most attorney trust accounts are held for short amounts of time and do not involve investment decisions. The closest thing to an investment decision is whether the funds should be placed in an interest-bearing bank account. In a 1986 ethics opinion,[12] the New York State Bar Association Ethics Committee opined that when a lawyer is holding a contract deposit as escrow agent, and the amount is sufficient to warrant the administrative expense of being placed in a separate account, the lawyer should recommend that the contracting parties give instructions on whether the funds should be placed in an interest-bearing account. The Ethics Committee’s advice to seek client instructions is consistent with the Prudent Investor Rule, which provides an exception to the prudent investor standard where the terms of the governing instrument provide.[13]

Before the adoption of the current Prudent Investor Rule, both the American Law Institute and many states had more prescriptive lists of permitted investments. Yet even then it was recognized that bank deposits (which are analogous to unsecured loans to the bank) were permitted. The FDIC’s Trust Manual quotes the following excerpt from ALI’s Restatement (Second) Trust Law Section 227:

“Unsecured Loan. An unsecured loan of trust funds may be improper because imprudent. Such a loan, however, is not necessarily imprudent. Thus, a trustee can properly make a general deposit of trust money in a bank, as a method of safekeeping.

“A deposit in a bank at interest, as, for example, a deposit in a savings account, may be proper as a method of investing trust funds. Such a deposit was generally held to be prudent as an investment even before such deposits were at least partially insured by the Federal Deposit Insurance Corporation. In some States, statutes have permitted such deposits to the extent to which they are insured.”

Is the Lawyer Responsible for the Solvency of the Depository Institution?

The banking institutions described in Rule 1.15(b) are regulated entities. They are required to maintain specified amounts of capital and to file periodic financial statements, and they are inspected periodically by federal or state regulators. Is it reasonable to rely on the regulators to determine whether to keep more than the insured amount in a particular bank?

In theory, uninsured depositors exercise some degree of due diligence over their depositaries, in order to reduce the risk of a default.[14] In practice, lawyer/escrow agents are not in a good position to predict whether their depository bank will be seized by the regulators. Banks, savings institutions and credit unions are required to file a Consolidated Report of Condition and Income (also known as a call report) on a quarterly basis. For banks with at least $1 billion in assets, this includes the estimated amount of uninsured deposits.[15] But even a bank that appears to be well-capitalized can quickly become unable to repay depositors in the midst of a bank run. Signature Bank had a common equity tier 1 risk-based capital ratio of 10.212% as of year-end 2022.[16] It was taken over on March 12, 2023, before it published its first quarter call report.[17] Both Silicon Valley Bank and Signature Bank had an unusually high level of uninsured deposits (94% at year-end 2022 in the case of SVB and 90% in the case of Signature). This made it more likely that, once rumors of the losses in the banks’ long-term investments began, the uninsured depositors would start rushing for the doors – a classic bank run. But other banks with high levels of uninsured deposits did not fail.

One New York court case that considers whether an attorney is liable when the bank that holds the attorney escrow account is closed is Bazinet v. Kluge.[18] In Bazinet, an attorney acted as escrow agent in several real estate transactions involving escrow deposits over $1 million. Before the transactions could be consummated, the escrow bank was closed, and the FDIC was named as receiver. The plaintiff sued the lawyer for malpractice for not making sure that the deposit was covered by FDIC insurance and requested return of the down payment. The court dismissed the claim:

“To prevail in a legal malpractice action, the plaintiff must show, inter alia, that the attorney failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession . . . . There is no allegation that Reiser violated any statute or regulation, much less that he breached the escrow provisions of the contracts. There is no requirement imposed by law that an attorney-escrow agent place escrow funds in an account fully insured by the FDIC . . . , and there are no allegations that Reiser knew that CBC was in danger of closing. The proximate cause of Kluge’s injury, if any, was CBC’s unforeseen demise.”

The case provides substantial comfort to lawyers. The degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession does not include analysis of the solvency of banking institutions. But the case implies that, even if it normally would be reasonable for an attorney to rely on regulators to evaluate the solvency of a banking institution, the attorney’s duty may change when the public media are filled with newspaper articles questioning the long-term solvency of the institution, with pictures of depositors lined up outside to make withdrawals.

Insurance Coverage of Attorney Trust and IOLA Accounts

It seems likely that a prudent investor would know whether his or her deposits were insured. Consequently, lawyers should understand how deposit insurance works, so that they can ensure that their attorney trust accounts qualify for the greatest possible amount of deposit insurance. Deposits at national and state banks, trust companies, savings banks and savings and loans are insured by the Federal Deposit Insurance Corporation.[19] Deposits at federal credit unions and the vast majority of state-chartered credit unions are insured by the National Credit Union Share Insurance Fund.[20] This article will focus on the FDIC rule.

The standard amount of FDIC insurance is $250,000 per depositor, per insured bank, for each category of legal ownership. Examples of ownership categories include single owner accounts (including an account established by a guardian under the Uniform Gifts to Minors Act), joint accounts (where each co-owner is insured up to $250,000), certain retirement accounts (such as an IRA), employee benefit plan accounts (such as a self-directed 401(k) or Keogh plan), trust accounts and business accounts. To find out the amount of coverage on your various accounts, you can consult the FDIC’s Electronic Deposit Insurance Estimator.[21]

All deposits that an accountholder has in the same ownership category at the same bank are added together and insured up to the standard insurance amount. Depositors may qualify for coverage over $250,000 if they have funds in different ownership categories and all FDIC requirements are met. An attorney trust account is a different ownership interest from the attorney’s firm accounts and the attorney’s personal accounts.

Several parts of the FDIC insurance rule give pass-through insurance treatment to separate or commingled deposit accounts, such as an attorney trust account for a single client or an IOLA account for a group of clients whose individual trust deposits are too small for a separate trust account. For example, Section 330.5(b) is called fiduciary relationships and includes relationships involving a trustee, agent, nominee, guardian, executor or custodian. Under this section, the FDIC will recognize a claim for insurance based on a fiduciary relationship as long as the relationship is expressly disclosed in the deposit account records of the insured depository institution where the deposit is held, or the title of the deposit account and the underlying deposit records sufficiently indicate the fiduciary relationship.

Section 330.5(b)(2) explains how to detail a fiduciary relationship. It says the details of the relationship and the interests of other parties (e.g., the beneficial owners) in the account must be ascertainable either from the deposit account records of the insured depository institution or from records maintained in good faith and in the regular course of business by the depositor or someone who maintains records for the depositor. Thus, if the account meets the titling and recordkeeping requirements of the FDIC rules, each beneficial owner with an interest in the attorney trust account will benefit from a separate $250,000 insurance limit. In fulfilling the attorney’s fiduciary responsibilities with respect to attorney trust accounts, the attorney should make sure that the books and records maintained by or on behalf of the attorney or law firm meet the requirements for maximum insurance. Assuming that records detailing the interests of clients are maintained in the ordinary course of business in accordance with Rule 1.15, by the law firm or its agent, the beneficiaries of the trust account should qualify for pass-through insurance treatment.

Here is an example of how ownership categories work. Assume that, at her bank, attorney Jane Smith has the following accounts:

Jane has, in her own name as a single owner, $272,800 in deposits. (The FDIC considers her law firm, which is a sole proprietorship under her own Social Security number and is not separately incorporated, to be a personal account rather than a business account, which would be a different ownership category.) She has a joint account with her husband, which is a separate ownership category in which each co-owner is deemed to own a pro rata share. Jane’s IRA is a retirement account, which is also a separate ownership category, but the balance over $250,000 is uninsured. Finally, Jane has three trust accounts – an account in which she is custodian under the Uniform Gift to Minors Act for her son, an IOLA account for clients and third parties, none of which has enough to warrant a separate interest-bearing account, and an escrow account being held by her attorney in the same bank in connection with Jane’s purchase of a new house. Since the son is the sole beneficiary of the UGM account, it is completely insured. If the proper records are maintained for the IOLA account and no beneficiary has over $250,000, the entire account will be insured. If the escrow deposit has Jane as the sole beneficiary, then it is insured only in the amount of $250,000. But if Jane and her husband are joint beneficiaries, then each is insured to $200,000.

What if the Trust Amounts for a Beneficiary Exceed the Insured Amount?

State and municipal depositors in New York have two ways to protect their deposits that don’t work for private depositors. First, state and municipal depositors often require that a bank provide collateral for their deposits that exceed the amount of deposit insurance.[22] But banks are prohibited from collateralizing private deposits.[23] Deposit insurance is therefore the only practical way for a private depositor to mitigate the risk of bank insolvency.

State and municipal depositors in New York are also authorized by statute to use “reciprocal deposit” programs under which a designated depository bank (the depositor’s “relationship institution”) may “redeposit” the government entity’s funds in one or more additional banking institutions (the “destination institutions”), in order to increase the amount of available deposit insurance.[24] For example, the largest reciprocal deposit program is run by a company called IntraFi Network LLC. Another program, called MaxSafe, is run by Wintrust Financial Corp.

A lawyer may use an insured cash sweep program for the lawyer’s operating account. Nothing in the Rules of Professional Conduct prohibits or interferes with it. But there are several impediments to using such a program for an attorney trust account. The first is Rule 1.15’s requirement that trust funds be deposited in a banking institution in New York unless “the lawyer has obtained the prior written approval of the person to whom such funds belong specifying the name and address of the office or branch of the banking institution where such funds are to be maintained.” A second impediment is the requirement that the account be in the name of the lawyer and be called an attorney trust, escrow or special account. A third is that the depository banking institution must agree to provide the bounced check and overdraft notices required by 22 N.Y.C.R.R. Part 1300.

The major sweep programs do not have an easy way to limit deposits to New York banks. The MaxSafe program uses banks affiliated with Wintrust in Illinois and Indiana. The IntraFi Network rules allow a depositor to exclude particular insured depository institutions from eligibility to receive the depositor’s funds, on an institution-by-institution basis, but don’t enable the depositor to specify only banks headquartered or with a branch in a particular state. Excluding banks not approved by the Lawyers’ Fund in New York would be difficult to do and would only work until IntraFi added another non-New York bank to the list of network banks.

What about obtaining client consent to keep trust funds outside New York? The ABA’s Model Rule 1.15 does not require any particular disclosures in connection with obtaining consent. But New York’s Rule 1.15 requires the lawyer to specify the name and address of the office or branch of the banking institution where the funds are to be maintained. That may make sense where the lawyer plans to keep the entire attorney trust account at a non-New York bank. It makes very little sense where the lawyer is spreading trust account funds among a variety of banking institutions and the interest of both lawyer and client is not in the location of the individual banking institutions but the fact that its deposits are FDIC-insured. Moreover, it would be extremely burdensome where a sweep program has numerous participating banks (IntraFi has about 3,000), and it is impossible to predict ahead of time which will actually receive redeposits. Could the lawyer describe the sweep program and request client consent to use it? Perhaps. But given that Rule 1.15 is the most strictly enforced Rule in the Rules of Professional Conduct,[25] it would be prudent to seek an amendment to the Rule.

The second impediment to using a cash sweep program is the requirement of Rule 1.15(a) that the funds be maintained “in the lawyer’s own name.” According to IntraFi, the deposit at the destination institution is denominated by a number. The identity of the depositor appears only in the books and records of the relationship institution and Bank of New York as sub-custodian.[26]

The third impediment to using cash sweep programs for attorney trust accounts is Rule 1.15’s requirement that the non-New York bank agree to make bounced check and overdraft reports under 22 N.Y.C.R.R. Part 1300. Again, this makes sense if the attorney trust account will be held by a single non-New York bank. It makes less sense if (i) the attorney’s relationship bank will be placing the sweep deposits and will have sole authority to make and terminate placements and (ii) all deposits and withdrawals by the attorney will be made in the main account with the relationship bank, which has already agreed to make bounced check and overdraft reports under 22 N.Y.C.R.R. Part 1300.

If the requirements of Rule 1.15 make it impossible to use cash sweep programs to increase the amount of applicable FDIC insurance, and the amount involved is too large for the attorney to make arrangements himself or herself to spread it among New York banks, then the lawyer should not be responsible for the failure to ensure that all funds in the trust account are FDIC-insured. As things stand now, Rule 1.15 would have to be amended in order to permit the use of sweep programs. In my opinion, it would be desirable for the bar association to seek an amendment to Rule 1.15 so that lawyers with attorney trust accounts with amounts above the FDIC insurance limit can benefit from programs to sweep excess funds into insured deposits where the length of time the deposit is likely to be maintained warrants greater safety precautions.

Marjorie E Gross is a solo practitioner. She is a member and former chair of the State Bar Committee on Professional Ethics and is a former general counsel of the New York State Banking Department.

[1] See Joint Statement by Treasury, Federal Reserve and FDIC, Mar. 12, 2023, https://www.federalreserve.gov/newsevents/pressreleases/monetary20230312b.htm.

[2] See N.Y. State 575 (1986) (The professional standards for lawyers with respect to clients’ funds emphasize using one or more identifiable bank accounts without commingling funds belonging to the lawyer, maintaining complete records and rendering appropriate accounts to the client, and promptly paying such funds as requested by the client). Opinions of the Association’s Ethics Committee are referred to herein as “N.Y. State [number]” and are available on the Association’s website.

[3] New York is one of a handful of states where advance payments of fees are assumed to be the property of the lawyer, subject to return to the extent they have not been earned when the representation ends, unless the retainer agreement provides otherwise. Advanced fee payments thus should not be placed in an attorney trust account. See N.Y. State 816 (2007), N.Y. State 570 (1985) (advance payment of legal fees need not be considered client funds).

[4] When these rules first became effective, most banks were located in a single state. Nationwide interstate branching did not exist until the Riegle-Neal Interstate Banking and Branching Act became effective September 29, 1995.

[5] See http://www.nylawfund.org/APPLST%20140.pdf.

[6] The ABA Model Rule is to the same effect. Model Rules of Prof’l Conduct R. 1.15 (“Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person”).

[7] See N.Y. State 575 (1986), N.Y. State 532 (1981).

[8] New York State Bar Association, Report and Recommendations of the Committee on Standards of Attorney Conduct (September 30, 2005) at p. 213.

[9] See also In re Wiseman, 107 A.D.2d 161 (1st Dep’t 1985) (attorney disbarred for converting to his own use funds held by him in escrow and for failing to provide records of his escrow account and his handling of client funds).

[10] N.Y. Gen. Bus. Law § 778-a.

[11] See also American Law Institute, Restatement Third, Trusts (Prudent Investor Rule) § § 227-229.

[12] See, e.g., N.Y. State 575 (1986), citing ABA Formal Opinion 348 (1982) (Client funds are generally commingled and left un-invested because of the administrative expense of establishing a separate account for each client and the impracticability of calculating and allocating interest on commingled funds. However, where the amount of funds held for a specific client and the expected holding period make it obvious that the interest which would be earned would exceed the lawyer’s administrative costs and bank charges, the lawyer should consult the client and follow the client’s instructions as to investing).

[13] See EPTL § 11-2.3(a); see also Restatement of the Law Governing Lawyers, Section 44, Comment e (“the terms of an agreement under which the lawyer receives property can modify the obligations imposed by this Section”).

[14] Conversely, if the insurance amount were substantially increased, it could encourage riskier behavior by banks and depositors, and potentially expose taxpayers to more losses in the event of a bank failure. Options for Deposit Insurance, FDIC, May 1, 2023, https://www.fdic.gov/analysis/options-deposit-insurance-reforms/index.html.

[15] Call reports for banks and savings banks are available on the website of the Federal Financial Institutions Examination Council (FFIEC) Central Data Depository. Those for credit unions are available on the website of the Federal Credit Union Association.

[16] Signature Bank Press Release, March 9, 2023. The bank had investment grade long- and short-term credit ratings and claimed a strong liquidity position. The New York Department of Financial Services took possession of the bank on March 12, 2023.

[17] See New York Department of Financial Services, Press Release, March 12, 2023, https://www.dfs.ny.gov/reports_and_publications/press_releases/pr20230312.

[18] See Bazinet v. Kluge, 14 A.D.3d 324 (1st Dep’t 2005).

[19] See 12 C.F.R. Part 330 (FDIC rule on recognition of deposit ownership for insurance purposes).

[20] See 12 CFR 745; National Credit Union Administration, How Your Accounts are Federally Insured.

[21] See https://edie.fdic.gov. See also Your Insured Deposits, FDIC, https://www.fdic.gov/resources/deposit-insurance/brochures/insured-deposits/index.html. This pamphlet contains examples of ownership categories and how the FDIC rules would apply to various accounts in these categories.

[22] See, e.g., N.Y. State Fin. Law § 105 (requiring a surety bond or specified collateral), N.Y. State Fin. Law § 97-T (requiring that deposits of the Lawyers’ Fund for Client Protection be secured by obligations of the

United States or of the State of New York having a market value equal to the amount of such deposits and authorizing banks and trust companies to give security for such deposits), N.Y. Gen. Mun. Law Section 10(3) (all public deposits in excess of the amount insured under the provisions of the Federal Deposit Insurance Act must be secured in accordance with this subdivision).

[23] See Texas & Pacific Railway Co. v. Pottorff, 291 U.S. 245 (1934). (A national bank has no power to pledge its assets to secure a private deposit, as opposed to a governmental deposit. To permit the pledge would be inconsistent with many provisions of the National Bank Act, which are designed to ensure, in case of disaster, uniformity in the treatment of depositors and a ratable distribution of assets).

[24] See N.Y. State Fin. Law § 106(D), N.Y. Gen. Mun. Law § 10(2)(a)(ii), N.Y. Pub. Auth. Law § 2927; Office of State Comptroller Memorandum on Deposit Placement Programs, Nov. 2012, https://www.osc.state.ny.us/files/local-government/publications/pdf/depositplacementprograms.pdf. The term “banking institution” in these statutes is as defined in Section 9-r of the New York Banking Law, which includes a bank, trust company, savings bank, savings and loan association or branch of a foreign banking corporation, as long as (1) it is chartered under the laws of New York or any other state or of the United States and (2) its deposits are insured by the FDIC.

[25] See Simon and Hyland, Simon’s New York Rules of Professional Conduct Annotated § 1.15.1. (“Even minor or unintentional infractions of the detailed provisions of Rule 1.15 are met with swift and often harsh discipline”).

[26] Email correspondence, dated August 16, 2023, to Marjorie E. Gross from Shannon Prendergast, Managing Director, New York, New Jersey & Delaware, IntraFi.