April 29, 2011
No Presumption Of Disbarment For Misuse Of Advanced Fees
The Massachusetts Supreme Judicial Court affirmed the decision of a single justice to suspend an attorney for three years with the third year stayed, in a case involving intentional misuse of an advanced fee. The attorney had a reputation as as a dedicated attorney for criminal and juvenile defendants. The misconduct was in an area of practice with which the attorney was not familiar.
The hearing committee had considered mitigating factors, as the court recites
In determining its recommended sanction, the hearing committee considered mitigating and aggravating factors. In mitigation, the hearing committee found that [the attorney] had a history of depression and was diagnosed with a major depression and posttraumatic stress disorder in January 2008. The hearing committee also found that her depression deepened after the death of three persons close to her in late 2006 and early 2007. Her boy friend disappeared in a boating accident in November, 2006, and his body was found the next month. Her grandmother, to whom she had been very close, suffered a stroke in January, 2007, and later died in May, 2007. Her aunt, who had helped [the attorney] care for her grandmother after the stroke, died shortly after the grandmother's death. The hearing committee found that [her] depression did not excuse her conduct, but that it impaired her judgment and contributed to her violations.
As to sanction, the court found as a basis to depart from the presumptive sanction of disbarment
We...conclude that the single justice's sanction of a three-year term suspension, with the third year stayed, is not "markedly disparate" from other similar disciplinary cases involving the intentional misuse of funds advanced by a client for the payment of fees, taking into consideration [the attorney's] additional violations and the mitigating factor of her depression. Because the sanction imposed by the single justice is not markedly disparate from the sanctions in comparable cases and is sufficiently severe to protect the integrity of the bar and to deter future misconduct, we affirm. We clarify that the third year of suspension is stayed for a two-year probationary period, with the conditions of probation recommended by the hearing committee: that [the attorney] continue to receive treatment for her depression, that she limit her law practice to criminal and juvenile matters, and that she be mentored by an attorney experienced in criminal and juvenile law who is satisfactory to bar counsel.
The court noted that the violation involved fee advances and declined to extend the presumption of disbarment to such situations
...we decline to apply the presumptive sanctions of indefinite suspension or disbarment from Schoepfer, supra at 187-188, and Three Attorneys, supra at 835-837, to all cases involving intentional use of funds advanced for the payment of services with either intent to deprive the client of funds or actual deprivation. While disbarment or indefinite suspension may be the appropriate sanction for such a violation depending on the circumstances of the case, we conclude that the potential for confusion, misunderstanding, or ambiguity as to whether the funds belong to the client or the attorney militate against so severe a presumptive sanction.
The aggravating factors included multiple clients and false responses in the bar matter.
The link to the opinion does not work. The case is Matter of Sharif, decided April 27. (Mike Frisch)
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