In re Sharif
459 Mass. 558
| Mass. | 2011Background
- Bar discipline appeal from a single justice’s three-year suspension of Tammy Sharif, third year stayed.
- Bar counsel sought Schoepfer/Three Attorneys presumptive sanctions for misused client funds; board rejected mandatory applicability.
- Facts center on two clients: misused a $10,000 advance fee, commingling with operating account, and misrepresentations to bar counsel; also neglected second client matters and falsified a document.
- Mitigating factors include Sharif’s depression and personal losses; aggravation includes multiple client violations.
- Board recommended three-year suspension; single justice imposed a three-year term with the third year stayed; bar counsel appealed to full court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presumptive sanctions apply to misuse of advance fees | Bar counsel seeks disbarment/indefinite suspension under Schoepfer and Three Attorneys | Sharif argues presumptive sanctions are not mandatory for advance-fee misuse | Presumptive sanctions not mandatory; sanction range depends on facts and context |
| Appropriateness of the three-year suspended sanction | Sanction should be severe given intentional misuses | Three-year suspension aligns with comparable cases andmitigating factors | Three-year term with one year stayed affirmed as not markedly disparate |
| Mitigation by depression regarding misrepresentations | Depression does not mitigate misconduct | Depression mitigates conduct toward clients | Depression mitigates client-facing conduct but does not excuse intentional misrepresentations; sanctions remain |
| Confusion around trust funds vs costs and impact on sanctions | Advance fees should be treated like traditional client funds deserving severe sanctions | Ambiguity in retainer definitions warrants non-mandatory sanctions | Retainer context and confusion justify not applying automatic Schoepfer/Three Attorneys sanctions consistently across all cases |
| Probation terms and conditions | Probationary supervision is insufficient | Probation with treatment and mentorship is appropriate | Probation conditions affirmed: treatment, limited practice to criminal/juvenile, mentorship. |
Key Cases Cited
- Schoepfer, 426 Mass. 183 (1997) (Mass. 1997) (presumptive disbarment/indefinite suspension for intentional misuse of traditional client funds)
- Three Attorneys, 392 Mass. 827 (1984) (Mass. 1984) (presumptive sanctions for misusing client funds in certain contexts)
- Hopwood, 24 Mass. Att'y Disc. Rep. 354 (2008) (Mass. Att'y Disc. Rep. 2008) (one-year suspension for combination of misconduct including misused retainer and deceit)
- Barach, 22 Mass. Att'y Disc. Rep. 36 (2006) (Mass. Att'y Disc. Rep. 2006) (two-year suspension for multiple misuses and false representations to bar counsel)