Not Retroactive

A convicted attorney should not be eligible for retroactive treatment of his disbarment to the date of his earlier-imposed suspension, according to a memorandum of the Massachusetts Board of Bar Overseers

In this case, the respondent did not comply with the requirements of Section 17 of Rule 4:01. He did not provide the required notices to his clients and others, nor did he file with bar counsel and the court the necessary affidavits of compliance. He concedes as much, and blames the failure on his incarceration, which followed closely his administrative suspension. We appreciate the practical challenges of complying with Section 17 while in jail. However,
compliance was not impossible. The respondent has offered no explanation or evidence that he tried to comply but was frustrated in doing so. He does not provide evidence that he reached out to bar counsel for assistance or relief.

Although represented by counsel, he apparently did not ask his lawyers for help. What we are left with is unexplained noncompliance with the requirements of Section 17. Accordingly, we do not give the respondent “credit” for the time
since his administrative suspension. Amin requests that the court consider retroactivity based on his personal circumstances. (See November 7, 2022 letter). He recites a compelling personal story as an immigrant seeking asylum in the United States who successfully completed law school and admission to the bar. He urges us to consider the personal challenges that led to his criminality. These circumstances are irrelevant to the question at issue. We may consider personal circumstances in recommending a sanction, including factors the court has deemed mitigating. But those factors  must be litigated. The respondent would bear the burden of proving their applicability by a preponderance of the evidence. Here, we have nothing other than the respondent’s unsupported, unsworn, and un-tested assertions. In the absence of such evidence, we have no basis to confirm the statements in the respondent’s letter. In addition, we have no assurance that Amin has not practiced law since 2016.

The decision to retroactively disbar a lawyer rests with the discretion of the court, upon the recommendation of the board. We are mindful of our obligation to protect the public and promote confidence in the bar. If the court were to accede to the respondent’s request, he would be eligible for reinstatement in 2024, only two years after the entry of the disbarment order. He would receive this significant benefit based on no proof that he deserves it.

He agreed to resign from the Bar as part of the guilty plea in his criminal case. (Mike Frisch)