In the Matter of Tariri ( 2023 )

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SJC-13370
IN THE MATTER OF BENJAMIN BEHNAM TARIRI.
May 25, 2023.
Attorney at Law, Disciplinary proceeding, Suspension, Misuse of
client funds.
The respondent attorney, Benjamin Behnam Tariri, appeals
from an order of a single justice of this court temporarily
suspending him from the practice of law pending further
disciplinary proceedings before the Board of Bar Overseers
(board) pursuant to S.J.C. Rule 4:01, § 12A, as appearing in
425 Mass. 1315 (1997). He also appeals from the single
justice's denial of his subsequent motion to stay the order. We
affirm.1
Background. On November 21, 2022, bar counsel filed a
petition for temporary suspension alleging that the respondent
"poses a threat of substantial harm to clients or prospective
clients." S.J.C. Rule 4:01, § 12A.2 The petition asserts that
1 After the respondent's appeal was filed in this court, bar
counsel filed a petition for contempt in the county court. The
single justice issued an interim order in connection with that
petition and, thereafter, an order of contempt. The respondent
subsequently failed to comply with the latter order, and on that
basis, the single justice ordered that the respondent be
committed to the Suffolk County house of correction for ninety
days or until such time as the respondent complied fully with
the terms of the court's contempt order. Those orders are not
before us.
2 Supreme Judicial Court Rule 4:01, § 12A, provides:
2
Tariri had misappropriated hundreds of thousands of dollars of
client funds to support a gambling addiction and pay personal
debts. More specifically, the petition asserted, among other
things, that Tariri represented a client (client A) with respect
to client A's residential property purchase; that Tariri held
certain of client A's funds for that purpose in an Interest on
Lawyers' Trust Account (IOLTA account); and that Tariri misused
those funds to purchase lottery tickets. In the process, Tariri
allegedly failed to make certain wire transfers in connection
with client A's property purchase; deposited money from other
clients in the IOLTA account; and used the money from other
clients to make the required payments for client A's property
purchase.
In another instance, the petition avers, Tariri repeatedly
borrowed money from a client (client B) who he had represented
in a variety of matters. One of those matters allegedly
resulted in a monetary settlement between client B and the
Commonwealth pursuant to which the Commonwealth paid client B a
set sum. According to the petition, the amount of money that
Tariri borrowed from client B was approximately the same amount
of money that Tariri knew client B had received in the
settlement. Tariri subsequently wrote checks to client B to
repay the loan, but each time he did so, the checks were
returned for insufficient funds. Although Tariri allegedly did
eventually repay some of the loan to client B, the petition
avers that the loan was never fully repaid and that client B
eventually filed a complaint against Tariri with the board.
The petition also alleges several other instances of Tariri
borrowing money from current and former clients and of writing
checks to repay the loans only to have those checks returned for
"Upon the filing with this court of a petition by the bar
counsel alleging facts showing that a lawyer poses a threat
of substantial harm to clients or prospective clients
. . . , this court shall enter an order to show cause why
the lawyer should not be immediately suspended from the
practice of law pending final disposition of any
disciplinary proceeding commenced by the bar counsel. The
court or a justice, after affording the lawyer opportunity
to be heard, may make such order of suspension or
restriction as protection of the public may make
appropriate."
3
insufficient funds.3 Ultimately, bar counsel has opened eight
separate investigations of Tariri, two of which bar counsel
described in the petition for temporary suspension, four of
which are already the subject of a petition for discipline, and
two of which remain under investigation.4
In the county court, an order issued on November 28, 2022,
to show cause why the respondent should not be immediately
suspended, as the petition requested, pending disposition of
disciplinary proceedings against him. The single justice held a
hearing on December 19, 2022, and issued an order that same day
temporarily suspending Tariri from the practice of law in the
Commonwealth until further order of the court. The order was
effective immediately, and the single justice thereafter denied
Tariri's motion to stay.
Discussion. The case is now before us on Tariri's
preliminary memorandum, pursuant to S.J.C. Rule 2:23 (b),
471 Mass. 1303 (2015). The rule requires an appellant
"to demonstrate . . . that there has been an error of law
or abuse of discretion by the single justice; that the
decision is not supported by substantial evidence; that the
sanction is markedly disparate from the sanctions imposed
in other cases involving similar circumstances; or that for
other reasons the decision will result in a substantial
injustice."
Tariri has failed to make any such demonstration.
3 According to the petition, Tariri's actions have led not
just to multiple investigations by the board but to criminal
charges in the District Court as well.
4 The pending petition for discipline charges Tariri with
violating numerous rules of professional conduct, including
Mass. R. Prof. C. 1.3 (diligence), as appearing in 471
Mass. 1318 (2015); Mass. R. Prof. C. 1.7 (conflict of interest:
current clients), as appearing in 471 Mass. 1335 (2015);
Mass. R. Prof. C. 1.15 (b) (segregation of trust property),
1.15 (e) (operational requirements for trust accounts), and
1.15 (f) (required accounts and records), as appearing in 471
Mass. 1380 (2015); and Mass. R. Prof. C. 8.4 (c) (dishonesty,
fraud, deceit, or misrepresentation) and 8.4 (h) (fitness to
practice law), as appearing in 471 Mass. 1483 (2015).
4
"[A]n order of temporary suspension may be entered if
(1) facts, established by a preponderance of the evidence, show
that the lawyer violated a disciplinary rule of this court and
(2) on a balance of the harms and consideration of the public
interest, the lawyer poses a threat of substantial harm to
present or future clients or in other respects." Matter of
Ellis, 425 Mass. 332, 334 (1997). For purposes of a temporary
suspension, it is sufficient that the evidence demonstrate that
"it is more probable than not that the lawyer[] violated
important provisions" of the rules of professional conduct. Id.
at 340.
Tariri makes little argument that he did not violate the
rules. In contrast, the petition for temporary suspension was
accompanied by ample supporting documents, including, among
other things, a recorded statement made by Tariri in connection
with the board's ongoing investigations of him; evidence
regarding the failed wire transfers and returned checks in
connection with Tariri's misuse of client A's money; and
evidence related to Tariri's failure to repay client B's loan.
The petition and its supporting documents, in other words,
demonstrate that it is more probable than not that Tariri
violated a number of rules of professional conduct including,
e.g., Mass. R. Prof. C. 1.15 (e) (operational requirements for
trust accounts) and 1.15 (f) (required accounts and records), as
appearing in 471 Mass. 1380 (2015); and Mass. R. Prof. C.
8.4 (c) (dishonesty, fraud, deceit, or misrepresentation) and
8.4 (h) (fitness to practice law), as appearing in
471 Mass. 1483 (2015).
In considering whether to temporarily suspend a lawyer from
the practice of law, the single justice is also "required to
balance the harm to the attorney against the public interest in
preventing harm to present and future clients." Matter of
Abrams, 436 Mass. 650, 656 (2002), citing Matter of Ellis,
425 Mass. at 341-342. In his memorandum, Tariri acknowledges
that "some of the issues or allegations" that bar counsel raised
in the petition for temporary suspension have merit, but argues
that the issues were presented "in a vacuum" without any
acknowledgment of the underlying causes, including Tariri's
gambling addiction and certain events in his personal life. He
is arguing, in essence, that he did not have an opportunity to
respond to the allegations, i.e., to defend himself. His
arguments are without merit.
In response to the petition for temporary suspension,
Tariri filed a one-page "memorandum in support of show-cause
5
hearing," without any supporting affidavits or other documents,
in which he stated that it would be detrimental for his clients
and the public if his license were temporarily suspended pending
the outcome of disciplinary hearings. He did not, however,
challenge the facts alleged in the petition, which were
supported by affidavits. In the circumstances, his suggestion
that he did not have an opportunity to present a defense is
contradicted by the record. Tariri could have filed a more
detailed response to the petition -- indeed, the single justice
granted Tariri's request for a brief continuance of the hearing
on the petition and rescheduled it for one week later than the
originally scheduled date -- or challenged its underlying facts.
Furthermore, although Tariri argues that the single justice
deferred to bar counsel's recommendation without consideration
of the underlying circumstances, both bar counsel and Tariri had
an opportunity to present their respective positions at the
hearing. Among other things, the single justice specifically
asked both bar counsel and Tariri whether there might be some
action the single justice could take short of ordering a
temporary suspension, and he discussed various options with both
parties. There was, in short, "sufficient evidence . . . from
which the single justice could have concluded that [Tariri]
posed a threat to present and potential clients." Matter of
Kenney, 399 Mass. 431, 434-435 (1987).
The single justice did not err or abuse his discretion in
concluding that a temporary suspension was warranted.
Judgment affirmed.
The case was submitted on the record, accompanied by a
memorandum of law.
Benjamin Behnam Tariri, pro se.