BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO CONSENT TO DISCIPLINE

Transcription

1 ORIGINAL In re: Complaint against BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO Case No ^^,-1 42 Fitzgerald Terrance Murraine Attorney Reg. No Respondent Disciplinary Counsel Findings of Fact, Conclusions of Law and Recommendation of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio Relator CONSENT TO DISCIPLINE The case was submitted to the hearing panel upon a consent to discipline agreement pursuant to BCGD Proc. Reg. 11. The hearing panel consisted of Board members Bernard K. Bauer, Lisa Lancione Fabbro, and Janica A. Pierce Tucker, Chair. None of the panel members is from the appellate district from which the complaint arose or was a member of the probable cause panel that reviewed Relator's formal complaint. The hearing panel was appointed on March 15, On May 10, 2011, the parties filed a joint motion for consent to discipline within the time period specified in BCGD Proc. Reg. 11(B). Subsequently, the hearing panel requested additional information regarding the joint motion and, during a telephone conference on May 20, 2011 and for good cause, the panel chair orally extended the time for filing an amendment to the joint motion. A joint amendment to the motion for consent to discipline was filed on June 1, 2011 within the extended time period allowed by BCGD Proc. R. 11(B). LT ILI JUN CLERK OF COURT SUPREME COURT OF OHIO

2 The hearing panel finds this agreement conforms to BCGD Proc. Reg. 11 and the undersigned members recommend acceptance of the agreement, including the statement of facts and the violation of Prof. Cond. R. 1.15(a) [A lawyer shall hold the property of clients separate from the lawyer's property], 1.15(b) [A lawyer may deposit the lawyer's own funds ima client trust account only in an amount necessary to pay or obtain a waiver of bank service charges], and 8.4(h) [A lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law]. The hearing panel concurs in the agreed sanction of a one-year suspension, with the entire year stayed. The consent to discipline agreement and memorandum in support of sanction are attached hereto and incorporated by reference. BOARD RECOMMENDATION Pursuant to Gov. Bar Rule V (6)(L), the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio considered this matter on June 9, The Board voted to accept and adopt the agreement entered into by the Relator and Respondent. The agreement sets forth the misconduct and the sanction of a one-year suspension with the entire year stayed, which is the recommendation of the Board. The Board further recommends that the cost of these proceedings be taxed to the Respondent in any disciplinary order entered, so that execution may issue. Pursuant to the order of the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, I hereby certify the foregoing Findings of Fact, Conclusions of Law, and Recpnim^idatioxkjas those of the Board. RICHARD A. DOVE, Secretary Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio

3 BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND-DISCIPLINE OF THE SUPREME COURT OF OHIO In re: Fitzgerald Terrance Murraine, Esq Oak Brook Road Arlington, TX Attorney Reg. No Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio Relator Case No i^,!1 xun - w '^'^ BOARD OF Ct?MfvlISiiIONERS Ctv GRiFVANCcS & DISCIPLINE JOINT AMENDMENT TO THE JOINT MOTION FOR CONSENT TO DISCIPLINE Now comes relator, Disciplinary Counsel, and respondent, Fitzgerald T. Murraine, and provide additional facts as an Amendment to the Joint Motion for Consent to Discipline filed with the Board of Commissioners on Grievances and Discipline on May 10, This supplement is being provided at the request of the panel appointed in this matter to address issues raised sua sponte and to provide additional information as to the status of respondent's bankruptcy case. Relator and Respondent agree to and state the following facts, violations, mitigation, recommended sanction and exhibits: STIPULATED FACTS 1. Respondent, Fitzgerald Terrance Murraine, was admitted to the practice of law in the state of Ohio on April 16, Respondent is subject to the Code of Professional

4 Responsibility, Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. 2. Respondent was employed by the City of Dayton as the Supervisor of Contract Compliance and Special Programs. 3. Respondent also had a small private practice concentrating in the areas of small business law, real estate, landlord tenant, wills and trusts, church law and social security disability. 4. Respondent's wife worked as the Assistant Director for the Methodist Foundation until it closed in She has been unemployed since that time. 5. On December 17, 2009, respondent and his wife filed for Chapter 13 bankruptcy in the U.S. Bankruptcy Court, Southem District of Ohio, Case No. 3:09-bk : Respondent properly reported all income and debts on his bankruptcy petition. 7. At the time, respondent had a lawyer's trust account at National City Bank, n.k.a. PNC. 8. In December 2009, respondent stopped using his long-standing personal account at a credit union and began to use his IOLTA as a personal bank account. Respondent deposited his City of Dayton payroll checks into the IOLTA. 9. Respondent had a personal account at Code Credit Union and discontinued using it on advice from counsel to avoid having the account frozen. Respondent had a line of credit with Code Credit Union that is part of his Chapter 13 repayment plan. 10. Respondent used his IOLTA as a personal bank account for approximately five months from December 2009 through May Respondent did not use his trust account in an effort to defraud creditors.

5 12. At the same time, respondent had a part-time law practice and was also depositing client funds to the IOLTA. 13. Pursuant to respondent's client ledgers, respondent deposited a total of $5,147 in legal fees, court costs and escrow funds into the IOLTA on behalf of clients between December 2009 and May Although respondent was comingling personal and client funds, there was no evidence that he used client funds to pay his personal expenses. 15. Between December 2009 and May 2010, respondent wrote checks for groceries, cell phone service, replacement cell phones, holiday gifts, charitable donations and utilities from his IOLTA. The following are personal checks that respondent wrote from his IOLTA: Date Check Payee Amount No. ($) 3/21/ Tasty Fresh 247 3/14/ Tas. Fresh 145 3/12/ Cash (CIC) 540 3/13/ Tasty Bird 153 3/9/ Tasty & Fresh 160 3/1/ Tasty Bird 338 2/21/ Tasty Fresh 334 2/20/ Sama-a /20/ Samaya 150 3/15/ Tasty Fresh /20/ Vicky Good 100 1/12/ Tasty Fresh 200 2/8/ Tasty Fresh 255 2/2/ Tasty Fresh 302 1/31/ Dixon UMC 100 1/27/ Tasty Fresh 205 1/23/ Tasty Fresh 300 1/21/ Arrow Wine /20/ Tasty Fresh /17/ Kevin Simmons 50 1/18/ Tasty Bird /18/ Dixon UMC 125

6 12/18/ Ebeneezer Mem. Baptist 50 12/30/ Arrow Wine /18/ Rev. Kate Wilson 50 12/22/ Vernell Murraine 50 12/24/ Carolyn Brooks /23/ Da. on Eye Assoc /18/ Pastor Don Wilson 50 12/18/ Catholic Social Services 25 12/18/ Evangeline Donnelly 50 12/14/ Cash /13/ Tasty Bird /8/ Tas :Fresh /5/ Tasty Fresh /6/ Tasty Fresh 75 12/3/ Tasty Bird Respondent also paid for expenses for his law office from his IOLTA, including post office box fees (check # 1966) and a recurring monthly electronic bill pay to AOL. 17. On January 15, 201 1, respondent relocated to Dallas, Texas to be near his wife's family and elderly parents. 18. Respondent is not currently engaged in the practice of law. 19. Respondent and his spouse have been unable to meet the repayment plan since moving to Texas. Respondent's bankruptcy is currently pending dismissal on a motion by the trustee. With counsel, respondent is exploring his options to maintain his current bankruptcy proceeding or convert it to a Chapter 7. STIPULATED VIOLATIONS Respondent admits that his conduct violates the following: Prof. Cond. R. 1.15(a) [A lawyer shall hold property of clients separate from a lawyer's own property]; Prof. Cond. R. 1.15(b) [A lawyer may deposit the lawyer's own funds in a client trust account for the sole

7 purpose of paying or obtaining a waiver of bank service charges, but only in the amount necessary for that purpose]; and Prof. Cond. R. 8.4(h) [A lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law.] STIPULATED MITIGATION AND AGGRAVATION Pursuant to BCGD Proc. Rule 10(B)(1) and (2), respondent and relator stipulate to the following mitigation and aggravation: Mitigation: I. Respondent has no prior disciplinary record. 2. Respondent provided full and free disclosure during the investigation and has displayed a cooperative attitude. 3. Respondent has submitted evidence of good character and reputation. 4. None of respondent's client's were harmed by respondent's conduct. 5. Respondent has left the state of Ohio and moved to Texas, where he does not currently practice law. He has since closed the IOLTA in question. STIPULATED SANCTION Relator and respondent stipulate that the appropriate sanction for respondent's misconduct is a one year suspension with the entire year stayed. A Memorandum in Support of the sanction is attached as Exhibit 12. STIPULATED EXHIBITS 1. Voluntary Petition, United States Bankruptcy Court, Southern District of Ohio, case 3:09-bk Docket, United States Bankruptcy Court, Southem District of Ohio, case 3:09-bk Bank statement, account , November 19, December 16, Bank statement, account , December 17, January 21, 2010

8 5. Bank statement, account , January 22, February 19, Bank statement, IOLTA account , February 20, February 26, Bank statement, IOLTA account , February 27, March 31, Bank statement, IOLTA account , April 1, April 30, Personal checks written from account , between December March Client ledgers 11. Character letters: a. Rev. Don Wilson, Senior Pastor, Dixon United Methodist Church b. Agatha Corbin, President & CEO, Community Development Corporation Resource Consortium, Inc. 12. Memorandum in support of sanction 13. Motion to Dismiss for Failure to Make Payments, United States Bankruptcy Court, Southem District of Ohio, case 3:09-bk CONCLUSION The above are stipulated to and entered into by agreement by the undersigned parties on this I day of June, Respectfully submitted, Jonathan E. Cfughlan ( ) Disciplinar}/qounsel ^k Q^^ cr vlit^ j ^- CG Heather L. Hissom ( ) Assistant Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio

9 CASEY HOLT Notary Public, State of Texas My Commission Expires August 11, 2014 Fitzger T. Murraine`( mok Road Arlington, TX

10 STATE OF TEXAS ) ) ss: COUNTY OF } AFFIDAVIT I, Fitzgerald Terrance Murraine, having been duly swom according to the laws of Ohio, hereby depose and say: 1. That I am at least 18 years of age. 2. That I have read the Agreement for Consent to Discipline. 3. That I admit to having engaged in the misconduct described in paragraphs 2-19 of the Agreement for Consent to Discipline. 4. That I admit to having violated all of the provisions of the Rules of Professional Conduct as stated in Agreement for Consent to Discipline. 5. That I agree to the Joint Recommended Sanction of a one year suspension with the entire time suspended. 6. That I have entered into the Agreement for Consent to Discipline freely and voluntarily and without coercion or duress. 7. That I am aware of the implications of the admissions and the joint stipulated sanction on my ability to practice law in Ohio. 8. That I understand that the Agreement for Consent to Discipline must be accepted by the Supreme Court of Ohio and that the Court has the ability to modify the sanction. FURTHER AFFIANT SAYETH NAUGHT. SWORN TO BEFORE ME AND SUBSCRIBED IN MY PRESE DAYOF CASEY HOLT Notary Pubtic, State of Texas My Commission Expires August 11,

11 In re: Complaint against BEFORE THEBOARD OF COMMISSIONERS ON GRIEVANCES ANI) DISCIPLINE OF THE SUPREME COURT OF OHIO ^^^^^ FFB ) 4 20&t BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE Fitzgerald Terrance Murraine, Esq Oak Brook Road Arlington, TX No. Attorney Registration No.( ) Respondent, Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio Relator. COMPLAINT AND CERTIFICATE (Rule V of the Supreme Court Rules for the Government of the Bar of Ohio.) REC..r'M`t^D JAN 1;:2011 BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE Now comes the relator and alleges that Fitzgerald Terrance Murraine, an Attorney at Law, duly admitted to the practice of law in the state of Ohio is guilty of the following misconduct: 1. Respondent, Fitzgerald Terrance Murraine, was admitted to the practice of law in the state of Ohio on April 16, Respondent is subject to the Code of Professional Responsibility, Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. 2. On December 17, 2009, respondent and his wife filed for Chapter 13 bankruptcy in the U.S. Bankruptcy Court, Southem District of Ohio, Case No. 3:09-bk At the time, respondent had a lawyer's trust account at National City Bank, n.k.a. PNC.

12 4. In December 2009, respondent stopped using his long-standing personal account at a credit union and began to use his IOLTA as a personal bank account. Respondent deposited his City of Dayton payroll checks into the IOLTA. 5. At the same time, respondent had a part-time law practice and was also depositing client funds to the IOLTA. 6. ; Pursuant to respondent's client ledgers, respondent deposited a total of $5,147 in legal fees, court costs and escrow funds into the IOLTA on behalf of clients between December 2009 and May Respondent stopped using the IOLTA as a personal account in May Between December 2009 and May 2010, respondent wrote checks for groceries, cell phone service, replacement cell phones, holiday gifts, charitable donations and utilities from his IOLTA. The following are personal checks-that respondent wrote from his IOLTA: Date Check No. Payee Amount $ 3/21/ Tasty Fresh 247 3/14/ Tasty Fresh 145 3/1-2/ Cash (CIC ) 540 3/13/ Tasty Bird 153 3/9/ Tasty & Fresh 160 3/1/ Tasty Bird 338 2/21/ Tasty Fresh 334 2/20/ Samaya 120 2/20/ Samaa 150 3/15/ Tasty Fresh /20/ Vicky Good 100 1/12/ Tasty Fresh 200 2/8/ Tast.Fr_esh 255 2/2/ Tasty Fresh 302 1/31/ Dixon UMC 100 1/27/ Tasty Fresh 205 1/23/ Tas Fresh 300 1/21/ Arrow Wine

13 1/20/ Tast Fresh /17/ Kevin Simmons 50 1/18/ Tasty Bird /18/ Dixon UMC /18/ Ebeneezer Mem. Baptist 50 12/30/ Arrow Wine /18/ Rev. Kate Wilson 50 12/22/ Vernell Murraine 50 12/24/ Carolyn Brooks /23/ Dayton Eye Assoc /18/ Pastor Don Wilson 50 12/18/ Catholic Social Services 25 12/18/ Evangeline Donnelly 50 12/14/ Cash /13/ Tasty Bird /8/ Tasty Fresh /5/ Tasty Fresh /6/ Tasty Fresh 75 12/3/ Tasty Bird Respondent also paid for expenses for his law office from his IOLTA, including post office box fees (check # 1966) and a recurring monthly electronic bill pay to AOL. 10. Respondent's conduct violates the following: Prof. Cond. R. 1.15(a) [A lawyer shall hold property of clients separate from a lawyer's own property];. Prof. Cond. R. 1.15(b) [A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying or obtaining a waiver of bank service charges, but only in the amount necessary for that purpose); and Prof. Cond. R. 8.4(h) [A lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law.]

14 CONCLUSION Wherefore, pursuant to Gov. Bar R. V, the Code of Professional Responsibility and Rules of Professional Conduct, relator alleges that respondent is chargeable with misconduct; therefore, relator requests that respondent be disciplined pursuant to Rule V of the Rules of the Government of the Bar of Ohio. Jonathan El gafighlan ( ) DisciplinaoCounsel H ther L. Hissom ( ) Assistant Disciplinary Counsel 250 Civic Center Drive, Suite 325 Columbus, Ohio

15 CERTIFICATE The undersigned, Jonathan E. Coughlan, Disciplinary Counsel, of the Office of Disciplinary Counsel of the Supreme Court of Ohio hereby certifies that Heather L. Hissom is duly authorized to represent relator in the premises and has accepted the responsibility of prosecuting the complaint to its conclusion. After investigation, relator believes reasonable cause exists to wan-ant a hearing on such complaint. Dated: JANUARY 27, 2011 Gov. Bar R. V, 4(1) Requirements for Filing a Complaint (1) Definition. "Complaint" means a formal written allegation of misconduct or mental illness of a person designated as the respondent. s^s (7) Complaint Filed by Certified Grievance Committee. Six copies of all complaints shall be filed with the Secretary of the Board. Complaints filed by a Certified Grievance Committee shall be filed in the name of the committee as relator. The complaint shall not be accepted for filing unless signed by one or more attorneys admitted to the practice of law in Ohio, who shall be counsel for the relator. The complaint shall be accompanied by a written certification, signed by the president, secretary, orchair of the Certified Grievance Committee, that the counsel are authorized to represent the relator in the action and have accepted the responsibility of prosecuting the complaint to conclusion. The certification shall constitute the authorization of the counsel to represent the relator in the action as fully and completely as if designated and appointed by order of the Supreme Court with all the privileges and immunities of an officer of the Supreme Court. The complaint also may be signed by the grievant. (8) Complaint Filed by Disciplinary Counsel. Six copies of all complaints shall be filed with the Secretary of the Board. Complaints filed by the Disciplinary Counsel shall be filed in the name of the Disciplinary Counsel as relator. (9) Service. Upon the filing of a complaint with the Secretary of the Board, the relator shall forward a copy of the complaint to the Disciplinary Counsel, the Certified Grievance Committee of the Ohio State Bar Association, the local bar association, and any Certified Grievance Comnrittee serving the county or counties in which the respondent resides and maintains an office and for the county from which the complaint arose.