Disciplinary Counsel v. Murraine

[Cite as Disciplinary Counsel v. Murraine, 130 Ohio St.3d 397, 2011-Ohio-5795.]

DISCIPLINARY COUNSEL v. MURRAINE.

[Cite as Disciplinary Counsel v. Murraine,

130 Ohio St.3d 397, 2011-Ohio-5795.]

Attorney misconduct—Consent to discipline—Misuse of client trust account—

One-year stayed suspension.

(No. 2011-1042—Submitted August 8, 2011—Decided November 17, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-001.

__________________

Per Curiam.

{¶ 1} Fitzgerald Terrance Murraine of Arlington, Texas, Attorney

Registration No. 0073209, was admitted to the practice of law in Ohio in 2001.1

Murraine’s license to practice law was suspended on December 23, 2009, for

failure to comply with the continuing-legal-education (“CLE”) requirements of

Gov.Bar R. X for the 2005, 2007, and 2009 reporting periods. In re Continuing

Legal Edn. Suspension of Murraine, 124 Ohio St.3d 1402, 2009-Ohio-6833, 918

N.E.2d 1010. That suspension remains in effect, and Murraine’s attorney

registration is currently inactive.

{¶ 2} Relator, Disciplinary Counsel, charged respondent with several

violations of the Rules of Professional Conduct arising from his use of his client

trust account as a personal checking account. The parties entered into and timely

filed a consent-to-discipline agreement pursuant to Section 11 of the Rules and

Regulations Governing Procedure on Complaints and Hearings Before the Board

of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). After the

1. It appears that Murraine is also licensed to practice law in Maryland and Pennsylvania,

although his registrations are inactive.

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assigned panel of the Board of Commissioners on Grievances and Discipline

requested additional information, the parties submitted an amended consent-to-

discipline agreement.

{¶ 3} The panel and board have recommended that we accept the

amended consent-to-discipline agreement. We adopt this recommendation, and

we order that respondent be suspended from the practice of law in Ohio for one

year, with the entire suspension stayed on the condition that he commit no further

misconduct.

Misconduct

{¶ 4} The stipulated facts of this case demonstrate that respondent was

the Supervisor of Contract Compliance and Special Programs for the city of

Dayton and also had a small private legal practice. In December 2009, Murraine

and his wife filed for Chapter 13 bankruptcy. At that time, Murraine stopped

using his personal credit-union account and began to use his client trust account

as a personal bank account. From December 2009 through May 2010, he

deposited his payroll checks into his client trust account and wrote checks for his

personal and business expenses against it.

{¶ 5} Although Murraine commingled personal and client funds in his

client trust account, there is no evidence that he used client funds to pay his

personal expenses. Nor is there any evidence that he used his client trust account

in an effort to defraud his creditors. The parties agree that respondent has

properly reported all income and debts on his bankruptcy petition.

{¶ 6} The parties have stipulated, the board has found, and we agree that

respondent’s use of his client trust account violated Prof.Cond.R. 1.15(a)

(requiring a lawyer to hold property of clients in an interest-bearing client trust

account, separate from the lawyer’s own property), 1.15(b) (permitting a lawyer

to deposit his or her own funds in a client trust account for the sole purpose of

paying or obtaining a waiver of bank service charges), and 8.4(h) (prohibiting a

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lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to

practice law). We adopt these findings of fact and misconduct.

Sanction

{¶ 7} In recommending a sanction for respondent’s misconduct, the

board considered the aggravating and mitigating factors listed in BCGD Proc.Reg.

10. The parties have not stipulated to, and the board has not found, any

aggravating factors. See BCGD Proc.Reg. 10(B)(1)(a) through (i). They cite

several mitigating factors, however, including Murraine’s lack of a prior

disciplinary record,2 his full and free disclosure and cooperative attitude during

the disciplinary proceedings, and evidence of his good character and reputation.

See BCGD Proc.Reg. 10(B)(2)(a), (d), and (e). The parties also note that none of

Murraine’s clients were harmed by his conduct. He has closed his client trust

account and relocated to Texas, and he is not currently engaged in the practice of

law.

{¶ 8} The parties have stipulated that a one-year stayed suspension is the

appropriate sanction for Murraine’s misconduct. In their support of this sanction,

the parties cite Disciplinary Counsel v. Johnston, 121 Ohio St.3d 403, 2009-Ohio-

1432, 904 N.E.2d 892. In Johnston, we imposed a one-year suspension, all stayed

on the condition that Johnston serve one year of monitored probation and

complete six hours of CLE in law-office management and accounting for conduct

comparable to that of Murraine. Id. at ¶ 5-9, 16. Johnston’s conduct was

arguably more egregious than Murraine’s in that Johnston overdrew his client

trust account on 22 separate occasions over a two-year period and bounced a

check to a client, though he quickly reimbursed the client for the check and the

associated bank charges. Id. at ¶ 8-9. Based upon these factual differences and

2. Gov.Bar R. X(5)(C) prohibits consideration of an attorney’s failure to comply with CLE

requirements in the imposition of a sanction under Gov.Bar R. V(8).

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the fact that respondent has relocated to Texas and is not currently practicing law,

we agree that a one-year stayed suspension is the appropriate sanction in this case.

{¶ 9} Accordingly, Fitzgerald Terrance Murraine is suspended from the

practice of law for one year, with the entire suspension stayed on the condition

that he commit no further misconduct. The sanction shall not commence until

Murraine’s current suspension for failure to meet his CLE requirements is

terminated and he returns to active attorney-registration status. If he fails to

comply with the condition of the stay, the stay will be lifted, and he will serve the

full one-year suspension. Costs are taxed to Murraine.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,

Assistant Disciplinary Counsel, for relator.

Fitzgerald Terrance Murraine, pro se.

______________________

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