In re Murrin

• Decision Date: 19 September 2012
• Docket Number: No. A11–0108.,A11–0108.
• Citation: 821 N.W.2d 195
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST John O. MURRIN, III, a Minnesota Attorney, Registration No. 7679X.
• Court: Minnesota Supreme Court

821 N.W.2d 195

In re Petition for DISCIPLINARY ACTION AGAINST John O. MURRIN, III, a Minnesota Attorney, Registration No. 7679X.

No. A11–0108.

Supreme Court of Minnesota.

Sept. 19, 2012.

Syllabus by the Court

1. The referee assigned to conduct an attorney discipline evidentiary hearing did not clearly err in finding that an attorney violated Minn. R. Prof. Conduct 3.2 and 8.4(d) when the attorney repeatedly filed voluminous and frivolous pleadings in three separate actions in three different courts.

2. A suspension for 6 months with the requirement that the attorney petition for reinstatement at the end of the suspension is the appropriate discipline for an attorney found to have violated Minn. R. Prof. Conduct 3.2 and 8.4(d) by repeatedly filing voluminous and frivolous pleadings in three separate court actions.

Martin A. Cole, Director, Kevin T. Slator, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

John O. Murrin, III, Long Beach, CA, pro se.

OPINION

PER CURIAM.

In December 2010, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against Respondent John O. Murrin, III, alleging that Murrin had violated Minn. R. Prof. Conduct 3.2 and 8.4(d). The Director's allegations arose from Murrin's conduct while attempting to recoup money Murrin lost in a Ponzi scheme.¹ More specifically, the alleged misconduct involved legal actions Murrin commenced in three separate courts: (1) Hennepin County District Court, (2) United States District Court for the District of Minnesota, and (3) United States Bankruptcy Court for the District of Minnesota. We assigned a referee to conduct an evidentiary hearing on the petition. After conducting the evidentiary hearing, the referee found that Murrin violated Minn. R. Prof. Conduct 3.2 and 8.4(d) in each of the three courts and recommended that Murrin be suspended from the practice of law for 1 year.

On appeal to our court, Murrin makes the following four primary arguments: (1) the Director exceeded his authority under Rule 8(a) of the Rules on Lawyers Professional Responsibility (RLPR) by conducting an investigation into Murrin's conduct without the approval of the Executive Committee of the Lawyers Professional Responsibility Board; (2) the referee gave improper collateral estoppel effect to certain court orders and admonishments by judges who presided over Murrin's actions; (3) certain aspects of the disciplinary proceedings deprived Murrin of due process; and (4) Murrin did not engage in unprofessional conduct warranting discipline. We conclude that the referee's findings are not clearly erroneous and hold that Murrin violated Minn. R. Prof. Conduct 3.2 and 8.4(d), and that he should be suspended from the practice of law for 6 months.

Respondent John O. Murrin III was admitted to practice law in Minnesota in 1978. Before this disciplinary proceeding, Murrin's disciplinary history included two admonishments: (1) one in 1985 for improper behavior at a deposition, and (2) the other in 1999 for offering an improper employment agreement. During his career, Murrin practiced bankruptcy, divorce, and trade practices law, as well as general litigation. Murrin is now semi-retired.

In 2004, Murrin and his wife invested $600,000 in Avidigm Capital Group, Inc., a real estate organization. Avidigm agreed to make interest payments to the Murrins for 15 months and then return the principal of $600,000 to the Murrins. At first, Avidigm made regular interest payments to the Murrins. But in 2006, the Murrins became aware that Avidigm was no longer making payments. Additionally, Avidigm failed to return the Murrins' principal investment and a $900,000 security in land that Avidigm earlier had offered to protect the Murrins' investment turned out to be worth $200. After conducting an investigation of Avidigm, the Murrins discovered that Avidigm was operating a Ponzi scheme, and that the Murrins had been defrauded.

In 2007, Murrin and/or his wife commenced three separate actions in three different courts against Avidigm and the individuals allegedly responsible for the fraud. Murrin, his wife, and another lawyer, Christopher LaNave, each represented the Murrins in various capacities. The Director requests that we discipline Murrin based on Murrin's conduct in these three actions. We will review of the facts of each of these actions in turn.

Action in Hennepin County District Court

On January 12, 2007, Murrin's wife filed a Summons and Complaint in Hennepin County District Court, listing herself as a pro se attorney. A month later, on February12, 2007, Murrin filed a First Amended Complaint and signed the complaint as “Attorney for Plaintiff.” The amended complaint named nearly 50 defendants, contained 493 paragraphs on 131 pages, and listed 27 counts.

On April 20, 2007, Murrin filed a motion to amend his First Amended Complaint to include an additional defendant. The district court granted the motion and Murrin filed a Second Amended Complaint, which named the new defendant and asserted an additional count against the defendant. In June 2007, that defendant removed the case to the United States District Court for the District of Minnesota. Murrin moved to remand the case to state district court. The federal district court granted Murrin's motion and remanded the case to state district court, where a state district court judge, other than the judge who previously heard the case, presided. After reviewing the case on remand, the state district court considered the Second Amended Complaint to be the operative complaint.

On January 9, 2008, Murrin filed a motion requesting leave to file a Third Amended Complaint. Murrin signed the Third Amended Complaint as the attorney. On January 10, 2008, three defendants appeared before the district court and argued that they “were unable to determine what claims were being leveled against them.” The court “independently reached the same conclusion” and on January 15 ordered Murrin to “provide the Court and opposing parties with a chart clearly delineating which claim is being pursued against which Defendant for each cause of action contained in the Second Amended Complaint.” On January 25, Murrin submitted a chart to the court, but the court concluded that the “chart provided no further clarification to the Court or to Defendants.” On February 14, the district court denied Murrin's motion to file the proposed Third Amended Complaint because the court concluded that the “[d]efendants [stood] to suffer prejudice if [Murrin were] granted leave to amend.”

The court explained that both the Second and proposed Third Amended Complaint “were incomprehensible and rife with errors.” For example, the court stated that the complaints “failed to provide accurate statutory citations and consequently alleged that Defendants violated statutes regarding Minnesota's unorganized militia statute,” as well as other unrelated statutes. Further, the court stated that in addition to “cit[ing] to statutes which have been repealed, renumbered, or never existed,” the complaints “lumped distinct causes of action into single counts.” Finally, the court stated that the “flaws [in the Second Amended Complaint] have not been adequately addressed by the Third Amended Complaint.” The court noted that Murrin's “Third Amended Complaint is 187 pages in length and contains 777 individually numbered paragraphs. As with the Second Amended Complaint, it is unclear what claims are being asserted and on which factual allegations [Murrin] relies.” Thus, in addition to denying Murrin's motion to file a Third Amended Complaint, the court concluded that Murrin's Second Amended Complaint failed to comply with Minn. R. Civ. P. 8.01, which requires complaints to contain a “short and plain statement of the claim,” and Minn. R. Civ. P. 8.05(a), which requires that each averment of a pleading is “simple, concise, and direct.”

On April 11, Murrin filed a motion requesting leave to file a Fourth Amended Complaint. Murrin signed the Fourth Amended Complaint, which named 43 defendants, contained 1,668 numbered paragraphs on 272 pages, and listed 132 counts. The district court subsequently denied Murrin's motion to amend because Murrin “continue[d] to allege claims that could not be made as a matter of law or on the known factual record.”

On April 29, the parties appeared before the district court for a hearing. At this hearing, the defendants indicated that they intended to pursue sanctions against Murrin. The court later stated that following this hearing, Murrin was “aware that [his] behavior in litigating this case was sanctionable.”

Before the district court had an opportunity to rule on Murrin's motion to file the Fourth Amended Complaint, Murrin filed a Fifth Amended Complaint. The Fifth Amended Complaint named 43 defendants, contained 945 paragraphs on 165 pages, and listed 64 counts. The court later noted that the Fifth Amended Complaint “again ... allege[d] claims that could not be made as a matter of law or on the known factual record and alleges claims against Defendants with whom [Murrin] had already settled or parties who were no longer part of the case.”

On June 13, the district court dismissed with prejudice the Second Amended Complaint in its entirety against all but two defendants. For the two remaining defendants, the court dismissed the Second Amended Complaint without prejudice. The court concluded that the complaint “violated Rules 8.01, 8.05, 9.02, and 10.02 of the Minnesota Rules of Civil Procedure and failed to give Defendants fair notice of the claims alleged against them.” In dismissing the complaint, the court noted that Murrin “abused the litigation process and ... refused to follow the rules and directives of the court. A sanction under Rule 41.02(a) is justified.” The court then dismissed the Murrins' lawsuit as to all defendants. The court also granted...