People v. Murray
| Decision Date | 19 December 1994 |
| Docket Number | No. 94SA161,94SA161 |
| Citation | 887 P.2d 1016 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Mack Edward MURRAY, Jr., Attorney-Respondent. |
| Court | Colorado Supreme Court |
Linda Donnelly, Disciplinary Counsel, John S. Gleason, Asst. Disciplinary Counsel, Denver, for complainant.
Mack Edward Murray, Jr., pro se.
Richard S. Gross, Denver, amicus curiae.
A hearing panel of the Supreme Court Grievance Committee unanimously approved the findings of fact of a majority of the hearing board and the recommendation that the respondent 1 be disbarred, be ordered to pay restitution, and be assessed costs. The respondent has filed exceptions to the factual findings and recommendation of the hearing board and panel. After considering the record and the seriousness of the respondent's misconduct, we accept the hearing panel's recommendations, but order that the disbarment be effective on the issuance of this opinion.
The assistant disciplinary counsel filed two formal complaints against the respondent. The first, GC 92A-54, contained one count of misconduct, while the second complaint, GC 93A-90, had eleven counts. The two complaints were consolidated into one proceeding before the hearing board. In a fifty-page report, based on the evidence presented at the hearing, the board found that the following facts had been established by clear and convincing evidence. 2
The respondent represented Jeremy and Sandra Stuckey in a civil action against an insurer alleging that the insurer wrongfully failed to pay a claim. The matter was removed to federal district court. Between February 1991 and July 1992, the respondent's misconduct included failing to submit a settlement letter and failing to attend a settlement conference, failing twice to submit proposed pretrial orders and on two occasions failing to appear at scheduled pretrial conferences. The federal magistrate recommended to the district judge that the Stuckey case be dismissed for failure to prosecute. The respondent filed no objections to the magistrate's recommendations and he did not respond to a show cause order involving the defendants' attorney fees and costs. The case was dismissed for failure to prosecute, and the defendants' fees and costs were assessed against the Stuckeys. The respondent failed to pay the fees and costs as ordered, although he did pay a portion of the assessed fees late.
He then filed a substantially identical second civil action in federal district court. The respondent also filed, inexplicably, a motion for summary judgment in the first action, which had been dismissed eight months before. The motion was stricken, and the second complaint was dismissed on the ground that the dismissal of the first case constituted an adjudication on the merits under the federal rules.
The hearing board concluded that the respondent's conduct violated DR 1-102(A)(5) (); DR 6-101(A)(2) (); DR 6-101(A)(3) (); DR 7-101(A)(1) (); DR 7-101(A)(2) (); DR 7-101(A)(3) (); and DR 7-106(C)(5) (). The board also determined that the respondent's misconduct in the Stuckey matter was willful because of the respondent's repeated inaction while he was under an obligation to perform mandatory duties. People v. Farrant, 852 P.2d 452, 455 (Colo.1993).
The respondent was retained by Anthony Shapiro in May 1991 to defend him on assault charges pending in Jefferson County District Court. The respondent twice failed to appear for his client's arraignment, and missed the pretrial conference. He did not file any motions in the case, and did not present the affirmative defense of defense of a third person at trial, although the board found that the evidence supported such an affirmative defense. The jury found Shapiro guilty of assault and crime of violence.
The respondent argued for a "probationary structure" in Shapiro's sentence at the sentencing hearing, but the court pointed out that a sentence to the department of corrections was mandatory in Shapiro's case. The court sentenced the respondent's client to eight years in the department of corrections. The respondent then filed an erroneous notice of appeal. The notice of appeal identified the defendant by a completely different and wrong name, contained the heading for the incorrect court appealed from, as well as the wrong date of the defendant's sentencing, and indicated an intent to appeal the conviction and sentence to the United States Court of Appeals for the Tenth Circuit, rather than the Colorado Court of Appeals. The district court subsequently granted the respondent's motion to withdraw.
Although Shapiro's motion for post-conviction relief under Crim.P. 35(c) based on ineffective assistance of counsel was denied, the majority of the hearing board found that the respondent's conduct violated DR 6-101(A)(2) (), and DR 6-101(A)(3) ().
In April 1992, the respondent filed a civil action on behalf of his client, Eugene Robinson, asserting that Robinson had been injured in a slip and fall accident on or near the defendant's place of business. The respondent filed an incomplete disclosure certificate, a response to the defendant's motion for summary judgment which violated C.R.C.P. 56, he failed to appear for a court-ordered settlement conference, and did not submit a pretrial conference statement or a confidential settlement statement. He also arrived an hour late for the deposition of his own client.
The respondent's client had been treated by L. Barton Goldman, M.D., for head and back injuries sustained in the accident. The respondent and the defendant's lawyer agreed to take Dr. Goldman's deposition at the doctor's office. At the time scheduled for the deposition, the defendant's lawyer and the doctor appeared, but someone from the respondent's office called and stated that the respondent was in court and could not appear at the deposition. The deposition was reset, but again, although the defendant's lawyer and Dr. Goldman were present at the scheduled time, someone called from the respondent's office and said that he was detained and would not be able to attend.
Doctor Goldman twice requested payment in the amount of $875 for the canceled depositions, preparation time, and a deposit for testimony at trial, but the respondent ignored the requests and has not paid the doctor.
The Robinson case was eventually dismissed with prejudice based on the respondent's disregard of his discovery obligations, but the district court vacated the dismissal and instead entered an order and a judgment requiring the respondent and his client to pay $1,022.50 in attorney fees to the defendant's lawyer. The district court also barred introduction of Dr. Goldman's testimony at trial. No payments have been made on the judgment.
The hearing board concluded that the respondent's failure to honor his discovery obligations and to pay Dr. Goldman violated DR 1-102(A)(5) (), and DR 6-101(A)(3) ().
Doctor Truppo treated a patient for injuries received in an automobile accident. During the course of treatment, problems arose with the patient's insurance coverage. Doctor Truppo hired the respondent in November 1991 to collect medical bills from the patient's insurer. Truppo paid the respondent a $650 retainer on November 15. The respondent failed to deposit the $650, representing unearned attorney fees, and thus client funds, People v. Fritsche, 849 P.2d 31, 32 (Colo.1993), into a trust account (in fact the respondent did not even have a trust account). He also did not provide an accounting or refund the unearned fees, failed to answer the client's inquiries about the status of the case, took no action on the client's behalf for about one year, and did not promptly return client documents. When Truppo retained a new lawyer, the respondent again failed to provide an accounting, give a refund, or return the client's file upon request. In fact, the respondent provided no tangible services for Dr. Truppo.
As the hearing board determined, the respondent's conduct violated DR 6-101(A)(3) (), DR 7-101(A)(1) (), DR 7-101(A)(2) (), DR 9-102(A) (), DR 9-102(B)(3) (), and DR 9-102(B)(4) ().
The respondent was retained in September 1992 to defend Mary...
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