The Florida Bar Re: Brian John Murtha ( 2021 )

Supreme Court of Florida
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No. SC19-1886
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THE FLORIDA BAR
RE: BRIAN JOHN MURTHA
October 21, 2021
PER CURIAM.
This case is before the Court on the petition of Brian John
Murtha for reinstatement to the practice of law. We have
jurisdiction. See art. V, § 15, Fla. Const. For the reasons explained
below, we disapprove of the referee’s findings and recommendation
and deny the petition for reinstatement.
I
Pursuant to this Court’s order approving the recommendation
of a referee in two consolidated cases, Murtha was suspended from
the practice of law for ninety-one days, effective thirty days after
October 13, 2016. Fla. Bar v. Murtha, Nos. SC15-2011 & SC16-
581, 2016 WL 5944709 (Fla. Oct. 13, 2016). In those cases,
Murtha was found to have violated Rules Regulating the Florida Bar
(rules) 4-1.15 (Safekeeping Property); 4-1.3 (Diligence); 4-1.4
(Communication); 4-8.4(g) (Misconduct); 5-1.1(b) (Trust Accounts;
Application of Trust Funds or Property to Specific Purpose); 5-1.1(j)
(Disbursement Against Uncollected Funds); and former 5-1.2(b)(3),
(5), (6), and (c)(1) (Trust Accounting Records and Procedures).
Pursuant to the suspension order, Murtha was ordered to comply
with rule 3-5.1(h), under which he was required to notify his clients
and the courts in which he was counsel of record of his suspension
and provide a sworn affidavit to the Bar listing those who were
notified.
Murtha did not notify the courts in at least three separate
cases in which he was counsel of record. The Court held Murtha in
contempt for his noncompliance with the suspension order, and on
October 16, 2017, suspended him from the practice of law for one
additional year. Fla. Bar v. Murtha, No. SC17-1452, 2017 WL
4585663 (Fla. Oct. 16, 2017).
On November 6, 2019, Murtha filed a petition for
reinstatement. This is Murtha’s third petition for reinstatement; he
voluntarily dismissed two prior petitions. See Fla. Bar re Murtha,
No. SC17-988, 2017 WL 5898506 (Fla. Nov. 30, 2017); Fla. Bar re
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Murtha, No. SC18-1737, 2019 WL 2587841 (Fla. Jun. 24, 2019).
Murtha’s petition now before us was referred to a referee, who, over
the Bar’s objections, ordered the Bar and Murtha to engage in
formal civil mediation. In ordering mediation, the referee noted that
the Bar could agree to stipulate to the issue of reinstatement and
fully resolve the case. Alternatively, the referee hoped that
mediation would facilitate the Bar and Murtha agreeing to narrow
any issues in contention before the final hearing. The mediation
resulted in a joint pretrial statement wherein Murtha and the Bar
stipulated to the admissibility of exhibits and agreed on certain
mitigation but there was no agreement on the issue of disqualifying
conduct or as to reinstatement.
After mediation, the referee held a final hearing and submitted
a report recommending that Murtha’s petition be granted and that
he be reinstated to the practice of law. The referee found that there
was no evidence that Murtha engaged in the practice of law during
his suspension and that he had proven his rehabilitation and
fitness to resume the practice of law by clear and convincing
evidence, which outweighed any evidence of potentially
disqualifying conduct. The referee indicated that the underlying
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misconduct for which Murtha was suspended was due to his
“sloppy” procedures in running his law practice of debt collection
and business litigation and in handling his personal finances. This
sloppiness stemmed from stress, anxiety, and depression related to
Murtha’s wife having suffered a serious medical condition, his
mother-in-law having suffered a serious medical issue that resulted
in her death, and a friend having recently died. The referee also
noted that the witnesses who testified at the final hearing, including
the original complaining witness, had positive interactions with
Murtha. He was described as a “pleasant, personable, and
knowledgeable attorney” who positively contributed to his
community and is remorseful for his misconduct. Further, the
referee highlighted that Murtha did not misappropriate client funds
for personal gain but instead was merely “sloppy” with record
keeping.
Beyond these limited findings of fact, the referee’s report did
not directly address the elements of rehabilitation in rule 3-
7.10(f)(3), other than to say that they were met. Nor did the referee
address the Bar’s allegations that Murtha engaged in disqualifying
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conduct, 1 other than to note that Murtha’s evidence of
rehabilitation outweighed any such conduct.
The referee recommended that Murtha be reinstated
conditioned on an eighteen-month probationary period, requiring
Murtha to comply with seven conditions during that time. The
conditions were: (1) not writing or depositing checks for his law
practice; (2) hiring a CPA to review his accounts every two months;
(3) having the CPA report to the Bar any violations and prepare any
tax returns; (4) completing five CLE credits each month starting
October 1, 2020, focused on trust accounting or mental health
issues; (5) meeting with a licensed mental health counselor at least
twice a month and filing of a monthly notice of compliance; (6)
giving a presentation once a month, starting in October 2020, to
other Florida lawyers about failing to seek treatment for depression
and anxiety and filing a monthly notice of compliance; and (7)
1. The Bar claimed that while suspended, Murtha engaged in
the following conduct which the Bar argued was disqualifying under
rule 3-7.10(f)(1): misconduct in employment; financial
irresponsibility; neglect of professional obligations; violation of an
order of a court; and evidence of mental or emotional instability.
The specific instances of disqualifying misconduct are discussed
below.
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agreeing that any violation of these terms would allow the Bar to
seek additional discipline from this Court. Since the referee
directed in his report that these conditions start in October 2020,
rather than upon approval by the Court, Murtha has filed multiple
notices with the Court stating his compliance with the conditions.
The Bar seeks review of the referee’s findings and recommendation
that Murtha be reinstated, raising two issues.
II
First, the Bar argues that the referee erred in ordering formal
civil mediation prior to the final hearing in this reinstatement
proceeding. The Bar asks this Court to make clear that formal civil
mediation is inappropriate in Bar proceedings. We conclude that
the referee’s order of civil mediation in this case was inappropriate
and merely delayed the proceedings. We decline at this time to
address whether formal civil mediation is appropriate in any Bar
proceeding.
Rule 3-7.10 governs the procedures for reinstatement of a
lawyer who is ineligible to practice law due to a court-ordered
disciplinary suspension of ninety-one days or more. Rule 3-7.10(d)
provides that after the suspended lawyer files a petition for
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reinstatement, the chief justice refers the petition to a referee for
hearing. Rule 3-7.10(f) states that the “referee to whom the petition
for reinstatement is referred must conduct the hearing as a trial”
and the “referee must decide the fitness of the petitioner to resume
the practice of law.” R. Regulating Fla. Bar 3-7.10(f) (emphasis
added). The rule’s use of the word “must” makes clear that the
referee’s discretion is restrained and that he or she is required to
conduct a hearing and decide the fitness of the petitioner.
The exception to the requirement for a formal hearing is that
the Bar can stipulate to the issue of reinstatement in a summary
procedure. Such a stipulation can occur only if “after the
completion of discovery bar counsel is unable to discover any
evidence on which denial of reinstatement may be based.” R.
Regulating Fla. Bar 3-7.10(g)(4).
Here, according to the record, the referee believed that the Bar
could stipulate to the issue of Murtha’s reinstatement. However,
because there was evidence of disqualification on which the denial
of reinstatement could be based, the Bar did not in fact have that
authority. Thus, the referee erred in referring the Bar and Murtha
to civil mediation, since the referee was required to hold a final
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hearing and to make a determination on Murtha’s fitness to return
to the practice of law. Because the case could not be “settled” in a
mediation proceeding and any narrowing of issues required might
have occurred before the referee, civil mediation was inappropriate
in this case. As to the joint pretrial stipulation, the Bar routinely
makes such agreements without being ordered to formal mediation.
The Bar asks the Court to reject the use of civil mediation in
all Bar proceedings. However, since rule 3-7.6(f)(1) states that the
Rules of Civil Procedure apply to Bar proceedings except as
otherwise provided, and civil mediation is not prohibited elsewhere
in the rule, the issue of whether civil mediation should be
prohibited in Bar cases would be more appropriately addressed
through a rule change. Therefore, we will separately refer the issue
to the Bar for consideration.
The Bar also argues that, since Murtha has engaged in
disqualifying conduct while suspended, he has not demonstrated
that he has been rehabilitated. The Bar contends, therefore, that
the referee’s report and recommendation that Murtha be reinstated
should be disapproved and the petition should be denied. We agree
with the Bar.
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A petitioner seeking reinstatement to the Bar must establish
by clear and convincing evidence that he or she has satisfied the
criteria in rule 3-7.10. Under rule 3-7.10(f), a referee must
determine a petitioner’s fitness to resume the practice of law. “In
making this determination, the referee will consider whether the
petitioner has engaged in any disqualifying conduct, the character
and fitness of the petitioner, and whether the petitioner has been
rehabilitated . . . .” R. Regulating Fla. Bar 3-7.10(f). Specific
categories of disqualifying conduct are set out in the rule, as well as
factors to be considered in assigning weight and significance to
prior conduct and specific “elements of rehabilitation.” R.
Regulating Fla. Bar 3-7.10(f)(1)-(3).
Before this Court, “the party seeking review of the referee’s
recommendation has the burden to demonstrate that the report is
erroneous, unlawful, or unjustified.” Fla. Bar re Dunagan, 775 So.
2d 959, 961 (Fla. 2000) (quoting Fla. Bar re Grusmark, 662 So. 2d
1235, 1236 (Fla. 1995)). With “regard to the referee’s legal
conclusions and recommendations, the Court’s scope of review is
wider because we have the ultimate responsibility to enter the
appropriate judgment.” Id. (quoting Grusmark, 662 So. 2d at 1236).
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Here, since the referee is recommending that Murtha has met the
criteria and should be reinstated, the burden is on the Bar to
demonstrate that the referee’s report is erroneous, unlawful, or
unjustified.
We find that the Bar has met that burden. Without
referencing rule 3-7.10(f), the referee concluded in his report that
Murtha had satisfied all the elements for reinstatement. The referee
found that Murtha had proven “his rehabilitation and his fitness to
resume the practice of law” by “clear and convincing evidence that
outweighs any evidence of potentially disqualifying conduct.”
Despite this legal conclusion, the referee does not specifically
address the disqualifying conduct alleged by the Bar or provide any
analysis as to how the evidence of rehabilitation outweighs the
disqualifying conduct.
At the final hearing, the Bar presented evidence of
disqualifying conduct that occurred while Murtha was suspended.
In violation of rule 3-7.10(f)(1)(D), misconduct in employment, while
suspended, Murtha failed to provide quarterly reports as required
by rule 3-6.1(e) based on his drafting of legal complaints and
conducting legal research for cases for his brother’s law firm.
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Although Murtha initially filed the reports, he stopped doing so
because he did not believe that the work he was providing for his
brother necessitated the continued filing of reports.
Further, under rule 3-7.10(f)(1)(G), financial irresponsibly,
Murtha filed late and incorrect tax returns during the period of
suspension. Murtha did not hire a CPA to prepare his taxes;
instead, he used TurboTax and appears to have neglected to report
income from his law firm on his personal taxes and filed incorrect
forms for his law firm. Murtha claimed he was advised that he did
not need to file based on his level of income, and that his tax
returns “looked okay,” but no one testified at the final hearing that
they advised Murtha on his taxes. Murtha’s tax forms were not, in
fact, “okay.” Especially in light of the condition of his suspension
requiring regular consultation with a CPA, prudence would have
dictated that he obtain the advice of a professional.
Additionally, while suspended, Murtha left his operating
account overdrawn for 524 days, which resulted in bank fees of
approximately $18,000. Compounding the imprudence reflected in
having managed his affairs this way is the fact that he was
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overdrawn by approximately $1,500, less than a tenth of the
amount in fees he ultimately incurred.
This conduct occurred well into Murtha’s suspension, and
even after he had previously petitioned for reinstatement. As the
Bar correctly argues, this behavior does not demonstrate that
Murtha has been rehabilitated and since the underlying misconduct
that caused the original suspension was financial in nature, this
factor “weighs especially heavy here because this same weakness
caused or contributed to the conduct that led to [Petitioner’s]
suspension in the first place.” Fla. Bar re Wolf, 21 So. 3d 15, 18
(Fla. 2009).
Moreover, despite having been suspended in November 2016,
Murtha continued to make deposits and write checks from his trust
account until at least February 2017, and he did not arrange for an
inventory attorney. Funds remained in his trust account until
September 2019, long after they should have been disbursed.
Murtha claims that he was unaware that he was violating the
suspension order by continuing to use his trust account and was
unaware that he needed to hire an inventory attorney. All members
of the Bar are “within the jurisdiction and subject to the
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disciplinary authority” of this Court and are “charged with notice
and held to know the provisions of this rule and the standards of
ethical and professional conduct prescribed by this court.” R.
Regulating Fla. Bar 3-4.1. As mentioned above, this factor weighs
heavily because trust accounting irregularities were part of the
original underlying misconduct.
All these violations of the suspension order refute the referee’s
assertion that all of the elements for reinstatement have been met.
For this reason, we find the referee’s recommendation lacks a basis
in the rules and existing case law. See Wolf, 21 So. 3d at 18(denying reinstatement of a lawyer who practiced law while under
suspension and was financially irresponsible); Fla. Bar re Shores,
587 So. 2d 1313 (Fla. 1991) (same). While suspended, Murtha used
his trust account, did not file the required quarterly reports of the
legal work performed for his brother’s firm, mismanaged his
operating account, and self-filed late and incorrect tax forms that
have not been corrected. Accordingly, Murtha has failed to
demonstrate that he has been rehabilitated and the referee’s
conclusion in opposition is not supported by the record.
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III
The referee’s recommendation is disapproved. Brian John
Murtha’s petition for reinstatement is hereby denied. Judgment is
entered for The Florida Bar, 651 East Jefferson Street, Tallahassee,
Florida 32399-2300, for recovery of costs from Brian John Murtha,
in the amount of $9,951.96, for which sum let execution issue.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
Original Proceeding – The Florida Bar
Brett Alan Geer of The Geer Law Firm, L.C., Tampa, Florida,
for Petitioner
Joshua E. Doyle, Executive Director, Patricia Ann Toro Savitz, Staff
Counsel, The Florida Bar, Tallahassee, Florida, and Daniel James
Quinn, Bar Counsel, The Florida Bar, Orlando, Florida; and Chris
W. Altenbernd of Banker Lopez Gassler P.A., Tampa, Florida,
for Respondent
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