The Florida Bar Re: Brian John Murtha

• Court: Supreme Court of Florida
• Decided: October 21, 2021
• Docket: SC19-1886
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC19-1886 ____________

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

-2- 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

-3- 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

-4- 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.

-5- 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

-6- 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

-7- 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.

-8- 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).

-9- 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.

- 10 - 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

- 11 - 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

- 12 - 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.

- 13 - 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

- 14 -