Board of Overseers of the Bar v. Jennifer Murphy

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Docket No.: GCF #14-090

Issued by: Grievance Commission

Date: December 16, 2014

Respondent: Jennifer Murphy

Bar Number: 004839

Order: Reprimand

Disposition/Conduct: Failure to file "Notice Affidavit" after suspension; Failure to respond to Bar Counsel

M. Bar R. 7.1(e)(2)(E)

On December 16, 2014 with due notice, Panel C of the Grievance Commission conducted a public disciplinary hearing pursuant to Maine Bar Rule 7.1(e)(2)(E), on the issue of sanctions arising from misconduct by the respondent Jennifer Murphy. This disciplinary proceeding was commenced by a petition pursuant to M. Bar R. 7(1)(e) filed by Bar Counsel on September 18, 2014, alleging violations of M. Bar R. 7.3(i)(2)(A) and -(B), and M. R. of Prof. Conduct 8.1(b) and 8.4(a) and -(d).

Attorney Murphy was served in hand by the Kennebec County Sheriff’s Office on September 29, 2014. She filed no answer to the petition. Pursuant to M. Bar R. 7.1(e)(1), failure to file an answer means that the facts set forth and the misconduct alleged in the petition are admitted. Based on the operation of the rule and the unopposed allegations of Bar Counsel, the panel finds as follows: (a) Attorney Murphy was admitted to the practice of law in Maine in 2003. (b) Effective November 13, 2013, she was administratively suspended from practicing law by the Board of Overseers for failure to comply with the annual registration statement and continuing legal education filing requirements of M. Bar. R. 6(a) and 12(a). (c) Attorney Murphy failed to file the required “notification affidavit” attesting to her compliance with her obligation to inform clients and parties in interest of her suspension. (d) On May 13, 2014, Attorney Murphy promised to respond to the bar grievance initiated by Bar Counsel in a telephone conversation with Karen Mondor, Bar Counsel staff, but failed to do so. (e) The pending disciplinary petition was filed on September 18, 2014. (f) Attorney Murphy was served in hand with the Disciplinary Petition and summons by Kennebec County Deputy Sheriff Cook on September 29, 2014. (g) Attorney Murphy failed to file a written response to Bar Counsel as required by M. R. Prof. Conduct 8.1(b). (h) On December 11, 2014, Attorney Murphy was informed of the hearing on December 16 in a telephone conversation with Marilyn DeMichele, Bar Counsel staff.

At the hearing on December 16, the Board was represented by Bar Counsel J. Scott Davis, Esq.. Attorney Murphy did not appear.

Bar Counsel asks that the panel forward this matter to the Maine Supreme Judicial Court for further proceedings before a single justice or, as a fallback, issue a public reprimand.

Maine Bar Rule 2(a) provides that the purpose of bar disciplinary proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to discharge properly their professional responsibilities. Among the factors to be considered are: the duties violated; whether the attorney acted intentionally, knowingly or negligently; any actual or potential injury caused by the misconduct; and the existence of any aggravating or mitigating circumstances. M. Bar R. 7.1(e)(3)(C).

Annual registration is a simple duty with which an attorney can comply simply. Irrespective of its simplicity, annual registration is important. It is the mechanism by which the public is informed of the persons qualified and licensed to practice law in Maine. It represents a reaffirmation by those persons of their commitment to their duties and responsibilities as attorneys.

In furtherance of the critical duty of competence, each attorney is required to complete minimum annual requirements for continuing legal education, and to certify his or her compliance with those requirements to the Board of Overseers as part of the registration process.

Attorney Murphy failed to register in 2013 or to complete the required legal education requirements in the prior year to qualify for her continued active membership in the bar. She was suspended from practice in November 2013.

An attorney who is suspended from practice for any reason is required to give immediate notice of the suspension to his or her clients in the form prescribed by rule. S/He is required to certify to the Board of Overseers, by affidavit, that that proper notice has been given. Such notification – certified by the affidavit – informs those most likely to need to know that an individual is no longer qualified and licensed to act as an attorney. Failure to file the required “notification affidavit” is a violation of M. R. Prof. Conduct 8.1(b), 8.4(a) and M. Bar R. 7.3(i).

The Board of Overseers of the Bar and Bar Counsel are responsible to the public and to the Maine Supreme Judicial Court to ensure that attorneys comply with their professional obligations. Persons holding themselves out as attorneys have the duty to cooperate with and respond to the Board and Bar Counsel. The duties of cooperation and response were assumed voluntarily by each attorney as a condition of his or her admission to the bar. In addition, those duties make practical sense because the system would break down quickly if lawyers were permitted to play “catch me if you can.” Failure to respond to Bar Counsel is a violation of M. R. Prof. Conduct 8.1(b).

Despite the seemingly technical nature of Attorney Murphy’s misconduct, it is not minor, and erodes the bedrock of Maine’s professional system. In the absence of any communication from her, we can infer only that her actions are intentional. That inference is buttressed by the fact that her violations are continuing. We have no evidence of actual harm. While we hope that none occurs, the possibility of serious harm is ever-present, although evidence of the likelihood of such harm was not offered. Bar Counsel stated that he did not know if Attorney Murphy was continuing to practice law.

We have been presented with no mitigating circumstances. Attorney Murphy received calls from Bar Counsel staff on two occasions to remind her of the duties of registration, education and cooperation. It is astonishing that she has made no apparent effort to comply, or even to respond. Her spurning of Bar Counsel’s courtesies and her willful disregard of this grievance proceeding are aggravating circumstances.

Attorney Murphy is already suspended from the practice of law. A further hearing before a single justice would burden an already-busy Court for no meaningful purpose. Sanctions are readily available were she to practice law in violation of her suspension. The panel concludes that a public reprimand is the appropriate sanction for the violations alleged and established, which is hereby issued to Attorney Jennifer Murphy.

Date: December 16, 2014

Peter C. Fessenden, Esq., Panel Chair
Justin E. LeBlanc, Esq., Panel Member
Richard P. Dana, CPA, Public Member