MURRAY v. KENTUCKY BAR ASSOCIATION (2021)

OPINION AND ORDER

Pursuant to SCR ¹ 3.480(2), Michael O. Murray moves this Court to enter an order resolving the pending disciplinary proceeding against him ² by imposing a one-year suspension from the practice of law, with such suspension to be imposed retroactively to September 18, 2020. This motion is the result of an agreement negotiated between Murray and the Kentucky Bar Association (“KBA”). Finding the consensual disciplinary sanction to be appropriate under the facts of this case, we grant Murray's Motion.

Murray has never been admitted to the practice law in Kentucky; however, Murray has been licensed to practice law in Indiana since October 25, 1991. The disciplinary proceeding at issue arises out of Murray's admitted violation of SCR 3.130(5.5)(a) and (b), in connection with his employment as General Counsel and Vice President to Kentucky Community and Technical College System (“KCTCS”), a Kentucky corporation, from November 2016 until September 18, 2020, when Murray stepped down from that position. Murray admits he held himself out as General Counsel to KCTCS even though he was not admitted to practice law in Kentucky and when, in that capacity, he maintained an office in Kentucky for the practice of law. Our rules explicitly provide for a limited certificate to practice law for attorneys, like Murray, who are not licensed in Kentucky and who perform legal services solely for his or her employer. SCR 2.111.

SCR 3.020 defines the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” SCR 3.130(5.5) addresses the unauthorized practice of law and multijurisdictional practice of law, providing that “[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” SCR 3.130(5.5)(a). That Rule further provides:

A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish or maintain an office or other presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

SCR 3.130(5.5)(b).

The KBA maintains that the negotiated sanction in this case is consistent with existing case law in Kentucky, directing us to Hipwell v. Kentucky Bar Association, in which this Court suspended Hipwell for one year after he served as general counsel to Humana even though he was suspended from the practice of law in Kentucky for non-payment of bar dues. 267 S.W.3d 682 (Ky. 2008). Like Murray, Hipwell never appeared in court on behalf of his employer or provided legal work outside his role as general counsel. But both attorneys supervised the work of in-house attorneys and worked with outside counsel. As General Counsel and Vice President, Murray supervised Kentucky licensed lawyers whom he assigned to appear at Kentucky tribunals and monitored outside counsel who were Kentucky-licensed lawyers hired to represent KCTCS in court litigation. As in Hipwell, these activities are within the ambit of the practice of law as contemplated by SCR 3.020 and, therefore, require appropriate licensure.

That said, the general counsel position in neither Murray's nor Hipwell's case was conditioned on the individual becoming licensed to practice law in Kentucky. The description for Murray's general counsel position provided that “[t]he General Counsel serves as the chief legal officer for the System, providing legal services on a wide range of matters.” While not expressly requiring licensure, the responsibilities and job duties, as listed in the job description, included tasks which, practically speaking, necessitated a law license.

In Hipwell, we likewise approved a one-year suspension, although Hipwell's violation arguably was more severe than Murray's, as Murray's term as general counsel spanned approximately 4 years, while Hipwell's term duration was approximately 17 years. Moreover, Murray was licensed to practice law in Indiana, but not licensed in Kentucky, whereas Hipwell was working under a suspended license in Kentucky. Given these distinctions, we believe the recommended one-year suspension for Murray, to be imposed retroactively to September 18, 2020, is fair.

The negotiated sanction rule provides that “[t]he Court may consider negotiated sanctions of disciplinary investigations, complaints or charges” if the parties agree. SCR 3.480(2). Specifically, “the member and Bar Counsel [must] agree upon the specifics of the facts, the rules violated, and the appropriate sanction[.]” Id. Upon receiving a motion under this Rule, “[t]he Court may approve the sanction agreed to by the parties, or may remand the case for hearing or other proceedings specified in the order of remand.” Id. Thus, acceptance of the proposed negotiated sanction still falls within the discretion of the Court.

Considering these facts, the relevant case law, Murray's lack of disciplinary history, and the KBA's representation that the Chair of the Inquiry Commission and a Past President of the KBA have reviewed and approved the proposed sanction, this Court concludes that the proposed discipline is adequate. See Ky. Bar Ass'n v. Schaffner, 2015-SC-000108-KB, 2015 WL 1544453 (Ky. April 2, 2015); Dutra v. Ky. Bar Ass'n, 440 S.W.3d 374 (Ky. 2014).

Accordingly, it is hereby ORDERED that:

1. Murray is found guilty of the above-described and admitted violation of the Rules of Professional Conduct.

2. Murray is suspended from the practice of law for one year, with such suspension to be imposed retroactively to September 18, 2020.

3. In accordance with SCR 3.450, Murray is directed to pay all costs associated with these disciplinary proceedings against him, for which execution may issue from this Court upon finality of this Opinion and Order.

/s/ John D. Minton Jr.

 CHIEF JUSTICE

FOOTNOTES

1.   Kentucky Rules of the Supreme Court.

2.   The disciplinary matter at issue is contained in KBA File 20-DIS-0157.

All sitting. All concur.