Opinion
2939 Disciplinary Docket 3 3 DB 2023
08-23-2023
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. DAVID ADDISON GRANT MURRAY, Respondent
Attorney Registration No. 330036 (Chester County)
ORDER
PER CURIAM
AND NOW, this 23rd day of August, 2023, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board, the Joint Petition in Support of Discipline on Consent is granted, and David Addison Grant Murray is suspended from the Bar of this Commonwealth for a period of one year, retroactive to February 7, 2023. Respondent shall comply with the provisions of Pa.R.D.E. 217 and pay costs to the Disciplinary Board. See Pa.R.D.E. 208(g).
BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(d)
Petitioner, the Office of Disciplinary Counsel ("ODC"), by Thomas J. Farrell, Chief Disciplinary Counsel and Mark Gilson, Disciplinary Counsel, and Respondent, David Addison Grant Murray ("Respondent"), by and through his counsel, Samuel C. Stretton, Esquire, respectfully petition the Disciplinary Board in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement ("Pa.R.D.E.") 215(d), and in support thereof state:
1. Pursuant to Pa.R.D.E. 207, ODC, whose principal office is situated at Office of Chief Disciplinary Counsel, Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, 17106, is invested with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the provisions of the Enforcement Rules.
2. Respondent was born on December 27, 1993, and is 29 years old. Respondent was admitted to the practice of law in the Commonwealth of Pennsylvania on June 14, 2021. Respondent's attorney registration number is 330036. Respondent's registered mailing address is: 357 South Manoa Road, Havertown, Pennsylvania 19083.
3. By Order dated February 7, 2023, Respondent was temporarily suspended pursuant to a Joint Petition to Temporarily Suspend an Attorney under Pa.R.D.E. 214(d)(5). Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
4. Respondent has no other record of discipline.
SPECIFIC FACTUAL ALLEGATIONS ADMITTED
Respondent's Criminal Trespass and Simple Assault Convictions
5. On October 24, 2021, Respondent was arrested by members of the Derry Township Police Department and charged by the Dauphin County District Attorney's Office ("District Attorney's Office") with burglary (18 Pa.C.SA § 3502(a)(1)); criminal trespass (18 Pa.C.S.A. § 3503(a)(1)); simple assault (18 Pa.C.S.A. § 2701(a)(3)); and terroristic threats (18 Pa.C.S.A.§ 2706(a)(1)).
6. On January 11, 2022, Respondent waived his preliminary hearing before Magisterial District Justice Dominic A. Pelino and was ordered held for court on all charges. See Commonwealth v. David Addison Grant Murray, Docket No. M J-12304-CR-0000294-2021.
7. On March 25, 2022, the District Attorney's Office filed bills of information in the Dauphin County Court of Common Pleas charging Respondent with the above-referenced criminal offenses. See Commonwealth v. David Addison Grant Murray, CP-22-CR-0000171-2022.
8. On December 1, 2022, following a bench trial conducted before the Honorable Judge Edward M. Marsico, Jr., Dauphin County Court of Common Pleas, Respondent was convicted of criminal trespass (3rd degree felony) and simple assault (2nd degree misdemeanor). Respondent was found not guilty of burglary and terroristic threats. Respondent's sentencing was deferred, and a sentencing hearing scheduled for March 7,2023.
9. Respondent's conviction was based on the following evidence presented at trial:
In the early morning hours of October 24, 2021, at approximately 2:30 a.m., Respondent, who had been out drinking earlier that evening with friends and family members at his mother's birthday celebration, became visibly intoxicated and decided to walk to his ex-girlfriend's apartment in a misguided attempt to speak to her and try to reconcile their relationship. The ex-girlfriend, Ms. Amelia Destefano, was alone in her apartment asleep at the time, and was not expecting Respondent to pay her a visit. The couple had dated for four years, but had broken up approximately four months before the incident. During those four months, Respondent and Ms. Destefano maintained amicable contact with one another during which they had discussed Respondent's desire to try and reconcile their relationship.
Ms. Destefano was awakened by Respondent's knocking on her apartment door causing her security alarm to go off. Through the door, Ms. Destefano repeatedly told him to leave, but Respondent refused to listen. When Ms. Destefano unlocked and opened her door to speak directly to him, Respondent walked past Ms. Destefano and into the apartment without her permission or invitation and sat down in a chair. For approximately 30 minutes, Respondent attempted to discuss their relationship and told Ms. Destefano that she needed to talk to him. Respondent refused Ms. Destefano's repeated requests to leave and her offer to drive him home. Instead, Respondent told Ms. Destefano that he's "not going anywhere until we have this conversation." Respondent's speech was slurred, and Ms. Destefano could "see that he was drunk."
In response to Respondent's failure to leave, Ms. Destefano informed him she had called her father (in fact, she had not) hoping that would prompt him to leave. At that moment, Respondent got up from the chair he was sitting in, walked into the kitchen, and reached towards a butcher block that contained some kitchen knives. Respondent's actions concerned Ms. Destefano, who by that point had become visibly upset, and was "crying, and begging him to leave." Fearing for her safety, Ms. Destefano grabbed her cellphone and car keys and left her apartment. Respondent did not threaten or pursue her.
Ms. Destefano drove herself to a safe location and called the police. Members of the Deny Township Police Department in Dauphin County responded to the 911 call, and upon their arrival at the apartment entered through the unlocked front door. The officers repeatedly announced their presence and asked anyone inside to respond and show themselves, but Respondent failed to answer or comply. The officers encountered Respondent as he emerged from Ms. Destefano's bedroom and arrested him without further incident. Police recovered a large kitchen knife in the bedroom that they observed lying on Ms. Destefano's bed next to a photograph of the couple.
At trial, Respondent testified in his own defense, denied that he had any intent to harm Ms. Destefano, and insisted he only wanted to talk to her to try and reconcile their relationship. Respondent further acknowledged his conduct that night was wrong, and stated that he was "extraordinarily embarrassed and ashamed" of the way he behaved.
Respondent was not charged with possessing an instrument of crime or any other weapons-related offenses.
10. By letter dated December 12,2022, Respondent, by and through his counsel Mr. Stretton, notified ODC of his conviction pursuant to the requirements of Pa.R.D.E. 214(a).
11. On January 3, 2023, Respondent and ODC filed a Joint Petition to Temporarily Suspend an Attorney pursuant to Pa.R.D.E, 214(d)(5).
12. By Order dated February 7, 2023, the Court accepted the petition and temporarily suspended Respondent pursuant to Pa.R.D.E. 214(d)(5).
13. On March 6, 2023, Respondent filed a Statement of Compliance with the Board pursuant to the requirements of Pa.R.D.E. 217.
14. On March 28, 2023, Judge Marsico sentenced Respondent to 15 months of probation on each charge to be served concurrent to one another.
15. On May 8, 2023, ODC filed Notice of Conviction with the Court.
16. By letter dated June 14, 2023, Respondent provided Notice of Engagement to the Board pursuant to Pa.R.D.E. 217(j)(5) concerning his employment as a legal secretary/assistant/paralegal to be supervised by Kenneth C. Russell, Esquire.
RULES OF PROFESSIONAL CONDUCT AND DISCIPLINARY ENFORCEMENT RULES VIOLATED
17. By his conduct as set forth in paragraphs 5 through 16 above, Respondent acknowledges he violated the following Rules of Professional Conduct ("RPC") and Enforcement Rules: RPC 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; and Pa.R.D.E. 203(b)(1), which provides that conviction of a crime is grounds for discipline.
PROPOSED RECOMMENDATION FOR DISCIPLINE
18. Respondent hereby consents to the discipline being imposed upon him by the Supreme Court. Respondent's affidavit required by Pa.R.D.E. 215 stating, inter alia, his consent to the recommended discipline is attached as Exhibit A.
19. ODC and Respondent jointly recommend that appropriate discipline for Respondent's admitted misconduct is a suspension from the practice of law for one year. The parties respectfully request that the suspension be made retroactive to February 7, 2023, the date of Respondent's temporary suspension.
20. In support of ODC's and Respondent's joint recommendation, it is respectfully submitted that the following mitigating circumstances are present:
a. Respondent has no prior record of discipline;
b. Respondent has no other criminal convictions;
c. Respondent cooperated with ODC in its investigation;
d. Respondent agreed to the immediate temporary suspension of his law license pending final disposition of his disciplinary matter;
e. Respondent has admitted his misconduct and accepted responsibility as evidenced by his willingness to enter into consent discipline;
f. Respondent regrets and is remorseful for his misconduct, and understands he should be disciplined; and
g. Respondent has agreed to accept public discipline in the form of a one year suspension.
21. As with all disciplinary matters predicated on a criminal conviction, the sole issue to be resolved is the extent of discipline to be imposed on Respondent, bearing in mind that the recommended discipline must reflect the facts and circumstances unique to the case, including circumstances that are either aggravating or mitigating, Office of Disciplinary Counsel v. Eilberg, 441 A.2d 1193, 1195 (Pa. 1982), and should "examine the underlying facts involved in the criminal charge to weigh the impact of the conviction upon the measure of discipline." Office of Disciplinary Counsel v. Troback, 383 A.2d 952, 953 (Pa. 1978).
22. There are a number of disciplinary cases involving attorneys who committed or were convicted of the crime of simple assault. Depending on the facts and circumstances of each case and the existence of any aggravating and mitigating factors, the sanctions imposed on those attorneys ranged from a private reprimand to a two year suspension. For the reasons that follow, it is submitted that this case is more egregious that those resulting in private discipline or no license suspension, but less serious than cases resulting in a suspension of more than a year.
In the case of Office of Disciplinary Counsel v. Alvarez-Moreno, 60 DB 2015 (D.Bd. Report 7/26/16)(S.Ct. Order 9/21/16), the respondent-attorney was convicted in Maryland of assault in the second degree (a misdemeanor) after he assaulted and seriously injured another driver following a "road rage" incident. The respondent was sentenced to incarceration for four years with three years and six months suspended and credit for time served. Prior to attending law school and being admitted to the bar, the respondent had contacts with law enforcement and served time in prison based on prior convictions in three separate criminal cases for: 1) obstruction of justice after he interfered in the arrest of a neighbor's son; 2) atrocious assault and battery for discharging a rifle at a person who entered a family store where respondent had been working at the time; and 3) aggravated assault after he bit off a piece of another person's ear during a physical fight. The respondent had stopped practicing law in 2007, was receiving social security and disability benefits, and expressed no interest in resuming the practice of law. The Hearing Committee recommended disbarment, The Board, however, recommended and the Court accepted and imposed a suspension of two years.
In the case of Office of Disciplinary Counsel v. McKnight, 156 DB 1994 (D.Bd. Report 2/7/01)(S.Ct. Order 4/2/01), the respondent-attorney was convicted in the District of Columbia of simple assault after he menaced his ex-fiance and threw a beer on her while the two were attending a public event. The respondent's conduct was a continuation of intimidating and harassing behavior toward the ex-fiance that occurred over a period of fourteen months. The respondent was sentenced to six months in jail, suspended as to all but 45 days, and two years of probation. The Hearing Committee and Board recommended, and the Court accepted and imposed a suspension of one year and one day. The discipline imposed was aggravated by the following factors: a prior informal admonition; two counts of contempt for failing to appear in court for which he was fined $500 each; another count of contempt on which he was sentenced to perform 100 hours of community service; and failure to withdraw as counsel of record in criminal and civil cases after he was transferred to inactive status.
In the case of Office of Disciplinary Counsel v. Gibson, 161 DB 2002 (D.Bd. Report 8/25/04)(S.Ct. Order 11/4/04), the respondent-attorney was convicted of aggravated assault, simple assault, public drunkenness and related offenses for conduct during a barroom brawl that spilled out into the street resulting in police being called to the scene to restore order. The respondent was belligerent towards police, spat on the officers, and punched an officer in the face while she was helping him into an ambulance to be treated for injuries he had sustained in the fight. The respondent was sentenced to one month incarceration with immediate work release and four months of electronic home confinement. Following his conviction, the Supreme Court ordered respondent temporarily suspended pending resolution of the disciplinary matter. At the disciplinary hearing the attorney presented Braun mitigation, acknowledged his misconduct, but denied spitting on and punching an officer. The Hearing Committee (and ODC) recommended a two year suspension. A majority of the Board recommended a private reprimand, with four members dissenting and recommending a one year suspension retroactive to the date of the temporary suspension, which the Court ultimately imposed.
In the case of Office of Disciplinary Counsel v. Grady, 155 DB 1997 (D.Bd. Report 4/5/99)(S.Ct. Order 7/15/99), the respondent-attorney, an Assistant District Attorney, verbally accosted and physically confronted the trial judge in the robing room after receiving an adverse ruling from the court during a trial. When defense counsel intervened, the ADA assaulted counsel by repeatedly punching him, placing him in a headlock and banging his head against a wall. The judge held the ADA in contempt and fined him $2,500. The District Attorney suspended the ADA without pay for 30 days, placed him on one year probationary employment status, and banned him from returning to the courtroom for six months. However, no criminal charges were filed. The Hearing Committee recommended a private reprimand. However, a majority of the Board recommended a six month suspension, with five members dissenting for a public censure, and one member dissenting for a suspension of one year and one day. The Court imposed a six month suspension.
In the case of Office of Disciplinary Counsel v. D'AIba, 17 DB 1996 (D.Bd. Report 3/8/02)(S.Ct. Order 4/29/02), the respondent-attorney was convicted of indirect criminal contempt for violating a PFA order, defiant trespass for entering the home of his former girlfriend, and three counts of simple assault for altercations with the former girlfriend, her boyfriend, a police officer, and a fireman who responded to the incident. The respondent was sentenced to six months incarceration, modified to partial confinement for work release, and two years of probation. Following the incident which had occurred in 1995, the respondent moved from the area and did not engage in the practice of law. The Hearing Committee recommended a private reprimand in view of the passage of time since the criminal acts and the positive changes respondent had made in his life. The Board, however, believed a private reprimand would not be sufficient and recommended a three month suspension, noting respondent would have to petition for reinstatement since he had been inactive since 1996. The Court agreed and imposed a three month suspension.
In the case of Office of Disciplinary Counsel v. Pisanchyn, 118 DB 2007 (D.Bd. Report 3/20/09)(S.Ct. Order 6/11/09), a joint petition for a public censure was approved after the respondent-attorney was convicted of simple assault, recklessly endangering another person, disorderly conduct and harassment for assaulting another man during an altercation that occurred inside of a bar. Based on the seriousness of the injuries and respondent's failure to accept responsibility for the incident, the trial court sentenced respondent in the aggravated range of the Sentencing Guidelines to serve four to twenty-three months in county prison. The attorney was permitted to serve his sentence on house arrest.
In the case of Office of Disciplinary Counsel v. Anonymous, 39 DB 85, 47 Pa. D.&C.3d 376 (1987), the respondent-attorney represented a nursing home facility whose employees were holding a vote on whether or not to join a union, which vote the union lost. Following the vote, respondent and the union representative became involved in a heated verbal argument during which the representative uttered an ethnic slur that provoked respondent to punch the representative. The respondent was convicted of simple assault and sentenced to a 30 day suspended jail sentence. The respondent had no prior criminal or disciplinary record. The Hearing Committee and Board recommended a private reprimand which the Court accepted and directed the Board to Impose, with two Justices dissenting for a public censure. In the case of In re Anonymous, 13 DB 76, 5 Pa. D.&C.3d 210 (1978), the respondent-attorney was convicted of assaulting a Pennsylvania State Trooper who had stopped him for a minor traffic violation. The respondent was a successful criminal defense attorney who had recently told fellow defense attorneys that the State Police were "out to get him." Upon being stopped, respondent stepped out of his car and approached the Trooper's vehicle, ignoring the Trooper's instructions to return back to his car. As the Trooper was attempting to step out of his car, respondent pushed the driver's door into the Trooper's leg causing pain and bruising. The respondent was convicted of assault and fined $200. His appeal to the Superior Court and allocator petition were denied. The Hearing Committee found respondent's attitude toward an officer of the law acting in the course of his duties disturbing, and stated respondent's misconduct was too serious for an informal admonition, but too mild to warrant public censure. The Committee recommended and the Board imposed a private reprimand.
Although each of these cases involved respondent-attorneys who either committed or were convicted of the crime of simple assault, there are facts that serve to distinguish the cases from Respondent's situation. Unlike all of the complainant-victims in the cases described above, Ms. Destefano did not sustain any injuries during the incident and Respondent did not physically assault her. Unlike the respondent-attorneys in Alvarez-Moreno and McKnight (both of whom received suspensions in excess of a year), Respondent did not have a prior record for criminal convictions or disciplinary misconduct. Similarly, unlike the respondent-attorney in D'Alba, prior to this incident Respondent had not engaged in a pattern of threatening behavior towards Ms. Destefano or violate an existing PFA order. Unlike the respondent-attorney in Grady, Respondent's misconduct did not occur while he was acting in the performance of his duties as an attorney; additionally, the attorney in Grady was neither charged nor convicted of committing a crime. Finally, Respondent's sentence did not involve a period of incarceration as did the sentences imposed on the respondent-attorneys in Alvarez-Moreno, McKnight, Pisanchyn, D'Alba, Gibson, and Anonymous. However, like many of the respondent-attorneys referenced above, Respondent's judgment appears to have been significantly impaired by his consumption of alcohol prior to the incident.
More significantly and unlike any of the respondent-attorneys in the cases referenced above, at some point during the incident Respondent armed himself with a weapon-a large kitchen knife. This fact alone and in- and-of itself serves to make Respondent's actions more serious than those cases in which the respondent-attorneys received private discipline, and more deserving of a suspension compared to cases where respondent-attorneys only received a public censure or public reprimand. However, unlike the respondent-attorneys whose suspensions were for more than a year (see Alvarez-Moreno and McKnight), Respondent had no prior criminal convictions or history of professional misconduct. Additionally, it should be noted that Respondent did not brandish the knife or otherwise use it to threaten Ms. Destefano. Therefore, a suspension of more than a year does not appear to be warranted or necessary in this case.
Additionally, there are mitigating factors present in this case that weigh against imposition of a suspension of more than a year. Respondent admitted his misconduct, cooperated with disciplinary authorities, agreed to an immediate temporary suspension of his license, and also agreed to accept consent discipline in the form of a suspension. Respondent's misconduct appears to be isolated, aberrational and situational in nature, and was confined to a single episode of criminal conduct involving his ex-girlfriend that Respondent asserted was prompted by his over-imbibing. There is no evidence Respondent ever engaged in any pattern of assaultive or aggressive behavior in the past. Respondent's conviction was totally unrelated to the practice of law, arising out of an incident involving his personal life. Finally, Respondent has exhibited remorse, admitted his misconduct, accepted responsibility for his actions, and is willing to accept discipline in the form of a one year suspension.
Consistent with the specific facts underlying this case and precedent as set forth above, it is respectfully submitted by the parties that public discipline in the form of a suspension of one year is justified and appropriate, will serve to uphold the integrity of the legal profession, and will act to impress upon Respondent the seriousness of his actions as well as deter him from engaging in similar conduct in the future. Respondent has agreed to accept the discipline.
23. Based on Respondent's conviction, the mitigating factors, and precedent established by discipline imposed in similar cases involving attorneys who engaged in criminal conduct involving simple assault, it is respectfully requested that the Joint Petition in Support of Discipline on Consent Under Rule Pa.R.D.E. 215(d) in which the recommended discipline is a suspension of one year be approved.
WHEREFORE, Petitioner and Respondent respectfully request, pursuant to Pennsylvania Rules of Disciplinary Enforcement 215(e) and 215(g), that a three member panel of the Disciplinary Board review and approve the Joint Petition in Support of Discipline on Consent and file a recommendation with the Supreme Court of Pennsylvania that Respondent receive a suspension of one year to be applied retroactively to the date of Respondent's temporary suspension.
Respectfully submitted, OFFICE OF DISCIPLINARY COUNSEL
THOMAS J. FARRELL Attorney Registration No. 48976 Chief Disciplinary Counsel
Mark Gilson Office of Disciplinary Counsel Attorney Registration Number 46400
David Addison Grant Murray Respondent Attorney Registration Number 330036
Samuel C. Stretton Respondent's Attorney Attorney Registration Number 18491
VERIFICATION
The statements contained in the foregoing Joint Petition In Support of Discipline on Consent Discipline are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities.
EXHIBIT A
AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.
DAVID ADDISON GRANT MURRAY, being duly sworn according to law, deposes and submits this affidavit consenting to the recommendation of a suspension of one year and one day in conformity with Pa.R.D.E. 215(d), and further states as follows:
1. He is a former attorney admitted to the Bar of the Commonwealth of Pennsylvania on or about June 14, 2021, and temporarily suspended by Order dated February 7,2023.
2. He desires to submit a Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d).
3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.
4. He is aware that there is presently pending a proceeding regarding allegations that he has been guilty of misconduct as set forth in the Joint Petition in Support of Discipline on Consent Pursuant to Pa.R.D.E. 215(d) to which this affidavit is attached.
5. He acknowledges that the material facts set forth in the Joint Petition are true.
6. He submits this affidavit because he knows that if charges predicated upon his criminal conviction were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.
7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He is represented by counsel in this matter, Samuel C. Stretton, Esquire, and after consultation with counsel has made his own decision to execute the Joint Petition.
It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 (relating to unsworn falsification to authorities).
Signed this 15 day of July, 2023.
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing document upon all parties of record in this proceeding in accordance with the requirements of 204 Pa. Code §89.22 (relating to service by a participant).
First Class Mail and Email, as follows:
David Addison Grant Murray c/o Samuel C. Stretton, Esquire
103 South High Street
P.O. Box 3231
West Chester, PA 19381-3231
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.