Columbus Bar Assn. v. Polly-Murphy (Slip Opinion)
2021 Ohio 3302
| Ohio | 2021Background
- Michelle Lyn Polly-Murphy, admitted in Ohio in 2000, was an associate at Cooke Demers, L.L.C. (Dec 2014–Apr 2019) who handled creditors’ rights work but separately provided legal services to Advanced Health Brands (AHB) and Nutriband without notifying her firm.
- She held a 1% ownership and officer role in AHB and acquired an interest in Nutriband through a share-exchange; she did not follow firm procedures or disclose those client relationships and interests to Cooke Demers.
- On April 24, 2017 she issued a legal opinion to Nutriband stating AHB’s transdermal patches were not regulated by the FDA; that opinion was legally incorrect and later underpinned SEC scrutiny.
- From late 2017 to spring 2018 she prepared multiple Rule 144 letters on firm letterhead for Nutriband and, in May 2018, accepted a $5,000 payment deposited into her personal account that she did not disclose to the firm.
- The firm learned of her outside work in late 2018, investigated, and terminated her in April 2019; the SEC issued a cease-and-desist against Nutriband officers, and the parties here stipulated to misconduct and recommended a conditionally stayed one-year suspension.
- The Board found violations of Prof.Cond.R. 1.1 (competence), 1.8 (business transaction with a client), and 8.4(c) (dishonesty), and the Supreme Court adopted the board’s findings and imposed a one-year suspension stayed in its entirety on conditions; Justice Fischer dissented, preferring a stayed 18-month suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Competence (Prof.Cond.R. 1.1) | Polly-Murphy gave inaccurate legal advice about FDA regulation of transdermal patches. | Mitigating evidence: cooperation, restitution, good character, no prior discipline. | Court found a violation of Rule 1.1. |
| Business transaction with client (Prof.Cond.R. 1.8) | She acquired stock in AHB/Nutriband without written disclosure or client informed-consent. | Contended acquisition arose from transaction terms and emphasized mitigating factors. | Court found a violation of Rule 1.8. |
| Dishonesty; failure to disclose firm payment (Prof.Cond.R. 8.4(c)) | She accepted $5,000 from Nutriband and did not disclose it to her firm, constituting dishonesty. | Again relied on mitigation and cooperation. | Court found a violation of Rule 8.4(c). |
| Sanction appropriateness | Relator and respondent jointly recommended a conditionally stayed one-year suspension given misconduct plus mitigation. | Same: parties stipulated to that sanction; respondent emphasized mitigating factors. | Court adopted the stipulated sanction: one-year suspension stayed in its entirety on condition of no further misconduct and payment of costs; dissent would impose a stayed 18‑month suspension. |
Key Cases Cited
- Disciplinary Counsel v. Domis, 156 Ohio St.3d 360 (2019) (public reprimand for incompetent representation and related failures)
- Disciplinary Counsel v. Mickens, 151 Ohio St.3d 302 (2016) (public reprimand for neglect and disclosure failures)
- Lorain Cty. Bar Assn. v. Nelson, 144 Ohio St.3d 414 (2015) (public reprimand for neglect and failure to disclose lack of malpractice insurance)
- Disciplinary Counsel v. Grigsby, 128 Ohio St.3d 413 (2011) (stayed 18‑month suspension for dishonest acts and misappropriation of firm funds)
- Disciplinary Counsel v. Vanderburg, 157 Ohio St.3d 395 (2019) (stayed one-year suspension for dishonesty and failure to reimburse firm)