Present: All the Justices
JOSEPH D. MORRISSEY
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 001139 November 3, 2000
VIRGINIA STATE BAR, EX REL.
THIRD DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Alfred D. Swersky, Kenneth E. Trabue,
and H. Thomas Padrick, Jr., Judges
I.
In this appeal of right by an attorney from an order of
suspension, the central question is whether an excessive
sanction was imposed.
II.
A.
A circuit court consisting of three judges appointed
pursuant to Code § 54.1-3935 found Joseph Dee Morrissey, a
member of the Virginia State Bar, guilty of one violation of
Disciplinary Rule 7-105(A) and two violations of Disciplinary
Rule 1-102(A)(3). The court received evidence in aggravation
and mitigation, including Morrissey's prior record of
discipline. The court suspended Morrissey's license to
practice law in this Commonwealth for a period of three years.
B.
Former Disciplinary Rule 7-105(A), which was in effect at
the time of Morrissey's misconduct, stated in relevant part:
"A lawyer shall not disregard or advise his
client to disregard a standing rule of a tribunal or
a ruling of a tribunal made in the course of a
proceeding, but he may take appropriate steps in
good faith to test the validity of such rule or
ruling."
Former Disciplinary Rule 1-102(A), which was in effect at the
time of Morrissey's misconduct, stated:
"A lawyer shall not:
. . . .
"(3) Commit a crime or other deliberately
wrongful act that reflects adversely on the lawyer's
fitness to practice law." *
Even though Morrissey does not challenge the sufficiency
of the evidence to support the court's findings that he
violated the aforementioned disciplinary rules, we will
summarize the evidence because that evidence is relevant to
the court's sanction, which Morrissey contends is excessive.
Consistent with well-established appellate principles, we will
view the evidence and all reasonable inferences that may be
drawn therefrom in the light most favorable to the Virginia
State Bar, the prevailing party in the circuit court. El-Amin
v. Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165
(1999); Gunter v. Virginia State Bar, 238 Va. 617, 619, 385
S.E.2d 597, 598 (1989).
*
Former Disciplinary Rule 7-105(A) is substantially the
same as current Virginia Rule of Professional Conduct 3.4(d).
2
The Harris Matter
Joel W. Harris was indicted by a multi-jurisdiction grand
jury impaneled from the City of Richmond and the Counties of
Chesterfield, Hanover, and Henrico for violation of certain
felony drug laws. He retained Morrissey as his defense
attorney. The Commonwealth terminated prosecution of the
charges against Harris by nolle prosequi.
Morrissey hired an investigator to interview witnesses
who had testified against Harris before the multi-jurisdiction
grand jury. The investigator interviewed John F. Buerkley,
one of the multi-jurisdiction grand jury witnesses. The
investigator subsequently arranged an interview between
Morrissey and Buerkley. During the videotaped interview,
Buerkley recanted much of the testimony that he had provided
to the multi-jurisdiction grand jury.
Two days after this interview, a federal grand jury
indicted Harris on federal narcotics distribution charges. On
the day that the federal grand jury indicted Harris, James B.
Comey, an Assistant United States Attorney assigned to
prosecute the Harris case, forwarded a letter dated February
4, 1997, by hand and facsimile, to Morrissey and attached a
copy of Local Rule 57, promulgated by the United States
Former Disciplinary Rule 1-102(A)(3) has been replaced by
Virginia Rule of Professional Conduct 8.4(b).
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District Court for the Eastern District of Virginia. Local
Rule 57 prohibits lawyers from making public statements about
the identity, testimony, or credibility of prospective
witnesses, or from giving any opinion about the merits of a
pending case. Comey forwarded the letter and a copy of the
local rule to Morrissey because Comey was concerned about the
extensive media attention that the Commonwealth's case against
Harris had received before the order of nolle prosequi was
entered. Comey testified that he "was specifically very
concerned about some of the publicity that had gone on in this
case while it was a state case. And also [he] was . . .
concerned about Mr. Morrissey's practice in defending cases
and [Comey] wanted to make sure everybody was on notice that
the federal rules were quite strict and quite clear."
On February 11, 1997, Comey learned that Morrissey
intended to hold a press conference at 3:00 p.m. on that date
and permit the media to view Morrissey's videotaped interview
of Buerkley, who was a potential witness in the federal
prosecution. Comey immediately sent a letter, by facsimile,
to Morrissey, warning him not to proceed with the press
conference. Morrissey received Comey's letter and contacted
certain attorneys and solicited their opinions about whether
he should proceed with the press conference. Some of the
attorneys, including a former Assistant United States
4
Attorney, advised Morrissey that he would have "a problem" if
he proceeded with the press conference. Nonetheless,
Morrissey held the press conference, issued a press release,
and permitted the media to view the videotape of the Buerkley
interview.
On February 12, 1997, the United States District Court
for the Eastern District of Virginia issued a show cause order
against Morrissey for his alleged willful violation of that
court's Local Rule 57. During a hearing on the show cause
motion, the court issued a contempt citation against Morrissey
and gave the following warning to him: "I want it understood
from here on out that this case will not be tried in the
media. It will be tried in this Court. And any infractions
of that admonition will be met with a harsh result."
On April 1, 1997, about two weeks before Harris'
scheduled federal trial, Morrissey made statements to a
newspaper reporter about the Harris case, which were
subsequently published in the Richmond Times-Dispatch
newspaper. Morrissey stated that the charges against Harris
were "vindictive and vicious," and Morrissey questioned
whether the charges should have ever been filed. Morrissey
also remarked that if these charges had been filed when he was
the Commonwealth's Attorney for the City of Richmond, the
charges would have been "laughed . . . out of court."
5
The United States District Court issued another show
cause order against Morrissey, and the court found that he had
"willfully, intentionally, and contumaciously" violated Local
Rule 57. The court entered an order which sentenced Morrissey
to 90 days' imprisonment and three years' probation for two
counts of contempt, and the court suspended his license to
practice law in the federal court for the Eastern District of
Virginia for two years. Morrissey's appeal from that judgment
was affirmed by the United States Court of Appeals for the
Fourth Circuit. See In re Joseph D. Morrissey, 168 F.3d 134
(4th Cir.), cert. denied, 527 U.S. 1036 (1999).
The Chesterfield County Circuit Court Proceeding
In October 1997, Morrissey appeared in the Circuit Court
of Chesterfield County to represent a criminal defendant
during the sentencing phase of a trial. The Honorable William
R. Shelton, who presided during the trial, fixed the
defendant's punishment at 25 years' imprisonment with ten
years suspended. After the court had pronounced its sentence,
Morrissey stated in response: "That's outrageous, that is
absolutely outrageous." The court cited Morrissey for
contempt and sentenced him to ten days in jail. Then,
Morrissey raised his voice and "took two or three steps from
the counsel table towards the bench" and stated, "I have never
seen a more jaded, more bitter, more angry jurist in my life."
6
Morrissey accused the court of sentencing Morrissey's client
unfairly because of the court's purported dislike for
Morrissey. The court sentenced Morrissey to 30 days in the
county jail for violating Code § 18.2-456(3) and -456(4).
Morrissey's Prior Disciplinary Record
In March 1986, Morrissey was found guilty of contempt of
court in the Circuit Court of the City of Richmond. Morrissey
lost his temper, shouted at the presiding judge, and continued
to argue with the court after it had ruled. Morrissey was
found guilty of contempt of court and fined $50. The court
vacated the contempt conviction after Morrissey wrote a letter
of apology.
In December 1987, the Circuit Court of the County of
Henrico held Morrissey in contempt of court twice during the
course of a single trial. He was fined $50 for the first
offense and $100 for the second offense. In May 1988, the
Circuit Court of Henrico County held Morrissey in contempt of
court and imposed a fine of $50.
In December 1990, Morrissey was issued a private
reprimand from the Virginia State Bar because he had failed to
file timely a petition for appeal on behalf of a client, and
he also failed to file a petition for a writ of habeas corpus
on behalf of that client. He also failed to file a petition
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for appeal to the Supreme Court of Virginia for that client,
and he failed to inform the client of his omissions.
In June 1991, Morrissey, then Commonwealth's Attorney for
the City of Richmond, appeared in the Richmond General
District Court because he was upset that the court refused to
accept a plea agreement that an assistant Commonwealth's
Attorney had proposed to the court. After a heated exchange
between Morrissey and the presiding judge, Morrissey wrote a
letter to the judge which stated in part:
"Although I was unfailingly courteous to you, it was
evident to everybody that you were trying to bait me
— perhaps so you could hold me in contempt. Please
be assured . . . that if that behavior ever, ever,
happens again, I will not be so kind as to merely
draft you a letter of indignation."
The general district court found Morrissey guilty of contempt
of court, the circuit court upheld the conviction, and the
circuit court's judgment was affirmed by the Court of Appeals.
Morrissey v. Commonwealth, 16 Va. App. 172, 428 S.E.2d 503
(1993).
In 1991, Morrissey was sentenced to jail for ten days,
with five days suspended, for contempt of court because he was
involved in a fist fight with opposing counsel in a criminal
trial which was conducted in the Circuit Court of the City of
Richmond. Thereafter, a three-judge court entered an order
which reprimanded Morrissey for his unprofessional conduct.
8
In 1993, a three-judge court suspended Morrissey's law
license for six months because of misconduct which constituted
"dishonesty, fraud, deceit, or misrepresentation" in violation
of former Disciplinary Rule 1-102(A)(4). Morrissey, while
serving as Commonwealth's Attorney for the City of Richmond,
arranged a plea bargain in a rape prosecution. Under the
terms of the plea agreement, a felony rape charge against a
criminal defendant was reduced to a misdemeanor, and the
defendant's father paid $25,000 to the victim and $25,000 to
charities designated by Morrissey. At a hearing before the
Circuit Court of the City of Richmond, when the court accepted
the plea agreement, Morrissey directed the defendant's
attorney not to tell the court about the part of the plea
agreement relating to the defendant's father's contributions
to charities of Morrissey's choice. Morrissey also concealed
this portion of the agreement from the victim, who had
indicated to Morrissey that she wanted more than $25,000 as an
"accord and satisfaction."
On appeal, this Court affirmed the order of suspension.
Morrissey v. Virginia State Bar, 248 Va. 334, 343-44, 448
S.E.2d 615, 620 (1994). We stated that "Morrissey's carefully
orchestrated scheme was designed to secure something of value
to Morrissey — the possibility that members of the donee
charities would express their gratitude in the form of
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political support in the forthcoming election" and that his
conduct violated former Disciplinary Rule 8-101(A)(3).
In 1993, while still serving as the Commonwealth's
Attorney for the City of Richmond, Morrissey unilaterally
amended an arrest warrant for a criminal defendant, thereby
reducing the charged offense from driving under the influence
to reckless driving, a misdemeanor. Morrissey amended the
arrest warrant without the knowledge or consent of the circuit
court, in contravention of the Rules of Court. Morrissey
received a sanction from the Virginia State Bar in the form of
a dismissal with terms in which Morrissey agreed to write a
letter of apology to the court.
III.
Morrissey argues that the three-judge court "abused its
discretion by arbitrarily and capriciously suspending [his]
license to practice law for three years" because the
suspension is inconsistent with the punishment imposed by the
federal court in the Harris matter and the state court in the
Chesterfield County Circuit Court proceeding. Continuing,
Morrissey alleges that the suspension is inconsistent with
discipline imposed in other attorney discipline cases, that
the suspension is excessive and that the suspension is not
warranted by Morrissey's prior disciplinary record.
Morrissey's arguments are without merit.
10
The penalty imposed by a three-judge court in a
disciplinary proceeding is viewed on appeal as prima facie
correct, and it will not be disturbed unless, upon our
independent examination of the whole record, we conclude that
the court abused its discretion. El-Amin, 257 Va. at 620, 514
S.E.2d at 170. Additionally, a court has broad discretion to
impose penalties, and our holding in Maddy v. First District
Committee, 205 Va. 652, 658, 139 S.E.2d 56, 60 (1964), is
equally pertinent here:
"In arriving at the punishment to be imposed,
precedents are of little aid, and each case must be
largely governed by its particular facts, and the
matter rests in the sound discretion of the court.
The question is not what punishment may the offense
warrant, but what does it require as a penalty to
the offender, as a deterrent to others, and as an
indication to laymen that the courts will maintain
the ethics of the profession." (Citation omitted).
Accord Delk v. Virginia State Bar, 233 Va. 187, 193, 355
S.E.2d 558, 562 (1987); see also Gibbs v. Virginia State Bar,
232 Va. 39, 42, 348 S.E.2d 209, 211 (1986); Pickus v. Virginia
State Bar, 232 Va. 5, 15, 348 S.E.2d 202, 208-09 (1986).
Applying these principles, we hold that the court did not
abuse its discretion by suspending Morrissey's license for a
term of three years. The evidence, which we will not repeat,
clearly establishes that Morrissey has exhibited a pattern of
disrespect for the judiciary, the rules of practice, and the
laws of this Commonwealth. He has repeatedly been sanctioned
11
because of his misconduct, as exemplified by the number of
contempt of court sanctions that he has received. He has
often exhibited disrespect for the authority of the courts in
which he has appeared.
Contrary to Morrissey's assertions, he did not merely
"aggressively" assert the rights of his clients. Rather, the
record demonstrates that he has repeatedly acted in flagrant
disregard of the ethics and standards necessary to maintain
public confidence in the legal profession. A suspension of
three years is appropriate to protect the public and deter
others from committing similar misconduct.
We also disagree with Morrissey's contention that the
suspension is inappropriate because he has been punished by
the federal district court and the Circuit Court for
Chesterfield County. Morrissey ignores the distinction
between a criminal contempt proceeding and an attorney
disciplinary proceeding. A proceeding to discipline an
attorney is not a criminal proceeding, and the primary purpose
of an attorney disciplinary proceeding is to protect the
public. Seventh Dist. Comm. v. Gunter, 212 Va. 278, 284, 183
S.E.2d 713, 717 (1971). The purpose of punishment in such
proceeding is to deter others and to demonstrate to the public
that the Bar and the judiciary will maintain the ethics of the
legal profession. Maddy, 205 Va. at 658, 139 S.E.2d at 60.
12
By contrast, criminal contempt proceedings are punitive in
nature and are designed to preserve the power and vindicate
the dignity of the court. Leisge v. Leisge, 224 Va. 303, 307,
296 S.E.2d 538, 540 (1982); Steelworkers v. Newport News
Shipbuilding, 220 Va. 547, 549, 260 S.E.2d 222, 224 (1979).
Even though Morrissey has been punished by the federal
district court and the Circuit Court for Chesterfield County,
the purpose of the suspension imposed by the three-judge court
in this disciplinary proceeding is to protect the public and
to deter others from engaging in similar misconduct.
We observe that Morrissey's lack of civility and
deplorable conduct during the hearing in the Circuit Court for
Chesterfield County, alone, would have been sufficient to
warrant the imposition of a three-year suspension. The
judicial process cannot function and the public will have no
confidence in the judicial process if attorneys are permitted
to act disrespectfully toward the judiciary, intentionally
ignore Rules of Court, and engage in conduct which is
detrimental to the legal profession and the public interest.
We find no merit in Morrissey's contention that his prior
record "is so remote in terms of time, place, and
circumstances that it does not reflect upon Morrissey's
current fitness to practice law." Our independent review of
the record in this case indicates that during his career,
13
Morrissey has exhibited a pattern of misconduct and a lack of
respect for the dignity, civility, and integrity of the legal
profession.
We do not consider Morrissey's argument that federal
Local Rule 57 is unconstitutional because, as his counsel
conceded at the bar of this Court, Morrissey failed to raise
that argument before the three-judge court. Rule 5:25.
IV. Conclusion
Finding no merit in Morrissey's assignment of error, we
will affirm the judgment of the court suspending Morrissey's
license to practice law for a period of three years.
Affirmed.
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