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Morrissey v. Virginia State Bar Ex Rel. Third District Committee

Court: Supreme Court of Virginia
Date filed: 2000-11-03
Citations: 538 S.E.2d 677, 260 Va. 472
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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).



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                          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


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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."


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     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."


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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.



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     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.


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     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,


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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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