In re Morrissey

• Decision Date: 11 September 2002
• Docket Number: No. 02-1105.,02-1105.
• Citation: 305 F.3d 211
• Parties: In re Joseph D. MORRISSEY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

305 F.3d 211

In re Joseph D. MORRISSEY, Appellant.

No. 02-1105.

United States Court of Appeals, Fourth Circuit.

Argued June 4, 2002.

Decided September 11, 2002.

ARGUED:

Robert Henry Smallenberg, Robert H. Smallenberg, P.C., Richmond, VA, for Appellant. Robert Harvey Chappell, Jr., Christian & Barton, L.L.P., Richmond, VA, for Disciplinary Enforcement Counsel.

ON BRIEF:

Roman Lifson, Christian & Barton, L.L.P., Richmond, VA, for Disciplinary Enforcement Counsel.

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge WILLIAMS and Judge MOTZ concurred.

OPINION

WIDENER, Circuit Judge.

This is a case in which we affirm the disbarment of an attorney, instituted by a motion of the United States, filed by the United States Attorney for the Eastern District of Virginia on August 17, 2000, requesting the district court to enter an order that Joseph D. Morrissey show cause why he should not be disbarred due to violations of the Virginia Code of Professional Responsibility, specifically DR 1-102, A(3) and (4), which follow:¹

A. A lawyer shall not:

(3) Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.

The motion recited that Morrissey had been found guilty on August 15, 2000 of violating 18 U.S.C. § 1001 when he lied to his probation officer about a conversation he had had with one Ted Grivetti.² It also charged that Morrissey had been found guilty of offering Grivetti free legal services in return for Grivetti's falsification of a community service report of Morrissey's hours performed for Habitat for Humanity. The motion charged that these violations occurred while Morrissey was on probation, and he previously had been suspended from practicing before that court.

On November 9, 2000, the district court entered its order, finding that Morrissey had been adjudged to have violated the conditions of his probation by violating 18 U.S.C. § 1001 and condition no. 3 of the terms of his probation which required that he should "answer truthfully all inquiries of the probation officer," both violations "having been committed by the making of false statements to a United States probation officer" and that such acts were charged to have constituted misconduct within the meaning of Rule 102 A(4) mentioned above. It ordered, pursuant to Federal Rules of Disciplinary Enforcement (FRDE) V, A and X and Local Rule 83.1 I and L, that the motion of the government to disbar Morrissey be referred to a designated FRDE counsel for investigation and, if appropriate, prosecution in a formal disciplinary proceeding or other appropriate recommendation.

The attorney so appointed, R. Harvey Chappell, Jr., filed his report January 16, 2001, recommending that the court enter an order that Morrissey show cause why he should not be disciplined by disbarment based upon (1) a violation of DR 1-102(A)(3) and (A)(4) and (2) Morrissey's "egregious conduct over a period of years" as shown by Appendix A, attached. Appended to that report was a documented Appendix of 16 incidents of disciplinary problems that Morrissey had had with the courts, both state and federal, commencing in March, 1986 and continuing through the decision of the district court of August 15, 2000, mentioned in the motion of the government filed August 17, 2000. The documentation, which includes some excerpts of hearing transcript, occupies some 250 pages of the Appendix filed in this case.

Following the report of the FRDE counsel, the district court entered its order on January 25, 2001, that Morrissey show cause why he should not be disbarred for (A) violation of Rules 102(A)(3) and (A)(4) and (B) "the history of repeated professional misconduct," and requesting the chief judge of that court to appoint a panel of three judges to hear and decide the questions raised in the show cause order. That panel met on April 3, 2001. It considered the record, took the evidence of witnesses ore tenus in open court, and considered various exhibits. It filed its memorandum opinion December 21, 2001 and entered its order that same day, disbarring Morrissey, from which order this appeal is taken.

Among those incidents, documented by the report of the FRDE counsel and considered in the opinion of the three-judge court from which this appeal is taken, briefly are:

A 1986 fine in the Circuit Court of the City of Richmond for berating the judge and continuing to argue after the court's ruling; December, 1987 and May, 1988 fines for three occasions of contempt in the Circuit Court of Henrico County; two 1990 disciplinary proceedings before the Virginia State Bar Disciplinary Committee, one of which was dismissed on terms, the other of which was affirmed; a July, 1991 sentence of five days in jail for writing a threatening letter to a judge of the General District Court of the City of Richmond; a December, 1991 reprimand for engaging in a fist fight with opposing counsel in a criminal trial in the Circuit Court of the City of Richmond; an August, 1993 dismissal upon apology to the trial judge for amending a felony arrest warrant without leave of court; a 1993 six-month suspension from the practice of law by a three-judge Virginia court for his handling, as Commonwealth's Attorney, of a guilty plea in a rape case; an October, 1997 fine and jail sentence in the Circuit Court of Chesterfield County for an angry outburst at the presiding judge during a sentencing hearing; and the probation revocation proceeding earlier mentioned in this opinion. The opinion of the three-judge FRDE district court and its accompanying order of disbarment, appealed from here, are appended to this opinion.

The immediate incident from which this proceeding arises arose after Morrissey was no longer the Commonwealth's Attorney, and had returned to private practice, in his representation of one Joel Harris, a man of some political prominence who faced federal charges of drug distribution. In that capacity, Morrissey had interviewed a prospective witness in the trial who had testified before a state grand jury. Morrissey made a video tape of the interview in which the witness recanted a part of his grand jury testimony. Morrissey then arranged for the press to view the taped interview during a press conference. For this he was tried in the district court and found guilty of violating Local Rule 57(c) which provides that from the time of arrest, a lawyer associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement which a reasonable person would expect to be further disseminated by public communication. For this he was sentenced to 90 days' imprisonment followed by three years of probation. See In re Morrissey, 996 F.Supp. 530 (E.D.Va. 1998), aff'd, 168 F.3d 134 (4th Cir.1999), and cert. denied, 527 U.S. 1036, 119 S.Ct. 2394, 144 L.Ed.2d 794 (1999).

Morrissey remained at liberty on probation, which included a provision that he not violate any federal, state or local law or be held in contempt of any court while on release. Despite this, Morrissey was held in contempt in the Circuit Court of the City of Williamsburg for directing an inappropriate comment to opposing counsel on August 7, 1998. Upon apology to the court, it expunged his contempt citation, but the district court amended Morrissey's release to require anger management therapy. During this time, Morrissey got into a dispute with a home repair contractor who was working at the home of one of Morrissey's associates, which resulted in a fist fight, badly injuring the contractor. His federal bond was revoked on account of that fight and he was in jail until October 1, 1999. On December 28, 1999, a three-judge Virginia court suspended his license to practice law in Virginia for three years, which was affirmed by the Virginia Supreme Court in Morrissey v. Virginia State Bar, 260 Va. 472, 538 S.E.2d 677 (2000). Morrissey's bond for the Rule 57(c) violation had been revoked July 6, 1999, and upon his release from custody, he reported to his federal probation officer, David Guertler, to discuss the special condition of probation, that he perform 300 hours of community service. Guertler informed Morrissey that at least 50 of those hours were to be performed for Habitat for Humanity. Following that interview with Guertler, Morrissey contacted Ted Grivetti, the local coordinator for Habitat for Humanity's projects. He attempted to get Grivetti to sign his community service time sheet, reflecting Morrissey's service to a neighbor as satisfying the Habitat for Humanity requirement, but Grivetti refused and advised Morrissey to speak to his probation officer. Morrissey denied having a probation officer. Morrissey then offered to provide free legal services for Habitat for Humanity if Grivetti would sign off on his community service time sheet. Grivetti again refused, stating he would only sign off on hours spent on an actual Habitat project. These conversations came to Guertler's attention, who confronted Morrissey with them, and in that meeting, Morrissey denied ever asking Grivetti to sign his time sheet reflecting hours purportedly worked for his neighbor, and denied offering to perform legal services as his community service. Upon that conversation, Guertler filed a petition in the district court to revoke Morrissey's probation. After an evidentiary hearing, the district court found that Morrissey had violated 18 U.S.C. § 1001 by lying to Guertler about his conversations with Grivetti. The district court also found that Morrissey had, in fact, offered legal services in exchange for a falsification of his community service report sheets. The district court revoked Morrissey's probation and sentenced him to an additional 90 days in...