Morrissey v. Virginia State Bar

• Citation: 538 S.E.2d 677,260 Va. 472
• Decision Date: 03 November 2000
• Docket Number: Record No. 001139.
• Court: Virginia Supreme Court
• Parties: Joseph D. MORRISSEY v. VIRGINIA STATE BAR, ex rel. THIRD DISTRICT COMMITTEE.

538 S.E.2d 677

260 Va. 472

Joseph D. MORRISSEY v. VIRGINIA STATE BAR, ex rel. THIRD DISTRICT COMMITTEE.

Record No. 001139.

Supreme Court of Virginia.

November 3, 2000.

David B. Hargett (Michael L. Rigsby, Richmond; Glenn R. Croshaw, Virginia Beach; Morrissey & Hershner, Richmond, Midkiff & Hiner; Willcox & Savage, Norfolk, on brief), for appellant.

Peter R. Messitt, Senior Assistant Attorney General (Mark L. Earley, Attorney General; Judith Jagdmann, Deputy Attorney General; Gregory E. Lucyk, Senior Assistant Attorney General; Brian M. McCormick, Assistant

Attorney General, on brief), for appellee.

Present: All the Justices.

HASSELL, Justice.

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 7-405(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."¹

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).

The Harris Matter

Joel W. Harris was indicted by a multijurisdiction 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 prosegui.

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 multijurisdiction 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 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 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."

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, 119 S.Ct. 2394, 144 L.Ed.2d 794 (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." 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 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

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