In re: Morrissey v. ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: JOSEPH D. MORRISSEY,  No. 02-1105
Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Leonie M. Brinkema and Jerome B. Friedman, District Judges;
James C. Cacheris, Senior District Judge.
(MISC-97-16)
Argued: June 4, 2002
Decided: September 11, 2002
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Williams and Judge Motz concurred.
COUNSEL
ARGUED: Robert Henry Smallenberg, ROBERT H. SMALLEN-
BERG, P.C., Richmond, Virginia, for Appellant. Robert Harvey
Chappell, Jr., CHRISTIAN & BARTON, L.L.P., Richmond, Virginia,
for Disciplinary Enforcement Counsel. ON BRIEF: Roman Lifson,
CHRISTIAN & BARTON, L.L.P., Richmond, Virginia, for Disciplin-
ary Enforcement Counsel.
2 IN RE: MORRISSEY
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 ser-
vice 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 prac-
ticing before that court.
On November 9, 2000, the district court entered its order, finding
1
Those rules have been renumbered and slightly, but inconsequently,
rewritten as Rules 8.4(b) and (c).
2
18 U.S.C. § 1001 makes criminal in such cases as here knowingly
falsely concealing a material fact, or falsely making a material statement,
or using any false document making a false statement.
IN RE: MORRISSEY 3
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 truth-
fully 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 disbar-
ment 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 var-
ious 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.
4 IN RE: MORRISSEY
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 berat-
ing the judge and continuing to argue after the court’s ruling; Decem-
ber, 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 sus-
pension 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 dur-
ing 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 Har-
ris, a man of some political prominence who faced federal charges of
drug distribution. In that capacity, Morrissey had interviewed a pro-
spective witness in the trial who had testified before a state grand
jury. Morrissey made a video tape of the interview in which the wit-
ness recanted a part of his grand jury testimony. Morrissey then
arranged for the press to view the taped interview during a press con-
ference. 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
IN RE: MORRISSEY 5
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 (1999).
Morrissey remained at liberty on probation, which included a pro-
vision 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, 538 S.E.2d 677 (Va. 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 per-
formed 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 Gri-
vetti 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 pur-
portedly 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
6 IN RE: MORRISSEY
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 falsifi-
cation of his community service report sheets. The district court
revoked Morrissey’s probation and sentenced him to an additional 90
days in jail. This order of the district court was affirmed on appeal in
In re Morrissey, No. 00-4656, 238 F.3d 413 (table) (4th Cir. 2000).
The three-judge district FRDE court in the case at hand found that
Morrissey’s actions in the Harris affair and his long record of profes-
sional difficulty merited disbarment and entered its order disbarring
Morrissey. It found that Morrissey had a "long track record of severe
ethical problems" in the state courts, extensively compounded by his
misconduct before the district court. The gist of its opinion is quoted
here:
Morrissey’s lack of candor, if not outright dishonesty, in
dealings with this Court and those responsible for supervis-
ing the performance of his sentence is wholly unacceptable
from an officer of the court. This Court and the public are
entitled to rely on the honesty, integrity, and civility of
counsel. Morrissey, however, has conclusively shown him-
self unworthy of this trust. Regardless of his past contribu-
tions to the community and the Bar, Morrissey’s proclivity
for unprofessional and unethical conduct, his lack of candor
before Judge Payne, the probation officer, and this panel,
and his failure to acknowledge his misconduct renders him
unfit to practice before the judges of this district.
On appeal, Morrissey makes no objection to the general procedure
involved in this proceeding. He does, however, make two arguments,
the first of which would result in a vacation of the order of the district
court appealed from, and the last of which would result in a new trial.
The first objection is that the three judge FRDE panel had no jurisdic-
tion over Morrissey to inquire into conduct which occurred while
Morrissey was suspended from the practice of law before the district
court in the Eastern District of Virginia. The second objection is that
Morrissey was prevented "from adducing evidence that he did not
solicit Theodore J. Grivetti to falsify documents relating to commu-
IN RE: MORRISSEY 7
nity service hours or that he did not lie to his probation officer." Br.
at 2. We will address those questions in order.
Morrissey argues that because his license to practice law had been
suspended during the time for which some or all of the conduct with
which he was charged had occurred, especially that conduct relating
to the Harris matter, the three-judge panel had no jurisdiction to
inquire into it, on two grounds. First, suspension was adequate pun-
ishment, and second, because the conduct with which he was charged
was that of an attorney, he could not be charged with violating rules
of conduct for members of the bar, his license having been suspended.
So far as suspension being adequate punishment, we defer to the
district court and hold that it did not abuse its discretion in disbarring
Morrissey. See Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530 (1824);
In re Evans, 801 F.2d 703, 706 (4th Cir. 1986).
The question of whether Morrissey may be disbarred for conduct,
all or part of which occurred while his license to practice law had
been suspended, is similarly without merit.
Local Rule 83.1 (L) of the district court provides in part that "[a]ll
counsel admitted to practice before this Court . . . shall be admitted
subject to the rules, conditions and provisions set forth as Appendix
B to these rules." (italics added) Section (H) of that same Rule pro-
vides that "[a]ny person who, before admission to the bar of this
Court or during any disbarment or suspension, exercises any of the
privileges of a member of the bar of this Court, or who pretends to
be entitled so to do, shall be guilty of contempt of Court and subject
to appropriate punishment therefor." (italics added) Thus, a literal
reading of the rules of the Eastern District of Virginia, all counsel and
any person, provides for the prosecution of a disbarment proceeding
for acts which occurred during the time an attorney’s license to prac-
tice law is under suspension.
While none of the federal courts of appeals seem to have consid-
ered this matter, and the opinion of no district court on the subject has
come to our attention, we note that all of the States which have con-
sidered the question have come to the same conclusion, which is that
an attorney may be disbarred for conduct which occurred during the
8 IN RE: MORRISSEY
time his license to practice law was suspended. See In re de Baca, 11
P.3d 426, 429-30 (Colo. 2000); In re Chavez, 1 P.3d 417 (N.M.
2000); Florida Bar v. Ross, 732 So. 2d 1037 (Fla. 1998); In re Wilkin-
son, 834 P.2d 1356 (Kan. 1992); Kirven v. Secretary of the Board of
Comm’rs on Grievances & Discipline, 246 S.E.2d 857 (S.C. 1978);
State ex rel Nebraska State Bar Ass’n v. Butterfield, 111 N.W.2d 543(Neb. 1961); In re Oliver, 89 P.2d 229 (Utah 1939); Grievance Adm’r
v. Hibler, 577 N.W.2d 449 (Mich. 1998) (holds that even a disbarred
attorney is subject to formal complaint).
The distinction between disbarment and suspension made in the
Butterfield case is apt, and we adopt it: "Disbarment is the severance
of the status and privileges of an attorney, whereas suspension is the
temporary forced withdrawal from the exercise of office, powers, pre-
rogatives, and privileges of a member of the bar." 111 N.W.2d at 546.
We hold that the three-judge district court had jurisdiction to con-
sider the motion of the United States for the disbarment of Morrissey
in this proceeding and, in so doing, to consider not only Morrissey’s
conduct since becoming a member of the bar, but also that part of
such conduct which may have occurred during the time his license to
practice law was suspended.
The next question concerns the admissibility of evidence and the
role of the district court and, as well, the role of this court in such a
proceeding. As noted, the events which brought this matter to a head
were occasioned at the outset by the conduct of Morrissey during his
representation of Harris which resulted in his two convictions for con-
tempt, one for the violation of Rule 57(C) (the video tape and press
conference) and the conviction for contempt following the difficulty
with his probation officer.
"The power to punish for contempts is inherent in all courts; its
existence is essential to the preservation of order in judicial proceed-
ings, and to the enforcement of the judgments, orders and writs of the
courts and, consequently, to the due administration of justice." Ex
parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874).
In reviewing the action of the district court in a disciplinary pro-
ceeding, we are told by the Court that it was "not inclined to inter-
IN RE: MORRISSEY 9
pose, unless it were in a case where the conduct of the Circuit or
District Court was irregular or was flagrantly improper." Burr 22 U.S.
at 530. And we have construed that language in a disbarment case as
a standard of abuse of discretion. Evans, 801 F.2d at 706, 708.
In the proceeding before the three-judge FRDE court, Morrissey
moved in limine "to call some of the witnesses who testified in [the
contempt hearing before Judge Payne] . . . [and] as well . . . to present
additional witnesses and evidence, such as polygraph results, to
impeach some of the evidence presented during that hearing." JA 305.
The district court declined to permit Morrissey to present evidence
addressing the facts underlying the prior judicial decisions, stating
that what it would consider was mitigation evidence. Morrissey
argues that the holding of the district court was a kind of issue preclu-
sion occasioned by the differences in the degree of persuasion
required for a revocation of probation and a disbarment. He argues
that whatever the burden is in the two proceedings, it is heavier in the
disbarment proceeding. While that argument may be attractive in dif-
ferent circumstances, that a fact susceptible to proof by a lesser bur-
den is unable to preclude reexamination in a proceeding with a greater
burden, in this disbarment proceeding, whatever those burdens may
be, such is not the case. There are several reasons for our decision.
The first is the great deference a reviewing court is directed to show
to the court which imposes the disbarment. That is plainly set out in
Burr and Evans. As we have noted, we should interpose only when
the conduct of the district court was irregular or flagrantly improper,
in this circuit an abuse of discretion.
Second, when Morrissey was convicted in August of 2000 for con-
tempt, he promptly appealed to this court, which decided the case on
December 22 of that year, affirming the judgment of conviction. In
an abundance of caution, we have examined the briefs of Morrissey
in that appeal and find no question as to the admissibility of evidence
raised, especially no question about any refusal of the district court
to receive evidence offered by Morrissey in that proceeding. Although
the opportunity was there, the evidence now complained of was not
offered and the question was even raised on appeal as to whether Ted
Grivetti was credible and Morrissey was not credible. The district
court accepted the testimony of Ted Grivetti and declined to accept
the testimony of Morrissey. On appeal the finding was that "[w]e find
10 IN RE: MORRISSEY
that the district court’s factual findings are not clearly erroneous." In
re Morrissey, No. 00-4656, slip op. at 2 (4th Cir. 2000).
A third reason is the decision of the district court as shown in the
transcript of the hearing on August 15, 2000. It obviously recognized
that the standard of proof might not be altogether certain and stated
that it believed the standard to be that "[t]he Court is obligated to con-
clude that it is reasonably satisfied that the conditions have not been
met." It continued that it was arguable that "[t]he higher standard of
preponderance of the evidence is the appropriate standard" and stated
that either of those standards had been met. The court continued that
a third standard was proof beyond a reasonable doubt, and that it "did
find, were that the standard, that the matter had been proven even by
that standard notwithstanding the conflicting testimony." While the
district court would seem to be on safe ground in its statement that
being reasonably satisfied is the standard of proof in a probation revo-
cation proceeding, see United States v. Cates, 402 F.2d 473, 474 (4th
Cir. 1968), we need not and do not decide that the evidence in that
proceeding was preclusive. We do decide, however, that because the
probation revocation proceeding in the district court in the Harris mat-
ter was fairly conducted, that no objection was made on appeal to the
fact finding of the district court other than to the weight attributed to
the evidence of certain witnesses, and that the district court in that
proceeding was ever so careful in recognizing that burden of proof in
such proceedings as that might well be in question, the three-judge
FRDE court did not abuse its discretion in declining to reopen the
Harris contempt proceedings.
In sum, we hold that the three-judge FRDE court had jurisdiction
to consider all of the acts of Morrissey complained of, either during
the time his license as an attorney was suspended or during the time
it was not suspended. We are further of opinion and hold that the
FRDE court did not abuse its discretion when it declined to open up
the Harris contempt proceeding and did not abuse its discretion in
ordering disbarment.
The order of the district court appealed from is accordingly
AFFIRMED.
IN RE: MORRISSEY 11
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
)
IN RE: )
)
) Miscellaneous No: 3:97ms16
JOSEPH D. MORRISSEY, )
ESQUIRE )
)
)
O R D E R
For the reasons stated in the accompanying Memorandum
Opinion, the Government’s Motion to Suspend or Disbar
Joseph D. Morrissey from practicing before the United
States District Court for the Eastern District of Virginia is
GRANTED, and it is hereby
ORDERED that Joseph D. Morrissey be and is disbarred
from practicing before the United States District Court for
the Eastern District of Virginia.
The Clerk is directed to strike Joseph D. Morrissey from
the roll of attorneys of this court and to forward copies of
this Order and accompanying Memorandum Opinion to
counsel of record, the Virginia State Bar, and the Clerk for
the United States Court of Appeals for the Fourth Circuit.
Entered this ____ day of December, 2001.
James C. Cacheris - Panel Chairperson
Senior United States District Judge
Leonie M. Brinkema
United States District Judge
12 IN RE: MORRISSEY
Jerome B. Friedman
United States District Judge
Richmond, Virginia
IN RE: MORRISSEY 13
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
IN RE:
JOSEPH D. MORRISSEY,
ESQUIRE Miscellaneous No: 3:97ms16
MEMORANDUM OPINION
Before the Court is the United States’ Motion to Suspend or Disbar
Joseph D. Morrissey from practicing before the United States District
Court for the Eastern District of Virginia.1 In response to that motion,
a Federal Rules of Disciplinary Enforcement Counsel was appointed
pursuant to Federal Rule of Disciplinary Enforcement ("F.R.D.E.")
V(A). The F.R.D.E. counsel filed a report recommending disbarment.
On January 25, 2001, in accordance with F.R.D.E. V(C), Morrissey
was ordered to show cause why he should not be disbarred. The
undersigned judges were appointed to consider this matter pursuant
to F.R.D.E. V(D) and an evidentiary hearing was held on April 3,
2001. At the hearing, Morrissey, who was represented by counsel,
presented numerous local citizens as character witnesses and mem-
bers of the Bar to describe his legal skills. He also filed various post-
hearing documents, some without leave of court, however, all of
which have nevertheless been considered.
For the reasons set forth herein, the United States’ Motion will be
GRANTED.
I. Morrissey’s History of Misconduct
Frequent episodes of unethical, contumacious, or otherwise inap-
propriate conduct mar Joseph D. Morrissey’s career as prosecutor and
1
Pursuant to Local Rule 83.1 (L), all attorneys practicing in this district
are admitted "subject to the rules, conditions and provisions" of the Fed-
eral Rules of Disciplinary Enforcement (F.R.D.E.) as enacted in Appen-
dix B to the Local Rules. Disbarment for misconduct may be imposed
"for good cause shown, and after notice and opportunity to be heard."
F.R.D.E. IV.
14 IN RE: MORRISSEY
private defense attorney. Evidence gathered by F.R.D.E. Counsel and
made a part of the record during the hearing before this panel demon-
strates Morrissey’s fifteen year history of contempt citations, repri-
mands, fines, suspensions, and even incarcerations arising from
unprofessional conduct mostly involving an uncontrollable temper,
inappropriate responses to stress and dishonesty.
This history of misconduct is well documented. On March 24,
1986, the Richmond Circuit Court held Morrissey in contempt and
fined him $50 for berating the judge and continuing to argue after the
court’s ruling.2 See Commonwealth v. Miles, No. 86-F-129(Va. Cir.
Ct. March 24, 1986); Morrissey v. Virginia State Bar, 538 S.E.2d 677,
680 (Va. 2000). In December 1987, the Henrico County Circuit Court
twice cited Morrissey for contempt in the same trial, fining him $50
for the first violation and $100 for the second. See Commonwealth v.
Walker, No. 87-F-1143 (Va. Cir. Ct. Dec. 18, 1987); Morrissey v. Vir-
ginia State Bar, 9538 S.E.2d at 680. Morrissey was again cited for
contempt and fined $50 in the Henrico County Circuit Court on May
3, 1988. See Commonwealth v. Gudd, No. 88-F-8 (Va. Cir. Ct. May
3, 1988); Morrissey v. Virginia State Bar, 538 S.E.2d at 680.
Disciplinary proceedings were instituted against Morrissey on
April 12, 1990, however, the Virginia State Bar Disciplinary Commit-
tee offered to dismiss a disciplinary complaint on the condition that
Morrissey attend the Virginia State Bar professionalism course upon
his return to private practice. See Notice of Dismissal upon Terms,
F.R.D.E. Counsel Report, Ex. 6. On December 28, 1990, the Virginia
State Bar District Disciplinary Committee reprimanded Morrissey for
failing to timely file a petition for appeal, failing to file a habeas cor-
pus petition, and failing to inform his client of these omissions. The
Disciplinary Board later affirmed this reprimand. See Morrissey v.
Virginia State Bar, 538 S.E.2d at 680.
Morrissey’s next episode of misconduct involved a confrontation
with Judge John P. Driscoll, a substitute judge in the General District
Court for the City of Richmond. See Morrissey v. Commonwealth,
428 S.E.2d 503 (Va. 1993). On June 17, 1991, while Morrissey was
2
The court subsequently vacated this conviction after Morrissey sub-
mitted a written apology.
IN RE: MORRISSEY 15
serving as Commonwealth’s Attorney for the City of Richmond,
Judge Driscoll refused to accept a plea agreement offered by an
Assistant Commonwealth’s Attorney, commenting from the bench on
the poor preparation and performance of the Commonwealth’s Attor-
ney’s Office. Id. Morrissey arrived from an adjacent courtroom,
entered an appearance, and proceeded to challenge the substitute
judge’s rejection of the plea agreement. Id. at 503-04. An argument
ensued, and on June 19 Morrissey wrote a letter to Judge Driscoll
complaining about his conduct on the bench. Id. at 504-05. The letter
closed as follows:
Finally, five police officers and one attorney observed the
colloquy between you and me in the Courtroom. Although
I was unfailingly courteous to you, it was evident to every-
body that you were trying to bait me—perhaps so you could
hold me in contempt. Please be assured Mr. Driscoll that if
that behavior ever, ever, happens again, I will not be so kind
as to merely draft you a letter of indignation. Id.On July 18, 1991, Morrissey was found guilty of contempt for
issuing this letter and sentenced to five days in jail. Id. at 505. Both
the Circuit Court and the Virginia Court of Appeals subsequently
upheld this contempt conviction. Id.On December 19, 1991, Morrissey was held in contempt for
engaging in a fist fight with opposing counsel during a criminal trial
in Richmond Circuit Court. A three-judge panel subsequently repri-
manded Morrissey for this conduct. See Morrissey v. Virginia State
Bar, 538 S.E.2d at 680.
On August 31, 1993, the Virginia State Bar District Subcommit-
tee offered to dismiss a disciplinary complaint arising from Mor-
rissey’s unilateral decision as Commonwealth Attorney to amend a
felony arrest warrant down to a misdemeanor without leave of court.
The Subcommittee conditioned dismissal on a formal apology to the
trial judge. See Subcommittee Determination (Dismissal with Terms),
F.R.D.E. Counsel Report, Ex. 12. See also Morrissey v. Virginia State
Bar, 538 S.E.2d at 680-81.
Following a two day hearing on December 7-8, 1993, a three-
judge court suspended Morrissey’s license to practice law for six
16 IN RE: MORRISSEY
months based on Morrissey’s handling of a plea bargain in a rape
case. See In re Morrissey, Chancery No. MC-4160 (Va. Cir. Ct. Janu-
ary 19, 1994). As Commonwealth’s Attorney, Morrissey arranged for
a defendant in a felony rape case to plead guilty to a misdemeanor
and for the defendant’s father to pay $25,000 to the victim and
$25,000 to charities designated by Morrissey. See Morrissey v. Vir-
ginia State Bar, 448 S.E.2d 615,617 (Va. 1994). Morrissey instructed
the defendant not to reveal the charity payments to the court and did
not inform the victim of the charity payments. Id. at 618. Morrissey
also rebuffed the victim’s request for $100,000, explaining that the
arrangement was not negotiable. Id. at 617. The Virginia Supreme
Court affirmed the six-month suspension. Id. at 621. On October 20,
1997, Morrissey was again cited for contempt and sentenced to 30
days in jail for an angry outburst directed at the presiding judge dur-
ing a sentencing hearing held in the Chesterfield County Circuit
Court. See Morrissey v. Virginia State Bar, 538 S.E.2d at 679.
The incidents which bring Morrissey before this Court occurred
after Morrissey’s entry into private practice. Morrissey was retained
to represent Joel Harris, a longtime Richmond political figure who
had been indicted by a federal grand jury for drug distribution. See In
re Joseph D. Morrissey, 996 F. Supp. 530 (E.D. Va. 1998), aff’d. 168
F.3d 134 (4th Cir. 1999), cert. denied 527 U.S. 1036 (1999). During
his representation of the defendant, Morrissey videotaped an inter-
view of a key prosecution witness in which the witness recanted much
of his grand jury testimony. Id. at 532. He then arranged for the media
to view the taped interview during a press conference and made fur-
ther public comments about the case. Id. at 533-34. Morrissey was
later convicted of two counts of contempt for violating Local Rule
57(C),3 and on February 24, 1998, he was sentenced to ninety days’
imprisonment, followed by three years of probation.
3
Local Rule 57(c), captioned "Pending Criminal Proceedings—
Specific Topics," provides:
From the time of arrest, issuance of an arrest warrant, or the fil-
ing of a complaint, information, or indictment in any criminal
matter until the termination of trial or disposition without trial,
a lawyer or a law firm 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 any means of public communication . . .
IN RE: MORRISSEY 17
As conditions of probation, Morrissey was suspended from practic-
ing in the U.S. District Court for the Eastern District of Virginia for
three years and was instructed to commit no federal, state, or local
crimes or "be held in contempt of any court at any time during proba-
tion." Sentencing Hearing Tr., Feb. 24, 1998, F.R.D.E. Counsel
Report, Ex. 21, at 40. Judge Payne stayed execution of the sentence
and released Morrissey on his own recognizance pending appeal. The
release order included requirements that Morrissey not violate any
federal, state, or local laws and that he not be held in contempt of any
court while on release. Despite these explicit requirements, on August
7, 1998, while free on Judge Payne’s bond order, Morrissey was held
in contempt in the Circuit Court for the City of Williamsburg for
directing an inappropriate comment to opposing counsel within ear-
shot of the judge. See Sentencing Hearing Tr., August 7, 1998,
F.R.D.E. Counsel Report, Ex. 22, at 2-4. Morrissey apologized after
being held in custody for one hour. Based on this apology, the Court
expunged the contempt citation. See Letter of Judge Powell, Septem-
ber 21, 1998, F.R.D.E. Counsel Report, Ex. 23. However, because
Judge Payne deemed that conduct to violate his bond order, he
amended Morrissey’s bond to require anger management therapy. See
In re Morrissey, Misc. No. 3:97ms16 (E.D. Va. Oct. 2, 1998).
Although Morrissey subsequently participated in an anger manage-
ment program, he got into a dispute with home-repair contractor
Garien Wycoff while Wycoff was working at the home of one of
Morrissey’s associates on July 3, 1999. The altercation escalated into
a fistfight, and Wycoff was badly injured. See Hearing Transcript,
July 6, 1999, F.R.D.E. Counsel Report, Ex. 26. On July 6, 1999,
Judge Payne revoked Morrissey’s bond because of that fight, and
Morrissey remained in jail until October 1, 1999. See In re Morrissey,
Misc. No. 3:97ms16 (E.D. VA. July 6, 1999). On October 7, 1999,
Morrissey was convicted by a jury of assault and battery in the Rich-
mond Circuit Court for his role in the fight with Wycoff. See Com-
monwealth v. Morrissey, No. 99-F-2548 (Va. Cir. Ct. Oct. 7, 1999).
On December 28, 1999, a panel of three Virginia circuit court
judges suspended Morrissey’s license to practice law in Virginia for
three years following a two-day hearing which addressed many of the
incidents set forth above. The Virginia Supreme Court affirmed this
18 IN RE: MORRISSEY
suspension, which took effect on December 15, 2000. See Morrissey
v. Virginia State Bar, 538 S.E.2d at 682.
The proverbial "last straw" involved Morrissey’s efforts to circum-
vent the conditions of probation imposed by Judge Payne in the Har-
ris case. Morrissey was released from federal custody on October 1,
1999 and met with his federal Probation Officer, David Guertler, on
October 7, 1999, to discuss the special condition of probation that he
perform 300 hours of community service. Guertler informed Mor-
rissey that at least 50 of the hours were to be performed through Habi-
tat for Humanity ("Habitat"). In a December 10, 1999 meeting,
Guertler instructed Morrissey to begin his work with Habitat and
reminded Morrissey that he could not provide legal services as a way
to fulfill this service requirement.
Soon thereafter, Morrissey contacted Ted Grivetti, the local coordi-
nator for Habitat projects. Morrissey explained his community service
requirement, claimed to have completed work for an elderly neighbor,
and asked Grivetti to sign his community service time sheet reflecting
Morrissey’s services to his neighbor as satisfying the Habitat require-
ment. When Grivetti refused and advised Morrissey to speak to his
probation officer, Morrissey denied having a probation officer. Mor-
rissey then offered to provide free legal services to Habitat if Grivetti
would sign off on his community service time sheet. Grivetti again
declined, stating that he would only sign off on hours spent on an
actual Habitat project. Grivetti later related this conversation to
Andrea Edmonds, then a probation officer, who in turn advised
Guertler of Morrissey’s offers to Grivetti. After further investigation,
Guertler and his supervisor confronted Morrissey in a meeting on
February 16, 2000. In that meeting, Morrissey denied ever asking Gri-
vetti to sign his time sheet reflecting hours purportedly worked for his
neighbor and also denied offering to perform legal services as his
community service.
Probation Officer Guertler filed a revocation petition and on April
20, 2000, Judge Payne issued a Show Cause Order directing Mor-
rissey to show cause why his probation should not be revoked
because of his overtures to Grivetti. Following an evidentiary hearing,
Judge Payne concluded that Morrissey had violated 18 U.S.C. § 100144
18 U.S.C. § 1001(a) provides, in relevant part, that
[W]hoever, in any matter within the jurisdiction of the executive,
IN RE: MORRISSEY 19
by lying to his probation officer when denying his discussions with
Grivetti. He also found that Morrissey had, in fact, offered legal ser-
vices in exchange for the falsification of service report sheets. See
Hearing Transcript, October 28, 2000, F.R.D.E. Counsel Report, Ex.
29.5 Judge Payne revoked Morrissey’s probation and sentenced him
to an additional 90 days incarceration. See In re Morrissey, Misc. No.
3:97ms16 (E.D. Va. Sept. 5, 2000). The Fourth Circuit subsequently
affirmed both the revocation of probation and the sentence imposed.
See In re Morrissey, 238 F.3d 413, 2000 WL 1868978 (4th Cir. Dec.
22, 2000)(unpublished).
II. The Due Process Hearing
Morrissey’s record, as summarized above, demonstrates a con-
sistent problem with management of his temper, an inability to com-
ply with court orders, and a chronic disregard for truthfulness.
Unfortunately, the manner in which Morrissey approached the evi-
legislative, or judicial branch of the Government of the United
States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent state-
ment or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;
shall be fined under this title or imprisoned not more than 5
years, or both.
5
During a lengthy evidentiary hearing, Judge Payne received testimony
from several witnesses corroborating the chain of events described
herein. At the close of the evidence, Judge Payne expressly declined to
credit the testimony of Morrissey and one of his witnesses. See Hearing
Transcript, October 28, 2000, F.R.D.E. Counsel Report, Ex. 29, at 291-
94. Judge Payne concluded that the "conditions of probation have not
been met," noting that the evidence supported his finding under either a
preponderance of the evidence or clear and convincing standard. Id. at
294.
20 IN RE: MORRISSEY
dentiary hearing, rather than dispelling the panel’s concerns with
these problems, only reinforced its skepticism about Morrissey’s fit-
ness to practice law before this court.
Instead of presenting evidence of a diligent effort to address his
anger control problem, which has plagued his legal career, Morrissey
presented a series of character witnesses from the Richmond area and
the legal community to develop two general themes: that he has been
a good neighbor who has volunteered many hours to the elderly and
needy and that he is a very capable criminal defense attorney. Neither
of these two facts were at issue in the hearing, which necessarily
focused on Morrissey’s fitness to practice law before this Court.
Morrissey utterly failed to produce any evidence at the hearing
about his efforts to manage his temper, even though that problem has
consistently landed him in trouble with the bench. It was not until
questioned by the panel that Morrissey reported he had been meeting
with a Reverend Bradley Harris for "counseling". It struck the panel
that not even Morissey’s counsel knew about these sessions because
no curriculum vitae for Reverend Harris was presented, nor was Rev-
erend Harris on Morrissey’s list of witnesses. The panel allowed Mor-
rissey to supplement the record with Reverend Harris’ curriculum
vitae. On April 3, 2001, Morrissey filed Reverend Harris’ curriculum
vitae, which did not show any formal training in psychology, psychia-
try, social work or anger management. A letter from Reverend Harris
was also included. In that letter Harris explained how he sought out
Morrissey in early 2000 to provide him with "spiritual assistance." He
described providing Morrissey with Bible study. Their second meet-
ing was five months later at a restaurant, at which "theology,
sotemiology, forgiveness, the sovereignty of God and related matters
pertaining to his current circumstances were discussed." The rest of
Reverend Harris’ letter describes other lunch or dinner meetings and
a series of weekly meetings in the February to March, 2001 time
period in which they discussed "five keys to effective spiritual
growth." Nothing in Reverend Harris’ letter describes professional
anger management counseling, thereby reinforcing our conclusion
that Morrissey has not yet acknowledged that his temper interferes
with his professionalism. We find that this informal approach to such
an obviously serious problem is wholly insufficient and is clear evi-
IN RE: MORRISSEY 21
dence that Morrissey does not view his inability to control his anger
as a serious flaw.
Morrissey’s testimony about this "counseling" also underscores
the Panel’s concern about Morrissey’s lack of candor with the court.
It is clear to us that the Harris counseling cannot be considered appro-
priate anger management, as Morrissey claimed at the hearing. More-
over, when asked about his future plans, Morrissey at first testified
that he would be leaving Virginia during the summer for Ireland
where he had a teaching job. Upon further probing, it became clear
that Morrissey did not yet have a teaching job, rather a church official
was working on getting him one. We find this testimony to be the sec-
ond incident of less than full candor before this panel.
III. Discussion
Federal courts have the inherent power to control the admission of
attorneys to their bars and to discipline attorneys who appear before
them. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) citing
Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531 (1824). Even without a
finding of contempt, a court may impose such sanctions as a monetary
penalty or disbarment as part of this inherent power. See Ex parte
Robinson, 86 U.S. (19 Wall.) 505, 512 (1873)(disbarment). The
record before us clearly establishes a long track record of serious ethi-
cal problems surrounding Morrissey’s misconduct in state court. That
conduct was extensively compounded by his misconduct before Judge
Payne.
Attorneys practicing before the courts of this district are subject
to Virginia’s standards for ethical conduct.6 At all relevant times,
6
Local Rule 83.1, captioned "Attorneys and Pro Se Parties," currently
provides in relevant part:
(I) Professional Ethics. With the exception of Virginia Rule of
Professional Conduct 3.6 (the subject of which is covered by
Local Criminal Rule 57), the ethical standards relating to the
practice of law in this Court shall be the Virginia Rules of Pro-
fessional Conduct, as published in the version effective January
1, 2000.
22 IN RE: MORRISSEY
these standards have prohibited criminal or deliberately wrongful con-
duct which reflects adversely on fitness to serve as an attorney or
involving dishonesty, fraud, deceit or misrepresentation.7
We find that Morrissey’s misconduct in the Harris case while on
bond when he was involved in an assault, and later, while on proba-
tion when he lied to his probation officer clearly violated these stan-
dards. In particular, Morrissey’s misconduct while on bond showed
that he was either unwilling or unable to control his temper. His con-
duct while on probation showed his unwillingness or inability to fol-
low court orders and to be truthful with the court and court personnel.
The record also establishes that Morrissey made false statements to
his probation officer and before Judge Payne, who made a finding on
the record that he did not credit Morrissey’s testimony. Lastly, as dis-
cussed above, the panel is extremely troubled by Morrissey’s failure
to appreciate the purpose of these very proceedings. Other than his
testimony, the evidence presented at the hearing before this panel was
irrelevant to the issues before us. When Morrissey did testify, it
became obvious that he did not take his anger management problem
seriously, that he still did not accept Judge Payne’s conclusions about
his conduct with the probation office and he continued to be less than
candid with the court.
Morrissey contends that, despite professional missteps, his
record is one of devotion to his clients and his community. The panel
was impressed with the many witnesses who testified to Morrissey’s
***
(L) Federal Rules of Disciplinary Enforcement. All counsel
admitted to practice before this Court or admitted for the purpose
of a particular proceeding (pro hac vice) shall be admitted sub-
ject to the rules, conditions and provisions set forth in full as
Appendix B to these Rules.
7
The Virginia Rules of Professional Conduct took effect on January 1,
2000, replacing the Virginia Code of Professional Responsibility.
F.R.D.E. counsel has referred the Court to the relevant provisions of the
Code and the corresponding Rules now in force. Compare Virginia Code
of Professional Responsibility, DR 1-102(A)(3) , (4) with Virginia Rules
of Professional Conduct, R. 8.4 (b) , (c).
IN RE: MORRISSEY 23
overall character, his career in public service, and his zeal in repre-
senting his clients’ interests. Although such conduct is commendable,
we share the Virginia Supreme Court’s view that Morrissey’s chronic
"lack of civility and deplorable conduct" eclipse his virtues as a caring
neighbor and zealous advocate.8
Morrissey’s lack of candor, if not outright dishonesty, in deal-
ings with this Court and those responsible for supervising the perfor-
mance of his sentence is wholly unacceptable from an officer of the
court. This Court and the public are entitled to rely on the honesty,
integrity, and civility of counsel. Morrissey, however, has conclu-
sively shown himself unworthy of this trust. Regardless of his past
contributions to the community and the Bar, Morrissey’s proclivity
for unprofessional and unethical conduct, his lack of candor before
Judge Payne, the probation officer, and this panel, and his failure to
acknowledge his misconduct renders him unfit to practice before the
judges of this district.
CONCLUSION
For these reasons, Joseph D. Morrissey shall by an appropriate
order be disbarred from practice before the Eastern District of Vir-
ginia.
The Clerk is directed to forward copies of this Memorandum
Opinion to counsel of record, the Virginia State Bar, and the Clerk for
the United States Court of Appeals for the Fourth Circuit.
Entered this ____ day of December, 2001.
8
Morrissey v. Virginia State Bar, 538 S.E.2d at 682. "Contrary to Mor-
rissey’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." Id. at 681.
This Virginia Supreme Court opinion did not even consider Mor-
rissey’s misconduct while on probation in the Harris matter.
24 IN RE: MORRISSEY
James C. Cacheris - Panel Chairperson
Senior United States District Judge
Leonie M. Brinkema
United States District Judge
Jerome B. Friedman
United States District Judge
Richmond, Virginia