Virginia Lawyers Weekly//July 29, 2019
Virginia Lawyers Weekly//July 29, 2019//
“Upon consideration of the record, briefs, and argument, the Court is of opinion that there is no error in the memorandum order that is the subject of this appeal.
“A three-judge court found that Virginia attorney Joseph D. Morrissey violated Rules 5.1(b), 5.5(c), and 8.4(b) of the Virginia Rules of Professional Conduct. The judges concluded that these violations warranted the revocation of his license to practice law.”
Rules 5.1(B) and 5.5(C)
“The charges related to Rules 5.1(b) and 5.5(c) stem from a court appearance by an associate of Morrissey’s law firm, Ericka Battle. …
“Rule 5.1(b) states: ‘A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.’
“Parsing the rule according to its plain text, it is undisputed that Morrissey had ‘direct supervisory authority’ over Battle. Battle was a recent law school graduate and Morrissey was one of the founders of the firm bearing his name. He was her supervisor. Battle testified that Morrissey directed her to appear in a circuit court case (a fact Morrissey denied).
“When she appeared in court at Morrissey’s command (or prodding), Battle had passed the bar exam, but had not taken the oath of office. The record does not reflect any efforts by Morrissey, much less the ‘reasonable efforts’ the rule requires, to ensure that Battle could properly appear in court. At no point did Morrissey inquire whether Battle had taken the oath of office. Her appearance without having taken the oath of office was in violation of the Rules of Professional Conduct. …
“Making sure a recent law school graduate has actually taken the oath of office before representing clients in court is hardly a burdensome requirement for supervising attorneys. The evidence was sufficient to show by clear and convincing evidence that Morrissey violated the terms of Rule 5.1(b). …
“With respect to Rule 5.5(c), Morrissey argues that the evidence does not support a finding that he knowingly or otherwise ‘assisted’ a breach of the ethics rules. The Bar responds that Morrissey told Battle to go to court to have a case ‘nolle prossed.’ Had he not taken this step, Battle would not have appeared in court. …
“Battle practiced law by appearing in court and representing a client of the firm in a criminal proceeding. She did so in violation of the regulation of the legal profession by appearing prior to her having taken the required oath. … Morrissey either knew or should have known that Battle had not yet taken the oath. Battle testified that she told Morrissey that she needed to take time off to attend her swearing in on December 4, 2013.
“Without ensuring that she took the oath, he ordered her to appear in court on December 2, 2013. This evidence clearly and convincingly suffices to establish that Morrissey assisted another in appearing in court ‘in violation of the regulation of the legal profession in that jurisdiction,’ thereby violating Rule 5.5(c).”
“Morrissey … was convicted on December 12, 2014 of the crime of Contributing to the Delinquency of a Minor[.] … As to the finding that Morrissey violated Rule 8.4(b), Morrissey’s arguments center on the contention that the Bar failed to establish a wrongful act ‘that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.’ In his view, there is no ‘nexus’ between his conviction for contributing to the delinquency of a minor and his fitness to practice law.
“Rule 8.4(b) states that ‘[i]t is professional misconduct for a lawyer to … commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.’
“Morrissey entered an Alford plea to a charge of contributing to the delinquency of a minor. A conviction for contributing to the delinquency of a minor certainly constitutes a ‘criminal act’ and a ‘wrongful act’ for purposes of Rule 8.4(b). …
“The facts in the record justify a finding by clear and convincing evidence that Morrissey’s violation of a criminal statute and the attendant circumstances call into question his honesty, trustworthiness, and fitness to practice law.”
“Three points stand out with respect to an appropriate sanction. First, rather than take responsibility, Morrissey tries to shift the blame for his actions to others[.] … Second, these infractions occurred barely one year after Morrissey regained his law license. Third, and most significantly, we must weigh into the balance the long and notorious book of Morrissey’s disciplinary history – to which one more chapter has now been added.
“His disciplinary history consists of eight actions: three Dismissals with Terms, a Private Reprimand, a Public Reprimand, a Suspension of his license to practice law for six months, a Suspension of his license to practice law for three years, and the Revocation of his license to practice law in 2003.
“The three-judge court also admitted a Memorandum Opinion Order from the United States District Court, Eastern District of Virginia, which disbarred Morrissey from practicing law before that Court. “This voluminous history establishes Morrissey’s chronic unwillingness to practice law in conformity with the rules that govern our profession. The sanction of revocation is fully justified.”
Morrissey v. Virginia State Bar. Record No. 181311 (Published Order) July 18, 2019. (Appeal from Richmond Circuit Court) William Martin Stanley Jr., Aaron Balla Houchens, Frank Kenneth Friedman, Joseph Walton Milam III for Appellant, Edward Lee Davis, Christine Marie Corey, Mark Rankin Herring, Sandra Snead Gregor, Matthew Robert McGuire, Toby Jay Heytens for Appellee. VLW 019-6-051, 13 pp.