an appeal of right from a judgment rendered by the Circuit
Court of the City of Richmond. Nos. CL17001040-00,
Present: Chief Justice Lemons, Justice Goodwyn, Justice
McClanahan, Justice Powell, Justice Kelsey, Justice
McCullough, and Senior Justice Millette
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.
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. Morrissey challenges this decision on a
number of grounds.
the Virginia State Bar alleged that Morrissey had violated
the rules of professional conduct, Morrissey elected to
proceed before a three-judge court. See Code §
54.1-3935. At the conclusion of a five-day hearing in the
Circuit Court for the City of Richmond, most of the claims
were either withdrawn by the Bar or stricken or rejected by
the court. The three-judge court concluded that Morrissey had
violated Rules 5.1(b), 5.5(c), and 8.4(b). The court then
prepared a memorandum opinion reflecting its decision.
Rules 5.1(b) and 5.5(c).
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. The three-judge court's memorandum opinion
contains the following factual summary from the parties'
stipulated facts. We supplement this stipulation with
additional facts, as bracketed:
1. During all times relevant hereto, Respondent has been an
attorney licensed to practice law in the Commonwealth of
2. In 2013, David A. Jones ("Complainant"), hired
Respondent to defend him against four criminal charges
brought by his brother: a felony charge of malicious
wounding, and three misdemeanor charges of domestic assault,
brandishing a firearm, and violation of a protective order.
3. The matters were pending in the Juvenile and Domestic
Relations District Court for King and Queen County.
4. By letter to the court, dated October 15, 2013, Respondent
noted his appearance, stating, "I have been retained to
represent Mr. Jones in the above matter," and provided
his available dates.
5. The preliminary hearing on the felony charge and trial of
the misdemeanor charges were scheduled for December 2, 2013,
one of the dates provided by Respondent.
6. Respondent and one of his employees, Ericka Battle
("Battle"), a recent law school graduate, prepared
the case, filed for discovery and corresponded with the
prosecuting attorney. Respondent, Paul Gregorio, Esquire, and
Ericka Battle, who was a first year Associate, all worked on
the case including filing Discovery, corresponding with the
Commonwealth's Attorney, and meeting with the
Complainant, David Jones. Ericka Battle was a first year
Associate who had previously handled by herself, numerous
cases in the Commonwealth's Attorney's office.
Further, Ms. Battle was not merely a law school graduate, but
had passed the Bar, was licensed by the Virginia State Bar
and was registered and listed with the Virginia State Bar as
"Active, in Good Standing."
7. The prosecutor recalled corresponding with Respondent, and
talking with Respondent and Battle about the matter. It is
possible that Paul Gregorio also spoke with the prosecutor.
Following these discussions the prosecutor determined that
the evidence was insufficient to support the charges and
agreed to seek an order of nolle prosequi from the court.
8. Upon learning that the Commonwealth had agreed to move for
an order of nolle prosequi, Respondent sent Battle in his
stead to represent Complainant at the December 2, 2013
hearing. [Morrissey could not attend due to a scheduling
problem. Battle testified that Morrissey directed her to
appear to represent the client at this hearing; Morrissey
denied ordering her to appear, testifying he communicated
through his office manager.]
9. When Ms. Battle appeared in court on December 2, 2013, she
had a very friendly and jovial exchange with the Court.
Court: "Hi Ms. Battle, I was hoping to see Mr.
Morrissey." Ms. Battle: "No Your Honor, Mr.
Morrissey is not here...You will only get me today."
Both the Court and Ms. Battle laughed.
10. The Commonwealth moved for an order of nolle prosequi as
planned, and the court granted the motion and entered orders
of nolle prosequi for all four charges. The court noted
Battle as counsel for Complainant in its four orders, but
other than standing in for Respondent, she took no other
meaningful action on behalf of Mr. Jones.
11. As of the date that she appeared in court for Complainant
on December 2, 2013, Battle had passed the bar exam on July
30, 2013, was licensed by the Virginia State Bar on October
31, 2013, and on November 8, 2013, was registered and listed
with the Virginia State Bar as "Active, in Good
Standing." She had not, however, been administered the
oath of fidelity by the Supreme Court of Virginia or any
court as required by Virginia Code Section 54.1-3903. The
Supreme Court of Virginia administered her the oath at a
ceremony two days later on December 4, 2013.
12. Virginia Code Section 54.1-3903 provides that:
Before an attorney may practice in any court in the
Commonwealth, he shall make the oath of fidelity to the
Commonwealth, stating that he will honestly demean himself in
the practice of law and execute his office of attorney-at-law
to the best of his ability. An attorney who has qualified
before the Supreme Court of Virginia shall be qualified to
practice in all courts of the Commonwealth. An attorney who
has qualified before a court other than the Supreme Court
shall be qualified to practice only in the court which
administered his oath. Each court in which an attorney
intends to practice may require the attorney to produce
satisfactory evidence of his licensure or authorization.
(This section does not reference those 3rd-year
law students and 1st-year Associates who have
third-year practice papers. In the instant case, Ms. Battle
was a 1st-year Associate who had handled numerous