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Morrissey v. Virginia State Bar, ex rel. Third District Committee

Supreme Court of Virginia

July 18, 2019

Joseph Dee Morrissey, Appellant,
v.
Virginia State Bar, ex rel. Third District Committee, Appellee.

          Upon an appeal of right from a judgment rendered by the Circuit Court of the City of Richmond. Nos. CL17001040-00, CL17004695-00

          Present: Chief Justice Lemons, Justice Goodwyn, Justice McClanahan, Justice Powell, Justice Kelsey, Justice McCullough, and Senior Justice Millette

         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. Morrissey challenges this decision on a number of grounds.

         BACKGROUND

         After 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 At the conclusion of a five-day hearing in the Circuit Court for the City of Richmond, most of the claims were either withdrawn by the Bar or stricken or rejected by the court.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.

         I. 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. 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 Virginia.
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 ...

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