New South Wales Supreme Court CITATION : Morrissey v The New South Wales Bar Association [2006] NSWSC 323 HEARING DATE(S) : 6 - 8 March 2006 JUDGMENT DATE : 26 April 2006 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL CATCHWORDS : APPLICATION REFERRED FOR DETERMINATION - application for admission made to the Legal Practitioner's Admission Board - disbarment in a foreign jurisdiction - disciplinary history in foreign jurisdiction - recent conduct - candour - disclosure - not a "fit and proper person" to be admitted as a legal practitioner LEGISLATION CITED : Legal Profession Act 2004 (NSW) Gersten v The Law Society of NSW (2002) 56 NSWLR 16 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 CASES CITED : New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 Re B [1981] 2 NSWLR 372 Re Davis (1947) 75 CLR 409 Re Evatt (1987) 92 FLR 380 PARTIES : Joseph Dee Morrissey (Pltf) The NSW Bar Association (Def) FILE NUMBER(S) : SC 12969/05 COUNSEL : J L Glissan QC (Pltf) S D Robb SC/C A Webster/A Ryan (Def) SOLICITORS : Stewart Cuddy & Mockler (Pltf) Hicksons Lawyers (Def) SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN CJ at CL WEDNESDAY 26 APRIL 2006 12969/05 MORRISSEY v THE NEW SOUTH WALES BAR ASSOCIATION JUDGMENT 1 HIS HONOUR: Joseph Dee Morrissey was, until he was disbarred on 25 April 2003, a legal practitioner in the State of Virginia in the United States of America. He now seeks to be admitted as a legal practitioner in New South Wales and to be permitted to practice as a barrister. 2 Mr Morrissey applied for admission in New South Wales in January 2005. His application has been the subject of a detailed report of 18 April and a supplementary report of 17 June 2005, to the Legal Practitioners Admission Board ("LPAB"). On each occasion it has been recommended that the Board "declare that Mr Morrissey is a person of good fame and character and otherwise fit to practice." 3 There is no question about Mr Morrissey's skill and experience as a legal practitioner, particularly as an advocate. The references tendered at the hearing spoke eloquently of his competence as an advocate and teacher. He has completed the New South Wales College of Law course. 4 The question raised in these proceedings is whether Mr Morrissey is a "fit and proper person" to be admitted "as a legal practitioner." Under the Legal Profession Act 2004 (NSW) that question is required to be determined by the Admission Board. However, as has happened in the present case, pursuant to s 27(1), the Admission Board may refer the issue to the Supreme Court for determination. 5 When deciding whether an applicant is a fit and proper person to be admitted the Board, and the Court if the matter has been referred, must follow the process provided by s 25 and accordingly: "(a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and (b) may consider any other matter it considers relevant." 6 Section 25(2) provides a further qualification that the Board "may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter." 7 Suitability matters are catalogued in s 9 which is in the following terms: (1) Each of the following is a suitability matter in relation to a natural person: (a) whether the person is currently of good fame and character, (b) whether the person is or has been an insolvent under administration, (c) whether the person has been convicted of an offence in Australia or a foreign country, and if so: (i) the nature of the offence, and (ii) how long ago the offence was committed, and (iii) the person's age when the offence was committed, Note. The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. (d) whether the person engaged in legal practice in Australia: (i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law, or (ii) if admitted, in contravention of a condition on which admission was granted, or (iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended, (e) whether the person has practised law in a foreign country: (i) when not permitted by or under a law of that country to do so, or (ii) if permitted to do so, in contravention of a condition of the permission, (f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following: (i) this Act or a previous law of this jurisdiction that corresponds to this Act, or (ii) a corresponding law or corresponding foreign law, (g) whether the person: (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country, or (ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt, (h) whether the person's name has been removed from: (i) a local roll, and whether the person's name has since been restored to or entered on a local roll, or (ii) an interstate roll, and whether the person's name has since been restored to or entered on an interstate roll, or (iii) a foreign roll, (i) whether the person's right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country, (j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts, (k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person, (l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice, (m) whether the person currently is unable to carry out the inherent requirements of practice as an Australian legal practitioner and that inability arises from infirmity, injury or mental or physical illness, impairment or disability. (2) A matter is a suitability matter even if it happened before the commencement of this section." 8 Only matters (a), (c) (h)(iii) and (i) are relevant in Mr Morrissey's case. Relevant matters from Virginia 9 Mr Morrissey is an American citizen and was originally licensed to practice in the State of Virginia on 26 April 1983 and was admitted as a practitioner of the Supreme Court of Virginia on 14 June 1983. 10 On 24 March 1986 when he was an Assistant Attorney for the Commonwealth of Virginia, Mr Morrissey was found guilty of contempt by Judge Wright when he "repeatedly objected to the introduction of certain evidence offered on behalf of the defendant, and upon the court overruling his objection and ordering him to cease arguing the objection after the Court had ruled … again commenced to argue the objection, much to the delay of the trial proceedings and contrary to the order of the Court." He was fined $50. 11 Mr Morrissey later appeared before the Court and apologised for his behaviour and on 11 April 1986 the finding of contempt and the sentence requiring him to pay the fine were vacated. 12 In December 1987 in the Circuit Court of the County of Henrico Mr Morrissey was cited and convicted of contempt in relation to two complaints. Mr Morrissey gave evidence that he cannot recall the reasons for the citation and there is no document in evidence which is of assistance. He was fined $50 for one contempt and $100 for the other. In May 1988 a judge of the Circuit Court convicted him of contempt and again he was fined $50. The circumstances of this conviction are unknown and Mr Morrissey gave evidence that he cannot remember them. 13 Mr Morrissey was elected as the Commonwealth Attorney for the City of Richmond in 1989. In that role he was the Chief Prosecutor and responsible for the work of Assistant Attorneys and others carrying out prosecutions on behalf of the State. 14 On 12 April 1990 the Virginia Bar Disciplinary Committee considered a complaint by Mark Spick, a former client of Mr Morrissey, to the effect that he had acted improperly in settling a personal injury claim. The matter was determined administratively and Mr Morrissey was "offered" a dismissal on condition, inter alia, that he attend the professionalism course administered by the Virginia State Bar. 15 On 28 December 1990 the Virginia Bar Disciplinary Committee issued Mr Morrissey a reprimand for failing to act properly in the service of a client. He had failed to file a notice of appeal on time. Although as it happened his client was not prejudiced (leave to file out of time was granted) the Virginia Bar Disciplinary Board affirmed the reprimand following an appeal. 16 On 17 June 1991, in a case called Commonwealth v Silva, Steven Buck, Assistant Commonwealth Attorney of the City of Richmond presented a plea agreement to Judge John P Driscoll who was sitting as a substitute general district court judge. Judge Driscoll refused to accept the plea agreement and commented on Buck's lack of preparation, as well as the lack of organisation and laziness of the prosecutor's office (Mr Morrissey's office). After Buck and Eric Page, defence counsel, advised Mr Morrissey of what had happened, Mr Morrissey, who was busy in another courtroom, came to Judge Driscoll's courtroom. Mr Morrissey told the judge that the plea in the Silva case was acceptable and that the case would not be prosecuted if the plea agreement was not accepted. At a hearing in Virginia in 1993, Mr Morrissey gave evidence as to the events which followed. I have extracted the following account from the judgment of the Court of Appeals Virginia dated 30 March 1993 (Joseph Dee Morrissey v Commonwealth of Virginia 16 VA App 172): "Q. What happened when you approached the court? A. I asked the Court if there is anything I can do with respect to Commonwealth v Silva. And the judge said either, or inferred, go on. And I said, I have reviewed the evidence with the defence attorney. I reviewed the evidence with Mr Buck, and the Commonwealth is satisfied - these are almost my exact words - that that was an acceptable plea agreement … and Mr Driscoll said … 'I don't know why you are here. The case has already been transferred. It was at that time that Eric Page was standing to my right, interjected and he said "Judge, the case hasn't been transferred. You ordered the Sergeant [sic] materials to be obtained from South Richmond and everything to be brought back before you." Judge Driscoll did not acknowledge Mr Page's comment. And that is when Mr Buck had some type of colloquy with the court. What he said was consistent with my recollection. Q. What did the court tell you? A. The court essentially said that it did not, did not want to hear from me and didn't want me in court, or something to that effect … and I pointed out to the court the diligent efforts that Mr Buck had made … He then admonished or stated something to the effect that I don't want to hear any more. The case has been transferred. And my final response was, thank you very much your Honor and I walked out of the courtroom. Mr Buck testified earlier at trial that he interjected "at that point that the case had not been transferred, yet, because the Sargeant material hadn't arrived. And he ordered me to obtain Sargeant material from Richmond South. So … after, that was said, …, he said, Judge Driscoll stated that didn't matter to him, that Mr Morrissey's presence was not welcome." 17 The judgment of the Court of Appeals of Virginia records that thereafter on 19 June 1991, Mr Morrissey wrote a letter to Judge Driscoll defending the actions of the Commonwealth Attorney's staff and objecting to Judge Driscoll's treatment of him and his assistant Commonwealth Attorney. The letter stated the following: "Re: Substitute Judge – June 17, 1991 Dear Mr Driscoll: It has been brought to my attention, by several individuals, that you were both highly critical of and abusive towards, Assistant Commonwealth's Attorney Steven Buck, Monday morning, June 17, 1991. Apparently, during the case of Commonwealth v Silva , you severely rebuked Mr Buck for not having Sargeant material available. Additionally, I was told that you used your position (ie substitute Judge) to generally criticise the Richmond Commonwealth Attorney's office. Please be advised that on his volition, Mr Buck drove to Henrico County on Friday, June 14 1991 in order to obtain one packet of Sargeant material. Additionally, he called the Southside Clerks Office on two occasions to get the second packet of Sargeant material. Unfortunately, the Southside Clerk's office was unable to get the Sargeant material to Mr Buck as quickly as Mr Buck would have liked. Accordingly, your criticism of Mr Buck, including your caustic and derogatory remarks from the bench, were entirely uncalled for. Mr Buck, former Law Clerk for Justice Poff on the Virginia Supreme Court, was described by everyone in the Court Room on June 17 as thoroughly prepared, extremely competent and most courteous. He did not deserve your verbal lambasting. In the future, should you have any criticism of this Office or specifically, one of my assistant Commonwealth's Attorney's, you are directed to set up an appointment with Deputy Commonwealth's Attorney, William H Parcell, III so that you can voice your complaints in a more professional manner. 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 everyone that you were trying to bait me – perhaps so you could hold me in contempt. Please be assured Mr Driscoll that if that behaviour ever , ever , happens again, I will not be so kind as to merely draft you a letter of indignation." 18 The letter was received by Judge Driscoll on 24 June 1991 and a show cause summons against Mr Morrissey for contempt was issued on 28 June 1991. On the return date set for the original trial of this matter Judge Driscoll recused himself. In his remarks from the bench in connection with his recusal, Judge Driscoll made the following comments concerning the letter: "There is no way of determining from the language used in that letter what is contemplated … I don't know. Nonetheless, it would appear that this is an attempt to interfere with the administration of justice." 19 Morrissey was found guilty of contempt in the General District Court of Richmond on 18 July, 1991. The Circuit Court of Richmond confirmed the conviction, finding that the last paragraph of Mr Morrissey's letter constituted a threat to Judge Driscoll in response to judicial conduct. 20 The Court of Appeals upheld the conviction and said of the letter (at 176): "Even were we to give the letter the limited interpretation Morrissey ascribes to it, the letter still constitutes a threat that is calculated to hinder or obstruct justice. By any description it is a threat. The trial judge, in dealing with Morrissey in the future, would necessarily always face the prospect of having Morrissey follow through on his threat. If, for example, the trial judge believed Morrissey's conduct in a particular case was improper or disruptive, the trial judge necessarily could take appropriate action knowing that Morrissey might take action of some unspecified nature, violent or otherwise. Morrissey had no right to threaten to do anything." 21 Later at 178-9 the Court said: "Whether Morrissey was threatening violence against Judge Driscoll, as the trial judge found, or was threatening to report him to the Judicial Inquiry and Review Commission, as Morrissey contends, the threat was contemptuous. Morrissey contends that because his threat was not an unequivocal threat of violence, as the judge found, the conviction must be reversed. However, Morrissey's argument presupposes that the threat is properly susceptible of some non contemptuous meaning, ie, to report the judge to the Judicial Inquiry and Review Commission. We hold that the threat made in the letter was contemptuous. It was either a threat of violence, as the trial judge found, or a threat to report Judge Driscoll to the Judicial Inquiry and Review Commission as Morrissey claims. Under either view, the conviction must be sustained." 22 In his affidavit sworn on 17 August 2005 filed in these proceedings, Mr Morrissey said of the above proceedings: "a. a substitute judge is a local practitioner who sat in a traffic court, due to the unavailability of a regular appointee. He would be the equivalent of an acting magistrate in NSW. His status did not affect the action I took. b. The judge, Mr Driscoll was previously employed as a 'crown prosecutor' when I was elected Commonwealth's Attorney for Richmond, Virginia. Of the approximate 26 employed attorneys, he was the only one I dismissed. The judge's severe criticism of one of my Assistant Commonwealth Attorney's who had appeared before him in Traffic Court, was extraordinary and unwarranted. I appeared before Mr Driscoll and after further consultation wrote what I considered was a measured letter warning him of a future complaint to the local judicial commission, if he chose to remonstrate as he had done. d. The letter was not meant to be 'threatening' and was sent to his judicial superiors, and others. e. The letter was seen by me at the time, to be a responsible reaction, as the leader of a team, to protect other employees of my state office in the future." 23 Mr Morrissey went on to make the submission to the court "that this conviction was derived from personal or political issues surrounding Mr Driscoll." 24 Mr Morrissey also gave oral evidence about the matter. The starting point for that evidence was the fact that he did not originally disclose the finding of contempt to the Legal Profession Admission Board. He was asked: "Q. Why did you not disclose it? A. It was probably one of several contempt matters that I didn't go into but when – I guess I would say I disclosed the most serious and final ones. For example, the suspension or disbarment I disclosed. Quite frankly even though when you asked me this question now if you read it and you read the letter and you read the affidavits I wish I had disclosed it at the beginning but we did it in our subsequent letter I think it is. I don't mean to be – I think it is very helpful to my case for admission to have disclosed this particular matter, the threatening letter to Jack Driscoll. HIS HONOUR: Q. Tell me why? A. I think it would have shown the political nature of the situation. Jack and I were assistants in the Richmond Commonwealth office. Jack supported the opponents, I opposed the opponents and when I was elected Jack was one of 26 prosecutors in the office – he was the only one I didn't reappoint. He then became a substitute judge. In the matter involved Steve Buck who I hired to replace Jack Driscoll – I thought Steve was unfairly criticised by Jack in court that day – Jack became a substitute judge and I went into court and I was very courteous to Jack, now Judge Driscoll, and I thought he had treated Steve Buck horribly; the police officers who were in court and my deputies told me the same thing. I then wrote that letter to him and I sent the same letter to his superiors and I also met with my deputies before hand who provided affidavits and I said do we agree that is the process we should do. The alleged threatening remark in the letter to which went if you ever do this again I will not be so kind to send you a letter of indignation which meant I would forward it to the Judicial Review Committee. Two of my senior deputies provided affidavits to the court saying we had a meeting, it was discussed, our boss would send this letter and this last sentence meant the next time we would send it to the Review Committee. Jack Driscoll initially heard the contempt matter and his associate, another judge, then took over and though they did not consider those affidavits. So when I say if I had known about that I think if I had disclosed it to the LPAB initially the letter which is alleged to have been threatening along with the affidavits from my Deputy Commonwealth Attorneys, that that would have bolstered and supported my case. To wit the political nature of things and indeed Mr Cuddy [Mr Morrissey's Australian solicitor] did supply that in June of 2003 [sic]. Q. The matter went on appeal and as I read the appeal judgment they found that even if not a threat of violence the threat in the letter was a contempt. A. Yes, sir. Q. Do you accept that was correct? A. Based on the threshold of whether or not the lower court; the threshold was abused the discretion as a legal matter I would accept this. Q. I am not sure I follow. A. The threshold for appeal, whether or not there was an abuse of the manner in which it was decided, accordingly I don't think the Court of Appeal erred. Q. Well, I am sorry to tax you; what I understand the Court of Appeal to say was that even if it was not a threat of violence as had been interpreted below, nevertheless being a threat to report the judge was a threat made to a judge which constituted a contempt. Now do you share that view? A. I don't. The contempt was the threat and I don't consider that it was a – essentially I didn't consider it a threat, no sir. Q. As I understand what the court is saying, it is that if any officer of the court and you as Attorney threatens a judicial officer that they would in the future report them to a disciplinary tribunal or some other complaint body that constitutes a contempt. Do I understand you to say you don't think that would be a contempt? A. No sir." 25 Following his conviction Mr Morrissey was sentenced to five days gaol for the contempt. 26 I will return to Mr Morrissey's evidence about these matters later. A "fight" in court 27 On 19 December 1991, Mr Morrissey was prosecuting a case before Judge Nance and a jury. The defendant had been charged with the distribution of prohibited drugs and Mr Baugh appeared for him. Mr Morrissey says that he and Mr Baugh were political rivals for the position of Commonwealth Attorney. The trial was being hotly contested. The following account is taken from Mr Morrissey's affidavit filed in these proceedings and other documents in evidence. 28 During the course of proceedings Mr Morrissey made an objection. According to Mr Morrissey Mr Baugh stated loudly in open court: "I do not have to listen to this kid if he wants to run for re-election, he can do it later." 29 Mr Morrissey then asked for a "side bar" conference which the judge granted. In such a conference a discussion takes place between the judge and the advocates out of the hearing of the jury. During the conference Mr Morrissey and Mr Baugh continued to argue and according to Mr Morrissey, he said, quietly, "David, once again you're acting like an ass … if you keep this up I will knock your ass into 1992." When the Court resumed Mr Baugh rose and announced in open court words to the effect, "Your Honour Mr Morrissey just threatened to kick my ass." 30 The judge then adjourned the trial and ordered both attorneys to confer with him in a hallway outside the courtroom. The court reporter accompanied the judge to the meeting. The transcript reads as follows: "THE COURT: Mr Morrissey, you keep walking down the hall. Go on down the hall. MR BAUGH: I don't have to take this. THE COURT: I will wait for you to come back before I say anything. MR MORRISSEY: Judge, at the time I was stopped, I have been pleasant and courteous. I haven't raised my voice. This lawyer has no right to stand up and talk about a kid from law school. I addressed, kept my comments addressed to the Court. I was polite and … THE COURT: Listen, Mr Baugh has been baiting you, and if you are not smart enough to know that … MR MORRISSEY: I'm aware of it Judge. THE COURT: You know, you have to let it roll on off and do your job. If not, then you ought to be counselled. Mr Baugh, you have intentionally been baiting him so he will do what he did, so you can get before the jury all this, this business about what goes on behind the bench. Now, Mr Baugh, let me tell you something. Let me tell you something. MR BAUGH: Yes sir. THE COURT: I used to practice law and I loved it, and I loved to get my old law partner, I could get him so damm mad at me he could kill me. Enough is enough. And there is a line that you go across, and you have crossed it, Mr Baugh and if there is any sanctions, then I am going to have sanctions against both of you. MR BAUGH: Then we can appeal it. However, Your Honor, the objection I am making is to the leading questions which is communicating. I am trying to object before the question is asked. THE COURT: We settled that. MR BAUGH: When I object, counsel over here does'nt answer. The thing I'm trying, inappropriately, is to cut him off. I do not want the taint of the question, and I have to do it that way. THE COURT: I understand. MR MORRISSEY: You withdraw your objection. Simply said, I don't need this gentlemen … THE COURT: Wait a minute. Wait a minute. You wait a minute. You stop too. We have settled that. MR MORRISSEY: Yes, sir, we did. THE COURT: He's not going to have you screaming in there, is what he objected to, not the objection. MR BAUGH: Tell counsel not to ask incompetent questions. THE COURT: Try not to scream and bait Mr Morrissey. I know that is what you are doing. You know you are doing it. You are baiting Mr Morrissey on purpose. MR BAUGH: I'm trying to defend my client. THE COURT: Wait a minute now I'm not going to permit this kind of behaviour. MR BAUGH: I have never seen anybody with such thin skin as this man. THE COURT: You're baiting him. THE COURT: Wait a minute, Joe. Wait a minute, Joe. MR BAUGH: For the record, let me tell this little man something. COURT: You all go ahead. MR MORRISSEY: Let's settle this right now. I'll tell you what we can do, you and I settle it … THE COURT: Do you want to go back into the courtroom and dismiss the charges against your client?" 31 The transcript writer then notes the following: "NOTE At this point Mr Morrissey approaches Mr Baugh, but the court reporter is unable to hear what is said. Mr Baugh replies, 'don't you dare touch my face again.' Mr Morrissey denied touching Mr Baugh's face. Mr Baugh stated that he touched it one time. Thereupon Mr Baugh begins pushing Mr Morrissey over to the outside glass window and states I don't have to take this from a little punk faggot. Whereupon a couple of blows were passed." 32 The transcript continues: "MR BAUGH: I cannot believe this. 33 Upon returning to the court Judge Nance convicted both lawyers of contempt. He sentenced Mr Morrissey to ten days gaol but suspended five days. Apparently, Mr Baugh received a sentence which was ten days gaol. 34 Following his conviction for contempt Mr Morrissey received a reprimand for unprofessional conduct from a three judge court. A plea bargain 35 On another occasion when Mr Morrissey was the prosecutor he was required to prosecute a man, (Molyneux) charged with abduction and rape of a victim (Nuckols). The accused was represented by counsel. Mr Morrissey and the accused's counsel apparently explored the possibility of a plea agreement. The following account of the events which followed is taken from the judgment of the Supreme Court of Virginia on appeal from the Circuit Court of the City of Richmond (Joseph D Morrissey v Virginia State Bar 248 Va 334 (16 September 1994)) which reads: "Recognising the problems in their respective cases, the two attorneys began to explore the possibility of a plea agreement. After Morrissey alluded to the cost to Molyneux's father of investigating Molyneux's case Yoffy [the defence attorney] approached Morrissey about the possibility of settlement of the felony charges on an 'accord and satisfaction' basis. In exchange of a nolli prosequi of the abduction charge and the reduction of the rape charge to a charge of sexual battery, a misdemeanour, Molyneux was willing to agree to a 12-month sentence on the misdemeanour. The sentence was to be suspended upon the condition of his payment of court costs and completion of a period of probation, community service, and psychiatric counselling. Additionally, Yoffy suggested that Molyneux would pay the victim 'for her alleged damages', although no specific amount was discussed. According to Yoffy, Morrissey 'liked the idea' but told Yoffy that he did not think that Nuckols would settle for less than $25,000. Further, Morrissey said that if Nuckols "was going to get some money then the Commonwealth is going to get something out of it and (Morrissey) wanted $25,000' as partial funding of a television program called 'Prosecutor's Corner'. Explaining the program to Yoffy, Morrissey said that he 'would be the focal point and he would have guests on, (to) explain prosecution oriented issues.' Believing that this was an inappropriate use of the money, Yoffy told Morrissey that 'perhaps charity would be a better beneficiary than something more related to him.' In a later meeting, Yoffy told Morrissey that: 'a charity was acceptable to my client and that I had $50,000 to work with.' Morrissey then told Yoffy that if the parties agreed to a settlement, Morrissey wanted the Commonwealth's share of the money to be contributed to several charities which he would select. At Yoffy's request, Morrissey arranged to meet with Nuckols and Yoffy so that Yoffy could offer Nuckols $25,000 as an "accord and satisfaction." Before this meeting, Morrissey asked Yoffey not to tell Nuckols about the additional $25,000 to be paid to the charity." 36 Negotiations continued and ultimately agreement was reached. It was necessary to bring the matter before the court where Mr Morrissey proffered the Commonwealth's evidence and advised the court of the terms of the plea agreement. However, he did not tell the court of the agreement by the accused's father to pay $25,000 to Nuckols and another $25,000 to charity. 37 The victim was not aware of the additional payment which was to be distributed to charity. 38 Morrissey was subsequently convicted of violating two disciplinary rules and his licence was suspended for a period of six months. 39 The Appeal Court confirmed the trial court's finding that Mr Morrissey had engaged in conduct involving dishonesty, fraud or deceit because he had deliberately concealed from Nuckols the fact that Molyneux was willing to pay up to $50,000 as part of the plea agreement. The Court found that this concealment deprived Nuckols of the opportunity to negotiate a larger share of the settlement. 40 In relation to Mr Morrissey's requirement for a charitable donation to be made the majority of the Court found that: "In our opinion, Morrissey's carefully orchestrated scheme was designed to secure something of value to Morrissey - the possibility that members of the donee charities would express their gratitude in the form of political support in the forthcoming election. Accordingly, we conclude that the evidence clearly supports the trial court's conclusion that Morrissey violated DR8-101(A)(3)." 41 Two judges, Justice Compton and Justice Stephenson dissented finding that he should have made a full disclosure to the original judge of the terms of the bargain, but as he received no benefit from the donations no penalty was justified. Plea bargain - bribery charges 42 Prior to the disciplinary proceedings to which I have referred, but arising from the same matter, bribery charges were brought against Mr Morrissey. The charges were laid some days before Mr Morrissey had to stand for re-election as Commonwealth Attorney, although the relevant events had occurred some 18 months previously. According to Mr Morrissey, the laying of the charges was attended with significant publicity and in his affidavit he maintains that he was "set up" to destroy his chances of re-election. 43 Although Mr Morrissey was not re-elected a jury acquitted him of the charge of bribery. 44 Mr Morrissey has sworn a statutory declaration in relation to various matters relevant to these proceedings. In that statutory declaration he refers to the criminal disciplinary charge brought against him. In paragraph 6 of his statutory declaration he said: "Due to the notoriety of the charge and the trial, the State Bar of Virginia suspended my licence to practice for six months." 45 This is not an entirely accurate statement. As I have made plain his licence was suspended because a majority of the Court was of the view that he had conducted himself in a manner which breached the relevant rules. However, I accept that Mr Morrissey believed that those who brought the charges were "politically" motivated. 46 A number of affidavits were tendered from persons who had been members of the jury which heard the bribery charges brought against Mr Morrissey. Mr Morrissey stated that: "These jurors were so incensed they contacted an attorney who took their statements and forwarded them to my attorney Mr Catlett. This is how I became aware of them. I hasten to ensure members of the Board that in the United States then and now, it is not illegal or improper to obtain details of or to approach members of the jury after they have fulfilled their jury duty." 47 In those affidavits the various jurors passed comment upon the weakness of the prosecution case expressing the view that Mr Morrissey was falsely prosecuted and set up for political purposes. Mr Morrissey pointed to this material in support of a submission that many of his difficulties in Virginia derived from the political nature of his office. 48 On 21 June 1993 Mr Morrissey was dismissed from his office as Commonwealth Attorney. That order was made by the Circuit Court of the City of Richmond but was overturned on appeal on 30 July 1993. The Supreme Court of Virginia found that the reason why Mr Morrissey could not attend to his duties as Attorney, related to the charge which had been brought against him and was not a reason to disqualify him from office. A matter of misunderstanding 49 In 1993, Mr Morrissey was subject to another disciplinary proceeding concerning his reduction of a felony arrest warrant, for drink-driving, to a misdemeanour warrant, without obtaining leave of the Traffic Court. On 31 August 1993, the Virginia Bar Disciplinary Subcommittee dismissed the proceeding conditional upon Mr Morrissey apologising to the judge; which he did. Both in his oral evidence and by affidavit Mr Morrissey explained that his action in amending warrants when plea bargains were reached was an ordinary and accepted procedure before Judge Schrieburg, who usually sat in the Traffic Court. When he appeared before a different judge, who did require prosecutors to obtain leave before amending the warrants, Mr Morrissey followed the procedure with which he was familiar and a complaint was filed. An affidavit sworn by Judge Schrieburg was provided in support of this explanation. 50 This incident was not disclosed in Mr Morrissey's initial application. It is mentioned by the Fourth Circuit Court in the 11 September 2002 judgment. However, I accept that this matter arose because of a misunderstanding as to the appropriate procedure and is of little consequence. A prison sentence for contempt 51 In 1994, Mr Morrissey returned to private practice. On 20 October 1997 he was convicted of contempt following an angry outburst to a judge who had just passed sentence on his client. Mr Morrissey was initially sentenced to ten days in prison but after he continued and further abused the judge his sentence was increased to a total of thirty days in gaol. 52 The transcript of the proceedings before Judge William R Shelton is available. The sentencing judge found Mr Morrissey's client guilty of possession of more than 5 lbs of marijuana with the intent to distribute it. He imposed a sentence of 25 years imprisonment but suspended ten years upon the condition that he be supervised by a probation officer upon release. After the judge passed sentence Mr Morrissey said: "MR MORRISSEY: Your Honor, I don't – did I hear the Court give him a net sentence of 15 years? THE COURT: I suspended ten of the 25-year sentence. MR MORRISSEY: That's outrageous, that is absolutely outrageous. THE COURT: Mr Morrissey, the Court cites you for contempt and sentences you to ten days in jail. Mr Sheriff? MR MORRISSEY: I have never seen a more jaded, more bitter, more angry jurist in my life. He has never been sentenced before. THE COURT: Let him talk, let him talk. MR MORRISSEY: He's never come into this courtroom before. He's got a family. He's got a child. He has got a three-year-old. THE SHERIFF: Step over to the lock up. THE COURT: Go ahead, Mr Morrissey. MR MORRISSEY: He has got a three-year-old child. He's never done anything before. He comes into Court, he's … he has never been involved in any criminal activity. The Commonwealth Attorney said at worst he should be sentenced like the codefendant and you gave him five additional years more than the codefendant gave [sic]. It is apparent to me that when my clients come into court because of whatever bitterness or anger this Court has towards me that it's directing that sentence towards my client. THE COURT: I don't have any bitterness towards you, Mr Morrissey. You didn't try this case, you came in on the sentencing phase of it and that's why you don't understand it. MR MORRISSEY: Judge, I'm as familiar with these facts as … I got in touch … my office got in touch with three detectives involved in the case. THE COURT: You can explain all that to me, but I'll change it from ten to 30 days in jail for the additional comments that you've just made. MR MORRISSEY: You asked … judge, I'm going to appeal it to the Virginia Court of Appeals. THE COURT: I hope you will." 53 Mr Morrissey lodged an appeal to the Court of Appeals of Virginia but the appeal was dismissed. 54 In an affidavit filed in these proceedings Mr Morrissey comments on this matter. He said: "The trial in question involved an Hispanic first offender who had some marijuana in his possession. The outburst arose at the time of the sentence, because the sentencing guidelines at the time for a defendant and offence of this nature recommended a range of sentence of 8 - 12 months. At the time I considered I had a duty to remonstrate about a 25 year sentence of which 10 years were suspended. I accept that this was done in an intemperate and improper manner. I should have simply had matters noted upon the record and appealed the decision." The Harris matter 55 In 1997 Mr Morrissey acted for Mr Harris who was the former Chief of Staff of the Governor of Virginia and the then Chief of Staff to the Mayor of Richmond City and accordingly a person of high profile in the State. The indictment alleged several offences including public corruption, sexual matters and illicit use of drugs. 56 Immediately following his indictment Harris hired Mr Morrissey as his defence attorney. Given Harris' legal connections the prosecution was accompanied by accusations of partisanship on the part of the officials investigating the case. According to the judgment of the United States of Appeals Court for the Fourth Circuit (In Re: Joseph D Morrissey 168 F.3d 134) the political pressure impeded the investigations and Federal authorities took over the investigation moving the case to the Federal jurisdiction. 57 As part of the trial preparation Mr Morrissey hired an investigator, James Bates, to help him determine the identity of the witnesses who had testified against Harris before the State Grand Jury. Bates identified John Buerkley as one of the Grand Jury witnesses and arranged an interview between Mr Morrissey and Mr Buerkley. During the video taped interview, Buerkley recanted some of his Grand Jury testimony. 58 Two days after this interview, Harris was indicted by a federal grand jury on charges involving alleged distribution of drugs in exchange for sexual favours. The salacious details of the charges generated considerable media interest. 59 On the same day of the Harris indictment the Assistant United States Attorney assigned to the case, James B Comey, sent Mr Morrissey a copy of the indictment and a copy of the Local Criminal Rule 57 of the United States District Court for the Eastern District of Virginia. That rule provides: "(A) Potential or Imminent Criminal Litigation: In connection with pending or imminent criminal litigation with which a lawyer or a law firm is associated, it is the duty of that lawyer or firm not to release or authorise the release of information or opinion (1) if a reasonable person would expect such information or opinion to be further disseminated by any means of public communication, and (2) if there is a reasonable likelihood that such dissemination would interfere with a fair trial or otherwise prejudice the due administration of justice." 60 The Assistant Attorney forwarded Mr Morrissey a copy of Local Rule 57 out of a concern that Mr Morrissey had a reputation for aggressive use of the media in high profile cases and because comments similar to the ones Mr Morrissey had previously made during the State proceedings would be prohibited under this rule. 61 The following factual account is taken from the Appeal Court judgment in relation to the charge that Mr Morrissey violated Rule 57: "On the morning of February 11, 1997, John Honey, counsel for another potential witness against Harris, called Morrissey to caution him against approaching Honey's client directly for an interview. In that conversation, Morrissey indicated that he had scheduled a press conference for later that afternoon and planned to show the video tape of Buerkley recanting his Grand Jury testimony. Morrissey also told Bates and Buerkley's attorney Augustus Hydrick about the planned press conference. Both Hydrick and Bates discouraged Morrissey from holding the press conference for fear it would jeopardise their chances to convince any other witnesses to talk to them. Hydrick testified that Morrissey said that he needed to do this in order to send a message to the other witnesses. Comey also found out about the press conference and faxed Morrissey a letter that again cited Local Rule 57 and urged him to cancel the press conference. Morrissey went ahead with the press conference. He made some remarks, presented a press release, and played the video tape of Buerkley's recantation. The press conference received extensive media coverage throughout the Richmond area. Later that afternoon, Morrissey responded to Comey's letter claiming that he had discussed Local Rule 57 with three former prosecutors and, based on their conversation, decided to hold the press conference. Later, during the show cause hearings, the three attorneys Morrissey spoke with all denied that they had advised him to go forward with the press conference. 62 Thereafter Mr Morrissey was charged with wilfully violating Local Rule 57 by holding the press conference 63 Two weeks before the Harris trial, Mr Morrissey again made public statements about the case in an interview with a Richmond newspaper reporter. 64 Mr Morrissey categorised the charges against Harris as vicious and vindictive and questioned whether they ever should have been filed. He went on to remark that if these charges had been filed when he was prosecutor, they would have been laughed out of court. Based on these comments a second show cause order was issued to Mr Morrissey. 65 Mr Morrissey was tried and the District Court found that he had knowingly violated Local Rule 57. The Court held that Mr Morrissey's actions were reasonably likely to taint the jury pool, make the jury selection more difficult, and interfere with prospective witnesses. Mr Morrissey was sentenced to 90 days imprisonment, 300 hours community service and 3 years probation. He was also suspended from practicing law in the Eastern District of Virginia for two years. 66 Mr Morrissey had argued in his defence that Local Rule 57 breached the First Amendment to the United States Constitution because it restrained his freedom of speech. The Fourth Circuit Appeals Court rejected this argument and found that because Local Rule 57 is aimed at securing the right to a fair trial by an impartial jury and avoiding conduct that creates unnecessary costs it imposes a constitutionally permissible restriction on a lawyer's speech. 67 After Mr Morrissey's conviction and sentence he was released on a bond by Judge Payne awaiting the appeal. 68 On 7 August 1998, while still on the bond, Mr Morrissey was found guilty of contempt when he offered an inappropriate comment to opposing Counsel within the hearing of a judge. His citation for contempt was expunged upon his offering an apology and explanation, although he served one hour in custody. However, the conduct was found by Judge Payne to be a violation of the bond and he was required to undertake anger management therapy. 69 Mr Morrissey explained this incident in the following way: "The incident occurred in court when I made a private comment to my opponent who had secured an adjournment by 'dressing up' a witness who alleged she was traumatised and could not give evidence. Part of the comment was overheard by the judge, who believed it was critical of him. My opponent and the Deputy Sheriff in court then approached the judge and explained the context of the remark. The judge immediately rescinded the contempt order." Mr Morrissey assaults Mr Wycoff 70 A more serious breach of the bond conditions occurred on 3 July 1999. Mr Morrissey's solicitor gives an account of the events of that day. It was a Saturday morning when Mr Morrissey was visiting the home of one of his colleagues from work. Mr Morrissey was of course, in private practice. Also present at the home was a contractor, Mr Wycoff, who was doing some outside renovations/carpentry work. Mr Morrissey had employed the contractor at both his office and home for the past nine years. Apparently, it had been arranged between Mr Wycoff and Mr Morrissey that the contractor was to do work on his office on that day but the contractor had said he could not do the work as he would be interstate. Both men were surprised, when they met and Mr Morrissey accused the contractor of lying to him (ie not being interstate). 71 An argument and subsequent fight ensued between Mr Morrissey and Mr Wycoff. Mr Wycoff received a broken nose, severe facial lacerations, bruising and brain injury. Mr Morrissey drove the contractor to the hospital where Mr Wycoff received several stitches. Mr Wycoff pursued criminal charges against Mr Morrissey for aggravated injury/wounding. The matter was extensively reported. The prosecutor of Mr Morrissey was Claire Cardwell, the former law partner of David Baugh for the previous ten years. 72 Part of the record of the trial was tendered in evidence before me. It indicates that Mr Morrissey had been charged on an indictment for aggravated malicious wounding. The jury returned a finding of guilty in relation to a lesser charge of "assault and battery." Under the relevant law the jury was required to fix the punishment which they did in the following terms: "We, the jury, fix the defendant's punishment at confinement in a state correctional facility for 0 years, confinement in jail for 0 months and/or a fine of $2,500." 73 Mr Morrissey was also ordered to pay the costs. 74 As a result of the altercation and apparently before any charges were laid on 6 July 1999 Mr Morrissey was again brought before Judge Payne who revoked Mr Morrissey's bail, which he had been granted pending the appeal and he served his 90 day gaol sentence. 75 Mr Wycoff also brought civil proceedings to recover damages. The trial of those proceedings took place on 16-18 July 2002. Part of the record of the trial and consequent documentation were tendered in evidence. The jury made an award in favour of Mr Wycoff of $1 million in punitive damages. Judge Hammond, in the Circuit Court of the County of Henrico, heard the post-trial motion to set aside this award and said: "The jury was instructed on the claim of punitive damages over the defendant's objections. The evidence in support of this claim included corroborated testimony that Mr Morrissey repeatedly struck Mr Wycoff in the face while Mr Wycoff was lying on the ground defenceless, with Mr Morrissey on top of him. After Mr Morrissey got up, he sprayed a garden hose into Mr Wycoff's face which was bleeding heavily. Mr Wycoff testified that this was 'torture.' The jury did not have to accept Mr Wycoff's version of the event. However, that testimony together with other evidence provided a sufficient basis for the jury to conclude that the defendant was prompted by ill will or a wicked intention. Much of this had to do with the manner and appearance of the witnesses on the stand. The court has carefully considered the argument that the Award was excessive, or motivated by passion or prejudice against Mr Morrissey. The Award was much larger than the compensation for the plaintiff's injuries. But the jury's verdict of compensatory damages of $40,000 did exceed the medical special damages by more than $20,000, suggesting that some value for pain and suffering was determined. Further, it is clear that in awarding compensatory damages the jury did not accept Mr Morrisey's testimony that he was defending himself. The jury was instructed (on consent) that it could award punitive damages only upon finding that the defendant acted 'with actual malice … or under circumstances amounting to a wilful and wanton disregard of the plaintiff's rights …' I cannot find anything to suggest that the jury's decision on punitive damages was based on anything other than the evidence. It was within the jury's duty to determine the need for deterrence and punishment and the jury did that. Section 8.01-38.1 of the Code of Virginia imposes a cap on punitive damage awards. Pursuant to that statute the award is reduced to $350,000. Judgment will be entered for that amount, plus $40,000 in compensatory damages. Mr Roberts should submit the order within ten days." 76 Final judgment was entered on 27 August 2002. 77 As a result of his breach of Rule 57C Mr Morrissey was required to show cause why his licence to practice should not be suspended. On 28 December 1999 the Circuit Court of the City of Richmond suspended his licence for 3 years. That suspension was stayed pending an appeal which was heard by the Supreme Court of Virginia and on 3 November 2000 the suspension was affirmed. The Supreme Court held, inter alia, that: "The evidence … clearly establishes that Morrissey has exhibited a pattern of disrespect for the judiciary, the rules of practice, and the laws of this Commonwealth. He has repeatedly been sanctioned because of his misconduct, as exemplified by the number of contempt of court sanctions that he has received. He has often exhibited disrespect for the authority of the courts in which he has appeared. Contrary to Morrissey's assertions, he did not merely 'aggressively' assert the right 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. A suspension of three years is appropriate to protect the public and deter others from committing similar misconduct. … We observe that Morrissey's lack of civility and deplorable conduct during the hearing in the Circuit Court of Chesterfield County, alone, would have been sufficient to warrant the imposition of a three year suspension. The judicial process cannot function and the public will have no confidence in the judicial process if attorneys are permitted to act disrespectfully toward the judiciary, intentionally ignore Rules of Court, and engage in conduct which is detrimental to the legal profession and the public interests." 78 In addition to being sentenced to 90 days gaol by Judge Payne Mr Morrissey was also sentenced to perform 300 hours of community service. He commenced this component of his sentence after he had completed his prison sentence. Mr Morrissey was required to divide his service between 4 locations including Sacred Heart Church, The Citadel of Hope (community services group), Trinity Baptist Church soup kitchen, and Habitat for Humanity (Habitat). Subsequently it was alleged by the prosecutor that in late February 2000 Mr Morrissey asked the supervisor at Habitat, Ted Grivetti, to falsely state that Mr Morrissey had performed 300 hours of community service at Habitat for Humanity – thereby fulfilling Mr Morrissey's community service requirements. Mr Morrissey denied this charge and continues to do so. However, on the evidence of Mr Grivetti he was found guilty by Judge Payne of violating the terms of his probation which led to an additional period of 90 days incarceration. 79 Mr Morrissey has produced affidavits from relatives of Mr Grivetti to the effect that they knew Mr Grivetti to be an habitual liar who had perjured himself in court. Mr Morrissey alleges that Mr Grivetti had made up the story which, once it was reported to investigating agents, and had been given publicity, he could no longer retract. 80 However, there is at least one odd feature of this matter. The allegation by Mr Grivetti was that Mr Morrissey had asked him to sign a document indicating that he had completed 300 hours of work at Habitat. However, as Mr Morrissey only had to complete 50 hours at Habitat a request in the terms alleged would seem improbable. 81 Mr Morrissey appealed the decision of Judge Payne to the US Court of Appeals for the Fourth Circuit. That appeal was rejected. 82 In other proceedings in relation to a decision that Mr Morrissey be disbarred the US Court of Appeals for the Fourth Circuit described this matter in this way: "The proverbial 'last straw' involved Morrissey's efforts to circumvent the conditions of probation imposed by Judge Payne in the Harris case. Morrissey was released from federal custody in 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 Morrissey that at least 50 of the hours were to be performed through Habitat for Humanity. 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 fulfil this service requirement. Soon thereafter, Morrissey contacted Ted Grivetti, the local coordinator 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 requirement. When Grivetti refused and advised Morrissey to speak to his probation officer, Morrissey denied having a probation officer. Morrissey 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 Edmunds, then a probation officer, who in turn advised Guertler of Morrissey's offers to Grivetti. After further investigation, Gertler and his supervisor confronted Morrissey in a meeting on February 16, 2000. In that meeting, Morrissey denied ever asking Grivetti to sign his time sheet reflecting hours purportedly worked for his neighbor and also denied offering to perform legal services as his community service." 83 The Appeals Court records that "following an evidentiary hearing, Judge Payne concluded that Morrissey had violated 18 USC no1001N4 by lying to his probation officer when denying his discussions with Grivetti." The judge also found that Morrissey had, in fact, offered legal services in exchange for the falsification of service report sheets. 84 On 21 December 2001 the US District Court for the Eastern District of Virginia disbarred Mr Morrissey. The Opinion of the Court recounted Mr Morrissey's history of difficulties whilst in practice. After identifying the relevant Virginian standards for ethical conduct the Court said: "We find that Morrissey's misconduct in the Harris case while on bond when he was involved in an assault, and later, while on probation when he lied to his probation officer clearly violated these standards. In particular, Morrissey's misconduct while on bond showed that he was either unwilling or unable to control his temper. His conduct while on probation showed his unwillingness or inability to follow 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 discussed 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 problems seriously, that he still did not accept Judge Payne's conclusions about his conduct with the probation officer 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 overall character, his career in public service, and his zeal in representing 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' eclipses his virtues as a caring neighbour and zealous advocate. … Morrissey's lack of candor, if not outright dishonesty, in dealings with this Court and those responsible for supervising 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 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." 85 Mr Morrissey's disbarment from practice before the Eastern District of Virginia did not mean that he was entirely disbarred from practice. This occurred when on 25 April 2003 his licence was revoked by the Virginia State Bar Disciplinary Board. 86 Mr Morrissey was not present at the hearing before the Board. By this time he had commenced studying for a Master in Laws at a university in Ireland. He was represented at the hearing by counsel. The charge against Mr Morrissey was that he had failed to comply with the requirements imposed on him by his suspension in February 2000 to give timely notice to his clients, opposing counsel and courts before which matters were pending to make appropriate arrangements complying with the wishes of his clients and to furnish proof to the Bar of his having met these obligations. Although evidence was given on behalf of Mr Morrissey that he had complied with the requirements, this was not accepted. In a particular case he was found to have failed to give any notification. 87 After considering the matter and Mr Morrissey's previous history the Board revoked his licence to practice. This had the effect that he was unable to practice law within the United States of America. Mr Morrissey's response 88 Mr Morrissey has filed affidavits in these proceedings and the submissions made to the Admission Board by his solicitor are before the Court. In general Mr Morrissey claimed that he has been the victim of political attacks which explain many of the unfavourable aspects of his history and adverse findings made against him as a legal practitioner. Because he was elected to office as a public prosecutor he believes that his political enemies set out to bring him down and took every advantage of his misdemeanours. He said that punishment for contempt in the face of the court is given out regularly and routinely in the United States. Although he said gaoling is rare he believes that because he was a high profile person and open to hostile political action he received greater punishment than others. He believes that the reaction to his fist fight with the contractor which brought him before Judge Payne within a week, but without being charged with any offence, is evidence of his political opponents' attempts to damage him. 89 Mr Morrissey conceded that he has been brash and abrasive at times in the past and has quarrelled with judges and made political enemies of considerable ferocity. He emphasised that there has been no element of fraud, dishonesty or sharp practice in his failings and said that he classes "most of my failings to be due to my pride and my success as a trial advocate and in retrospect, a too aggressive approach to conducting cases on either side of the record." He requests a chance to "start afresh in a new jurisdiction, chastened and matured by the events in my former jurisdiction." Mr Morrissey's applications 90 Mr Morrissey made application to the Legal Practitioners Admission Board on 19 January 2005. Prior to that application he had had discussions with a Board officer and also had had discussions with the New South Wales Bar Association. He was informed that he could not be admitted to practice without first completing the College of Law practical training course which he has now done. 91 The application was lodged by a firm of solicitors, Steward Cuddy & Mockler and was accompanied by a number of documents. They included a statutory declaration made by Mr Morrissey in which he disclosed and explained some of the incidents which had affected his right to practice in Virginia. In that affidavit he disclosed the difficulties which arose from the plea bargain matter and explained his suspension from practice as being "due to the notoriety of the charge and the trial." As I have already explained I do not consider this to be an accurate reflection of the findings of the court which suspended his licence. 92 The second matter which Mr Morrissey disclosed was the events surrounding the prosecution of Mr Harris in 1998. Mr Morrissey said that he took the actions which he did because he believed them to be in his client's best interest and said that "I felt that, such revelations were proper and indeed, as was later submitted in the application to the Supreme Court of the United States, it would have been negligent if such material was not publicised." 93 In his statutory declaration Mr Morrissey also disclosed that he had been disbarred from practice at the Virginia bar. He concluded his statutory declaration by saying: "In support of my application I request the Board to take into account what I respectfully submit to the Board was a political campaign in my home State to have me neutralised as a practising lawyer. I submit that I am a person who in a jurisdiction such as the local one, could offer clients skilled prosecution and representation in a field in which I have chosen to work hard and have tried to excel." 94 It is apparent from this statutory declaration that Mr Morrissey did not disclose with his application a number of the problems he had had in Virginia. Significant matters which were not referred to included his removal from the roll in the Federal Court for which the initiating event was a finding of dishonesty. 95 Mr Morrissey accepted that he did not refer to this matter in the documents accompanying his initial application. However, he says there was no intention to deceive the Board and he had orally disclosed to a Board officer all the relevant information. He says that he did not consider the Federal decision to be of particular significance having regard to the fact that it was his disbarment by the State which ultimately denied him the right to practice in Virginia. The Federal decision only affected his right to practice in part of the Federal system. 96 The "Declaration" at the conclusion of the standard form, "Application for Admission as a Legal Practitioner Form 11", provides that "if any of the above statements would not be a true statement for you to make, you must strike out the untrue statement(s) and attach to your application a signed disclosure providing full details of the matter(s)." Mr Morrissey struck through the sentence "to the best of my knowledge my name still remains on the roll in every jurisdiction in which I have been admitted." In the sentence which reads "I am not, and have never been the subject of a reference to any court of to any disciplinary body in respect of my conduct or practice as a lawyer", Mr Morrissey struck through the words "and have never been." Also attached were a copy of the 11 February 2004 letter from the LPAB granting him academic exemption, certificates from the College of Law, a certificate from Patricia Krueger, clerk to the Supreme Court of Virginia confirming Mr Morrissey's admission, two suspensions and revocation of his "license", a statutory declaration made on 19 January 2005 and a bundle of corroborative material. 97 Mr Morrissey's application was the subject of a report to the Board on 18 April 2005. It summarised the information which was then available to the Board and under the heading "Discussion" expressed the following: "Two features emerge from the material concerning Mr Morrissey. The first is that the references from Virginia come from a wide array of apparently reputable and independent sources. There is a judge of 25 years standing, two office holders in the Government of Virginia, journalists and an attorney, who in restrained language, makes it plain that he considers that the final revocation of the licence of Mr Morrissey by the Disciplinary Board of the Bar of Virginia was inappropriate. The second feature of the material compiled concerning Mr Morrissey is that all of the actions taken against him do appear to have been motivated by political considerations. The raising of the charge of bribery, 18 months after the alleged improper plea bargain but only 3 days before an election, and therefore at a time when he could not respond, would not, in itself, be objectionable. The charge, however, appears to have been regarded as without foundation and was rejected by the jury very promptly. The subsequent 6 months suspension might have suggested that Mr Morrissey's conduct left something to be desired, even if criminal charges against him could not be established. The subsequent actions taken against him, however, do tend to suggest that there was a very high degree of conflict between Mr Morrissey and his own Bar. The Harris case may have suggested some disregard for the local rule 57 about giving media interviews. The subsequent media statements and in particular, his second statement which led to imprisonment for 60 days, appear to have been the result of hotheadedness and anger in the context of a highly charged trial, in respect of which there was a degree of media frenzy. It is possible, although difficult to establish, that there was a degree of poor judgment on the part of Mr Morrissey. It is, however, difficult to make a judgment about such matters years later, after the matters have been dealt with in an environment in which the media and politics play an active role in the law in a way in [sic] which is less familiar in Australia. To some extent, one must rely in making a judgment about Mr Morrissey's good fame and character on the references he produces about himself by persons who were aware of the events at the time and on whom this Board could place some reliance. The references all suggest that Mr Morrissey is a person of exceptional ability, strong convictions and high integrity. The explanation given for the various allegations and penalties raised against him in the past are attributed to his uncompromising devotion to his client and political machinations. To the extent that there is a degree of poor judgment involved in those matters, it may be best to regard that component as a consequence of highly charged political trials." 98 The following conclusions are expressed: "Taking the material available as a whole, it appears reasonable to adopt the view that: 1. Mr Morrissey is a person of ability and integrity. 2. Mr Morrissey held elected positions as Chief Prosecutor in the Commonwealth of Virginia, was active in, and to some extent, was affected by, competing political activities. 3. Such wrongdoing as has been alleged against Mr Morrissey appears, in each case, to have had a political background. 4. Each of the allegations against Mr Morrissey has been dealt with locally and are all now some years in the past. 5. There is evidence that could be regarded by this Board as reliable that Mr Morrissey, despite his apparent history in Virginia, is a person of good fame and character and fit to practice." 99 The recommendations to the Board was the Board declare that "it is satisfied that Mr Morrissey is a person of good fame and character" and otherwise fit to practice. 100 That recommendation was not accepted by the Board although Mr Morrissey's application was not rejected. Further information was sought. That information was included in a supplementary report dated 20 June 2005. That report recapped the previous report and then referred to new material. In particular the Board was now aware of the Appeals Court judgment which was reported on. The author of the report said of the judgment: "A perusal of that judgment suggested for the first time, and notably absent from any other decision, including later decisions about Mr Morrissey, serious wrongdoing. The judgment raised the following matters: (a) Mr Morrissey was found guilty on August 15, 2000 of lying to his probation officer and of offering free legal services in return for falsification of a community services report for hours performed at a body called Habitat for Humanity. (b) In July 1991, Mr Morrissey received a sentence of five days in gaol for writing what was described as a "threatening letter" to a judge of the General District Court of the City of Richmond (Virginia). (c) Mr Morrissey was reprimanded in 1991 for engaging in a fist fight with opposing Counsel during a criminal trial. (d) While on a bond and on probation with a Court imposed requirement that Mr Morrissey undergo anger management therapy, Mr Morrissey 'got into a fight with a home repair contractor which resulted in a fist fight in which the contractor was injured.' The incident resulted in the revocation of his bond for an earlier offence." 101 The report then considered submissions made by Mr Cuddy, solicitor, on behalf of Mr Morrissey. Although significant new material had come to light the author of the report reaches the conclusion that there has not been an intentional or even careless non-disclosure of material by Mr Morrissey. 102 The report finally concluded that the following matters are important in assessing Mr Morrissey's application: "1. Mr Morrissey is thought by a number of a people who should know (and on who this Board should be able to rely), to be a person of great ability and integrity. 2. Every allegation against Mr Morrissey appears to be tainted with political machination and is of doubtful quality, particularly compared with his references. 3. There is evidence of rashness and impulsiveness in many of the acts of Mr Morrissey but in almost every case (except the conflict with the home contractor), there appears to have been a degree of provocation related to politics. 4. The home contractor incident, on its own, would not, on any view, have been sufficient to prevent admission. 5. While rashness and impulsiveness are generally not desirable components of a good legal practitioner, the nature and degree of the rashness would have to be weighed before using it to prevent admission. In this case, there appears to be a long and successful history of excellent legal practice with rashness or impulsiveness emerging only under significant provocation. 6. If the Board refuses the declaration sought by Mr Morrissey because of the difficulty of assessing it with a view to leaving the task to the Court on the basis that the Court will have at least the sworn evidence of Mr Morrissey, the result may be that the task in question is no easier for the Court than it is for the Board. All of the relevant witnesses are in the United States. It would prove almost impossible to prove the precise degree to which political involvement and machinations were the cause of Mr Morrissey's fall from what was a prominent position. It is likely that the Court would be put in the same position as the Board. It would have to weigh the evidence against Mr Morrissey's US references that he provided. It is possible that evidentiary or affidavit material could be filled out in more detail, but ultimately, the Court would be obliged to determine the matter 'on paper' rather than by investigating each of the many incidents in Mr Morrissey's past. 7. If the material that has been obtained about Mr Morrissey contained even one sound allegation against him sufficient to raise a doubt about the integrity of Mr Morrissey, the Board may well be obliged to refuse to make the necessary declaration. 8. Under the circumstances, however, it is suggested that on the material available, the references sufficiently outweigh the undoubtedly political causes of much of Mr Morrissey's history and the doubtful findings and allegations made against him. The lapse of time and Mr Morrissey's strong history since leaving the United States reinforce that approach. 9. It is evident from the material that it would be a significant error to compare the legal culture and practice of the United States with that of New South Wales." 103 Again, the author of the report recommended that Mr Morrissey be found to be of good fame and character and otherwise fit to practice. The matter of references 104 Mr Morrissey provided references to the Board with his initial application of 21 January 2005 which included letters of commendation from newspaper editors, three Attorneys practicing in Virginia, familiar with Mr Morrissey's history, the present Commonwealth Attorney in Virginia, the head of the Law School and LLM Course Co-ordinator in Dublin where he studied and gave lectures, a member of the House of Delegates in Richmond and Senator Henry L Marsh III, a member of the Senate of Virginia, and Henry J Schrieberg, a retired judge of the Thirteenth Judicial District in Virginia. Judge Schrieberg said in his letter that he saw Mr Morrissey in court on many occasions and speaks in exemplary terms of his trial skills. The judge said: "As a judge who saw Mr Morrissey so often, I say unconditionally and unreservedly that I found his character, integrity and honesty to be of the highest caliber and beyond reproach. While he was always a zealous advocate for his client, Mr Morrissey was always mindful that he was, first and foremost an officer of the Court." 105 The judge made these comments with knowledge of Mr Morrissey's suspension from the practice of law in 1993 and 1999 as well as his disbarment in 2001. He says: "I and many of my colleagues, felt that the actions taken against Mr Morrissey were unwarranted, unfair and highly charged by political motivations." 106 Senator Marsh said of Mr Morrissey: "… in regard to Mr Morrissey having been barred from the practice of law, I shall simply say, I am intimately familiar with the facts and circumstances surrounding Mr Morrissey's suspension and subsequent disbarment from the practice of law. I tell you with every fiber of my being that Mr Morrissey was treated unfairly and with a complete and utter regard for due process. In 1993, Mr Morrissey, as Chief Prosecutor, approved a plea bargain whereby a defendant was ordered to pay money both to the victim and charitable causes. He was charged with approving an improper plea agreement three days before his reelection (today such an agreement would be proper indeed; it would be normal). In 1999, he was suspended and ultimately disbarred because he held a press conference to highlight the injustices done to his client. In conclusion Mr Morrissey was a high profile criminal defense attorney who was the victim of politics – attacked by opponents from the opposite political party. Everything that Mr Morrissey did was done to benefit his client. Preventing Mr Morrissey from practicing law was terribly wrong. It is my fervent hope that the terrible injustice done to Mr Morrissey will some day be corrected. Please call me directly if I can be of any assistance." 107 Mr Morrissey also provided references from the surf life saving club and a community church in Coogee, as well as commendations from several legal academics. After coming to Australia Mr Morrissey lectured for a short time in the Faculty of Law at Adelaide University. The Dean of the Faculty and Professor of Law, Paul Fairall gave evidence. In a letter which he wrote to the solicitors for the Bar Association, Professor Fairall says that Mr Morrissey was engaged by the University as a visiting academic. Apparently, he provided a reference from John O'Keefe the Head of School of Portobello College, Dublin who described him in very positive terms. However, Professor Fairall also said: "At the end of August 2003 I became aware of certain matters involving Mr Morrissey in the United States. My information was that he had lost his licence to practice in Virginia, and suffered punishment for contempt of court. He was also successfully sued in relation to assault. It appeared that these matters arose out of a politically charged prosecution that Mr Morrissey was involved in. These matters were discovered by some law students and drawn to my attention. Mr Morrissey had not disclosed any of these matters prior to his engagement, and did not believe that they were relevant to his academic assignment. I discussed the matter with him at some length and it was agreed that it would be preferable for him to pursue his career options in Sydney, as he had expressed some interest in that regard." 108 After leaving Adelaide University Mr Morrissey gained employment with the University of New South Wales. He was interviewed by Associate Professor Hunter for a casual lecturer position. Professor Hunter gave evidence and said that Mr Morrissey provided written references and gave her an account of his suspension and disbarment from practice in Virginia. Professor Hunter was concerned about those matters and consulted with the Dean of the Law School before Mr Morrissey was employed. 109 Mr Morrissey apparently completed 15 hours of teaching between March and May 2004 and Professor Hunter expressed the view that he was an excellent teacher and teaching colleague. She was asked to and provided him with a reference to support his application for admission as a legal practitioner. She provided a reference which was directed to his competence as a teacher and practitioner. Later, Professor Hunter came to learn of Mr Morrissey's disbarment which was confirmed by the United States Court of Appeals for the Fourth Circuit in the judgment of 11 September 2002. She had not previously been aware of that judgment, Mr Morrissey only having informed her of his disbarment by the Virginia Bar. She was asked about these matters by the solicitor for the Bar Association and responded in a letter in the following terms: "In response to my questioning Mr Morrissey indicated that he had been disbarred in Virginia. He gave an account of his disbarment that left me with the impression that he had been treated harshly in a highly politicised context relating to a particular criminal trial – one that bore little relationship to scenarios that would be relevant to his teaching brief at UNSW. As admission to practice is not a requirement for teaching in the Law School and as Mr Morrissey's explanation appeared plausible I relied on this account. I discussed the information I received from Mr Morrissey concerning his disbarment with the Dean … . I gave my reference to the LPAB of 19th January 2005 relying on my initial enquiries and my experience of Mr Morrissey as an excellent teaching colleague. My reference for Mr Morrissey was given on the basis of his assurance that he would disclose his disbarment in Virginia to the LPAB – and he did. In giving my reference I believed his fame and character would be assessed by the Legal Practitioners Admission Board after taking his disbarment into account." 110 Professor Hunter then expressed the following: "In the light of the judgment of the US Court of Appeals, 4th circuit, 11 September 2002 and an order before the Virginia State Bar Disciplinary Board, both received from your office recently I now realise Mr Morrissey's disclosures to me were far from complete. His lack of candour is such that were I to be asked now to provide a reference for Mr Morrissey's LPAB application I would not do so." 111 Professor Hunter was asked about her concerns when she gave evidence. Her evidence was as follows: "Q. … I would like to understand whether it was just the fact of the judgment or the content of the factual findings that caused you to change your mind in the way you indicated? A. First and foremost, I believe it was proper of Mr Morrissey to have told me about those incidents and to have given me the opportunity of hearing an explanation from him in relation to those incidents. And so the very fact that they weren't disclosed to me I perceive as a betrayal of my trust. So that is a separate issue. In relation to the particular incidents, those that reflect on an inability to control his temper cause me concern in relation to the teaching duties that he was performing. It's very difficult to give an observation - Q. Can I ask you to focus back on your letter. You say his lack of candour is such that asked now to provide a reference for his practitioner's application you would not do so, is your lack of preparedness, now provided that reference, confined to the lack of candour? The letter suggests that it is? A. I would say that's the primary reason, yes. Is it confined to that ... not sure really. I think the aspects that relate to the issue of temper would concern me." 112 An affidavit by Mr Phillip Boulten SC was read in these proceedings. Mr Boulten, who is an experienced criminal defence barrister, was not required for cross-examination. In his affidavit Mr Boulten states that Mr Morrissey approached him for a reference in support of his application to the LPAB in July 2005. At this time Mr Boulten was supplied with the 11 September 2002 judgment of the Fourth Circuit Court. Mr Boulten states that he met Mr Morrissey in late 2003, and was made aware that he was not licensed to practice in the United States. Mr Boulten has had the opportunity to work closely with Mr Morrissey when Mr Morrissey assisted him in a criminal trial for a period of approximately two or three weeks, accompanying him to court and undertaking some research work. 113 Mr Boulten notes in his letter of reference that Mr Morrissey's record outlined in the judgment indicates problems in managing his temper, but the reference goes on to express the view that "the recommendation of the LPAB report of 20 June 2005 that the Board declare that it is satisfied that Mr Morrissey is a person of good fame and character … is a sound recommendation." 114 In order to complete the College of Law requirements Mr Morrissey had to undertake professional experience in a legal office. He approached the office of the Director of Public Prosecutions who engaged him for a period of 13 weeks so that he could carry out practical training. During that time he significantly impressed a number of the prosecutors with his ability and talent in communicating advocacy skills to others. One person he impressed was Mark Tedeschi QC, the Senior Crown Prosecutor for New South Wales. In an affidavit he says that he was so impressed when he met Mr Morrissey by his background and experience that he discussed with him the possibility of developing an advocacy mentoring program for the New South Wales crown prosecutors and using Mr Morrissey as a mentor. He arranged for him to act as the mentor for three experienced prosecutors, James Bennet SC, Mark Hobart and Mr Tedeschi himself. This undertaking, so far as Mr Tedeschi was concerned, proved highly successful. Mr Tedeschi says in his affidavit that he discussed the reasons why Mr Morrissey left the United States with him on two separate occasions. He says that: "On each occasion he stated some vague reason about wanting to do other things and see the world. On no occasion did he mention to me that he had been disbarred in the United States." 115 Mr Morrissey told Mr Tedeschi in late 2004 that he was going to apply for admission as a legal practitioner in New South Wales. He asked Mr Tedeschi for a letter of support. Mr Tedeschi provided that letter addressed "to whom it may concern." The second paragraph of that letter reads as follows: "During the short time that I have known Joe Morrissey, I have found him to be an able, intelligent and diligent overseas lawyer. It is my intention, if possible, to have him provide instruction in advocacy to junior Crown Prosecutors next year. I know that he intends to go to the New South Wales Bar. I know of nothing which would preclude him from admission as a Legal Practitioner." 116 In December 2004 Mr Tedeschi decided to make further inquires about Mr Morrissey "because of a slight concern about the vagueness of his reasons for leaving what must have been a successful legal practice in the United States." He looked up Mr Morrissey's old firm on the internet and contacted Robert Jacobs, who was a partner in the firm. He requested a confidential reference from Mr Jacobs. Mr Jacobs did not disclose in his response the reasons why Mr Morrissey was disbarred from practice in Virginia beyond saying that "he ruffled some feathers of the very conservative local Richmond and Virginia State Bars with his aggressive lawyering style." Mr Jacobs said: "It is speculation on my part, but he may have wanted a change of scenery, and he could afford to do so." 117 In May 2005 Mr Morrissey indicated to Mr Tedeschi that he was making an application to the Department of Immigration and Multicultural Affairs for a Distinguished Talent Visa. Mr Tedeschi provided a letter of support for Mr Morrissey's visa. 118 In mid-August 2005, Mr Tedeschi became aware from an internet site of the Fourth Circuit judgment of 11 September 2002. As a result of reading the judgment and after consultation with Mr Nick Cowdery AM QC the Director of Public Prosecutions he suspended Mr Morrissey from involvement in the prosecutor's advocacy mentoring program. Mr Tedeschi also informed the Department of Immigration of this suspension and withdrew support for him to be admitted as a legal practitioner. 119 In his affidavit Mr Tedeschi says: "The disclosure of Morrissey's disbarment has caused me much personal embarrassment. I feel betrayed that he failed to notify me of his disbarment prior to me using his services as a mentor. I consider that Mr Jacobs deliberately failed to notify me of Morrissey's disbarment, and that this was a gross professional discourtesy. I have since referred by email to Mr Jacobs and he has admitted that he knew about the disbarment at the time he wrote the reference. Having read the judgment in the US Appeals Court and thought long and hard about it, I know that some of the offences for which Morrissey was disbarred involve dishonesty as well as a complete lack of balance and self-control. As integrity and a balanced approach are essential aspects of being a good Crown Prosecutor, I can say, after much deliberation, that I would not have allowed Morrissey to become a mentor of the New South Wales Crown Prosecutors if I had known about the circumstances leading to his disbarment. I am somewhat dismayed at Morrissey's lack of candour to me about his disbarment. This is particularly so in the light of having asked him on two separate occasions what led to him leaving Virginia and going to Ireland. Having said all that, I consider that it is a great shame that he has fallen from grace in this way, as he was a fantastic and inspiring mentor. All of those who have had the benefit of his mentoring have spoken very highly of him." 120 Mr Morrissey explained the circumstances of his initial involvement with the DPP. He said that he was concerned to start again and have the opportunity of doing his practical training within the Director's office. He was concerned that if he disclosed his difficulties in Virginia he may not have the opportunity of working in the office and establishing his credentials as a competent prosecutor. As time went on and he became more involved in the activities of the Director's office he found that he was unable to make the disclosure. It was not until he was speaking with Mr Brereton SC about the preparation for this hearing that he realised that he should have disclosed the true position to Mr Tedeschi. 121 In the course of giving evidence in these proceedings Mr Morrissey was asked by his counsel: "Q. Let me try to bring you to the point. You didn't discuss with him the fact that you had been struck off? A. No. Q. In the United States? A. Correct. Q. Why? A. Initially it was because I was just trying to get the work component experience out of the way. Thereafter, when I started mentoring crown prosecutors, Mark and I didn't have any direct contact other than e-mails. There is probably not, you know, a day that went by that I didn't think, okay, I have got to sit down and talk to Mark about this. That is when I met with Mr Brereton at the time and I told him that I had not told Mark. The only way I can – the only way I can put it in proper perspective is this: It felt like when I came to Australia, I wanted to start over, I wanted to show them what I could do. After showing them what I could do, then I could tell them and explain to them the circumstances in Virginia. I felt that the first part had been accomplished; showing them what I could do. Then I told Mr Brereton that I had not had that second component where I explained to him what had happened. That is when he told me to go see him, and I was on my way. The thing that – when I read here about – I mean I understand exactly what is going on in his mind, and I put myself in his shoes, and I subsequently wrote him a letter about that. You know, he got a copy of the 2002 decision with nothing else, and if I were in the same shoes I would feel let down you know. And I understand it." 122 It seems to me there are two significant matters in Mr Morrissey's dealings with Mr Tedeschi. Firstly, Mr Morrissey allowed Mr Tedeschi to engage him to mentor crown prosecutors without being fully apprised of the circumstances of his disbarment in Virginia and giving Mr Tedeschi the opportunity to assess whether or not he was a suitable person to be involved in the mentoring program. Secondly, Mr Morrissey asked for, and obtained, a reference from Mr Tedeschi intending to lodge it in support of his application for admission without informing Mr Tedeschi that he had been disbarred in Virginia. Not only did he not tell him that he had been disbarred he did not inform Mr Tedeschi of the various other matters, both minor and serious which had led to various disciplinary actions, fines and prison sentences before Mr Morrissey was finally disbarred. Although, as it happens, Mr Morrissey did not ultimately use the letter he nevertheless allowed Mr Tedeschi to proffer a reference in which he said he knew of nothing which would preclude Mr Morrissey being admitted as a legal practitioner. Mr Morrissey, of course, knew in asking for and receiving this letter that he had not made frank disclosure or indeed any disclosure to Mr Tedeschi of the various matters. 123 Mr James Bennett SC is a Deputy Senior Crown Prosecutor for New South Wales. He met Mr Morrissey when he became involved with the work of the Director's office and Mr Morrissey assisted him in conducting a significant murder trial. He was asked by Mr Morrissey to provide a reference in support of his application for admission as a legal practitioner. Although that reference is directed primarily to Mr Morrissey's skills as a practitioner (a matter which Mr Morrissey emphasises) it touches upon ethical matters. The last two paragraphs of the letter read as follows: "Our numerous discussions were not limited, however, to the effective presentation of evidence in a trial and the development of persuasive argument. As the trial unfolded we compared and contrasted the role of Crown Prosecutor within our jurisdiction to the role of the prosecutor in the United States where criminal proceedings are to a degree more adversarial than in our courts. These discussions extended to other areas of practice and the ethical standards required of counsel in the discharge of their obligations to clients in circumstances where they have overriding duties to the court. In my opinion, based upon the skills Joseph demonstrated to me in the course of the trial and the high ethical standards he revealed in the course of our discussions, Joseph Morrissey will prove to be an adornment to the legal profession in this State and I have no hesitation in offering my support to his application for admission." 124 Mr Bennett later became aware of the circumstances of Mr Morrissey's disbarment in Virginia. By letter dated 19 August 2005 he withdraw support for Mr Morrissey's admission. He says in that letter: "Regrettably, yesterday evening and today I have received advice regarding Mr Morrissey's serious misconduct as a legal practitioner in the United States of America leading to, amongst other things, his disbarment in the State of Virginia and Federally. At no time did he disclose to me any of the events or conduct that led to disbarment. Had he done so, it would not have been possible for me to form the opinion that he was a person suitable for admission to this profession as I expressed in my reference. His suitability is further challenged by his failure to fully and frankly disclose these matters. It follows that I must withdraw my support for his admission." 125 In a letter in response to an inquiry from the lawyers representing the Bar Association Mr Bennett indicated that at no time did Mr Morrissey disclose to him anything of his disciplinary history as a lawyer in Virginia. In fact, when Mr Morrissey addressed the crown prosecutors at a conference he began with the proposition that the audience might be wondering why he had left Virginia to pursue his interests in the law in Ireland and Australia. The answer he gave that audience was that he had "lost the election when his term as Chief Prosecutor expired and after a period in private practice he chose to explore opportunities outside of his country." 126 Mr Bennett indicated that this was similar to the explanation which Mr Morrissey had given to Mr Bennett during the course of their association. Mr Bennett, in response to a letter from the solicitors for the LPAB wrote, on 28 September 2005: "I view Mr Morrissey's failure to disclose, in the circumstances of my association with him, to be an integral component of a false pretence that there was nothing in his background that might detract from the perception of good fame and character, by means of which he sought admission to the legal profession of New South Wales notwithstanding his disciplinary history as a lawyer in Virginia. For an extended period he represented his history to be that of a successful lawyer from Virginia who had travelled from that place to extend his legal experience and explore new opportunities, and conducted himself so as to leave a favourable impression upon which one might draw for the reference he later sought. This said, even if one was to allow Mr Morrissey the benefit of doubt as to whether he was engaged upon a deliberate process of misrepresentation, the matters which are the subject of the aforementioned judgments are of themselves destructive of the proposition that Mr Morrissey is a person of good fame and character. Moreover, his failure to disclose them even as allegations, the proceedings that evolved in respect of them, and the ultimate outcome in each case, reflect a misunderstanding of the importance that fame and character must have, and without which the community we serve could not maintain confidence in those of us blessed with membership of this profession." 127 The breach of trust with respect to Mr Bennett is no less than that which Mr Morrissey committed in relation to Mr Tedeschi. It is exacerbated by reason of the fact that he not only obtained a reference from Mr Bennett but he proffered that reference to the Board in support of his application. 128 Mr Morrissey also made application to the Bar Association for exemption from the New South Wales Bar exams in the event of his admission as a legal practitioner. That request was granted. Mr Christopher D'Aeth, the Director of Professional Development for the Bar, deposed to the fact that when he was considering his recommendation as to whether or not Mr Morrissey would be required to sit the Bar exams he was not aware of Mr Morrissey's full disciplinary history nor his disbarment in the United States. 129 Mr Philip Selth, the Executive Director of the Bar Association approved Mr Morrissey's application upon the recommendation of Mr D'Aeth. In his affidavit of 23 November 2005, Mr Selth says he was also not aware, when he considered the matter, of the judgment of the Court of Appeals for the Fourth Circuit of 11 September 2002 or the decision of the Virginia State Bar Disciplinary Board. He says that if he had been aware of that history he would not have approved Mr Morrissey's application. 130 The evidence in relation to Mr Morrissey's understanding of the material which he had provided to the Bar Association before his application for exemption was considered and granted is unclear. I am satisfied that Mr Morrissey believed that his solicitor had provided the Bar Association with documents which would have disclosed his disbarment in Virginia although not the decision of the United States Court of Appeals Fourth Circuit. Although undoubtedly Mr D'Aeth and Mr Selth believed that full disclosure was not made I could not find that this was the fault of Mr Morrissey. Rather it would seem that his solicitor failed to deliver copies of the application which had been made to the Board when Mr Morrissey understood this would occur. Relevant principles 131 Questions of suitability to practice have generally been considered by the courts in relation to applications to disbar practitioners. In recent years these applications have often been made in relation to practitioners who have been declared bankrupt (see New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279). 132 In Re Davis (1947) 75 CLR 409 the High Court considered the circumstances of a barrister who had been disbarred having pleaded guilty to an indictment for breaking, entering and stealing which he had failed to disclose to the court or to the Board or to the persons from whom he obtained certificates of good fame and character. The Prothonotary reported to the court the relevant factual circumstances and the Supreme Court disbarred him and ordered that his name be removed from the Roll of Barristers. Davis appealed to the High Court. Latham CJ considered the principles relevant to the removal of the name of a legal practitioner from the Roll, the question being whether the person is a fit and proper person to remain as a member of the profession. For this purpose the Chief Justice indicated (at 416) that it was appropriate to look back in time to a person's conduct although "when a considerable period of time has elapsed past facts should be considered in the light of the lapse of time, and weight should be given to the subsequent behaviour of the person concerned." Of significance in the present matter is the following statement by his Honour: "In this case, however, the applicant was not only guilty of a grave criminal offence in 1934, but in 1944, and again as recently as 1946, he induced two solicitors to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained. It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrongdoing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character." 133 In that case, as does Mr Morrissey in the present case, Davis submitted that, although he had committed the offence in the past, he had redeemed himself by his subsequent behaviour. The Chief Justice said at 416: "It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and it was not unreasonable for him to take the view in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, ie, of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such a disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character." 134 Dixon J at 420 identified the reasons why the Supreme Court had disbarred Davis and said of his application in words which have often been repeated: "The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression, 'good fame and character', which describe the test of his ethical fitness for the profession." 135 Dixon J recited the relevant facts and identified the unusual personal circumstances of Davis. There were many favourable aspects. However, his Honour concluded at 426: "But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice. Housebreaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar. But a prerequisite, in any case, would be a complete realisation by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted." 136 The obligation of candour extends beyond the Court and is of particular significance in the circumstances of the present case. In Re B [1981] 2 NSWLR 372 the Court of Appeal considered the circumstances of a woman who sought a declaration that she was a fit and proper person to appear and act as a barrister. The circumstances in which her fitness was challenged are not presently relevant. However, in the course of his reasons Moffitt P repeated the words of Dixon J in Re Davis to which I have earlier referred. The President continued saying at 381-382: "It is to misconceive the duty of a barrister to relate it to some subservience to judges or the court, as if to an elite class. The duty is of a different nature. The duty is owed to the public, in that in exchange for the legal privileges which the law confers on the barrister or on his relationship with his client, his duty in the public interest is to conduct himself in relation to those privileges and otherwise in the manner which will uphold the law and further its pure administration. By reason of the privilege which the law attaches to communications between barristers and clients in relation to litigation, a barrister, by being a barrister, is in the unique situation that he does much of his work in secret protected by his client's privilege. However his duty to his client is tempered and indeed overridden by his public duty to uphold the law and neither break the law himself nor participate or encourage its breach and in other well-known ways to conduct himself in a manner which will serve the proper and fair administration of the law. Because of privileged secrecy, departure from his duty may not be discoverable and if suspected may be incapable of proof. The proper performance of his duty and hence the pure administration of the law depends on his being able to be trusted unsupervised to do what is right. For this reason to admit a person in whom the court lacks confidence on the basis that he can be supervised and disbarred if he falls out of line involves a misconception. Once admitted he can only be disbarred for cause shown. A barrister has a privilege in his own right concerning what he publicly says in court. What he says if the subject of a fair report can be published to the world. To a considerable degree the proper exercise of this privilege depends upon trust, because a discernment of whether it has been exceeded often will not be discoverable because it will depend on the privileged and secret communication with his client. There is no place in these matters for the pursuit of other objectives beyond the proper determination of the case before the court. Other ends, activist or otherwise, are foreign to the exercise of these privileges and the performance of a barrister's duty." 137 As the decision in Re Davis emphasises the duty of an applicant for admission is one of full and frank disclosure. It could hardly be otherwise. In its joint judgment in Re Evatt (1987) 92 FLR 380 the Full Court of the Supreme Court of the Australian Capital Territory confirmed at 383 that "it is not for an applicant to decide what is or is not relevant to place before the Court on the question of whether that person is a fit and proper person to be admitted to practice. The applicant's duty is to place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practice." However, in appropriate circumstances an initial failure to make full disclosure may be remedied by the later provision of material. 138 Having regard to the issues which arise in the present case it is necessary to refer to one further decision. In Gersten v The Law Society of NSW (2002) 56 NSWLR 16 the Court of Appeal considered the circumstances of a legal practitioner who had been the subject of findings of misconduct by a Supreme Court in Florida. The appellant had been admitted to practice in Florida in 1975 but was suspended from practice in 1998 until he had complied with an order made in 1993. The appellant came to Australia in 1993 and in 1996 he was admitted to practice as a legal practitioner in this State. In January 1999 the Law Society wrote to him referring to the order of the Supreme Court of Florida and referring him to the Supreme Court Rules 1970 Pt 65A r3 which provided that a legal practitioner who had been suspended from practicing outside the State may not practice unless the court otherwise orders. The proceedings in the court were initiated by Mr Gersten seeking an "otherwise order." 139 Evidence of the circumstances which led to the order of the Supreme Court of Florida was tendered at the hearing. Apparently Mr Gersten had a long political career in Florida, having been a Member of the House of Representatives, and also a Member of its Senate. He was an unsuccessful candidate for the office of Attorney-General. For some years he was a Commissioner of Dade County and contemplated standing for Mayor. 140 The proceedings involving Mr Gersten had their origin in events in Florida on the night of 29 April 1992. Mr Gersten's Mercedes Benz motor vehicle was stolen but there were two sharply conflicting versions of the circumstances in which that occurred. One by Mr Gersten and another by the car thieves and their associates. According to the alleged thieves Mr Gersten drove a prostitute to a house described as the "crack house" where he smoked cocaine and engaged in sexual acts with the prostitute. While this was going on another prostitute and her male associate stole his car. 141 According to Mr Gersten he returned home in his car from work, early in the evening, having consumed alcohol. He parked in front of his house and went inside leaving the keys in the car and went to sleep. When he awoke his car was missing. He telephoned his attorney and then reported the theft to the police. Thereafter investigation was undertaken by the relevant authority. In his judgment in the Court of Appeal Handley JA sets out the details of that investigative process which involved the seeking of various court orders for the answering of questions. Ultimately a court order was made by Judge Dean, which was confirmed by the United States Court of Appeals for the Eleventh Circuit. By reason of his failure to comply with the order the Florida Bar commenced disciplinary action against Mr Gersten. As a result of that action he was ordered by the Supreme Court to be suspended from practice until he complied with the order of Judge Dean and one year thereafter. 142 Apparently Mr Gersten said in evidence that he disobeyed the order of Judge Dean because he believed that the prosecutorial process was politically motivated and corrupt. Handley JA remarks at 21 that this "was a peculiar, probably unique, situation which applied to him at that time in Florida. He referred to the role he had played as a reformer in Dade County, which he said had antagonised many people." 143 Handley JA reviewed the relevant legislation and its history in relation to orders made by foreign courts with respect to a practitioner's right to practice. His Honour said at 24-5 that having regard to the relevant rules a legal practitioner will have to establish that "it is not reasonably necessary for the protection of the public, the Court or the profession, that the foreign disciplinary order should continue to have effect in this State." His Honour said: "The rule does not extend the effect of the foreign disciplinary order in the interests of the foreign jurisdiction or the foreign court. Indeed in my judgment these considerations are not even relevant when the court is called upon to consider whether it should otherwise order. No question of international comity or derogation from the authority of the foreign court properly arises. However the Court will give faith and credit to the primary and ultimate findings of the foreign court when it considers the fitness of the legal practitioner to practise in this State. It must also be remembered that there have been occasions in modern history when defiance of the orders of a foreign court (not of course a court in the United States) would demonstrate a legal practitioner's fitness to practise in this State." 144 Having regard to the fact that Mr Gersten was otherwise of good character and because the misconduct found by the Supreme Court of Florida arose in extraordinary circumstances which were entirely local there was no bar to him practising in New South Wales. His Honour said at 25: "Moreover the gravity of that misconduct is substantially mitigated by the appellant's genuine, and rational, belief that the investigation by the State Attorney's Office and his proposed interrogation were being conducted in bad faith to damage him for political reasons. The appeal should therefore be allowed." Consideration of the present matter 145 There are similarities between the circumstances of Mr Morrissey and those of Mr Gersten. Like Mr Gersten Mr Morrissey claims that by virtue of his elected office as the State Attorney his political enemies took steps to undermine and damage him. Without a capacity for his account of these events to be tested it is difficult to be confident of any findings. However, I am inclined to the view that in part his difficulties with Judge Driscoll may have been motivated by the judge's animosity towards him. However, both his conduct in court and more particularly the letter which contained a clear threat were an inappropriate response to the circumstances amounting to improper conduct. 146 I accept that Mr Morrissey's prosecution in relation to the plea bargain and, in particular, the timing of that prosecution were motivated by political considerations. However, the findings by the Disciplinary Board go beyond the matters with which he was charged. Those findings reflect a serious breach by Mr Morrissey of his obligations to his client by failing to disclose the full extent of financial reparation being made on behalf of the defendant. The finding at trial, and confirmed on appeal, was that Mr Morrissey had breached the disciplinary rule which required him "not to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on a lawyer's fitness to practice law." 147 The majority in the Appeal Court also found that Mr Morrissey had conducted "a carefully orchestrated scheme" in the delivery of the donated money by way of 47 cheques totalling nearly $25,000. The majority said that Mr Morrissey engaged in a "carefully orchestrated scheme designed to secure something of value to Morrissey -- the possibility that members of the donee charities would express their gratitude in the form of political support in the forthcoming election." 148 I accept that a different style of presentation of a case is traditional in a United States Court to that with which we are familiar in New South Wales. This may lead to more vigorous exchanges between the bench and advocates than would be acceptable in an Australian court. When the appropriate line is crossed I accept that findings of contempt and the imposition of modest penalties may frequently occur. However, on occasions Mr Morrissey's conduct in court appears to have gone well beyond minor misjudgments in the heat of the moment. He also shows a considerable lack of insight into the true quality of his actions revealed in the exchange I have recorded in [24] of these reasons. 149 His record, as I have indicated, includes an occasion on which he was drawn into and engaged in fisticuffs with his opponent. However provocative the opponent's behaviour may have been the use of his fists in these circumstances is entirely unacceptable. This is not an isolated incident. The assault which Mr Morrissey committed on Mr Wycoff has not been explained and it has not been suggested that it was a legitimate response to provocation. He was convicted of assault and battery by a jury in the Richmond Circuit Court. There has been no attempt to justify his actions in these proceedings. 150 As I have already indicated Mr Morrissey did not make full disclosure of all relevant matters in his initial application to the Board. Although some of the matters to which he did not advert could be considered minor I do not believe this is the case with respect to the decision of the United States Court of Appeals for the Fourth Circuit on 11 September 2002. Although Mr Morrissey sought to justify his failure to refer to this matter on the basis that its significance to his professional practice was limited, I cannot accept that explanation. The decision of the Appeals Court has the decision of the primary judge appended to it. That decision contains a summary history of Mr Morrissey's problems. Disclosure of that judgment would have raised very serious concerns in relation to Mr Morrissey's fitness for admission. It had a relevance far beyond Mr Morrissey's entitlement to practice in the Federal Court. When giving evidence Mr Morrissey impressed me as an intelligent and articulate person. He could not have failed to realise the significance which the decision and, more particularly, the account of his personal history would have had in the deliberations of the Board in relation to his application. His duty to the Board required him to disclose that decision and the reasons for it. 151 Mr Morrissey has had other and to my mind critical difficulties with the disclosure. As I have related he failed to disclose his professional history when seeking employment at both the University of Adelaide and the University of New South Wales. Professor Hunter feels seriously betrayed by that failure. 152 Mr Morrissey also failed to make any disclosure to Mr Tedeschi and Mr Bennett of his disbarment in Virginia. Not only did he not make appropriate disclosure to them he made statements which could only have been designed to mask the true reasons for his leaving Virginia and ultimately coming to Australia. His initial failure to disclose these matters to Mr Tedeschi may be understandable but that position could not be sustained or justified when he asked both Mr Tedeschi and Mr Bennett to provide him with references to advance his case for admission. Whatever may have been his previous relationship with the office of the Director of Public Prosecutions, permitting Mr Tedeschi and Mr Bennett to provide references, without any understanding of the fact that he had been disbarred in Virginia was a gross breach of the obligation which he owed to both prosecutors. 153 There is no doubt that Mr Morrissey is a talented and effective advocate. He is also regarded by those who have taught with him and by those whom he has taught as an extraordinarily gifted teacher. However, I have after very careful consideration come to the view that he is "not a fit and proper person" to be admitted as a legal practitioner. His character is marked by wilful disobedience of court orders and rules, episodes of violence, a failure to make appropriate disclosure and a lack of candour when dealing with his colleagues. Notwithstanding the fact that some of his difficulties may have been provoked by political animosity and some of his actions were committed some years ago when he was less experienced and mature than he is today, he is not a person in whom the bench and legal practitioners could repose their trust. 154 It is possible that if appropriate disclosure had been made his transgressions in Virginia could have been put behind him and his determination to commence a new career free of political difficulties and the misjudgments of youth accepted. His explanation for his initial failure to make full disclosure to the LPAB might also have been accepted. However, his breaches of trust in relation to those who were asked to provide references for him are so great that in my opinion Mr Morrissey's application must be rejected. 155 Parties may address in relation to appropriate orders and costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.