Case Number(s): 03-C-3823-PEH, 04-C-I0561, 04-O-15823, 04-C-15875, 04-C-15903, 04-C-15871,06-O-10118,
In the Matter of: Michael T. Morrissey, Bar # 62195, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cydney Batchelor
Deputy Trial Counsel
180 Howard St., 7th Fl.
San Francisco, CA 94105
Tele: 415/538-2204
Bar # 114637
Counsel for Respondent: In Pro Michael T. Morrissey, Attorney at Law
1110 N. First St.
San Jose, CA 95112
Tele: 408/280-7011
Bar # 62195
Submitted to: Program Judge – State Bar Clerk’s Office San Francisco .
Filed: First Amended – September 14, 2010 .
<<not >> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 18, 1974.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court. However, except as otherwise provided in rule 804.5(c) of the Rules of Procedure, if Respondent is not accepted into the Alternative Discipline Program, this stipulation will be rejected and will not be binding on the Respondent or the State Bar.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated, except for Probation Revocation proceedings. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 11 pages.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
7. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7 and will pay timely any disciplinary costs imposed in this proceeding.
Additional aggravating circumstances: None
Additional mitigating circumstances: See attached.
ATTACHMENT TO
IN THE MATTER OF: MICHAEL T. MORRISSEY, State Bar No. 62195
STATE BAR COURT CASE NUMBER: 03-C-3823-PEM, et al.
DISMISSALS.
Upon Respondent’s enrollment in the State Bar Court’s Alternative Discipline Program, the State Bar will request the Court to dismiss cases no. 04-O-15823 and 04-C-15903, both without prejudice.
FACTS AND CONCLUSIONS OF LAW.
Case No. 03-C-3823
Procedural Background: This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court. On May 19, 2004, Respondent was convicted of a misdemeanor violation of Vehicle Code section 20001(a) [hit and run]. On May 19, 2004, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and decision recommending the discipline to be imposed in the event that the facts and circumstances surrounding the conviction involved moral turpitude or other misconduct warranting discipline.
Facts: On July 31, 2003, Respondent was in a traffic collision, and left the scene of the accident without exchanging driving license and insurance information with the other driver. Respondent’s license tag number was provided to the California Highway Patrol by a witness, and the CHP located Respondent at his home based on that identification. On September 11, 2003, Respondent was charged with misdemeanor violations of Vehicle Code section 20001(a), Vehicle Code section 14601 [driving on a suspended license]; and Vehicle Code section 31 [giving false information to a peace officer]. On May 19, 2004, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code section 20001 (a). Respondent was placed on 3 years court probation, with a condition that he serve 40 days in custody.
Legal Conclusions: The facts and circumstances surrounding Respondent’s misdemeanor conviction of violating Vehicle Code section 20001(a) do not involve moral turpitude, but do involve other misconduct warranting discipline, in violation of Business and Professions Code section 6068(a) and 6106.
Case No. 04-C-10561
Procedural Background: This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court. On May 24, 2004, Respondent was convicted of a misdemeanor violation of Vehicle Code section 23152(a) [driving under the influence of drugs]. On February 16, 2005, the Review Department of the State Bar Court issued an order referring the matter to the Heating Department for a hearing and decision recommending the discipline to be imposed in the event that the facts and circumstances surrounding the conviction involved moral turpitude or other misconduct warranting discipline.
Facts: A few hours after the hit and run described in case no. 03-C-3823 above, Respondent was arrested by the CHP for driving under the influence of alcohol and/or drugs. On October 14, 2003, Respondent was charged with misdemeanor violations of Vehicle Code section 23152(a) [driving under the influence of drugs], with two prior convictions on July 12, 2002 and September 10, 2002, and Vehicle Code section 14601 [driving on a suspended driver’s license]. In the same criminal complaint, he was also charged with a misdemeanor violation of Penal Code section 647(t) [public intoxication], for an incident on July 31, 2003. On May 24, 2004, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code section 23152(a) [driving under the influence of drugs], and the other charges were dismissed. Respondent was sentenced to three years probation, with the condition that he serve 4 days in custody.
Legal Conclusions: The facts and circumstances surrounding Respondent’s misdemeanor conviction for violating Vehicle Code section 23152(a) do not involve moral turpitude, but do involve other misconduct warranting discipline, in violation of Business and Professions Code section 6068(a).
Case No. 04-C-15871
Procedural Background: This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court. On December 2, 2002, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code Section 23152(b)[driving under the influence with a blood alcohol level over .08%]. On February 2, 2005, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and decision recommending the discipline to be imposed in the event that the facts and circumstances surrounding the conviction involved moral turpitude or other misconduct warranting discipline.
Facts: On July 12, 2002, Respondent was arrested in Santa Clara County for driving under the influence of alcohol. Although requested by the State Bar, the police report has not been provided by the Santa Clara County criminal court. On August 19, 2002, Respondent was charged with misdemeanors violations of Vehicle Code sections 23152(a) [driving under the influence of alcohol] and 23152(b) [driving under the influence of alcohol with blood alcohol level over .08%]. On December 2, 2002, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code section 5 23152(b). Respondent was sentenced to three years court probation, on the condition that he serve 6 days in custody.
Legal Conclusions: The facts and circumstances surrounding Respondent’s misdemeanor conviction for violating Vehicle Code section 23152(b) do not involve moral turpitude, but do involve other misconduct warranting discipline, in violation of Business and Professions Code section 6068(a).
Case No. 04-C-15875
Procedural Background: This is a proceeding pursuant to sections 6101 and 6102 of the Business and Professions Code and rule 951 of the California Rules of Court. On October 12, 2004, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code Section 14601 [driving while license suspended for too many points against license]. On February 16, 2005, the Review Department of the State Bar Court issued an order referring the matter to the Heating Department for a heating and decision recommending the discipline to be imposed in the event that the facts and circumstances surrounding the conviction involved moral turpitude or other misconduct warranting discipline.
Facts: Although requested from the superior court on two occasions, the State Bar has never been provided with the underlying citation on this case. The criminal complaint shows that, on December 1, 2003, Respondent drove a vehicle in Santa Clara County while his driver’s license had been suspended. On March 1, 2004, Respondent was
charged with a misdemeanor violation of Vehicle Code section 14601 [driving while license suspended for too many points against license]. On October 12, 2004, Respondent pled nolo contendere to a misdemeanor violation of Vehicle Code section 14601 [driving on a suspended license], and the other charges were dismissed. Respondent was sentenced to two years court probation, on the condition that he serve 10 days in custody.
Legal Conclusions: The facts and circumstances surrounding Respondent’s misdemeanor conviction for violating Vehicle Code section 14601 do not involve moral turpitude, but do involve other misconduct warranting discipline, in violation of Business and Professions Code section 6068(a).
06-O-10118 (Unpaid Sanctions)
Roulette case: From at least February 1, 2004 until October 1, 2004, respondent was counsel of record for the plaintiffs in Roulette, et al. v. Ferrari of North America, lnc., United States District Court for the Northern District of California Docket No. C99-20215-JF. On February 27, 2004, United States Magistrate Judge Brazil issued an order which imposed sanctions against respondent personally in the case, in favor of defendant, in the amount of $3840.00 ("the first Roulette sanctions order"). The first Roulette sanctions order became final; respondent had notice of the order, but failed to pay the sanctions. On March 1, 2004, United States Magistrate Judge Infante issued an order which imposed sanctions on respondent personally in the case, in favor of the defendant, in the amount of $3500.00 ("the second Roulette sanctions order"). The second Roulette sanctions order became final; respondent had notice of the order, and paid the sanctions in July 2004. On September 8, 2004, United States District Judge Fogel issued an order which imposed sanctions on respondent personally in the case, in favor of the defendant, in the amount of $20,000.00 ("the third Roulette sanctions order"). The third Roulette sanctions order became final; respondent had notice of the order, but failed to pay the sanctions.
Schneider case: From at least May 1, 2004 to May 30, 2004, respondent was counsel of record for defendants Charles Tuttle and Laura Reneau and cross-complainant Charles Tuttle in Schneider v. Tuttle and Reneau, Humboldt County Superior Court Docket No. DR010473. On May 6, 2004, Judge Feeney issued an order which imposed sanctions against respondent personally, in favor of plaintiff Karen Schneider, in the total amount of $2406.30 ("the first Schneider sanctions order"). The first Schneider sanctions order became final; respondent had notice of the order, but failed to pay the sanctions. On
May 14, 2004, Judge Feeney issued another order which imposed sanctions against
respondent personally, in favor of cross-defendants Carl Schneider, Edward O Meara and Coastal Auto Mart, Inc., in the total amount of $2736.30, to be paid to Victor M. Ferro ("the second Schneider sanctions order"). The second Schneider sanctions order became final; respondent had notice of the order, but failed to pay the sanctions.
Conclusions of Law: By failing to comply with the courts’ first and third Roulette sanctions orders and the first and second Schneider sanctions orders, in failing to pay the sanctions ordered therein, respondent failed to comply with court orders, in violation of Business and Professions Code section 6103.
PENDING PROCEEDINGS.
The disclosure date referred to, on page one, paragraph A.(6), was June 15, 2006.
AGGRAVATING CIRCUMSTANCES.
Facts Supporting Aggravating Circumstances:
Prior Records of Discipline: Respondent has 3 prior records of discipline, as follows: SO59441 (State Bar Cases No. 94-O-17568, 94-O-17827, 95-C-16342, and 95-O-16540) effective 7/9/1998, 6 months stayed suspension, 1 year probation, for violations of Rules of Professional Conduct 3-110(A) [3 counts], 3-700(A)(2) [3 counts], 3-700(D)(1) [2 counts], 3-700(D)(2) [2 counts], 4-100(A) [2 counts], and 4-100(B)(3) [2 counts], and Business and Professions Code section 6068(m) [4 counts]; S096353 (State Bar Case No. 00-O-13182) effective 7/1/2001, 2 years stayed suspension; 45 days actual suspension, 2 years probation, for a violation of Business and Professions Code section 6068(k); S103208 (State Bar Case No. 00-O-15438) effective 4/17/2002, 2 years stayed suspension, 60 days actual suspension, 2 years probation, for violations of Rules of Professional Conduct 3-110(A) and 3-700(A)(2).
Multiple Acts of Misconduct: The misconduct stipulated to herein involves multiple acts of misconduct.
Misconduct surrounded by dishonesty and concealment: In case number 03-C-3823, when questioned about the collision by the California Highway Patrol, respondent misrepresented to the CHP that his client, and not he, had been driving at the time of the collision. In fact, respondent was the driver involved in the collision.
MITIGATING CIRCUMSTANCES.
Facts Supporting Mitigating Circumstance:
Candor and cooperation: Respondent has been candid and cooperative with the State Bar during its resolution of this case.
Marital Difficulties: During the period of time encompassed by the misconduct stipulated to herein, Respondent experienced extreme marital and post-marital difficulties, including ongoing safety and custody issues regarding his minor daughter. Respondent’s former wife was an attorney licensed to practice in California, who was disbarred in June 2005.
Financial Difficulties: In connection with his marital problems, respondent suffered financial reserves that resulted in his having to close his law office, terminate his office staff, and start his practice over again.
Physical Difficulties: During the time of the misconduct stipulated to herein, Respondent suffered from severe disc problems in his back.
Good Character: Respondent has provided the State Bar with seven letters from a wide range of references, all of whom were provided a copy of this stipulation and who attested to respondent’s good character after being fully informed about the misconduct herein.
ADDITIONAL MITIGATING CIRCUMSTANCES.
Participation in Lawyer’s Assistance Program. On September 29, 2005, Respondent contacted the State Bar Lawyer Assistance Program ("LAP") and completed the intake process. On October 3,200.5, Respondent signed a pre-enrollment assessment agreement with LAP. Respondent was then assessed and monitored for a period for time by the LAP. At the conclusion of the process, Respondent signed the long-term participation plan on June 3, 2005.
Residential Treatment: At the suggestion of LAP, Respondent entered and completed residential treatment for his chemical dependency.
RESTITUTION.
Respondent waives any objection to immediate payment by the State Bar Client Security Fund upon a claim or Claims for the principal amounts of restitution set forth below.
In accordance with the timetable set forth in the in the State Bar Court Alternative Discipline Program contract to be executed between the State Bar Court and respondent on the captioned cases, respondent must make restitution as follows:
Ferrari of North America, Inc., or the Client Security Fund, if it has paid, in the principal amount of $23,840.00, plus interest at the rate of 10% per annum from October 1, 2004, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court and to the State Bar Probation Unit.
Diana Schneider, or the Client Security Fund, if it has paid, in the principal amount of $2406.30, plus interest at the rate of 10% per annum from June 1; 2004, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court and to the State Bar Probation Unit.
Victor M. Ferro, or the Client Security Fund, if it has paid, in the principal amount of $2736.30, plus interest at the rate of 10% per annum from June 1, 2004, until paid in full and furnish satisfactory evidence of restitution to the State Bar Court and to the State Bar Probation Unit.
SIGNATURE OF THE PARTIES
Case Number(s): 03-C-3823-PEM, et al.
In the Matter of: Michael T. Morrissey
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law
Respondent enters into this stipulation as a condition of his/her participation in the Program. Respondent understands the he/she must abide by all terms and conditions of Respondent’s Program Contract.
If the Respondent is not accepted into the Program or does not sign the Program contract, this Stipulation will be rejected and will not be binding on Respondent of the State Bar.
If the Respondent is accepted into the Program, upon Respondent’s successful completion of or termination from the Program, this Stipulation will be filed and the specified level of discipline for successful completion of or termination from the Program as set forth in the State Bar Court’s Statement Re: Discipline shall be imposed or recommended to the Supreme Court.
Signed by:
Respondent: MICHAEL T. MORRISSEY
Date: June 15, 2006
Respondent’s Counsel:
Date:
Deputy Trial Counsel: CYDNEY BATCHELOR
Date: June 16, 2006
Case Number(s): 03-C-3823-PEM, et al.
In the Matter of: MICHAEL T. MORRISSEY
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and conclusions of law is APPROVED.
<<not>> checked. The stipulated facts and conclusions of law is APPROVED AS MODIFIED as set forth below.
<<not>> checked. All dates in the Hearing Department are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation; or 3) Respondent is not accepted for participation in the Program or does not sign the Program Contract the file date. (See rule 5.58(E) & (F) and 5.382(D), Rules of Procedure.)
Signed by:
Judge of the State Bar Court: Patricia McElroy
Date: October 2, 2006