Murphy v. Board of Professional Responsibility

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

FOR PUBLICATION

Filed: June 3, 1996

IN RE: IRA H. MURPHY, )

)

Appellee, ) SHELBY CHANCERY

)

)

Vs. ) HON. JOHN HILL CHISOLM,

) CHANCELLOR

)

BOARD OF PROFESSIONAL )

RESPONSIBILITY, ) No. 02-S-01-9503-CH-00031

)

Appellant. )

FILED

June 3, 1996

Cecil Crowson, Jr.

For Appellant: For Appellee: Appellate C ourt Clerk

Laura L. Chastain A. C. Wharton, Jr.

Deputy Chief Disciplinary Counsel Memphis, Tennessee

Nashville, Tennessee

OPINION

TRIAL COURT REVERSED;

HEARING PANEL AFFIRMED. ANDERSON, C.J.

The issue raised by this appeal is whether the petitioner, a disbarred

attorney, has satisfied the requirements for reinstatement of his license to

practice law contained in Rule 9, § 19.3, Rules of the Supreme Court, by clear

and convincing proof. A Hearing Panel of the Board of Professional

Responsibility concluded that the petitioner had failed to carry the burden of

proof for reinstatement. The Chancery Court, however, reviewed the Hearing

Panel decision and held the petitioner was entitled to "conditional reinstatement"

of his license to practice law.

After carefully reviewing the record, we conclude that the evidence

preponderates against the Chancellor’s judgment granting conditional

reinstatement. Accordingly, we reverse the decision of the Chancellor and affirm

the Hearing Panel’s decision denying reinstatement.1

BACKGROUND

On July 16, 1986, Ira H. Murphy was convicted in federal court on eleven

counts of mail fraud, one count of obstruction of justice, and one count of

perjury. Murphy's convictions for mail fraud arose out of his attempts to obtain

and renew a permit to operate a bingo parlor in Shelby County. Over the course

of three years, Murphy submitted documents to the Tennessee Secretary of

State’s office which contained false and fraudulent representations with respect

to the existence of the H.D. Whalum Lodge #373 (the purported operator of the

bingo game); the tax exempt status of the Lodge; the location of the bingo

games; and the membership of the Lodge. In addition to the false and

1

Because we have concluded that reinstatement is not warranted by the proof, it is not

necessary for us to consider whether Murphy should have been required to take the bar

exam ination as a condition to reinstatem ent.

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fraudulent representations, Murphy forged the name of Charles Brooks on

documents he submitted to the Secretary of State and wrote checks to himself

on the bingo game bank account which totaled more than $9,000.

Murphy’s conviction for obstruction of justice was based upon his attempt

to influence the grand jury testimony of Charles Brooks regarding the bingo

operation. Murphy’s conviction for perjury was based upon his false grand jury

testimony concerning the bingo operations and his involvement in the operations.

The criminal activities for which Murphy was convicted occurred over a

two and one-half to three year period and began approximately two months after

Murphy had been elected a judge of the General Sessions Court in Shelby

County.

Murphy was thereafter sentenced to five years imprisonment on each of

the thirteen convictions, with the sentences to run concurrently; he was also

fined $5,000. He began serving his sentences in October 1986.

In December of 1986, the Tennessee Court of the Judiciary entered an

order recommending that Murphy be removed from office. Murphy appealed and

this Court affirmed the Court of Judiciary’s recommendation of removal and

remanded to the General Assembly for its consideration. See In Re Murphy, 726

S.W.2d 501 (Tenn. 1987). In a special joint convention, the General Assembly

voted to remove Murphy from office.

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The Federal Sixth Circuit Court of Appeals later overturned the mail fraud

convictions, but affirmed the convictions for obstruction of justice and perjury.

Ultimately, Murphy served a total of twenty months, approximately fourteen

months in federal prison and six months in a halfway house, before being

released on parole for the remainder of his sentence.

Based on Murphy's convictions, this Court entered an Order summarily

suspending his law license on July 24, 1986. The matter was referred to the

Board of Professional Responsibility for the initiation of a formal disciplinary

proceeding.

Murphy entered a conditional guilty plea on the "petition to determine

extent of final discipline" filed by the Disciplinary Counsel of the Board of

Professional Responsibility. In an Order of Enforcement, this Court suspended

Murphy from the practice of law for a period of five years beginning July 24,

1986, the date of the original summary suspension of Murphy's license to

practice law.

Shortly after the five-year suspension period ended, Murphy filed a

petition with the Board of Professional Responsibility seeking to have his license

to practice law reinstated. The Disciplinary Counsel filed a response opposing

reinstatement.

The cause was heard by a Hearing Panel of the Board of Professional

Responsibility. The parties stipulated that Murphy had met all continuing legal

education requirements for reinstatement.

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Murphy's proof consisted of the testimony of a number of witnesses, both

attorneys and laypersons. Each testifying witness had known Murphy for more

than fifteen years, and expressed a high opinion of Murphy’s competence and

morality. In addition, each testified that Murphy accepts full responsibility for his

prior misconduct, that he is remorseful for it, and that he has "paid the price" for

his misconduct and now deserves to have his law license reinstated. None of

the witnesses related any specific facts or interactions with Murphy since his

conviction that formed the basis of their opinions. Only one defense witness,

former Shelby County Criminal Court Judge Otis Higgs, expressed concern that

reinstatement would negatively impact the standing of the bar and the

administration of justice. Judge Higgs recommended a conditional, gradual

reinstatement, with monitoring and reporting conditions.

Murphy testified on his own behalf that he has learned from his

experiences and now seeks reinstatement so that he can make a valuable

contribution to the community. He said incarceration has made a deep

impression upon him, and he believes his reinstatement would signify to the

public that a person properly punished can be given a second chance.

Disciplinary Counsel's proof consisted of documentary evidence to

establish that in 1973, Murphy was convicted in federal court for failure to file

income tax returns for two years. He received a one-year sentence that was

served on probation. In June 1983, Murphy tendered a conditional guilty plea to

a violation of DR 6-101(a)(3)2 and received a public censure for neglecting legal

matters entrusted to him regarding payment of an outstanding debt to a doctor

out of a client’s settlement proceeds.

2

Supreme Court Rule 8, DR 6-101(A)(3) provides that “A lawyer shall not neglect a legal

matte r entruste d to the law yer.”

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Disciplinary counsel’s proof also consisted of testimony from a prior chair

of the Professionalism Committee of the Memphis Bar Association who stated

that the committee had reviewed Murphy’s application for reinstatement, as well

as the facts giving rise to his suspension, and had voted, ten to five, to oppose

his reinstatement. Those committee members who did not oppose Murphy’s

reinstatement believed they had insufficient information as to his activities since

being released from jail upon which to base opposition. The President of the

Memphis Bar Association also testified that the Executive Committee had

recommended opposition to Murphy’s reinstatement, but testified that he

personally was of the opinion that the Bar should not go on record as opposing

Murphy’s reinstatement, but should recommend that his reinstatement be

conditioned upon an additional continuing legal education requirement, with a

particular emphasis on ethics. Finally, retired Supreme Court Justice William D.

Fones testified that, in his opinion, Murphy’s reinstatement would have a

detrimental impact on the integrity and standing of the bar, the administration of

justice in Tennessee, and the public interest, and, in addition, would damage the

public perception of the legal system.

Based on that proof, a majority of the Hearing Panel concluded that

Murphy had failed to carry his burden of proof on the criteria for reinstatement.

In so holding, the majority stated, in pertinent part, as follows:

The Panel majority cannot state that Petitioner has met by

clear and convincing evidence [the requirement] that the

reinstatement of Petitioner, a former Judge who committed a series

of felonies over a period of three years, then induced a witness to

lie to the Federal Grand Jury, who criticized the fairness of his jury

trial and proceedings before the Court of the Judiciary, and even

subsequent to conviction maintained his innocence before the

Tennessee State Legislature and further sought salary payments

subsequent to removal from office and during incarceration, would

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not be detrimental to the integrity and standing of the Bar, or the

administration of justice, or subversive to the public interest.

One member of the Hearing Panel dissented, stating that "some

conditional reinstatement is warranted, and it is error to completely deny

readmission."

On August 20, 1992, Murphy filed a petition for writ of certiorari and

judicial review in the Chancery Court of Shelby County. Murphy relied upon the

record before the Hearing Panel and presented as witnesses several additional

attorneys and laypersons who testified they had known Murphy for many years,

considered him competent, and morally deserving of reinstatement, and did not

believe that his reinstatement would negatively impact the standing of the bar,

the public interest, the administration of justice, or the public’s perception of the

legal profession. Former Shelby County Criminal Court Judge Otis Higgs again

testified for the defense that, in his opinion, Murphy should be granted a gradual,

conditional reinstatement. Murphy himself again testified that he was a fit and

proper person to have his license reinstated, and that if reinstated, he would

practice in an honorable and professional manner.

Following the hearing, the Chancellor found that Murphy was entitled to a

"conditional reinstatement" of his license to practice law. The conditions

imposed by the Chancellor consisted of additional continuing legal education,

including ethics, volunteer work with a legal services organization, and

supervised law practice for one year. Upon satisfactory completion, Murphy

would be allowed to resume an "unrestricted and unconditioned" practice of law.

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The Board appealed directly to this Court pursuant to Rule 9, § 1.3, Rules

of the Supreme Court.

REINSTATEMENT

With regard to reinstatement, the Rules of the Supreme Court provide, in

pertinent part, as follows:

The hearing committee shall schedule a hearing at which the

petitioner shall have the burden of demonstrating by clear and

convincing evidence that the attorney has the moral qualifications,

competency and learning in law required for admission to practice

law in this State and that the resumption of the practice of law

within the State will not be detrimental to the integrity and standing

of the bar or the administration of justice, or subversive to the

public interest.

Supreme Court Rule 9, § 19.3 (emphasis added). Although the Board asserts

that Murphy has failed to demonstrate by clear and convincing evidence that he

has either the moral qualifications, or the competency and learning in law

required for admission to practice law in this State, we view the determinative

issue to be whether his reinstatement would be detrimental to the integrity and

standing of the bar or the administration of justice, or subversive to the public

interest. Our review of the record, including the transcript of the evidence before

the Hearing Panel, is de novo with a presumption of correctness unless the

preponderance of the evidence is contrary to the action of the Chancery Court.

Henry v. Board of Professional Responsibility, 749 S.W.2d 466, 467 (Tenn.

1988); Rule 9, § 1.3, Rules of the Supreme Court.

We have thoroughly and carefully examined the record of both the

Hearing Panel and the Chancery Court and summarize our observations as

follows:

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Murphy was convicted in federal court of perjury and obstruction of justice.

Not only did Murphy lie to the federal grand jury, he attempted to persuade

another person to lie to the grand jury. Such conduct strikes at the very heart

and soul of the judicial system and without question would have a detrimental

impact on the integrity and standing of the bar, the administration of justice and

the public interest. In this case, that detrimental impact is exacerbated because

the illegal conduct and convictions occurred while Murphy was occupying a

position of public trust as a sitting judge of the general sessions court of Shelby

County. Because Murphy was a sitting judge, the publicity and notoriety

attendant to his conduct and convictions was much greater than it otherwise

would have been had he been simply a practicing attorney.

A number of individuals testified in favor of reinstating Murphy’s license to

practice law. When asked to explain the reasons for their support of his

reinstatement, these witnesses said that Murphy has “paid the price,” and that he

has rehabilitated himself and is remorseful for his actions. Their testimony,

however, is totally conclusory and completely devoid of specific facts and

circumstances which have arisen since Murphy’s convictions that demonstrate

either rehabilitation or remorse. Moreover, while this testimony may be relevant

to Murphy’s moral character, it bears little relevance on the question of whether

Murphy’s reinstatement would be detrimental to the integrity and standing of the

bar or the administration of justice or subversive to the public interest. There is

no specific evidence in the record as to the efforts Murphy has made to reform

and make amends, and in the absence of such proof, we conclude that he has

failed to prove the criteria for reinstatement by clear and convincing proof.

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The license to practice law is not a right but a privilege in Tennessee.

See Rule 9, § 3.1, Rules of the Tennessee Supreme Court. A person

suspended from the practice of law is not entitled to have that privilege restored

simply because that person has served the sentence imposed for a violation of

the criminal laws. Reinstatement of the license to practice law is warranted only if

certain criteria, contained within § 19.3 of Supreme Court Rule 9, are satisfied by

clear and convincing proof. In this case, the evidence preponderates against the

Chancellor’s finding for conditional reinstatement. Reinstatement of Murphy's

license to practice law would be detrimental to the integrity and standing of the

bar or the administration of justice or the public interest.

CONCLUSION

Accordingly, the judgment of the Chancellor granting conditional

reinstatement is reversed, and the judgment of the Hearing Panel of the Board of

Professional Responsibility, denying reinstatement is affirmed. As a result of

our conclusion, it is unnecessary to address the other issues raised by the

Board’s appeal. Costs of this appeal are taxed to Ira H. Murphy, for which

execution may issue if necessary.

________________________________

RILEY ANDERSON, CHIEF JUSTICE

CONCUR:

Drowota, Reid, Birch and White, JJ.

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