# FILED

June 3, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION Filed: June 3, 1996 IN RE: IRA H. MURPHY, ) ) Appellee, ) SHELBY CHANCERY

) ) Vs. ) HON. JOHN HILL CHISOLM, ) CHANCELLOR ) BOARD OF PROFESSIONAL ) RESPONSIBILIT Y, ) No. 02-S-01-9503-CH-00031 ) Appellant. )

For Appellant: For Appellee: Laura L. Chastain A. C. Wharton, Jr. Deputy Chief Discipli nary Counsel Memphis, Tennessee Nashville, Tennessee



# O P I N I O N

TRIAL COURT REVERSED; HEARING PANEL AFFIRMED. ANDERSON, C.J.1 Because we have concluded t hat reinst atement is not warranted by the proof, it i s not necessary for

us to consider

whether Murphy should have been r equired to

take the bar exam ination as a condition to reinstatem ent. -2- The issue raised by this appeal is whether the peti tioner, a disbarred attorney, has satisfied the r equirements for reinstatement of hi s license to practice law contained in Rule 9, § 19.3, Rules of the S upreme Court, by clear and convincing proof. A Hearing Panel of the Board of Profess ional Responsibility concl uded that the petitioner had failed t o carry the burden of proof for reinstatement. The Chancery Court, however, r

eviewed the Hearing Panel decision and held the petitioner was entitled to "conditional reinstatement" of his lic ense to p ractice la w.
After carefully reviewing the record, we conclude that the evidence preponderates against the Ch ancellor’s judgment gr anting conditional reinstatement. Accordingly, we reverse the decision of the Chancellor and affirm the Hearing Panel’s deci sion denying reinstat ement. 1

B A C K G R O U N D On July 16, 1986, Ira H. Murphy was conv icted in federal court on elev en counts of mail fraud, one count of obstruct ion 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 Secr etary of State’s office which contained false and f raudulent 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-3- fraudulent representations, Mur phy forged the name of Charles Br ooks on documents he submitted to the Secretary of Stat e and wrote checks to himself on the bingo game bank account w hich totaled more than $9,000.

Murphy’s convict ion for obstruction of justice was based upon his attempt to influence the grand jury testim ony of Charles Bro oks regarding the b ingo operation. Murphy’s conviction for perjury was based upon his false grand jury testimony concerning t he bingo operations and his i nvolvement in the operati ons.

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 j udge of the General Sessions C ourt in Shelby County.

Murphy was thereafter sentenced to five years i mprisonment on each of the thirteen convictions, with the sentences to run concurrently; he was also fined $5,000. He began servi ng his sentences in October 1986.

In December of 1986, the Tennessee Court of the Judiciary entered an order recommending that Mur phy be removed from office. Murph y appealed and this Court affirmed the Court of Judi ciary’s recommendation of r emoval 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.-4- The Federal Sixth Circ uit Court of Appeals later ov erturned the mail fraud convictions, but affirmed the co nvictions for obstructi on of justice and perjury. Ultimately, Murphy

served a total of twenty months, approximately fourt een months in federal prison and six months in a halfway house, before being released on parole for the remain der of his sentence.

Based on Murphy's convictions, this Court entered an Order summarily suspending his law l icense on July 24, 1986. The matt er was referred to the Board of Professional Responsibility for the initiation of a formal disciplinary proceeding.

Murphy entered a conditi onal guilty plea on the "petition to determine extent of final discipline" fil ed by the Disciplinar y Counsel of the Board of Professional Responsibility. In an Order of Enforcement, th is Court suspended Murphy from the practice of l aw for a period of five ye ars beginning July

24, 1986, the date of the original su mmary suspension of Murphy 's license to practice law.

Shortly after the five-y

ear suspension period ended, M urphy filed a petition with the Board of Professional Responsibility seeking to have his license to practice law rei nstated. The Disciplinary Counsel filed a response opposi ng reinstatement.

The cause was heard by a H earing Panel of the Board of Professi onal Responsibility. The par ties stipulated that Murphy had met all continuing legal education requirements for r einstatement.2 Supreme Court Rule 8, DR 6-101(A) (3) provi des that “A l awyer shal l not negl ect a legal matte r entruste d to the law yer.” -5- Murphy's proof consisted of the testimony of a number of witn esses, both attorneys and laypersons. Each testifying witness had known Murphy for more than fifteen years, and expres sed a high opinion of Murphy ’s competence and morality. In addition, each testified that Murphy accepts full responsibility for his prior misconduct, that he i s remorseful for it, and that he has "paid the price" for his misconduct and now deser ves 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 def ense witness, former Shelby County Cr iminal Court Judge Otis Higgs, express

ed concern that reinstatement would negati vely impact the standi ng of the bar and the administration of justice. J udge 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 incarcerati on has made a deep impression upon him, and he belie ves his reinstatement w ould signify to the public that a person properl y punished can be giv

en a second chance.

Disciplinary Coun sel'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 tw o years. He receiv

ed a one-year sentence that w as served on probation. In J une 1983, Murphy tendered a con ditional guilty pl ea to a violation of DR 6-101( a)(3) 2 and received a public c ensure for neglecting legal matters entrusted to him reg arding payment of an outstanding debt to a doctor out of a client’s settlement proceeds.-6- Disciplinary counsel’s proof also consisted of testimony from a prior chair of the Professionalism Committee of the M emphis Bar Association w ho stated that the committee had reviewed Murphy’s application for reinstatemen t, as well as the facts giving rise to his suspension, and had voted, ten to five, to oppose his reinstatement. Those committee mem bers who did not oppose Murphy’s reinstatement believed they had insufficient inf ormation as to his activities since being released from jail upon which to base opposition. The President of the Memphis Bar Association al so testified that the Executi ve Committee had recommended opposition to Murphy ’s reinstatement, but testified that he personally was of the opi nion that the Bar should not g o on record as opposing Murphy’s reinstatement, but should recommend that his rei nstatement be conditioned upon an additional continuing legal educatio n requirement, with a particular emphasis on ethi cs. Finally, reti red Supreme Court Justice William D. Fones testified that, in his op inion, Murphy’s rei nstatement would have a detrimental impact on the integ rity and standing of the bar, the administration of justice in Tennessee, and the publ ic interest, and, in additi on, 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 carr y his burden of proof on the cri teria for reinstatement. In so holding, the majority stated, in pertinent part, as follows:

The Panel majority cannot stat e that Petitioner has met by clear and convincing

evidence [the requir

ement] that the reinstatement of Petitioner, a former Judge who committed a ser ies of felonies over a period of three years, then induced a w itness to lie to the Federal Grand Jury, who criticized the fairness of his jury trial and proceedings befor e the Court of the Judiciary , and even subsequent to convicti on maintained his innocence before the Tennessee State Legislature and fur ther sought salary pay

ments subsequent to removal from office and during incarceratio n, would-7- not be detrimental to the integ rity and standing of the Bar, or the administration of justice, or subversive to the publ ic interest.

One member of th e Hearing Panel dissent ed, 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. Mur phy relied upon the record before the Hearing Panel and presented as witnes ses several additional attorneys and laypersons who testified they had known Murphy for many years, considered him competent, and moral ly deserving of re instatement, and did not believe that his reinstatement would negatively impact the standing of the bar, the public interest, the admin istration 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 op inion, Murphy should be granted a gradual, conditional reinstatement. M urphy himself again testi fied that he was a fit and proper person to have his license reinstated, and that if reinstated , he would practice in an honorable and pr ofessional manner.

Following the heari ng, the Chancellor found that M urphy was entitled t o a "conditional reinstatement" of his license to practice law. The conditions imposed by the Chancellor consisted of additional continui ng legal education, including ethics, v

olunteer work wi

th a legal services

organization, and supervised law pr

actice for one year. Upon s atisfactory completion, M urphy would be a llowed to re sume an " unrestri cted and uncondi tioned" practice of law.-8- The Board appealed directly to this Court pursuant to R ule 9, § 1.3, Rules of the Supreme Court.

REINSTATEMENT With regard to reinstatement, th e Rules of the Supreme Court provide, in pertinent part, as follows: The hearing committee shall sc hedule a hearing at whi ch the petitioner shall have t he burden of demonstrating by c lear 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 practic e of law within the State wi ll not be detrimental to the i ntegrity and standing of the bar or the administration of justice, or subversi ve to the public interest. Supreme Court Rule 9, § 19.3 ( emphasis added). Although the B oard asserts that Murphy has failed to demons trate by clear and conv incing evidence that he has either the moral quali fications, or the competency a nd learning in law required f or admiss ion to pra ctice law in this Stat e, we view the determin ative issue to be whether his reinstatement would be detr imental 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 corr ectness unless the preponderance of the evidence is contrary to the action of the Chancery Court. Henry v. Board of Profess ional Responsibility , 749 S.W.2d 466, 467 (Tenn. 1988); Rule 9, § 1.3, Rules o f the Supreme Court. We have thoroughly and carefully e xamined the record of both the Hearing Panel and the Chance ry Court and summariz e our observations as follows:-9- Murphy was conv

icted in federal court of perjur y and obstruction of justic e. Not only did Murphy

lie to the federal grand ju ry, he attempted to persuade another person to lie to the grand jury. Such conduct strikes at the very heart and soul of the judicial sy stem and without question would have a detrimental impact on the integrity

and standing of the bar, the admini stration of justice and the public interest. In this case, that detrimental impact is exacerbated because the illegal condu ct and conviction s occurred while Murp hy was occupying a position of public trust as a sitting judge of the ge neral sessions court of Shelb y County. Because Murphy was a sitting judg e, the publicity and notor iety attendant to his conduct and convictions was much greater than it otherwise would have been had he been si mply a practicing at torney.

A number of individuals testi fied in favor of reinstating Murphy’s license to practice law. When asked to explain the reasons fo r their support of his reinstatement, these witnes ses said that Murphy has “paid the price,” and that he has reha bilitate d himself and is rem orseful for his ac tions. Th eir testim ony, however, is totall

y conclusory and compl etely devoid of specific fact s and circumstances which ha ve arisen since Mur

phy’s convictions that demonstrate either rehabilitation or

remorse. Moreover, w hile this testimony may be relevant to Murphy’s moral char acter, it bears little

relevance on the questi on of whether Murphy’s reinstatement would be detrimental to the integrity and standin g 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 mad e to reform and make amends, and in the absence of such pr oof, we conclude that he has failed t o prove the criteria fo r reins

tatement by clear and co nvinci ng proo f.-10- The license to practice law is not a right but a pr

ivilege 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 t hat privilege rest ored simply because that person has served the sentence impos ed for a violation of the criminal laws. Reinstatement of the license to practice law is warranted only if certain criteria, cont

ained within § 19.3 of Supreme C ourt Rule 9, are satisfied by clear and convincing

proof. In this case, the ev idence preponderates against the Chancellor’s finding for conditional reinstatement. Reinstat ement of Murphy's license to practice law

would be detrimental to the integrity and standi ng of the bar or the administration of j ustice or the public inter est.

CONCLUSION Accordingly, the j udgment of the Chancellor gr anting conditional reinstatement is rever

sed, and the judgment of the Hearing Panel of the Board of Professional Responsibility, denying reins tatement is affirmed. As a result of our conclusion, it is unn ecessary 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.