IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 8, 2017 Session

DRAYTON BEECHER SMITH, II v. BOARD OF PROFESSIONAL 

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Appeal from the Chancery Court for Shelby County

No. CH-16-0528-I William B. Acree, Jr., Special Judge

No. W2017-00247-SC-R3-BP

Drayton Beecher Smith, II (“Attorney”) pled guilty in 2007 to federal charges of receipt 

and possession of images depicting child pornography and was sentenced to five years of 

imprisonment. In conjunction with these charges, Attorney consented to his disbarment, 

which was ordered in 2008. In August 2014, after being discharged from prison and 

while on probation, Attorney petitioned to be reinstated to the practice of law in 

Tennessee. The Board of Professional Responsibility (“BPR”) opposed Attorney’s 

petition, and a hearing panel was appointed (“the Panel”). After an evidentiary hearing, 

the Panel denied Attorney’s petition. Attorney sought review in chancery court, and the 

chancery court reversed the Panel’s decision and ordered Attorney reinstated. The BPR 

sought review in this Court. Initially, we hold that the chancery court had subject-matter 

jurisdiction of Attorney’s petition in spite of the BPR’s untimely filing of its application 

for costs. We further hold that the chancery court misapplied the applicable standard of 

review and thereby committed reversible error. Accordingly, we reverse the chancery 

court’s ruling and reinstate the Panel’s decision. 

Tenn. Sup. Ct. R. 9, § 33.1(d);

Judgment of the Chancery Court Reversed;

Decision of the Hearing Panel Reinstated

JEFFREY S. BIVINS, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,

SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined. 

A. Russell Willis, Brentwood, Tennessee, for the appellant, Board of Professional 

Responsibility.

Lucian T. Pera and J. Bennett Fox, Jr., Memphis, Tennessee, for the appellee, Drayton 

Beecher Smith, II.

06/26/2018
2

OPINION

Factual and Procedural Background

Attorney originally was admitted to the practice of law in Tennessee in 1974 and 

established himself in the practice area of trusts and estates. As of 2007, Attorney had 

not been disciplined by the BPR. In November 2006, Attorney was arrested on a sevencount federal indictment related to the receipt and possession of child pornography, based 

on images discovered on Attorney’s laptop computer. In June 2007, Attorney pled guilty 

in federal court to three of these counts. In conjunction with these charges, Attorney 

executed a Consent to Disbarment Affidavit in August 2007, and an Order of Disbarment 

was entered in May 2008. After serving a portion of his five-year sentence of 

imprisonment, on October 4, 2011, Attorney was transferred to a Memphis halfway 

house. Attorney was discharged on March 16, 2012, after completing his sentence of 

incarceration. 

Attorney’s sentence included ten years of supervised probation following his 

release from imprisonment. The conditions and restrictions of Attorney’s probation 

include: (1) answering truthfully all inquiries by his probation officer, (2) registering 

with the sexual offender registration agency for Tennessee, (3) participating in a 

specialized sex offender treatment program that may include the use of a polygraph, (4) 

refraining from direct or indirect contact with any child under eighteen (18) years of age, 

(5) not possessing any pornography, (6) not using sexually oriented telephone numbers or 

services, (7) participating in mental health treatment as directed by his probation officer, 

and (8) refraining from excessive use of alcohol. Additionally, Attorney’s conditions of 

probation provide that he “shall not possess, or use, a computer with access to any ‘online computer service’ at any location (including employment) without prior approval of 

the Probation Officer.” 

Attorney filed his petition for reinstatement on August 11, 2014. At the ensuing

evidentiary hearing before the Panel, Attorney called several character witnesses, two of 

his treating physicians, the deputy director of the Tennessee Lawyers Assistance Program

(“TLAP”), and a medical expert.1 Attorney also testified on his own behalf. The BPR 

adduced a written report prepared in May 2013 by Dr. A. J. Reid Finlayson, the Medical 

Director of the Vanderbilt Comprehensive Assessment Program (“VCAP”), following 

Attorney’s participation in an evaluation conducted through VCAP (“the VCAP 

Evaluation”). Attorney participated in the VCAP Evaluation at the suggestion of TLAP

in conjunction with Attorney’s effort to be reinstated.

 

1 The Panel began hearing testimony on March 25, 2015. The hearing was suspended for 

Attorney to be evaluated by this medical expert, Dr. Gene G. Abel. The hearing recommenced on August 

25, 2015.
3

The conduct for which Attorney was prosecuted consisted of his downloading 

onto his computer between thirty and forty photographs of girls, between nine and 

fourteen years of age, appearing either nude or engaged in sex acts. There was no proof, 

however, that Attorney ever had engaged in sexual physical contact with a child. 

Following his incarceration, Attorney was diagnosed with pedophilia. 

Attorney testified about the conduct that resulted in his convictions:

At the time I was suffering from chronic clinical depression. I was 

having trouble sleeping. I was staying up late at night. I was working on 

researching an appeal for my brother, who was convicted of a felony in 

California. And I would get tired of research, so then I would go to play 

games, video games, on the computer, like Spades or Hearts with other 

people. Online live video games.

After that, if I got tired, I would go to look at other websites and then 

sometimes I would go to porn sites. I went to a couple of the porn sites, 

and there were things called pop-ups which said come to this site and see 

this, and one of them mentioned minors, and I was just curious to see what 

it was. It was curiosity that got me in trouble. I went there and looked at it, 

and I guess I downloaded—I did download a few images, not a whole lot, 

but enough to get me in trouble.

Some people have thousands and thousands and thousands. I think I 

had less than 40, but they were enough to get me in trouble, and I did 

download some of those images.

Attorney added that he “just wanted to see what was going on, what people were doing” 

and that he was “just curious to see how wild and crazy it could be.” Attorney 

acknowledged that he knew his conduct was wrong at the time and that he “shouldn’t 

have done it.” He explained that “at the time [he] thought it was a victimless crime” and 

that he “did not think [he] was hurting anybody.” Since his arrest, he had come to 

understand through counseling the harm that his actions caused to the persons in the 

images. 

After his release from prison, Attorney participated in a specialized sex offender 

treatment program through Counseling Resources of America. The entire program 

consisted of four phases, all of which he had completed by the time of the hearing. 

Attorney stated that it took him approximately two and one-half years to complete the 

program. The first phase consisted of weekly meetings, with the latter phases requiring 

meetings every other week. Following this program, Attorney completed a ten-week 

pilot program involving cognitive behavior that was led by his probation officer.
4

 Attorney stated that he had not had any violations of his probation. 

On cross-examination, Attorney stated that he participated in the VCAP 

Evaluation “[t]o have professional people assess [him] to see if [he was] mentally and 

physically fit to practice law.” Asked if he was truthful during his evaluation, Attorney 

responded, “[p]ainfully brutally truthful. They couldn’t help me if I wasn’t.” Attorney 

confirmed that, as reflected in the VCAP Evaluation, he had used his computer after his 

release to alter adult comic strip figures in order to make them appear nude for selfgratification.2

 He explained, “I was having trouble adjusting. I was having trouble with 

my wife’s health. I’m not allowed to have pornography. I was taking images on a 

scanner and changing them to erotic images to help me with my fantasy. I was not saving 

them. I was making those images for that moment and then erasing them.” Attorney 

stated that he engaged in this behavior for “a couple of months” in late 2012 and/or early 

2013 and attributed his conduct to stress. He added, “I stopped doing it because I 

realized—you talk about stop signs and triggers. I saw what was wrong, and I stopped it. 

But even after I talked to the people at Vanderbilt about it, I realized that that was what 

they call a slippery slope, like you don’t want to go on doing something like that, so I did 

stop that, and I have not resumed that practice.” Attorney stated that he had not disclosed 

this conduct to anyone before his VCAP Evaluation. He had never disclosed this use of 

his computer to produce possibly pornographic images3to his probation officer. 

Attorney explained, “I have not because I just—it was something that I self-remedied. 

It’s not gone on. It’s not a problem.” Attorney also admitted that he had not disclosed 

this conduct to his counselor at Counseling Resources of America, explaining that he did 

not “because it was already passed. Once it was over, it was over.”

Attorney also admitted during cross-examination that, since his release from 

prison, he had engaged in fantasizing about underage females for self-gratification, 

conduct that he also reported during his VCAP Evaluation. Based in part on these 

fantasies, the VCAP Evaluation provides that Attorney 

does have some factors that likely elevate his risk of sexual offending. In 

particular, he clearly has deviant sexual arousal to prepubescent females. 

 

2 Attorney would scan images of adult comic strip characters such as Blondie and Betty Boop 

from the newspaper into his computer and then use the computer’s software program to “paint” flesh 

colors over the characters’ clothing to make them appear nude. The record does not indicate whether, in 

undertaking this activity, Attorney used a computer “with access to any ‘on-line computer service’” 

which would have violated the terms of Attorney’s probation unless Attorney had first received his 

probation officer’s approval. 

3 As set forth above, the conditions of Attorney’s supervised release prohibit him from possessing 

any pornography. It is unclear, and not necessary to our resolution of this matter, whether the images that 

Attorney created would fall within the definition of “pornography.” See generally Michael Smith, Note, 

Barely Legal: Vagueness and the Prohibition of Pornography as a Condition of Supervised Release, 84 

St. John’s L. Rev. 727 (Spring 2010).
5

Furthermore, he is actively engaging in fantasy and regularly experiencing 

arousal to sexual images and fantasy of girls, which is clearly not consistent 

with recommended treatment for sexual offenders[.]

Attorney testified that he stopped this fantasizing “about six months after” he participated 

in the VCAP Evaluation. He stated that he no longer fantasized about young girls, 

adding that he had to take a polygraph every six months and had answered that question 

truthfully. 

Attorney stated that he had not told his character witnesses about the behavior 

reported in the VCAP Evaluation, explaining that the witnesses were his friends, not his 

doctors. 

On questioning by the Panel about the VCAP Evaluation, Attorney acknowledged 

that “[s]ome of [his] actions [since his release from prison] could be construed to violate 

[his] probation.” Attorney emphasized that, long before the hearing, he had stopped 

engaging in both the fantasizing and the cartoon alterations. One of the Panel members 

expressed concern with Attorney’s status as a sex offender and, if Attorney were 

reinstated, the impact of that status on the integrity of the bar. Attorney acknowledged 

that people were going to “hate [him] just because they know [he is] a sex offender.”

Attorney was evaluated again in May 2015 by Dr. Gene G. Abel, Medical Director 

for the Behavioral Medicine Institute of Atlanta. Dr. Abel is a psychiatrist specializing in 

the field of sexual misconduct. Dr. Abel testified that Attorney had disclosed to him his 

previous fantasies about underage females and his use of a computer to alter cartoon 

characters. Attorney told Dr. Abel that he had stopped this behavior. Dr. Abel explained 

that the cartoon-altering behavior was “an indirect measure of interest in children.” Dr. 

Abel also explained that he did not expect persons in therapy for pedophilia to reveal all 

of their inappropriate thoughts or behavior immediately but that, if therapy were 

effective, the person would reveal more of “those things” over time as the therapeutic 

relationship evolved.

Dr. Abel concluded that Attorney had made progress in his treatment since the 

VCAP Evaluation. In his written report, which was admitted into evidence, Dr. Abel 

supported Attorney’s reinstatement, subject to a number of strict conditions including 

ongoing treatment and polygraphs.

Dr. Jeffery Warren, Attorney’s primary care physician, testified by deposition. Dr. 

Warren testified that he diagnosed Attorney with depression in December 1998, many 

years prior to Attorney’s conviction. When Dr. Warren saw Attorney after his release

from incarceration, Attorney “did not seem actively depressed at that point.” Dr. Warren 

also “saw no evidence” of an alcohol problem since Attorney’s release. In Dr. Warren’s 

opinion, Attorney’s current mental health indicated that he was fit to resume the practice 
6

of law. Dr. Warren also opined that Attorney “is an ethical man.” Dr. Warren last saw 

Attorney in October 2014. 

Dr. Allen O. Battle, a psychologist, first saw Attorney in 1996 for a session of 

clinical hypnosis aimed at helping Attorney remember a specific event. Dr. Battle next 

saw Attorney in 1999 for acute stress related to matters involving Attorney’s twin 

brother. Dr. Battle continued to see Attorney until 2002, by which point Attorney had 

improved. Attorney returned to Dr. Battle in 2005 due to the stress he was experiencing 

as a result of the criminal investigation against him related to the child pornography 

found on his computer. 

Dr. Battle was aware that Attorney was later convicted of possessing child 

pornography, which Dr. Battle understood to consist of photographs of children, some of 

them consisting of “nude single photos” and some of them depicting the subjects engaged 

in sexual activity.

Dr. Battle saw Attorney in 2012 for “an anxiety disorder.” Attorney improved 

over the course of his treatment. Dr. Battle also saw Attorney in January 2015 to 

evaluate his “present psychological function” in preparation for Attorney’s quest to be 

reinstated. Dr. Battle testified that, in 2015, Attorney was handling the stresses in his life 

much better than he had previously. 

Attorney discussed with Dr. Battle the conduct that led to his conviction. In Dr. 

Battle’s opinion, Attorney felt remorse for his conduct. Dr. Battle further testified that he 

had no reason to suspect that Attorney would re-offend. Dr. Battle elaborated: 

“[Attorney] has been burned so thoroughly by all of this that has happened to him over 

the last six or seven years that I don’t think he would touch it with a barge pole.”

Dr. Battle had reviewed the VCAP Evaluation and described it as the “most 

comprehensive” evaluation he had ever read in his fifty-seven years of practice. Dr. 

Battle did not agree with all of the VCAP Evaluation’s recommendations or conclusions.

Dr. Battle opined that Attorney was fit to resume the practice of law. He also 

stated that he would not hesitate to recommend Attorney to friends or family.

On cross-examination, Dr. Battle stated that Attorney disclosed to him Attorney’s 

use of the computer to alter cartoon images. Dr. Battle also stated that he was concerned 

that Attorney had masturbated to imaginary images of children “because they are not 

socially acceptable libidinal objects.” Dr. Battle also was concerned that Attorney had 

not disclosed this activity to his probation officer. 

In response to a question from the Panel, Dr. Battle agreed that there is a social 

stigma attached to persons diagnosed with pedophilia.
7

Attorney also called a number of character witnesses. Frank Michael Bursi, a 

lawyer, testified that he had practiced with Attorney for approximately ten years from 

1990 to 2000. Mr. Bursi stated that he was aware that Attorney had pled guilty to a 

federal offense involving the receipt and possession of child pornography. Since 

Attorney’s release from prison, Mr. Bursi’s contact with Attorney was limited to a dinner 

party and several phone calls.

Mr. Bursi described Attorney as “highly professional in his work” and added that 

he had seen Attorney “do very good legal work.” Mr. Bursi stated that he had no reason 

to doubt Attorney’s integrity and honesty as a lawyer and no reason to doubt his moral 

qualifications to handle legal matters. Mr. Bursi indicated that, in his view, it would be 

“a good thing for the legal profession and administration of justice in Tennessee for 

[Attorney] to be reinstated to the practice of law.” Mr. Bursi added, “I think he’s a good 

lawyer. I think he’s paid his debt to society. I think he’s rehabilitated himself, and I 

think the profession would be helped by his practice.” 

Carl Thomas Jackson testified that Attorney had provided him with legal services 

for himself and his daughter who had a special-needs trust. He was aware that Attorney 

had been convicted of a federal crime involving the receipt and possession of child 

pornography. Mr. Jackson considered himself a friend of both Attorney and Attorney’s 

wife. Mr. Jackson believes that Attorney has the moral qualifications to practice law and 

that he is an honest man. Mr. Jackson did not know whether Attorney was remorseful for 

the conduct that led to his conviction but assumed that he was. Mr. Jackson testified that 

he would have no hesitation about hiring Attorney again if he were reinstated.

Robert Benham, retired lawyer and judge, testified that he had served as a judge of 

the Shelby County Probate Court for fifteen years. He knew Attorney both from 

Attorney’s appearances before the bench and previously when they were both in private 

practice. Judge Benham testified that, before he was disbarred, Attorney’s reputation as a 

lawyer “was a very, very good one.” During Attorney’s appearances before Judge 

Benham, Attorney never gave him a reason to doubt his integrity or honesty. 

Judge Benham was aware that Attorney had been convicted of a crime involving 

the receipt and possession of child pornography. Judge Benham supported Attorney’s 

reinstatement to the bar:

I think he would do a good job. He’s always done a good job in the 

past, and there’s no reason to believe that he wouldn’t continue to do that in 

the future. The matter about which he was convicted in my opinion had 

nothing to do with his professional ability or his integrity as far as honesty 

with the court, honesty with his clients, honesty in handling funds of 

clients.
8

Donn Allen Southern testified that he served as a judge in the Shelby County 

Probate Court for almost eighteen years. Prior to that time, he was engaged in private 

practice. Attorney practiced regularly before him while he was on the bench. Judge 

Southern stated that Attorney had a good reputation as a lawyer and was “known as a 

capable, intelligent attorney, skilled especially in that area of estate planning and wills 

and practice in probate court.” Judge Southern added that he “never saw anything of a 

negative nature at all in the way he handled matters and represented his clients.” 

Attorney never gave him any reason to doubt Attorney’s integrity or honesty. Judge 

Southern was aware that Attorney had been convicted of a federal crime involving the 

receipt and possession of child pornography. Judge Southern testified that he thought it 

would be a “good thing” if Attorney were reinstated, adding, “I know nothing about the 

details of his conviction and guilty plea other than what I’ve been told, but I have no 

reason to think that he would not resume a very reputable practice of law and represent 

clients in a proper manner.”

On cross-examination, Judge Southern stated that he had read about Attorney’s 

offense in the newspaper and that Attorney also told him personally that he had had child 

pornography on his computer. Judge Southern did not know any of the details of 

Attorney’s offense. 

One of the Panel members asked Judge Southern if Attorney’s status as a 

registered sex offender, which rendered information about Attorney’s crime available to 

the public, impacted his opinion about the effect of Attorney’s reinstatement on the 

integrity and standing of the bar. Judge Southern responded,

I think most people realize that they have failings in their lives, and 

he has paid his debt to society, obviously in terms of what the court 

sentence involved.

I think I’m a pretty good judge of character; and having known 

[Attorney], I just feel that he would handle himself in a proper manner, that 

that’s not something that would be repeated.

I know he’s had treatment and gone through counseling and that sort 

of thing, and this is a big city. I don’t think there would be that much—I 

don’t think there would be that much talk about it. There might be some, 

you’ve got to recognize that. There are some people that are going to know 

about that. But that’s my opinion.

James P. Cole testified that Attorney was a good friend, and they corresponded 

while Attorney was in prison. Mr. Cole was aware of the reasons for Attorney’s 

incarceration. In Mr. Cole’s opinion, Attorney was remorseful for his actions, and he 

“recognized he has a problem to deal with, and he’s doing his best to deal with it.” Mr. 
9

Cole also stated that he had “a very strong opinion that that will never happen again,” 

adding,

I just think he’s learned his lesson. He’s dealt with it. He’s a strong 

man, he’s got a strong sense of character; and if he makes up his mind that 

this is what he’s going to do, this is what he’s going to do. I just think he’s 

turned the page on all that.

Mr. Cole had no reason to doubt Attorney’s honesty or integrity, and he would 

have no hesitation about recommending Attorney’s services if Attorney were reinstated. 

Mr. Cole stated that Attorney had “always been sorry about what happened.” Mr. Cole 

stated that Attorney’s reinstatement “would be an act of compassion that’s overdue.”

On questioning by a member of the Panel, Mr. Cole testified that he and Attorney 

“never discussed the facts involved in the offense for which he pleaded guilty.”

Fletcher Haaga, a trust officer with Comerica Bank, testified that he had a long 

professional relationship with Attorney, as well as a friendship. Attorney’s professional 

reputation was “very good.” Mr. Haaga was aware of Attorney’s crime. Asked about 

Attorney’s remorse, Mr. Haaga stated that he believed Attorney was remorseful based on 

Attorney’s “demeanor.” Mr. Haaga added, “[Attorney] has never come out and said I’m 

so sorry for all this, but you could just—in conversations with him, you could just feel 

it.” Mr. Haaga had no concerns about Attorney’s honesty or integrity. Mr. Haaga 

supported Attorney’s reinstatement, stating that he had persons that he wanted to refer to 

Attorney. 

On cross-examination, Mr. Haaga stated that he had heard people say negative 

things about Attorney and that “[c]ommon sense” told him that Attorney’s reputation 

“probably” was negatively impacted by Attorney’s conviction.

On questioning by the Panel, Mr. Haaga stated that he had not discussed the 

details of Attorney’s crime with Attorney.

Frank Holeman, the executive manager of a diabetes treatment clinic, employed 

Attorney for legal business advice beginning in 2003. Attorney’s work was “excellent.” 

Mr. Holeman was aware of Attorney’s crime. After Attorney was released from prison, 

Attorney provided Mr. Holeman with clerical and proofreading assistance for Mr. 

Holeman’s business. Mr. Holeman stated that he had been in touch with Attorney at least 

weekly since Attorney’s release. Mr. Holeman described Attorney as “a man of great 

character.” Mr. Holeman added, “I know his love for the law, and never has he ever said 

anything or done anything that made me think ever that he would compromise what he, 

as an officer of the court, would do.” Mr. Holeman has complete faith in Attorney’s 

honesty and integrity. Asked about whether Attorney was remorseful, Mr. Holeman 
10

answered, “He was crushed. As he looks back at it, he was crushed that he would do 

anything that would jeopardize his professional integrity, that would damage his family.” 

He added, “He’s not sorry because he got caught. He’s sorry because it ever happened in 

the first place.” Mr. Holeman opined that Attorney would never re-offend.

On cross-examination, Mr. Holeman acknowledged that Attorney’s reputation 

“was diminished in the eyes of many people” as a result of his conviction. He added that 

a potential investor in his company declined to invest based on Attorney’s assisting the 

company with its informational materials.

Alva B. Weir, III, M.D., testified that he had been acquainted with Attorney since 

they were children. Dr. Weir corresponded with Attorney during Attorney’s 

incarceration and saw him frequently after Attorney’s release. Dr. Weir hired Attorney to

prepare his manuscripts for submission to an agent. Dr. Weir was familiar with 

Attorney’s conviction and, based on their conversations, knew that Attorney was 

remorseful. He added that, since Attorney’s release, he had “not detected any moral or 

ethical failure” by Attorney. He added that he had “detected no evidence” to suggest that 

Attorney would re-offend. Dr. Weir supported Attorney’s reinstatement on the basis that 

he would “add to the profession without hurting the profession.”

On cross-examination, Dr. Weir acknowledged that Attorney had not told him the 

details of his criminal conduct. 

Henry Robert Heller, III, testified that Attorney had performed legal work for him 

and that they were also friends, having known each other for over thirty years. Mr. 

Heller visited Attorney three times while he was incarcerated and also corresponded with 

Attorney. Mr. Heller had faith in Attorney’s honesty and integrity, both within and 

outside of the attorney-client relationship. Mr. Heller thought that Attorney was 

remorseful for his criminal conduct, but did not supply details supporting this conclusion. 

Based on his “gut feeling,” he did not think Attorney would re-offend. 

On cross-examination, Mr. Heller acknowledged that he did not know the details 

of Attorney’s crimes and that they had not discussed the matter since Attorney’s release.

Charles Howard Davis, Jr., testified that he and Attorney grew up together and that 

Attorney had practiced law with Mr. Davis’ father for a time. Mr. Davis stated that 

Attorney had been his personal and business attorney since 1976. Mr. Davis was aware 

of Attorney’s convictions and visited him several times while Attorney was incarcerated. 

Mr. Davis also corresponded with Attorney. Mr. Davis also has spent time with Attorney 

on numerous occasions since Attorney’s release. Mr. Davis testified that Attorney was 

remorseful for his criminal conduct, stating, “He’s really sorry for what he did.” Mr. 

Davis explained that he knew Attorney was remorseful based on “his actions.” Mr. Davis 

had no doubts about Attorney’s honesty and integrity.
11

On cross-examination, Mr. Davis acknowledged that Attorney’s reputation had 

been damaged by his conviction.

On questions from the Panel, Mr. Davis stated that he did not know the details 

underlying Attorney’s conviction, had not discussed it with Attorney, and did not know 

how Attorney came to possess child pornography.

Eyleen Farmer, associate rector at Calvary Episcopal Church, began her 

association with Attorney at his sentencing when she appeared “as a show of support 

from his faith community.” She corresponded with Attorney while he was incarcerated. 

Attorney rejoined the congregation after he was released. Ms. Farmer considered 

Attorney “a faithful and sincere participant in the church community,” explaining that he 

attended every Sunday. 

On cross-examination, the lawyer representing the BPR asked Ms. Farmer if 

Attorney had “asked for forgiveness from you or the church for his actions.” Ms. Farmer 

responded, “Not in those words that I remember.” In response to a question from the 

Panel, Ms. Farmer explained that Attorney had counseled with one of her male 

colleagues. 

After considering all of the proof, the Panel denied Attorney’s petition in a 

comprehensive nineteen-page written judgment filed on November 30, 2015. The Panel 

concluded that Attorney had failed to prove by clear and convincing evidence that he 

possesses the moral qualifications required to practice law in Tennessee. In particular, 

the Panel found that, 

while [Attorney] called multiple character witnesses who testified as to his 

moral qualifications, the statements were conclusory and unsupported by 

specific facts demonstrating rehabilitation or remorse. Most witnesses had 

minimal contact with [Attorney] following his release from prison, and 

none knew the details of his crimes or conviction beyond what was reported 

in the news. None of the character witnesses were knowledgeable about 

[Attorney’s] treatment or his conduct subsequent to his release from 

incarceration.

The Panel also expressed concern that Attorney had not disclosed his inappropriate 

behavior to his probation officer, noting that “[h]onesty is considered to be a centerpiece 

of good moral character.” The Panel also made an implicit finding adverse to Attorney’s 

credibility.4 As we have recognized, “[t]he Panel is uniquely suited to make credibility 

 

4 The Panel stated that Attorney’s “testimony that he has had a spiritual and emotional change is 

undermined by a number of facts and a failure of proof sufficient to meet his burden” and that his 

“pronouncements since his release from incarceration are inconsistent with his known actions.” 
12

determinations of witnesses.” Culp v. Bd. of Prof’l Responsibility, 407 S.W.3d 201, 208 

(Tenn. 2013).

The Panel further concluded that Attorney’s reinstatement “will be detrimental to 

the integrity and standing of the bar, administration of justice and the public interest.” In 

this regard, the Panel made specific note that Attorney’s crime consisted of the knowing 

receipt and possession of visual depictions of minors engaged in sexually explicit conduct 

in violation of federal law; that Attorney is a registered sex offender; that Attorney is a 

diagnosed pedophile; that Attorney remains on probation with the United States Bureau 

of Prisons until 2022; and that Attorney has been untruthful with, and failed to disclose 

pertinent information to, his probation officer. Stating that any one of these factors 

would be sufficient to support a finding that Attorney’s reinstatement would be 

detrimental, the Panel also set forth the following in support of its conclusion:

[Attorney] is undoubtedly aware and had multiple of his own 

witnesses, including two physicians, testify there is a negative public 

stigma attached to individuals convicted of paraphilia and pedophilia 

offenses. Several of his friends including Mr. Cole, Mr. Haaga and Mr. 

Holeman testified [Attorney] has lost friends, had his reputation damaged 

and will suffer public scorn from his criminal history and conviction. 

Moreover, both Dr. Battle and Dr. Abel testified as to the negative social 

stigma attached to sex offenders and pedophilia/paraphilia patients. Dr. 

Abel testified the general public believes paraphilia patients cannot be 

successfully treated. Even [Attorney] acknowledged during his testimony, 

people are going to hate him just because they know he is a sex offender 

and that is not something that will go away.

On January 7, 2016, thirty-eight days after the Panel filed its judgment, the BPR 

filed its application for costs. On January 28, 2016, the Panel acted on the application, 

filing its findings and judgment for assessment of costs. On March 28, 2016, Attorney 

filed a petition for review of the Panel’s decision with the Chancery Court of Shelby 

County. The BPR answered, and in due course, the chancery court reviewed the record 

of the proceedings before the Panel. The chancery court did not consider any additional 

proof. After hearing argument by the parties, the chancery court issued a twenty-page 

order reversing the Panel’s decision and ordering that Attorney be reinstated to the 

practice of law in Tennessee “subject to the conditions set out by TLAP in the existing 

monitoring agreement5and any additional conditions required by TLAP.” (Footnote 

added). The chancery court determined that the Panel’s conclusion that Attorney lacked 

the moral qualifications to be readmitted to the bar was “unsupported by evidence which 

is both substantial and material in the light of the entire record” and that the Panel’s 

 

5 Attorney entered into a monitoring agreement with TLAP on June 8, 2015, after Dr. Abel 

evaluated Attorney. 
13

conclusion that Attorney’s reinstatement to the practice of law would be detrimental to 

the integrity and standing of the bar, the administration of justice, and the public interest 

was “based solely on the nature of the crime committed and . . . [was] arbitrary and 

capricious and not supported by substantial and material evidence.” The chancery court 

also reversed the Panel’s award of costs to the BPR.

The chancery court’s order was filed on December 15, 2016. On January 11, 

2017, the BPR filed its notice of appeal. We now consider four issues: (1) whether 

Attorney’s petition for review filed with the chancery court was untimely and deprived 

that court of subject-matter jurisdiction; (2) whether the chancery court misapplied the 

correct standard of review and thereby committed reversible error in overruling the 

Panel’s decision; (3) whether the chancery court erred by reversing the Panel’s award of 

costs to the BPR; and (4) whether this Court should consider post-judgment facts 

regarding Attorney’s participation in the TLAP monitoring agreement. 

Subject-Matter Jurisdiction

The BPR contends that the chancery court lacked subject-matter jurisdiction over 

Attorney’s petition for review because Attorney’s petition was filed sixty days after the 

Panel issued its ruling on the BPR’s late-filed application for costs rather than sixty days 

after the Panel’s judgment on the merits. We begin our consideration of this issue with a 

review of the pertinent rules.

Tennessee Supreme Court Rule 9, Section 31.3(a), provides that “[i]n the event 

that a . . . denial of reinstatement results from formal proceedings, Disciplinary Counsel 

shall within fifteen days from the hearing panel’s submission of such judgment . . . make 

application to the hearing panel for the assessment against the . . . petitioning attorney of 

the necessary and reasonable costs of the proceedings . . . .” Tenn. Sup. Ct. R. 9, § 

31.3(a) (2014). The petitioning attorney then has fifteen days within which to submit any 

response in opposition to Disciplinary Counsel’s application. Id. The hearing panel 

thereupon has fifteen days from the date that the petitioning attorney’s response is due in 

which to submit its findings and judgment with respect to Disciplinary Counsel’s 

application. Id. Section 31.3(a) further provides that “[t]he making of an application 

under this Section shall extend the time for taking steps in the regular appellate process 

under Section 33.1(a) unless, upon application of the [BPR] to the Court and for good 

cause shown, the Court orders otherwise.” Significantly, this provision does not refer to 

the making of a timely application. 

Tennessee Supreme Court Rule 9, Section 33, which governs the appeals of 

hearing panel decisions, provides that the party seeking review of a hearing panel 

decision may do so “by filing within sixty days of the date of entry of the hearing panel’s 

judgment a Petition for Review in the circuit or chancery court . . . .” Tenn. Sup. Ct. R. 

9, § 33.1(a). Additionally, Section 33.1(a) provides that “[i]f a timely application for the 
14

assessment of costs is made under Section 31.3(a), the time for appeal for all parties shall 

run from the hearing panel’s submission of its findings and judgment with respect to the 

application for the assessment of costs unless, upon application of the [BPR] to the Court 

and for good cause shown, the Court orders otherwise.” Id.

Finally, Tennessee Supreme Court Rule 9, Section 34.2, provides as follows:

Except as is otherwise provided in this Rule, time is directory and 

not jurisdictional. Time limitations are administrative, not jurisdictional. 

Failure to observe such directory time intervals may result in contempt of 

the agency having jurisdiction but will not justify abatement of any 

disciplinary investigation or proceeding.

Tenn. Sup. Ct. R. 9, § 34.2.

As set forth above, the Panel entered its judgment denying reinstatement on 

November 30, 2015. The BPR filed its application for costs on January 7, 2016, several 

weeks beyond Section 31.3(a)’s fifteen-day deadline of December 15, 2015. Attorney 

had until January 22, 2016, in which to respond to the application but ultimately filed no 

response. The Panel then had fifteen days, or until February 6, 2016, within which to act 

on the application, either by denying it as untimely or by considering it on the merits. 

The Panel chose the latter course and filed its findings and judgment regarding the 

application on January 28, 2016, well within its deadline. Clearly, the Panel did not 

deem the application’s untimeliness as a bar to its consideration. Attorney filed his 

petition for review on March 28, 2016, sixty days after the Panel filed its order awarding 

costs to the BPR.

The BPR raised no issue regarding the timeliness of Attorney’s petition in its 

answer thereto. Nor did the BPR later raise with the chancery court any concerns about 

that court’s subject-matter jurisdiction. Now, however, the BPR argues to this Court that, 

when it missed its own fifteen-day deadline for the filing of an application for costs, it 

simultaneously doomed Attorney to a jurisdictional sixty-day deadline running from the 

Panel’s original judgment for filing his petition for review regardless of the BPR’s latefiled application for costs and the Panel’s subsequent action thereon.

In support of its position, the BPR refers us to two reported cases construing not 

the provisions recited above but rather Tennessee Rule of Appellate Procedure 4 (“Rule 

4”). Rule 4 requires that parties in civil litigation wishing to appeal from a final 

judgment in the trial court must file their notice of appeal within thirty days after the 

judgment appealed from has been entered. Tenn. R. App. P. 4(a). The cases cited by the 

BPR, Ball v. McDowell, 288 S.W.3d 833, 836 (Tenn. 2009), and Binkley v. Medling, 

117 S.W.3d 252, 255 (Tenn. 2003), state that this thirty-day deadline is jurisdictional. 

However, as noted by this Court in Ball, this holding is based, at least in part, on 
15

Tennessee Rule of Appellate Procedure 2 which states explicitly that this thirty-day rule 

applicable in civil cases may not be extended. See Ball, 288 S.W.3d at 836 (citing Tenn. 

R. App. P. 2); see also Tenn. R. App. P. 21(b) (providing that “[f]or good cause shown 

the appellate court may enlarge the time prescribed by these rules or by its order for 

doing any act or may permit an act to be done after the expiration of such time; however, 

the court may not enlarge the time for filing a notice of appeal prescribed in Rule 4”).

We are not persuaded by the BPR’s argument. First, although Tennessee Supreme 

Court Rule 9 explicitly incorporates the Tennessee Rules of Civil Procedure and the 

Tennessee Rules of Evidence in disciplinary case proceedings “[e]xcept as otherwise 

provided in” Rule 9, Tenn. Sup. Ct. R. 9, § 34.3(a), Rule 9 does not incorporate 

wholesale the Tennessee Rules of Appellate Procedure with regard to a party seeking a 

trial court’s review of a disciplinary hearing panel’s judgment. And while Tennessee 

Supreme Court Rule 1 provides that the Tennessee Rules of Appellate Procedure “shall 

govern all matters on appeal before this Court,” “this Court” refers to the Tennessee 

Supreme Court, not the trial court acting as a court of review in a disciplinary matter. 

The BPR’s extensive reliance on the construction of our Rules of Appellate Procedure, 

therefore, is misplaced. 

Second, the provisions of Rule 9, Section 34.2, make clear that time limitations in 

attorney disciplinary proceedings “are administrative, not jurisdictional” unless otherwise 

specifically provided in Rule 9. There is no specific provision in Rule 9 making 

“jurisdictional” the sixty-day time limit for filing a petition for review with a circuit or 

chancery court.6 Cf. Henderson v. Bd. of Prof’l Responsibility, 125 S.W.3d 405, 408–10 

(Tenn. 2003) (relying on the text of former Rule 9, Section 23.2, the predecessor of 

current Rule 9, Section 34.2, to reject a claim that attorney’s late demand for a formal 

hearing deprived the adjudicative body of subject-matter jurisdiction). 

Third, the Panel chose to consider the merits of the BPR’s untimely application for 

costs and, by filing an order granting the application two days before the passage of sixty 

days from the filing of its original judgment, gave Attorney reasonable grounds to believe 

that the application had “extend[ed] the time for taking steps in the regular appellate 

process under Section 33.1(a).” Tenn. Sup. Ct. R. 9, § 31.3(a).

Finally, as a practical matter, we are disinclined to create a loophole by which the 

BPR may choose to delay its filing of an application for costs in order to create confusion 

about the deadline for filing a petition for review. Accordingly, we hold that, if the BPR 

files an application for costs beyond the fifteen-day deadline set forth in Section 31.3(a), 

the late-filed application shall function to extend the time for taking steps in the regular 

 

6 This case does not present the issue of a late-filed petition for review filed in cases in which the 

BPR does not file an application for costs. We do not address that situation in this opinion. 
16

appellate process under Section 33.1(a) to the same extent as if the application had been 

filed timely. 

The BPR argues that this construction of Section 31.3(a) will “cast doubt upon the 

finality of every disciplinary judgment in which no appeal was perfected.” We disagree. 

Our holding does not extend indefinitely the time for filing a petition for review of a 

hearing panel’s decision. Rather, our holding simply recognizes that a late-filed 

application for costs by the BPR will extend the sixty-day deadline for petitions for 

review to the same extent that a timely application would do so. We recognize that our 

construction of Section 31.3(a) effectively renders superfluous the inconsistent reference 

in section 33.1(a) to the extension of time for appeal based on a “timely” application for 

costs. Nevertheless, this conundrum is best solved by the BPR either filing its 

applications timely or recognizing that a late-filed application will extend the time for 

appeal. 

In sum, we hold that the chancery court had subject-matter jurisdiction of 

Attorney’s petition for review. 

Chancery Court’s Application 

of the Standard of Review

This disciplinary proceeding was initiated by Attorney seeking to be reinstated to 

the practice of law in Tennessee after having been disbarred. Accordingly, Attorney had 

the burden of demonstrating by clear and convincing evidence that he possesses “[1] the 

moral qualifications, [2] competency and learning in law required for admission to 

practice law in this state, [and 3] 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.” Tenn. Sup. Ct. R. 9, § 30.4(d)(1). “Clear 

and convincing evidence” is that which “eliminates any serious or substantial doubt 

concerning the correctness of the conclusions to be drawn from the evidence. It should 

produce in the fact-finder’s mind a firm belief or conviction with regard to the truth of the 

allegations sought to be established.” Milligan v. Bd. of Prof’l Responsibility, 301 

S.W.3d 619, 630 (Tenn. 2009) (quoting Hughes v. Bd. of Prof’l Responsibility, 259 

S.W.3d 631, 642 (Tenn. 2008)). In this case, the Panel concluded that Attorney had met 

the second of the three prerequisites for reinstatement but had failed to satisfy his burden 

of proof with respect to his moral qualifications and with respect to demonstrating that 

his reinstatement would not be detrimental to the integrity and standing of the bar, the 

administration of justice, and the public interest.

Upon Attorney’s appeal from the Panel’s adverse decision, the trial court was 

bound to apply the following standard of review:
17

The review shall be on the transcript of the evidence before the 

hearing panel and its findings and judgment. If allegations of irregularities 

in the procedure before the hearing panel are made, the trial court is 

authorized to take such additional proof as may be necessary to resolve 

such allegations. The trial court may, in its discretion, permit discovery on 

appeals limited only to allegations of irregularities in the proceeding. The 

court may affirm the decision of the hearing panel or remand the case for 

further proceedings. The court may reverse or modify the decision if the 

rights of the party filing the Petition for Review have been prejudiced 

because the hearing panel’s findings, inferences, conclusions or decisions 

are: (1) in violation of constitutional or statutory provisions; (2) in excess 

of the hearing panel’s jurisdiction; (3) made upon unlawful procedure; (4) 

arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion; or (5) unsupported by evidence which is 

both substantial and material in the light of the entire record. In 

determining the substantiality of evidence, the court shall take into account 

whatever in the record fairly detracts from its weight, but the court shall not 

substitute its judgment for that of the hearing panel as to the weight of the 

evidence on questions of fact.

Tenn. Sup. Ct. R. 9, § 33.1(b). The BPR contends that, in reversing the Panel’s decision, 

the chancery court erred both by disregarding substantial and material evidence 

supporting the Panel’s decision and by substituting its own judgment for that of the 

Panel’s.

This Court applies the same standard of review as that imposed on the trial court. 

See Long v. Bd. of Prof’l Responsibility, 435 S.W.3d 174, 178 (Tenn. 2014). Thus, we 

must review the Panel’s judgment in light of the record and determine whether the 

chancery court erred by setting aside the Panel’s decision and granting Attorney’s 

petition for reinstatement. Hughes, 259 S.W.3d at 641. “Fundamental to our 

deliberations is that the license to practice law in this state is a privilege, not a right.” Id. 

Moreover, “[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.” Murphy v. Bd. of Prof’l Responsibility, 924 S.W.2d 643, 

647 (Tenn. 1996). 

We have carefully reviewed the entire record in this case, and, contrary to the 

chancery court’s determinations, we hold that the record contains material and substantial 

evidence supporting the Panel’s conclusion that Attorney did not carry his burden of 

proving by clear and convincing evidence that he has the moral qualifications required to 

practice law in Tennessee. We agree with the BPR that the chancery court impermissibly 

engaged in reweighing the evidence in order to overturn the Panel. That is, the chancery 

court misapplied the applicable standard of review. Because, upon the proper application 
18

of the standard of review, the record supports the Panel’s conclusion, we reverse the 

chancery court and reinstate the Panel’s judgment.

Specifically, the record supports the Panel’s concern that Attorney was less than 

entirely honest with his probation officer about his inappropriate activities following his 

release from prison. Additionally, Attorney proffered witnesses to testify about his 

character without providing them with adverse information that might have had a 

negative impact on their assessment of his character, both the details of his criminal 

conduct and a description of his inappropriate conduct following his release from prison. 

While Attorney disclosed his inappropriate activities to the persons conducting his VCAP 

Evaluation and to Dr. Abel, we note that both of these evaluations were sought by 

Attorney not in order to further his treatment but in order to obtain reinstatement. It 

appears that the level of Attorney’s candor depends upon to whom he is speaking and for 

what purpose. 

As noted by the Panel in its judgment, this Court has stated that “[t]he evidence 

necessary to demonstrate that one is morally qualified to practice law in this state requires 

more than conclusory statements; it should also include ‘specific facts and circumstances 

which have arisen since [one’s conviction] that demonstrate either rehabilitation or 

remorse.’” Hughes, 259 S.W.3d at 643 (quoting Murphy, 924 S.W.2d at 647) (alteration 

in original). Attorney failed to adduce sufficient clear and convincing evidence of such 

specific facts and circumstances. Moreover, the Panel’s conclusion that several of 

Attorney’s character witnesses gave conclusory testimony regarding his crime and did 

not express specific knowledge about the underlying facts is supported by substantial and 

material evidence.

Additionally, although Attorney adduced proof of his post-incarceration treatment, 

the VCAP Evaluation concluded that Attorney demonstrated “some factors that likely 

elevate his risk of sexual offending,” including his fantasizing about female children, 

indicating that Attorney was not yet rehabilitated. Although Attorney adduced proof 

from Dr. Abel that he had progressed since the VCAP Evaluation, Attorney told Dr. Abel 

that he no longer was engaging in fantasizing or altering cartoons. The Panel did not find 

Attorney entirely credible, so the Panel had some basis for being somewhat skeptical of 

Dr. Abel’s conclusions about Attorney’s progress to date. 

The record also supports the Panel’s apparent difficulty in accepting at face value 

Attorney’s protestations of remorse because he continued fantasizing about underage 

females after his release from prison and also engaged in cartoon-altering behavior that 

was, in Dr. Abel’s words, “an indirect measure of interest in children.” 

Finally, the record supports the Panel’s concern that Attorney’s withholding of 

information from his probation officer, as well as using his computer for activities that 

Attorney knew might violate the terms of his probation, raised a question about 
19

Attorney’s honesty, an attribute that the Panel properly noted is “a centerpiece of good 

moral character.” Milligan, 301 SW.3d at 631 (citing Schware v. Bd. of Bar Exam’rs, 

353 U.S. 232 (1957) (Frankfurter, J., concurring)).

In sum, we hold that the Panel’s conclusion that Attorney failed to carry his heavy 

burden of proving his moral qualifications to be reinstated was supported by substantial 

and material evidence. The chancery court erred in concluding otherwise. Because 

Attorney’s failure to prove his moral qualifications was fatal to his effort to be reinstated,

we need not consider the correctness of the Panel’s conclusion regarding the impact of 

Attorney’s reinstatement on the integrity and standing of the bar, the administration of 

justice, and the public interest.

Costs Awarded to BPR by Panel

As set forth above, although the BPR filed its application for costs weeks after the 

deadline for doing so, the Panel nevertheless considered the application and awarded the 

requested costs to the BPR. The chancery court reversed the Panel’s award of costs 

solely on the basis that the application was late-filed. The BPR contends in this Court 

that, because Attorney never voiced any objection to the untimeliness of the BPR’s 

application, the chancery court’s “intervention on this issue was inappropriate and 

improper.”

We reject the BPR’s attempt to use its own missed deadline as both weapon and 

shield. However, we also disagree with Attorney that “[t]he assessment of costs to the 

[BPR] is only appropriate where the [BPR] is the prevailing party” and that, therefore, the 

chancery court’s reversal of costs was warranted because the chancery court reversed the 

Panel on the merits. In support of this proposition, Attorney cites to Tennessee Supreme 

Court Rule 9, Section 31.3(a). Contrary to Attorney’s assertion, Section 31.3(a) provides 

that the BPR shall seek costs even when the result of the formal proceeding is 

reinstatement. Tenn. Sup. Ct. R. 9, § 31.3(a). Moreover, it is the attorney’s burden to 

prove by a preponderance of the evidence that the costs sought by the BPR are 

unnecessary or unreasonable. Id. Clearly, the purpose of Section 31.3(a) is to allow the 

BPR to recover its reasonable costs in defending the integrity of the Tennessee bar. That 

the BPR may occasionally lose a quest to prevent a disbarred lawyer from being 

reinstated should not prevent the BPR from recovering the reasonable costs it incurs by 

undertaking the quest.

The BPR’s failure to timely file its application for costs in this matter, however, 

should not result in the forfeiture of its award, particularly in light of Attorney’s failure to 

object to the late filing. The Panel reviewed the application and, in due course, awarded 

the amount requested. There is no suggestion that the award was unnecessary or 

unreasonable, the two grounds provided by Rule 9, Section 31.3(a), for objections on the 
20

merits. Accordingly, we reverse the chancery court’s decision regarding the award of 

costs and reinstate the Panel’s order granting costs.

The BPR’s Request that Post-Judgment Facts be Considered

The BPR has asked this Court to consider certain facts regarding a monitoring 

agreement that Attorney entered into with TLAP, which facts are based on conduct that 

occurred after the hearing before the Panel. The BPR asks that we consider these postjudgment facts as additional support for the Panel’s decision to deny reinstatement. 

Because we have concluded that the Panel’s decision must be reinstated on the record 

before us, this issue is moot. Accordingly, we decline to address it. See State v. Phelps, 

329 S.W.3d 436, 451 (Tenn. 2010). 

Conclusion

The chancery court impermissibly reweighed the evidence in the record before it. 

Because the chancery court’s judgment was based on an impermissible reweighing of the 

evidence, and because substantial and material proof supported the Panel’s conclusion 

that Attorney had failed to prove by clear and convincing evidence his moral 

qualifications for reinstatement, we reverse the chancery court’s ruling and reinstate the 

Panel’s judgment, including its award of costs to the BPR. The costs of this cause are 

assessed to Attorney.

___________________________________________

JEFFREY S. BIVINS, CHIEF JUSTICE