### IN THE SUPREME COU RT OF TEN NESSEE
AT KNOX VILLE Sep te m be r 3, 2 00 9 S es si on

JAME S L. MI LLI GAN, JR. v . BOARD OF PROFESSI ONAL
RESPONSI BI LI TY OF THE SUPREME COURT OF TE NNESSEE

Direc t Appeal from the Chancer y Court for K nox Coun ty
No. 171621-2 Jon K err y Blackw ood, Seni or Judge

No. E2008-02692-SC-R3- BP - F iled Dece m ber 8, 2009

I n this direc t appea l, the issue prese nted i s wh ether the trial court proper ly aff irmed a Boa

rd of
Professional Responsibili ty hear ing panel’ s denial o f a s uspended attorney ’s petition for
reinstateme nt of his law l i ce n s e. T h e trial court aff irmed the hear ing panel’ s decision that the
attorney failed to prese nt sufficie nt proof of his moral qualifica tions to prac tice law in this state and
that h i s reinstateme nt will not be detrimental to the integ rity and standing of the bar or the
administration of justice or subversive to the public interest. After revie wing the entire rec ord, we hold that the attorney failed to prese nt sufficie nt evidenc e that he has the m o ra l q u al i fi cations to

p rac tice law in this state and that his reinstateme nt will be not detrimental to the i n t egr i t y an d standing of the bar or the administration of justice or subversive to the public interest. Acc ording ly

, the judg ment of the trial c ourt deny ing the petition for re instatement is affir med.

Tenn. S up. Ct. R. 9 § 1.3 Direc t Appeal; Judgme nt of th e Chancer y Court Affi rm ed

S H A R O N G. L E E , J

., delivere d the opinion of the court, in which J A N I C E M. H O L D E R , C.J

., C O R N E L I A A. C L A R K , G A R Y R. W A D E , and W I L L I A M C. K O C H , J R ., J J ., joined.

Ronald L . Grimm, Knox ville, Tennesse e, for the appe llant, J ames L . Milli g an, Jr.

Sandy Gar rett, Na shville, Tennessee , for the appellee , Boa rd of Profe ssional Responsibil ity of the Supreme Court of Te nnessee

.OP INION

F actual and Proc edural Backgroun d

After rec eiving his law li cense in 1975, J ames L . Milli g an, Jr. eng ag ed in a primarily civil

prac tice. I n 1995, he started the law firm of Milli g an and Associates and was employ ed there until
his license was suspended in 2005. Milli g an has had a leng thy involvem ent with the Boa rd of
Professional Responsibili ty (“the Boa rd”)

, as is evident from the following ac co u n t of events

prec eding and subseque nt to his sus pension.

I n 1987, Milli g an was privately admonis h ed b y t h e Boa rd based on a client complaint.
There afte r, in 1994, this Court publicly censur ed Milli gan and order ed that he be monitored by
another attorney for two y ear s for violations of Tenne ssee Supreme Court Rule 8, Disciplinary Rule (“D R”) 1-102(A) (5)

, DR 6-101(A)

, and DR 7-101(A)

, upon finding s that beca use he maintained 1 2 3

D R 1

- 1 0 2 ( A ) ( 5 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t “ [ e ] n g a g e i n c o n d u c t t h a t i s p r e j u d i c i a l t o t h e 1

a d m i n i s t r a t i o n o f j u s t i c e

. ”

I n r e l e v a n t p a r t

, D R 6

- 1 0 1 ( A ) ( 1 9 9 4 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t : 2

A l a w y e r s h a l l n o t :

( 1 ) H a n d l e a l e g a l m a t t e r w h i c h h e k n o w s o r s h o u l d k n o w t h a t h e i s n o t c o m p e t e n t

t o h a n d l e , w i t h o u t a s s o c i a t i n g w i t h h i m a l a w y e r w h o i s c o m p e t e n t t o h a n d l e i t

. ( 2 ) H a n d l e a l e g a l m a t t e r w i t h o u t p r e p a r a t i o n a d e q u a t e i n t h e c i r c u m s t a n c e s

. ( 3 ) N e g l e c t a l e g a l m a t t e r e n t r u s t e d t o h i m

.

D R 7

- 1 0 1 ( A ) ( 1 9 9 4 ) p r o v i d e d : 3

( 1 ) A l a w y e r s h a l l a c t w i t h r e a s o n a b l e d i l i g e n c e a n d p r o m p t n e s s i n r e p r e s e n t i n g a

c l i e n t

. ( 2 ) A l a w y e r s h a l l k e e p a c l i e n t r e a s o n a b l y i n f o r m e d a b o u t t h e s t a t u s o f a m a t t e r a n d

p r o m p t l y c o m p l y w i t h r e a s o n a b l e r e q u e s t s f o r c o m m u n i c a t i o n o r i n f o r m a t i o n

. ( 3 ) A l a w y e r s h a l l e x p l a i n a m a t t e r t o t h e e x t e n t r e a s o n a b l y n e c e s s a r y t o p e r m i t t h e

c l i e n t t o m a k e i n f

o r m e d d e c i s i o n s r e g a r d i n g t h e r e p r e s e n t a t i o n

. ( 4 ) A l a w y e r s h a l l n o t i n t e n t i o n a l l y : ( a ) F a i l t o s e e k t h e l a w f u l o b j e c t i v e s o f h i s c l i e n t t h r o u g h

r e a s o n a b l y a v a i l a b l e m e a n s p e r m i t t e d b y l a w a n d t h e
D i s c i p l i n a r y R u l e s , e x c e p t a s p r o v i d e d b y D R 7

- 1 0 1 ( B )

. A

l a w y e r d o e s n o t v i o l a t e t h i s D i s c i p l i n a r y R u l e , h o w e v e r , b y

a c c e d i n g t o r e a s o n a b l e r e q u e s t s o f o p p o s i n g c o u n s e l w h i c h d o

n o t p r e j u d i c e t h e r i g h t s o f h i s c l i e n t

, b y b e i n g p u n c t u a l i n f u l f i l l i n g a l l p r o f

e s s i o n a l c o m m i t m e n t s , b y a v o i d i n g o f f e n s i v e

t a c t i c s , o r b y t r e a t i n g w i t h c o u r t e s y a n d c o n s i d e r a t i o n a l l p e r s o n s i n v o l v e d i n t h e l e g a l p r o c e s s

. ( b ) F a i l t o c a r r y o u t a c o n t r a c t o f e m p l o y m e n t e n t e r e d i n t o w i t h

a c l i e n t f

o r p r o f e s s i o n a l s e r v i c e s , b u t h e m a y w i t h d r a w a s

p e r m i t t e d u n d e r D R 2

- 1 1 0

, D R 5

- 1 0 2

, a n d D R 5

- 1 0 5

. ( c ) P r e j u d i c e o r d a m a g e h i s c l i e n t d u r i n g t h e c o u r s e o f t h e

2an exces sive number of case s, he was unable to adequately repr esent and communicate with his

clients or conduct a proper investiga tion befor e filing lawsuits. I n 1995, Milli g an rec eived a public
admonition as the result of a complaint by anot h er client. After these incidents, three complaints

wer e filed w ith the Boa

rd which r esulted in the suspension of Milliga n’s license

.

The first of these three complaints, filed November 30, 1999, alleg ed that Milli g an wrote a commission chec k in the amount o f $ 2 16.67 from his client trust acc ount to his then-a ssociate,
attorney G. Turner Howar d, and that the bank dishonored the chec k beca use there wer e insufficient
funds in the acc ount. A second co m p l ai n t

, filed April 25, 2000, alleg ed that Milli g an settled a

persona l injury claim arising o u t o f an automobile acc ident on behalf of his client Ker ry J ohnson
without consulting J ohnson, that he forg ed J ohnson’s signa ture on the settlement chec k and a claim
rele ase, that he had a notary falsely notarize the rele ase, and that he deposited the settlement funds totaling $16,000 in his own personal a ccount. B ased upon the se two complaints and prompted by
the Boa rd’s petition, this Court, on May 5, 2 0 0 0

, order ed the temporar y suspension of Milli g an’s
license. U

pon petition by Milli g an, we order ed the reinstateme nt of hi s license on J une 19, 2000, pending a full disciplinary hear ing and conditioned upon h i s retention of Terr y Hall, a cer

tified public acc ountant, to monitor the financ es of his law prac tice and upon his further rete ntion of L eroy Bible, a cer tified fra ud examiner, to conduct a revie w of his law of

fice acc ounts.

On Aug ust 17, 2000, the Boa rd filed a petition for discipline ag ainst Milli g an asser ting the substance of the complaints of Nove mber 30, 1999, a nd April 25, 2000. On Aug ust 23, 2001, the

Boa rd filed a supplemental petition for discipline to also include matters in an additional complaint lodge d ag ainst Milli g an on May 22, 2001, wher ein it was alleg ed that Bible’ s audit of the acc ounts of Milli g an’s firm, including the client trust a ccount, had reve aled financ ial improprieties and that
Milli g an had not c oopera ted with the audit.

The Boar d’s hearing panel c ommitt ee ( “the Pane l”), after a full disciplinary hear ing, ruled
that Milli g an had v i o l ated numerous disciplinary rules. Specifica lly

, with reg ard to the matters alleg ed in the complaint of November 30, 1999, the Panel found that Milli g an misappropriate d funds by writing the che ck fo r i n s u fficie nt funds to his associate Howar d and there by violated DR 1-
1 0 2 (A )(4)

, (5) and (6) and DR 9-102(B )(3)

. Wit h reg ard to the April 25, 2000 compl ai n t

, t h e

4 5 6

p r o f e s s i o n a l r e l a t i o n s h i p , e x c e p t a s r e q u i r e d u n d e r D R 7

- 1 0 2 ( B )

.

D R 1

- 1 0 2 ( A ) ( 4 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t “ [ e ] n g a g e i n c o n d u c t i n v o l v i n g d i s h o n e s t y , f r a u d

, 4

d e c e i t

, o r m i s r e p r e s e n t a t i o n

. ”

D R 1

- 1 0 2 ( A ) ( 6 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t “ [ e ] n g a g e i n a n y o t h e r c o n d u c t t h a t a d v e r s e l y r e f l e c t s 5

o n h i s f i t n e s s t o p r a c t i c e l a w

. ”

D R 9

- 1 0 2 ( B ) ( 3 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l “ [ m ] a i n t a i n c o m p l e t e r e c o r d s o f a l l f u n d s , s e c u r i t i e s a n d 6

o t h e r p r o p e r t i e s o f a c l i e n t c o m i n g i n t o t h e p o s s e s s i o n o f t h e l a w y e r a n d r e n d e r a p p r o p r i a t e a c c o u n t s t o t h e c l i e n t

r e g a r d i n g t h e m

. ”

3Panel found that Milli g an settled J ohnson’s person al i n j u ry claim without J ohnson’s prior authorization, that h e fo rge d t he signa tures of J ohnson and J ohnson’s wife on the back of the
settlement chec k, that he forg ed the J ohnso n s’ signa tures on the rele ase document tender ed by
defe nse counsel, that he had a notary employ ed in his office false l y notarize the forge d signa tures

on the rele ase docum en t

, and that he deposited the settlement chec k in his own persona l bank

acc ount, there by commingling his client’s funds with his persona l funds. The Panel also found that
in an eff ort to conce al his misconduct, Mil l i gan later procur ed false aff idavits from the J ohnsons
indicatin g that they had approve d the settlement of their claim in the amount of $16,000 and had approved M i l liga

n’s endorse ment of the settlement draf t and rele ase document. The Panel also
found that when Milli g an distributed the settlement proce eds, no medical or litigation expenses wer e deduct ed

. T h e P anel found that these actions by Milli g an in his repr esenta tion of the J ohnsons
violated DR 1-102(A) (3), (4), (5), and (6); DR 7-102(A) (3), (4), (5), (6), and (7); and DR 9- 7 8 9 1 0 1 1 1 2 102(A) and (B ). W i t h re g ard to the third complaint of May 22, 2001, based upon the fra ud 1 3 1 4

D R 1

- 1 0 2 ( A ) ( 3 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t “ [ e ] n g a g e i n i l l e g a l c o n d u c t i n v o l v i n g m o r a l 7

t u r p i t u d e

. ”

D R 7

- 1 0 2 ( A ) ( 3 ) ( 2 0 0 2 ) p r o v i d e d t h a t i n t h e r e p r e s e n t a t i o n o f a c l i e n t

, a l a w y e r s h a l l n o t “ [ c ] o n c e a l o r

8

k n o w i n g l y f

a i l t o d i s c l o s e t h a t w h i c h t h e l a w y e r i s r e q u i r e d b y l a w t o r e v e a l

. ”

D R 7

- 1 0 2 ( A ) ( 4 ) ( 2 0 0 2 ) p r o v i d e d t h a t i n t h e r e p r e s e n t a t i o n o f a c l i e n t

, a l a w y e r s h a l l n o t “ [ k ] n o w i n g l y u s e 9

p e r j u r e d t e s t i m o n y o r f

a l s e e v i d e n c e

. ”

D R 7

- 1 0 2 ( A ) ( 5 ) ( 2 0 0 2 ) p r o v i d e d t h a t i n t h e r e p r e s e n t a t i o n o f a c l i e n t

, a l a w y e r s h a l l n o t “ [ k ] n o w i n g l y m a k e 1 0

a f a l s e s t a t e m e n t o f l a w o r f a c t

. ”

D R 7

- 1 0 2 ( A ) ( 6 ) ( 2 0 0 2 ) p r o v i d e d t h a t i n t h e r e p r e s e n t a t i o n o f a c l i e n t

, a l a w y e r s h a l l n o t “ [ p ] a r t i c i p a t e i n 1 1

t h e c r e a t i o n o r p r e s e r v a t i o n o f e v i d e n c e w h e n t h e l a w y e r k n o w s o r i t i s o b v i o u s t h a t t h e e v i d e n c e i s f a l s e

. ”

D R 7

- 1 0 2 ( A ) ( 7 ) ( 2 0 0 2 ) p r o v i d e d t h a t i n t h e r e p r e s e n t a t i o n o f a c l i e n t

, a l a w y e r s h a l l n o t “ [ c ] o u n s e l o r a s s i s t 1 2

t h e c l i e n t i n c o n d u c t t h a t t h e l a w y e r k n o w s t o b e i l l e g a l o r f r a u d u l e n t

. ”

I n p e r t i n e n t p a r t

, D R 9

- 1 0 2 ( A ) ( 2 0 0 2 ) p r o v i d e d : “ A l l f u n d s o f c l i e n t s p a i d t o a l a w y e r o r l a w f i r m , i n c l u d i n g 1 3

a d v a n c e s f

o r c o s t s a n d e x p e n s e s , s h a l l b e d e p o s i t e d i n o n e o r m o r e i d e n t i f i a b l e i n s u r e d d e p o s i t o r y i n s t i t u t i o n s m a i n t a i n e d

i n t h e s t a t e i n w h i c h t h e l a w o f f i c e i s s i t u a t e d

. ”

D R 9

- 1 0 2 ( B ) ( 2 0 0 2 ) p r o v i d e d : 1 4

A l a w y e r s h a l l :

( 1 ) P r o m p t l y n o t i f

y a c l i e n t o f t h e r e c e i p t o f t h e c l i e n t ’ s f u n d s , s e c u r i t i e s , o r o t h e r

p r o p e r t i e s ;

( 2 ) I d e n t i f

y a n d l a b e l s e c u r i t i e s a n d p r o p e r t i e s o f a c l i e n t p r o m p t l y u p o n r e c e i p t a n d

p l a c e t h e m i n a s a f

e d e p o s i t b o x o r o t h e r p l a c e o f s a f e k e e p i n g a s s o o n a s

p r a c t i c a b l e ;

( 3 ) M a i n t a i n c o m p l e t e r e c o r d s o f a l l f u n d s , s e c u r i t i e s a n d o t h e r p r o p e r t i e s o f a c l i e n t

4examiner’s audit, the Panel found that during 1999, Milli g an overdr ew client trust acc ounts on at

le a st twenty -four occa sions and on thirty -two separ ate occa sions withdrew funds from the client trus t

acc ount in cases pr ior to the deposit of ca se settlement proc eeds. The Pane l also noted Milligan’ s admission that he rec eived pay ment of attorney ’s fees i n case s wher e settl ement procee ds had not

y et been rec eived and that he deducte d arbitra ry char g es for “wor d proce ssin g, p hotocopy

, communications, etc.” from client share s of settlement proce eds. Finally

, the Panel found that the
examiner’s repor

t de monstrated that Milli g an failed to maintain adequa te re cords a nd an adequate

acc ounting sy stem and that Milli g an had deposited set t l ement proce eds into acc ounts other than
client trust acc ounts, including his own persona l chec king acc ount. Ba sed upon these finding s, the
Panel ruled that Milli g an violated DR 1-102(A) (1), (4), (5 ), an d (6); DR 2-106(A) ; DR 7- 1 5 1 6 101(A)( 4)(b) and (c ); and DR 9-102( A)(2) and (B )(3)

.

1 7 1 8 1 9 2 0

I n deter mining an appropr iate sanction, the Panel considere d as ag g rava ting circ umstances the admonitions Milli g an rec eived in 1987 and 1995, the public censur e he re ce i v ed in 1994, his
failure to comply with the acc ounting proce dure rec ommendations of a Tenne ssee Ba r Association
law prac tice manag ement consul t an t wh o supervised Milli g an in 1999, and his failure to fully

cooper ate with cer

tified fra ud examiner Bible. I n mitigation, the Panel considere d that Milli g an had

c o m i n g i n t o t h e p o s s e s s i o n o f t h e l a w y e r a n d r e n d e r a p p r o p r i a t e a c c o u n t s t o t h e l a w y e r r e g a r d i n g t h e m ;

( 4 ) P r o m p t l y p a y o r d e l i v e r t o t h e c l i e n t a s r e q u e s t e d b y a c l i e n t t h e f u n d s , s e c u r i t i e s

o r o t h e r p r o p e r t i e s i n t h e p o s s e s s i o n o f t h e l a w y e r w h i c h t h e c l i e n t i s e n t i t l e d t o

r e c e i v e

.

D R 1

- 1 0 2 ( A ) ( 1 ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t “ [ v ] i o l a t e a d i s c i p l i n a r y r u l e

. ” 1 5

D R 2

- 1 0 6 ( A ) ( 2 0 0 2 ) p r o v i d e d : “ A l a w y e r s h a l l n o t e n t e r i n t o a n a g r e e m e n t f o r , c h a r g e , o r c o l l e c t a n i l l e g a l 1 6

o r c l e a r l y e x c e s s i v e f

e e

. ”

D R 7

- 1 0 1 ( A ) ( 4 ) ( b ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t i n t e n t i o n a l l y “ [ f ] a i l t o c a r r y o u t a c o n t r a c t o f 1 7

e m p l o y m e n t e n t e r e d i n t o w i t h a c l i e n t f o r p r o f e s s i o n a l s e r v i c e s , b u t a l a w y e r m a y w i t h d r a w a s p e r m i t t e d u n d e r D R 2

- 1 1 0

, D R 5

- 1 0 2

, a n d D R 5

- 1 0 5

. ”

D R 7

- 1 0 1 ( A ) ( 4 ) ( c ) ( 2 0 0 2 ) p r o v i d e d t h a t a l a w y e r s h a l l n o t i n t e n t i o n a l l y “ [ p ] r e j u d i c e o r d a m a g e t h e c l i e n t 1 8

d u r i n g t h e c o u r s e o f t h e p r o f e s s i o n a l r e l a t i o n s h i p , e x c e p t a s r e q u i r e d u n d e r D R 7

- 1 0 2 ( B )

. ”

D R 9

- 1 0 2 ( A ) ( 2 ) ( 2 0 0 2 ) p r o v i d e d : 1 9

F u n d s b e l o n g i n g i n p a r t t o a c l i e n t a n d i n p a r t p r e s e n t l y o r p o t e n t i a l l y t o t h e l a w y e r

o r l a w f i r m m u s t b e d e p o s i t e d [ i n a n i d e n t i f i a b l e i n s u r e d d e p o s i t o r y i n s t i t u t i o n

m a i n t a i n e d i n t h e s t a t e i n w h i c h t h e l a w o f f i c e i s s i t u a t e d ]

, b u t t h e p o r t i o n b e l o n g i n g

t o t h e l a w y e r o r l a w f

i r m m a y b e w i t h d r a w n w h e n d u e u n l e s s t h e r i g h t o f t h e l a w y e r

o r l a w f i r m t o r e c e i v e i t i s d i s p u t e d b y t h e c l i e n t

, i n w h i c h e v e n t t h e d i s p u t e d

p o r t i o n s h a l l n o t b e w i t h d r a w n u n t i l t h e d i s p u t e i s f i n a l l y r e s o l v e d

.

S e e f o o t n o t e 1 4

. 2 0

5cover ed the chec ks returne d for insufficient funds and that no individual had lost money as a result

of Milli g an’s offe nses. Upon consideration of all of the rec ited disciplinary rule violations and the
noted ag g rava ting and mitigating circ umstances, the Panel ruled that Milli g an be disbarre d from the

prac tice of la

w.

M i l l i gan appea led the Panel’s decision to the Knox County Chance ry Court. Upon it s independe nt assessment of the evidenc e, in J une of 2004, the Chance ry Court ruled that the sanction imposed by the Boa

rd was excessive. Wit h reg ard to t h e i n s u ff i ci ent funds chec k that Milli g an issued to his associate Howar d, the Chance ry Court noted t h at t h e Boa rd was advised of this
infrac tion by letter from Howar d “in consultation with Mr. Milli g an,” and that Howar d stated in the
letter that he had not been familiar with the bank’ s p ro ce d u re with respe ct to the amount of time
chec ks wer e held, that he (Howa rd) acc epted full respons i bility for not having made sufficie nt inquiry

, and that since the incident, Milli g an’s firm had implemented “a v i g orous fail-sa fe

proce dure.” Contrary to the decision of the Pane l, the Chance ry Court c oncluded that the Howar d

matter did not involve dishonesty

, fra ud or dece it, was “de mini m i s ” an d “nee d not be further
noticed.”

Wit h regard t o t h e J ohnson matter, the Chance ry Court noted that afte r Milli g an filed the

persona l injury action on behalf of J ohnson, J ohnson advised him that he was ab o u t to be
incar cer ated for arson and drug possession. The court noted Milli g an’s testimony that J ohnson had
authorized Milli g an to use his discretion in settling the claim during his incar cer ation and had further
authorized him to execute any documents nece ssary to the settlement and to rec eive any settlement

proce eds and trea t such proce eds as his (Milligan’ s ) own, to be paid to J ohnson upon his rele ase from prison with inter est. The court found that the $16,000 settlement neg otiated by Milli g an was within the rang e previously ag ree d to by J ohnson; that while J ohnson was in prison, Milli g an had
advised him that the case was g oing to be settled; that after h is rele ase, J ohnson voiced his
satisfac tion with the settlement; and t h at later when Milli g an paid J ohnson his portion of the
settlement proce eds, both J ohnson and his wife executed aff idavits attesting that Milli g an had been

g iven full approva l to settle the case for a rea sonable amount, to execute a rele ase, to endorse th e settlement chec k, and to utiliz e the settlement funds as his own until J ohnson’s rele ase from prison.
The court acknow ledg ed that by subsequent aff idavit, J ohnson rec anted these avowa ls, claiming that
he had not r ead the prior aff idavit; however , the court found that this re canta tion wa s not c redible, noting inconsistencies in J ohnson’s testimony as to whether he had rea d t h e fi rs t affidavit befor e executing it. I n sum, the Chance ry Court found Milli g an’s conduct in reg ards to the J ohnson matter

to be “unconve ntional,” “troublesome” and “a dumb and stupid thing to do,” but conclude d that “it

was a n isolated eve nt, [ and] there wa s no pattern of simil ar c onduct.”

Next, t h e C hance ry Court addre ssed infrac tions attributed to Milli g an by fra ud examiner
Bible in connec tion with Bible’ s audit of Milli g an’s law office financ es. The court noted that Bible’ s audit only cover ed t h e y ear 1999. The court considere d the testimony of Terr y Hall, the cer

tified public acc ountant appointed by the S upreme Court to oversee Milli g an’s office manag er, who we had, in turn, desig nated to supervise Milli g an’s trust acc ount. The court also considere d an audit of
Milli g an’s financ es by another cer tified public acc ountant, J ames L loy d, whose testimon y was

6appar ently befor e the Chance ry Court but not befor e the Panel. Ba sed upon L loy d’s testimony and 2 1

Hall’s audit, the court conclude d that the audit repor t criticizing Milli g an’s acc ounting prac tices was incomplete and misrepre sented Milliga n’s ac counting rec ords. The court found t hat as a result of

Ha l l’s investiga tion and testimony

, “most of the questions raised by Mr. Bible’ s repor t we re

ex p l ai n ed an d many of his neg ative conclusions corr ecte d.” The court observe d that DR 2-106,
which prohibits an attorney from char g ing an illega l or excessive fee

, was cited as having been
violated without specific ation as to how the rule was violated. The court further observe d that while
the rule t h at ad d re s s es the need of prese rving the identity of a client’s funds “wa s violated on

occa sion[ ,]

. . . . [t ]he majority of these violations wer e corr ecte d.” The court stated that “all of the CPAs agr ee tha t Mill iga

n neve r misappropriate d clients’ funds and a ll of his clients rece ived their

proper remittance s

. ” The court also discounted two matters that the Panel had relied on as
ag g rava ting ci rc umstances, Milli g an’s alleg ed failure to comply with acc ounting proce dure

rec ommendation s o f the Tenne ssee Ba r Association law prac tice manag ement consultant who supervised Milli g an in 1999, and his alleg ed failure to fully cooper ate with cer tified fra ud examiner
Bible. The court found little in the re cord to support e ither of these alleg ations.

I n summary , the Chance ry Court found that Milli g an reg retted his err ors in judgme nt and had
ref ormed his office proce dures. The Chance ry Court ref ere nced our suspension of Milli g an’s license
i n M ay of 2000, and observe d that the resulting publicity and loss of clients had cost M i l l i gan “a

g rea t deal of mone y ” and tha t Mill iga n had also incur

red the expense of modify ing his a ccounting

proce dures and the expense associate d with the investiga tion of his trust acc ounts by Bible. Ba sed

upon these finding s, the additional finding that since 1999 there had been no other offe nses, and the presumption that hence forth Milli g an’s “t rust proce dures will be in strict compliance with the Rules,” the Chance ry Court ruled that further suspension was not war rante d and that public censur e was the a ppropriate sanction.

The Boa rd appea led the Chance ry Court’s decision to this Court, arg uing that the Chance ry Court err ed in concluding (1) that Milli g an did not misappropriate funds; (2) that Milli g an’s use of

J ohnson’s funds for

persona l purposes wa s not a serious disciplinary violation; and ( 3) that public

censur e was the appropr iate sanction for Milli g an’s actions. See Milli g an v. Bd. of Prof’l Responsibili ty , 166 S.W .3d 665, 671 (Tenn. 2005)

.

As to the insufficient funds che ck M i l l i gan wrote to Howar d, we noted that funds for

pay ment should have been in the client trust acc ount befor e any disbursemen ts wer e made, and,
there fore

, we deter

mined that Milli g an’s actions constituted a misappropriation of fu n d s , and a violation of DR 1-102(A) (1), ( 4), (5) , and (6) ; and DR 9-102(B )(3)

.

A t t h e t i m e o f t h e C h a n c e r y C o u r t h e a r i n g , s e c t i o n 1

. 3 o f T e n n e s s e e S u p r e m e C o u r t R u l e 9 p r o v i d e d t h a t t h e 2 1

t r i a l c o u r t ’ s r e v i e w “ s h a l l b e o n t h e t r a n s c r i p t o f t h e e v i d e n c e b e f o r e t h e h e a r i n g c o m m i t t e e , i t s f i n d i n g s a n d j u d g m e n t

a n d u p o n s u c h o t h e r p r o o

f a s e i t h e r p a r t

y m a y d e s i r e t o i n t r o d u c e

. ” T e n n

. S u p

. C t

. R

. 9

, § 1

. 3 ( 2 0 0 5 )

. T h e c u r r e n t

s t a n d a r d l i m i t s t h e t r i a l c o u r t ’ s r e v i e w t o t h e t r a n s c r i p t o f t h e e v i d e n c e t h a t w a s b e f o r e t h e h e a r i n g p a n e l

, a n d t h e t r i a l

c o u r t m a y t a k e a d d i t i o n a l p r o o f o n l y a s n e c e s s a r y t o r e s o l v e a l l e g a t i o n s t h a t t h e h e a r i n g p a n e l e n g a g e d i n i r r e g u l a r

p r o c e d u r e

. T e n n

. S u p

. C t

. R

. 9

, § 1

. 3 ( 2 0 0 7 )

.

7Wit h reg ard to the J ohnson matter, we deter mined that Milli g an’s signing of the J ohnsons’

names to the rele ase, whether or not he had their permission to do so, and his instructing a notary to falsely notarize their signa tures involved dishonesty

, fra ud, dece it, or misrepre sentation in violation
of DR 1-102(A) (4), DR 1-102(A) (5), and DR 1-102(A) (6). W e pronounced these violations to be
“ver y serious and ind i ca t i v e of conduct that should not and will not be tolerate d.” Milli g an, 166
S.W .3d at 672.

Finally

, with respe ct to tho s e m at t ers rela ted to the audit of Milli g an’s financ es by fra ud investiga t o r Bible, we found that it was established that Milli g an had overdr awn his client trust

acc ount on at least twenty -four occa sions during 1999, that he had used client fund s b ef o re settlement proce eds had been deposited in the client trust acc ount, and that he had deposited client
funds i n acc ounts other than the client trust ac count, one of which wa s his own personal c hecking

acc ount. We noted that in one instance, Milli g an settled a client’s case for $50,000 on May 7, 1999,
and deposited the proce eds in his trust acc ount on the same day

. Milli g an disbursed $29,924.21 to the client on May

28, 2002; however , betwee n May 7, 1999, and May 28, 2002, the balanc e in the

trust ac co u n t had dipped below $29,924.21 and from May 8, 1999, throug h Dec ember 31, 1999,
Milli g an had incurre d $766 in overdr aft char g es on the acc ount. Upon these finding s, we conclude d
that Milli g an misappropriate d funds in violation of DR 1-102(A) (1), (4), (5), and (6); DR 2-106(A) ; DR 7-101(A) (4)( b) and (c) ; and DR 9-102(A) (2) and (B )(3)

. I n arr iving at an appropr iate sanction,

we co n s i d er ed as ag g rava ting fac tors that Milli g an was admonished privately in 1987, publicly

censur ed in 1994, and publicly admonished in 1995. We also considere d as an ag g rava ting f actor that in 1999, the Boa

rd require d Milli g an to consult with a Tenne ssee Ba r Association law prac tice

manag ement consultant who advised Milli g an that he should make cer tain chang es in his acc ounting

proce dures and that Milli g an failed to implement these rec ommended chang es. We deter mined that
the evidenc e was insufficient to support the char g e that Milli g an had failed to cooper ate with fra ud investiga tor Bible, and thus, that was not considere d as an ag g rava ting fac tor. As mitigating fac tors,

we c onsidered tha t Mill iga n ultimately

cover ed the c hecks returne d for insufficient funds and tha t there was no proof that any individual suffe red a loss of funds as a result of Milli g an’s actions. Ba sed

upon Milli g an’s infrac tions, the ag g rava ting and mitigating fac tors, rele vant case law, and the rec ord

as a whole, we conclude d that it was appropr iate that Milli g an be suspended from the prac tice of law
for a period of two y ear s and pay the costs of the disciplinary hear ing. Our opinion was rele ased on J une 28, 2005.

On J une 18, 2007, Milli g an filed a petition with the Boa rd for reinstateme nt of his law license
in acc ordanc e with Tenne ssee Supre me Court Rule 9, section 19.3, which se ts forth the burden of proof imposed upon a

n attorney seeking reinstateme nt as follows:

[T] he petitioner shall have the burden of demonstrating by clea r and convincing evid ence that the attorney has the moral qualifica tions,
competenc y and lear

ning in law require d for admission to prac t i ce law in this state and that the resumption of the prac tice of law within
the state wil l n ot be detrimental to the integ rity and standing of the
bar or the administration of justice, or subversive to the public

8interest.

The Boa rd appointed a hear ing panel (“the Panel”) to consider the meri t s o f M i lligan’ s petition and deter

mine the propriety of reinstateme nt in acc ord with section 19.3, and the Panel hear d
the case on Dec ember 13, 2007. I n addition to his own testimony

, Milli g an prese nted the testimony
of six witnesses, consisting of friends, clients, attorney s who had had profe ssional interac tion with
Milli g an, and a retire d chanc ellor befor e whom Milli g an had fre quently prac ticed law during the

y ear s prec ed i n g h i s suspension. The Boar d prese nted no witnesses i n support of i ts arg ument that
Milli g an’s lice nse should not be re instated.

On J anuar

y 1 0

, 2 0 0 7

, the Panel filed its judgme nt deny ing reinstateme nt, concluding that althoug h Milli g an satisfactorily demonstrated that he has the competency and learning to prac tice
law in this state, he failed to prese nt sufficie nt proof that he has the requisite moral qualifica tions to do so and further failed to meet his burden of proof showing that his reins t at ement will not be
detrimental to the integ rity and standing of the bar or administration of justice or subversive to the public interest. I n explanation of i ts conclusion t hat M illigan failed t o offe r adequate evidence of
his remorse and re h ab i l i tation, the Panel noted that Milli g an’s witnesses “either did not have a sufficie nt basis for their testimony or they wer e not fully informed as to the finding s of the Supreme
Court reg arding his init i al s u spension.” The Panel was also conce rned with Milli g an’s failure to adequately explain his willingness to involve the notary who, at Milli g an’s behest, falsely notarized
the J ohnsons’ signa tures, Mi l liga n’s continuing insistence that he had permission to sign the

J ohnsons’ names to the settlement documents and his t re atm ent of the mishandling of the trust

acc ounts and misuse of client funds “ as more of an ac counting issue than a br eac h of trust.”

Milli g an filed a petition for writ of ce rt i o ra ri, appea ling his case to the Knox County
Chance ry Court. Upon its revie w of the rec ord befor e the Panel, the Chance ry Court ag ree d with the
Panel’s decision that Milli g an’s petition for reinstateme nt should be denied as a result of his failure

to prese nt clea

r and convincing evidenc e that he has the moral qualifica tions to prac tice law in this
state, finding insufficient proof of Milli g an’s reha bilitation and remorse since his suspension. L ike
the Panel, the Ch an ce ry C o u rt was disturbed by Milli g an’s willingness to enlist the aid of his employ ee (the notary

) in his false dealing and fra ud and his lack of an explanation i n t h at reg ard.
Refer encing this finding and our previous conclusions that Milli g an’s actions constituted misappropriation of funds, involved dishonesty

, fra ud, dece it, or misrepre sentation, wer e prejudicia l

to the administration of justice, and adver sely ref lected on his fitness to prac tice law, the Chance ry Court also ag ree d with the Panel’s decision that the reinstateme nt of Milli g an’s license would have
a detr imental eff

ect on the sta

nding or the integ rity of the bar or the administration of justice or be
subversive to the public interest. Milli g an now appea ls to this Court pursuant to Tenne ssee Supreme Court Rule 9, section 1.3.

Analysis

The source of authority of the Boa rd of Professional Responsibili ty and its functions lies in

t h e S u p reme Court. Nevin v. Bd. of Prof’l Responsibili ty

, 271 S.W .3d 648, 655 (Tenn. 2 0 0 8 );

9Br own v. B d. of P rof’ l Responsibili ty

, 29 S.W .3d 445, 449 (Tenn. 2000). I ncluded in our duty to

reg ulate the pr actice of l aw in this state i s the ul timate disciplinary responsibility for violations of
the rules g overning the leg al profe ssion. Doe v. Bd. of Prof’l Responsibili ty

, 104 S.W .3d 465, 470 (Tenn. 2003). Thus, we revie w judgme nts in light of our “inher ent power

. . . and fundame ntal rig ht

to presc ribe and administer rules perta ining to the licensing and admission of attorney s.” I n re Bur son, 909 S.W .2d 768, 773 (Tenn. 1995)

.

Tenne ssee S u p reme Court Rule 9, section 1.3, provides that the trial court’s revie w of a hear ing panel’ s decision is restric ted to the transcr ipt of the evidenc e befor e the hear ing panel unless “alleg ations of irreg ularities in the proce dure befor e the panel are made.” Tenn. Sup. Ct. R. 9, § 1.3;

see a lso Bd. of Prof

’l Responsibilit y

v. L ove, 256 S.W.3d 644, 651 (Tenn. 2008).

The trial court, afte r revie wing the transcr ipt and any additional neces s ary evidenc e, has

sever al options. The trial court may aff irm the decision o f the panel, rema nd the case for further

proce eding s, or re verse or modify the dec ision. A reve rsal or modification of the pane l’s decision

may be made only

if the trial cour

t finds that

the rig hts of the petitioner have been prejudice d beca use the pane l’s finding s, infere nces, conclusions or decisions are : (1) in violation of
constitutional or statutory provisions; (2) in excess of t h e p an el’s jurisdiction; (3) made upon unl aw ful proce dure; (4) arbitra ry or

capr icious or char acte rized by abuse of di s cr etion or clea rly

unwa rra nted exercise of discretion; or (5) unsupported by evidenc e which is both substantial and materia l in light of the e ntire re cord.

Tenn. Sup. Ct. R. 9, § 1.3. Although the trial court may aff irm, rema nd, reve rse, or modify a hear ing panel de cision, the trial cour t may not substitute its judg ment for that of the pa nel as to the we ight
of the e vidence on questions of fac t. I d.

Our revie w of a trial court’s decision in a disciplinary matter is also g overne d by Tenne ssee Supreme Court Rule 9, section 1.3. Our standard of revie w under this section is virtually identical
to the standard applicable to our revie w of an administrative ag ency ’s final decision in a contested

case under the Uniform Administrative Procedur es Act. L ove, 256 S.W .3d at 653. This sta ndard,
as set for th in Tennessee Code Annotated se ction 4-5-322( h) (2005) , provides as f ollows:

The court may aff

irm the decision of t he age ncy or re mand the ca se for further proce eding s. The court may reve rse or modify the
decision i f t he rights of the petit ioner have bee n prejudice d beca use the administrative finding s, infere nces, conclusions or decisions are :

(1) I n v iolation of constitutional or statutory provisions; (2) I n excess of the statutory authority of the ag ency ;

10(3) Ma de upon unlawf ul proce dure; (4) Arbitrary or capricious or char acterized by abuse
of discretion or clea

rly unwar

ra n t ed exercise of discretion; or (5 )( A) Unsupported by evidenc e that is both
substantial and materia l in the light of the entire

rec ord.

Thus, in case s such as the one now befor e us wher e the g rounds for reve rsal under subsections (1), (2), a nd (3) a re not present, we must uphold t he hea ring panel’ s decision “unless the de cision was
either ar b i t rar

y or capr icious, ‘cha

rac terized by an abuse, or clea rly unwar rante d exercise, of
discretion’ or lacking in support by substantial and materia l evidenc e.” Hu gh es v

. Bd. of Prof’l Responsibil i t y , 2 59 S.W .3d 631, 641 (Tenn. 2008). We have approve d the following lang uag e pertinent to a court’s revie w of an administrative ag ency decision as an appropr iate g uide for a court seeking to ensure tha

t a hea ring panel’ s decision was not in violation of subsections (4) or (5) :

I n its broade st sense, the standard[s in (4) and (5)] require [] the court

to deter mine whether the administrative ag ency has made a clea r err or in judgme nt. An arbitrary [or capr icious] decision is one that is not based on any course of rea soning or exercise of judgme nt, or one that disreg ards the fac ts or circ umstances of the case without some basis
that would lead a re as o n ab le person to rea ch the same conclusion.

.

. . [T] he co u rt should revie w the rec ord car efully to deter mine
whether the administrative ag ency ’s decision is supported by “such
rele vant evidenc e as a rational mind might acc ept to support a rational
conclusion.”

. . . The evidenc e will be sufficie nt if it furnish es a

rea sonably

sound fac tual basis for the de cision being revie wed.

J ac k s o n M obilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W .2d 106, 110-11 (Tenn. Ct. App. 1993) (citations omitted); see also City of Memphis v. Civil Serv. Comm’n of Memphis, 216 S.W .3d 311, 316-17 (Tenn. 2007). We are constraine d, as is the trial court, from substitut ing our judgme nt for that of the hear ing panel as to the weig ht of the evidenc e on questions of fac t. L ove, 256 S.W .3d
at 653.

Gover

ned by this standard of rev i ew, we must deter mine whether the trial court proper ly
aff irmed the Pane l’s ruling that Milli g an fa iled to pr esent a dequate proof that ( 1) he ha s the moral qualifica tions to practice la w in this state and (2) tha t his readmission would not be detr imental to

t h e i n t egr i ty and standing of the bar or the administration of justice or subversive to the pub l i c interest.

The license to prac tice law in this state is not a rig ht, but a privileg e. See Tenn. Sup. Ct. R. 9, § 3.1. And, as we stated above, under Tenne ssee Supreme Court Rule 9, section 19.3 the

11reinstateme nt of an attorney ’s license is conting ent upon proof by clea r and convincing evidenc e that
the attorney has (1) the moral qualifica tions and (2) the competenc y and lear ning require d to prac tice
law in this state; and (3) that his or her resumption of the prac tice of law within the state will not be
detrimental to the integ rity and standing of the bar or the administration of justice or subversive to the public intere st. “Clear a nd convincing evidenc e” ha s been de fined a s follows:

Whil e [the clea

r and convincing standard] is more exacting than the preponde ranc e of the evidenc e standard, it does not require such

cer tainty as the be y ond a re asonable doubt standard.

Clear and convincing evidenc e eliminates any seriou s or substantial doubt conce rning the corr ectne ss of the conclusions to be
draw n from the evidenc e. I t should produce in the fac t-finder ’s mind

a firm belief

or convic tion with reg ard to the truth of the alleg ations

soug ht to be established.

Hug hes, 259 S.W .3d at 642. I n deter mining whether the Panel and the tr ial court properly denied
Milli g an’s petition for reinstateme nt, we must revie w the rec ord that was befor e the Panel for clea r

an d convincing evidenc e that Milli g an met eac h of the three require ments set forth in Tenne ssee Supreme Court Rule 9, s ection 19.3. I n acc ord with the noted standa rd of r eview, it is our duty to

ensure that the decision to deny Milli g an’s petition for reinstatement was based upon a course of

rea soning or exercise of judgme nt and did not disreg ard the fac ts or ci rc umstances without some basis that would lead a

rea sonable pe rson to rea ch the sa me conc lusion.

Upon revie w of the rec ord befor e t h e P an el, it is our deter mination that Milli g an failed to

prese nt clea

r and convincing evi d en ce t h at he possesses the m oral qualifications that are require d
for reinstateme nt of his license as set forth at section 19.3 an d t h at h i s reinstatement will not be
detrimental to the integ rity and standing of the bar or the administration of justice or subversive to the public interest. There fore

, the decision of the Panel and the aff irming decision of the trial court

are well supported.

Moral Qualif ications

First, we addre ss the issue of whether Milli g an prese nted clea r and convincing evidenc e that
he has the moral qualifications required to pra ctice la w in this state.

Although we ordinarily apply the Americ an Ba r Association’s Standards for I mposing

L awy er Sanctions (1986, as amende d 1992) (“A BA Standards”) to attorney disciplinary matters, see Tenn. Sup. Ct. R. 9, § 8.4, these standards provide scant assistance in iden tify ing specific

prer equisites for reinstateme nt afte r an attorney ’s license has been suspended for a disciplinary
violation. Standard 2.10 of the ABA Standards simply procla ims that “[p] roce dures should be
established t o al l o w a s uspended lawy er to apply for reinstateme nt,” and the Commentary to Standard 2.10 provide s litt le additional g uidance , stating:

12Since the purpo s e of lawy er discipline is not punishment,
reinstateme nt is appropr iate when a lawy er can show reha bilitation. Application for reinstateme nt s h o u ld n o t be permitted until expiration
of the order ed period of suspension and g ener ally not until at least six
months afte r the eff

ective date of suspension. A lawy er should not be
reinstated unless he can show by clea r and convincing evidenc e: reha bilitation, compliance with all applicable discipline or disability
order s and rules a

nd fitness to prac tice law.

Given the lack of clea

r g uidance provided by the AB A Standards, th e s t at es have independe ntly develope d criter ia for reinstateme nt afte r suspension. Although the AB A Standards alluding to reinstateme nt do not expressly men t i o n “m oral qualifications,” all states require som e
sort of proo f o f m o ra l char acte r. Kimberly A. L ace y , Note, Second Chance s: The Procedur e, Principles, and Problems with Reinstatement of Attorney s afte r Disbarment, 14 Geo. J

. L eg al Ethics 1117, 1117 (2001). I n g ener al, the moral char acte r require ment require s that petitioners show that they have underg one a “mora l chang e” so that the wea knesses that produce d the prior conduct have
b ee n co rre cted. I n re Reinstatement of Wiederholt, 24 P.3d 1219, 1228 (Alaska 2001); I n re Reinstatement of Ramire z, 719 N.W .2d 920, 921 (Minn. 2006). Courts look at various indicator s of this moral cha

ng e, including honesty , remorse , and ac tivity during suspension.

Honesty is considere d to be a c enter piece of good m oral chara cter

. See S chwa re v. Bd. of

Ba r Ex am’rs, 353 U.S. 232, 247 (1957) (F rankf urter, J

., concur

ring ). I n the rea dmission hear ing for

an attorney who had been disbarre d for theft of funds from her law firm, witnesses testified that the experience of imprisonment and disbarment had made the attorney “bruta lly honest” and “extremely
candid” in her dealing s with others. R am i re z , 719 N.W.2d at 923. I n a Mississ ippi case that
involved an attorney who had been suspended for three y ear s for commingling funds with his own funds and for misusing a trust acc ount, the court was impressed that the attorney

, who had only been

caug ht for misusing one client’s funds, never theless “voluntarily prese nted evidenc e of two other
instances” of misappropria tion. See I n re Petition of Fla utt, 890 So. 2d 928, 932 (Mis s. 2004).

Remorse and awa

rene ss of prior wrong doing are also reg ularly cited as marks of g ood moral
char acte r, and various jurisdictions have rec og nized thes e as appropr iate fac tors to consider in

g aug ing moral char acte r. See Wiederh o l t

, 2 4 P.3d at 1227-28 and case s cited there in. A rec ent Oklahoma case involved an attorney who resign ed afte r it was discovere d that he had misappropriate d $50,000 in fee s b el ong ing to his employ er law firm. I n re Reinstatement of Mumina,

_ P.3d

_, __, 2009 WL 3113260, at *1 (Okla. 2009). I n his later rea dmission proce eding s, the court praised the petitioner for his demonstrated level of remorse and compre hen sion of

wrong doing. The atto rn ey s t at ed that he was g uilty of crimes, “fr eely admitted that there was ‘nothing rig ht’ abou t h im having taken the funds,” and spoke of his downfa ll to law students and

y oung at torney s. I d. at *4-5. I n contra st to the repe ated and public statements of remorse in Mumina, the petit ioning attorney in Wiederholt was not rea dmitted in part due to his utter lack of

remorse

. See Wiederholt, 24 P.3d at 1229. This attorney had been disbarre d for forg ing his client’s signa ture on a chec k and filing false statements that his client’s judgme nt had not been satisfied. The

13court emphasized that the petitioner’s own testimony demonst ra t ed that he had not reha bilitated
himself beca

use he ref

used to admi t his prior wrong doing and instead, during the rea dmission
hear ing, “ continued to maintain that his pa st conduct did not warr ant disbarment” and “sta ted that
he did not believe tha t he had a cted une thically .” I d.

I n d e te r mi ning whether an attorney has adequa tely demonstrated g o o d mo r a l c h a r a c te r , c o u r ts also look to the nature of activity that the attorney has eng ag ed in during the period of suspension.

I n this reg ard, courts have soug ht extern a l e v id e nce of reha bilitated char acte r in “examples of ethical, fair, principled, and g ener ally g ood conduct.” I n re Disciplinary Procee dings Ag ainst Carroll, 675
N.W.2d 792, 798 (Wis. 2004). Petitioners have g ained court approva l by partic i p at i n g in “leg al
wellness” prog rams or educating y oung lawy ers on ethical issues. See Flautt

, 890 So. 2d at 932; Mumina, 2009 WL 3113260, at *5. Courts have also favor ably considere d activity showing civicmindedness. See Fla. Bd. of Ba r Ex am’rs ex re l J

. J .T., 761 So. 2d 1094, 1096-97 (F la. 2000) (empha siz ing the i m p o rtanc e of “positive action” and not ing that this petitioner “can show only a handful of instanc e s o f volunteer community service ” and that petitioner’s “most active participa tion
did not occur until shortly befor e the reha bilitation hear ing” ); I n re Pool, 517 N.E.2d 444, 448 (Mass. 1988) (in the case of an attorney who had been disbarre d for br eac hing c onfidenc e with a criminal client, finding it noteworthy that the d is b a rre d petitioner had been actively eng ag ed in the community
and “wr ote a book for children and edited an album o n t he history of [Harrison County

, West Virg inia]”); I n re Griff

ith, 913 P.2d 695, 700 (Or. 1996) (stating that the court will look to “evide nce of the a pplicant’s par

ticipation in activities for the public g ood”).

Courts are often pre sented with the testimony of char acte r witnesses who have interac ted
with the attorney during the pe r io d o f s u s p e n s ion and descr ibe behavior consistent with reha bilitation
and remorse

. I t is of critica l importance that during the period of interac tion, the witness was awa re of the nature of the misconduct that resulted in suspension and that there was a sufficie nt deg ree of
interac tion betwee n the witness and the petitioning attorney so that the witness had a rea sonabl e basis for his or her opinion. Otherw ise, the witness’s testimony will car ry littl e, if any , weig ht. See Wiederholt, 24 P.3d at 1230 (upholding a finding t h at re i nstatement was not war rante d wher e petitioner’s witnesses “did not have sufficie nt information about his moral qualifica tions” and “had virtually no knowledg e of how he conducte d himself in the prac tice of law or the events that led to his disbarment”) ; Carroll, 675 N.W.2d at 798 (deny ing reinstateme nt wher e petitioning attorney did
not pr ovide witnesses who c ould “g iv[ e] ex amples of . . . post-suspension activities in a fa vorable
l i gh t

, whether they be business, civil, or persona l rela ted” (empha sis added) ). Fur ther, the m er e
statement by a witness that the petitioner curr ently has g ood moral ch ar ac ter has been held to be
insufficient to demonstrate the sort of reha bilitation that would sug g est that the conduct will not be

repe ated. Gr iffith, 913 P.2d at 700.

There is a dear

th o f T en n essee case law setting forth specific examples of proof that will
establish that an attorne y

possesses the moral qua lifications require d for r einstatement. How ever , in Murphy v. Bd. of Prof’l Responsibili ty

, 924 S.W .2d 643, 647 (Tenn. 1996), this Court stated that
the mere conclusory statements of witnesses that the petitioning attorney had “paid the price ,” was

remorse ful for his actions, and had reha bilitated himself wer e not sufficie nt proof of the attorney ’s

14moral charac ter. We indicate d that the attorney seeking reinstateme nt must also produce proof of

“spec ific fac ts and circ umstances which have aris en since [t he attorney ’s] convictions that
demonstrate either rehabilitation or remorse.” I d. at 647. I n a more rec ent decision, Hug hes, 259
S.W .3d at 643, we reiter ated this require ment of “spec ific fac ts and circ umstances.” I n Hug hes, the petitioning attorney was held to have satisfac torily established the moral qualifica tion require ment of section 19.3 upon his prese ntation of the testimony of multipl e witnesses who “provide d details

as to the positive chang es in his char acte r and behavior since his conviction.” I d. at 644. We noted
that “[m] any of the witnesses descr ibed the differ ent way s in which [t he attorney ] had continuously
demonstrated the transfor mation of his char acte r.” I d.

As noted, in addition to his own testimony

, M i l l i gan prese nted the testimony of six of his

acqua intances as proof that he possesses the qualities require d for reinstateme nt, including the

nece ssary moral char acte r. Howeve r, this testimony must be discounted for two rea sons: (1) these
witnesses wer e larg ely unawa re of the specific conduct that led to Milli g an’s suspension; and (2) all
but one of the witnesses had minimal contac t with Milli g an during the period of his suspension. The testimony of ea ch of the se witnesses is summarized as follows.

Abe L ane testified that he was a family friend of Milli g an’s pare nts and has known Milli g an since he was in high school. L ane stated that he alway s found Milli g an “trustworthy in any thing y ou told him and not dishonest” and that he “neve r found [Mi lli gan ] i n an u n t ruth.” Howeve r, L ane admitte d t h at he was not awa re of the fac ts that resulted in Milli g an’s suspension, prese nted no

s p ec i fi c fac ts or circ umstances showing that Milli g an has underg one a moral chang e since his suspension, and acknow ledg ed that he has only seen Milli g an two or th ree times since he was suspended.

Warren Michae l Wil lis

, who was once marrie d to Milli g an’s ex-wife, testified that he has
known Milli g an almost twelve y ear s and has done computer work for Milli g an over the past two

y ear s. Wil lis testified that during the two-y ear suspension period, he an d Milli g an had telephone

conver sations, and he wor ked on Milliga

n’s computer

six or eight times. Wil lis attested that over
the past two y ear s, he has se en Milliga n “intera ct with othe r people” and that “[i] t doe sn’t seem to

matter to Mr. Milli g an whether somebody has nothing o r is very rich or very poor. He trea ts

ever y body the same.” Whil e Wil lis indicated that Milli g an is honest and that he trusts him, nowher e in his testimony did Wil lis descr ibe specific fac ts or circ umstances showing Milli g an’s remorse or reha bilitation afte r being suspended. And while it appea rs that Wil lis has had more extensive contac t with Milli g an th a

n th e o the r witnesses, he was unawa re that Milli g an was suspended for overdr awing
his trust acc ount and using client funds befor e s et t l ement funds had been deposited in his trust

acc ount.

One of Milli g an’s former clients, Norman Ray Seiver, testified that during the time he was

repr esente d by Milli g an, Milli g an had shown him compassion and had been truthful. He also stated
that he would retain Milli g an as an attorne y if he is re instated. Howe ver, Seive r did not know the

rea sons for Milli g an’s suspension and has only seen Milli g an twice since he was suspended. Seiver
did not descr ibe any specific fac ts or circu m s t an ce s showing Milli g an’s reha bilitation or remorse

15since suspension.

Richard Hollow, an attorney who over t h e y ea rs has had interac tion with Milli g an as adver sary counsel in various laws u its, testified that Milli g an was alway s truthful with him. Howeve r, Hollow was unawa

re o f an y of the fac ts that g ave rise to Millgan’ s suspension, had only seen Milli g an four or five times since Milli g an was suspended a nd did not provide any specific fac ts or circ umstances showing Milli g an’s r ehabilitation or re morse during that time.

Gar y Prince, another attorney who has interac ted with Milli g an o n a profe ssional basis,
testified that Milli g an was “alwa y s straig htforwa

rd, alway s honest.” Although Prince attested that
he never discussed the specific s of the suspension with M i l l i gan an d was unawa re of the fac ts leading to the suspension, he believes that Milli g an has “lea rned,” based upon a conver sation he had
with Milli g an in a g roce ry store parking lot. He descr ibed the conver sation as lasting only a couple
of minutes and admitted that he and Milli g an did not discuss the specific s of the suspension. Prince
maintained that his assessment of Milli g an was based upon “instinct.” “I could just tell he had been
humbled and he was rea dy to g et back to it. And I felt, y ou know, he lear ned. I t is something I rea lly
can’ t touch on. I t i s just an instinct.” This testimony

, arising out of Prince’s sole encounte r with
Milli g an since Milli g an’s suspension, fails to descr ibe any specific fac ts or circ umstances showing
that Milli g an has e x perie nced r emorse or reha bilitation.

Finally

, retire d Knox County Chance llor Fr eder ick McDona ld, in whose courtroom Milli g an had tried case s prior to his suspension, attested that Milli g an was “alwa y s open and honest with the
Court” and that Milli g an “ did a very g ood job of repr esenting his clients.” Howeve r, McDona ld was
not even awa

re that Milli g an had been suspended for two y ear s until called upon to testify befor e the Panel, was unawa

re of the rea sons for the suspension, and had had no interac tion with Milli g an since
the suspension. L ike the other witnesses, McDona ld did not descr ibe any specific fac ts or circ umstances showing that Milli g an has experience d remorse or r e h a b il it a ti o n s ince his suspension.

Milli g an testified on his own behalf that he “fe el[s] remorse for the mistakes [he] made” and
admits that he “did wrong ” and that his actions wer e “stupid” and “a m i s take.” Milli g an also
testified in support of his assert i o n t h at h e i s now reha bilitated, stating that he “will never do

any thing ag ain to ha

rm the integ rity of this profession that [he] loves so much.” Whil e statements like this do indeed constitute profe ssions of remorse and reha bilitation, they are conclusory and do

not meet the require ment that the petitioning attorney present proof of specific fac ts and
circ umstances showing remors e and reha bilitation during his or her period of suspension.

Fur thermore

, Milli g an is the interested party in this case and absent corr oboration by other evidenc e in the case , the Panel could have rea sonably conclude d that his testimony did not constitute clea r and convincing evidenc e of his mo ra l charac ter. See 32A C.J .S. Evidence § 1633 (2008) (“The

uncorr oborate d testimony of an interested witness is not binding, and the trier of fac ts may disbelieve such testimony .”).

Milli g an contends that additional evidenc e of his reha bilitation was befor e the Panel. I n this

reg ard, Mil l iga

n ref ere nces the five-y ear period he prac ticed law pending dispositi on of the two

16disciplinary complaints filed ag ainst him on November 30, 1999, and April 25, 2000. M i l liga n testified that his reha

bilitation actua lly started when, during this period, he upg rade d his law firm’s
computer softwar e. I n deter mining the proper amount of evidentiar y weig ht to assig n to Milli g an’s
eff orts in improving his financ ial proce dures, we believe it is proper to bear in mind that during the period of time these cha

ng es we re implemente d, Milli g an’s c ontinued prac tice of la w was subject

to cer tain conditions cre ated by this Court. These conditions require d that Milli g an reta in acc ountant
Terr y Hall t o overse e h i s l aw fi rm ’s financ es, t hat a new client trust acc ount be established under
Hall’s supervision by J une 15, 2000, and that Hall revie w the settlement and disbursement summary for eac h case settled by Milli g an’s firm and approve all disbursements in order for them to be paid. Millig a n ’ s e mp lo y ee, Chrissy Stephens, was desig nated to serve as primary contac t betwee n Hall and
the Boa rd. Finally

, our order require d that Milli g an reta in fra ud examiner L eroy Bible to revie w his
firm acc ounts, including the client trust acc ounts. All three of these individuals
- Hall, Stephens, and
Bible
- wer e order ed to immediately repor t an y i m p ro p ri ety of which they beca me awa re to the

Boa rd’s disciplinary counsel. The fa ct that Milligan made reha bilitative e ffor

ts unde r these courtimposed conditions d o e s not of itself constitute clea r and convincing evidenc e of Milli g an’s persona l
reha bilitation, and the question rema ins whether he would have implemented the chang es absent
such close scrutiny and left to his own device s. Fur thermore

, these chang es wer e implemented
befor e Milli g an’s suspension in J une of 2005, and, there fore

, do not perta in to his reha bilitation afte r that time. And perha

ps most importantly

, none of these chang es to Milli g an’s acc ounting proce dures

const itute proof of reha

bilitation as to his forg ery of his clients’ signa tures or his willingness to involve one of his employ ees in a scheme to prese nt the signa tures as g enuine by having her falsely
notarize them.

The rec ord shows that Milli g an ensure d that no one lost any m o n ey as a re s u lt of his
d i s ci p l i n ar y offe nses and that he is making pay ments of costs and expenses due the Boa rd in thi s

case

. We have held that such conduct constitutes evidenc e of g ood faith, and it is there fore rele vant

to the issue of a petitioning attorney ’s moral char acte r. See Hug hes, 259 S.W .3d at 644 (holding that
attorney ’s pay

ment of all court costs, restitution to former clients and adoption of pay ment schedule
for pay ment of a court-imposed fine qualify as expressions of g ood faith on the issue of char acte r).

Howeve r, we do not believe

, gi v en t h e inadequa cy of proof otherwise, that these actions wer e sufficie nt to meet the burden of proof that Milli g an bear s in this case on the iss u e o f his moral
char acte r.

As we h av e stated, the standard g overning our revie w of this matter prohibits us from
substitut ing our judgme nt for that of the Panel as to the weig ht of the evidenc e on questions of fac t, and we must aff

irm the trial court’s decision aff irming the Panel’s decision if we find substantial and
materia l suppor

ting evidenc e. Upon our

car eful re view of the rec ord, we simply cannot ag ree that
the Panel err ed in finding that Milli g an failed to produce clea r and convincing evidenc e that he meets the moral qualifica tions to prac tice law in this state. We emphasize that in so ruling we do not state that Milli g an does not possess the requisite moral char acte r to prac tice law, but only that the Panel’s
decision that he failed to meet his burden of proof was based upon a course of rea soning or judgme nt and did not disreg ard fac ts or circ umstances in the case without some basis that would l ea d a

rea sonable pe rson to the same c onclusion.

17Legal Com petency

Section 19.3 of Supreme Court Rule 9 als o re q u i res that an attorney petitioning for
reinstateme nt prese nt clea r and convincing evidenc e that he or she has the “compe tency and lear ning

re quired for admission to prac tice law in this state.” The Panel’s decision that Mill i gan m et t h i s require ment by

clea r and c onvincing evidenc e and the trial court’ s aff irmation of that decision ar e not challeng ed by the Board. Acc ording ly

, the questi on of Mi lligan’ s competenc y and lea rning is
not an issue bef

ore this Court.

Ef fect of Reinstatem ent on the Integrit y and
Stand ing of

the Bar and Administration of
Justice and the P ubl ic Intere st

The final pre re q u i s ite for reinstateme nt is that the petitioning attorney prese nt clea r and convincing evidenc e that his or her resumption of the prac tice of law will not be “detr imental to the integ rity and standing of the bar or the administration of justice, or subversive to the public interest.”

Tenn. Sup. Ct. R. 9, § 19.3. What littl e evidenc e Milli g an prese nted in this reg ard co n s i s t ed of conclusory statements from those witnesses who testified in his behalf with respe ct to the question
of his moral qualifica tions. Given the conclusory nature of these statement s an d the minimal
interac tion betwee n these witnesses and Mi lligan, it is our determination th at M i l l i g an also failed

to meet his burden of proof as to this fac tor. Acc ording ly

, we hold that the Panel and the Chance ry Court did not err in finding that Milli g an’s reinstateme nt should be denied for failure to sa tisfy the
third criter ion of section 19.3.

Conclusion

For the rea sons stated here in, we ag ree with the conclusions of the Panel and the trial court that Milli g an failed to pr ove by clea r and convinc ing e vidence that he has the moral qualifica tions

to prac tice law in this state and that his reinstateme nt to the prac tice of law would not be detrimental

to the i nteg rity and st anding of t he bar or the a dminist ration of just ice, or subversive to the publ ic
i ntere st. Acc ording ly

, we aff irm the judgme nt of the trial court aff irming the Panel’s d en i al o f
Milli g an’s petiti o n fo r re i n statement. Costs are assessed to J ames L

. Milli g an, J r., for which execution may

issue if nec essar

y

.

_________________________________________

SHARON G. L EE, J USTI CE

18