Dennis J. Hughes v. Board of Professional Responsibility of the Supreme Court of Tennessee

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 14, 2008 Session

DENNIS J. HUGHES V. BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

Appeal by permission from the
Chancery Court for Davidson County

No. 06-1567-IV Judge Jerry Scott, Senior Judge

No. M2007-01562-SC-R3-BP - Filed July 10, 2008

This is a direct appeal from a judgment of the trial court, which set aside a decision by a hearing
panel designated by the Board of Professional Responsibility granting a disbarred attorney’s petition
for reinstatement of his law license. The issue presented is whether the attorney, who was convicted
of bribing a witness and conspiracy to bribe a witness in a criminal trial, has met the criteria for
immediate reinstatement to the practice of law. Although the panel properly determined that the
evidence clearly and convincingly proved the moral qualifications of the attorney and his knowledge
of state law, we hold that the evidence failed to so meet the threshold as to the third requirement–that
reinstatement would not be detrimental to the standing of the bar, the administration of justice, and
the interest of the public. The judgment of the trial court is, therefore, affirmed.

Tenn. Sup. Ct. R. 9 § 1.3 Direct Appeal; Judgment of the Davidson County Chancery
Court Affirmed

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
CORNELIA A. CLARK and WILLIAM C. KOCH , JR., JJ., joined. JANICE M. HOLDER , J., concurring and
dissenting.

Richard McGee, Nashville, Tennessee, for the appellant, Dennis J. Hughes.

Nancy S. Jones, Chief Disciplinary Counsel for the Board of Professional Responsibility and James
A. Vick, Deputy Chief Disciplinary Counsel, Investigations, for the appellee, Board of Professional
Responsibility of the Supreme Court of Tennessee.

OPINION

Factual and Procedural Background

1
 Dennis J. Hughes, the appellant, was licensed to practice law in Tennessee in 1987. In early
1995, while acting as defense counsel for Wayford Demonbreun, Jr., on a first degree murder charge,
Hughes and Demonbreun’s girlfriend, Suvonnya Lakeisha Smith, offered money to an eyewitness
to the murder, Rhonda Williamson, in an effort to persuade her to recant her prior testimony during
a preliminary hearing. In 1997, Hughes was convicted in Davidson County of bribery, a Class C
felony, and conspiracy to commit bribery, a Class D felony, in violation of Tennessee Code
Annotated sections 39-16-107 (2006) and 39-12-103 (2006).1 The criminal court ordered concurrent
sentences of four and one-half years and three years, respectively, and imposed fines totaling
$15,000. On December 28, 1998, the Court of Criminal Appeals affirmed the convictions and
sentence. State v. Hughes, M1997-00084-CCA-R3-CD, 1999 WL 1257882 (Tenn. Crim. App. Dec.
28, 1999). On May 22, 2000, we entered an order denying an application for permission to appeal.2
On December 28, 2001, Hughes was released after serving two years in the county workhouse.

On June 24, 1997, immediately after the convictions and pursuant to section 14 of Supreme
Court Rule 9, Hughes was summarily suspended from the practice of law. Later, the Board of
Professional Responsibility (“BPR”) filed a petition for final discipline. Pursuant to section 15 of
Supreme Court Rule 9, Hughes filed an affidavit consenting to disbarment. On March 30, 2004, we
entered an order of enforcement prohibiting Hughes from the practice of law effective the date of
his summary suspension.

Reinstatement Proceedings
In October of 2004, seven and one-half years after his suspension from the practice of law,
Hughes filed this petition for reinstatement. In 2006, a three-member panel (“Panel”) appointed by
the BPR heard the evidence.3 See Tenn. Sup. Ct. R. 9, § 8.2 (2007). In addition to the issues directly
leading to Hughes being disbarred, the parties stipulated as fact that Hughes, forty-two years old
when he was licensed to practice law and sixty-one at the time of the hearing, had been the subject
of other disciplinary proceedings. For example, on July 1, 1991, the BPR filed a petition for
discipline against Hughes arising out of four complaints of misconduct; he ultimately entered guilty

1
Because the relevant portions of Tennessee Code Annotated sections 39-16-107 and 39-12-103 have not
changed from the version of the statutes in effect during Hughes’ indictment in 1994 and subsequent convictions in 1995,
we cite to the current version of the statutes.

2
Afterward, Hughes filed an unsuccessful petition for post-conviction relief, contending that the state
improperly failed to disclose a portion of its evidence against him in response to a bill of particulars. He also argued that
the post-conviction court erred by limiting cross-examination as to whether the prosecutor in his criminal trial, Assistant
District Attorney General John Zimmerman, had engaged in a pattern of non-disclosure in other cases. Hughes v. State,
No. M2001-02454-CCA-R3-PC, 2003 W L 1094070 (Tenn. Crim. App. Sept. 3, 2003).

3
Monica Edwards served as chair of a panel which also included W illiam Neal McBrayer and Howard La Don
Baltimore.

2
pleas to the charges in exchange for a public censure.4 In April of 1994, Hughes was indicted by the
Criminal Court of Davidson County for assault, disorderly conduct, and resisting arrest arising out
of a May 26, 1993, night court incident; thereafter, he was granted pre-trial diversion on the assault
charge pursuant to Tennessee Code Annotated section 40-15-105 (Supp. 1995) (amended Supp.
2007). At the same time, the disorderly conduct and resisting arrest counts were dismissed.5 On
November 13, 1996, the BPR filed a petition for discipline against Hughes arising out of complaints
of misconduct related.6 In December of 1997, shortly after his convictions, Hughes was suspended
from the practice of law for failure to comply with continuing legal education requirements. Finally,
on January 27, 1998, the BPR filed a Supplemental Petition for Discipline against Hughes arising
out of six complaints of misconduct.7

At the hearing, Hughes, who acknowledged a previous history of problems related to his use
of alcohol, testified that he last consumed alcohol on August 15, 1997. He then described his
dramatic religious conversion in 1998 and his extensive efforts toward rehabilitation. Fifteen other
witnesses, including distinguished judges and attorneys, also testified in support of Hughes’
reinstatement. These witnesses included Ben H. Cantrell, attorney and former Judge of the Court
of Appeals from 1980 until 2003; David Raybin, former Chairman of the Tennessee Supreme Court
Commission on the Rules of Criminal Procedure and current member of the Tennessee Supreme
Court Advisory Commission on the Rules of Practice and Procedure; Ed Yarbrough, former
President of the Nashville Bar Association and criminal defense attorney who also represented
Hughes at trial; Hamilton Gayden, Circuit Judge in Davidson County; Stephen Young, attorney and
past President of Tennessee Association of Criminal Defense Lawyers; Edward T. Kindall, school
board vice-chair, attorney in Davidson County for twenty-eight years, and member of the Tennessee
Commission on Continuing Legal Education and Specialization; Aaron Holt, Judge of the Davidson
County General Sessions Court, Division XI, for eight years; John P. Brown, Judge of the General
Sessions Court, Davidson County, for twenty-four years; Ross Alderman, former trial lawyer and
current Public Defender for Davidson County; Andrei Lee, Administrative Law Judge, State of

4
The records indicate that one of the complaints was based upon his guarantee to two prospective clients that
he could prevent indictment or incarceration in exchange for $100,000. One of the individuals recorded the conversation
and provided a fourteen page transcript. The other three complaints were based upon his failure to communicate with
clients. Sanctions included ethics requirements, mentors within the profession, a practice monitor, and pro bono services.

5
The assault charge was the result of a “tirade” Hughes directed towards a police officer during a session of
night court in M ay of 1993. Reportedly, Hughes resisted arrest and attempted to flee, but fell.

6
Among the four complaints was one related to the May 26, 1993, night court incident. Two were related to
Hughes’ felony convictions, one of which was filed by the late Judge T homas Shriver, who presided over the
Demonbreun murder trial, and a second of which was filed by W ayford Demonbreun, Jr. A fourth complaint was filed
by Judge Seth Norman, who determined that Hughes had failed to notify a client about a scheduled criminal trial–an
omission that led to a bail revocation.

7
One of these complaints was filed by Michael L. Roden, an Assistant United States Attorney, who alleged that
Hughes advised his client in a criminal case how to avoid detection when smuggling cocaine. In the remaining five
complaints, individuals alleged that they paid fees for Hughes’ representation and that he neither provided his services
nor refunded their fees.

3
Tennessee Department of Administration and State Board of Equalization; and Carol Crews, court
officer for thirty years, twenty-four of which had been with the Davidson County General Sessions
Court. More than sixty individuals, representing a broad cross-section of the public, submitted
letters in support of Hughes’ petition for reinstatement.8

Judge Cantrell was asked why he was supporting Hughes reinstatement:

I believe a person who has paid their debt to society and has turned their life around
and intends to lead a new life is entitled to a second chance . . . . [A]fter Dennis got
out of prison[,] . . . he came to see me in my office. He was very, very contrite. I
think since we had been friends and I had introduced him to the supreme court,
Dennis thought that he had disappointed me which he had. He wanted to make sure
that he made amends for that, and he convinced me that he realized that he brought
all of that calamity on himself and was determined to lead a new life, that he was not
ever going to let that happen again.

It was his opinion that Hughes had been fully rehabilitated and that readmission to the bar, under his
unique circumstances, would have no adverse effect upon the integrity of the bar, the administration
of justice, or the public interest.

Raybin testified favorably to Hughes’ knowledge of the law and his rehabilitated moral
character. It was his opinion that the reinstatement of Hughes would be an asset to the public and
to the profession “so that other lawyers could learn the message about what not to do and how you
can potentially redeem yourself.” Yarbrough testified similarly. It was his belief that Hughes had
made “crucial errors” by getting too close to his criminal clients. He stated that Hughes’ experiences
and his willingness to publicly acknowledge his mistakes had served to benefit those in the practice
of criminal law who might be tempted to act in a similar manner.

8
The Panel marked the letters for identification purposes but declined to consider the letters on hearsay grounds.
Hughes has not challenged that ruling. Individuals submitting letters included, for example, Bryant Millsaps, former
Secretary of State for the State of Tennessee; Bradley S. Roberts, First Vice President and Financial Consultant with
Hilliard Lyons in Knoxville; Dr. Mike Boyd, Senior Pastor of W allace Memorial Baptist Church, Knoxville; Richard
L. Barkley, DDS, Goodlettsville, Tennessee; David L. Alley, fellow member of Grace Baptist Church in Knoxville;
Robert W Bell, radio talk show host and senior account executive for WRJZ radio, Knoxville; Sarah W . Fowler, teacher
at Grace Christian Academy, Knoxville; Charles W atson, retired Financial Officer from Oak Ridge National Laboratory,
Knoxville; The Reverend Stuart John Phillips, Rector of St. James The Less Episcopal Church, Madison, Tennessee;
Marty Roberts, truck driver with W atkins M otor Lines in Knoxville; Tony Vandergriff, employee with City of Knoxville,
Operations and Investigations Department, Traffic Engineering Division; W endell Cooper, Senior Accountant with
Bechtel Jacobs Company, Oak Ridge, Tennessee; Vicky Caldwell Curtis, public school teacher in Anderson County,
Tennessee; Sandra Roberts, RN, Knoxville; Reverend Steve Humphreys, Executive Director for FOCUS Prison
Ministries, Knoxville; L.A. Ezell, Chief Financial Officer of Oak Ridge Tool Engineering, Oak Ridge, Tennessee;
W illiam E. Llewellyn, Packaging Center Manager for the Knoxville News-Sentinel, Knoxville; Dale Fox, retired,
Knoxville; Frankie Cate, RN and stay-at-home mom, Knoxville; Paul C. Sharp, electrician at BW XT Y-12, Oak Ridge,
Tennessee; and M ickey Smith, master plumber, Knoxville.

4
 Judges Gayden, Brown, Holt, and Lee all expressed the view that Hughes had not only
reestablished his good moral character but had maintained his knowledge of the law throughout his
disbarment. Each believed that Hughes had undergone a substantial positive change for the better
and opined that his reinstatement as a lawyer would not be detrimental to the standing of the bar or
the interest of the general public. Public Defender Alderman described Hughes as a different person
since his trial and conviction. It was his opinion that Hughes had been completely rehabilitated and
that his reinstatement would be no impunity to the bar or the administration of justice. Attorneys
Kindall and Young testified similarly, attesting to Hughes’ good moral character and his knowledge
of the law. Carol Crews and her husband and family have maintained a friendship with Hughes, who
often stayed at their residence after his release from custody. She stated that since his conversion,
he no longer drank or used profanity and consistently tried to help others through prayer or other
means of support.

Hughes’ employer, Matthew Yorke, the owner of Signature Limousine Service, described
Hughes as a model employee. Having been made fully aware of Hughes’ background before his
employment as a chauffeur, Yorke stated the two men enjoyed a positive relationship and that he
would have no hesitation in hiring Hughes as his lawyer should he be reinstated. Ronnie Fox, a
fellow Rotarian, befriended Hughes; he was aware of his background and expressed admiration for
the reputation he had built in the Clinton and Knoxville areas of East Tennessee. Fox testified that
he had seen firsthand Hughes’ dedication to his church and his active participation in the business
community.

Dr. Ronald Stewart, a pastor at the Grace Baptist Church in Knoxville, baptized Hughes in
1998. Dr. Stewart described Hughes as an “outspoken witness for the Lord.” According to Dr.
Stewart, Hughes first confessed his crimes privately and, when accepted as a “sinner,” spoke of his
conversion from the pulpit, providing the entire congregation with his testimonial. Dr. Stewart
confirmed Hughes’ level of participation in Bible study and outreach ministry.

Conversely, three witnesses opposed Hughes’ petition: Victor T. Johnson, District Attorney
General in Davidson County, whose assistants prosecuted Hughes at his trial for bribery; William
L. Norton, attorney and then First Vice-President of the Nashville Bar Association Board, who
appeared as the designee of the Association; and Susan Kay, an Associate Dean for Clinical Affairs,
who teaches the rules of professional conduct to students at Vanderbilt University Law School.
General Johnson testified that due to the extensive media coverage of the criminal trial, reinstatement
would be “extremely detrimental to the public, the profession.” Attorney Norton stated that the local
bar was of the opinion that reinstatement “would degrade the public’s confidence in the integrity of
attorneys.” Dean Kay agreed, asserting that reinstatement should be particularly difficult when the
disbarment is for a serious offense. “Lawyers have a monopoly on [the judicial] branch of
government,” she explained, “and it is very important that in exercising [their duties] that lawyers
act with integrity and don’t bring down the judicial system with their acts. We are uniquely
privileged to allow people access to that branch of government.” All expressed particular concern
about protecting the public interest and the reputation of the bar because of the nature of Hughes’
high profile crimes which, in their view, qualified as particularly egregious within the legal

5
community–“striking at the heart of our system of jurisprudence.”

On May 3, 2006, the Panel, after considering the proof and the applicable law, filed its order
recommending that Hughes’ petition for reinstatement should be granted, subject to the following
conditions: “payment of all costs, criminal fines, and client reimbursements [and] participation in
a formal mentoring program for a period of five (5) years.” The Panel also encouraged Hughes to
“tell his story so that members of the Bar would benefit from his experience and avoid his
misdeeds.”

On June 22, 2006, the BPR filed a petition for writ of certiorari in the Chancery Court of
Davidson County seeking review of the Panel’s decision as permitted by section 1.3 of Supreme
Court Rule 9. The chancellor, by fiat, issued a writ of certiorari on June 23, 2006, ordering the BPR
“to immediately make, certify and forward . . . a complete transcript of the proceedings, including
exhibits submitted and all papers filed during the proceeding” to the court. Chief Justice Barker, by
order entered on July 7, 2006, assigned Senior Judge Jerry Scott to “try the case and enter judgment”
in the trial court. See Tenn. Sup. Ct. R. 9, § 1.5 (2007). In its Judgment, after presenting the
procedural history of the case, the trial court summarized the testimony of Hughes and all fifteen of
his character witnesses as well as the three witnesses who testified on behalf of the BPR. In reaching
its decision, the court made reference to the four complaints that had been filed against Hughes for
misconduct in 1992; his indictment by a Davidson County Grand Jury on three misdemeanor charges
in 1993; his conviction for bribery and conspiracy to commit bribery in 1997; the disciplinary
proceedings in 1996 based on four additional complaints; and the supplemental proceedings in 1998
based on six additional complaints. The court then acknowledged that the Panel had ruled that
Hughes had shown by clear and convincing evidence that he met the criteria for reinstatement: (1)
knowledge of the law; (2) moral character through rehabilitative efforts; and (3) no detrimental effect
on the integrity of the bar, the administration of justice, and the public interest. While concurring
with the Panel as to the first criteria, the trial court determined that Hughes had failed to establish
the second and third criteria; that is, either his good moral character or that the resumption of his law
practice would “not be detrimental to the integrity and standing of the bar or the administration of
justice or subversive to the public interest.” The court concluded that not enough time had passed
since the disbarment and that Hughes was not yet “fit to be entrusted with professional and judicial
matters and to aid in the administration of justice as an attorney and officer of the Court.”

Hughes appealed the judgment directly to this Court as provided by our rules. See Tenn. Sup.
Ct. R. 9, § 1.3. In response, the BPR argued that if Hughes was eligible for reinstatement, he should
be required to take and pass the bar examination.

Scope of Review for the Trial Court
Reinstatement of disbarred attorneys in Tennessee is governed in part by section 19.3 of
Supreme Court Rule 9 which states that

[t]he hearing panel shall schedule a hearing at which the petitioner shall have the
burden of demonstrating by clear and convincing evidence that the attorney has the

6
 moral qualifications, competency and learning in law required for admission to
practice law in this state and that the resumption of the practice of law within the
state will not be detrimental to the integrity and standing of the bar or the
administration of justice, or subversive to the public interest.

Tenn. Sup. Ct. R. 9, § 19.3 (2007) (emphasis added).

The standard of review for a trial court’s review of a hearing panel’s decision is prescribed
in section 1.3 of Supreme Court Rule 9. Prior to July 1, 2006, section 1.3 provided, in pertinent part,
as follows:

The respondent or the Board may have a review of the judgment of a hearing
committee in the manner provided by Tenn. Code Ann. § 27-9-101 et seq., except as
otherwise provided herein. The review shall be on the transcript of the evidence
before the hearing committee, its findings and judgment and upon such other proof
as either party may desire to introduce. The trial judge shall weigh the evidence and
determine the facts by the preponderance of the proof.

Tenn. Sup. Ct. R. 9, § 1.3 (2005) (emphasis added).

In Cohn v. Board of Professional Responsibility, 151 S.W.3d 473 (Tenn. 2004), we addressed
application of this standard of review (“former standard”) by the trial court as follows: “Where the
trial judge bases his or her decision on the same evidence that is before the hearing panel, the trial
judge must affirm the panel ‘[u]nless that evidence preponderates against the findings by the
Committee.’” Id. at 481 (footnote omitted) (alteration in original) (quoting Gannon v. Bd. of Prof’l
Responsibility, 671 S.W.2d 835, 837 (Tenn. 1984). Under this former standard, however, the trial
court was not limited to a review of evidence before the hearing panel–it could admit any additional
evidence that either party wanted to introduce. Tenn. Sup. Ct. R. 9, § 1.3.

Effective July 1, 2006, section 1.3 of Supreme Court Rule 9 was amended, in pertinent part
as follows:

The respondent-attorney (hereinafter “respondent”) or the Board may have a review
of the judgment of a hearing panel in the manner provided by Tenn. Code Ann. § 27-
9-101 et seq., except as otherwise provided herein. 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 panel are made, the trial court
is authorized to take such additional proof as may be necessary to resolve such
allegations. The court may affirm the decision of the panel or remand the case for
further proceedings. The court may reverse or modify the decision if the rights of the
petitioner have been prejudiced because the panel’s findings, inferences, conclusions,

7
 or decisions are: (1) in violation of constitutional or statutory provisions; (2) in
excess of the 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 substantial and material in
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 panel as to the weight of evidence on questions
of fact.

Tenn. Sup. Ct. R. 9, § 1.3 (emphasis added).

Under this narrower standard of review (“amended standard”), the trial court may modify or
reverse a hearing panel’s decision only if one or more of the five enumerated circumstances are
present. In addition, the trial court’s review is limited to the “transcript of the evidence before the
hearing panel and its findings and judgment [unless] allegations of irregularities in the procedure
before the hearing panel are made.” Id.

Hughes argues that the trial court erred by applying the former standard and by substituting
its view of the evidence for that of the Panel. In response, the BPR argues in the alternative: first,
that the trial court applied the proper standard of review and, second, that the trial court’s decision
was warranted under both the former and amended standards. The BPR asserts that the trial court
properly weighed the evidence and determined the facts by a preponderance of the evidence as
required by the former standard. The BPR further submits that even if the amended standard is
applied, the Panel’s decision “was arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion” because the Panel failed to apply the legal standards set
forth by this Court. See Office of Disciplinary Counsel v. Davis, 696 S.W.2d 528, 532 (Tenn. 1985)
(requiring, as a general rule, that one who has been disbarred for more than ten years can anticipate
as a condition to reinstatement the taking of the bar exam); Murphy v. Bd. of Prof’l Responsibility,
924 S.W.2d 643, 647 (Tenn. 1996) (finding that the conduct of lying to a grand jury and trying to
convince another witness to lie to the grand jury “strikes at the very heart and soul of the judicial
system and without question would have a detrimental impact on the integrity and standing of the
bar, the administration of justice and the public interest”).

In Love v. Board of Professional Responsibility, No. M2007-00790-SC-R3-CV, 2008 WL
2002339 (May 12, 2008), ___ S.W.3d ___ (Tenn. 2008), this Court addressed the same
issue–whether to apply the former or amended standard of review prescribed in section 1.3 of
Supreme Court Rule 9. In Love, an attorney filed a petition seeking reinstatement following his
suspension for theft. After a panel hearing and entry of the panel’s decision favorable to Love, the
BPR filed a petition for writ of certiorari, requesting modifications. The petition was granted and
the trial court hearing took place some five weeks after the effective date of the amended version of
section 1.3 of Supreme Court Rule 9. The judgment of the trial court was less favorable to

8
Love–requiring him to practice in a group setting with a practice monitor for five years, requiring
a five year contract with the Tennessee Lawyers’ Assistance Program, and limiting his practice to
criminal law. In Love’s appeal from the ruling of the trial judge, we determined that section 1.3 of
Supreme Court Rule 9 is procedural and remedial in nature and, therefore, should be applied
retrospectively “not only to causes of action arising before [its effective date], but also to all actions
pending when [it] took effect, unless a contrary intention is indicated or immediate application would
produce an unjust result.” Id. at *6 (citing Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993);
State Dep’t of Human Servs. v. Defriece, 937 S.W.2d 954, 958 (Tenn. Ct. App. 1996)). We found
that retrospective application of section 1.3 did not affect Love’s “vested rights or liabilities” and
did not impair an obligation of contract or otherwise produce an unjust result. Love, 2008 WL
2002339, at *6 (quoting Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn. 1998)).
Accordingly, we held that the amended standard of review applied, and the trial court had exceeded
its authority by the imposition of the additional restrictions.

In this case, the Panel hearing occurred on April 25-26, 2006. The trial court entered its
judgment reversing the Panel’s decision on June 7, 2007. The trial court’s lengthy judgment,
however, does not contain any reference to section 1.3 of Supreme Court Rule 9, as to the applicable
scope of review. Thus, whether the trial court applied the former standard or the more restrictive
amended version adopted in 2006 cannot be ascertained. Because the amended standard may be
applied retroactively and because the rights of Hughes have not been adversely affected by the
change, we hold that the amended standard should have applied as in the Love case.

Scope of Review for the Supreme Court
The Supreme Court is the source of authority of the Board of Professional Responsibility and
all of its functions. Brown v. Bd. of Prof’l Responsibility, 29 S.W.3d 445, 449 (Tenn. 2000). As
a part of our duty to regulate the practice of law in this state, we have the ultimate disciplinary
responsibility for violations of the rules governing our profession. Doe v. Bd. of Prof’l
Responsibility, 104 S.W.3d 465, 469-70 (Tenn. 2003). We examine judgments in light of “this
Court’s inherent power [and] essential and fundamental right to . . . administer [the] rules pertaining
to the licensing . . . of attorneys.” In re Burson, 909 S.W.2d 768, 773 (Tenn. 1995); see generally,
Cohn, 151 S.W.3d at 486; In re Youngblood, 895 S.W.2d 322, 325 (Tenn. 1995).9

Pursuant to section 1.3 of Supreme Court Rule 9, we review attorney disciplinary matters
“upon the transcript of the record from the circuit or chancery court, which shall include the
transcript of evidence before the hearing panel.” As stated, the trial court may reverse or modify the
panel decision only when the panel’s findings, inferences, conclusions, or decisions (1) violated
constitutional or statutory provisions, (2) exceeded the panel’s jurisdiction, (3) were based upon
unlawful procedure, (4) were arbitrary or characterized by abuse of discretion, or (5) were not
supported by substantial and material evidence. Tenn. R. Sup. Ct. 9, § 1.3 (2007). Under the

9
Prior to Love, this Court’s review of attorney disciplinary proceedings was de novo with a presumption that
the trial court correctly decided the case, unless the preponderance of the evidence was contrary to the trial court’s
decision. See Burnett v. Bd. of Prof’l Responsibility, 100 S.W.3d 217, 220 (Tenn. 2003).

9
amended standard, “the [trial] court shall not substitute its judgment for that of the panel as to the
weight of the evidence on questions of fact.” Id. Our charge is to assure that the trial court properly
exercises its authority whether the panel decision is affirmed, modified, or reversed. In Love, we
adopted the same standard for our review of a trial court’s decision when a party prosecutes an
appeal to this Court as permitted under section 1.3. Thus, we can reverse a hearing panel only when
the panel’s “findings, inferences, conclusions, or decisions” fall within any of the five enumerated
circumstances in section 1.3.10 In adopting this standard, we pointed out that Supreme Court Rule
9, section 1.3, is “virtually identical to Tennessee Code Annotated section 4-5-322(h), the statutory
section covering judicial review under the Uniform Administrative Procedures Act.” Love, 2008
WL 2002339, at *7. When none of the first three grounds for reversal are present, as is the case here,
the hearing panel should be upheld unless the decision was either arbitrary or capricious,
“characterized by an abuse, or clearly unwarranted exercise, of discretion” or lacking in support by
substantial and material evidence. Cf. CF Indus. v. Tenn. Pub. Serv. Comm’n., 599 S.W.2d 536, 540
(Tenn. 1980) (applying the judicial review standard as contained in the Uniform Administrative
Provisions Act). In City of Memphis v. Civil Service Commission of Memphis, 216 S.W.3d 311,
316 (Tenn. 2007), a case involving the scope of our review after an administrative decision, we
specifically approved the language in Jackson Mobilphone Co. v. Tennessee Public Service
Commission, 876 S.W.2d 106 (Tenn. Ct. App. 1993):

In its broadest sense, the standard[s in (4) and (5)] require[] the court to determine
whether the administrative agency has made a clear error in judgment. An arbitrary
[or capricious] decision is one that is not based on any course of reasoning or
exercise of judgment, or one that disregards the facts or circumstances of the case
without some basis that would lead a reasonable person to reach the same conclusion.

Likewise, a reviewing court should not apply Tenn. Code Ann. § 4-5-
322(h)(5)’s “substantial and material evidence” test mechanically. Instead, the court
should review the record carefully to determine whether the administrative agency’s
decision is supported by “such relevant evidence as a rational mind might accept to
support a rational conclusion.” . . . . The evidence will be sufficient if it furnishes a
reasonably sound factual basis for the decision being reviewed.

Id. at 110-11 (emphasis added) (citations omitted).

Analysis
Having identified the applicable standards of review for the trial court and for this Court, we
now must consider whether the trial court exceeded its authority by setting aside the Panel’s decision
and denying Hughes’ petition for reinstatement. Fundamental to our deliberations is that the license
to practice law in this state is a privilege, not a right. See Tenn. Sup. Ct. R. 9, § 3.1 (2007). “A

10
Prior to Love, this Court’s review of attorney disciplinary proceedings was de novo with a presumption that
the trial court correctly decided the case, unless the preponderance of the evidence was contrary to the trial court’s
decision. See Burnett v. Bd. of Prof’l Responsibility, 100 S.W.3d 217, 220 (Tenn. 2003).

10
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,
924 S.W.2d at 647. Nevertheless, Tennessee and a majority of other jurisdictions, thirty-four states
and the District of Columbia, are consistent with the ABA model disciplinary rules and have no
procedure for permanent disbarment. In those jurisdictions, the length of time that a lawyer is
prohibited from petitioning for reinstatement ranges from five to ten years. Brian Finklestein, Note,
Should Permanent Disbarment Be Permanent?, 20 Geo. J. Legal Ethics 587, 590-91 (2007) (citing
Memorandum from Scott J. Drexel, Chief Trial Counsel to Members of the Bd. Comm. On
Regulation, Admissions & Discipline Oversight (Nov. 7, 2005)). Our Supreme Court Rule 9, section
19.2 provides that “[a] person who has been disbarred after hearing or by consent may not apply for
reinstatement until the expiration of at least five years from the effective date of disbarment.”
Parenthetically, five states–New Jersey, Ohio, Oregon, Indiana, and Kentucky–mandate that all
disbarments are permanent. In eight states, disbarments can be permanent under certain
circumstances. Two states, because reinstatement is approved so infrequently, are listed as de facto
permanent disbarment jurisdictions. Finklestein, supra, at 590-91.

In this state, therefore, reinstatement is always an available remedy but is warranted only
when the criteria articulated in section 19.3 of Supreme Court Rule 9 are satisfied by clear and
convincing evidence. That is, the petitioner must clearly and convincingly show that he or she (1)
has the moral qualifications and (2) legal competency to be admitted to the practice of law in this
state and, further, that (3) reinstatement will not be detrimental to the integrity and standing of the
bar or administration of justice, or subversive to the public interest. See Tenn. Sup. Ct. R. 9, § 19.3.

In O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), our Court of Appeals defined
the clear and convincing standard as follows:

While it is more exacting than the preponderance of the evidence standard, it does
not require such certainty as the beyond a reasonable doubt standard.

Clear and convincing evidence 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.

905 S.W.2d at 188 (citations omitted).

In recommending that Hughes be reinstated, the Panel, after considering the evidence pro and
con, concluded that he had clearly and convincingly proved

that he has the knowledge of the law sufficient to completely represent his clients,
that he has shown that he has been rehabilitated and is now of the moral character to
undertake the profession of law in an ethical manner and that his resumption of the
practice of law will not be detrimental to the integrity of the bar, the administration

11
 of justice and the public interest.

The Panel further determined that it “[was] of the opinion based upon the testimony presented, [its]
review of Section 14.2, Rule 9 of the Supreme Court . . . and case law that the passage of time since
[Hughes’] disbarment is sufficient taking into account the seriousness of [Hughes’] unethical acts
for re-entry into the legal profession.”11 The trial court, having received the same evidence
considered by the Panel, disagreed as to two of the criteria–moral character and the effect of any
reinstatement on the integrity of the bar, the administration of justice, and the public confidence.

Upon our own consideration of the record, we must determine whether the trial court had a
proper basis for overturning the Panel’s decision and by holding that their decision was not clearly
and convincingly supported by substantial and material evidence as to the three essential
requirements. Tenn. Sup. Ct. R. 9, § 1.3 (2007).

Standards for Reinstatement
A. Moral Qualifications
We first address whether Hughes demonstrated that he has the moral qualifications to be
reinstated to the practice of law. See Tenn. Sup. Ct. R. 9, § 19.3. The 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.” Murphy, 924 S.W.2d at 647.

In the hearing before the Panel, Hughes testified that during his ten years as a practicing
attorney, his primary area of practice was criminal law. He described himself as aggressive and
angry between 1992 and 1996, partly because of the rape of his wife during the period of their
engagement and his belief that the police were not trying to find the offender. He explained that, as
a consequence of his mental state, he drank heavily, used foul language, and was unfaithful in his
marriage. He stated that he was devastated by his convictions for bribery. He admitted
responsibility for his misconduct, apologized to the Panel, and acknowledged that his crimes of
bribery and conspiracy to bribe a witness had reflected poorly upon the legal profession. In response
to a question as to what led him to his convictions, Hughes stated as follows:

Well, I remember in law school, Judge Todd taught us [that] reputation is what
people think of you, but character is what you really are. And I would consider
myself to have had two character flaws. One was alcohol, and one was women.

And I’ve tried every day to try to relook and think, because . . . my life has changed
so much, and I’m so proud of it today, but I allowed those two deviltries to allow me

11
Rule 9, section 14.2 states: “The term ‘serious crime’ shall include any felony under the laws of Tennessee
and any other crime a necessary element of which as determined by the statutory or common law definition of such crime,
involves improper conduct as an attorney, interference with the administration of justice, false swearing,
misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or
an attempt or a conspiracy or solicitation of another to commit a ‘serious crime.’”

12
 to drift into areas that I should never have gone.

And looking back, . . . I want to take this time to apologize to you-all . . . because I
absolutely brought a stench to the profession that I absolutely love. And I will
promise you and I have promised other people that I will spend the rest of my time
refining and making . . . right. I owe that to my profession, I owe that to my God, and
I owe that to myself.

Hughes testified that he was baptized on March 15, 1998. While he was incarcerated, he
conducted Bible studies for other inmates and taught many to read and write. He stated that he had
not consumed any alcohol since August of 1997 and further testified to his active participation in
church-related activities and ministries. Since his release, Hughes has been invited to speak to a
variety of organizations regarding his convictions and the change in his life.

He filed a post-judgment affidavit documenting his continuing efforts to comply with the
Panel’s suggestion to “tell his story” to other attorneys. Among his more recent engagements, he
has addressed the Tennessee Association of Criminal Defense Lawyers Fall/Spring 2006 CLE
seminar in Knoxville, Memphis, and Nashville on the subject of Ethical Dilemmas in the Modern
World. He was the keynote speaker at the Twenty-Fifth Annual Knoxville/Knox County
Community Leaders Prayer Breakfast in September of 2007.

All fifteen of Hughes’ witnesses testified that Hughes possessed the moral qualifications to
practice law in this state. Many of these witnesses provided details as to the positive changes in his
character and behavior since his conviction for bribery and expressed the firm belief that the
conversion was change is genuine. Judge Brown remarked, “I’m a great believer in redemption, and
I believe Dennis has been redeemed.” Yarbrough, who had maintained continual contact with
Hughes since the 1997 convictions, commented as follows:

I think Dennis is a totally new person. If you want to talk about Dennis nine years
ago, no way, no way, shouldn’t have a license, shouldn’t be allowed to have a
license.

The Dennis of today is a new person, and I am very confident that he has got not only
the moral qualifications to have a law license but is probably better suited now,
having been through what he’s been through, than a lot of the rest of us to know what
the hazards are and to be able to pull it off.

Raybin agreed, saying, “I’m here because of all the people I’ve heard of having to come back over
here, he’s the only one that I think has changed to the point where I would feel comfortable sitting
in Court with him as my co-counsel in a case.” Further, Attorney Young confirmed that Hughes had
taken full responsibility for his misdeeds, sought forgiveness, acknowledged his alcoholism, and
taken all necessary steps towards rehabilitation. The several other judges appearing on Hughes’
behalf attested to his conversion. Many of the witnesses described the different ways in which

13
Hughes had continuously demonstrated the transformation of his character.

The BPR offered little, if any, evidence that Hughes had failed to rehabilitate his moral
character. While District Attorney General Johnson testified that Hughes’ reputation for truth and
veracity and for conducting himself properly between 1987 and 1996 with attorneys “wasn’t
particularly good,” he acknowledged his unawareness of Hughes’ progress since his convictions.
Attorney Norton and Dean Kay had no knowledge of Hughes’ moral qualifications at the time of the
hearing.

In our view, the record in this cause includes substantial and material evidence supportive
of the Panel’s conclusion that Hughes had proved with clear and convincing evidence that he has the
moral qualifications to be reinstated to the practice of law. Of the conditions imposed by the Panel,
he has completely fulfilled two requirements. Having a limited earning capacity, Hughes has made
restitution to his former clients and has paid all court costs. As to his remaining obligations, he
produced documentation indicating a payment schedule of one hundred dollars a month towards a
third condition – payment of his $15,000 court-imposed fine. Those qualify as expressions of good
faith on the issue of his character. Finally, while disagreeing with the Panel on the moral character
issue, the trial court nevertheless made particular note of Hughes’ rehabilitative efforts and his
“much improved moral character.” As to this criteria, the trial court should have affirmed the
decision of the Panel, which heard the testimony firsthand, and accredited those witnesses attesting
to Hughes’ reformed moral character.

B. Legal Competency
In addition to showing that he has the moral qualifications to be admitted to the practice of
law, Hughes had the further burden to demonstrate that he possessed the legal competency to be
admitted to the practice of law in this State. See Tenn. Sup. Ct. R. 9, § 19. Pursuant to section 19.7
of Supreme Court Rule 9, “reinstatement may be conditioned upon the furnishing of such proof of
competency . . . which proof may include . . . successful completion of [the bar] examination.”
Further, this Court has held that if a disbarred or suspended attorney has not practiced law in ten or
more years, there is a presumption that, at a minimum, successful completion of the essay portion
of the bar examination is necessary, absent extenuating circumstances. See Davis, 696 S.W.2d at
532. In Burnett, 100 S.W.3d at 225, however, we ruled that when “the petitioner has taken specific
measures during the course of the suspension which enabled [him] to maintain his . . . competency
and knowledge of the law,” that would “certainly qualif[y] as extenuating circumstances.”

Hughes testified that he felt competent doing any type of legal work except income tax.
Raybin confirmed his abilities:

He’s always been a very competent lawyer in the sense of knowing some criminal
law. Many times he and I would converse and talk about cases. He would have the
knowledge enough to ask the right questions, which I always considered to be the
most important thing. He was very effective as a litigator. He knew the law . . . .
[He] still is a competent attorney.

14
In addressing Hughes’ legal competency, Young stated, “He’s done more continuing legal education
hours [than] I’ve done in the last several years. . . . He has continued to educate himself.” Judge
Brown testified that Hughes had audited an ethics course at the Nashville School of Law after his
release from incarceration.

In Burnett, 100 S.W.3d at 219, an attorney filed for reinstatement after being suspended for
nine years and seven months. By the time of the panel hearing, Burnett had not practiced law for
well over ten years. In that case, the sole issue presented for our review was whether he had
demonstrated that he had the competency and learning in law for admission to practice law. Burnett
proved that he had earned 122 hours of general legal education and 21.5 hours of ethics over a nine-
year period; while incarcerated, he had spent twelve to fourteen hours a day in the law library
studying the law and assisting other inmates prepare legal papers in both criminal and civil matters;
he had been employed in law-related jobs since his suspension; he reviewed and studied advance
sheets containing appellate decisions; he assisted both of his sons with their legal educations and
preparation for the Tennessee bar examination; he discussed substantive legal issues and strategic
trial strategy with his sons after they became licensed attorneys; and he had served as a panelist on
a daily news and public radio program in Nashville where he responded to questions regarding the
law. Id. at 218. We found that this evidence had overcome the presumption that reinstatement
should be condition upon his successful completion of the bar examination. Id. at 226.

The order disbarring Hughes from the practice of law was effective June 24, 1997, the date
of his summary suspension. Although he filed his petition some seven years later, now
approximately eleven years have passed since the effective date of his disbarment. Thus, it is
presumed that Hughes should be required to take the essay portion of the Tennessee bar examination,
absent extenuating circumstances.

The circumstances here are, however, indistinguishable from those in Burnett with regard
to proof of competency and learning in the law. Hughes had completed 199 hours of legal education
credits during the time when only 150 hours were required. He established that he had studied
independently at the University of Tennessee College of Law library during the two years before his
incarceration, reading the advance sheets and studying case law. He has continued his studies at the
law library since his release, including a semester of ethics at the Nashville School of Law and
review of the legal materials provided by Judge Brown. In establishing the conditions for Hughes’
reinstatement, the Panel did not impose any further requirement to prove his legal competency. The
trial court did not take issue with the Panel’s ruling in that regard, observing that Hughes had the
competency and learning to practice criminal law.

The record includes substantial and material evidence that Hughes has maintained his
competency and knowledge of Tennessee law. In our opinion, the Panel and the trial court properly
ruled on the issue. Further, in light of our ruling in Burnett, the undisputed evidence that Hughes
has undertaken his continuing legal educational responsibilities since his disbarment relieves him
from the requirement to take the bar examination.

15
 C. Impact of Reinstatement on the Integrity and Standing of the Bar
and Administration of Justice and the Public Interest
The third and final criterion that a petitioner must demonstrate with clear and convincing
proof is that reinstatement will not have a detrimental effect on the standing or integrity of the bar
or administration of justice or be subversive to the public interest. Tenn. Sup. Ct. R. 9, § 19.3.
While the first two criteria for reinstatement–moral qualifications and competency in the law–focus
primarily on Hughes’ conduct since his criminal convictions and disbarment, this third criterion
requires us to consider not only the nature of the conduct that led to his disbarment but the impact,
if any, that his reinstatement, in the context of his wrongs, will have on the integrity of and public
trust in our system of jurisprudence. That assessment is more subjective in nature, and on occasion,
may be less dependent upon the proof in the record than our own sense of professional responsibility
and the respect we, as the final regulatory authority, hold for the society we serve.12 Indeed it is the
ultimate duty of this supreme court to regulate the legal profession and those entitled to engage in
the practice. In re Burson, 909 S.W.2d at 773. While we have delegated important tasks to the
Board of Professional Responsibility and rely upon that body to administer the directives embodied
in our rules, this court has not relinquished altogether our plenary powers of review on matters of
public policy.

In Love, we outlined the new standard of review for the trial court when reviewing
determinations of the Panel. In discussing our responsibilities on appeal, we analogized our scope
of review in professional responsibility with that outlined in the Uniform Administrative Procedures
Act. See Tenn. Code Ann. § 4-5-322(a)(1), (h)(1)-(5)(A) (2005). Then we determined that the Panel
“may not be reversed or modified unless arbitrary or capricious or characterized by an abuse, or
clearly unwarranted exercise, of discretion and must stand if supported by substantial and material
evidence.” Love, __ S.W.3d at __. As to this third criterion, we must qualify this statement.

12
The Preamble to the Code of Professional Responsibility provides, in part, as follows:

The continued existence of a free and democratic society depends upon recognition of the concept that
justice is based upon the rule of law grounded in respect for the dignity of the individual and the
individual’s capacity through reason for enlightened self-government. Law so grounded makes justice
possible, for only through such law does the dignity of the individual attain respect and protection.
W ithout it, individual rights become subject to unrestrained power, respect for law is destroyed, and
rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the preservation of society. The
fulfillment of this rule requires an understanding by lawyers of their relationship with and function in
our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical
conduct.
* * *
but in the last analysis it is the desire for respect and confidence of the members of the legal profession
and the society which the lawyer serves that should provide to a lawyer the incentive for the highest
possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate
sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble
profession. This is its greatness and its strength which permit of no compromise.

Tenn. Sup. Ct. R. 8.

16
 While Love describes the standard of review applicable to the trial court, that opinion should
not be read as a limitation upon this Court’s ultimate authority to intercede on a policy basis
regarding admission to the bar. We here recognize that Rule 9, section 1.3 is not perfectly analogous
to the Uniform Administrative Procedures Act because of our supervisory prerogative over the Board
of Professional Responsibility. We reserve the right to invoke this power on those occasions when
the integrity of the bar and the public trust of our system of justice is at stake.13

During the ten years preceding his convictions, Hughes’ record as a practicing attorney was
not unblemished: four complaints were filed against him for misconduct in 1990; he was indicted
by a Davidson County Grand Jury on three misdemeanor charges in 1994; disciplinary proceedings
were initiated against him based on four additional complaints in 1996; and supplemental
proceedings were lodged in 1998 based on six additional complaints. While Hughes’ conduct during
this ten-year period was not the reason for his disbarment, it is important in our review because,
together with his felonious acts of bribing a witness and conspiring to bribe a witness, it
demonstrates a pattern of behavior over a period of years that conflicts with the standards of the bar,
the sanctity of our judicial system, and the public trust. The more serious the past offenses, of
course, the more likely the erosion of public confidence upon reinstatement.

The Preamble to the American Bar Associations’ Model Rules of Professional Conduct
provides that “a lawyer should further the public’s understanding of and confidence in the rule of law
and the justice system because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority.” Lawyers must be aware of the duty owed to
the public, the judicial system, and the bar. Every applicant for admission to the bar takes a solemn
oath “to truly and honestly demean myself in the practice of my profession to the best of my skill and
abilities, so help me God.” Tenn. Sup. Ct. R. 6 (2007).

In Schoolfield v. Tennessee Bar Association, 353 S.W.2d 401, 404 (Tenn. 1961), this Court
has articulated the importance of attorney integrity in our system of justice:

It is the duty of an attorney to uphold the honor of the profession of law; to
be honest, to be of good conduct in the discharge of his duties to the Court, the public
and his clients. Attorneys are trusted by the community with the care of their lives,
liberty and property with no other security than personal honor and integrity.

The trust and confidence which must necessarily be reposed in an attorney
requires him to maintain a high standard of moral character and a due appreciation
of his duty to his profession, the courts and the public. He is charged with the duty
of good faith and honorable dealing on all occasions.

13
Our review on policy matters affecting public confidence in the judiciary is comparable to the review of a
trial court’s application of the law to the facts–de novo with no presumption of correctness. State v. Crutcher, 989
S.W .2d 295, 299 (Tenn. 1999); State v. Yeager, 958 S.W .2d 626, 629 (Tenn. 1997).

17
Other jurisdictions have addressed the impact of an attorney’s conduct involving crimes that reflect
upon the integrity of the judicial system and public confidence. The Supreme Court of Kansas, in
permanently disbarring an attorney for conspiring to bribe a police officer, made the following
observation:

Conspiracy to bribe a police officer in order to protect and promote other illegal
activities is an offense that is totally repugnant to the administration of justice and the
duties of an attorney who has taken a solemn oath to uphold the constitutions and
laws of the United States and the State of Kansas. Such an offense strikes at the very
heart of our criminal justice system and if tolerated could completely destroy our
system of justice as it has always existed in this country.

State v. Russo, 630 P.2d 711, 716-17 (Kan. 1981); see also In re Brown, 273 S.E.2d 567, 571
(W.Va. 1980) (denying reinstatement for an attorney who was convicted of conspiracy to commit
bribery and bribery of a juror because reinstatement would have a “justifiable and substantial adverse
effect on public confidence in the administration of justice”).

In our review of the impact of Hughes’ restatement on the integrity of the bar, the
administration of justice, and the public interest, we first address two of the findings that served as
a basis for the trial court’s denial of reinstatement. Initially, the trial court found in June of 2007 that
“the passage of just less than seven years from the date of Mr. Hughes’ conviction and suspension
is an insufficient period of disbarment,” given the egregiousness of his act and the serious obligations
that he accepted as a member of the legal profession. That was a miscalculation of the length of the
disbarment. In fact, Hughes had been disbarred for almost ten years at the time the judgment was
filed. Aside from the minimum requirement for five years, this Court has never recognized any
particular lapse of time before a petition to reinstate might be filed. Moreover, under our rules, it
is the attorney’s moral qualifications, competency and learning in the law, and the impact of the
attorney’s reinstatement on the integrity of the bar, administration of justice, and public interest that
are paramount in the determination of eligibility for reinstatement. The length of the disbarment is
only a factor.14 Tenn. Sup. Ct. R. 9, § 19.3. Secondly, the trial court found that Hughes had not

14
The case of In re Hiss, 333 N.E.2d 429 (M ass. 1975) (overruled in Aetna Casualty and Surety Co. v. Niziolek,
481 N.E.2d 1356 (Mass. 1985) as to point of law relating to the preclusive effect of a conviction obtained after a trial
in subsequent civil litigation) is representative of the majority view that reinstatement is always available after a
disbarment. In 1950, Hiss was convicted of two counts of perjury for testimony provided a federal grand jury after an
investigation by the Committee on Unamerican Activities to the House of Representatives. United States v. Hiss, 185
F.2d 822 (2d Cir. 1950), cert. denied 340 U.S. 948 (1951); see also United States v. Hiss, 107 F.Supp. 128 (S.D.N.Y.
1952), aff’d per curiam, 201 F.2d 372 (2d Cir. 1953), cert. denied 345 U.S. 942 (1953). He served three and one-half
years in a federal prison. On August 1, 1952, Hiss was disbarred. Twenty-two years later, Hiss, then sixty-nine years
of age, filed a petition for reinstatement to the bar of M assachusetts. Despite the fact that perjury was classified as an
“attack on the foundation of our judicial system,” the Supreme Judicial Court of Massachusetts determined that “the
serious nature of the crime and the conclusive evidence of past unfitness to serve as an attorney do not necessarily
disqualify” a petitioner. 333 N.E.2d at 433. That court held that no “offense is so great that a disbarred attorney is
automatically precluded from attempting to demonstrate . . . that he has achieved a present fitness to serve as an attorney
and has led a sufficiently exemplary life to inspire confidence once again, in spite of his previous actions.” Id. at 433.
Further, the court observed that “the public welfare, ‘the true test’ in all proceedings for reinstatement, calls for [the

18
made any effort to pay his fines or make restitution to his former clients in those instances where he
had taken money for little or no services in return. While the record was not entirely clear at the time
the trial court entered its judgment, the post-judgment facts submitted by Hughes establish that he
has made restitution to his former clients, has paid all court costs, and is making monthly payments
on his $15,000 fine. Other than paying the full amount of the fine, a task which will take several
years at the current payment schedule, Hughes has met his financial obligations. Both the Panel and
the trial court recognized his limited earning powers. That he is making some effort to pay under
those circumstances is helpful to his cause.

While recognizing that it is an attorney’s “absolute duty to conduct himself so as to reflect
credit upon himself and the [legal] profession,” Schoolfield, 353 S.W.2d at 404, we also recognize,
in disciplinary proceedings, the importance of documenting any efforts toward professional
reformation and personal redemption. Those efforts reflect not only upon the moral character issue,
but are relevant to this third criterion as well. In its decision to set aside the Panel’s judgment, the
trial court, referencing Murphy, observed:

The attitude of our Supreme Court regarding this type of conduct [bribery] is
expressed in Murphy v. Board of Professional Responsibility, [citation omitted]. In
that case the attorney was convicted in federal court of perjury and obstruction of
justice by attempting to improperly influence the testimony of a witness before the
federal grand jury. He entered a guilty plea in the disciplinary proceeding in
exchange for a five year suspension of his law license. Like Mr. Hughes, Mr.
Murphy had a number of witnesses who testified as to their high opinions of his
morality and legal competence. Nevertheless, the Supreme Court denied his
application for reinstatement because ‘(s)uch conduct strikes at the very heart and
soul of the judicial system and without question would have a detrimental impact on
the integrity and standing of the bar, the administration of justice and the public
interest.’

In Murphy, where the panel denied reinstatement and the trial court reversed, granting a
conditional reinstatement, we sided with the panel, placing particular emphasis on the fact that
Murphy, a sitting judge, held a position of public trust. 924 S.W.2d at 647.15 We observed that “the
publicity and notoriety attendant to his conduct . . . was much greater than it otherwise would have
been had he been simply a practicing attorney.” Id. We concluded that the testimony was

opportunity to establish rehabilitation].” Id. at 435 (citations omitted) (quoting In re Keenan, 314 Mass. 544, 547 (1943)).
In judging whether Hiss satisfied the requisite rehabilitation, the Massachusetts court considered (1) the nature of the
original offense; (2) the character, maturity, and experience of the petitioner at the time he was disbarred; (3) his work
history and conduct since the disbarment; (4) the time elapsed since the disbarment; and (5) his present competence in
legal skills. Id. at 437-38. Because well over twenty years had elapsed since Hiss’s disbarment and because he had
developed a reputation of honesty and rectitude, industriously supported his family, and pursued “scholarly interests”
through a program of diverse lectures and the publication of articles and books, he was reinstated into the practice of law.

15
Ira H. Murphy, a general sessions judge in Shelby County, Tennessee, was convicted of lying to a federal
grand jury and attempting to get another person to lie to the grand jury.

19
“completely devoid of specific facts and circumstances which have arisen since [his] convictions that
demonstrate either rehabilitation or remorse . . . [and that] [t]here [was] no specific evidence in the
record as to the efforts [he] has made to reform and make amends . . . .” Id.

In contrast, the record before us consists almost entirely of the efforts that Hughes has made
toward rehabilitation since his trial and convictions. The evidence shows that Hughes has embraced
his religious faith, maintained his employment, and addressed bar groups about his serious mistakes
as a lawyer and the change he has undergone in his life since his convictions. While his crimes do
indeed strike at the “very heart and soul” of our system of justice, we cannot conclude, as we did in
Murphy, that the record is devoid of specific evidence demonstrating efforts “to reform and make
amends.” For that, Hughes merits some commendation. But there remains the considerable issue
of how, on balance, reinstatement at this time, in the context of such serious offenses, might be
perceived as a reflection of the quality of the bar and the impact on the public’s confidence in the
administration of justice.

In In re Raimondi, 403 A.2d 1234, 1239 (Md. 1979), the Maryland Supreme Court
acknowledged that “[t]here may be a point in time when it is proper to reinstate to the practice of law
even one who has committed a most heinous crime.” However, in considering an application for
reinstatement by two disbarred attorneys, one of whom had been convicted of embezzlement,
larceny, and conspiracy and the other of whom had been convicted of attempting to bribe a member
of the legislature, the Maryland Supreme Court–recognizing that the more serious the original
misdeeds, the heavier the burden to prove fitness for reinstatement–applied a balancing test. Id.
That is, while acknowledging its essential duty to maintain the faith and confidence of the public,
the Maryland court weighed the egregiousness of the misconduct of the attorneys against their
subsequent efforts at reformation, present moral character, and present competence to undertake the
practice of law. In weighing those factors, the Maryland court declined to reinstate. Id. at 1240-41.

In this instance, the BPR offered plausible testimony on the potential negative impact of
Hughes’ reinstatement as to the integrity of the bar. The district attorney, the representative of the
Nashville Bar Association, and a law school dean who teaches the ethics of the profession spoke
against reinstatement. Thus, in 2005, three respected lawyers representing important components
of the legal profession continued to express concern about the propriety of a reinstatement. On the
other hand, the witnesses appearing on Hughes’ behalf, most of whom are active members of the
bench and bar, expressed the belief that because of his exceptional efforts, the integrity of the bar
would not be compromised.

As stated, however, it is our ultimate responsibility to determine whether the heartfelt
testimonials by witnesses favorable to Hughes trump our own assessment of the likely effect of his
reinstatement upon the public confidence in the administration of justice. In addressing that issue,
we have a duty to apply our own sense of values. Hughes’ crimes, conspiracy to bribe and the
bribery of an eyewitness, were committed in a first-degree murder charge where he acted as defense
counsel. Clearly, his acts demonstrated a flagrant disregard for the principles upon which our legal
system is grounded. See In re Renfroe, 695 A.2d 401, 404 (Pa. 1994) (“When an attorney attempts
to bribe a witness or a court official for the purpose of affecting the outcome of a judicial proceeding,

20
he has stricken at the heart of the judicial system itself.”); In re Disciplinary Proceedings Against
Kronenberg, 117 P.3d 1134, 1140 (Wash. 2005) (stating that “[a]ttempting to tamper with a witness
represents a flagrant disregard for the very principles upon which our legal system is grounded and
renders an attorney unfit to practice law) (quoting In re Disciplinary Proceeding Against Stroh, 644
P.2d 1161, 1167 (1982)). The egregiousness of his conduct cannot be overstated. Even though
thirteen years have passed since the crimes and eleven years since the disbarment, it is our view that
the preservation of the integrity of the bar and our interest in the protection of the public outweigh
the totality of Hughes’ rehabilitative efforts. That is, the evidence is not sufficient to resolve our
doubts on this important criterion. The practice of law is a distinct privilege–the more serious the
abuse of that privilege, the more onerous the burden of atonement. In summary, we conclude that
his reinstatement to the practice of law at this time would be detrimental to the standing of the bar,
the administration of justice, and the public interest. In making this assessment, we acknowledge
our role as the final disciplinary authority for violations of the rules governing our profession and
our inherent power to administer those rules.

Conclusion
Pursuant to our analysis in Love, section 1.3 of Supreme Court Rule 9 should be applied
retrospectively. Trial courts must review a hearing conducted by a panel of the Board of
Professional Responsibility on the transcript and may take additional proof only as a means of
resolving any irregularities in the process. Reversal is warranted under these circumstances only if
the Panel acted arbitrarily or with caprice or made a ruling “unsupported by evidence which is
substantial and material.”

In this particularly difficult case, we find that the third criterion for reinstatement, when
subjected to a broadened scope of review, was not supported by “substantial and material evidence”
overcoming the nature of the crimes. Because his rehabilitation efforts thus far do not outweigh the
seriousness of the crimes, Hughes’ reinstatement would be detrimental to the integrity of the bar, the
administration of justice, and protection of the public interest. Accordingly, we affirm the judgment
of the trial court. Costs of this appeal are assessed to the petitioner.

_____________________________
GARY R. WADE, JUSTICE

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