IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FOR PUBLICATION
Filed: June 3, 1996
IN RE: IRA H. MURPHY, )
)
Appellee, ) SHELBY CHANCERY
)
)
Vs. ) HON. JOHN HILL CHISOLM,
) CHANCELLOR
)
BOARD OF PROFESSIONAL )
RESPONSIBILITY, ) No. 02-S-01-9503-CH-00031
)
Appellant. )
FILED
June 3, 1996
Cecil Crowson, Jr.
For Appellant: For Appellee: Appellate C ourt Clerk
Laura L. Chastain A. C. Wharton, Jr.
Deputy Chief Disciplinary Counsel Memphis, Tennessee
Nashville, Tennessee
OPINION
TRIAL COURT REVERSED;
HEARING PANEL AFFIRMED. ANDERSON, C.J.
The issue raised by this appeal is whether the petitioner, a disbarred
attorney, has satisfied the requirements for reinstatement of his license to
practice law contained in Rule 9, § 19.3, Rules of the Supreme Court, by clear
and convincing proof. A Hearing Panel of the Board of Professional
Responsibility concluded that the petitioner had failed to carry the burden of
proof for reinstatement. The Chancery Court, however, reviewed the Hearing
Panel decision and held the petitioner was entitled to "conditional reinstatement"
of his license to practice law.
After carefully reviewing the record, we conclude that the evidence
preponderates against the Chancellor’s judgment granting conditional
reinstatement. Accordingly, we reverse the decision of the Chancellor and affirm
the Hearing Panel’s decision denying reinstatement.1
BACKGROUND
On July 16, 1986, Ira H. Murphy was convicted in federal court on eleven
counts of mail fraud, one count of obstruction of justice, and one count of
perjury. Murphy's convictions for mail fraud arose out of his attempts to obtain
and renew a permit to operate a bingo parlor in Shelby County. Over the course
of three years, Murphy submitted documents to the Tennessee Secretary of
State’s office which contained false and fraudulent representations with respect
to the existence of the H.D. Whalum Lodge #373 (the purported operator of the
bingo game); the tax exempt status of the Lodge; the location of the bingo
games; and the membership of the Lodge. In addition to the false and
1
Because we have concluded that reinstatement is not warranted by the proof, it is not
necessary for us to consider whether Murphy should have been required to take the bar
exam ination as a condition to reinstatem ent.
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fraudulent representations, Murphy forged the name of Charles Brooks on
documents he submitted to the Secretary of State and wrote checks to himself
on the bingo game bank account which totaled more than $9,000.
Murphy’s conviction for obstruction of justice was based upon his attempt
to influence the grand jury testimony of Charles Brooks regarding the bingo
operation. Murphy’s conviction for perjury was based upon his false grand jury
testimony concerning the bingo operations and his involvement in the operations.
The criminal activities for which Murphy was convicted occurred over a
two and one-half to three year period and began approximately two months after
Murphy had been elected a judge of the General Sessions Court in Shelby
County.
Murphy was thereafter sentenced to five years imprisonment on each of
the thirteen convictions, with the sentences to run concurrently; he was also
fined $5,000. He began serving his sentences in October 1986.
In December of 1986, the Tennessee Court of the Judiciary entered an
order recommending that Murphy be removed from office. Murphy appealed and
this Court affirmed the Court of Judiciary’s recommendation of removal and
remanded to the General Assembly for its consideration. See In Re Murphy, 726
S.W.2d 501 (Tenn. 1987). In a special joint convention, the General Assembly
voted to remove Murphy from office.
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The Federal Sixth Circuit Court of Appeals later overturned the mail fraud
convictions, but affirmed the convictions for obstruction of justice and perjury.
Ultimately, Murphy served a total of twenty months, approximately fourteen
months in federal prison and six months in a halfway house, before being
released on parole for the remainder of his sentence.
Based on Murphy's convictions, this Court entered an Order summarily
suspending his law license on July 24, 1986. The matter was referred to the
Board of Professional Responsibility for the initiation of a formal disciplinary
proceeding.
Murphy entered a conditional guilty plea on the "petition to determine
extent of final discipline" filed by the Disciplinary Counsel of the Board of
Professional Responsibility. In an Order of Enforcement, this Court suspended
Murphy from the practice of law for a period of five years beginning July 24,
1986, the date of the original summary suspension of Murphy's license to
practice law.
Shortly after the five-year suspension period ended, Murphy filed a
petition with the Board of Professional Responsibility seeking to have his license
to practice law reinstated. The Disciplinary Counsel filed a response opposing
reinstatement.
The cause was heard by a Hearing Panel of the Board of Professional
Responsibility. The parties stipulated that Murphy had met all continuing legal
education requirements for reinstatement.
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Murphy's proof consisted of the testimony of a number of witnesses, both
attorneys and laypersons. Each testifying witness had known Murphy for more
than fifteen years, and expressed a high opinion of Murphy’s competence and
morality. In addition, each testified that Murphy accepts full responsibility for his
prior misconduct, that he is remorseful for it, and that he has "paid the price" for
his misconduct and now deserves to have his law license reinstated. None of
the witnesses related any specific facts or interactions with Murphy since his
conviction that formed the basis of their opinions. Only one defense witness,
former Shelby County Criminal Court Judge Otis Higgs, expressed concern that
reinstatement would negatively impact the standing of the bar and the
administration of justice. Judge Higgs recommended a conditional, gradual
reinstatement, with monitoring and reporting conditions.
Murphy testified on his own behalf that he has learned from his
experiences and now seeks reinstatement so that he can make a valuable
contribution to the community. He said incarceration has made a deep
impression upon him, and he believes his reinstatement would signify to the
public that a person properly punished can be given a second chance.
Disciplinary Counsel's proof consisted of documentary evidence to
establish that in 1973, Murphy was convicted in federal court for failure to file
income tax returns for two years. He received a one-year sentence that was
served on probation. In June 1983, Murphy tendered a conditional guilty plea to
a violation of DR 6-101(a)(3)2 and received a public censure for neglecting legal
matters entrusted to him regarding payment of an outstanding debt to a doctor
out of a client’s settlement proceeds.
2
Supreme Court Rule 8, DR 6-101(A)(3) provides that “A lawyer shall not neglect a legal
matte r entruste d to the law yer.”
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Disciplinary counsel’s proof also consisted of testimony from a prior chair
of the Professionalism Committee of the Memphis Bar Association who stated
that the committee had reviewed Murphy’s application for reinstatement, as well
as the facts giving rise to his suspension, and had voted, ten to five, to oppose
his reinstatement. Those committee members who did not oppose Murphy’s
reinstatement believed they had insufficient information as to his activities since
being released from jail upon which to base opposition. The President of the
Memphis Bar Association also testified that the Executive Committee had
recommended opposition to Murphy’s reinstatement, but testified that he
personally was of the opinion that the Bar should not go on record as opposing
Murphy’s reinstatement, but should recommend that his reinstatement be
conditioned upon an additional continuing legal education requirement, with a
particular emphasis on ethics. Finally, retired Supreme Court Justice William D.
Fones testified that, in his opinion, Murphy’s reinstatement would have a
detrimental impact on the integrity and standing of the bar, the administration of
justice in Tennessee, and the public interest, and, in addition, would damage the
public perception of the legal system.
Based on that proof, a majority of the Hearing Panel concluded that
Murphy had failed to carry his burden of proof on the criteria for reinstatement.
In so holding, the majority stated, in pertinent part, as follows:
The Panel majority cannot state that Petitioner has met by
clear and convincing evidence [the requirement] that the
reinstatement of Petitioner, a former Judge who committed a series
of felonies over a period of three years, then induced a witness to
lie to the Federal Grand Jury, who criticized the fairness of his jury
trial and proceedings before the Court of the Judiciary, and even
subsequent to conviction maintained his innocence before the
Tennessee State Legislature and further sought salary payments
subsequent to removal from office and during incarceration, would
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not be detrimental to the integrity and standing of the Bar, or the
administration of justice, or subversive to the public interest.
One member of the Hearing Panel dissented, stating that "some
conditional reinstatement is warranted, and it is error to completely deny
readmission."
On August 20, 1992, Murphy filed a petition for writ of certiorari and
judicial review in the Chancery Court of Shelby County. Murphy relied upon the
record before the Hearing Panel and presented as witnesses several additional
attorneys and laypersons who testified they had known Murphy for many years,
considered him competent, and morally deserving of reinstatement, and did not
believe that his reinstatement would negatively impact the standing of the bar,
the public interest, the administration of justice, or the public’s perception of the
legal profession. Former Shelby County Criminal Court Judge Otis Higgs again
testified for the defense that, in his opinion, Murphy should be granted a gradual,
conditional reinstatement. Murphy himself again testified that he was a fit and
proper person to have his license reinstated, and that if reinstated, he would
practice in an honorable and professional manner.
Following the hearing, the Chancellor found that Murphy was entitled to a
"conditional reinstatement" of his license to practice law. The conditions
imposed by the Chancellor consisted of additional continuing legal education,
including ethics, volunteer work with a legal services organization, and
supervised law practice for one year. Upon satisfactory completion, Murphy
would be allowed to resume an "unrestricted and unconditioned" practice of law.
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The Board appealed directly to this Court pursuant to Rule 9, § 1.3, Rules
of the Supreme Court.
REINSTATEMENT
With regard to reinstatement, the Rules of the Supreme Court provide, in
pertinent part, as follows:
The hearing committee shall schedule a hearing at which the
petitioner shall have the burden of demonstrating by clear and
convincing evidence that the attorney has the moral qualifications,
competency and learning in law required for admission to practice
law in this State and that the resumption of the practice of law
within the State will not be detrimental to the integrity and standing
of the bar or the administration of justice, or subversive to the
public interest.
Supreme Court Rule 9, § 19.3 (emphasis added). Although the Board asserts
that Murphy has failed to demonstrate by clear and convincing evidence that he
has either the moral qualifications, or the competency and learning in law
required for admission to practice law in this State, we view the determinative
issue to be whether his reinstatement would be detrimental to the integrity and
standing of the bar or the administration of justice, or subversive to the public
interest. Our review of the record, including the transcript of the evidence before
the Hearing Panel, is de novo with a presumption of correctness unless the
preponderance of the evidence is contrary to the action of the Chancery Court.
Henry v. Board of Professional Responsibility, 749 S.W.2d 466, 467 (Tenn.
1988); Rule 9, § 1.3, Rules of the Supreme Court.
We have thoroughly and carefully examined the record of both the
Hearing Panel and the Chancery Court and summarize our observations as
follows:
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Murphy was convicted in federal court of perjury and obstruction of justice.
Not only did Murphy lie to the federal grand jury, he attempted to persuade
another person to lie to the grand jury. Such conduct strikes at the very heart
and soul of the judicial system and without question would have a detrimental
impact on the integrity and standing of the bar, the administration of justice and
the public interest. In this case, that detrimental impact is exacerbated because
the illegal conduct and convictions occurred while Murphy was occupying a
position of public trust as a sitting judge of the general sessions court of Shelby
County. Because Murphy was a sitting judge, the publicity and notoriety
attendant to his conduct and convictions was much greater than it otherwise
would have been had he been simply a practicing attorney.
A number of individuals testified in favor of reinstating Murphy’s license to
practice law. When asked to explain the reasons for their support of his
reinstatement, these witnesses said that Murphy has “paid the price,” and that he
has rehabilitated himself and is remorseful for his actions. Their testimony,
however, is totally conclusory and completely devoid of specific facts and
circumstances which have arisen since Murphy’s convictions that demonstrate
either rehabilitation or remorse. Moreover, while this testimony may be relevant
to Murphy’s moral character, it bears little relevance on the question of whether
Murphy’s reinstatement would be detrimental to the integrity and standing of the
bar or the administration of justice or subversive to the public interest. There is
no specific evidence in the record as to the efforts Murphy has made to reform
and make amends, and in the absence of such proof, we conclude that he has
failed to prove the criteria for reinstatement by clear and convincing proof.
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The license to practice law is not a right but a privilege in Tennessee.
See Rule 9, § 3.1, Rules of the Tennessee Supreme Court. A person
suspended from the practice of law is not entitled to have that privilege restored
simply because that person has served the sentence imposed for a violation of
the criminal laws. Reinstatement of the license to practice law is warranted only if
certain criteria, contained within § 19.3 of Supreme Court Rule 9, are satisfied by
clear and convincing proof. In this case, the evidence preponderates against the
Chancellor’s finding for conditional reinstatement. Reinstatement of Murphy's
license to practice law would be detrimental to the integrity and standing of the
bar or the administration of justice or the public interest.
CONCLUSION
Accordingly, the judgment of the Chancellor granting conditional
reinstatement is reversed, and the judgment of the Hearing Panel of the Board of
Professional Responsibility, denying reinstatement is affirmed. As a result of
our conclusion, it is unnecessary to address the other issues raised by the
Board’s appeal. Costs of this appeal are taxed to Ira H. Murphy, for which
execution may issue if necessary.
________________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Reid, Birch and White, JJ.
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