Session November 8, 2017
from the Chancery Court for Shelby County No. CH-16-0528-I
William B. Acree, Jr., Special Judge
Beecher Smith, II ("Attorney") pled guilty in 2007
to federal charges of receipt and possession of images
depicting child pornography and was sentenced to five years
of imprisonment. In conjunction with these charges, Attorney
consented to his disbarment, which was ordered in 2008. In
August 2014, after being discharged from prison and while on
probation, Attorney petitioned to be reinstated to the
practice of law in Tennessee. The Board of Professional
Responsibility ("BPR") opposed Attorney's
petition, and a hearing panel was appointed ("the
Panel"). After an evidentiary hearing, the Panel denied
Attorney's petition. Attorney sought review in chancery
court, and the chancery court reversed the Panel's
decision and ordered Attorney reinstated. The BPR sought
review in this Court. Initially, we hold that the chancery
court had subject-matter jurisdiction of Attorney's
petition in spite of the BPR's untimely filing of its
application for costs. We further hold that the chancery
court misapplied the applicable standard of review and
thereby committed reversible error. Accordingly, we reverse
the chancery court's ruling and reinstate the Panel's
Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court
Reversed; Decision of the Hearing Panel Reinstated
Russell Willis, Brentwood, Tennessee, for the appellant,
Board of Professional Responsibility.
T. Pera and J. Bennett Fox, Jr., Memphis, Tennessee, for the
appellee, Drayton Beecher Smith, II.
Jeffrey S. Bivins, C.J., delivered the opinion of the Court,
in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and
Roger A. Page, JJ., joined.
JEFFREY S. BIVINS, CHIEF JUSTICE
and Procedural Background
originally was admitted to the practice of law in Tennessee
in 1974 and established himself in the practice area of
trusts and estates. As of 2007, Attorney had not been
disciplined by the BPR. In November 2006, Attorney was
arrested on a seven-count federal indictment related to the
receipt and possession of child pornography, based on images
discovered on Attorney's laptop computer. In June 2007,
Attorney pled guilty in federal court to three of these
counts. In conjunction with these charges, Attorney executed
a Consent to Disbarment Affidavit in August 2007, and an
Order of Disbarment was entered in May 2008. After serving a
portion of his five-year sentence of imprisonment, on October
4, 2011, Attorney was transferred to a Memphis halfway house.
Attorney was discharged on March 16, 2012, after completing
his sentence of incarceration.
sentence included ten years of supervised probation following
his release from imprisonment. The conditions and
restrictions of Attorney's probation include: (1)
answering truthfully all inquiries by his probation officer,
(2) registering with the sexual offender registration agency
for Tennessee, (3) participating in a specialized sex
offender treatment program that may include the use of a
polygraph, (4) refraining from direct or indirect contact
with any child under eighteen (18) years of age, (5) not
possessing any pornography, (6) not using sexually oriented
telephone numbers or services, (7) participating in mental
health treatment as directed by his probation officer, and
(8) refraining from excessive use of alcohol. Additionally,
Attorney's conditions of probation provide that he
"shall not possess, or use, a computer with access to
any 'online computer service' at any location
(including employment) without prior approval of the
filed his petition for reinstatement on August 11, 2014. At
the ensuing evidentiary hearing before the Panel, Attorney
called several character witnesses, two of his treating
physicians, the deputy director of the Tennessee Lawyers
Assistance Program ("TLAP"), and a medical
expert. Attorney also testified on his own behalf.
The BPR adduced a written report prepared in May 2013 by Dr.
A. J. Reid Finlayson, the Medical Director of the Vanderbilt
Comprehensive Assessment Program ("VCAP"),
following Attorney's participation in an evaluation
conducted through VCAP ("the VCAP Evaluation").
Attorney participated in the VCAP Evaluation at the
suggestion of TLAP in conjunction with Attorney's effort
to be reinstated.
conduct for which Attorney was prosecuted consisted of his
downloading onto his computer between thirty and forty
photographs of girls, between nine and fourteen years of age,
appearing either nude or engaged in sex acts. There was no
proof, however, that Attorney ever had engaged in sexual
physical contact with a child. Following his incarceration,
Attorney was diagnosed with pedophilia.
testified about the conduct that resulted in his convictions:
At the time I was suffering from chronic clinical depression.
I was having trouble sleeping. I was staying up late at
night. I was working on researching an appeal for my brother,
who was convicted of a felony in California. And I would get
tired of research, so then I would go to play games, video
games, on the computer, like Spades or Hearts with other
people. Online live video games.
After that, if I got tired, I would go to look at other
websites and then sometimes I would go to porn sites. I went
to a couple of the porn sites, and there were things called
pop-ups which said come to this site and see this, and one of
them mentioned minors, and I was just curious to see what it
was. It was curiosity that got me in trouble. I went there
and looked at it, and I guess I downloaded-I did download a
few images, not a whole lot, but enough to get me in trouble.
Some people have thousands and thousands and thousands. I
think I had less than 40, but they were enough to get me in
trouble, and I did download some of those images.
added that he "just wanted to see what was going on,
what people were doing" and that he was "just
curious to see how wild and crazy it could be." Attorney
acknowledged that he knew his conduct was wrong at the time
and that he "shouldn't have done it." He
explained that "at the time [he] thought it was a
victimless crime" and that he "did not think [he]
was hurting anybody." Since his arrest, he had come to
understand through counseling the harm that his actions
caused to the persons in the images.
his release from prison, Attorney participated in a
specialized sex offender treatment program through Counseling
Resources of America. The entire program consisted of four
phases, all of which he had completed by the time of the
hearing. Attorney stated that it took him approximately two
and one-half years to complete the program. The first phase
consisted of weekly meetings, with the latter phases
requiring meetings every other week. Following this program,
Attorney completed a ten-week pilot program involving
cognitive behavior that was led by his probation officer.
stated that he had not had any violations of his probation.
cross-examination, Attorney stated that he participated in
the VCAP Evaluation "[t]o have professional people
assess [him] to see if [he was] mentally and physically fit
to practice law." Asked if he was truthful during his
evaluation, Attorney responded, "[p]ainfully brutally
truthful. They couldn't help me if I wasn't."
Attorney confirmed that, as reflected in the VCAP Evaluation,
he had used his computer after his release to alter adult
comic strip figures in order to make them appear nude for
self-gratification. He explained, "I was having trouble
adjusting. I was having trouble with my wife's health.
I'm not allowed to have pornography. I was taking images
on a scanner and changing them to erotic images to help me
with my fantasy. I was not saving them. I was making those
images for that moment and then erasing them." Attorney
stated that he engaged in this behavior for "a couple of
months" in late 2012 and/or early 2013 and attributed
his conduct to stress. He added, "I stopped doing it
because I realized-you talk about stop signs and triggers. I
saw what was wrong, and I stopped it. But even after I talked
to the people at Vanderbilt about it, I realized that that
was what they call a slippery slope, like you don't want
to go on doing something like that, so I did stop that, and I
have not resumed that practice." Attorney stated that he
had not disclosed this conduct to anyone before his VCAP
Evaluation. He had never disclosed this use of his computer
to produce possibly pornographic images to his probation
officer. Attorney explained, "I have not because I
just-it was something that I self-remedied. It's not gone
on. It's not a problem." Attorney also admitted that
he had not disclosed this conduct to his counselor at
Counseling Resources of America, explaining that he did not
"because it was already passed. Once it was over, it was
also admitted during cross-examination that, since his
release from prison, he had engaged in fantasizing about
underage females for self-gratification, conduct that he also
reported during his VCAP Evaluation. Based in part on these
fantasies, the VCAP Evaluation provides that Attorney
does have some factors that likely elevate his risk of sexual
offending. In particular, he clearly has deviant sexual
arousal to prepubescent females. Furthermore, he is actively
engaging in fantasy and regularly experiencing arousal to
sexual images and fantasy of girls, which is clearly not
consistent with recommended treatment for sexual offenders[.]
testified that he stopped this fantasizing "about six
months after" he participated in the VCAP Evaluation. He
stated that he no longer fantasized about young girls, adding
that he had to take a polygraph every six months and had
answered that question truthfully.
stated that he had not told his character witnesses about the
behavior reported in the VCAP Evaluation, explaining that the
witnesses were his friends, not his doctors.
questioning by the Panel about the VCAP Evaluation, Attorney
acknowledged that "[s]ome of [his] actions [since his
release from prison] could be construed to violate [his]
probation." Attorney emphasized that, long before the
hearing, he had stopped engaging in both the fantasizing and
the cartoon alterations. One of the Panel members expressed
concern with Attorney's status as a sex offender and, if
Attorney were reinstated, the impact of that status on the
integrity of the bar. Attorney acknowledged that people were
going to "hate [him] just because they know [he is] a
was evaluated again in May 2015 by Dr. Gene G. Abel, Medical
Director for the Behavioral Medicine Institute of Atlanta.
Dr. Abel is a psychiatrist specializing in the field of
sexual misconduct. Dr. Abel testified that Attorney had
disclosed to him his previous fantasies about underage
females and his use of a computer to alter cartoon
characters. Attorney told Dr. Abel that he had stopped this
behavior. Dr. Abel explained that the cartoon-altering
behavior was "an indirect measure of interest in
children." Dr. Abel also explained that he did not
expect persons in therapy for pedophilia to reveal all of
their inappropriate thoughts or behavior immediately but
that, if therapy were effective, the person would reveal more
of "those things" over time as the therapeutic
Abel concluded that Attorney had made progress in his
treatment since the VCAP Evaluation. In his written report,
which was admitted into evidence, Dr. Abel supported
Attorney's reinstatement, subject to a number of strict
conditions including ongoing treatment and polygraphs.
Jeffery Warren, Attorney's primary care physician,
testified by deposition. Dr. Warren testified that he
diagnosed Attorney with depression in December 1998, many
years prior to Attorney's conviction. When Dr. Warren saw
Attorney after his release from incarceration, Attorney
"did not seem actively depressed at that point."
Dr. Warren also "saw no evidence" of an alcohol
problem since Attorney's release. In Dr. Warren's
opinion, Attorney's current mental health indicated that
he was fit to resume the practice of law. Dr. Warren also
opined that Attorney "is an ethical man." Dr.
Warren last saw Attorney in October 2014.
Allen O. Battle, a psychologist, first saw Attorney in 1996
for a session of clinical hypnosis aimed at helping Attorney
remember a specific event. Dr. Battle next saw Attorney in
1999 for acute stress related to matters involving
Attorney's twin brother. Dr. Battle continued to see
Attorney until 2002, by which point Attorney had improved.
Attorney returned to Dr. Battle in 2005 due to the stress he
was experiencing as a result of the criminal investigation
against him related to the child pornography found on his
Battle was aware that Attorney was later convicted of
possessing child pornography, which Dr. Battle understood to
consist of photographs of children, some of them consisting
of "nude single photos" and some of them depicting
the subjects engaged in sexual activity.
Battle saw Attorney in 2012 for "an anxiety
disorder." Attorney improved over the course of his
treatment. Dr. Battle also saw Attorney in January 2015 to
evaluate his "present psychological function" in
preparation for Attorney's quest to be reinstated. Dr.
Battle testified that, in 2015, Attorney was handling the
stresses in his life much better than he had previously.
discussed with Dr. Battle the conduct that led to his
conviction. In Dr. Battle's opinion, Attorney felt
remorse for his conduct. Dr. Battle further testified that he
had no reason to suspect that Attorney would re-offend. Dr.
Battle elaborated: "[Attorney] has been burned so
thoroughly by all of this that has happened to him over the
last six or seven years that I don't think he would touch
it with a barge pole."
Battle had reviewed the VCAP Evaluation and described it as
the "most comprehensive" evaluation he had ever
read in his fifty-seven years of practice. Dr. Battle did not
agree with all of the VCAP Evaluation's recommendations
Battle opined that Attorney was fit to resume the practice of
law. He also stated that he would not hesitate to recommend
Attorney to friends or family.
cross-examination, Dr. Battle stated that Attorney disclosed
to him Attorney's use of the computer to alter cartoon
images. Dr. Battle also stated that he was concerned that
Attorney had masturbated to imaginary images of children
"because they are not socially acceptable libidinal
objects." Dr. Battle also ...