Memphis Lawyer Volume 33, Issue 3 by Memphis Bar Association

the magazine of the Memphis Bar Association

Vol. 33, Issue 3

40th Annual

BENCH BAR The Conference

SEPTEMBER 1-4, 2016 TOPS'L BEACH RESORT DESTIN, FLORIDA THIS ISSUE: The HIPAApotamus in the Room

What’s Yours? What’s Mine? Deciphering Tax Implications in Divorce

The 2015 Federal Rule Changes – New Tweaks to Federal Trial Practice

2016 Legislative Recap

Permanent Life Insurance from Northwestern Mutual stands the test of time. It’s an asset that offers protection, along with cash value that’s guaranteed to grow. All from the only company in the industry that has paid more than $80 billion in dividends over the last 25 years. That’s a foundation for life. Northwestern Mutual 1770 Kirby Pkwy Ste 400 Memphis (901) 761-7794 memphis.nm.com

05-3024 © 2014 Northwestern Mutual is the marketing name for The Northwestern Mutual Life Insurance Company, Milwaukee, WI (NM) (life and disability insurance, annuities) and its subsidiaries. Northwestern Mutual Investment Services, LLC (NMIS) (securities), a subsidiary of NM, broker-dealer, registered investment adviser, and member of FINRA and SIPC. Jim E Meeks Jr, General Agent(s) of NM. Managing Partners are not in legal partnership with each other, NM or its affiliates. Jim E Meeks Jr, Registered Representative(s) and Investment Advisor Representative(s) of NMIS. SNL Financial historical data A.M. Best (Historical 1987 to 1996): Limited to ordinary and group life dividends. Dividends are reviewed annually, subject to change and not guaranteed.

Volume 33, Issue 3

FEATURES 8

Bench Bar: 40 Years and Counting

Portrait Unveiling: Judge Donald

BY JUDGE CHILDERS AND KIRK CARAWAY

12 The HIPAApotamus in the Room: When Lawyers and Law Firms are

Subject to HIPAA Enforcement, And How to Comply with the Law BY LESLIE R. ISAACMAN

What’s Yours? What’s Mine? Deciphering Tax Implications in Divorce BY SUSAN M. LATTIMORE

18 What?! I Didn’t Write that Letter: Avoiding the stealing of your

letterhead and signature from emailed letters BY SEAN HUNT

2016 Legislative Recap

The 2015 Federal Rule Changes – New Tweaks to Federal Trial Practice

Stevenson: Creating Our Own Identity

BY SENATOR MARK NORRIS BY RICHARD CARTER BY GIGI MCGOWN

COLUMNS 6

President’s Column

CLC Pro Se Divorce Clinic Provides Fresh Starts, Brighter Tomorrows

My Journey and Winding Journey to MALS

BY SHEA SISK WELLFORD BY TINA PERRUSQUIA

BY M. JEAN HOLBERT, STAFF ATTORNEY

DEPARTMENTS 10

Memphis Bar Happenings

Circuit Court Report

The Court Report

People in the News

Classified Advertisements

BY STEPHEN LEFFLER

BY DEAN DECANDIA

MEMPHIS LAWYER

2016 MBA Officers

the magazine of the Memphis Bar Association

MBA Publications Committee Stephen R. Leffler, Chair Karen Campbell Dean DeCandia Nicole Grida Sean Hunt Gigi Gaerig McGown Harrison McIver Jared Renfroe Ellen Vergos Mary Wagner Mason Wilson

Shea Sisk Wellford President

Dean DeCandia Vice President

Earle Schwarz

Secretary/Treasurer

Thomas L. Parker Past President

2016 Board of Directors Mike Adams Jeremy Alpert Megan Arthur Lara Butler Betsy Chance Annie Christoff Jennifer Hagerman Doug Halijan Jonathan Hancock Maureen Holland Earl Houston Carrie Kerley Andre Mathis

Gigi Gaerig McGown Asia Diggs Meador Elijah Noel, Jr. Lisa Overall Jill Steinberg Section Representatives Imad Abdullah Stuart Canale Maggie Cooper Anne Davis Sean Hunt Toni Parker

ABA Delgate Danny Van Horn AWA Representative Jodi Runger NBA Representative Felisa Cox Law School Representative Elizabeth Rudolph YLD President Jonathan May

MBA STAFF

The Memphis Lawyer is a publication of the Memphis Bar Association, Inc. that publishes six times each year. The publication has a circulation of 2,200. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact Anne Fritz at 527.3575; afritz@memphisbar.org The MBA reserves the right to reject any advertisement or article submitted for publication.

Anne Fritz

Executive Director

The Memphis Bar Association 145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 Fax: (901) 527-3582

www.memphisbar.org

Lesia Beach

CLE/Sections Director

Charlotte Gean

Executive Assistant/ Membership Coordinator

Katherine Newsom Communications and Membership Director

SERVICE l QUALITY l COMMITMENT At IPSCO, SERVICE always comes first . . . you deserve it . . . and we will provide it. QUALITY is important to us. We represent many excellent insurance carriers, all with an emphasis on financial strength, longevity, credibility and value. We have provided innovative insurance products to Tennessee attorneys for over 60 years and have been the exclusive insurance plan administrator for the Memphis Bar Association since 2006. We have a proven track record of our ability to serve, the quality of our products and our COMMITMENT to MBA members. We know things are tough out there and we’re here to help. Give us a chance to show YOU our commitment — give us a call today.

INSURANCE PLANNING

I P S C O & SERVICE COMPANY, LLC Exclusive Insurance Plan Administrator for the Memphis Bar Association

INDIVIDUAL PLANS l EMPLOYEE BENEFITS l PROPERTY & CASUALTY

6257 Stage Plaza East l Bartlett, TN 38134 l 901.761.2440 l 800.544.1681 l Lawyers@assoc-admin.com l IPSCOLawyers.com

PRESIDENT'S COLUMN by SHEA SISK WELLFORD

uring the Law Week naturalization ceremony, over two hundred new citizens approached the microphone set before the stage at The Cannon Center where the United States District Court for the Western District of Tennessee was in session and stated their name and country of origin. Afterwards, some proudly added, “And now, a U.S. citizen!”

– Rule of Law – in expressing what he wanted for his family, but what he saw in America was

There was a lot of excitement surrounding their new status and the rights and privileges that accompany citizenship. Two of the privileges most often mentioned by the speakers at the ceremony were voting and jury duty – I am going to hazard a guess that those would be unlikely candidates to top the list of privileges if a poll was taken of citizens born in this country. For most of us, our lives are distant from the troubles surrounding governments where voting and jury duty are not rights or are, at most, a sham.

• A place where justice was delivered timely and ethically.

My mother went through a ceremony very similar to the Law Week ceremony a number of years ago. Her story is one that I treasure and has undoubtedly shaped who I am. I will share a small part of it: My mother’s family left Russia during World War II, trying to make their way to France, but were captured by the Nazis and placed in concentration camps – my grandmother (pregnant with my mother) in one and my grandfather and uncle in another. My mother was born in the camp and, likely because it was near the end of the war, her family survived. After liberation, the family was reunited. My grandfather was adamant that the only country where he would emigrate was the United States. His experience under Communist rule, then under the Third Reich, made him steadfast in his resolve to live in a country where the Rule of Law was paramount. I do not know if my grandfather would have used the phrase 6

• A place where the government and individuals were accountable under the law; • A country where laws were applied evenly and fairly, and protected basic human rights; and

In short, what he sought for his family was a place where the Rule of Law was observed. Opportunities to settle elsewhere came and went. With the help of Eleanor Roosevelt, who tirelessly campaigned to open the country to those who had no home, my family was finally accepted and relocated to Snow Lake, Arkansas. It was not an easy transition, but it was one my grandfather embraced. Immediately following the naturalization ceremony, Bryan Stevenson, the Executive Director of the Equal Justice Initiative in Montgomery, Alabama and a professor of law at New York University Law School, gave a moving speech at another Law Week event about failures in the application of the Rule of Law in America today. He implored us as citizens and attorneys to recognize our history and make a difference by doing four things: (1) getting proximate to problems of poverty and injustice so that they can be fully understood; (2) changing the narrative around issues of race and poverty; (3) having hope; and (4) engaging in activities and dialogue that might make us a little uncomfortable. I cannot begin to explore these points as eloquently as Mr. Stevenson, so if you were not able to attend the luncheon, I highly recommend listening to Mr. Stevenson’s talk about these four points at a speech given at NYU at bit.ly/bstevenson.

I am thankful that Eleanor Roosevelt got proximate to the problems of bias, refugees, and immigration during and after World War II. As attorneys, we are trained to get proximate to and solve problems, especially when the Rule of Law is threatened. After Mr. Stevenson’s speech, I asked myself, what problems can I, and the bar association, get proximate to in our community? Our Access to Justice Committee is one place to start (meetings of the committee can be found at bit.ly/mbaaccesstojustice). I challenge each of us to consider – what problems can we, as Memphis attorneys, get proximate to today? Where can we change the narrative and provide hope? In closing, I will leave you with the words of Mr. Stevenson: “The opposite of poverty is not wealth. The opposite of poverty is justice.” t

Search and Retrieve Legal Documents in Seconds!

Electronic Document Management

Xerox® is a trademark of Xerox corporation in the United States

Have you had a previous case relevant to your current one, but didn’t have time to find it? We understand that law firms search through documents constantly, resulting in hours and hours of manpower. Reducing the time to find documents and file storage means more productivity, resulting in more cases won, which means more money. With SmartSearch, documents can be scanned or imported, secured, searched and even modified. PDF’s can even be highlighted, redacted, and notes can be added while leaving the original document intact. Documents stored in SmartSearch have a full audit trail, critical in proving a chain of custody. Do you need help with your document retention issues? Let XMC provide you with an easy way to take your files from full to free… paper free that is.

Managed Print Services | Multifunction Machines | Scanners | Copiers | Printers

823 Exocet Drive, Suite 109 • Memphis, TN 38018 • www.xmcinc.com • 901.737.8910

The New Standard In Mediation In the world of mediation, experience is vital. That’s why John R.Cannon, Jr., Michael G. Derrick, and R. Joseph Leibovich have established Memphis Mediation Group, LLC. All are Tennessee Rule 31 Listed General Civil Mediators with decades of combined state and federal litigation and mediation experience. With their deep backgrounds and continual proven success in mediation, John, Mike and Joe are setting the new standard for mediation in Memphis.

Schedule a case with Memphis Mediation Group at

901-328-8227

Bench Bar:

years and counting

by ROBERT L. CHILDERS, CIRCUIT COURT JUDGE

did not attend the very first Bench Bar Conference held at Pickwick Landing State Park in 1976. By all accounts it was a memorable kickoff event that resulted in the MBA being invited NOT to return to Pickwick! The late Manuel Scarmoutsos told me about attending the inaugural Bench Bar Conference and encouraged me to attend the next Bench Bar, that it would be an excellent way for me to get to know the judges and other attorneys. I did attend the next Bench Bar held in Arkansas at the Red Apple Inn, and what I discovered is that what was MORE important than my getting to know the judges and other attorneys is that they got a chance to know ME! Being a judge for many years, I know how difficult it is for the judges to get to know and remember all of the new attorneys who start practicing each year. The judges got to know me on an informal basis and that I did not have two heads (or other strange features) and was doing my best to learn about how to practice law and do a good job when appearing before them. As I recall we met for at least two years at the Red Apple Inn. (Sidenote: I participated in a program on DUIs and the use of the Breathalyzer. I volunteered to have a few libations and was tested. For those interested in the details I may be persuaded to disclose them at this year’s conference.) We quickly outgrew the Red Apple Inn and met the next year at Greers Ferry Lake also in Arkansas. After that we settled into attending in Hot Springs, Arkansas, mostly at the historic Arlington Hotel, but a couple of years at hotels near the Arlington. Some years in Hot Springs the Bench Bar was held as early as March to accommodate attendance at the horse races at Oaklawn Park. Occasionally tales are still told of some of the adventures (or misadventures) of some members of

the Bench and Bar at these gatherings. There have been occasional tales regarding "The World’s Largest Scotch and Water" and "The Jungle Jim Award", but my memory has faded regarding the actual events, (and the participants shall remain anonymous). During the years we met in Arkansas a group of us would meet on Friday afternoon after court in front of the old MPD Headquarters at Second and Adams. We would all load up in Judge Ann Pugh’s van (with a trailer behind for luggage) and drive to the conference for the weekend. This group included, among others, Judge Pugh, Justice Janice Holder, Kathryn Hooksanson, Randy Walker and A.V. McDowell. I was always the designated driver. After a stop across the river to stock the ice chest with beverages, we would proceed on the nearly three hour trip to Hot Springs. Lots of great memories created during those excursions! Bench Bar then moved from Hot Springs to its current venue in Sandestin, Florida, where attendance has continued to grow and reached a record turnout of almost 350 attorneys and judges in recent past. With the move to Sandestin the conference has become a much more family oriented event. The younger (and some not so young) lawyers bring spouses and children (and now grandchildren) to enjoy the Bench Bar entertainment activities. Since moving the venue to Sandestin, it has been held most years in May during Mother’s Day weekend. Many people have suggested moving to another time of year to avoid the Mother’s Day conflict. So this year the Bench Bar will be held on Labor Day weekend. The committee recognizes that this may create a conflict for some, but felt that that weekend would allow families

to attend with their children, who would be out of school for the holiday. And it is still warm enough to enjoy the beautiful beaches. It will also give us the opportunity to have new fun events, such as the football watch parties that are planned. Since I started attending, I have given many young lawyers the same advice that my friend Manuel Scarmoutsos gave to me. I love the Bench Bar and Boardroom Conference. It has meant a great deal to me over the years, I have attended approximately 35 of the 40 conferences. (I love it so much that I have agreed to Co Chair the committee three times now.) It is an excellent opportunity to get to know and fellowship with the judges and fellow attorneys and contribute to the improvement to the administration of justice in our local court system. The members of the committee have worked extremely diligently to put on another quality conference. Do yourself, your career (and the profession) a favor and attend this year’s Bench Bar and Boardroom Conference to be held in Sandestin September 14, 2016.

My Bench Bar Experience: Kirk Caraway Bench Bar, or as the Staff at my Firm calls it, Spring Break for Lawyers, is an event I have attended fifteen of the last sixteen years. I first went to Bench Bar when I was still a “Young Lawyer”. My new bosses mandated that I attend, and they attended as well. The experiences and relationships from those fifteen Bench Bars have advanced my career greatly. I have gotten to know many lawyers in different practice areas that I otherwise would not have met. The social interactions with the judges outside of the courtroom resulted in me feeling more comfortable approaching them in a professional setting. The ability to network at Bench Bar cannot be overstated. I have also attended many informative and interesting CLEs. I watched Johnny Cochran in a mock trial, attended presentations where judges gave advice regarding practicing in their courts and participated in a voir dire. I played in volleyball and golf tournaments, ate dinner with many lawyers and judges and cheered for the Grizzlies in the Hospitality Suite. The personal interaction and camaraderie that is an integral part of Bench Bar only underscores why the

practice of law should be treated as a profession, and not just a business. I strongly encourage all MBA members to consider attending this year’s Bench Bar. Hopefully, I will see many of you poolside at Tops’l or playing in the Volleyball Tournament.

2016 MBA BENCH BAR CONFERENCE Come celebrate the 40th Anniversary of the Bench Bar Conference at Tops'l Beach Resort September 1-4! You can get an entire year of CLE credit - 15 hours including 3 hours of ethics and professionalism credit - while interacting with your colleagues at the beach or by the pool.

REASONS TO ATTEND: • Meet and mingle with judges – U.S. District Court Judge Sheryl Lipman and Chief Magistrate Judge Diane Vescovo; Criminal Court Judges Chris Craft, John Campbell & Mark Ward; General Sessions Judges Gerald Skahan and Loyce Lambert Ryan; Circuit Court Judges Robert Childers, Gina Higgins and Valerie Smith; Probate Court Judge Kathy Gomes; and Juvenile Court Magistrate Sheldon McCall • Interesting CLE programs on legal issues in collegiate athletics; the effect of Obergefell on family & employment issues; communicating with the media; how the courts address mental health issues; and gangs in our community • Fun social & sports events – Kick-Off Reception, YLD Sunset CLE, Football Watch Party, Beach Carnival for Kids, Fun Run/Walk, Beach Volleyball Tournament REGISTER NOW BY VISITING MEMPHISBAR.ORG OR CALLING US AT 901.527.3573 9

HAPPENINGS There’s lots going on in the legal community. Be sure and check our website, Facebook and Twitter, and Bar Bulletin to stay up-to-date on all MBA Happenings.

Bar Meet: Stay Tuned

Bar Meet has been held at Wiseacre in April and Loflin Yard in May. It has been a great event with no agenda, no items of business, just the Memphis legal community getting together. Check our website, social media and the Bar Bulletin for information on the next Bar Meet.

Engage the Marston Group For Expert Financial Analysis In: Business controversies Business formation, growth & exit strategies Due Diligence / quality of earnings Family law financial & tax Federal & state tax controversies Forensic accounting & fraud investigations Marital property issues Mergers & acquisitions Shareholder / partner controversies

Count on us!

YLD Habitat for Humanity/ Levitt Shell Night Saturday, July 16 Be on the lookout for more details to come.

Bar Feud (a Family Feud style event)

Thursday, July 21 5:00 – 6:00 pm Survey; 6:00 – 8:00 pm The Feud Downtown Central BBQ Team Cost: $200 (includes admission for 5 people and team participation) – deadline for team submissions – June 30 Individual Ticket: $30 in advance, $35 at door Admission includes two drink (beer and wine) tickets and BBQ dinner. For more information, contact Jennifer Hagerman, jhagerman@BPJLAW.com, or Nicole Grida, nicole.grida@me.com.

YLD Bowling Night: Motion to Strike Fundraiser for MALS

Thursday, July 28 6:00 – 9:00 pm Billy Hardwick’s $10 for your bowling, food, and drinks (until the tab runs out)

40th Annual Bench Bar Conference September 1-4 Destin, FL

Portrait Unveiling

Judge

Donald

he Portrait Unveiling Ceremony for the Honorable Bernice Bouie Donald, Judge of the United States Court of Appeals for the Sixth Circuit was held April 22, 2016 in the Clifford Davis-Odell Horton Federal Building. There were many dignitaries present, mayors, other elected officials, clergy, and Judge Donald's family. Many of Judge Donald's present and former colleagues on the bench, from her former and present law clerks, and the portraitist, Jamie Lee McMahan, spoke and shared their memories. Perhaps most remarkable was the pride of place given in the program to Judge Donald's law clerks, all the clerks who have worked for and with her over the years. Many are now in important positions in the legal profession, across the country. One attendee said, “In some ways, the ceremony was a reunion of all the alumni, all the classes, of what could fairly be called ‘The Judge Bernice B. Donald Graduate School of Law.’” Judge Donald was nominated by President Barack Obama December 1, 2010 for a judgeship on the United States Court of Appeals for the Sixth Circuit to replace Judge Ronald Lee Gilman. The full Senate confirmed Judge Donald to the Sixth Circuit on September 6, 2011 in a 96–2 vote and she received her commission on September 8, 2011. Prior to the United States Court of Appeals, Judge Donald received a Bachelor of the Arts degree from

Portrait by Jamie Lee McMahan

Memphis State University (now University of Memphis) in 1974 and a Juris Doctor degree from Memphis State University School of Law (now University of Memphis Cecil C. Humphreys School of Law) in 1979. She was in private practice in from 1979 to 1980, and then became a staff attorney of the Employment Law & Economic Development Unit, Memphis Area Legal Services. Judge Donald went on to become an assistant public defender in the Shelby County Public Defender's Office from 1980-82. Judge Donald was elected to Tennessee's General Sessions Criminal Court from 1982 to 1988 while teaching as an adjunct professor at Southwest Tennessee Community College from 1984 to 1989. From 1988-95, she was a U.S. Bankruptcy Judge in the Western District of Tennessee. On December 7, 1995, Donald was nominated by President Bill Clinton to a seat on the United States District Court for the Western District of Tennessee vacated by Odell Horton. She was confirmed by the United States Senate on December 22, 1995, and received her commission on December 26, 1995. t 11

The HIPAApotamus in the Room When Lawyers and Law Firms are Subject to HIPAA Enforcement, And How to Comply with the Law by LESLIE R. ISAACMAN, J.D., M.B.A.

he Omnibus Final Rule1 of the Health Information Portability and Accountability Act2 ("HIPAA") extended liability from covered entities3 ("CEs") to business associates4 ("BAs") for failing to safeguard protected health information5 ("PHI") pursuant to the HIPAA Privacy, Security, and Breach Notification Rules. This change imposed, for the first time ever, direct accountability on business associates, with applicable civil and criminal liability, to comply with HIPAA rules. As a result, business associates are now required to protect PHI the same way that covered entities do. In addition, the Health Information Technology for Economic and Clinical Health ("HITECH") Act6 regulations have expanded the definition of business associates to include patient safety organizations, health information organizations, and subcontractors. Under HITECH's definition, attorneys who provide services for covered entities (or other business associates) and handle PHI are considered business associates.7 Legal services fall squarely within the purview of HIPAA when a lawyer contracts directly with a covered entity. Further, HITECH extended compliance obligations indefinitely to downstream subcontractors who provide services to business associates of covered entities. As a result, these so-called "subcontractor business associates" face the same obligations for compliance as first-tier business associates who contract directly with covered entities. Thus, even entities who may not realize it could face legal and enforcement risks and obligations under HIPAA and HITECH.8

Determining Whether You Are a Business Associate

Any person or entity, including any attorney or law firm, who receives PHI for purposes of doing something 12

on behalf of a covered entity, business associate, or subcontractor, such as providing legal advice, is a business associate. Thus, even attorneys who don’t technically practice in the field of health care law may be subject to HIPAA obligations when they receive PHI from their covered entity, business associate, or subcontractor clients.9 Specifically, an attorney is considered a business associate when he or she, for example: • Provides compliance support or defense to CEs, BAs, or subcontractors (whether or not in response to an enforcement action); • Represents a CE, BA, or subcontractor in audits or governmental investigations; • Represents a CE, BA, or subcontractor in any case involving individual patient diagnosis, treatment, or health benefits; • Represents a CE, BA, or subcontractor in transactional work of any nature that involves access to any PHI (including, for instance, accounts receivable or payable information); • Provides representation regarding health care professional discipline, payment or billing disputes, compliance advice, peer review, guardianships, informed consent, end-of-life issues, accreditation, licensing, administrative matters, risk management issues, or the like; • Represents a CE, BA, or subcontractor in matters seeking to enforce restrictive covenants when PHI access is involved; and • Responds to a subpoena requesting PHI in any form. Notably, an attorney may unwittingly become a business associate by virtue of being hired by an existing business associate of a covered entity. For example, if a hospital's printing vendor, which receives and stores PHI, hires an attorney to provide legal services and then provides the attorney with access to the hospital's PHI, the attorney for the vendor becomes a subcontractor business associate. As an attorney or law firm, it’s your obligation to recognize when you are or could be considered a business

associate and to then comply with the HIPAA Privacy and Security Rule provisions applicable to business associates. Non-compliance can lead to hefty fines and intrusive governmental investigations, and it can also lead to additional liability by your covered entity or business associate clients.

Complying with the Law as a Business Associate Because of the HITECH Act, business associates are now directly and specifically liable for complying with the HIPAA Privacy,10 Security,11 and Breach Notification12 Rules. To demonstrate compliance, lawyers and law firms must take specific actions under the law. Lawyers must implement business associate agreements with their CE or BA clients and with their subcontractor BAs. Law firms must ensure that written policies and internal processes for compliance are established and reviewed, and firms should designate privacy and security officers who are responsible for compliance and training. In addition, lawyers and law firms are charged with actively protecting the confidentiality of any PHI they receive, create, or maintain electronically via encryption, and they must implement administrative, physical, and technical safeguards13 for handling PHI. Further, law firms must conduct risk analyses, along with follow-up implementation of policies and procedures, to ensure compliance and detect potential vulnerabilities. Finally, lawyers and law firms must comply with the requirements and procedures for breach notification.

Business Associate Agreements Business Associate Agreements ("BAAs") are contracts that specifically define how business associates can use and disclose PHI when performing services.14 In general, BAAs should, at a minimum, include the following: • A designation of permitted and prohibited uses of PHI by the BA; • A requirement for the BA to implement "appropriate safeguards" to protect PHI; • A requirement for reporting "security incidents" to the CE and for compliance with "breach notification" requirements; • An agreement for BAs to properly establish that any subcontractor BAs are in compliance and report as required;15 • Allowances for access, amendments, and accounting of disclosures by the CE; • Assurances that a BA's "internal practices, books, and

records" are available for governmental review and audits; • A provision for the return or destruction of PHI upon termination; • Assurances that any PHI used or disclosed meets the "minimum necessary" standard of HITECH;16 and • An authorization for termination of the relationship upon any material breach of the BAA. In addition, due to the potential exposure for liability under the Breach Notification Rule, CEs and BAs may want to consider including an indemnification provision in their BAAs. Business associates have long been required to enter into BAAs with their covered entity clients. Under the law, covered entities are not allowed to disclose PHI to their lawyer business associates if there is no properly-executed BAA between them to ensure that PHI is appropriately safeguarded. Thus, as an initial step, attorneys and law firms representing covered entities must ensure that a proper BAA has been implemented.

Engaging Subcontractor Business Associates

In carrying out his or her duties as a business associate, an attorney may need to engage the services of a subcontractor business associate, such as software vendors, copy and printing services, document disposal services, expert witnesses, jury consultants, or billing services. These subcontractor BAs are equally subject to liability, and business associates should take active steps to ensure their subcontractor BAs are in compliance. Under the HIPAA Omnibus Final Rule and the HITECH Act regulations, business associates must obtain "satisfactory assurances" that subcontractor BAs will safeguard any PHI in their possession. To do so, business associates must enter into BAAs with their downstream subcontractors to monitor compliance. Just as it does with covered entities, the BAA provides the business associate with "satisfactory assurances" that its subcontractors will safeguard and protect any PHI in their possession.

Specific Privacy and Security Safeguards

Business associates are required by the HIPAA Privacy Rule to establish written policies and procedures that address the permitted uses and disclosures of PHI. BAs are also required to designate a "privacy officer" who is responsible for compliance and for training employees on HIPAA as well as internal privacy policies. Under the HIPAA Security Rule, business associates 13

must implement specific administrative, physical, and technical safeguards to protect against real and potential threats of disclosure or loss. BAs must also designate a "security officer" who is responsible for compliance and for training employees on HIPAA as well as the BAs internal security policies. In addition, business associates must conduct an entity- and system-wide "risk analysis" to determine potential vulnerabilities to breaches, and they must effectuate policies to remediate risks. The law requires covered entities and business associates to conduct a risk analysis to assess "potential risks and vulnerabilities to the confidentiality, integrity, and availability" of electronic PHI ("ePHI").17 Risk analysis is the first step in identifying and implementing safeguards for compliance with applicable law. Notably, enforcement agencies look first to risk analyses conducted by CEs and BAs, and the failure to perform such risk analyses is the main reason that entities fail governmental audits. Upon completion of a risk analysis, the CE or BA must then put into effect policies and procedures to mitigate or remediate any identified or potential risks or vulnerabilities. Through the HIPAA Omnibus Final Rule and the HITECH Act regulations, the government has provided a clear message to covered entities and business associates that ePHI (i.e., any PHI that exists or is stored in electronic media) should be encrypted.18 Encryption is "the use of an algorithmic process to transform data into a form in which there is a low probability of assigning meaning without use of a confidential process or key."19 While all privacy and security risks cannot ever be fully eliminated, attorneys should take steps to determine how to ensure that exposure is minimal and risks are reduced as much as possible. Some key areas for concern for business associates to consider include: • Encryption (or lack thereof ); • Unprotected internet, web browsing, and cookies; • Network firewall protections; • Hackers, phishing, ransomware, and other cybersecurity risks and threats; • Mobile devices and password protections; • Data sharing; • Lack of physical security with files and documents containing PHI; and • Staff training and compliance. Business associates should consider all potential risks and then take steps to enact policies, procedures, and training with respect to any prospective vulnerabilities. For 14

instance, a law firm that serves as a BA should maintain and enforce a policy and procedure on password requirements for all employees who have smartphones and other mobile devices that may contain PHI.

Breach Notification Rule The Breach Notification Rule requires business associates to notify their covered entities following the discovery of any breach of unsecured PHI.20 When breaches occur, business associates must perform additional risk assessments to determine the probability of data compromise, the nature and extent of PHI involved, details of the disclosure, and the extent to which the risk has been mitigated. "Unsecured PHI" is useable, readable, or decipherable to unauthorized persons; in comparison, "secured PHI" is unusable, unreadable, or undecipherable.21 PHI can become secured only through encryption or destruction; firewalls and access controls (such as passwords) are not sufficient for ensuring that PHI is secured.22 A "breach" is defined as the unauthorized acquisition, access, use, or disclosure of PHI that compromises the security and privacy of the information (except where an unauthorized person to whom the PHI is disclosed would not reasonably have been able to retain such information).23 Pursuant to the HIPAA Omnibus Final Rule, unauthorized disclosures are presumed to be a breach unless the covered entity or the business associate can demonstrate, through a risk assessment, that there is a "low probability that the PHI has been compromised."24 A covered entity must provide notification of any breach within 60 days of discovery (i.e., when the breach was discovered or reasonably should have been discovered). Notably, a covered entity or a business associate is presumed to have knowledge on the day that any employee or agent has knowledge of the breach.

Penalties Applicable to Business Associates for Violations of HIPAA HIPAA, through the Omnibus Final Rule, adopted significant civil and criminal penalties for enforcement. Following HITECH, there has been an increased emphasis on enforcement and an increase in fines and penalties issued by the U.S. Department of Health and Human Services ("HHS") Office of Civil Rights ("OCR"). Based TO CONTINUE THIS ARTICLE VISIT memphisbar.org/news-publications/ memphis-lawyer-magazine

CIRCUIT COURT REPORT by STEPHEN LEFFLER

CIRCUIT, DIVISION I

CORBIN-JOHNSON

CT-001325-14, 3-29-16, 240 Poplar Avenue General Partnership v. Cheryl Gray d/b/a Gray Bail Bond Company and ASAP Bail Bond, Inc., Breach of Contract Landlord/ Tenant, Non-Jury, Roger A. Stone for Plaintiff, Tim J. Thompson for ASAP Bail Bond, Inc. and Addie M. Burks for Gray Bail Bond Company, Plaintiff Verdict $28,556.17.

CT-004147-12, 4-14-16, Dees Oil Company v. Magness Oil Company v. Mutuhar Sharhan, Hasan Abdo Ali, Negi Express, Inc., d/b/a County Line Express a/k/a Sheba, Inc. d/b/a Getwell Express., Inducement of Breach of Contract, Jury, Melissa A. Harrison and Taylor A. Cates for Plaintiff, Samuel M. Fargotstein for Defendant, Magness Oil Company, Defense Verdict. CT-000950-15, 3-21-16, Delilah F. Dabney v. Jonathan B. Strausser., Auto Accident Trial on Damages Only, Jury, Adam Johnson for Plaintiff, Nicholas J. Owens, Jr., for Defendant, Plaintiff Verdict for $11,464.31.

CIRCUIT, DIVISION II

RUSSELL

No contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION III

SMITH

No contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION IV

HIGGINS

CT-004031-13, 3-3-16, Antoinette Lee v. Memphis-Shelby County Airport Authority, GTLA Slip and Fall – Trial on Liability Only, Non-Jury, Kenneth M. Margolis for Plaintiff, Hope Calabro for Defendant, Defense Verdict

CT-001050-15, 3-31-16, Alfonzia and Tonya Biles. v. Tiffany Roby., Breach of Contract Foreclosure, Non-Jury, Drayton Berkley for Homeowners, Brandon McNary for Mortgage Holder, Verdict for Mortgage Holder for $24,700.00. CT-001561-15, 2-18-16, Commodore Realty, LLC v. Omar Al Rahmani d/b/a Big Daddy’s Meat Market and Produce, Breach of Contract Landlord/Tenant, NonJury, Bruce A. Feldbaum for Plaintiff, Kevin A. Snider for Defendant, Plaintiff Verdict for $24,999.99. CT-000110-15, 3-3-16, Meagan Cross v. City of Memphis, GTLA Auto Accident Non-Jury, Peter Gee, Jr., for Plaintiff, Foster B. Freeman for Defendant, Plaintiff Verdict for $9,621.70. CT-001171-16, 4-28-16, Marathon Management, LLC v. Lawrence King FED, Non-Jury, for Plaintiff, Lisa Zacharias, Defendant Pro Se, Plaintiff Verdict for possession only. CT-002420-13, 2-22-16, Donna Powell, Individually and As Next Friend of Ashley Marie Powell, a Minor v. Charles

Murphy, Beverly Murphy and Hillary Hinkle Recreational Vehicle Accident, Jury, Danny Richardson for Plaintiff, Thomas D. Yeaglin for Defendant, Defense Verdict Charles Murphy: 0% Fault; Hillary Hinkle: 60% Fault; Ashley Powell: 40% fault. Damages for $17,500.00.

CIRCUIT, DIVISION V

HURD

CT-000295-15, 3-24-16, Poplar Crest Investment Company v. Marvell Williamson and Alishua Chapman Breach of Contract General Sessions Appeal, Non-Jury, T. Tarry Beasley for Plaintiff, Michael R. Working for Defendant, Plaintiff Verdict for $232.65.

CT-006113-10, 4-15-16, Marvin and Patricia Bernatsky v. Designer Baths and Kitchens, LLC. Breach of Contract Construction, Non-Jury, John P. Wade for Plaintiff, Robert A. Wampler for Defendant, Plaintiff Verdict for $6,455.00. CT-002977-13, 2-25-16, Christy L. Bradley and J. Anthony Bradley v. Laura Bishop, M.D. and Ruch Clininc, PLLC. Med Mal, Jury, Richard Glassman and Lauran Stimac for Plaintiff, William H. Haltom, Jr., and Margaret F. Cooper for Defendant, Defense Verdict.

CIRCUIT, DIVISION VI

STOKES

CT-002503-14, 4-12-16, Angela Neeley v. Peter Ballenger, M.D., Memphis Obstetrics and Gynecological Association, P.C. and Methodist LeBonheur Healthcare d/b/a Methodist Germantown Med Mal, Jury, Louis P. Chiozza, Jr., for Plaintiff, Craig Conley for Defendant, Methodist LeBonheur Healthcare d/b/a Methodist Germantown, William H. Haltom, Jr., Marcy D. Magee and Naalie Bursi for Defendant, Peter Ballenger, M.D., and Memphis Obstetrics and Gynecological Association, P.C., Defense Verdict.

CIRCUIT, DIVISION VII

FIELDS

CT-002904-12, 2-22-16, Carol Williamson v. Stephen Pendley Landlord/Tenant, Non-Jury, Catherine Costict for Plaintiff, Paul J. Springer for Defendant, Defense Verdict.

CIRCUIT, DIVISION VIII

WEISS

No contested cases tried to verdict in this reporting period.

CIRCUIT, DIVISION IX

CHILDERS

CT-000577-15, 3-1-16, EZR Management, LLC v. Paul J. Springer d/b/a Springer and Associates Breach of Contract Landlord/Tenant, Non-Jury, Derek E. Whitlock for Plaintiff, Paul Springer, pro se, Plaintiff Verdict for $23,077.81.

CT-002303-14, 12-16-15, Isaiah Hopps, Jr. v. Jacqueline F. Stinnes Med Mal, Jury, Bill M. Wade for Plaintiff, William H. Haltom, Jr., for Defendant, Defense Verdict. 15

“What’s Yours? What’s Mine?” Deciphering Tax Implications in Divorce by SUSAN M. LATTIMORE, EA, CFP®, The Marston Group, PLC

s a financial and tax professional, I have a lot of respect for the attorneys who choose to practice in the area of family law. In an area of law so fraught and riddled with intense emotion, I’m pleased to lend my services which are predominantly objective, quantifiable and definitive. Numbers and calculations are empirical and factual (although the assumptions for the numbers may not be). Therefore, with knowledge of the financial components and their corresponding tax effects, I endeavor to help assuage the fears that divorcing couples feel about the uncertainty of their respective financial futures. It can also help the attorneys manage the expectations of clients when you can present them with numbers, calculations and tax law. Family law attorneys are well versed in the marital balance sheet used for determining the division of property between the spouses. In addition to splitting the assets (and liabilities) equitably, it’s also important to recognize the types of assets that produce income versus those that don’t. This can be particularly important as it relates to each spouse’s current earnings, future potential earnings and then declining earnings (retirement). Types of assets that produce income are: investment accounts, rental real estate and cash (if there is sufficient cash to earn interest). Since each of these types of assets produce income, it’s necessary to understand the tax consequences of each. Investment accounts typically generate capital gains from the sales of stocks and bonds, as well as dividend and interest income. Capital gains and qualified dividends are generally both taxed at 15%. However, if the couple is wealthy enough, the earnings on these investments could 2015 Filing Status

Number of Dependents

Single MFJ MFJ MFS HOH Single

1 2 4 3 3 3

subject one or both of them to the additional net investment tax of 3.8%. If adjusted gross income (AGI) is over a certain amount (depending on filing status), the capital gain tax rate could be 20%, plus the 3.8%, placing the overall tax rate at almost 24% (instead of 15%). For Tennessee residents, there could be an additional 5% tax on the dividends, capital gain distributions and interest earned on investments. The income produced by rental real estate is also included in the definition of investment income for the purposes of the 3.8% net investment tax. Income-producing assets and the potential tax consequences are important because post-divorce tax filing status and dependent exemptions are not nearly as taxfavorable as they are for a married couple filing a joint tax return. The adjusted tax brackets, thresholds and limitations for filing single or head of household can have a significant adverse tax impact depending on the circumstances. The simple chart below illustrates how filing status and number of dependents affect tax rates and liability: To further this discussion, couples may have a significant amount of wealth allocated to non-income producing assets, including retirement accounts, a primary residence, vacation home(s) and vacant land. While retirement accounts grow tax-deferred, they are not considered to be liquid assets during pre-retirement age (before age 59 ½) since early distributions are subject to a 10% penalty. After age 59 ½, the retirement accounts are available for distribution, but all distributions on these taxdeferred accounts (not including Roth IRAs) are taxed at ordinary income tax rates. Many people monitor the assets in their retirement accounts since the accounts are invested

AGI

Standard Deduction

Exemption Deduction

Effective Tax Rate

$150,000 $150,000 $150,000 $150,000 $150,000 $150,000

6,300 12,600 12,600 6,300 9,250 6,300

4,000 8,000 16,000 12,000 12,000 12,000

23% 18% 18% 25% 21% 23%

Difference Tax Liability Year over Year

$32,187 $23,938 $21,938 $33,409 $27,066 $29,947

$(8,249) $(2,000) $11,471 $(6,343) $2,881

in the stock market. However, even though the securities in the accounts are increasing or decreasing in value through capital gains or losses (whether realized or unrealized), there is no capital gain tax effect with respect to these accounts. With all of this data compiled from the couple’s earnings, income producing assets, non-income producing assets, filing status, exemptions and tax rates, the financial and tax advisors can step in and run financial models for divorcing couples to more accurately project how the combination of assets and income (including alimony, whether received or paid) will sustain them for the remainder of their lives. The amount and term of alimony can be easily changed, prompting the model to re-calculate a new scenario. This process can also be applied to other items including living expenses, the onset of social security benefits and required minimum distributions from retirement accounts. All of these factors affect the couple over time and can be far more illuminating than focusing only on the near term and current economic position. Stated another way, a comprehensive financial analysis can provide some much needed perspective during a changing financial landscape. Additionally, there is the matter of responsibility for a couple’s tax liability. As a rule, the IRS expects that if couples are filing a joint return, as certified by their signatures and joint filing status, then to the best of their knowledge they

are aware of what is being reported and that it is correct. Note: Preparation of a return by a qualified tax professional does not relieve the taxpayer of responsibility. Therefore, the IRS holds a couple jointly and severally responsible for the content and the tax liability, meaning that one spouse may be held liable for all of the tax even if all of the income was earned by the other spouse. There are options for abating or shifting liability as well as other possible methods of relief, depending upon the circumstances. If a spouse has any reason to believe the other spouse is being dishonest with their joint return filings, it would be prudent for the suspecting spouse to consider filing as married filing separately until the divorce is final. Filing this way generally satisfies the IRS that the individuals are reporting their separate income, deductions and tax liability, much the same way they would as if they were single. When a couple’s world is turned upside-down during the process of divorce, it is reassuring to have a level of certainty with respect to each one’s financial security for the foreseeable future, when so many other factors in their lives are vague and unknown. Attorneys armed with knowledge of the couple’s financial landscape and tax implications can make a big difference in facilitating the process to a reasonable conclusion. t

What?! I Didn’t Write that Letter! Avoiding the stealing of your letterhead and signature from emailed letters

by SEAN ANTONE HUNT

f you are one of the attorneys who still send out letters via email by attaching the document in Word, let this be a warning to you. Stop! There are many reasons why you should never send out Word document. Sending out a document in a word processor format not only gives access to metadata, which by now you might know, but it also gives access to your letterhead and signature. We’ve all heard about the concept of using the fact that Word keeps all of the changes to a document with the document, if you haven’t, then research metadata from Word and see all of the things that you are giving away when you send a letter via email. But, even if you don’t have the metadata in your document, you do have two things that are very important to hackers, spammers and people who might spoof your name and information. In the background, a lot of us have our letterhead with logo and other information. But, when you send out this information in a Word document, it is easily lifted in native format from the document. It’s as simple as opening up the header and copying it. The same is true for your signature. Many of us use a graphic image as our signature. But that, too, can be easily lifted from the document simply by copying the image or saving the image. Instead, the best alternative is provided right in Word. Just click on the “File” menu and choose “Email” from the menu. Most of us are using that anyway to send the document via Word. But instead you should choose “Send As Adobe PDF” if you have Adobe Acrobat Standard on your computer or “Send As PDF” if you don’t have Adobe Acrobat Standard on your computer. It is as simple as that. Word will then convert the document into PDF format and attach it to an email. If you don’t have email native on your computer—for example, you use an online email server such as Gmail, Yahoo, etc.—you can still use this to create the PDF for you. When the email opens, you can simply save the PDF document to your computer for uploading to your email account (assuming you don’t use Outlook or one of the other MAPI compliant email programs). 18

Now, you might indicate that you can still copy your signature and your letterhead, but it is not that easy in PDF. First, as the image is sent out it begins to degrade and it becomes easier to see that it is a copy rather than the original. PDFs can be specifically locked so that copying and editing cannot be accomplished. Also, you can easily remove all metadata and prevent any and all changes. Finally, PDFs are universal and therefore it is unlikely that the person or persons you send this document to will not be able to open it. Instead, it will look exactly like the version you have on your screen and can be opened by a host of free programs including Dropbox, Google Drive, iCloud and more. t

Tax Problems? Jerry H. Schwartz, Attorney & CPA     

Serving Memphis attorneys and their clients Over 30 years tax experience Rated A+ by the Better Business Bureau Confidential and dedicated service Professional effective tax resolution

6260 Poplar Avenue | (901) 683-8766 Memphis, TN 38119 | attycpa1040@gmail.com www.jerryhschwartz.com

Experienced Lawyers On Demand + Efficient Business Process = Quantifiable Results Counsel On Call provides an innovative alternative to our corporate clients for getting legal work done in a cost-efficient, effective manner – on time and on budget. In 2014, we worked to save our clients, including 30% of the FORTUNE 100, more than $250 million on their matters.

We are a proud supporter of the Memphis legal community.

counseloncall.com I 866.487.7319

2016

Legislative Recap

by SENATOR MARK NORRIS

No man's life, liberty, or property (is) safe while the legislature is in session. -- Mark Twain

he two-year 109th General Assembly adjourned sine die on April 22. Despite Twain’s foreboding, with 2535 bills filed during the 2016 session alone (5,363 over both years), and the fewest legislative days ever used in any two-year session, much was accomplished. “Job 1” is balancing the $35 billion annual budget. This was done while increasing reserves, cutting the Hall tax, providing more property tax relief for veterans and the elderly, and issuing no new debt. Funding included 9 new drug courts and 2 new Veterans courts. We increased funding for education by record amounts, increased funding for law enforcement including additional state troopers, forensic scientists at the TBI, and staff for District Attorneys. The FOCUS Act restructured higher education including independent boards for the University of Memphis and five other state universities, and we enacted the Rural Economic Opportunity Act to spur economic development in Tennessee’s most economically distressed counties. Transportation received increased funding of $142 million. Public Chapter 528 codifies the new judicial confirmation plan for appellate courts. Roger A. Page 20

was confirmed as the first Supreme Court Justice to undergo confirmation by the General Assembly, and J. Ross Dyer was similarly confirmed to the Court of Criminal Appeals. The Senate Judiciary Committee and its House counterpart each meet to publicly interview appointees for approval to the full Senate and House. Then the two Chambers meet in Joint Session to either confirm or reject. If both Chambers vote to confirm, the appointee is confirmed. If both chambers vote to reject, the appointee is rejected. If one Chamber votes to reject by two-thirds, the appointee is rejected. In developing this system, we took great care to respect the doctrine of separation of powers, not only between the branches of government but also of the two Chambers of the General Assembly. Also included in the legislation was the establishment of a Trial Court Vacancy Commission for the purpose of recommending persons to fill trial court vacancies to the Governor. The Public Safety Act of 2016, Public Chapter 906, came from the Governor’s Taskforce on Sentencing and Recidivism seeking to reduce crime and stem prison and jail population growth. The Act addresses the most serious offenses driving Tennessee’s violent crime rate by establishing mandatory minimum sentences for those convicted of three or more charges of aggravated burglary, especially aggravated burglary, or drug trafficking. It also addresses domestic violence by allowing law enforcement to seek an order of protection on behalf of a domestic abuse victim. Additionally, if a law enforcement officer makes an arrest involving domestic abuse, then an automatic order of protection will be issued when there is probable cause to believe that the alleged assailant used or attempted to use deadly force against a domestic violence victim. A third and subsequent domestic violence conviction becomes a Class E felony under the new law. Third and subsequent domestic violence convictions were previously a misdemeanor. This change maintains the current minimum 90-day sentence for a domestic violence conviction. In addition, the measure retools community supervision to reduce the number of people returning

to prison for probation and parole violations when their noncompliance does not rise to the level of a new criminal offense. The move is expected to save the state $80 million. Of the 12,588 people entering state prison last year, 5,061, or 40 percent, were probationers or parolees sent to prison because they violated supervision conditions. This legislation authorizes the department to utilize a robust, structured matrix of both sanctions and incentives to facilitate compliance with the conditions of supervision by the more than 71,000 state probationers and parolees. There were several updates to both the content and execution of wills and other testamentary documents. The Revised Uniform Fiduciary Access to Digital Assets Act, Public Chapter 570, provides protection to the majority of Tennesseans who store property or communications as data on a computer server and access it through the Internet, or as it is know more commonly “the cloud.” The Act, which has now been introduced or enacted in at least 30 states, allows individuals to designate a fiduciary to exercise control over their digital assets upon death in the same way a traditional fiduciary manages tangible property. As more people store pictures, financial records and other information solely online, a uniform, national system brings certainty both to those using photo storage sites, social media, on line banking and email accounts but also to the providers of those services. Public Chapter 843, revises requirements for valid execution of wills. For wills executed prior to July 1, 2016, signatures affixed to the self-proving affidavit shall be considered signatures for the will if they were made at the same time the testator signs the will and the affidavit meets the other requirements for acknowledgement under the traditional requirements. Importantly, however, if the signatures of the affidavit are treated as signatures on the will, they will not also serve as a self-proving affidavit under present law. Public Chapter 1034 was enacted late in the session in response to a Court of Appeals decision striking down a conviction under the gang enhancement law for lack of nexus. By requiring that, except in cases where there is already proof that the criminal act was committed in order to join a gang, the criminal offense must be committed at the direction of, in association with, or for the benefit of the defendant's gang or a member of

the defendant's gang. Miscellaneous bills of interest include Public Chapter 329 allowing the state to make a timely objection, for good cause shown, to the defendant’s waiver of preliminary hearing. Public Chapter 755 allows the Supreme Court, upon its own motion, to assume jurisdiction over an undecided case when there has been notice of an appeal or application for interlocutory appeal. The Court must find a compelling public interest in order to assume jurisdiction. Public Chapter 582 allows sheriffs to collect the same full payment for unsuccessful service of process as they would for successful service if that service is attempted in accordance with current law. Former Senator, now Chancellor, Jim Kyle used to say, “If you don’t have a special interest, you don’t have an interest.” Lawyers should be especially interested in the enactment of, or failure to enact, laws affecting our communities. When the 110th General Assembly convenes in January, I encourage you to take time out of your practice for engagement and advocacy in Nashville. t

An Off-Site Supervised Visitation Service dedicated to safely connecting children and parents at home and in public settings ______________________________________________________

www.AFamilyConnectionInc.com Contact: Shari Myers at 901.737.3337 smyers@AFamilyConnectionInc.com 5390 Estate Office Drive - Suite 2 Memphis, Tennessee 38119

COURT REPORT

THE

by DEAN DECANDIA

CRIMINAL COURT—Covers the weeks of March 21, 2015 to May 9, 2016 COURT

JUDGE

DIV. I

SKAHAN

VERDICT 1. STATE V. DARIN WOODS: Trial from Mar 28 to 31. Indicted for Criminal Attempt: 1st Degree Murder, Aggravated Robbery, Criminal Attempt: Aggravated Robbery, Employment of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty of Criminal Attempt: 2d Degree Murder and remainder of counts as indicted. Prosecution: Pam Stark, Sam Winnig. Defense: Billy Gilchrist. 2. STATE V. DAVID BLACK: Trial from Apr 19 to 22. Indicted for Criminal Attempt: Rape of a Child, Aggravated Sexual Battery. Verdict: Guilty as indicted. Prosecution: Abby Wallace. Defense: Nick Cloud. 3. STATE V. DEANDRY PETERSON: Trial from May 9 to 13. Indicted for Aggravated Rape, Aggravated Robbery, Aggravated Burglary, Possession of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty as indicted. Prosecution: Carrie Shelton, Abby Wallace. Defense: Billy Gilchrist.

DIV. II

WRIGHT

1. STATE V. SHANERICK ABRAHAM: Trial from Mar 21 to 22. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Austin Scofield. Defense: John Scott. 2. STATE V. DEON ARNOLD, GENNAREO ODOM: Trial from Apr 11 to 13. Both defendants indicted for Aggravated Robbery; Odom indicted for additional count of Possession of Marijuana. Verdict: Arnold found guilty of Assault; Odom found guilty of Possession of Marijuana. Prosecution: Austin Scofield. Defense: Charles Mitchell for Arnold; Juni Ganguli for Odom. 3. STATE V. JULIUS HULL: Trial from May 9 to 11. Indicted for Possession of Marijuana with Intent to Sell, Possession of Marijuana with Intent to Deliver, Possession of Firearm During the Commission of a Dangerous Felony. Verdict: Not guilty. Prosecution: Bo Summers. Defense: Jeff Woods.

DIV. III

CARTER

1. STATE V. RHONDA WARNER: Trial from Apr 4 to 7. Indicted for DUI, Reckless Driving. Verdict: Guilty as indicted. Prosecution: Billy Bond. Defense: Vicki Green. 2. STATE V. LATOYA BROWN: Trial from Apr 11 to 13. Indicted for 2 alternative counts of DUI, Reckless Driving, 3 counts of Leaving Scene of an Accident involving Bodily Injury, 1 count of Leaving Scene of an Accident Involving Property Damage. Verdict: Guilty of Reckless Driving, Leaving the Scene of an Accident Involving Property Damage. Prosecution: Billy Bond. Defense: Blake Ballin. 3. STATE V. TERRIOUS CRAFT: Trial from Apr 28 to 29. Indicted for Aggravated Robbery. Jury hung, then guilty plea to Theft of Property $501 to $999. Prosecution: Bridgett Stigger. Defense: Katherine Oberembt, Jim Hale. 4. STATE V. SEAN FARRIS, DARRYL GOODMAN: Trial from May 2 to 5. Both defendants indicted for Aggravated Robbery. Verdict: Farris found guilty as indicted; Goodman found guilty of Facilitation: Aggravated Robbery. Prosecution: Dru Carpenter, Gavin Smith. Defense: John Dolan for Farris; John Holton for Goodman.

DIV. IV

BLACKETT

DIV. V

LAMMEY

NO JURY TRIALS TO COMPLETION THIS PERIOD. 1. STATE V. ROBERT PERKINS, MONTERRIO PIPKINS: Trial from Mar 28 to Apr 1. Both defendants indicted for 3 counts of Criminal Attempt: 2nd Degree Murder, 3 counts of Employment of a Firearm During the Commission of a Dangerous Felony, 3 counts of Aggravated Assault. Verdict: Both defendants found not guilty. Prosecution: Tyler Parks, Gavin Smith. Defendants: Charles Waldman for Perkins; Coleman Garrett for Pipkins. 2. STATE V. SHANIQUA ATKINS: Trial from Apr 11 to 13. Indicted for Vandalism $1,000 to $9,999. Verdict: Not guilty. Prosecution: Tyler Parks. Defense: Glover Wright. 3. STATE V. WILLIE MORGAN, ASHLEY PROCTOR: Trial from Apr 18 to 21. Both defendants indicted for Aggravated Robbery. Verdict: Both defendants found guilty as indicted. Prosecution: Tyler Parks, Gavin Smith. Defense: John Zastrow, John Stanton for Morgan; John Dolan for Proctor. 4. STATE V. QUANTEZ PERSON: Trial from May 2 to 5. Indicted for Aggravated Rape, Criminal Exposure to HIV. Verdict: Guilty of Criminal Exposure to HIV. Prosecution: Abby Wallace, Cavett Ostner. Defense: Claiborne Ferguson. 5. STATE V. DONNA BURNS: Trial from May 9 to 11. Indicted for Aggravated Robbery. Verdict: Guilty of Theft of Property ≤ $500. Prosecution: Gavin Smith. Defense: Coleman Garrett.

DIV. VI

CAMPBELL

1. STATE V. KERRY GRANDERSON: Trial from Apr 4 to 8. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Bridgett Stigger. Defense: Mark Mesler. 2. STATE V. MARCELLUS WOODS: Trial from Apr 18 to 20. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Leslie Fouche, Olivia Brame. Defense: Genna Lutz.

CRIMINAL COURT—Covers the weeks of March 21, 2015 to May 9, 2016 COURT

JUDGE

DIV. VII

COFFEE

VERDICT 1. STATE V. MANDRELL SANDERS: Trial from Mar 21 to 23. Indicted for Aggravated Burglary. Verdict: Guilty as indicted. Prosecution: Stacy McEndree, Austin Nichols. Defense: Pro se (elbow counsel Mike Gatlin). 2. STATE V. JESSEE HUDSPETH: Trial from Mar 28 to 31. Indicted for Aggravated Robbery. Verdict: Not guilty. Prosecution: Jose Leon. Defense: Robert Amann. 3. STATE V. MARQUEL STEWART: Trial from May 9 to 12. Indicted for Aggravated Robbery. Verdict: Guilty as indicted. Prosecution: Steve Ragland. Defense: Hayden Lawyer.

DIV. VIII

CRAFT

1. STATE V. BRYANT WILLIAMSON: Trial from Mar 21 to 26. Indicted for 1st Degree Premeditated Murder, Criminal Attempt: 1st Degree Murder, Employment of a Firearm During the Commission of a Dangerous Felony. Verdict: Guilty as indicted. Prosecution: Carla Taylor, Reggie Henderson. Defense: Charles Waldman. 2. STATE V. MARIO HUBBARD: Trial from Mar 28 to 29. Indicted for Burglary of a Motor Vehicle. Verdict: Guilty as indicted. Prosecution: Carla Taylor. Defense: John Holton. 3. STATE V. CORNELIUS PERRY, DANTRELL PICKETT: Trial from Apr 19 to 22. Both defendants indicted for 2 counts of Especially Aggravated Kidnapping, Aggravated Robbery, Aggravated Burgary—acting in concert, Employment of a Firearm During the Commission of a Dangerous Felony; Perry indicted for additional count of Felon in Possession of a Firearm. Hung Jury. Prosecution: Chris Lareau. Defense: Randall Rhea for Perry; Larry Sims for Pickett. 4. STATE V. MICHAEL RIMMER: Trial from Apr 25 to May 7. Indicted for 1st Degree Premeditated Murder—Capital. Verdict: Guilty as indicted. Sentence: Death. Prosecution: Pam Anderson, Rachel Sobrero. Defense: Paul Bruno, Robert Parris.

DIV. IX

WARD

1. STATE V. CEDRIC HENDERSON: Trial from Apr 4 to 6. Indicted for 2 counts of Domestic Assault. Verdict: Not guilty. Prosecution: Greg Gilbert, Sarah Poe. Defense: Andre Mathis. 2. STATE V. DANYELLE MCCULLOUGH: Trial from Apr 18 to 21. Indicted for Theft of Property $1,000 to $9,999, Forgery $1,000 to $9,999. Verdict: Guilty as indicted. Prosecution: Byron Winsett. Defense: John Scott.

DIV. X

BEASLEY

1. STATE V. MAURICE BAXTER: Trial from Mar 28 to 31. Indicted for Aggravated Rape, Aggravated Burglary, Employment of a Firearm During the Commission of a Dangerous Felony, Theft of Property $1,000 to $9,999. Verdict: Guilty of Aggravated Rape, Aggravated Burglary, Theft of Property $1,000 to $9,999. Prosecution: Josh Corman. Defense: Eugene Belenitsky.

Memphis Bar Foundation In Practice:

by TUCKER K. MARSHBURN, President, Public Action Law Society

ALTERNATIVE SPRING BREAK

his year, the Public Action Law Society’s Alternative Spring Break (ASB) program theme focused on a core principal of the ASB Program: help make Memphis a better place for all. This year’s program, “Building Community: Removing Blight, Restoring Hope” saw sixtythree law students from five different law schools assist over 150 clients needing legal services. Two new service tracks were introduced as well – Veterans’ Benefits and Juvenile Law.

Both tracks saw heavy workloads. The Veterans Benefits track spent the week working with Support Services for Veterans Families project at Memphis Area Legal Services. Students on the Veterans’ Benefit Track assisted veterans by performing screenings, assisting with benefit claims and status changes, and helping low income Shelby County residents apply for low interest mortgages and avoid eviction. Concurrently, the Juvenile Law track students were working at the Shelby County Juvenile Court to clear a backlog of Foster Care Review hearings. Over the course of ASB, the two teams of the Juvenile Law track sat on review boards and saw 34 children for review hearings. During the hearings, the students spoke with Department of Children Services (DCS) workers, foster children, and any interested party.

Students also participated in our Civil Rights Restoration, Family Law, Immigration, Elder Law, and Research and Writing tracks. The Civil Rights Restoration track screened thirteen clients for eligibility and spoke with Just City about their work in Memphis and Shelby County. The Family Law track worked as a hybrid service track by focusing on pro-se divorces and assisting victims of domestic violence, in conjunction with MALS and the Family Safety Center. The Immigration track, under the supervision of attorneys from the Community Legal Center and Latino Memphis, completed sixteen Deferred Action for Childhood Arrival (DACA) applications. The Elder law track worked under the supervision of David Cook of the Hardison Law Firm and Kerry Krauch of the Community Legal Center to assist sixty-nine senior

ordinance, if adopted, will establish a local rental property and owner registry, to assist Code Enforcement locate neglectful property owners. The second ordinance drafted by the students will modify the language in the current housing code to allow the city to recoup the cost of multiple inspections by code enforcement due to noncompliance.

citizens of Memphis with notarized advance directives, notarized medical power of attorney, and general legal questions. Under the supervision of Environmental Court Referee John Cameron, the Research and Writing track produced an Action Plan form to assist defendants sued under the Neighborhood Preservation Act. The students also drafted two city ordinances. One

It is my hope, and that of PALS, that the services these dedicated law students, attorneys, and legal service providers completed for the underserved and underrepresented members of the Memphis community will improve lives and assist in building a stronger Memphis. On behalf of PALS and everyone involved in bringing Alternative Spring Break to life each year, thank you for your support. t

254 COURT AVE

OFFICES FOR RENT Join eleven of your colleagues at 254 Court Ave. • Month to Month Leases • Private Parking • Walking Distance to the Court House

For more information, contact Sam Mitchell 901.569.2307 25

The 2015 Federal Rule Changes

means.” Rule 16(b)(1)(B). The Committee Notes state that the deletion was made because direct and simultaneous communication with judges is most effective. This fosters early and active court participation in each case.

New Tweaks to Federal Trial Practice

The second amendment requires the judge, absent a finding of good cause for delay, to issue a scheduling order within 90 days after a defendant has been served or 60 days after a defendant has appeared whichever comes first. Rule 16(b)(2). This is another effort to speed cases along.

by RICHARD CARTER

n December 1, 2015, after more than five years of discussion, debate and hearings, several changes were made to the Federal Rules of Civil Procedure (“Federal Rules”). The changes are designed to reduce costs, prevent delay, promote cooperation among the parties, clarify the scope/breadth of discovery and encourage early and active judicial management. This discussion isn’t an in depth analysis of the amendments, but an overview of only the changes to Rules 1, 4, 16, 26, 34, 37 and 84.[1] RULE 1 – The “Scope and Purpose” of the Federal Rules was changed to state “[The Federal Rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Rule 1 (emphasis added to new wording). Rule 1 is very important but often overlooked. The change was made “so the parties share the responsibility to employ the rules in the same way [as the court].” Rule 1, Advisory Committee Notes 2015 (“Committee Notes”). The Committee Notes go on to state that “[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” Id. (emphasis added). Litigants should consider invoking Rule 1 for example, when their opponent in discovery is trying to kill a gnat with a bazooka. Also consider Rule 1 and its specific scope when requesting a limitation or procedure that would streamline the litigation process. RULE 4 – Changes to Rule 4 help to speed cases along by reducing from 120 days to 90 days, the time after filing a complaint by which a plaintiff must serve the defendant. Rule 4(m). If the service isn’t timely made, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Id. Importantly, by shortening the time to serve a complaint under Rule 4(m), this also shortens the time for relation back. Committee Notes. RULE 16 – Four amendments were made to Rule 16. The first deletes the provision that allowed scheduling conferences to be conducted “by telephone, mail, or other 26

The third change to Rule 16 adds that the scheduling order may also include, “agreements reached under Federal Rule of Evidence 502.” Rule 16(b)(3)(B)(iv). Rule 502 of the Federal Rules of Evidence describes the evidentiary treatment of privileges and work product material and the impact of waiver. Litigants could greatly simplify disputes in the event of subsequent, unintended disclosure of privileged material by making their agreements a part of their scheduling orders. Fourth, Rule 16 now permits scheduling orders to include language that “direct[s] that before moving for an order relating to discovery, the movant must request a conference with the court.” Rule 16(b)(3)(B)(v). The Committee Notes observe that many courts that hold pre-motion conferences find them to be “an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion[.]” Id. Litigants should carefully consider requesting such conferences as part of scheduling orders to reduce litigation costs. Note, however, that this rule is permissive, not mandatory; courts are not obligated to adopt this procedure even if the parties request it. RULE 26 – The most significant changes made in 2015 are to the scope and standard for discovery. Anyone who has practiced in federal court for very long knows the phrase “reasonably calculated to lead to the discovery of admissible evidence.” Indeed, many litigants have made this their mantra when they object to production requests. These words have been removed from the scope and limits of discovery under Rule 26(b)(1). Now discovery is allowed regarding: any nonprivileged matter that is relevant . . . and proportional to the needs of the case, considering the importance of the issues at stake in the actions, the amount in controversy, the parties’ relative access to information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible to be discoverable. Rule 26(b)(1). The Committee Notes stress that this is not a change, but rather a rephrasing of what the Federal Rules have always stated. “The present amendment restores the proportionality factors to their original place in defining the scope of discovery.” Committee Notes. Also,

by reference to “relative access to information,” which the Committee refers to as “asymmetric information,” the court may give deference to the party that has far less access to information. These changes likely will alter the way litigants view the scope of discovery. When the claim is small but the costs of discovery are large, a litigant may argue that the discovery needs to be simplified and streamlined to make it proportional to the claim. On the other hand, if the social issue is substantial but the cost of discovery would be large, a litigant may argue that justice will be served by a quest for the truth – whatever the cost. Rule 26(c)(1) has been changed to add that protective orders may allocate the expenses for certain discovery. For example, if a party seeks a protective order because of the cost of e-discovery, the court is expressly allowed to permit the request, but allocate who pays the expense of that discovery. Rule 26(d)(2) and Rule 34(b)(2) have been changed to permit early service of document requests rather than having to wait until the Rule 26(f) conference. A party may serve Rule 34 requests for documents more than 21 days after service of the summons and complaint. The Responses, however, aren’t due until 30 days after the parties’ first Rule 26(f ) conference. Rule 34(b)(2)(A). By serving Rule 34 discovery requests early, you’d give your opposition more time to respond, which should result in fewer requests for extension. Moreover, early Rule 34 requests will allow parties to meaningfully discuss any objections or concerns during the Rule 26(f) conference. Under new amendments to Rule 26(f), the discovery plan submitted to the court must include the parties’ views on preservation of electronically stored information. Rule 26(f )(3)(C). Therefore, if you have any specific concerns about preservation of e-discovery, you should discuss them in the Rule 26(f) conference and present them to the court as part of the discovery plan. RULE 34 – Rule 34, in addition to the change previously noted, has been amended to require a responding party to “state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Rule 34(b)(2)(B). This change seeks to stop the practice by some litigants of responding to discovery and then delaying the production itself. Now documents must be produced by the date set in the request or a “reasonable time specified in the response.” And, under the amendment of Rule 37(a)(3)(B), if a party fails to produce documents in accordance with Rule 34, the requesting party can move to compel discovery.

A very significant change has been made to Rule 34(b)(2) (C) that increases the burden placed on a party that objects to document requests. Now “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.” Rule 34(b)(2)(C). This should stop parties who object to every request and force the requesting party to ferret out whether any responsive documents have been withheld. This will force attorneys to more carefully review their documents and to make more informed decisions before lodging objections. RULE 37 – One of the most difficult areas of modern litigation practice is e-discovery. The advent of computers, cell phones, iPods, personal digital assistants, thumb drives, portable hard drives and the like have created an almost infinite number of places to look for data. With those devices also come a multiplicity of ways data can be lost or corrupted. Rule 37(e) now provides guidance about what happens when electronically stored information that “should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” The added language establishes several conditions: “in the anticipation or conduct of litigation”; “lost because a party failed to take reasonable steps to preserve it,”; and “cannot be restored or replaced through additional discovery.” If those conditions exist, and the court finds prejudice to the other party, the court may only “order measures no greater than necessary to cure the prejudice[,]” unless the court finds that the party “acted with the intent to deprive another party of the information’s use in the litigation[.]” Rule 37(e)(1) & (2). If such intent is found, the court may presume that the lost information was unfavorable to the party, give an adverse jury instruction, or dismiss the action or enter a default judgment. Id. These changes provide the court and the parties with greater clarity about what may or must happen if data is lost. RULE 84 – This rule and the many forms that were included in the Appendix to the Federal Rules have all been removed. Parties no longer can argue that their complaint should not be dismissed simply because it was patterned after one of the form complaints. Rather, precedent contained in Iqbal and Twombly and other cases will control. Anyone practicing in federal court should know that these amendments have been adopted and should carefully consider how these amendments and the Federal Rules themselves affect his or her matter. [1] Rules 30, 31 and 33 were only changed to make reference of the new Rule 26 provisions.

Stevenson:

Creating Our Own Identity by GIGI MCGOWN

n Monday, May 2 attorneys and friends of the Memphis Bar Association gathered at the Peabody Hotel for the Memphis Bar Foundation’s annual Law Week Luncheon honoring the luncheon’s keynote speaker, renowned public interest attorney Bryan Stevenson. Paul Tuberville, President of the Memphis Bar Foundation, provided a welcome to attendees, who filled the ballroom at the sold-out event. Tuberville was followed by greetings from City of Memphis Mayor Jim Strickland and Congressman Steve Cohen. Honorary Luncheon Chairperson Judge Bernice Donalds then presented Bryan Stevenson with the Benjamin L. Hooks Award for his significant contributions to social justice. Stevenson’s accomplishments in the public interest sphere are numerous and varied. He’s the founder and Executive Director of the Equal Justice Initiative (EJI) in Montgomery, Alabama. As an acclaimed public interest lawyer, Stevenson has dedicated his career to helping the poor, the incarcerated and the condemned. Under his leadership, EJI has won major legal challenges eliminating excessive and unfair sentencing, exonerating innocent death row prisoners, confronting abuse of the incarcerated and the mentally ill, and aiding children prosecuted as adults. Stevenson’s work fighting poverty and challenging racial discrimination in the criminal justice system has won him numerous awards including the MacArthur Foundation “Genius” Prize, the National Medal of Liberty from the ACLU and the Olaf Prame Prize in Stockholm, Sweden for international human rights. He is also the author of the New York Times bestseller Just Mercy. A 1985 graduate of Harvard, with both a Masters in Public Policy from the Kennedy School of Government and a J.D. from the School of Law, Stevenson is also a Professor of Law at the New York University School of Law. 28

Following an introduction by Connie Lensing, Senior Vice President, Legal of FedEx Express, Stevenson began his address acknowledging what a transformative time it is in Memphis. He discussed the importance of identity – our identities as Memphians, Americans and as Southerners. Stevenson noted that there is a power in identity, and we have the choice to create identity in something stronger and more durable then the identities of the past. Although as a society we have challenges of poverty and high incarceration rates, there are many things Memphians can do to create our own identity. One is to be proximate to the things that challenge us. Instead of avoiding areas known for poverty or crime or drug abuse, we can choose to get closer to these communities. Another is to change the narrative. We’re still burdened with the history of racial inequality and racial terrorism that occurred at the end of the 19th and beginning of the 20th centuries; however, Stevenson praised Memphis’s ongoing project to identify and mark the sites of lynchings that occurred here. He stated the only way to treat the disease of slavery and racial inequality is to acknowledge it. Stevenson discussed the importance of staying hopeful that we will get to the place we want to be as a society, because hopelessness is the enemy of justice. Finally, Stevenson suggested that we commit to doing some things that are uncomfortable. When we do uncomfortable things, we are beating the drum for justice. Stevenson concluded his speech noting that he’s excited and hopeful about what’s happening in Memphis. Proceeds from the luncheon went to the MBA’s Summer Law Intern Program which places minority high school students with law firms, corporate legal departments and governmental agencies. t

HAMLIN DISPUTE RESOLUTION, LLC offering mediation, arbitration and other dispute resolution services throughout the mid-South since 1992

To schedule a mediation with Jimmy Lawson or Frank Hamlin, visit our website at www.hamlindispute.com for online scheduling.

Visit us online and mediate or arbitrate at our new location at 119 South Main St. in Pembroke Square

Jimmy Lawson

Pembroke Square

119 South Main Street Memphis, TN 38102 (901) 201-9668 (501) 850 - 8888

Frank Hamlin

823 W. Markham Street, Suite 100 Little Rock, AR 72201 (501) 850 - 8888 | (501) 850 - 8889 fax

www.hamlindispute.com

CLC Pro Se Divorce Clinic Provides

Fresh Starts, Brighter Tomorrows by TINA PERRUSQUIA, CLC Staff Attorney

he last year has been one of change for the Community Legal Center and for me. While I’ve been working as a substitute attorney for the CLC since 2010, I formally came aboard as a staff attorney in November 2015 to transition and, ultimately, oversee the Pro Se Clinic. On March 31, Irene Hallett, the staff attorney who managed the Pro Se Clinic for more than a decade, retired. She largely shaped its current incarnation, developing standard operating procedures and extending its presence by serving on a committee of the TN Supreme Court’s Access to Justice Commission which developed standard forms for use by pro se litigants. Irene ran the clinic with efficiency and compassion, doing everything she could to get positive outcomes for her clients. Irene’s shoes are big ones to fill, but I’m looking forward to continuing the Clinic’s work and exploring ways to increase the impact we can have on our clients’ lives. The Pro Se Clinic’s primary function is to assist parents with minor children file uncontested divorces, with the goal to increase parenting time for, and support provided by, the non-primary residential parent. Although some potential pro se litigants become discouraged at first by a process that they find daunting, many are determined and successful in obtaining a final decree of divorce for the cost of the filing fee. This year, through the end of April, of the 348 people who contacted the Pro Se Clinic, 27 were found to be qualified applicants; of those, with our assistance, 16 litigants filed for divorce and obtained a total of $48,946.68 annually in child support. Most of the remainder who 30

didn’t qualify for the Pro Se Clinic program were referred elsewhere. Potential pro se litigants start the process with an intake interview to determine eligibility for the Pro Se Clinic’s services based upon a household’s financial resources. Those who qualify must then attend three appointments at the clinic, during which they are assisted with drafting a Permanent Parenting Plan, Complaint for Divorce, Marital Dissolution Agreement and Final Decree. The pro se litigant must also contact the Court to set a date for the final hearing. Establishing child support is an obstacle for many pro se litigants and assisting them with it is key to increasing those who are able to obtain a divorce. In the past, our clients were instructed to contact Shelby County Child Support Services to establish child support before being able to proceed through the clinic. Going forward, we hope to enlist pro bono attorneys to assist pro se litigants in obtaining child support orders and, under some circumstances, assist them with calculating their child support obligation. Establishing child support more quickly will allow more pro se litigants to benefit from the help we offer at the Pro Se Clinic. The goal of each of our Pro Se Clinic clients seeking a divorce is the same, to get a fresh start. Even with all the online assistance now available, those unfamiliar with legal process sometimes need hands-on help such as that provided by the Pro Se Clinic. Know that we are there, continuing the work that has been done for so long, but looking for ways to improve outcomes. t

RECEIVE FEES FOR REFERRALS

VIRTUE MIGHT BE ITS OWN REWARD, BUT A CHECK IS NICE TOO.

Receive up to 1/3 of the attorney fees on cases you refer to us. With years of experience in personal injury, medical malpractice and legal malpractice litigation, there’s no better resource to refer to than Bailey and Greer. Plus, when you do, we’ll pay all the expenses and give you up to 1/3 of the attorney fees. All you have to do is refer to us, and we’ll handle the rest.

Ready to refer? Contact Sadler Bailey or Thomas Greer at 901-680-9777 or tgreer@baileygreer.com.

When You Refer, We Reward. 6256 Poplar Avenue | Memphis, TN 38119 www.baileygreer.com *The sharing of attorney fees must comply with Tenn. R.P.C. 1.5

MALS

CORNER by M. JEAN HOLBERT, Staff Attorney

hen I graduated from law school in 2008, the job market was horrible. I did not fully understand it at the time, but the mortgage crisis had caused the economy to tank. I somehow stumbled into a job at a personal injury firm, and, though it was not what I had envisioned, I was afraid to turn down a perfectly good opportunity. I did my best to learn everything I could about my new field, and I soon found myself enjoying my job. I worked at the firm handling personal injury and medical malpractice cases for seven years. The first few years were challenging, and I felt fulfilled. As the years went by, however, I noticed that the phones were not ringing as frequently as they did when I started. My caseload dwindled from 170 cases to 40, and the firm could no longer afford to be selective when accepting cases. I was growing dissatisfied with my situation, and I began to search for other employment. I saw that MALS had an opening for a staff attorney position and immediately applied. A few months later, the Memphis branch of the firm closed. I explored many different career options. I did contract work, I was on the child support contempt docket, I opened my own practice, and I eventually took a job with a real estate firm. I disliked working for the real estate firm the most. My duties included attending eviction hearings, arguing motions in Bankruptcy Court, holding sales, and spending endless hours reviewing title searches. I frequently had to drive hours to stand on the courthouse steps and read legal descriptions of property to no one. I assume I looked like a crazy person; I know I felt like one. 32

One day while I was driving to Savannah, Tennessee for a sale that no one would attend, I got a call from MALS Executive Director, Harrison McIver. He asked me if I was still interested in a job, and I quickly replied that I was. During my interview I learned that the opening at MALS was for a staff attorney in Memphis Fair Housing Center. I did not know anything about fair housing laws at the time, but I told my interviewers that I would love to learn. They decided to give me a chance. Before I worked at MALS, I did not realize the variety of issues MALS handles or the depths to which the staff will go to help their clients. For example, MFHC is a HUD certified counseling agency. We do mortgage counseling (I understand the whole subprime mortgage crisis of 2008 much better now) and help people stay in their homes. I also did not realize that MALS engages in complex litigation. Since I started in October, I have been involved in two such cases. In one case, our client, a deaf individual, is seeking a reasonable accommodation that would put him on equal footing with the hearing individuals in his home owners association. The other case involves a family that was discriminated against and denied housing on the basis of race. The majority of my clients are good people who are grateful for the services we provide them. I have one client who was so happy that he got a modification that he called to find out how much he owed. I have another client who brought me flowers on her first visit and tells me that the only two people she has in this world are â&#x20AC;&#x153;Jean Holbert and [her] cat.â&#x20AC;? I have never felt so connected to the community in which I live or so bonded with my clients as I have since I joined MALS.

SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED.

Start with Practical Law. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law™ offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, timelines, and more. And now that we’re part of Thomson Reuters, you have everything you need from one trusted advisor.

Begin your FREE TRIAL now at startwithpracticallaw.com

and also teaches legal writing and research at the University of Memphis Cecil C. Humphreys School of Law.

WILLIAM KING SELF, JR. has been elected by the Board of Regents as a Fellow of The American College of Trust and Estate Counsel. ACTEC bases its selection for membership upon attorneys' outstanding reputation, exceptional skill, and substantial contributions to the field by lecturing, writing, teaching and participating in bar activities. It is their aim to improve and reform probate, trust and tax laws, procedures, and professional responsibility. Self is a member of the Apperson Crump law firm and is recognized as a Certified Elder Law Attorney by the National Elder Law Foundation, the ABA-approved entity for certifying attorneys as specialists in Elder Law, and a member of the Special Needs Alliance, a leading national association of lawyers working with individuals with disabilities and their families. MELODY MCANALLY, a partner in the law firm Butler Snow LLP, has been selected as a Fellow of the American Bar Foundation. PHILIP OLIPHANT has been named Director of Advocacy for Memphis Area Legal Services. Oliphant will also serve as the Managing Attorney for MALS’ Memphis Fair Housing Center, which provides legal counsel in landlord-tenant, Fair Housing, and mortgage-related disputes. Oliphant had previously served nine years as Assistant City Attorney for the City of Memphis and was also Chief of Staff to Sixth Circuit Judge Bernice Donald in Judge Donald’s first two years on that court. He received his law degree from Vanderbilt University

George T. "Buck" Lewis

Judge Tim Dwyer

GEORGE T. "BUCK" LEWIS of the law firm Baker Donelson has received the William Reece Smith Jr. Special Services to Pro Bono Award from the National Association of Pro Bono Professionals. The Reece Smith Award is presented to an individual who has made outstanding commitments to and positive impacts on the institutions or systems of providing pro bono legal services. Lewis was recognized for his work chairing the American Bar Association Standing Committee on Pro Bono and Public Service project, "ABAFreeLegalAnswers.org," the country's first national online pro bono website. The site, which will launch in 40 states in August, is based on OnlineTNJustice. org, a statewide site launched in Tennessee in 2011. Since its launch, OnlineTNJustice.org has responded to more than 12,500 questions with the assistance of 500 lawyer volunteers. JUDGE TIM DWYER was awarded the 2016 University of Memphis Distinguished Alumni Award. TED CUMMINS has joined the law firm of Weiss Spicer Cash PLLC. Prior to joining the firm, he was an associate partner with Wilson & Associates, PLLC where he specialized in representing mortgage lenders and servicers in bankruptcy proceedings and other mortgage-related default matters. TREY BALL has joined Evans Petree PC as an associate focusing his practice primarily on business transactions, mergers & acquisitions, commercial lending and tax law. He previously worked as a certified public accountant for over 10 years. JOHN D. SMITH has opened his private practice at 54 S. Cooper, specializing in residential and commercial real estate closings, contracts and deeds. R. KENT FRANCIS has joined the Memphis office of Wiseman Ashworth Law Group as an associate. His practice

William King Self, Jr.

Melody McAnally

Philip Oliphant

If you are a MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Talks, speeches, CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices must be submitted in writing and limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to knewsom@memphisbar.org.

concentrates on defending hospitals and physicians as well as long-term care facilities in litigation. He also represents mental health facilities and commitment hearings. M. SHAWN CARDWELL has joined Leitner Williams Dooley & Napolitan PLLC as an associate. He began practicing law in 2006 following a 20-year career in the United States Marine Corps. He has represented individuals, businesses and large financial and banking institutions in matters of complex civil litigation and creditor rights, liability defense cases, landlord tenant disputes, real property disputes, workers’ compensation claims, and appellate work. CAMERON M. WATSON has joined Spicer Rudstrom’s Memphis office as an associate, where he practices law in automobile liability, business and corporate law, civil rights litigation, employment law, medical malpractice, products liability and intellectual property litigation. He is a graduate of the Cecil C. Humphreys School of Law where he was on the senior editorial board as Business Editor for the University of Memphis Law Review, a two-term parliamentarian for the Black Law Student Association, a member of the Phi Alpha Delta Law Fraternity, and a member of the Public Action Law Society.

Angeles, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Antonio, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C. HUSCH BLACKWELL, an industry-focused full-service law firm, and WHYTE HIRSCHBOECK DUDEK S.C., a leading Wisconsin business and litigation law firm, today announced they will combine effective July 1, 2016. The move strengthens both firms’ commitment to providing industry knowledge and experience to clients. The combined firm will retain the Husch Blackwell name and will continue to operate in all markets where both firms currently have offices. The combined firm will have offices in Milwaukee, Madison and Waukesha County, Wis.; Kansas City, St. Louis, Springfield and Jefferson City, Mo.; Austin, Dallas and Houston, Texas; Chattanooga and Memphis, Tenn.; Lincoln and Omaha, Neb.; Denver, Colo.; Phoenix, Ariz.; Chicago, Ill.; Washington, D.C.; and London.

SUBMIT YOUR NEWS AND UPDATES ONLINE AT:

FordHarrison LLP, one of the country’s largest managementside labor and employment law firms, is pleased to announce that J. GREGORY GRISHAM has joined the firm’s Nashville and Memphis offices as Partner. He has over 25 years of successful experience counseling and representing employers in all aspects of workplace law in Tennessee and across the United States. He represents employers before the NLRB, defends property owners and property management companies in federal and state housing discrimination charges, and advises Tennessee Public Charter Schools in education law and workplace compliance matters. In addition, CHARLES (BUD) V. HOLMES has joined the firm as Partner and Russell W. Jackson as Counsel. After serving as a Judicial Clerk to the Hon. Charles E. Nearn in the Tennessee Court of Appeals, Western Section, Bud served as a Senior Assistant City Attorney for the City of Memphis. After entering private practice in 1989, he has exclusively represented private and public sector management in a wide variety of employmentrelated matters.

WWW.MEMPHISBAR.ORG/BLOG/SUBMIT-CONTENT

The management-side labor and employment law firm Fisher & Phillips LLP has rebranded as “FISHER PHILLIPS.” Accompanying the new brand is a new logo, new tagline, new website and a new URL: www.fisherphillips.com. Gone is www.laborlawyers.com. Fisher Phillips has 350 attorneys in 32 offices located in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los

Senior Managing Director albert@wundernet.com wunderlichsecurities.com/settlementsolutions

FULLY INTEGRATED SETTLEMENT SOLUTIONS ▪

Special Needs Trusts

▪

Structured Settlements

▪

Structured Attorney Fees

▪

Court-Restricted Accounts

▪

Private Money Management

ALBERT M. ALEXANDER, JR., CSSC

Settlement Solutions 35

experience, Knowledge, integrityâ&#x20AC;Ś George Brown and James Lockard are highly effective mediators who have helped parties resolve hundreds of civil matters through the mediation process. Both employ a combination of facilitative and evaluative mediation styles. Each has completed state certified 40-hour mediation and advanced mediation training courses, and are approved Rule 31 mediators. Their background, experience and skill make them very successful mediators with a proven track record for resolving cases. Hon. George H. Brown, Jr. (ret)

James O. Lockard, Esq.

Resolute Systems, LLC Mediation, aRbitRation & adR ConSuLting

To schedule a case with Judge Brown or James Lockard, call Mike Weinzierl at 901-523-2930 (ext. 125) or email at mweinzierl@resolutesystems.com 1-901-523-2930 â&#x20AC;˘ Fax: 1-901-523-2931 707 adams avenue, Memphis, tn 38105 www. MemphisMediators.com

OUR COMMUNITY J U S T G OT S T R O N G E R . Because a professional advisor directed his clients to the Community Foundation. Savvy attorneys, CPAs, and financial planners know that a donor-advised fund is part of smart planning. Simplify charitable giving, maximize

Larry Bryan, Diversified Trust with Julie and Jim Raines, donors since 2014 Julie and J. N. Raines Family Fund

tax advantages, and help clients support the causes they value. Only through the Community Foundation.

The Possibilities of Philanthropy t (901) 728-4600

f (901) 722-0010

CFGM.org

TENNESSEE CHAPTER Memphis Area Members recognized for Excellence in the field of Mediation or Arbitration

Allen BLAIR (901) 581-4100

George BROWN (901) 523-2930

John CANNON (901) 328-8227

Michael CODY (901) 524-5124

Fred COLLINS (731) 686-8355

David COOK (901) 525-8776

Trey JORDAN (901) 526-0606

Hayden LAIT (901) 527-1301

Jim LOCKARD (901) 523-2930

Minton MAYER (901) 312-1640

Jerry POTTER (901) 525-8776

Jocelyn WURZBURG (901) 684-1332

Check preferred available dates or schedule appointments online directly with the stateâ&#x20AC;&#x2122;s top neutrals www.TennesseeMediators.org www.TennesseeMediators.org isis free, free, funded funded by by members members

CLASSIFIED adver tisements

JOB OPPORTUNITY SR. DIRECTOR OF BUSINESS AFFAIRS

Broadcast Music, Inc. (BMI) seeks a Sr. Director of Business Affairs in Nashville, TN to provide legal support for the general licensing division. This role will support licensing negotiations and prepare and review license agreements and amendments. This position requires a strong knowledge of copyright law, a J.D. and eight years of relevant experience. Interested candidates should apply via www.bmi.com/jobs for immediate consideration.

OFFICE SPACE Downtown Law Offices—Executive Office Center at Peabody Place. 119 S. Main Street, Suite

500, Memphis, TN 38103. Our lease terms are flexible allowing you to rent by the hour, day, month or year. All the services that you need are available including: administrative/secretarial service, T1 high-speed Internet access, notary, telephone service, furniture, information technology services/consulting and conference rooms. The executive suite concept allows you to do business in a cooperative environment without having fixed monthly overhead, by eliminating the distractions and time-consuming business decisions such as office administration and equipment leases. If you want to create a professional appearance for your business, but you are not ready to lease an office, take a look at our business identity packages. For as little as $150 per month you can have the appearance of a professional office. Contact Beverly Johnson, 901.312.5500, beverly@ executiveofficecenter.com.

Office Space. 2157 Madison Two-office suite available

in highly visible, conveniently located building adjacent to Overton Square. Other solo and small law firms in building. Plenty of parking, shared reception, conference room printer/copier/fax/internet, kitchen. www. memphisexecsuite.com Sharon Younger 901-276-9323 38

Law Office Space Available. 1850 Poplar Crest Cove

#200. 2-3 offices available with amenities: 24/7 access; (2) conference rooms; well-appointed lobby; kitchen/ break room; copy/fax machines; telephone; fax; Internet. Share space with 5 other independents as a small firm or solo practitioner. Monthly cost: $950/office. Tarry tarry@beasleylawfirm.org, Sandy sandy@beasleylawfirm. org or call 901.682.8000.

PROFESSIONAL SERVICES Attorney Sheree L. Hoffman, All Mediation Services— Tennessee Supreme Court Rule 31 Listed for Civil and Family Law Mediations. Will travel to Counties adjacent to Shelby County. www.memphisdivorcehelp. com. 901.754.9994.

Forensic

Psychological

Consultations.

Competency, criminal responsibility, personal injury, and child custody. Attorney consultations and expert witness services. F.A. Steinberg, Ph.D., FACFP, 532 Monteigne Blvd., Memphis, TN 38103. Board certified fellow in forensic psychology. 901.527.3737.

James E. Bingham, Mediation And Arbitration. 25 years’ litigation experience in business, domestic, and probate. Rule 31 listed. 901.525.8601.

Glenda Moore, Rn, Certified Legal Nurse Consultant. Over 30 years of nursing experience in

critical care and med-surgical nursing. The most costeffective Medical Expertise available on your side. Call for a FREE initial consultation. www.glendamooreclnc. com 901.626.9490.

ATTORNEYS/LAW CLERKS Looking attorney?

for a law clerk or an associate

The University of Memphis School of Law has great students and graduates, and we can help you with your employment career needs. Contact Career Services Office with your job listing or to schedule an on-campus interview. 901.678.3217. No charge for our services.

Let us tailor a specialized account to fit you and your law firm’s needs. IOLTA • GUARDIANSHIP • ESTATE • PERSONAL & BUSINESS CHECKING REMOTE CAPTURE • TREASURY MANAGEMENT

CONSUMER & COMMERCIAL LOANS • MORTGAGES

The Bank for the Legal Community PROUD PARTNER OF THE MEMPHIS BAR ASSOCIATION SINCE 2006

Megan Goodman teller Angelia Brown customer service Will Norris assistant branch manager Barbara Robbins sr. vp, branch manager

30 North Second at Court Square

901.316.2186

www.banktennessee.com

We also have offices in East Memphis, Germantown, Collierville, Munford & Ripley.

MEMBER FDIC

The Magazine of the Memphis Bar Association 145 Court Avenue #300 Memphis, TN 38103 www.memphisbar.org

The ONE source for your legal needs! We Bridge The State And Cover The Nation

Make ALPHA your The Courtroom Advantage FIRST choice!

Court Reporting • Realtime Reporting • Videography • Deposition Streaming • Video Conferencing Transcription Services • Trial Presentation and Consulting • Equipment Rental • Document Management

Nationwide Coverage 800-556-8974