Nashville Bar Journal | April 2013

Nashville Bar Journal

April 2013 - VOL 13, NO. 3

50 Years Later: The Legacy of

Gideon v Wainwright Dawn Deaner, Public Defender for Nashville and Davidson County by:

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Access to Justice Commission Creates Two New Services

Victoria Webb .................................................................................................................................

Collaborative Divorce: A Case Study

Marlene Eskind Moses and Irwin J. Kuhn .................................................................................................................................

Stonewall Bar Association Files Amicus Brief in the U.S. Supreme Court in Support of Marriage Equality

Sam Felker .................................................................................................................................

LAW DAY REGISTRATION FORM

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Articles 6 50TheYears Later: Legacy of Gideon v. Wainwright

Departments

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Dawn Deaner

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Access to Justice Commission Creates Two New Services Victoria Webb

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Collaborative Divorce: A Case Study

Marlene Eskind Moses and Irwin J. Kuhn

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Columns

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Law Day Registration Form

CONTINUING LEGAL EDUCATION

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Gadget of the Month

Communique • Law Day 2013 • Belmont Barrister's Ball • Lawyers for Littles Event • Legal Aid Society Campaign • Upcoming Events

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Nashville Chapter of the Stonewall Bar .......

Association Files Amicus Brief in the U.S. Supreme Court in Support of Marriage Equality

Sam Felker

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From the President

Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Golden Oldie

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

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Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

InProfile: Judge Phillip Smith

Bart Pickett

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NBA Calendar of Events April 8 - 12 PM ADR Committee Meeting April 9 - 11:30 AM L.A.W. Meeting April 9 - 11:30 AM Solo/Small Firm Committee Meeting April 16 - 12 PM Ethics Committee Meeting

April 18 - 11:30 AM Health & Wellness Committee Meeting

May 2 - 12 PM Minority Opportunities Committee Meeting

April 25 - 12 PM NBF Trustees Meeting

May 9 - 4:30 PM o NBA Happy Hour

April 26 - 12 PM L.A.W. Retreat

May 23 - 11 AM o NBA Memorial Service

May 1 o Law Day Luncheon @ Renaissance Hotel Speaker: Congressman Cooper Registration on page 20

June 27 o NBA YLD Sounds Game Night

Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org

A Monthly Publication of the Nashville Bar Association

Tom Sherrard, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor

From the President The Way We Were by:

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Tom Sherrard

eleanorwetzel@jis.nashville.org

Journal Staff:

Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

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Nashville Bar Journal - April 2013

Younger members of the Bar today may not appreciate how the practice of law was regulated 50 years ago. Richard Posner, a Judge on the 7th Circuit Court of Appeals and a highly respected legal scholar, has compared the legal profession in the early 1960s to a very effective cartel, much like the guilds of Medieval Europe, a highly regulated profession where lawyers were viewed as part of a “priesthood” with significant barriers to entry, and where practicing lawyers were also heavily regulated inside the profession itself.2 The regulatory elements that protected the legal cartel involved a complex pattern of laws and practice codes that regulated the activity of all lawyers. Those seeking entry must be licensed, requiring completion of three years of law school, passage of a rigorous bar examination, and proof of good moral character. Any person not achieving those requirements could not be called a “lawyer.”

State statutes forbade the unauthorized practice of law, assuring that even the simplest types of legal documents could only be provided to clients by licensed lawyers. Anyone seeking to engage in the interstate practice of law would need to be separately licensed in every state in which he or she chose to practice.

Within the profession, the conduct of lawyers was also heavily regulated. Advertising of any kind was forbidden. Local bar associations customarily produced minimum fee schedules for various kinds of legal documents and legal advice, including the Nashville Bar Association. Lawyers were prohibited from sharing legal fees with non-lawyers, nor could lawyers form partnerships or other entities with non‑lawyers if any of the activities involved the practice of law.

Beginning in the 1970s, however, certain of the regulatory elements that propped up the cartel were successfully challenged. In a 1975 decision, Goldfarb v. Virginia State Bar, 421 U.S. 733 (1975), the U.S. Supreme Court held that the creation of minimum fee schedules constituted a classic case of price fixing in violation of the Sherman Act. In the case of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the U.S. Supreme Court found that the local bar association’s restriction on advertising was in violation of free speech, though the Court still allowed bar associations to “regulate” advertising to assure that such advertising was not false or misleading.

In addition to the “bright line” decisions by the Supreme Court, over the past 50 years other forces have been in play that are pushing the profession to further deregulation.

Clients have become more insistent upon value, settling for a “good enough” result in lieu of spending thousands of dollars on legal fees. Clients shopping for legal services has become commonplace, something that rarely happened 50 years ago. Paralegals now perform many of the tasks previously handled exclusively by lawyers. Technology has offered opportunities to non‑lawyer owned technology companies to assist law firms in electronic document review for complex litigation and corporate due diligence. The foregoing, together with the increased pace of law practice, the enormous increase in the size of law firms, and the globalization of law practice, have caused many lawyers to think of themselves as being engaged in a business rather than a profession, and this, in turn, has weakened the remaining components of the cartel.

And as the notion of law practice as a business becomes more commonplace, ingenious entrepreneurs, mostly non‑lawyers, have been finding ways to get into the legal services “business.” Numerous on-line companies such as LegalZoom and RocketLawyer are pushing the boundaries as to how certain types of legal services should be delivered. These companies will certainly challenge the notion of what constitutes the unauthorized practice of law.

One can only conclude that the legal profession is currently an “industry” in transition.

In a book entitled First Thing We Do, Let’s Deregulate All the Lawyers,3 the authors argue that it is time for the legal profession to be completely deregulated in order to encourage innovation and create effective price competition for legal services. The authors contend that every other industry in the United States that has been deregulated has resulted in lower prices for consumers without sacrificing quality. The types of deregulation proposed by the authors are game changing. They include elimination of the requirement of three years of law school and even allowing lawyers to come into the profession by “reading” law as did Abraham Lincoln. They also argue that by eliminating or making significant excep-

tions to the unauthorized practice of law, legal services could be successfully provided by non-lawyer owned entities such as insurance agencies, accounting firms, financial planners and business consultants.

The recommendations of the authors certainly have succeeded in sensationalizing the issue of law practice deregulation. With the entry of companies such as LegalZoom into the marketplace, at least some of the barriers to the unauthorized practice of law may be breaking down. And perhaps the rule against splitting of legal fees with nonlawyers will also be subject to reconsideration and adjustment. I note that in 2012 the American Bar Association established a Task Force on the Future of Legal Education that is charged with evaluating the economics of legal education today and how that education should be delivered. We should expect this task force to recommend important changes in the educational requirements for lawyers.

All of that being said, I am convinced that a complete deregulation of law practice could certainly never be accomplished without sacrificing the quality of the legal work and advice provided. I believe that the term “lawyer” should always apply to a person with a high level of training and demonstrated knowledge, and that the client should always be entitled to accurate information about the training and experience of any person purporting to provide legal services. Most importantly, lawyers should continue to be governed under the Rules of Professional Conduct, for it is the lawyer’s willingness to be governed by those rules that allow all of us to call ourselves “professionals.” n

2013 NBA BOARD OF DIRECTORS

Thomas J. Sherrard, President Charles K. Grant, President-Elect Patricia Head Moskal, First Vice President John R. Tarpley, Second Vice President John D. Kitch, Immediate Past President Cornell Kennedy, Secretary Trace Blankenship, Treasurer Gareth Aden, General Counsel Robert E. Boston Dewey Branstetter Kay Caudle C. Dawn Deaner Michele M. Johnson Edward D. Lanquist, Jr. Hon. Randal S. Mashburn John C. McLemore Jeffrey Mobley Andrea P. Perry Matt Potempa Maria M. Salas Saul A. Solomon Jocelyn A. Stevenson Overton Thompson, III

Got an Idea for an NBJ Article?

(Endnotes) 1 Lyrics by Alan and Marilyn Bergman. Music by Marvin Hamlisch.

2 Richard A. Posner, The Material Basis of Jurisprudence, 69 Ind. L.J. 1 (1993).

3 Clifford Winston, Robert W. Crandall & Vikram Maheshri, First Thing We Do, Let’s Deregulate All the Lawyers (Brookings Press 2011).

We want to hear about the topics and issues readers think should be covered in the magazine.

Send it to nikki.gray@nashvillebar.org

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150 4th Avenue North, 10th Floor, Nashville, TN 37219 (615) 242-9272 Fax:(615) 255-3026 www.nashvillebar.org Nashville Bar Journal - April 2013

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Nashville Bar Association Law Day Luncheon Wednesday, May 1, 2013 at the Downtown Renaissance Hotel Registration: 11:30 a.m. - Lunch: 12 - 1 p.m.

Speaker: Congressman Jim Cooper

Join us on May 1, 2013 to celebrate Law Day. Congressman Jim Cooper will be speaking on the theme "Realizing the Dream: Equality for All" The promise of equality under the law is what has made America a beacon to other nations. It is a pledge clearly set forth in the Declaration of Independence and in the opening words of the Preamble of the Constitution, “We the People.” It is, in the words of Abraham Lincoln, the proposition to which our nation is dedicated.

The year 2013 marks the 150th anniversary of the issuance of the Emancipation Proclamation. In 1963, during the Proclamation’s centennial, Rev. Dr. Martin Luther King, Jr. stood in front of the Lincoln Memorial and called upon our nation to live up to the great promise, enshrined in its founding documents, of equality for all.

Five decades later, the inspirational words of Rev. Dr. King’s “I Have a Dream” speech continue to resonate and challenge us to live up to our national ideal of equality under the law. The legacy of the Civil Rights Movement can be seen in the strides that have been made

against discrimination based on race, gender, ethnicity, national origin, religion, age, disability, and sexual orientation.

Law Day, which will be celebrated on May 1, 2013, will provide an opportunity to explore the movement for civil and human rights in America and the impact it has had in promoting the ideal of equality under the law. It will provide a forum for reflecting on the work that remains to be done in rectifying injustice, eliminating all forms of discrimination, and putting an end to human trafficking and other violations of our basic human rights. As Rev. Dr. King pointed out in his Letter from a Birmingham Jail, “Injustice anywhere is a threat to justice everywhere.”

LAW DAY LUNCHEON REGISTRATION ON PAGE 20

Belmont Barrister's Ball Raises $5,000 for Both Hands Foundation Belmont University’s College of Law held its inaugural Barrister’s Ball this past March, turning the traditional law school event into a fundraiser for a local nonprofit voted on by the student body. Robert “Jaz” Boon (class of 2014), president of Belmont’s Student Bar Association, said, “Our hope for the Inaugural Barristers’ Ball is to establish a tradition at the College of Law of being heavily invested in the Nashville community. Barristers’ Balls are a staple event at law schools across the country, but our goal was to go beyond a social event and find a way to connect locally….[This year] the student body chose the Both Hands Foundation because they are a local organization that works with some of the most vulnerable people in our society—orphans and widows. As our law program grows, we hope that our ability to be an asset to Nashville and the State of Tennessee grows accordingly.” The College of Law students raised $5,000 for Both Hands and presented the organization a check on the night of the event.

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Senior Executive Board of the SBA presenting the check for $5,000 to the Founder and Executive Director of Both Hands Foundation JT Olson and his wife Sara Olson. (Pictured from left to right: Robert 'Jaz' Boon - SBA President, Benjamin Paul Glover - SBA Vice President, Anna Waller -SBA Secretary/Treasurer, Molly Shehan - Tennessee Bar Representative, Sara Olson, JT Olson).

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-Golden Oldies

Bowl a Strike for Big Brothers Big Sisters at “Lawyers for Littles” Event Big Brothers Big Sisters is hosting a bowling event for the legal profession, called "Lawyers for Littles," to raise money for the organization. The event will be May 9, 2013 at 5:30 p.m. at Nashville's Hillwood Strike and Spare, and will focus on attorneys, law firms, legal organizations, and legal vendors (but it is open to anyone). Five-person bowling teams will compete for the best bowling score, team name, costumes/bowling shirts, and, most importantly, to raise the most money for Big Brothers Big Sisters. It promises to be a fun event and provides a great opportunity to network (drink beer) with colleagues while serving a great cause.

Charles A. High correctly identified the individuals in the March 2013 Golden Oldies photo.

If you or your firm would be willing to form a team or to play on a team with other Bar members, please contact Tom Shumate at tom.shumate@kaygriffin.com or (615) 742-4800.

You can learn more about the event at www.tnbowling.org, and you can register your team at that link under the “Lawyers for Littles” group.

Pictured are: John Wilkes and Bob Thomas.

Legal Aid Society Launches 2013 Campaign for Equal Justice Sets fundraising goal of $760,000 The Legal Aid Society kicked off the 2013 Campaign for Equal Justice on March 5 at their annual luncheon. The campaign goal is $760,000.

“With a struggling economy, high unemployment and drastically reduced government funding, our services are needed now more than ever,” said Gary Housepian, executive director of the Legal Aid Society. “The money raised through this initiative will allow us to provide essential, high-quality, free civil legal representation to low income individuals and families in Middle Tennessee.”

Campaign Chair Thor Urness of Bradley Arant Boult Cummings LLP encouraged lawyers who were involved with the Legal Aid Society to continue giving their time and efforts, and entice others to help as well.“The need to battle prejudice and assist the economically unfortunate remains,” he said. “As lawyers, we are called to represent the indigent. Pro bono work provides us an opportunity to improve the quality and quantity of justice we provide to our neighbors in need.” Urness announced that more than half of the campaign’s goal, or $438,907, has already been pledged by 41 law firms and 86 individuals. He also noted that The Feinstein Foundation, a national nonprofit dedicated to relieving hunger, will partially match donations made between now and April 30.

Donations can be made by visiting www.las.org, by sending a check to their office at 300 Deaderick St, Nashville, TN 37201 or by contacting Cindy Durham, director of development, at (615) 780-7125 or cdurham@las.org.

Upcoming Events: Law Day Luncheon May 1, 2013 Downtown Renaissance Hotel Speaker: Congressman Jim Cooper Registration on page 20 or www.nashvillebar.org ..........................................................................

NBA Happy Hour May 9, 2013 NBA Office 4:30 - 6:00 PM

Sponsored by: Digital Business Machines

June 27 , 2013 The NBA YLD is headed to the Sounds game to enjoy food, drinks, and baseball on the Miller Lite Porch.

NBA Memorial Service May 23 - 11 AM Downtown Presbyterian Church

Reception immediately following the service in the church's Fellowship Hall

Nashville Bar Journal - April 2013

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Feature

50 Years Later: The Legacy of Gideon v. Wainwright by:

Dawn Deaner, Public Defender for Nashville and Davidson County

Last month you probably read at least one article about the 50th anniversary of the United States Supreme Court decision in Gideon v. Wainwright – the landmark case intended to secure equal justice under the law for criminal defendants who cannot afford to hire a lawyer. As Metro’s Public Defender, I read many to them, and was not surprised by the common refrain of how we (our nation, our government, our citizens, our lawyers, our communities) have fallen far short of meeting the Sixth Amendment’s guarantee “that in all criminal prosecutions, the accused shall enjoy the right . . . . to have the Assistance of Counsel for his defence.” Each article, regardless of the messenger, delivered the same message that our indigent criminal defense system is broken. Whether it is public defenders with excessive caseloads, court systems that encourage defendants to plead guilty without counsel, a lack of meaningful standards to insure adequate representation by court-appointed lawyers, or lessthan-overhead wages for those still willing to take criminal appointments (it’s $40/hour out of court, $50/hour in-court in Tennessee), the bottom line was always about our failure to deliver on Gideon’s promise of competent defense representation for those who cannot afford to pay for it.

Although I know it to be true, I am troubled by the singular focus on this aspect of Gideon’s legacy. As we reflect during this 50th anniversary of the right to counsel, we should celebrate our success in Nashville even as we acknowledge the work that still needs to be done. Justice is an important value to all of us, and we must come together as a community if we are to make this promise a reality.

Undoubtedly, our indigent defense system – even in Nashville – remains infected with daily injustices, inequities, and inadequacies.

For instance, you may have read last year’s NBJ article by Ryan Holt and Mark Donnell in which they described witnessing one of our

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Assistant Public Defenders represent 16 clients – all charged with felony offenses and scheduled for preliminary hearings – on a single docket in less than eight hours.1 While they were impressed with how well our attorney did under those circumstances, I saw that experience as a troubling example of how the system treats our client, and how we (our legal community) allow that to happen. Imagine yourself as one of those defendants – in jail, accused of committing a felony offense, and assigned a lawyer who has less than 30 minutes to spend on your case the day of your preliminary hearing.

Even the most trusting client would be skeptical about the quality of service being provided, and even the best lawyer cannot “do a client justice” under these circumstances.

Unfortunately, what Ryan and Mark saw was not an anomaly. In FY12, the 40 full-time lawyers at the Metropolitan Public Defender’s Office closed 26,703 cases – an average of 668 cases per lawyer. Twenty-one of those cases were first degree murder charges, and over 5,000 of them involved felony charges. On misdemeanor cases, our lawyers had less than an hour on average to represent each client. That includes meeting with the client, investigating the case, researching legal issues, negotiating with the prosecution, explaining to the client his/her rights and options, and handling all court appearances.

Despite their best efforts, our lawyers could not possibly have met the ethical obligations imposed by the Rules of Professional Responsibility to provide each of these 26,703 clients with competent and diligent representation – even though public defenders are bound by these same ethical obligations.2

As Martin Luther King, Jr. warned us, “An injustice anywhere is a threat to justice everywhere.” Under-resourcing and overburdening of public defenders are real and significant problems that produce injustice everywhere, including here in Nashville.

Despite its long and respected history, the Metropolitan Public Defender’s Office (which was created two years before Gideon) has always struggled to meet demand for its services. In recent years, however, stagnant State funding has exacerbated the problem, even while Metro has met and sometimes exceeded its public defense funding obligations. As we work now to fix our State funding disparity, its negative impact continues to affect most directly the lives of our indigent accused clients.

But they do not suffer alone, nor do they all suffer the same fate. It is that story I want to focus on for the rest of this article.

Today, thanks to Gideon, a lawyer stands next to every indigent accused who exercises the rights guaranteed by the Sixth Amendment. That is a success. In Nashville, if that lawyer is a public defender, that lawyer is not just any lawyer. He or she is a great lawyer. A lawyer who works hard; who is smart, committed, and driven to do the best work possible; who sees each client as a unique individual with his or her own life story; who respects each client and is proud to stand beside him or her; who is underpaid, overworked, rarely appreciated, and often maligned by nearly everyone involved in our criminal justice system – judges, prosecutors, victims, family members, witnesses, media, even clients sometimes. A lawyer who may be weary, this year, of hearing and reading about how ineffective he or she is in representing his or her clients.

Whatever systemic challenges these lawyers face (and they face many), they are my heroes, and their heroic stories need to be heard more in honor of Gideon’s legacy. These lawyers win jury trials. They

obtain acquittals for the innocent accused.

They defend the Fourth, Fifth, Sixth, and Eighth Amendment rights of their clients, and by doing so, protect those rights for all of us. They do not judge a person by the worst thing he or she ever did; instead, they show compassion, mercy, patience, and respect for those whom many in our community scorn. They understand that poverty, drug addiction, mental illness, and so many other problems that ail their clients are not a reflection of character, but most often of circumstances. They work on weekends, before hours, and after hours – not because they will be paid more (they won’t be), but because it is the right thing to do for their clients, and because they are committed to the cause. Although they cannot do the impossible things asked of them, they come closer than anyone I have ever met. And they do it day after day, week after week, year after year, despite all the injustices and heartache they witness and experience along the way. They are true believers in justice, and they are a success.

Of course, their success does not come without adversity. Burnout amongst public defenders is high. When clients suffer injustices, they feel it too, sometimes very deeply. When they cannot live up to the standard they know every client deserves, they doubt themselves. When everyone else is criticizing them, they wonder whether becoming a public defender was the right decision. Whether it is worth it.

So how do these public defenders persevere? How do they overcome their doubts and remain true believers in justice?

One way is by finding strength in community. Fortunately, finding that strength became a little easier for public defenders in Nashville five years ago, thanks to an organization called Gideon’s Promise.

Formerly known as the “The Southern Public Defender Training Center,” Gideon’s Promise today consists of over

200 public defenders working in 13 states.

Modeled on the civil rights movement of the 1960s, the organization seeks to drive indigent defense reform in the South by building a community of passionate public defenders who are committed to raising the standard of representation in their jurisdictions. The heart of Gideon’s Promise is its three-year Core program for new public defenders, but in recent years, they have introduced a leadership track (which I attend), as well as trainer development, law clerk, and Core “graduate” programs. While each program offers a different curriculum, the overall goals remain the same: fostering a community of committed public defenders; reinforcing the values of meaningful client-centered representation; and training lawyers in the skills and knowledge they need to raise the standard of representation in their communities.

Today, about half of our legal staff is part of the Gideon’s Promise community, and its impact on our Office has been invaluable. And we are not alone. Later this year, HBO will air a documentary called Gideon’s Army, which chronicles the struggles of three young public defenders in the South who are part of Gideon’s Promise.3 Although the film’s focus is on the tough challenges public defenders face today, particularly in the South, it also reveals Gideon’s Promise as a beacon of hope for a better future. It makes the point that indigent defense is this generation’s civil rights movement, and public defenders – supported by Gideon’s Promise – are on the front lines of that movement.4 It is a success story.

The continued viability of Gideon’s Promise, and its contributions to indigent defense reform in Nashville and across the South, will depend greatly upon the support it receives in the communities where Continued on Page 14 

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Feature

Access to Justice Commission Creates Two New Services by:

Victoria Webb The Tennessee Supreme Court’s Access to Justice Commission has been busy this past summer and fall creating and funding two new services to assist indigent and working-poor families and further fulfill its mission. The Court formed the Access to Justice Commission in 2009 as a response to the documented and growing legal needs gap in Tennessee. The 10-member Commission made up of lawyers is tasked with creating a strategic plan to help people with civil legal problems get help—especially in areas of the state where there is little organized effort.

The two new services are designed to help fill the gaps. A statewide Pro Bono initiative housed in the Administrative Office of the Courts and a toll-free telephone service called aLEGALz have hired two enthusiastic staff members to get the services going.

Out of the Commission’s efforts, the Administrative Office of the Courts received funding from the Commission on Continuing Legal Education and Specialization for a Pro Bono Coordinator position to work with the Access to Justice Commission. The new Pro Bono Coordinator, Palmer Williams, a 2012 graduate of Vanderbilt Law School, started working with Access to Justice Coordinator, AnneLouise Wirthlin, in November. One of her first projects is to work on developing and expanding the Commission’s faith-based initiative. This is one of the first programs of its kind in the country and was created to align needs seen at the local church level with legal resources that are nearby, perhaps even within the same congregation. The notion is to connect with people in need in a place they already go to seek help with a problem. That place is quite often their place of worship.

Williams is working closely with the Commission’s FaithBased Committee, which is chaired by Nashville attorney D. Billye Sanders. “We’re treading on new ground, but the church is a place where people turn in times of crisis.” said Williams. “It’s an exciting time to rally the troops to do pro bono.” The pilot project for the initiative kicked

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off in January 2013 with members of the Tennessee Conference of the United Methodist Church. Church leaders and volunteer attorneys gathered to learn more about the program, assign attorneys to congregations, and receive training.

Williams is also busy fostering development of pro bono legal advice clinics across the state and gathering information about ones that already exist. Her office is doing a county by county inventory of what services are available all across the state. In these efforts she works closely with the Commission’s Pro Bono Committee, chaired by another Nashville attorney, David Esquivel. All their efforts can be seen in the Tennessee Supreme Court’s well-developed “Justice for All” website at http://www.justiceforalltn.com/ Attorneys wanting to discuss launching legal clinics or getting involved in the faith-based initiative may contact Palmer Williams at palmer.williams@tncourts.gov.

The other new service, aLEGALz, launched in January 2013, is the result of a coalition of Tennessee legal groups which joined forces with the Access to Justice Commission to launch the toll-free phone line offering free legal information and referrals to low-income Tennesseans. The service will be housed and managed in the offices of the Tennessee Alliance for Legal Services (TALS). The new staff member, Timothy Hughes, is a graduate of the Humphreys School of Law at the University of Memphis who previously worked for three and a half years as a staff attorney at Memphis Area Legal Services (MALS).

Hughes brings experience in solo practice and with a law firm in addition to working in public interest law at MALS. The service is designed to assist Tennesseans in finding resources to deal with civil legal issues. Those who cannot afford a lawyer may call the line at 888-aLEGALz (1-888-253-4259) and leave a message at any time and the call will be returned

by Hughes.

Continued on Page 15 

APRIL SHOWERS don’t stand a chance.

THE REDESIGNED GS F-SPORT, NOW AT LEXUS OF NASHVILLE AND WWW.NASHVILLELEXUS.COM Nashville Bar Journal - April 2013

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Feature

Collaborative Divorce: A Case Study by:

Marlene Eskind Moses and Irwin J. Kuhn

The two of us wrote separate articles for the bar in 20101 and 2011,2 presenting overviews of collaborative family law. After a general review of the elements of the collaborative process, we share a more detailed view of how the process works in practice.

The situation we describe below is hypothetical but drawn from our experiences and those of our collaborative colleagues.

Although this hypothetical involves a divorce, the collaborative process is well suited to help fashion prenuptial agreements to resolve family law disputes arising after divorce, and to unwind relationships between unmarried couples.

Collaborative practices are also used to resolve non-family civil matters, but our focus here is collaborative family law.

REVIEW: WHAT IS COLLABORATIVE PRACTICE Collaborative practice is a voluntary process in which the parties and counsel contract to follow certain protocols when negotiating settlement of a dispute. At the heart of the process is the agreement that collaborative attorneys will be hired pursuant to a limited scope representation agreement. Attorneys will work with clients to help them reach settlement. If settlement cannot be reached, and the clients pursue more traditional litigation in court to resolve their differences, the collaborative attorneys will withdraw from representation.

In addition to putting a premium on settlement for clients, there is no financial incentive for attorneys to resort to litigation. For attorneys, success is achieved when clients reach a durable, winwin settlement agreement. Because of the withdrawal provision of the collaborative agreement and its confidentiality provisions, parties are free to have the type of candid discussions that would not take place when opposing counsel might later be crossexamining them in court.

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WHAT A COLLABORATIVE CASE LOOKS LIKE Pauline Tessler and Peggy Thompson write in their seminal book, Collaborative Divorce: One way to understand the sequence of events in a collaborative divorce is to compare it to building a house. There are all kinds of houses - big and small, simple and complex - but no matter what kind of house you require, the sequence you’ll need to take to get it built is the same, involving many choices at every juncture. Whatever kind of house you build, it starts with a foundation, moves through framing to roofing, and leaves the finish work to last.

If you do your research … and make good decisions relying on a well-chosen team of experienced building professionals, your new house can provide shelter and comfort for a lifetime. 3 THE ARCHITECTS: INITIAL CLIENT CONSULTATION Husband makes an appointment for an initial consultation about divorce. During the consultation, the attorney learns that Husband and Wife have been married for 15 years. They have two boys in a prestigious private middle school. Husband is a successful music producer. Wife is a pediatrician. Despite long periods of counseling, the parties have never been able to reconcile conflicts caused by his demanding travel schedule and her busy medical practice. Their marriage counselor referred husband.

Continued on Page 18 

Nashville Bar Journal - April 2013

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We love our music. We like to listen to it wherever we go. It is no surprise that we have fallen in love with our portable Bluetooth speakers. Now don’t get us wrong, we’re not saying that music on our Bluetooth speakers is auDiophile quality. There are better solutions for wirelessly streaming music, such as various Wi-Fi solutions including Apple’s Airplay solution. Wi-Fi streaming generally has a higher quality signal, because of the compression technology used for Bluetooth. We like Bluetooth anyway because (1) it is much more portable than any Wi-Fi solution; (2) you do not need to have a Wi-Fi in place to use a Bluetooth speaker; (3) it is a more common standard; and (4) it works with almost any device. It is also less expensive.

WE GOT “DEM BLUES” Our Favorite Portable Bluetooth Speakers

Jambox ($249.00). It looks like the original Jambox on steroids because it’s about three times its size. For portability, however, we stick with the small Jawbone Jambox.

2.

The Sound Matters FoxL ($159.00) (soundmatters.com) Our research tells us that the FoxL Bluetooth speaker was actually the first portable Bluetooth speaker manufactured. It was developed by Dr. Godehard Guenther, a former NASA engineer. It is manufactured by a company called Soundmatters. It is as loud or louder than the Jawbone Jambox, even though it is even smaller. It also has better bass response. The problem with the FoxL is that its power switch and volume buttons are in hard to reach places and it is a little bit more difficult to operate. Nevertheless, it is a formidable competitor to the Jawbone Jambox. It definitely sounds better, but the FoxL battery does not last as long as the Jambox battery and the Jambox has a slightly better range.

3.

The Philips Shoqbox (www.usa.philips.com) ($180.00) (online as low as $110.00) Phil’s first Bluetooth speaker was a Jawbone Jambox and Bill’s was the FoxL. But, both of them have forsaken their old loves for a new one – the Philips Shoqbox. This is really an incredible product. The Shoqbox SB 7200 is a brand new portable speaker from Philips that is a perfect travel companion whether you are hiking, swimming or standing in the shower. This speaker is splash and shock proof, and you can even change

As a result, go get your Bluetooth speaker, throw it in your travel bag or your briefcase, and carry it with you wherever you go. That way you will always have “jams” (or NPR if you’re a nerd – BBC for super nerds) whether it’s in your hotel room, by the pool, in your office, in your outdoor kitchen, or even in your outdoor shower. Here are our favorite Bluetooth speakers in no special order: 1.

Jawbone Jambox ($129.00) (jawbone.com) Most people are familiar with the Jawbone Jambox. It set the standard for portable Bluetooth speakers over two years ago. It is still one of the best sounding and smallest of these speakers. Its popularity owes in large part to its size and sound, and the huge advertising budget of the folks at Jawbone. Its top and bottom are made of rubber which prevents it from moving around on surfaces and from inducing unwanted distortion sounding vibrations.

(Yes, it is that loud.) It also had a lengthy rechargeable battery life (approximately 10 hours). Thus, you can party all night with the Jambox. It comes in a variety of colors and is clearly one of the best small Bluetooth speakers around. It also comes in a larger model, Big

Continued on Page 14 

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Nashville Bar Journal - April 2013

Nashville Chapter of the Stonewall Bar Association Files Amicus Brief in the U.S. Supreme Court in Support of Marriage Equality by:

Sam Felker

The United States Supreme Court heard two ground-breaking cases involving samesex marriage last month. The Stonewall Bar Association filed a "friend of court" brief in Hollingsworth v. Perry, the case challenging the constitutionality of California’s Proposition 8, a state-wide initiative which revoked same-sex couples’ freedom to marry in that state and substituted a domestic partnership law which purports to grant same-sex couples the same rights and benefits as traditional marriage.

“We urge the Supreme Court to strike down Prop 8 as a violation of the Equal Protection Clause of the U.S. Constitution,” said Stonewall Bar President Sam Felker. “Essentially we argue that a state cannot single out gay and lesbian citizens and deny them the rights and benefits of marriage that are offered to heterosexual couples.” Seven other states –Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—also offer similar all-but-marriage frameworks through either domestic partnerships or civil unions. “We argue that a separate but equal system is unconstitutional because there are rights and benefits inherent in traditional marriage that simply cannot be provided through a domestic partnership or civil union. We also point out the substantial economic and emotional harm caused to gay and lesbian couples and their children because of Prop 8’s prohibition on marriage,” said Felker. For example, the brief points out that some health insurance plans provide coverage only to married couples, and the state’s refusal to recognize same-sex marriage stigmatizes and demeans the parents and their children.

The brief also argues that laws such as Prop 8 that discriminate based on sexual orientation should be subjected to heightened scrutiny—a more rigorous standard of constitutional review applied for example in racial discrimination cases. Adopting the standard in this case would have far-reach-

ing effects in many other discrimination cases and make it easier to strike down all sorts of laws that discriminate based on sexual orientation. The brief argues that because Prop 8 had no purpose or effect other than to mark same-sex couples and their relationships as inferior, it violates federal equal protection under even rational basis review.

The Hollingsworth case was heard on March 26 and the next day the Court heard United States v. Windsor, addressing the constitutionality of the Defense of Marriage Act (DOMA), the 1996 federal law that defined

“marriage” as a legal union between a man and a woman and provides that same-sex marriages are not recognized for all federal purposes, including Social Security benefits, taxation, and immigration. Harriet Windsor successfully challenged the law under the Equal Protection Clause of the U.S. Constitution after being assessed a massive estate tax bill upon the death of her long-time spouse, to whom she was legally married under the laws of Canada.

If federal law afforded their marriage the same status as heterosexual couples recognized by their states, she would have owed no taxes.

“Legal scholars believe Windsor is a very strong case since there is no legitimate and rational basis for treating legally married same-sex couples differently under federal law,” said Felker. “A favorable ruling would be momentous. Gay and lesbian couples who are legally married in their states could receive federal benefits such as Social Security and be treated like other married couples under immigration and other federal laws.”

The Court is expected to announce its decisions in both cases in June. Most legal scholars agree that the cases are too close to call, although gay and lesbian legal advocates remain optimistic that the Supreme Court will advance the cause of

marriage equality. “It has only been 10 short years since the Supreme Court struck down sodomy laws in Lawrence v. Kansas,” said Felker. “We have come a long way in a very short time from a legal perspective and we definitely have the momentum from a public support standpoint.”

According to Felker, there are various scenarios and rulings that could impact the rights of gay and lesbian couples in different ways, depending on the state in which they reside and the recognition that state affords same–sex marriages. “Regardless of the rulings in these two cases, it will take a while to sort this out,” Felker acknowledged.

Meanwhile, politicians and celebrities are rushing to support the cause of marriage equality. The Obama administration filed amicus briefs supportive of marriage equality in both cases, as did 212 Democratic members of Congress. “This is an exciting time for the cause of marriage equality as we finally get our day in court,” said Felker. “Although Tennessee is far behind the national trend in this area, the Supreme Court rulings could go a long way toward providing rights to married gay and lesbian couples living here...[and] provide true marriage equality for everyone." n Sam Felker serves as the president of the Tennessee Stonewall Bar Association. He practices law at Bass Berry & Sims PLC, and can be reached at 615-742-6219.

Stonewall Bar is a not-for-profit organization founded in 2010 for the purpose of promoting and encouraging LGBT diversity and equality in the legal profession, providing pro bono assistance in legal disputes involving LGBT individuals and issues, and participating in public dialogue involving issues of importance to the LGBT community. The group’s members include LGBT lawyers, judges, and paralegals, as well as other members of the legal profession who support the group’s mission.

The group takes its name from the Stonewall Inn tavern in New York City's Greenwich Village, where demonstrations following a 1969 police raid marked what many see as the beginning of the modern gay civil rights movement. For additional information about the group, visit the Stonewall Bar website at www.tnstonewallbar.org.

Nashville Bar Journal - April 2013

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50 Years Later: The Legacy of Gideon v. Wainwright Continued from page 7

it has taken root. In this 50th Anniversary year for Gideon, I invite you to learn more about them, the important work they are doing, and how you can help the cause. On May 1, 2013 – Law Day – Gideon’s Promise will be in Nashville for an after-work reception at the law firm of Frost Brown Todd. There, you can meet the Founder and President of Gideon’s Promise, Jon Rapping, and see clips from Gideon’s Army. You can also talk with some of Nashville’s participants in the program, and hear directly from them how meaningful Gideon’s Promise is to them surviving and thriving as public defenders. Finally, and most importantly, you can join this community of true believers in justice, and find your own strength and renewal therein. And that, my friends, will be another Gideon success. n Dawn Deaner became the Public Defender for Nashville and Davidson County on September 16, 2008. As the Public Defender, Dawn currently serves on the Mayor’s Criminal Justice Steering Committee. She is an active member of the Tennessee Association of Criminal Defense Lawyers, and in 2002, she received the Robert W. Ritchie Award for Outstanding Service to that organization. Dawn is also a member of the Nashville Bar Association, and in 2006, she became a Nashville Bar Foundation Fellow.

(Endnotes) 1 Ryan Holt and Mark Donnell, Civil Lawyers in a Criminal World: Gideon v. Wainwright and Training with the Public Defender, Nash. B.J. page 6 (Sept. 2012), available at http://www.nashvillebar.org/Publications/ NBJ/archives.html See ABA Comm. On Prof’l Ethics and Prof’l Responsibility, Formal Op. 06-441 (addressing the ethical obligations of lawyers who represent indigent criminal defendants when excessive caseloads interfered with competent and diligent representation).

2

The film is currently being shown at film screenings and will air on HBO in spring 2013. For more about the film, see http://gideonsarmythefilm.com/.

3

To learn more about the movie and Gideon’s Promise, check out this recent Op Ed in the New York Times, which is accompanied by a 6 minute short from Gideon’s Army: Dawn Porter, True Believers in Justice, N.Y. Times (Jan. 23, 2013), available at http:// www.nytimes.com/2013/01/24/opinion/true-believers-in-justice.html?hp&_r=1&.

4

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Nashville Bar Journal - April 2013

WE GOT “DEM BLUES” - Our Favorite Portable Bluetooth Speakers Continued from page 12

tracks by waving your hand over a sensor on top of the speaker. You can pause play back with a gesture as well. The price is also nice. You can buy the Shoqbox for about $100 to $120. It is louder than the Jawbone Jambox and it has better bass response. It is a bit bigger than the FoxL, but it has as good as or better sound quality. The controls are very simple, but the single button control takes some getting used to.

All in all, this is our new favorite.

4.

Supertooth Disco (www.supertooth.net) ($150.00 online) This is a portable party machine totally. The speaker is a good bit bigger than the other three speakers we have reviewed, but it is much louder and the quality is a much better than that of the other three.

In fact, this speaker is so good that, even in fairly large courtrooms, it can be used as the speaker to use when playing back audio or video recordings for a jury. Bill has even used the Supertooth as the disco party machine for a wedding reception. If you are a party animal, the Supertooth Disco is for you.

Any of these speakers will work well for you as a portable speaker for you to listen to your jams anytime you wish. In addition, all four speakers will serve as a speaker phone if you need to take time out from your jamming and participate in a conference call (ugh!). There are several other Bluetooth speakers like these, and they probably are excellent as well. However, between us we own at least one, if not two, of each of these devices, and we can assure you they all work very well.

See you next month, —Bill & Phil

Access to Justice Commission Creates Two New Services Continued from page 8

Within the first 6 weeks of operation the service received over 550 calls from 61 different Tennessee counties according to Hughes. It is directed to low-income people, but the aLEGALz is not restricted by financial eligibility. “I do talk to folks who acknowledge they can hire an attorney,” says Hughes, “But many of those just didn’t know if they really needed an attorney or not.”

Hughes says many of their current callers are referred by court clerks and other personnel as there has been a good effort in informing the courts about the service.

Although he “tries to lead with referrals” to other legal services and attorneys, there are also calls with simple questions. They range from how to get a court date continuance to whether bringing a letter from a witness to court is adequate. “I do think [the service] fills a gap well for those who can’t get to a legal clinic or who simply want to know the process.” said Hughes.

All civil legal problems are discussed, but so far Hughes says the majority of callers have family law issues. The next most frequent callers have landlord-tenant problems and consumer fraud issues.

“This new service, along with the website, OnlineTNJustice.org, makes Tennessee a national leader in meeting the challenge of connecting all our citizens to the available resources,” said George T. “Buck” Lewis, chairman of the Access to Justice Commission. “I am thrilled that these groups have come together to launch this exciting initiative.”

In mentioning OnlineTNJustice.org, Lewis is referring to the existing web-based resource which was a joint project of TALS and the Tennessee Bar Association, which allows users to post legal questions and receive answers from volunteer attorneys through a secure online messaging service.

Since it launched in 2011, more than 1,800 Tennesseans have received free legal assistance through that service.

Both the web and phone programs are part of an effort to eliminate barriers such as geographic location, work schedule or family obligations that keep those in need from receiving free legal help. The services also expand access to free assistance for people in rural areas of the state, and provide an alternative source of assistance for those who are turned away from legal

aid offices because they do not qualify or because the local agency lacks the resources to handle the case.

“The Supreme Court considers access to justice for all citizens one of its highest priorities, and we are grateful to those that have made this new service possible,” said Supreme Court Justice Janice M. Holder, who serves as the court’s liaison to the commission.

Besides the Supreme Court’s Access to Justice Commission, which is facilitating the aLEGALz project, and TALS, where the phone line and staff is housed, the service is made possible through participation of the Tennessee Bar Association and funding from International Paper and the Tennessee Commission on Continuing Legal Education and Specialization. n Victoria Webb is an associate member of the NBA and serves on the Editorial Committee of the Nashville Bar Journal. From 1986 to 2012 she worked as a paralegal coordinator with the Nashville Pro Bono Program.

www.swordshield.com forensics@swordshield.com 865-244-3500

Computer Forensics Litigation Counseling eDiscovery Services Evidence Preservation Evidence Analysis Expert Reports Online Platform Review

A DIVISION OF

E N T E R P R I S E

S E C U R I T Y

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In Profile Judge Philip Smith presides over the Fourth Circuit Court of Davidson County. He was appointed to the bench in March of 2009. Prior to coming to the bench, Judge Smith had a law practice with Phillip Robinson and Teresa Oglesby.

Judge Phillip Smith, Fourth Circuit Court by:

Bart Pickett

Governor Bredesen appointed one of Davidson County’s newest circuit court judges, Judge Philip Smith on March 18, 2009. Since that time he has been elected to the seat by popular vote. Judge Smith replaced the retiring Muriel Robinson in the storied Fourth Circuit Court. Prior to the bench, Judge Smith enjoyed a lengthy and rewarding career as one of Nashville’s top family lawyers. His practice consisted primarily of family law matters, including divorce, child support matters, custody and visitation matters, antenuptial agreements, post-nuptial agreements, grandparent visitation cases, and domestic mediation. Judge Smith had the honor of being inducted as a “Fellow” in the American Academy of Matrimonial Layers as well as being listed in the “Best Lawyers in America” and “Mid-South Super Lawyers” in the family law category during his private practice.

Judge Smith graduated from the University of Tennessee College of Law in May 1988. Following law school he started his professional career at the District Attorney’s office in Nashville. “I’ll always be grateful to Torry Johnson for my first job,” Smith says. Judge Smith left the DA’s office after a couple of years to join the Norman Law Offices. The Norman Law Offices had also at one point employed Judge Smith’s current judicial colleagues Seth Norman, Randall Wyatt, Tom Brothers, Gale Robinson, and Phillip Robinson. Judge Smith maintained a general practice there that consisted mostly of domestic matters with some criminal and personal injury cases.

After 11 years of private practice, Judge Smith left the Norman

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Law Offices with Phillip Robinson and Teresa Oglesby to begin their own law practice. Judge Smith enjoyed the freedom that accompanied owning your own law practice. His practice consisted of 90% domestic matters and 10% upscale restaurant representation.

One problem Judge Smith sees in today’s legal environment is the lack of mentoring. He recommends that young attorneys either find a mentor or spend time in court observing senior members of the bar to see how they practice.

Judge Smith invites all new attorneys to Fourth Circuit Court to observe the motion dockets.

Fortunately for him, Judge Smith had the privilege of having two great mentors, Jack Norman, Jr. and Phillip Robinson. Judge Smith jokes that he is now mentoring Phillip Robinson who was recently elected to the Third Circuit. With Jack Norman, Jr. serving as the special master for the Fourth Circuit Court, Judge Smith is never far from his mentors.

Judge Smith realized that the transition from private practice attorney to judge would be journey. “It takes a while to change your mindset

from advocate to neutral,” he candidly admits. As a trial lawyer you have a lot of worries that constantly enter your head.

As a judge there is still stress but it is a different kind. According to Judge Smith, as a judge you often leave wondering if you made the right decision as opposed to being an advocate when you only cared about one side. He also thought he knew how a judge’s office worked until he actually started working in one. Encompassed in his judicial duties is signing an estimated 8,000-10,000 orders a year.

The presiding judge, Judge Binkley, called Judge Smith “one of the hardest working judges in the courthouse.”

With the judicial elections of 2014 quickly approaching, Judge Smith says he plans to run for re-election and seeks the continued support of the voters of the 20th judicial district. n Bart Pickett is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups throughout Middle Tennessee. Prior to practicing Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

One of his proudest accomplishments since taking the bench has been the drastic reduction of cases in the Fourth Circuit. When Judge Smith was appointed in March 2009 there were 5,676 active cases in the Fourth Circuit. At the end of 2012, there were 3,051 active cases.

During his tenure Judge Smith has placed a high priority on case management. He has found required judicial settlement conferences to be tremendously effective.

In addition to settlement conferences, Judge Smith wants to utilize scheduling orders from early on in a case. Judge Smith also believes that “working with the best Circuit Court Clerk in the state makes his job a lot easier.”

In what free-time Judge Smith has, he enjoys spending time with his friends and family. This year marks his 30th wedding anniversary with his wife, Pam. They have two daughters, Katelynn (25) and Kelsey (22), who Judge Smith is very proud of.

The Smith’s reside in the Madison area.

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Collaborative Divorce: A Case Study Continued from page 10

After a lengthy discussion about the background of the case, Husband is informed about various approaches to divorce, traditional litigation, mediation, and collaborative divorce.

They agree to recommend one of the several mental health professionals (MHP) from the MTCA who have been trained in collaborative practice. The clients accept their recommendation.

Husband has read much about the negative effect a contentious divorce can have on children.4 Because his biggest concern is the well-being of his sons during and after the divorce, he is inclined to try collaboration. He understands that, if it does not work, he and his wife will have to hire new lawyers to go to court for them.

But, he feels that she too wants to avoid a divorce process that creates unnecessary conflict. Still, they have never talked about collaborative divorce and he is not sure she even knows what it is.

THE BLUE PRINTS: THE FIRST COLLABORATIVE MEETING During the first collaborative meeting, the parties, the attorneys, and the MHP discuss the collaborative process, review the participation agreement, and determine if other neutral professionals will be called upon for assistance. Among the other professionals may be a financial neutral that assists in analyzing assets, liabilities and post-divorce financial planning. The financial neutral agrees that he or she will not work for either party after the divorce to avoid any question of neutrality. Some cases require a neutral business evaluator and others a child specialist or both.

Husband is encouraged to have Wife get more information about collaborative divorce from the websites of the International Academy of Collaborative Professionals (IACP), www.collaborative practice.com, and the Middle Tennessee Collaborative Alliance (MTCA), www.mtcollab.com, a local practice group of collaboratively trained professionals.

Wife is very interested in the collaborative process. From her pediatric practice, she also is aware of how divorce can get out of hand and badly impact children. She interviews and hires one of the local collaborative attorneys listed on the MTCA website.

The participation agreement is the contractual foundation of the collaborative case. MTCA has adopted a standard agreement, which can be tailored to individual cases.

All collaborative agreements must have the attorney limited engagement provision.

As well, all contain an agreement to fully disclose all relevant information. The rule of thumb is that if one party would want to know information if they were on the other side, they provide it. For comfort, parties may rely not only on good faith but also sworn statements.

Both sign their own retainer agreements with their collaborative attorneys. Both attorneys have provisions in their respective retainers that they have been retained for a limited purpose, which does not include litigation.

The participation agreement prevents parties from taking any action to disrupt the status quo that would be prohibited by statute5 if a case were filed, whether or not one has yet been.

The collaborative attorneys contact each other and discuss what they initially perceive to be the important issues. They also discuss what, if any, other professionals may be helpful members of this collaborative team. They agree that it will be important to have a neutral divorce coach assisting the team from the beginning.

The participation agreement also makes clear that all discussions in the collaborative process are confidential and will be treated in the same fashion as any settlement discussions. The parties waive the right to call the attorneys or any of the professionals engaged in the process to be witnesses in the event of litigation.

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After having the opportunity to ask questions about the agreement, the parties and attorneys sign counterparts in the presence of each other.

At the first meeting, the ground rules for the collaborative process are also reviewed.

These are rules established to allow people to have difficult conversations while avoiding destructive interactions. For example, parties are encouraged to look forward to solving problems rather than recreating history and attributing blame for the past.

Husband and Wife are asked to refer to the other by their name rather than “he” or “she.”

THE FOUNDATION: INFORMATION GATHERING Next, the parties spend time gathering and sharing information. The lawyers are experienced and have a good sense of what full disclosure requires. They do not exchange formal interrogatories, request for production of documents, or requests for admission. Nonetheless, the lawyers do ask both to sign sworn asset and liability statements, as well as income and expense statements. Here, Husband’s attorney wants more information about the details about Wife’s medical group’s pension plan.

Wife’s lawyer asks about Husband’s interest in intellectual property. It is provided.

In this case, the parties will engage a financial neutral to help them sort through their complex finances and to plan for the future.

FRAMING: GOAL SETTING In the next phase, Husband and Wife enter into the critically important phase of goal setting, or finding out what is most important to each going forward. Identifying what is most important to each is an essential part of finding lasting solutions.

Husband tells the group that his goal is for both parents to have a good relationship with the boys after the divorce. Wife says stability for the boys is most important for her. The coach asks them to be more specific without being tied down to a single solution.

Husband says that he wants to be with the boys as much as possible, if not 50% of the time.6 Wife says that stability means staying in the same schools, if possible staying in the same house, and most of all coming home to a parent.

Wife is concerned about the amount of time Husband spends on business travel.

Last year he was out of town over 100 nights. Husband acknowledges he travels a great deal but, at the same time, Wife frequently works late and the boys come home to caregivers.

Husband and Wife also discuss a number of different financial goals. It is clear though that the boys are the biggest concern, and challenge.

MORE FRAMING: OPTION GENERATING The next collaborative session is for option generating. Before that meeting, the professionals help frame the discussion for the meeting. They conclude parties must answer the question: How do we develop a parenting plan that allows for strong, active relationships with both parents while providing stability and minimizing the amount of time with caregivers other than parents?

The attorneys meet individually with their clients to help them generate ideas to present in a full team meeting and to suggest ways to present those ideas at the meeting.

At the collaborative session, the coach encourages brainstorming. The coach states that neither party is tied to an idea because she or he presents it. Proposing an option is not an offer. The coach also suggests that the parties not evaluate the options that day but wait until the next session. The parties agree. The lawyers, the financial professional, and the MHP may make suggestions, but the focus is on party generated options. A similar process takes place in respect to the financial goals and brainstorming opportunities.

PUTTING ON THE ROOF: EVALUATION OF OPTIONS At the next session, the team begins to evaluate the many options generated during brainstorming. The coach asks them to give each option an A, a B, or a C. If either party gives an option a C, it is out.7 One of the proposals is for the boys to be with Husband on the nights he is in town, up to 15 nights a month. Wife gives this idea a B. Husband thinks it is an A. The lawyers explain that this plan might be difficult to implement and hard to enforce.

The parties proceed to list the pros and cons of each remaining option.

Irwin J. Kuhn is a member of Dobbins Venick Kuhn & Byassee, PLLC. He is president of the Middle Tennessee Collaborative Alliance.

Marlene Eskind Moses is the principal and manager of MTR Family Law PLLC. She is chair of the Middle Tennessee Collaborative Alliance Protocols Committee and is currently serving as a vice president of the International Academy of Matrimonial Lawyers. She is former president of the American Academy of Matrimonial Lawyers.

(Endnotes) 1 Marlene Eskind Moses & Jessica J. Uitto, An Overview of Tennessee’s Burgeoning Alternative Dispute Resolution Process: Collaborative Law, 46 Tenn. B.J. (Sept. 2010).

Irwin J. Kuhn, Collaborative Family Law Comes to Nashville, 11 Nash. B.J. (Dec. 2011/Jan.2012).

2

Eventually the parties agree they will have legal responsibility for the boys on a weekto-week basis. If Husband would be out of town overnight, Wife would have the right to have the children with her. Likewise, if Wife knows she will work past 5 p.m. during her parenting time, Husband will pick the boys up from school and have them with him until Wife picks them up.

Both agree it is important for them to live close enough to each other to allow for the most flexibility with the least disruption for the children.

THE FINISH WORK: FORMALIZING THE AGREEMENT After Husband and Wife reach an agreement about the boys as well as financial issues, the lawyers draft a parenting plan and a martial dissolution agreement. The parties sign both documents and other formalities are addressed. Because the court may have some questions about the parenting plan, both go to court for a hearing on the final decree and are available to answer the judge’s questions. Satisfied that the agreement is in the best interest of the children and the property division is equitable, the court enters the final decree incorporating the parenting plan and the marital dissolution agreement and wishes the parties the best for the future. n

Pauline H. Tessler, M.A., J.D. & Peggy Thompson, Ph.D., Collaborative Divorce, The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, ch.2, ¶1 (Harper Collins e-books, EPub Ed.)(May 2006).

3

See e.g., Joseph Nowinski, The New Grief: Helping Children Survive Divorce: Three Critical Factors, Psych.

Today (Oct. 9, 2011), http://www.psychologytoday. com/blog/the-new-grief/201110/helping-childrensurvive-divorce-three-critical-factors.

4

5

Tenn. Code Ann. § 36-4-106(d).

The collaborative process does not presume that parenting time will be equal.

6

There are many different ways to evaluate options.

This one was recommended by Zena Zummeta, J.D. and Tom Denton, J.D. in a workshop, Negotiation Skills for Collaborative Professionals, held on October 27, 2011.

7

Continuing Legal Education ALERT! Join Us On May 8, 2013 To Hear Irwin Kuhn & Marlene Eskind Moses discuss: Collaborative Family Practice: The Alternative To Divorce Litigation 3.0 Cle Hours - Dual See CLE page 4 for details

Nashville Bar Journal - April 2013

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= Realizing EQUALITY

NASHVILLE BAR ASSOCIATION LAW DAY LUNCHEON Wednesday, May 1, 2013 Downtown Renaissance Hotel Registration: 11:30 a.m.

Lunch: 12 - 1 p.m.

Speaker: Congressman Jim Cooper

the Dream: for ALL

The promise of equality under the law is what has made America a beacon to other nations. It is a pledge clearly set forth in the Declaration of Independence and in the opening words of the Preamble of the Constitution, “We the People.” It is, in the words of Abraham Lincoln, the proposition to which our nation is dedicated.

The year 2013 marks the 150th anniversary of the issuance of the Emancipation Proclamation. In 1963, during the Proclamation’s centennial, Rev. Dr. Martin Luther King, Jr. stood in front of the Lincoln Memorial and called upon our nation to live up to the great promise, enshrined in its founding documents, of equality for all. Five decades later, the inspirational words of Rev. Dr. King’s “I Have a Dream” speech continue to resonate and challenge us to live up to our national ideal of equality under the law. The legacy of the Civil Rights Movement can be seen in the strides that have been made against discrimination based on race, gender, ethnicity, national origin, religion, age, disability, and sexual orientation.

Law Day, which will be celebrated on May 1, 2013, will provide an opportunity to explore the movement for civil and human rights in America and the impact it has had in promoting the ideal of equality under the law. It will provide a forum for reflecting on the work that remains to be done in rectifying injustice, eliminating all forms of discrimination, and putting an end to human trafficking and other violations of our basic human rights. As Rev. Dr. King pointed out in his Letter from a Birmingham Jail, “Injustice anywhere is a threat to justice everywhere.”

REGISTRATION - NBA LAW DAY LUNCHEON:

11:30 a.m. Check-in - Lunch at 12 - 1 p.m.

Charge by Fax (615.255.3026) or Phone (615.242.9272)

NAME:

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Signature: ___________________________________________ or

$________EARLY REGISTRATION Received on or before April 24 - $50 per person $________ REGULAR REGISTRATION Received after April 24 - $60 per person $_________ LAW DAY SPONSOR Includes 10 tickets and recognition in program $475 on or before April 24; $575 after April 24

Send Check to: Nashville Bar Association 150 4th Avenue, Suite 1050 Nashville, TN 37219 or

Register Online www.nashvillebar.org

Additional Attendees:_______________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ 20

Nashville Bar Journal - April 2013

I work to protect our clients’ interests.

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Private Wealth Management Legal Specialty Group. You’re always focused on what’s best for your clients. With SunTrust’s dedicated Legal Specialty Group, you’ll get that very same treatment. Our knowledgeable financial advisors provide firms like yours with valuable strategies on everything from cash flow to expense management to insurance. Simply put, your interests are our passion.

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Deposit products and services are offered through SunTrust Bank, Member FDIC. Investment and Insurance Products: Are not FDIC or any other Government Agency Insured • Are not Bank Guaranteed • May Lose Value SunTrust Private Wealth Management is a marketing name used by SunTrust Banks, Inc. and the following affiliates: Banking and trust products and services, including investment advisory products and services, are provided by SunTrust Bank. Securities, insurance (including annuities) and other investment products and services are offered by SunTrust Investment Services, Inc., an SEC registered broker-dealer and a member of the FINRA and SIPC, and a licensed insurance agency. Investment advisory products and services are offered by SunTrust Investment Services, Inc., RidgeWorth Capital Management, Inc., and GenSpring Family Offices, LLC, investment advisers registered with the SEC. © 2012 SunTrust Banks, Inc. SunTrust is a federally registered service mark of SunTrust Banks, Inc.

Nashville Bar Journal - April 2013

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Disclosure Joseph K. McKinney has been elected president of the NapierLooby Bar Foundation. The Napier-Looby Bar Foundation is a part of the Napier-Looby Bar Association and serves to raise funds for scholarships to deserving individuals and endeavors in the Middle Tennessee community.

One of the foundation’s most popular events is the Annual Barristers Banquet and Awards Program. McKinney is an associate with Dickinson Wright PLLC. He is a member of the Tennessee Bar Association, the Nashville Bar Association, and the Napier-Looby Bar Association.

McKinney received his B.A. from Rhodes College and his J.D. from the University of Memphis.

Teresa Bult, partner with Constangy, Brooks & Smith, LLP, was recently honored as one of the 2013 Women of Influence finalists for the Nashville Business Journal. Bult was selected in the Company Executive category for her business leadership as well as her efforts in helping colleagues achieve their business goals. She is a leader within Constangy, having served as chair of the firm’s national Women’s Business Circle, a yearly event that promotes networking opportunities for women both inside and outside the firm. Bult’s dedication to the program has helped it grow exponentially over the last seven years. She also serves as co-general counsel for Constangy nationwide.

Matt Scanlan has been elevated to member level in the firm Gullett Sanford Robinson & Martin PLLC. Scanlan’s practice is dedicated to protecting clients’ interests before Tennessee state and local governments.

He has extensive experience lobbying on behalf of a variety of clients before the Tennessee General Assembly.

He also assists clients with Alcoholic Beverage Regulations and assists clients with corporate transactions. He joined GSRM in 2009 after serving as deputy general counsel for the Tennessee Department of Health. Scanlan received his law degree from University of Dayton School of Law in 2003.

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Nashville Bar Journal - April 2013

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News McInteer & O’Rear PLC law firm has opened its offices in Nashville. The firm will focus on general business and civil litigation, including copyright, entertainment, real estate, and health care litigation. Seth McInteer, a Nashville native, graduated magna cum laude from the University of Tennessee College of Law and was inducted into the Order of the Coif honor society. McInteer earned his B.S. from Lipscomb University, graduating cum laude. He has represented clients in commercial contract litigation, real estate and construction financing disputes, parent company liability matters, noncompetition agreements and employment law matters, adversary proceedings in bankruptcy, business and corporate divorces, and a variety of other matters. ​Howell O’Rear, an Alabama native, earned his law degree from the University of Virginia School of Law in 2007, where he was an Editor of the Virginia Sports & Entertainment Law Journal and a member of the Editorial Board for the Journal of Law & Politics.

He also graduated from the University of Virginia with a B.A. degree in Media Studies in 2002. O’Rear’s practice has focused on litigating copyright, trademark, and music-industry matters, including issues specific to digital music rights and karaoke copyright infringement. He will continue to assist clients in developing enforcement procedures to protect their intellectual property rights.​

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

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Justin T. Campbell has joined Garfinkle, McLemore & Young, PLLC. While a University of Tennessee undergraduate, Campbell interned in the United States District Attorney’s office. He graduated from the University of Mississippi School of Law, where he was the founding editor-in-chief of the Mississippi Sports Law Review. He developed and organized the creation of the journal, and coordinated two oncampus symposia in the field of sports law. Campbell is licensed to practice in Tennessee state courts and federal court in the Middle District of Tennessee.

The Adams and Reese Nashville and Nashville Music Row offices recently held a DVD drive for its employees, collecting DVDs and then donating them to Vanderbilt Children’s Hospital. The firm collected a total of 165 DVDs and also donated two portable DVD players for the hospital’s resident children.

Pictured from left include Tim Wright, Regional President, AAA Tennessee; Brad Lampley, Adams and Reese Nashville office Partner in Charge; Emily Harrison, Adams and Reese employee; Don Lindsey, Director, Public Affairs, AAA Tennessee; Sally Ramsey, Adams and Reese Special Counsel; and Adams and Reese employees Leslie Norman, Mary Kerley (Nashville office manager), Jordan Yarborough, Betsy Barbour and Brooke Ponder.

Nick Whittenburg, a partner with Miller & Martin PLLC, has been elected by the MidSouth Commercial Law Institute to serve as Board Member. Whittenburg joined the firm as an associate in 1990. He became a partner with the firm in 1996. In 2001, he became Assistant General Counsel with AmSouth Bank (now Regions Bank) where he directed the defense of all commercial and consumer litigation against AmSouth.

Whittenburg rejoined Miller & Martin as a Member in 2004 and he is currently a member of the firm's Bankruptcy and Creditors' Rights Practice Group.

Heather Hubbard, a partner at Waller, has named to the 2013 Fellows Program by the Leadership Council on Legal Diversity (LCLD).

Hubbard will participate alongside the legal profession’s top general counsels and managing partners in a landmark program created by the LCLD to identify, train, and advance the next generation of leaders in the legal profession. At Waller, Hubbard’s practice focuses on intellectual property litigation, including patents, trademarks and copyrights, and e-discovery and data management. She represents a wide-range of clients across industries such as media, entertainment, manufacturing and information technology.

DeSalvo Law Firm PLLC has relocated its office from historic Germantown to West End Avenue at 18th Avenue near Music Row. The firm, specializing in entertainment, copyright, and trademark law, now can be found at 1720 West End Avenue, Suite 403, Nashville, TN 37203. Founding member and industry veteran, Ramona P. DeSalvo, says, “We are growing over the next few months, adding new attorneys, and offering a broader range of creative services.” Sharing the new space is entertainment attorney Christian Barker who holds a B.A. from the University of Tennessee, an MBA and J.D. from Stetson University in Florida, and a Master of Environmental Law and Policy from Vermont Law School.

2013 NBA Premier Members INCLUDE: Frank G. Abernathy Elizabeth A. Alexander Gail Vaughn Ashworth Kathryn E. Barnett Rachel L. Bell Barbara Bennett Michael Weimar Binkley Charles W. Bone Robert E. Boston Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Linda F. Burnsed Kenneth Sherman Byrd C. Mark Carver Kathryn Caudle Robert Garry Chaffin Mark P. Chalos William T. Cheek III John Ray Clemmons James Michael Clemons Dixie W. Cooper John A. Day Karl F. Dean David Clyde Downard John Franklin Floyd Samuel P. Funk Grant C. Glassford Charles K. Grant John J. Griffin Jr. William L. Harbison Trey Harwell G. Miller Hogan II Paul T. Housch Jennifer Hunter

Lynda F. Jones David Randall Kennedy John D. Kitch William C. Koch Jr. Thomas W. Lawless Richard Wesley Littlehale Randal S. Mashburn Rob McKinney John C. McLemore Robert J. Mendes Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Phillip L. North Stephen W. Pate Edgar M. Rothschild III Maria M. Salas Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse James Gerard Stranch IV Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Francis M. Wentworth Jr. Thomas V. White Larry R. Williams Thomas A. Wiseman III Heather D. Wood Amanda Haynes Young Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services.

Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

March Volunteers:

Christopher Boiano Stephanie Boiano Gina Crawley Tom Lawless Doug Pierce Joe Rusnak To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@ nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Welcome New NBA Members!

Jennifer A. Boruff Timothy P. Carter Durham and Dread, PLC Alison King Grippo Esq. Bass, Berry & Sims PLC Deana Carol Hood Law Office of Deana C. Hood Dustin S. Kovacic Angela Allen Lassiter Baker, Donelson, Bearman, Caldwell & Berkowitz, PC * * Belongs to a 100% Club firm Nashville Bar Journal - April 2013

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Classifieds

Office Space Brentwood Office share with two established attorneys Wireless, Fax, Phone, Copy, Cable, Storage, Free Parking, Space for your administrative assistant. Chapple Building 5115 Maryland Way - $ 1000 per month, plus incidentals and expenses negotiable. Fore more information contact: grant@gglassford.com or todd@roberttoddjacksonlaw.com.

DOWNTOWN Office space to share with three established attorneys - Scan, Fax, Phone, Copy. Parkway Towers. For more information please contact nlemaster@wdtlaw.net.

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.

DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suit which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244.

HILLSBORO VILLAGE Established Nashville law association with four experienced lawyers has shared office space available for the right attorney in a large private building (with front lawn and large porch) and plenty of on site parking (and free client parking.) Package includes receptionist services, cable & wireless Internet, telephones and fax, state of the art copier and postage machine, DISH TV, kitchen, all utilities, janitorial service, plus tastefully decorated reception area & conference room, on and off-premise storage, professional liability insurance, website advertising, and all office equipment (including personal computer and all private office furniture.) All inclusive. Added bonus...walk to banks and some of the city’s finest restaurants.

Contact adam@durhamanddread.com or call 615-252-9937.

Advertise your Office Space in the Nashville Bar Journal

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Nashville Bar Journal - April 2013

Large Conference Table & Chairs Moving must sell beautiful 14ft x 4ft conference table with 10 leather chairs. It is like new condition. Paid more than $6,000 for all. Will take $4,000 (price negotiable). Call 615-425-3476.

Advertising: Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org

www.nashvillebar.org

Private Investigators and Process Servers King & King investigators can perform: Asset Investigations Background Checks Cheating Spouse Child Support Criminal Defense Domestic investigations

Locate and interview witnesses Missing Persons Process Serving Surveillance Witness interviews Workers Compensation Fraud Surveillance

Certified, Licensed, and Insured Investigators www.kingandkingdetectiveagency.com Corey E. King, LPD | Mandy L. King, LPD 106 Columbia Ave Centerville, TN 37033 | 931-729-9709

Metrocenter Area Law Firm Established Nashville law firm has three office spaces immediately available. Includes receptionist servicces, cable internet, telephones and fax, conference room, kitchen, copiers, some LexisNexis subscription services, website advertising and more. Professional work environment. Free and conveninet parking.

Call (615) 252-8866 for details.

INGLEWOOD/NASHVILLE Office space available immediately on the second level of a converted historic house located approximately 10 minutes from the Courthouse. Approximately 200 square feet of carpeted space includes a window and all utilities, plus these shared amenities: receptionist, reception area, conference room(s), kitchen, bathrooms, ample accessible visitor parking, and telephone service. Internet, scanner, copiers, and fax are also available when needed. Lease this executive space for $750 per month at 4295 Gallatin Road (near the Briley Parkway exit) and practice law alongside three experienced attorneys in a warm and supportive environment. Call Carson W. “Bill” Beck, 615-226-9000.

for sale

Office Space

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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 Nashville Bar Association since 2006.

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Who will care for him when I’m no longer able to?

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