Nashville Bar Journal | April/May 2021 by Nashville Bar Association

APRIL/MAY2021 | VOLUME 21 | NO. 2

FEATURE

Kim Kardashian, Donald Trump, and the Rule of Law ALSO

A Defendant’s Right to Remain Silent Tall & Skinny Nashville Lessons from A Solo Practitioner

A Safer, Stronger Nashville A vibrant legal community strengthens the fabric of a city. That’s the work of the Nashville Bar Association and why we’re proud to invest in its community building mission. We’re also excited to support bar association members like you with business credit and cash management solutions that help you build the bottom line at your practice.

Herman Hicks Private Client Relationship Manager First Horizon Bank 511 Union St. • Nashville, TN 37219 (615) 734-6186 • hahicks@firsthorizon.com

Official Bank Partner of the Nashville Bar Association

FE ATU R E

Kim Kardashian, Donald Trump, and the Rule of Law

APRIL/MAY 2021 | VOLUME 21 | NO. 2

Interview with Hon. Kevin Sharp by Mike Abelow

DEPA R TM E N TS

From the President

Mike Abelow

Calendar of Events

Hear Ye, Hear Ye

Jack Norman, Sr. Award Liberty Bell Award Tennis Tournament Golf Tournament Family Zoo Day Spring Memorial Service

A Defendant’s Right to Remain Silent Cynthia Chappell & Joshua Brand

21 Tall & Skinny Nashville John Cobb Rochford

Lessons from A Solo Practitioner 23 Chancellors Claudia Bonnyman & Carol McCoy C O L UMNS

CLE Schedule

barBITES

Hearsay

100% Club

Background Check 11 Bart Pickett Gadget of the Month 13 Bill Ramsey & Phillip Hampton Capitol Notes 19 Peggy Sue, the Beagle Hound

APR/MAY 2021 | NASHVILLE BAR JOURNAL

FROM THE PRESIDENT

Outdoor Events Return | Mike Abelow MIKE ABELOW, Publisher WILLIAM T. RAMSEY, Editor-in-Chief CAROLINE SAPP, Managing Editor LAUREN POOLE, Managing Editor JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE RAMONA DESALVO TIM ISHII KELLY FREY SUMMER MELTON ROB MARTIN BART PICKETT KATLIN RYAN KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1350 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship. The NBA—with 2,700+ members—is the largest metropolitan bar association in Tennessee.

With President Biden’s recent announcement that the US will produce enough COVID vaccine for every adult by the end of May, the NBA is busy planning in-person events where our members can gather safely. I wanted to bring you up-to-date on those plans. We will continue to focus on outdoor events. So, for example, rather than just one golf tournament this year, we are putting on two. The first will take place on Thursday, May 13, at 1:00pm at Hermitage Golf Course. I participated last year, even though I am not a golfer, and had a great experience. You can sign up at NashvilleBar.org/Golf or via the NBA Weekly Update. Although I am not much of a golfer, I do play tennis regularly, and I am excited to announce that we are bringing tennis back to the NBA for the first time in 23 years. The “Grand Slam” Tennis Tournament will be held on Saturday, May 1, at Seven Hills Swim and Tennis Club in Forest Hills. It will be an informal, round-robin social event, and no high level of skill is required. Visit NashvilleBar.org/Tennis to learn more. Assuming that the tennis tournament is successful, we plan to continue bringing those with interests in the NBA and racket sports together by hosting a pickleball tournament. Pickleball does not require any experience with racket sports (or great athletic skill) to learn or play, and it is an absolute blast. Additionally, our Family Zoo Day is planned for Saturday, June 12. Beyond this series of outdoor events, we are also anticipating the return of in-person indoor gatherings in the fall and winter. We are moving our celebration of Law Day—which is officially held in April—to October 12, in hopes that we can have an in-person, indoor event at that time. While lawyers and the NBA have adapted to meeting by Zoom, there really is no substitute for in-person events if we are able to hold them safely. So, we have adjusted our calendar accordingly to give us the best chance for success. Practicing law is a tough job. One of the things that makes it easier is getting to know our fellow NBA members in more relaxed settings rather than the courtroom or the boardroom. When I came to Nashville to practice from Washington, DC, I was struck by how many members knew each other and genuinely liked each other. These types of events help us to “disagree without being disagreeable,” as I have heard many of our judges here say. It is perhaps sadly true that the days are long gone where cases would settle over lunch or a drink—or as I have also heard, some judges would ask before setting a case for trial if the lawyers had met for whiskey yet. We still have a good portion of that dynamic here as we practice law in middle Tennessee, and the Nashville Bar Association is critical to preserving that dynamic. So many great ideas come from our members. If you have ideas for creative and fun ways on how we can gather safely in person, please contact me or any other board member—we would love to hear from you. I look forward to seeing you, in real life, soon. n

NASHVILLE BAR JOURNAL | APR/MAY 2021

Calendar of Events | Full calendar online at NashvilleBar.org/ NashvilleBar.org. APRIL 2021 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

NOTE: Per CDC guidelines, all meetings will be held virtually until further notice. Please check NashvilleBar.org/ Calendar for the latest updates.

F R I D AY

Diversity Committee Mtg 12:00pm | via Zoom

GOOD FRIDAY Holiday | NBA Office Closed

NBA Board Mtg 4:00pm | via Zoom

CLE Committee Mtg 12:00pm | via Zoom YLD Happy Hour 5:30pm | TopGolf

6 NBF Trustees Mtg 12:00pm | via Zoom

7 Historical Committee Mtg 11:30am | via Zoom

NBJ Editorial Committee Mtg 12:00pm | via Zoom

YLD Board Mtg 12:00pm | via Zoom

Finance/Executive Committee Mtg 4:00/4:45pm | via Zoom

Memorial Service Committee Mtg 12:00pm | via Zoom

Ethics Committee Mtg 12:00pm

MAY 2021 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

Dial-A-Lawyer 6:00pm

F R I D AY

Diversity Committee Mtg 12:00pm | via Zoom

NBA Board Mtg 4:00pm | via Zoom

5 Historical Committee Mtg 11:30am | via Zoom

NBA + NBF Golf Tournament 1:00pm | Hermitage Golf Course

YLD Board Mtg 12:00pm | via Zoom

Ethics Committee Mtg 12:00pm

Memorial Service 11:00am | via Zoom

MEMORIAL DAY Holiday | NBA Office Closed

APR/MAY 2021 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

2021 NBA BOARD OF DIRECTORS MICHAEL ABELOW, President

MARTESHA JOHNSON, President-Elect LYNNE INGRAM, First Vice President

DANIEL BEREXA, Second Vice President JOSH BURGENER, Secretary JUSTIN CAMPBELL, Treasurer FLYNNE DOWDY, Assistant Treasurer LELA HOLLABAUGH, General Counsel JOSEPH HUBBARD, YLD President LAURA BAKER, Immediate Past President HON. MELISSA BLACKBURN, First Vice President-Elect LIZ SITGREAVES, Second Vice President-Elect BAHAR AZHDARI JAZ BOON BRIGID CARPENTER RAQUEL EVE OLUYEMO SAM FELKER LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES KIM LOONEY HON. ELLEN HOBBS LYLE MARLENE ESKIND MOSES JUNAID ODUBEKO

Hear Ye, Hear Ye |

Events of Interest

Jack Norman, Sr. Award Nominations Nominations are being sought for the Jack Norman, Sr. Award, which will be presented during the NBA Law Day Luncheon, tentatively scheduled for October 12. Nominations and supporting documentation should be emailed to the NBA Criminal Law & Criminal Justice Committee Co-Chair, Ben Raybin, at braybin@ nashvilletnlaw.com no later than Friday, April 30. Visit NashvilleBar.org/Awards to learn more. n

Liberty Bell Award Nominations

Nominations are now being sought for the Liberty Bell Award, which will be presented during the Law Day Luncheon, tentatively scheduled for October 12. This award is given to the person or group—not necessarily attorneys or law related groups—who has promoted a better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations should be submitted to the NBA Community Relations Committee via Traci. Hollandsworth@nashvillebar.org no later than Friday, April 30. n

KAYA GRACE PORTER TIM WARNOCK LUTHER WRIGHT, JR. HON. BILL YOUNG GULAM ZADE

NBA TEAM MONICA MACKIE, Executive Director CAMERON GEARLDS, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator

NBA “Grand Slam” Tennis Tournament

Join the NBA at Seven Hills Swim and Tennis Club on Saturday, May 1, from 10:00am to 3:00pm for a “Grand Slam” Tennis Tournament, sponsored by LOGICFORCE. We will be playing doubles in a Round Robin tournament—registrants will be paired up randomly. Entry fee is $30 per person and includes lunch, drinks, and a can of balls. First and second place prizes will be awarded. Register now at Nashville Bar.org/Tennis! n

JILL PRESLEY, Marketing & Communications Director SHIRLEY ROBERTS, Finance Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Jill.Presley@nashvillebar.org.

NASHVILLE BAR JOURNAL | APR/MAY 2021

NBA + NBF Spring Golf Tournament

“Putter around” with your friends and colleagues on Thursday, May 13, and spend a day in the sunshine together at our annual golf tournament. Presented by the NBA and NBF, this year’s tournament will be held at Hermitage Golf Course in Old Hickory. Range balls will be available beginning at 12:00pm with a shotgun start at 1:00pm. The entry fee is $160 for NBA members and $180 for non-members, and includes range balls, greens fee, cart, beverages, snacks, and dinner. All registrations must be submitted by Thursday, May 7. We will have dinner and prizes at the conclusion of play. There will be prizes for both team and individual contests, such as longest drive, longest putt, and closest to pin. To register your foursome, visit NashvilleBar.org/Golf. n

NBA Family Zoo Day

Gather with your lawyer friends and their families on Saturday, June 12, for our NBA Family Zoo Day at the Nashville Zoo! Upon arrival, stop by the NBA table between 10:00am and 12:00pm to pick up complimentary treats and tickets. Need tickets? Email Traci.Hollandsworth@nashvillebar. org, and let her know how many FREE tickets you need. Limit four tickets per NBA member. Already have tickets or passes? Come by the NBA table to say hello and pick up some treats on your way into the zoo. Visit NashvilleBar.org/Zoo for more information. This is a wonderful outing for the entire family! n

Office Space for Rent

Class A office space for rent in trendy residential area two blocks from courthouse. Three attorney offices. Traditional style with hardwood floors throughout, crown molding, exotic granite countertops, and elegant alabaster sconce lighting. Includes lobby, conference room, work room, two large secretarial stations, and kitchenette. Free parking; covered parking available. Photos of the space are available here. For more information, contact Cleve Weathers at 615-975-1075. n

Spring Memorial Service

Our Spring Memorial Service will be held virtually via Zoom on Thursday, May 27. The service begins at 11:00am. Memorial resolutions recounting the lives and legal careers are presented in honor of those in the Nashville legal community who have recently passed away. The memorial resolutions are prepared and read on the minutes of the Chancery Court at the service by friends and colleagues of the bench and bar and are added to the NBA’s collection of more than 100 years of resolutions. Family members and friends of the deceased are also invited to attend. Visit NashvilleBar.org/Memorial to view a list of those being honored and to save your spot today. n

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Feature Story | Mike Abelow

NASHVILLE BAR JOURNAL | APR/MAY 2021

Kim Kardashian, Donald Trump, and the Rule of Law: Interview with Hon. Kevin Sharp Law Day is always a highlight of our bar year. We gather in person to catch up with colleagues who we may not have had a case or a deal with during the prior year, and are reminded of some fundamental principles that may have led us to be attorneys in the first place as we rededicate ourselves to those principles. This year, Law Day is April 29. Because of the importance of Law Day and its in-person nature, the NBA has made the decision to move our in-person celebration of Law Day to October 12 at 11:30am. Please mark your calendars and watch your NBA Weekly Updates for details to come. The Law Day theme for 2021 is Advancing the Rule of Law Now. The “now” is significant: as the ABA explains, the “rule of law is the bedrock of American rights and liberties—in times of calm and unrest alike.” Thus, “we the people share the responsibility to promote the rule of law, defend liberty, and pursue justice.”1 I was asked to interview federal district court judge, Kevin H. Sharp, to discuss this year’s Law Day theme. In 2014, Judge Sharp was on the bench when Chris Young came before him for sentencing. Young has been convicted by a jury of conspiracy to distribute cocaine.2 He had been mid-level in the conspiracy, and if Judge Sharp had been able to choose the sentence, he would have given Young a substantial prison term. But Judge Sharp had no discretion: he was required to sentence Young to life without parole. Judge Sharp thought this was unjust, and the case stuck with him. Judge Sharp left the bench in 2017 to become a Managing Partner of Sanford Heisler Sharp, which represents plaintiffs in individual matters and class action cases nationwide. Upon

his resignation, he was interviewed by The Tennessean, and he spoke about Chris Young’s case as a factor in stepping down. Young read the article from his jail cell. Another reader of the article was Brittany K. Barnett, a former corporate lawyer who co-founded the Buried Alive Project, which focuses on challenging life without parole sentences under the drug laws. Barnett contacted Judge Sharp and asked him to assist her in representing Young. By this time, Young’s best hope was clemency or a pardon. Judge Sharp and Barnett connected with Kim Kardashian, who, through her connections to Ivanka Trump, had helped secured pardons in other cases from the Trump White House. (This is likely the first time that the star of Keeping Up with Kardashians has appeared in the esteemed pages of the Nashville Bar Journal, but the strangeness of this tale is not yet at an end). Kardashian took an interest in the case, and so it was that Judge Sharp, his co-counsel, CNN’s Star Van Jones, and other members of their team found themselves meeting with Jared Kushner, Ivanka Trump, and Donald Trump at the White House on September 6, 2018. When I asked Judge Sharp about Kim Kardashian, he responded that she is smarter than you think. When I asked Judge Sharp about Donald Trump, Judge Sharp responded that President Trump is not as orange as you think. (In Judge Sharp’s observation, the orange comes out later for the TV cameras). Judge Sharp had not been planning on a meeting in the Oval Office with the President, let alone a meeting of more than an hour. But they indeed met for more than an hour, and Pres(continued on page 8) (continued on page 00)

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Feature Story | ident Trump challenged Judge Sharp asking if he was “some kind of liberal” because of his interest in criminal justice reforms. Judge Sharp felt good about the meeting overall but did not know if it would bear fruit. Indeed, he was discouraged when, immediately after the meeting, President Trump appeared on the news with law enforcement and seemed to espouse a tough-on-crime message. Fast forward to 2021. With President Trump set to leave office, a flurry of activity occurred again to obtain pardons and commutations. The day before the last set of pardons and commutations, Judge Sharp got word that Young’s sentence would be commuted. Judge Sharp planned to meet him at the airport upon his return to Tennessee. Judge Sharp had sentenced Young to life in prison, and now through a combination of advocacy, celebrity, and luck, Young was a free man. Not every person serving a life sentence for a drug crime is lucky enough to have this team of a former federal Judge and a celebrity advocate. But Judge Sharp hopes that Young’s story will serve as an example and spur to systemic change—and there is already a model for this. The First Step Act, signed into law in 2018, passed in part because of individual prisoners’ stories. Judge Sharp hopes that Young’s story— and those of others like him—will lead to passage of the “Second Look Act,” which would permit federal judges to reevaluate and reduce sentences after a person has served 10 years. In Judge Sharp’s view, this potential leniency on the back end would be a huge step. But it is no substitute for trying to prevent the problem on the front end. Removing mandatory mini-

Kim Kardashian, Donald Trump... (continued from page 7)

mum sentences would let judges craft a sentence appropriate to the defendant. An appropriate sentence would consider the impact on the defendant’s family and community of a long prison sentence. As Judge Sharp puts it, a jail sentence is not just sentencing the defendant, but rather the defendant’s children and even grandchildren. Perhaps President Trump was right in calling Judge Sharp “some kind of liberal,” but Judge Sharp also recognizes that there are some defendants who must receive a long sentence for the protection of society. Judge Sharp just wants judges to be able to use their judgment. If systemic reform of the criminal justice system was not a big enough task, Judge Sharp has his sights set on even more fundamental issues. Criminal justice reform is necessary but not sufficient. By the time a criminal defendant arrives in the courtroom the system has likely already failed. Unequal schools, lack of jobs, and lack of transportation are among the factors that lead to many defendants getting caught up in the system and keeping them there even after they serve their sentences. He believes that the rule of law is not limited to the laws and rules of procedure; rather the rule of law depends on access to the basics: education, a job, a car, or public transport. Absent this, we are just treating the symptoms but not the disease. To illustrate the point, Judge Sharp looks to his decision in the Nashville education system case.3 In that case the parents of African American Metro Schools students alleged that the District’s rezoning plan led to resegregation of the school district. Judge Sharp found that, in fact, Metro Schools were being resegregated. But the reason was not that the School Board intended to

NASHVILLE BAR JOURNAL | APR/MAY 2021

resegregate the schools; rather the resegregation resulted where people of different races lived and a system of neighborhood schools. Where people lived, in turn, resulted from unequal economic opportunities. So, the rule of law said that Metro should win the case because the School Board did not intentionally discriminate. But the rule of law did not prevent segregated schools, in fact it permitted them. Judge Sharp urges lawyers of all kinds to get involved in these issues. There is a great need for assistance in the criminal justice system, and civil litigators (particularly young lawyers in need of trial experience) would be welcome. Although civil lawyers may not think they know enough about criminal law, the public defender’s offices and panel attorneys are overwhelmed and bringing civil litigators’ resources to bear would make a huge difference. Beyond that, Judge Sharp urges lawyers to help solve the problem at its root—to get involved in access to education, housing, jobs, and transportation. The rule of law, Judge Sharp says, depends on the consent of the people, and many people do not believe they have a fair shot. Lawyers can help change that, and not just on Law Day. n Endnotes 1

American Bar Association, Law Day 2021.

See United States v. Young, 847 F.3d 328 (6th Cir. 2017) (upholding mandatory life sentence of Chris Young against 8th Amendment cruel-and-unusual challenge).

Spurlock v. Fox, 716 F.3d 383 (6th Cir. 2013) (on appeal).

2021 NBA President.

MIKE ABELOW is a Member of Sherrard, Roe, Voigt & Harbison. His practice focuses on business litigation and business bankruptcies. He currently serves as the

Editorial |

Cynthia Chappell & Josh Brand

A Defendant’s Right to Remain Silent in Concurrent Criminal and Civil Proceedings One enduring pop culture lesson about the legal system is that a person charged with a crime has the “right to remain silent.” This classic Due Process catch phrase is not absolute if that person also has a pending civil case. Understanding how invoking the Fifth Amendment can impact a civil case is necessary to provide strategic and effective representation for your client. The Right to Remain Silent The right against self-incrimination, found in the Fifth Amendment to the US Constitution and Article I Section 9 of the Tennessee Constitution, directs that a defendant in a criminal case may never be required to “give evidence against himself.” A defendant cannot be made to give a deposition or sworn statement or to testify at trial, and that decision to remain silent cannot be used against him as evidence of guilt. This right is absolute in a criminal proceeding. Generally, the protections of the Fifth Amendment extend to civil proceedings, but only when the person invoking the privilege believes his disclosures could be used in a criminal prosecution or could lead to other evidence that could be used in that manner.1 Unlike a criminal proceeding, parties in a civil case are expected to proceed under a more equal division of power. Thus,

“one party’s assertion of his constitutional right should not obliterate another party’s right to a fair proceeding.”2 Discovery Dilemmas Discovery in a criminal case is governed by Rule 16 of the Tennessee Rules of Criminal Procedure and, except in limited circumstances, involves the production and disclosure of documents and other evidence for inspection and review. However, the criminal defendant does not possess the almost unfettered opportunity of a civil party to depose potential witnesses. The criminal defendant is generally entitled to all evidence the State intends to use at trial and all evidence that may be favorable to the defendant.3 Although criminal discovery is considered reciprocal, the defendant is not required to share with the State his or her theory of the case. Unless specifically ordered, and subject to Rule 26 of the Tennessee Rules of Civil Procedure, there is scant limitation on civil discovery. A criminal Defendant who is also a civil litigant can be served with written discovery, subpoenaed to give a deposition, or called to testify at a hearing or trial.4 Refusal to answer questions in pretrial discovery may limit a civil litigant’s ability to later testify (continued on page 12)

APR/MAY 2021 | NASHVILLE BAR JOURNAL

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

FEB/MAR GOLDEN OLDIES

Congratulations to Ralph DeMarco of Rutherford & DeMarco for correctly identifying the individuals in last issue’s photo! From left to right: Hamilton “Kip” Gayden and Maclin Davis.

NBA Outdoor Events Are Back!

April 8 | YLD Happy Hour @ TopGolf May 1 | Grand Slam Tennis Tournament @ Seven Hills Swim & Tennis Club May 13 | NBA + NBF Golf Tournament @ Hermitage Golf Course June 12 | Family Zoo Day @ Nashville Zoo at Grassmere 10

NASHVILLE BAR JOURNAL | APR/MAY 2021

BACKGROUND CHECK

Abby Rubenfeld | Bart Pickett

Born to progressive, Jewish parents in a small town in New York, Abby Rubenfeld moved with her family to Sarasota, Florida, at age seven. She remembers coming of age during the years of integration which had a lasting effect on her. Her parents instilled a sense of caring and equality in her at a young age. She grew up wanting to become a lawyer to help others and has been fortunate enough to achieve that goal. Following her high school graduation, Abby headed back north to attend Princeton University in New Jersey, where she was part of the third class that included women. She recalls multiple issues at a school that had not prepared for the entry of women including a lack of bathrooms and a plan for women’s sports. Luckily, while she was still attending, women’s sports began and they needed players. At 5-foot-tall, she still holds the record for the shortest lettered basketball player at Princeton. She laughingly remembers listing her height as 5’2” in the program. She also lettered in rowing and was elected the first woman class president. She graduated with a bachelor’s degree in 1976. Loving Princeton, she stayed in town an extra year

and worked for a professor before going to law school. Abby then moved to Boston where she attended Boston University Law School—she does not look fondly on her time there. The cold weather coupled with a law school with a corporate focus left her longing. It was, however, the time that she came out as a lesbian and she helped create the Boston University Gay and Lesbian Law Association. During law school, Abby spent time visiting friends in Nashville which led to her seeking an internship at what was then the Legal Services of Middle Tennessee. She fell in love with the city and decided to return after law school graduation. Once she arrived in Nashville, Abby was referred to Rose Palermo and Denty Cheatham for employment. She worked with them for three and a half years doing mostly domestic and employment discrimination work. During that time, she became acquainted with the Lambda Legal Defense and Education Fund. When an opening to be their legal director came up, she jumped at the opportunity and moved to New York City in 1983. She originally committed to two years but ultimately stayed five and a half. During that time, she kept her home in Nashville and kept her Tennessee law license active. When she returned to Nashville, Abby found herself once again working with Rose and Denty before starting her own practice. She has maintained Rubenfeld Law Office ever since, taking on many high-profile cases including being co-counsel for the Tennessee plaintiffs in the Supreme Court case that granted marriage

equality. Her practice consists mostly of domestic, civil rights, employment discrimination, and some minor criminal cases. She has been fortunate to receive lots of work from her contacts in Nashville’s gay community but has also found as time has passed that she gets clients from a wide spectrum. The self-proclaimed workaholic works out of her office in an old house in East Nashville near Five Points. During her time in Nashville, Abby has seen the city and its legal community truly grow to be more inclusive and diverse. She recalls times when, particularly in rural courts, she would be laughed at by the judge for some of her cases. She points to the diversity of the Davidson County Chancellors as a great sign of progress. Abby has no plans to retire and jokes that she might die at her desk or during a heated exchange in court. She and her wife, Helia Rethmann, live on 13 acres near Whites Creek with their 3 horses, 5 dogs, and 8 cats. Abby has two daughters (30 and 26) and a stepdaughter (25). She met her wife, a German citizen, back in 2004 through politics. While she admittedly does not have much free time, when she does, you can likely find her rooting for her beloved Titans from the stands. 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 in litigation 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.

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Editorial |

A Defendant’s Right to Remain Silent... (continued from page 9)

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on that issue in the civil trial. Moreover, a civil litigant may no longer invoke the Fifth Amendment upon conclusion of the criminal case. If the criminal case resulted in a felony conviction, that judgment is admissible in the civil proceeding to prove any fact essential to sustain the judgment.5 The scope of civil discovery may vary depending on the nature of the civil case, the underlying criminal charges, and the jurisdiction. One court may have an expansive interpretation of the protection afforded by the Fifth Amendment, creating practical limitations on discovery requests. Another court may narrowly construe the application of the Fifth Amendment and require a litigant to answer questions that do not fall squarely within the purview of the Fifth Amendment. A client may be forced to choose between the constitutional right to remain silent and the necessity to prove or defend a civil complaint. If a civil litigant chooses to invoke the Fifth Amendment privilege, the trier of fact may draw an adverse inference, that is, the judge or jury may assume the litigant’s response would be detrimental to the litigant’s case as to a specific issue. An important limitation is that the adverse inference may be drawn only when independent evidence exists of the fact(s) to which the party refuses to answer. Whether the inference attaches must be determined on a question-by-question basis.6 Thus, the litigant’s “choice” in how to respond to civil discovery may prove fatal to the civil case. One must also consider that statements made in the civil case could later be used as an admission in the criminal matter.7 However, there is some support for the argument that any portion of a criminal defendant’s civil deposition wherein the defendant invokes the Fifth Amendment would not be admissible in the criminal proceeding.8

NASHVILLE BAR JOURNAL | APR/MAY 2021

Proceed with Caution Constant evaluation of the impact of the concurrent proceedings on each other is essential. Deciding whether and how to answer civil discovery depends on many factors, including your client, the status of the civil case, the complexity of the civil case, the nature of the criminal case, the publicity surrounding the arrest, the likelihood of conviction, and possible types of punishment. This is a harsh predicament for a civil litigant, but often the dire potential consequences of a criminal conviction must supersede the importance of the outcome of the civil case. Good luck! n Endnotes 1

Doe v. Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000).

Brett Serafino v. Hasbro, Inc., 82 F3d 515, 518 (1st Cir. 1996).

See Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.

The Fifth Amendment privilege does not usually apply to the production of documents unless the existence or possession of the documents themselves may be incriminating.

Tenn. R. Evid. 803(22).

Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495 (Tenn. 2012).

See e.g., State v. March, 395 S.W.3d 738, 763 (Tenn. Crim. App. 2011).

State v. Eldridge, 951 S.W.2d 775 (Tenn. Crim. App. 1997).

CYNTHIA CHAPPELL regularly handles criminal charges, orders of protection hearings, contempt hearings, and matters that arise when a civil case involves the criminal justice system. She is a Fellow of the Tennessee and Nashville Bar Foundations and serves as chair of the NBA CLE Committee.. A two-time past recipient of the Best of the Bar in family law by the Nashville Business Journal 2017 and 2019, Cindy is also an Emeritus member of the Harry Phillips Inns of Court. JOSHUA BRAND’s practice frequently includes the intersection of criminal, family, and civil law. He was recently the chair of the NBA Criminal Law and Justice Committee and is a Fellow of the Nashville Bar Foundation. When he is not helping people, you can find him playing the banjo.

BILL & PHIL’S GADGET OF THE MONTH

Microsoft Office App for iPad | Bill Ramsey & Phillip Hampton

“Here we go again,” said Phil. “Bill wants us to write another iPad article.” “Haven’t we all had enough already?” Bill says, “No, this is a game changer.” As all of you must know by now, Bill keeps arguing that he can use his iPad Pro to handle all his work. Phil views the device with disdain and calls it a “toy.” But Bill may be on to something now, with Microsoft’s recent release of a single, unified Microsoft Office app. Previously, the best Office experience on an iPad was using the online versions of Word, Excel, and PowerPoint via a browser. Now, however, Microsoft has released a single, unified app, designed especially for the iPad. And, the single, unified app gives you access to full-blown versions of Outlook, OneDrive, Word, Excel, OneNote, PowerPoint, Teams, Visio, and more. Bill is excited, and is telling Phil, “I told you so.” The app is free to download, but to access all the features, you need to have an Office 365 license or get a subscription (starting at $6.99 per month). All the programs have been optimized for use on an iPad, especially those models that are compati-

ble with a mouse or trackpad. It also allows you to easily create PDFs from images or Office documents, sign documents or mark them up with your Apple Pencil, convert images to text, translate documents into another language, and collaborate by editing an Office document simultaneously with others. The “Home” page of the app features documents you have recently opened or edited in one tab and documents shared with you by others in another tab. On that same Home page, you can click on the “folder” icon and get access to all your OneDrive files, as well as the files on the iPad and the documents accessed via the iPad “Files” app. You can easily start a new document and choose to begin using several pre-existing templates or templates you have created. You can also access a complete list of all the Office apps you have installed on the Home page—“one stop shopping.” Other features that Bill really likes are the ability to dictate directly into Word, and integration with Box, Dropbox, Google Drive, and iCloud. Bill uses the Outline feature in Word a lot, and the unified app makes it easy to convert an outline into a PowerPoint presentation. Another useful feature added to the app is the “Actions’ screen. From that interface, you can transfer files between your phone and computer (if you have an iPhone), convert an image to text or to a table, sign a PDF, scan a picture to a PDF, convert a document to PDF, or convert a PDF to a Word document. All of these “actions” have been pre-programmed. You can also scan a QR Code, create forms

for several uses, and even rehearse a PowerPoint presentation with a “Presenter Coach.” All these additional features were made possible by the changes made in iOS 13.0 or later. Of course, iOS 13.0 was a “love thing” for Bill because it provided mouse support for the iPad. This further reinforced Bill’s claim that an iPad is good for work as well as play. “Business in front, Party in the back,” maybe? The unified app was only released in February, so Bill is still experimenting with all the features. He is determined to convince Phil that his iPad is truly a device for work (as well as play). Bill claims that Phil’s beloved Microsoft has acknowledged the usefulness of an iPad as a business work device and not just a way to play Solitaire without shuffling cards. Phil remains skeptical but intrigued. n See you next month, Bill & Phil

APR/MAY 2021 | NASHVILLE BAR JOURNAL

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ABOUT THE NASHVILLE BAR ASSOCIATION The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. The NBA—with over 2,500 members—is the largest metropolitan bar association in Tennessee.

150 4th Ave N, Ste 1350 • Nashville, TN 615-242-9272

LOG ON TODAY! N a shvill e Ba r.o rg /Ca re e r Cent e r

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. W E DNE S DAY, APRIL 5 | LIVE SEMI N A R

FR I D AY, A P R I L 23 | LI V E S E MIN A R

DAVIDSON CO. SHERIFF’S OFFICE TREATMENT PROGRAMS & THE DRUG COURT PROGRAM

LITIGATING TRUTH & LIES

OVERVIEW

Litigation is often described as a search for the truth. Therefore, it’s not surprising when lawsuits that set out to prove a statement is false, make for particularly complex litigation.

Presented by the Criminal Law & Criminal Justice Committee The Davidson County Sheriff’s Office houses all pretrial detainees, as well as those serving misdemeanor and felony sentences under six years. Learn about all program offerings for inmates including the new Behavioral Care Center. Also joining us is Program Manager Alarick Pruitt from the Davidson County Drug Court Program to discuss how to screen a client for Drug Court and all the program entails. PRESENTERS Dr. Xyzeidria Ensley Director of Behavioral Health Care Services Davidson County Sheriff’s Office Paul Mulloy Director of Programs, Davidson County Sheriff’s Office Alarick Pruitt Program Manager, Davidson County Drug Court D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General COST Attendance Only; No CLE. . . . . . . . . . . . . . . . . . . . . . . . FREE NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

OVERVIEW

This seminar will cover the perils, pitfalls, and practical aspects of litigating a case that stems from (what one side believes is) a lie. This will include the basics of defamation law, related causes of action, procedural obstacles and defenses such as the recently enacted Tennessee Public Participation Act, and collateral issues that affect clients outside the courtroom when they seek to litigate “truth” inside it. PRESENTERS Alex Little Burr & Forman, LLP D E TA I L S Seminar ��12:00 – 1:00pm Credit ��1.0 General COST NBA Members ��$45 Non-Members ��$89

APR/MAY 2021 | NASHVILLE BAR JOURNAL

MONDAY, MAY 3 | LIVE SEMINAR

FR I D AY, M AY 7 | LI V E S E M I N A R

RECOGNIZING THE SYMPTOMS OF ANXIETY & DEPRESSION & UNDERSTANDING MENTAL HEALTH TREATMENT

CONFRONTING & OVERCOMING IMPLICIT BIAS

OVERVIEW Tennessee Lawyers Assistance Program’s (TLAP) Executive Director, Buddy Stockwell, will introduce this program with an overview of TLAP’s program and the importance of mental health awareness in the legal profession. The TLAP Clinical Director, Holly Wade, LCSW, will offer information on the different symptoms of anxiety and depression. Participants will learn how to recognize symptoms in themselves and others for early intervention and best outcomes. Holly will also review the systems of care in mental health and offer an overview of how to access care, as well as the different ways TLAP supports lawyers in mental health wellness and crisis.

OVERVIEW This seminar will be an interactive discussion regarding confronting and overcoming implicit bias. It will focus on the legal and societal efforts of fostering an inclusive, productive legal environment where diversity is appreciated and embraced as a core principle, a sense of belonging is achieved, and leaders are held accountable for complying with diversity initiatives and strategies. The discussion will include: • • • • •

The business rationale for diversity Unconscious bias, including exercises Institutional racism definition and examples Techniques and strategies to overcome bias and racism Discussion of Anti-Racism and Allyship

Participants should be able to identify resources in the community and have an understanding of the different levels of mental healthcare, as well as obstacles to obtain quality mental healthcare, and how TLAP can help lawyers be successful in prevention and recovery. PRESENTERS Buddy Stockwell TLAP Executive Director Holly Wade TLAP Clinical Director D E TA I L S Seminar �� 12:00 – 1:00pm Credit ��1.0 General COST NBA Members �� $45 Non-Members �� $89

NASHVILLE BAR JOURNAL | APR/MAY 2021

PRESENTER Luther Wright Ogletree, Deakins, Nash, Smoak & Stewart D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

MONDAY, MAY 1 0 | LIVE SEMINA R

FR I D AY, M AY 14 | LI V E S E MIN A R

RESCUE ME

DEPARTMENT OF DEFENSE TITLING & INDEXING IN CRIMINAL INVESTIGATIONS

Debunking the Myths of Celebrity Conservatorships OVERVIEW Presented by the Estate Planning & Probate and Entertainment, Sports & Media Law Committees

OVERVIEW

Join us for a discussion that highlights reality versus misinformation in light of the negative media coverage, documentaries, and fictionalizations regarding conservatorships. PRESENTERS Amy Willoughby Bryant Office of Conservatorship Management Director Travenia Holden Holden Law Office Stacey Schlitz Schlitz Law Jennifer Sheppard Martin Heller Potempa & Sheppard Karl Warden Karl D. Warden, JD, LLM D E TA I L S Seminar �� 12:00 – 1:00pm Credit �� 1.0 General COST Attendance Only; No CLE ��FREE NBA Members �� $35 Non-Members �� $89

This seminar will outline the standards for titling under the Department of Defense, describe a typical Department of Defense Law Enforcement investigation, how the titling is obtained, and how titling is submitted for upload into National Crime Information Center database. It will also address how to correct errors in the titling process, how errors will often occur, and following requests for remedies if the titling change request is denied. PRESENTER Sean Flood The Law Office of Sean Flood D E TA I L S Seminar �� 12:00 – 1:00pm Credit ��1.0 General COST NBA Members �� $35 Non-Members �� $89

APR/MAY 2021 | NASHVILLE BAR JOURNAL

WE DNE S DAY, MAY 1 9 | LIVE SEMINAR

TH U R S D AY, M AY 20 | LI V E S E M I N A R

RECENT CHANGES & COMING ATTRACTIONS IN FEDERAL AND TN ENVIRONMENTAL LAW

IS YOUR FIRM FULLY REAPING THE BENEFITS OF CLOUD SOLUTIONS?

OVERVIEW

Presented by the Environmental Law Committee

When looking at the IT ecosystems of small to mid-size law firms today, the benefits of including cloud implementations is clear. Cloud-based solutions provide firms with increased flexibility and security, while allowing for a predictable IT spend and a simplified user experience. We’ll be discussing in some detail how cloud solutions make this possible and why it is proving to be the right choice for a number of firms, especially in the context of the recent pandemic.

Environmental law at both the federal and state levels is looking at yet another turn of direction with the Biden Administration “reregulating” and undoing rules and policies put in place by the Trump Administration, such as those under the Clean Water Act, NEPA, Clean Air Act, and Endangered Species Act. This seminar brings together three local experts to assess federal and state developments with coverage of NEPA, air regulations, and the state legislative session. PRESENTERS Bart Kempf Bradley Michael Stagg Waller Blair Beaty TDEC

PRESENTERS Bret Babcock LogicForce, COO & CFO Paul Telesco LogicForce, VIce President, Technical Services D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

D E TA I L S Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

COST Attendance Only; No CLE. . . . . . . . . . . . . . . . . . . . . . . . FREE NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 DISTANCE CREDITS WITH SEMINAR WEB

NASHVILLE BAR JOURNAL | APR/MAY 2021

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

You will be howling like a hound dog with a sore tail. —The Boss in All the Kings Men by Robert Penn Warren.

Tennessee Constitution, Article VI, Section 6 Section 8 Judges and Attorneys for the State may be removed from office by a concurrent vote of both Houses of the General Assembly, each House voting separately, but two-thirds of the members to which each House may be entitled must concur in such vote…. Howling Lawyers Our system of government based on a separation of powers among the three separate branches can be a yawner chapter in high school government classes. On February 24, 2021, State Representative Tim Rudd (R) of Murfreesboro filed House Resolution 23 (HR 23) to set in motion the process of removing Davidson County Chancellor Ellen Hobbs Lyle from office. Representative Rudd (age 50) is a two-term House member from Rutherford County who serves as Chair of the House Elections and Campaign Finance Subcommittee. As the pandemic ravaged summer of 2020, a state case was filed challenging state election officials’ po-

sitions on access to absentee ballots during Governor Bill Lee’s proclaimed state of emergency. Soon, Chancellor Lyle heard the case in a virtual setting. She ruled that the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an unreasonable burden on the fundamental right to vote. Legal skirmishing ensued, and an appeal was taken to the Tennessee Supreme Court. The Supreme Court vacated and remanded portions of the Chancellor’s order, but the absentee votes cast for the August election were permitted to be counted and the process was allowed in the November election. In the background, Representative Rudd was distressed that bills expanding access to absentee voting had failed in the General Assembly during the 2020 session. Every major association of lawyers in the state howled, rather than yawned, in their opposition to HR 23 as a breach of the concept of an independent and separate judicial branch. A special wag of the tail to the lawyers who took the time to appear on March 9, 2021, before the House Civil Justice Subcommittee and offer testimony on behalf of an independent judiciary and Chancellor Lyle. They are Celeste Herbert of Knoxville, Bob Boston of Nashville, and Joe Riley of Ridgely. The subcommittee heard the howls and defeated HR 23.

House have gone to floor sessions late on Monday afternoons and early on Thursday mornings. Soon, they will begin to wind down the session with floor sessions every day. Calendar Notes 1. Make an appointment for your Covid-19 vaccination. All good dogs get a rabies shot every year. Our humans need to do so for Covid-19. 2. May 1 is officially Law Day, and this year’s theme is Advancing the Rule of Law Now. Celebrate with us at our Law Day lunch, safely scheduled for Tuesday, October 12. 3. The State and the NBA will observe the Memorial Day holiday on Monday, May 31. 4. Looking ahead to 2022, judicial elections are Thursday, August 4, 2022, and for those counties holding primary elections, those are Tuesday, May 2, 2022. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

Schedule Notes The General Assembly has opened the throttle and is fully engaged with a regular schedule of thick calendars before subcommittees and committees. Both the Senate and the

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Thank You for Your Membership! The NBA Premier Membership recognizes those members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

PREMIER MEMBERS

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NASHVILLE BAR JOURNAL | APR/MAY 2021

Kimberly Silvus Martin Sir Liz Sitgreaves Ron Small Eric Smith Laura Smith Saul Solomon John Spragens Joycelyn Stevenson

Michael Wall Liz Washko Jim Weatherly Tom White Tom Wiseman Talley Wood Sheree Wright Ed Yarbrough Hon. Bill Young Stephen Young

Editorial |

John Cobb Rochford

Tall & Skinny: Tennessee Horizontal Property Regime and Its Use in Redeveloping Nashville Neighborhoods Nashville continues to enjoy its position as the “It City” with meteoric growth seen across the board. Businesses and people alike are clamoring to call Music City home. Nowhere is the city’s impressive development more evident than in its many residential neighborhoods. From 12 South to Germantown to East Nashville, urban areas across the city that were once undesirable are now highly appealing neighborhoods for millennials, families, and retirees alike. Changes in population density, socioeconomic status, and neighborhood dynamics have created a myriad of legal woes in the real estate arena. One such issue is the horizontal property regime (HPR). HPR is a creature better known to native Nashvillians as the “tall and skinny.” The Tennessee Horizontal Property Act was first enacted in 1963 and has been amended several times since then. The HPA is an incredibly complex, and in part, outdated legal document. Interpreting the law for HPR’s under Tennessee’s HPA correctly in 2021 requires an experienced legal hand to drive the process. A Phenomenon Driven by Zoning and Demand The tall and skinny is rampant in many of Nashville’s oldest

neighborhoods, previously known for modest (sometimes neglected) single family dwellings. Now, the landscape of these beloved neighborhoods is occupied by two separate, gleaming, and highly efficient homes looming large and literally casting shadows on the older homes. It is often the case that existing zoning permits allow for these two separate dwellings which in turn must be built tall and skinny to fit on the property. These zoning permitting and policies were put into place to allow for the construction of duplexes; however, in today’s Nashville, it’s far more common to see two distinct houses occupying a single lot. In order to further discuss these zoning policies, you have to look at what traditionally was considered in planned subdivisions in Nashville. In order to build a traditional subdivision, the recording of a “plat” is typically required for any parcel less than five acres. In the world of real estate development, plats are essentially maps of properties, usually drawn as construction-oriented blueprints. In order to record a plat, the local zoning authority must allow the land to be subdivided. Part of this process requires a public hearing—and this is where things can become a little complicated for real estate entrepreneurs. These public hearings allow the (continued on page 22)

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Editorial |

Tall & Skinny Nashville (continued from page 21)

property owner the opportunity to present a vision for the property and the benefits a plat will offer to the community and to the city. On the other hand, a public hearing also allows neighbors the opportunity to express apprehensions and voice suggestions. A property owner should prepare to address concerns about a subdivision blocking views, decreasing property values, and impacting quality of life for the existing residents. At this point, the process for building a subdivision can become time-consuming and cumbersome, which can be somewhat relieved by a horizontal property regime. A horizontal property regime is an effective legal way to bypass potentially problematic public hearings that subdividing some properties may require. In Nashville, where a property is zoned for two family, a horizontal property regime may allow a property owner to build two new houses on a parcel that previously was used for a single home. Establishing a HPR In order to establish a horizontal

property regime, the first step is draft a master deed. An attorney must attach a certification confirming that it adheres to the relevant Tennessee statute. In HPRs, homes in the project have a tax bill that is apportioned between them, so it is very important to establish clearly the boundaries between the yards of the structures. For that reason, the attorney will need to attach a diagram of the property that clearly outlines all of the following: • The parts of the property that are shared by the two proposed homes. This would normally include things like sidewalks. • The elements of the property that are “limited common,” such as yards. • The parts of the property that are private elements. An HOA for Two HPRs require some form of collective administration, including bylaws. For this reason, most HPRs include a homeowner’s association. Although an incorporated association may seem like a good idea for a subdivision containing dozens

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or hundreds of separate properties, many consider this requirement unusual for the purpose of administering a subdivision containing only two properties. The homeowner’s association should define the legal obligations and rights of each party. Additionally, it should give legal recourse to each respective party in the event that the other party fails to comply with the rules of the neighborhood. However, many of the bylaws for these associations fail to contemplate the common situation of a dispute between the two property owners, often culminating in deadlock. Troubleshooting Property owners and developers should meet with the local zoning authority prior to forming the HPR. Bring all relevant documentation, a copy of the layout of the lot, and the footprint of the structure(s) to be built. Meeting with a zoning official may prevent the possibility of the rejection of the issuance of a building permit. In some situations, two structures cannot be built because of setback, density, or other building code requirements. Knowing about possible pitfalls or limitations that cannot be overcome are key to being successful in navigating HPRs under the Tennessee HPA. n Endnotes 1

See Subdivision Regulations of the Metropolitan Government of Nashville

and Davidson County, Chapter 2, part 3a. 2

See Tennessee Code Annotation § 66-27-103.

See Tennessee Code Annotation § 66-27-112.

20 C.F.R. § 655.735.

JOHN COBB ROCHFORD, a graduate of Vanderbilt Law School, operates Rochford Law & Real Estate Title in Nashville. John has been practicing law in Nashville for 23 years.

Editorial |

Chancellors Claudia Bonnyman & Carol McCoy

David Young Parker 1941 – 2021

Lessons from A Solo Practitioner: A Tribute to David Young Parker In the summer of 1965, David Young Parker, a second year Vanderbilt University Law School (VUL) student, held a clerkship with Chattanooga lawyer, Leonard Tanner. Early one morning, David arrived at the law office and set out to sharpen all the pencils needed for the day. When Tanner came in, he took one look at what David was doing and asked, “Son, do you know what it cost me to support my family?” David thought he was going to be a tax lawyer and had worked on Tanner’s tax estimates, so he answered “Yes, sir.” Tanner said, “I have a rule that until I make my first $100 each day, I don’t do anything like what you are doing.” Lesson learned: Focus on what is important, not what you think looks good. David learned many lessons during his clerkship with Tanner, a tough disciplinarian. Early one morning, David was writing a brief while sitting at Tanner’s desk. When Tanner came in and saw David behind his desk, he asked “What are you doing behind my desk?” David responded, “Taking care of you, like I’m supposed to do.” Tanner replied, “And what do you think a client would think if they saw you sitting at my desk?” Though David did not think a client would think anything about it, he was to learn otherwise—that is, how you present yourself to your

clients makes a big difference. Lesson learned: Do not give up when at first you do not succeed, whether it is school, tests, or litigation. Each spring in the 1960’s, the VUL Dean, John Wade, prepared a booklet with a photo of every law school graduate with a small bio for each student. Dean Wade circulated the booklet to all the law firms in Tennessee, asserting that every VUL graduate was highly qualified. As a result, Hall, Haynes, Lusk, and Foster in Chattanooga invited David for an interview and hired him as an associate on August 1, 1966. One partner of the firm represented the Jim Walters Corporation. He handled all the client’s title searches for $25 per search and assigned David to run from county to county each day to do the title searches—a tedious, lengthy process involving large, heavy warranty deed, trust deed, tax, and lien books. Regardless of the time involved, sometimes driving into northern Georgia or Alabama, David had to perform the searches even though the clerks would tell him that the titles were good (and they were). He paid his own travel expenses while the searches consumed his time for little financial return. At that (continued on page 24)

APR/MAY 2021 | NASHVILLE BAR JOURNAL

Editorial |

Lessons from A Solo Practitioner (continued from page 23)

time, Chattanooga had no public defenders and judges frequently appointed new lawyers to represent criminal defendants for little or no remuneration. As a court-appointed defense lawyer, David aggressively represented his criminal clients and earned a good reputation in the trial courts, but little else. Within a few months at the law firm, he sensed something was amiss. On February 12, 1967, his first child was born. About two weeks later, the partners called David into the conference room and told him that the firm was terminating their relationship with him. He was scared to death. He had been hired on August 1, 1966 and fired in February 1967. David considered getting fired a mark of shame, “you just didn’t get fired.” He asked if he could have another chance and was given a resounding NO. One partner, Mr. Lusk, a Virginia Law School graduate, asked, “Didn’t they teach you at Vanderbilt what you are good at? You’re a good criminal lawyer, but you will never be a partner in this law firm.” Lesson learned: Even when you are working hard and getting good results, you may not please an employer focused on other outcomes. Desperate to support his family, David managed to find a job at Provident Life & Accident Insurance Company, one of the three major insurance companies in Chattanooga. Although he learned how to handle large sums of money, he thought he was wasting his time, as he did not realize how important that was and did not see himself as a real lawyer. He reached out to the Vanderbilt placement office and learned of an opening for a lawyer in the state welfare department, now the Tennessee Department of Human Services. A former classmate and the de24

partment’s general counsel, Aubrey Blankenship, interviewed and hired David. He became one of only three staff lawyers who covered all 95 counties, representing the state in all its neglect/ dependent cases, child abuse cases, welfare fraud, and paternity lawsuits, many in county Juvenile Courts. David stated that many people thought Juvenile Court involved lawyers sitting around, holding hands, coming up with ideas and discussing what to do. He found it to be a very dangerous job, especially in the rural counties where people felt threatened by the department—and they let the lawyers know that. David and the other two lawyers received threats that they would be killed if they came to certain parts of the state. He did not worry too much about those threats, but was more worried about “the nuts and crazy people.” David took the hardest cases because he had been fired and thought he had to do so to keep his job. In 1969, David ran up against the Grand Dragoness of the Klan in Sevier County in a neglect case. He felt he might be killed during that case. Upon leaving the courthouse, he frequently counted to three before he turned on his ignition as he thought his

NASHVILLE BAR JOURNAL | APR/MAY 2021

car would blow up. He had little confidence in the Sheriff who supposedly was involved in hauling liquor. When the trial commenced on an exceptionally hot day, opposing counsel, T.M. Wynn, came into the court wearing a Panama hat, a striped suit, and white shoes. As Wynn and David waited for the Grand Dragoness to appear, Wynn said “Tilde thinks she is pregnant.” David knew Tilde, the Grand Dragoness, was close to 55, an ancient person, and did not believe she was pregnant. She did not come in, but the department still needed to get the children. The Deputy Sheriff, Lydia Boor—a short little lady who had a pistol on her hip who also worked for the department—jumped in her car, went out to the Grand Dragoness’ home and picked up the minor children. David spent three years with the department and learned “You come back here carrying your shield or your shield will come back on top of you. You better not run.” Lesson learned: An honest, truthful, scholar and upright good man provided us all with a blueprint for a life well lived as a solo practitioner. David Young Parker died January 23, 2021, due to complications from COVID-19. All quotations are from the official oral history of David Young Parker. Visit NashvilleBar.org/OralHistories to view David’s oral history and to read this article in its entirety. n HONORABLE BONNYMAN is Chancellor for County and a farmer.

CLAUDIA a retired Davidson weekend

HONORABLE CAROL MCCOY is a retired Davidson County Chancellor and aspiring mediator.

barBITES |

Lauren Poole, Taylor, Pigue, Marchetti & Blair

LP’S REVERSE SEAR RIBEYE Kitchen Notes There is nothing better than a steak cooked to perfection. My preferred method to achieve a perfect steak is the reverse sear. Warmed slowly in the oven first and then scorched with a short blast of heat to crust. I’ve been honing my skills for several years now and I am happy to share my secrets with you. Fair warning, it takes a bit of a magic touch to get it right (medium rare)—but it is worth the effort. Little more than a good meat thermometer, seasoning, and a glass of a heavy red wine is all that is needed to be reverse sear ready.

Ingredients • 14 oz – Boneless Ribeye Steak (preferably at least an inch thick, with a large rib cap, room temperature) • Steak seasoning (my proprietary blend includes coarse salt, black and red pepper, garlic powder, onion powder, and a little paprika) • 2 Tbsps – Worcestershire sauce • 1–2 Tbsps – butter • Cast iron skillet

Directions 1. Season steak by dousing with Worcestershire sauce and applying dry rub of steak seasoning liberally on all sides. Bring to room temperature. 2. Preheat oven to 250°F, place cast iron skillet in oven to preheat. 3. Cook steak until internal temperature is 15° or so below your desired internal temperature (medium rare is between 130°-135°F). NOTE: the thinner the steak, the quicker it will cook so you may need to pull at a lower temperature for sear. 4. Once desired internal temperature is reached, pull out of the oven and place skillet on stove burner on high. Throw butter in pan under steak. Sear for about two minutes per side, flipping as necessary until outside of steak is a deep brown, crust. Add more butter if necessary while preparing. 5. Allow steak to rest on cutting board before enjoying. This seals in the juices. 6. Serve with red wine, Cabernet Sauvignon preferred. Pair with a potato and choice of vegetable.

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Thank you to our March volunteers! GINA CRAWLEY CHRIS HUGAN TOM LAWLESS JOE RUSNAK

ALPS RISK MANAGEMENT

Never Try to Shoot for the Hip | Mark Bassingthwaighte

As a kid, I always thought any Hollywood cowboy who could shoot from the hip and kill the villain was one tough hombre. I viewed those cowboys as heroes and would often pretend I was one of them when playing in the woods behind my childhood home. That was short-lived, however. As I got older, I came to realize there was a little movie magic behind those epic shootouts and my adulation of such heroes eventually waned. As an adult, I still admire someone who has worked hard to learn to accurately shoot from the hip. I have no idea why, but it is a skill I find impressive. Perhaps this is why I have been wondering about the origin of the idiom “shoot from the hip” of late. I have come to learn that the phrase originated during the heydays of the American cowboy of the old West. Obviously, it alludes to shooting a gun from the hip, but what I wasn’t aware of is this—the shot also occurs without ever taking the gun out if the holster. Of course, while this made firing quicker, the shot was not as accurate. It is with this context in mind that the current use of the idiom to refer to a decision that is reached and implemented without stopping to consider the possible consequences of the decision makes sense. I have been cautioning lawyers to never shoot from the hip for years, yet many still do. I think one of the rea-

sons why is due to the time demands of the legal profession. It is just too easy for lawyers to find themselves in situations where they feel compelled to take that quick shot, if you will. Take the shot, problem solved, move on to the next task. The problem is that taking that quick shot without regard to the accuracy of the shot is asking for trouble. Perhaps a few examples are in order. Consider dabbling—it is a malpractice problem we continue to see. Time and again, lawyers will take on a matter that is outside of their areas of practice and they may decide to do so for any number of reasons. It might be an inability to say no to a good client. It might be the legal ask is viewed as a simple matter. Heck, it could even be out of a desire to make sure that revenue keeps coming in. Regardless, a decision to take a quick shot is made without stopping to think through the potential consequences. At a minimum, these lawyers often don’t know what they don’t know and therein lies one problem. Look at it this way, even if that shot from the hip by happenstance ends up being close to the target, that is often still not good enough. Close doesn’t cut it in the world of legal malpractice. Blown deadlines can be another example of where unintended consequences arise when lawyers decide to take that quick shot. In follow-up to a remark I made during a recent CLE, a lawyer shared that his partner always used to say the following: If you think you know a filing deadline that is written in a statute or rule and rely on your recollection instead of looking it up, you have committed malpractice even if you were right. I couldn’t agree

more. Again, even if it was a close call, it’s still a miss. Other examples might include responding to an email too quickly or agreeing to take a matter on before giving any thought to whether you can actually meet the client’s needs or work effectively with this new client. It could be giving legal advice in a vacuum because you didn’t take the time to gather all the information you would need to know if your advice would actually be accurate. Regardless, I do understand why sometimes we all feel like it might be worth shooting from the hip, be it in our personal or professional lives. I will readily admit that I’ve done it more than a few times in my life. Time crunches happen; and when they do, I try to stop, take a breath, and ask myself this… If I take that quick shot from the hip, is close enough an acceptable outcome or will I have only solved the problem for the short term and potentially created a bigger problem in the end? It is a question all of us legal hombres need to keep in mind because, particularly in the practice of law, accuracy matters, big time. n MARK BASSINGTHWAIGHTE is Risk Manager with ALPS. He has conducted over 1,200 law firm risk management assessment visits, presented over 400 CLE seminars throughout the US, and written extensively on risk management, ethics, and technology. He is a member of the State Bar of Montana and the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee.

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Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS Bradley is pleased to announce that Elliot Bertasi has earned the Certified Information Privacy Professional (CIPP/ US) credential in the US through the International Association of Privacy Professionals. Bertasi is an associate in Bradley’s Healthcare and Cybersecurity and Privacy practice groups. Lisa Ramsay Cole, president and managing shareholder of Lewis Thomason, has obtained her Rule 31 Mediator Certification. As president of the firm, she serves as the firm’s general counsel and risk manager handling all ethical and professional responsibility matters. She practices in the areas of employment law, professional liability, workers’ compensation, and general casualty defense litigation. Alé Dalton from Bradley has been selected as a 2021 Fellow of the Leadership Council on Legal Diversity (LCLD). The LCLD Fellows and Pathfinder programs are designed to increase diversity at the leadership levels of the nation’s law firms and corporate legal departments. Chris Dunn, Partner at Waller, has been named a Fellow with the American College of Construction Lawyers. Fellowship 30

is extended by invitation to lawyers who have mastered the practice or the teaching of construction law and dispute resolution. Dickinson Wright is pleased to announce that Timothy Gary and Ralph Levy, Jr. have been named to Nashville Medical News’ 2021 InCharge Healthcare List. Gary has years of leadership in the practice of health care and regulatory law, as well as private health care and insurance industries. Levy is a senior partner in the firm’s Healthcare practice. His practice encompasses healthcare law, M&A, corporate governance, distressed healthcare restructuring and taxation. Bradley recently announced that nine attorneys in its Nashville office have been recognized by the Tennessee Supreme Court as 2020 “Attorneys for Justice.” The firm’s honorees are Kimberly M. Ingram, Alexandra C. Lynn, Erin Malone-Smolla, Casey L. Miller, Peter C. Sales, Edmund S. Sauer, Jeffrey W. Sheehan, Fritz Spainhour, and David K. Taylor. The Tennessee Supreme Court defines this recognition as lawyers who work a minimum of 50 pro bono hours annually to

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provide legal services to those who cannot afford the costs.

Nashville attorney Phillip H. Miller was awarded a Master of Laws in Litigation Management during the February 8 commencement ceremonies at Baylor University. In addition to successfully completing the LL.M. program, Miller performed specialized research into Juror Centered Case Assessment. Sims|Funk is pleased to announce that Michael O’Neill and R. Mark Donnell, Jr. have been made partners in the firm. Donnell advises clients in bankruptcy proceedings and on matters resulting from financial distress. O’Neill formerly chaired the NBA Federal Courts Committee. Both specialize in complex commercial litigation.

Hearsay | Honors & Awards, On the Move, Firm News ON T HE MOVE Michael K. Bassham has joined Bass Berry & Sims as a Senior Litigation Attorney. Bassham represents clients in complex litigation, contract disputes, and business torts. Brenner McDonald, entertainment and IP attorney, has joined McGlinchey Stafford as a Member of the firm. With more than 30 years in the entertainment industry, she brings a wide range of experience in entertainment, sports, corporate, business litigation, and transactional law, and will expand the firm’s intellectual property practice F I RM NEWS Baker Donelson has added three new attorneys to its Nashville office. Brianne Kerbyson will serve in its Tax Group, Jordan Ferrell will serve in the Corporate Group, and Tenia L. Clayton will be in the Health Law Group.

Lymari Martinez Cromwell and J. Paul Singleton have been elected members of Bass, Berry & Sims. Cromwell’s practice is primarily focused on advising companies with regard to non-compete laws. Singleton is a corporate attorney with a practice focused on public and private acquisitions and divestitures, private equity transactions, and corporate law matters. Bradley announced a major expansion of its national real estate and finance practices with the addition of partners Elizabeth C. Sauer, Mary O’Kelley, Kacie McRee and John P. McGehee, counsel Kyra F. Howell, and associate Taylor P. Scott. All six attorneys join Bradley from Baker Donelson, bringing extensive transactional experience in the real estate, banking, and healthcare industries to the firm. This highly accomplished team routinely handles all aspects of commercial real estate development and complex real estate and finance transactions, with a focus on long term care facilities and senior housing.

Lewis Thomason recently fulfilled a priority of its strategic plan by forming InclusivLT, a diversity, equity, and inclusion committee (DE&I). The committee will be chaired by John R. Tarpley, a Nashville attorney whose practice focuses on complex litigation in the areas of transportation, tort, product liability, and a wide range of insurance-related matters in both state and federal courts. Nashville-based attorney Liz Washko has been elected to serve on Ogletree Deakins’ Board of Directors. Washko represents management in a wide variety of employment matters at the agency level and in litigation. Douglas Russo has taken the reigns as the Managing Member of Rose Immigration Law Firm. Linda Rose is the Founding Member of the firm and will remain in her capacity as a partner. n

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Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become part of NBA’s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

Anderson & Reynolds

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Sims|Funk

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Kay Griffin

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Nashville Bar Journal | April/May 2021

Articles inside

Hear Ye, Hear Ye

Gadget of the Month

Lessons from A Solo Practitioner

CLE Schedule

Capitol Notes

A Defendant’s Right to Remain Silent

Background Check

From the President