Background Check

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.

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Original Thinking. Unique Protection.® 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

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).

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

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

4 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.

5 Tenn. R. evid. 803(22).

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

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

8 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.