Nashville Bar Journal | April/May 2022

JOURNAL Journal Journal

APRIL/MAY 2022 | VOLUME 22 | NO. 2

FEATURE

Thinking About Mary Northern ALSO

Tennessee Health Care Documents Business Courts from Tennessee to Delaware

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

©2019 First Horizon Bank. Member FDIC.

APRIL/MAY 2022 | VOLUME 22 | NO. 2

FE ATU R E

Thinking About Mary Northern

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by Barbara Moss

DEPA R TM E N TS

From the President Martesha L. Johnson

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Calendar of Events

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Hear Ye, Hear Ye

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Law Day 2022 Tennis Tournament Golf Tournament Spring Memorial Service Family Zoo Day

CLE Schedule

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Tennessee Health Care Documents

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Business Courts from Tennessee to Delaware

David E. Heller

Will Pugh

CO L UMNS

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11

Background Check

Bart Pickett

Gadget

barBITES

24

Hearsay

28

100% Club

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13 21

of the Month

Bill Ramsey & Phillip Hampton

Capitol Notes

Peggy Sue, the Beagle Hound

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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FROM THE PRESIDENT

The Original MLJ | Martesha L. Johnson

The feature article in this Bar Journal is on issues facing elders and the case of Mary Northern. I can’t WILLIAM T. RAMSEY, Editor-in-Chief think of elder Americans without thinking of my grandCAROLINE SAPP, Managing Editor mother. On March 13, 2022, my grandmother Minnie LAUREN POOLE, Managing Editor turned 95 years old. This beautiful milestone allowed ADRIENNE BENNETT CLUFF, Layout/Design/ my family to celebrate our matriarch and all that she Production has been to our family, recall how her wisdom and influencehasshapedourvalues,andrenew ourdedica EDITORIAL COMMITTEE tion to making sure her legacy lives on in the Johnson RAMONA DESALVO family for generations to come. “The original MLJ,” as TIM ISHII I call her, has been a force in my life. My grandmother KELLY FREY has always showered me with kind words, the right amount of spoiling, and her chicken SUMMER MELTON noodle soup will go down in history as the best meal I’ve ever eaten. Amid reading tribROB MARTIN utes and birthday wishes to my grandmother, I realized that I have always been drawn BART PICKETT to the elders of my community. From the days I spent as a child with my great aunt (I KATLIN RYAN KRISTIN THOMAS got my love for the news and solving mysteries from her) to spending time with seniors JONATHAN WARDLE at care facilities at various stages in my life, I truly enjoy the opportunities to learn and hear stories from the generations from those who paved the way. I often imagine what NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS life was like for my grandmother when she was my age. She faced many hardships 021-962) is published bi-monthly by the Nashville Bar and made sacrifices that laid the groundwork for my ability to e Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. have experienced so far. I am forever grateful for my grandmother.

POSTMASTER: Send address changes to Nashville An African proverb says, “the youth can walk faster, but the elder knows the road.”

Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN Anyone with the ability to learn from elder members of our community should embrace 37219-2419. the opportunity to absorb the knowledge. There are many ways for lawyers to provide No part of this publication may be reprinted without legal services for elders and the need for practitioners in this area will increase in the written permission of the Nashville Bar Journal Editorial yearstocome.TheUSCensusBureauprojectsthatbyfor 2035, the firstt Committee. All articles, letters, and editorials contained in this publication represent the views of the authors ican history, there will be more adults aged 65 and older than children. The Centers anddonotnecessarilyreflecttheopinions oftheNash for Disease Control has estimated that more that 500,000 elder Americans suffer from ville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. financial elder abuse annually. The National Council on Aging re million (roughly 1 in 3) older adults aged 65 and up are economically insecure, living The Nashville Bar Journal welcomes discourse. You may below 200% of the poverty level. submit counterpoint editorials to Adrienne.BennettCluff@ I encourage us all to find ways to nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. honor the elders among us this season by volunteering our time NASHVILLE BAR ASSOCIATION and talents to this important gen150 4th Ave N, Ste 1350 Nashville, TN 37219 eration. It takes a village to raise a 615-242-9272 | NashvilleBar.org child—and to care for our elders.

Happy Birthday, Nana!

The Nashville Bar Association, established in 1831, is a MARTESHA L. JOHNSON, Publisher

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 2,500+ members—is the largest metropolitan bar association in Tennessee.

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

In Solidarity,

NashvilleBar.org Calendar of Events | Full calendar online at NashvilleBar.org

APRIL 2022 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

F R I D AY

1 NBA Board Mtg 4:00pm Dial-A-Lawyer 6:00-8:00pm

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Diversity Committee 12:00pm

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6 Historical Committee 11:30am YLD Board Mtg 12:00pm

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12 Memorial Service Committee 12:00pm

Ethics Committee 12:00pm

7 NBF Trustees Mtg 12:00pm NBJ Editorial Committee Mtg 12:00pm

8 GOOD FRIDAY PASSOVER

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Holiday | NBA Office Closed

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LRIS Committee 3:00pm

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MAY 2022 M O N D AY

T U E S D AY

W E D N E S D AY

Dial-A-Lawyer 6:00-8:00pm

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T H U R S D AY

CLE Committee Mtg 12:00pm

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F R I D AY Law Day Lunch 12:00pm-1:00pm | Downtown Renaissance Hotel

Diversity Committee 12:00pm

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NBA Historical Committee 11:30am YLD Board Mtg 12:00pm

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Ethics Committee 12:00pm

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NBA + NBF Golf Tournament 1:00pm-6:00pm | Hermitage Golf Course

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Spring Memorial Service 11:00am | Downtown Presbyterian Church NBA Finance & Executive Committees 4:00pm

MEMORIAL DAY Holiday | NBA Office Closed

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL Journal Journal

Hear Ye, Hear Ye |

Events of Interest

2022 NBA BOARD OF DIRECTORS MARTESHA L. JOHNSON, President GULAM ZADE, President-Elect

HON. MELISSA BLACKBURN, First Vice President LIZ SITGREAVES, Second Vice President CHARITY WILLIAMS, Secretary FLYNNE DOWDY, Treasurer GIL SCHUETTE, Assistant Treasurer LELA M. HOLLABAUGH, General Counsel JEREMY OLIVER, YLD President MIKE ABELOW, Immediate Past President LORA FOX, First Vice President-Elect MARLENE MOSES, Second Vice President-Elect

In celebration of the American Bar Association’s Law Day, the Nashville Bar Association invites you to join us on Friday, May 6, at the Downtown Renaissance Hotel for our Law Day lunch.

For the latest information, stay tuned to NashvilleBar.org/LawDay. n

BAHAR AZHDARI CHRISTEN BLACKBURN JAZ BOON ERIN COLEMAN RAQUEL EVE OLUYEMO SAM FELKER MANDY FLOYD ELIZABETH FOY MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES JOSEPH HUBBARD KIM LOONEY

NBA “Grand Slam” Tennis Tournament Join the NBA at Seven Hills Swim and Tennis Club on Saturday, May 14, at 10:00am for a “Grand Slam” Tennis Tournament. 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. There will be 1st and 2nd place prizes!

Register now at NashvilleBar.org/Tennis! n

JUNAID ODUBEKO KAYA GRACE PORTER MARIE SCOTT TIM WARNOCK LUTHER WRIGHT

NBA TEAM MONICA MACKIE, Executive Director CAMERON ADKINS, CLE Director ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator SHIRLEY ROBERTS, Finance Coordinator VICKI SHOULDERS, Membership Coordinator, OfficeManager

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 Adrienne.BennettCluff@nashvillebar.org.

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NBA + NBF Golf Tournament Get ready for a day on the green with your friends and colleagues on Thursday, May 19, and spend a day putting around in the sunshine at our annual golf tournament. Presented by the NBA and NBF, the tournament will be held at the Hermitage Golf Course in Old Hickory. Range balls will be available beginning at 12:00pm with a shotgun start at 1:00pm.

The entry is $160 for NBA members, $180 for non-members, and includes range balls, greens fee, cart, beverages, snacks, and dinner. All registrations must be submitted by Thursday, May 12.

We will have dinner and prizes at the conclusion of play. Prizes for teams and individual contests include longest drive, longest putt, closest to pin, etc. To register your foursome, email Traci with your team member names, or each member may register individually at Nashvillebar.org/Golf. n

NASHVILLE BAR JOURNAL | APRIL/MAY

Welcome to the NBA! Congratulations on your membership—thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org with questions or to learn more.

NEW MEMBERS (JANUARY 1 - FEBRUARY 28) Anthony Adewumi

Karin Dwight

Trent Norris

Josh Bolian

Pete Harris

Jody O’Brien

Jack Bond

Elizabeth Huertas

Nattaly Perryman

Micah Bradley

Mari Jasa

Toni Rutgerson

Ashley Cannon

Cady Kaiman

Kim Spann

Alex Carver

Lindsay Lundeen

Kyle Stack

Mitzi Dorris

Katie Miller

Melissa Tribue

Grace Dunn

Matthew Mullins

Dan Whitaker

Spring Memorial Service Our Spring Memorial Service will be on Thursday, May 26, 2022, at the Downtown Presbyterian Church. The service begins at 11:00am. We hope you can join in and remember those who have gone before us. Memorial resolutions 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 invited to attend. Visit NashvilleBar.org/Memorial to view a list of those being honored and save your spot today. n

NBA Family Zoo Day Gather with your lawyer friends and their families on Saturday, June 11, for our Family Zoo Day at the Nashville Zoo. Upon arrival, visit the NBA table between 10:00am and 12:00pm to pick up your tickets and complimentary treats, sponsored by K&L Gates and Nashville Electric Service.

Need Tickets? Email Traci.Hollandsworth@Nashvillebar.org, and let her know how many FREE tickets you need and they will be ready and waiting for you at the NBA table when you arrive. Limit four tickets per NBA member.

Already have tickets or passes? Come by the NBA table to say hello and pick up fun snacks and goodies on your way into the zoo! Visit NashvilleBar.org/Zoo for more information. n

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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Feature Story | Barbara Moss

THINKING ABOUT MARY NORTHERN: REPRESENTING CLIENTS WITH DEMENTIA IN CONSERVATORSHIP CASES

Those of us who were adults and reading the newspapers family history, race/ethnicity, poor heart health, and traumatic in 1978, and especially those of us who were or are lawyers, are brain injury.8 Age is the biggest risk factor.

1 still haunted by the case of Mary Northern. Mary Northern was Age Percentage of Americans a 77-year-old resident of Nashville who was living in a dilapidat with Alzheimer’s ed home on Gallatin Road. She had no help from relatives and 64-74 3% was living in deplorable conditions with her cats and without 75-84 17% heat or other utilities. Eventually, she was taken to General 85 and older 32% Hospital where she was diagnosed with gangrene of both feet People younger than 65 can develop Alzheimer’s, but it is much resulting from frostbite.2 Ms. Northern refused to agree to have less common, and the prevalence is uncertain.9 her feet amputated. Physicians determined, and the Chancery An estimated 5.8 million Americans have Alzheimer’s Court and Court of Appeals agreed, that Ms. Northern’s life was today and that number is projected to grow to 13.8 million by 2050.10 critically endangered; that she was mentally incapable of comprehending the facts which constituted that danger; and that How she was, to that extent, incompetent.3Affirmingthedecision of Was the Legal Framework Changed Since the Northern Case? the Chancery Court, the Court of Appeals found Ms. Northern The Northern case was brought under then-existing could have exercised her rights to die by stating that she pre4 statutes providing for furnishing protective services to elderly ferred to die rather than have her feet amputated. Instead, she persons who lacked capacity to consent.11 The provisions of strongly wanted to live and to keep her feet, the conjunction of the Tennessee Code for Conservatorships were not enacted which was statistically improbable. Appeals ensued.5 1992. the While the appeals were pending, the fleshuntil around Under current law, an action to appoint a conservator may bones of Ms. Northern’s feet sloughed off. Ultimately, Ms. be brought by “any person having knowledge of the circumNorthern did not have the surgery and died on May 1, 1978. stances necessitating the appointment of a conservator.”12 At Sadly, Mary Northern may or may not have experienced a hearing no less than seven days or more than 60 days after the best possible result in her case. If her feet had been ampuservice on the respondent, the court must fi tated, what type of life would she have had? We will, of course, convincing evidence that the respondent is fully or partially never know. disabled and that he or she is in need of assistance from the There have been many developments since the Northern court before a conservator can be appointed.13 Rights are then case 44 years ago, and those developments can inform our repremoved from the respondent and vested in the conservator by resentation of clients with dementia in conservatorship cases. the order of the court.14 The court is under a duty to impose the least restrictive alternatives consistent with the protection of the What Do We Know About the Incidence and Cause of Deperson and property of the respondent.15 mentia?

A guardian-ad-litem is appointed in each conservatorThe most common type of dementia is Alzheimer’s disship action.16 The appointment of an attorney ad litem is not ease, but other types include vascular dementia, Lewy body uniform but only happens upon the recommendation of the dementia, and frontotemporal dementia.6 Dementia is not a 7 part of normal aging. The risk factors for dementia are age, (continuedononpage page00) 8) (continued

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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Feature Story | Thinking About Mary Northern

L E T ’ S WO R K TO G E T H E R T O PROT EC T YO UR CL I E N T S ’ I N T E L L EC T UAL PRO PE R T Y.

(continued from page 7)

guardian-ad-litem or upon the court’s determination that such an appointment is necessary to protect the rights of the respondent.17 Usually, that occurs when the respondent disputes the necessi ty of a conservatorship. The respon dent’sright to have an attorneyad litem

chological professional or one selected

statute.18 There is no discussion in the Tennessee Code as to the parameters of the attorneyad litem’s representation 19 of a client with dementia.

The framework for the appointment

whether a conservator is needed, the “type and scope of the conservator with

to focus on all other legal matters.

Learn more at iplawgroup.com.

The court appoints an attorney ad litem to represent the respondent “immediately upon receipt of the peti tion.”22 Again, there is no discussion in the statute as to how the attorney car ries out that representation, and, there fore, no guidance as to representation 23 where the respondent lacks capacity.

The Tennessee statute envisions that a physician, or, “where appropriate, a psychologist or senior psychological cess of determining whether a conser vator is needed.24 If an examination has or psychological professional within 90

25 to the court with the petition.

If the re-

Or i g i n a l Th i n k i n g.

U n i q ue P r ot e c t ion.®

respondent’s regular physician or psy -

8

professional is required to state the respondent’s medical history, a -de scription of the nature and type of the

recommendation of conservatorship,” and any other matters the court deems

was not added to the Tennessee Code until 2013.20 Where following the normal o H w Do e W Evaluate Persons Subject time periods for a conservatorship will to a Convervatorship Proceeding?

As the Tennessee statute makes respondent’s health, safety, or welfare” clear, the court has to identify the dis -

21

We are committed to protecting

The sworn report of the examina -

27

interests of the respondent, a conserva -

your clients’ IP assets, leaving you

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

person over whom a conservatorship is sought.28 The pivotal issue, however, is whether the “respondent is in need 29 of assistance from the court.”

The condition has on the capacity of the per sought.30 In a conservatorship case, the question of capacity is often dual: (1) functional capacity or 31

32 caring for oneself and one’s property.

are interrelated.

The sworn Physician’s Report -re the physician or psychologist to provide an opinion as to whether a conservator is needed and acts essentially as a -re (continued on page 14)

Editorial |

David E. Heller

Tennessee Health Care Documents: Advanced Care Directives and Appointment of Health Care Agent

With most estate planning documents, the primary purpose of cipal can identify certain situations as either an acceptable or unacthe document is to speak for the person when they can no longer ceptable quality of life. Additionally, the Principal can then identify speak for themselves. Power of Attorney documents identify who certain types of treatment to receive or not receive in the event they can make decisions for someone who is alive, but unable to commu- experienceoneoftheseidentifiedunacceptable qu nicate for themselves, and also provide instructions on what actions tions. Further, the Advanced Care Directive can also provide end of can and cannot be taken on the person’s behalf. A Last Will and Tes- life instructions and choices for organ donation. tament provides direction after a person dies, appointing the person The Appointment of Health Care Agent answers the question, with authority to wind up the estate and directing how the person’s “Who does the person want to speak for them regarding health care assets are to be distributed. decisions when they cannot communicate?” The Appointment of Health care documents are some of the most important estate HealthCareAgentoftenidentifiesaprimaryagent planning documents a person can execute. There are two main agent. Once the Appointment of Health Care Agent is effective, the health care documents.1 One is an Advanced Care Directive, and Agent has the authority to make medical decisions on the Principal’s the other is the Appointment of a Health Care Agent. Prior to the en- behalf. Such decisions include the authorization of medical proceactment of Tennessee Health Care Decisions Act in 2004, both health dures, the placement of the Principal in a treatment facility and the care documents were known by other names. The Advanced Care use or removal of life sustaining treatment.

Plan was previously referred to as the “Living Will,” possibly one of Additional details about these documents include: the most confusingly named documents because many people think • Any adult, age 18 or over, can execute these health care docthat when they have a Living Will, they also have a Last Will and Tesuments. An emancipated minor can also execute these docutament. They do not understand that a Living Will and a Last Will and ments.4 The Principal must sign the documents in the presence Testament are not the same document. The Appointment of Health of a notary public or two witnesses who are not related to the Care Agent was previously known as the “Medical Power of Attorney”.

Principal by “blood, marriage, or adoption” and are neither benThe Advanced Care Directive allows a person (the “Principal”) eficiariesunderPrincipal’sLastWillandTestam to direct what type of medical treatment the person wants if they are heirs.5 incapacitated and therefore unable to make health care decisions.

• The Health Care Agent is directed to follow the Principal’s inAnAdvancedCareDirectiveisdefinedasan“individual structions instruction and choices from the Advanced Care Directive. The or a written statement relating to the subsequent provision of health Advanced Care Directives are not merely suggestions for the care for the individual.”2 The Tennessee Department of Health has a Health Care Agent to consider.6 specificformforAdvancedCare3Directives.

On this form, the Prin(continued on page 12) FEBRUARY/MARCH 2022 | NASHVILLE BAR JOURNAL

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CAN YOU NAME THESE PEOPLE?

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

FEB/MAR GOLDEN OLDIES

Congratulations to Gil Schuette of Sims|Funk for correctly identifying the individuals in last issue’s photo! From left to right: David Raybin, Charles Grant, Kay Caudle, Joycelyn Stevenson, Rob Bigelow, Claudia Levy. n

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

BACKGROUND CHECK

Amy Willoughby Bryant | Bart Pickett

Thanks to a certain pop star and her national publicity, the country now knows about conservatorships. Davidson County fortunately finds itself with the much-needed oversight provided by the Office of Conservatorship Management under the helm of its Director Amy Willoughby Bryant. State Trial Courts appointed her in December 2018.

The path to this role was not a clear one. Bryant laughingly recalls when she applied, she had never heard of the office and was not familiar with its work. Thankfully for her, after researching the job and meeting with Judge Kennedy, she walked away knowing she was meant for the role.

Bryant grew up in Memphis, the oldest of 4 siblings. Her mother worked for the IRS, and her father owned a real estate company. She attended Overton School for the Performing Arts where she played violin in the orchestra. When TSU offered her a full scholarship including one semester at the University of Hawaii, Bryant moved to Nashville in 2000. At the time, her intention was to take over her father’s real estate business. After studying for her real estate license following her freshman year, her in-

terest in real estate law began and convinced her to seek out law school.

After not finding a pre-law group at TSU, she founded the Phi Alpha Delta Pre-Law Fraternity at TSU, for which she still serves as their advisor.

When she visited colleges in high school, Bryant remembers being in love with St. Louis University’s campus which led to her applying to its law school. Without knowing anyone, she packed up and moved to St. Louis in the fall of 2004 to begin law school with the intention of becoming a real estate lawyer. She also had no intention of moving back to Tennessee but she ended up right back in Nashville following graduation.

Bryant studied for the bar in Nashville in the summer of 2007. She had moved back for her husband at the time. She did not have a job but found herself applying at every title company and real estate job she could find.

Ultimately, Realty Title hired her in August 2007, but due to the real estate crash, the company fired several of their attorneys that December.

Bryant found herself suddenly having to pivot. She took on some Counsel on Call assignments for a time. She also went to Juvenile Court to explore appointments. She remembers going one day and observing Judge Shelia Calloway, who appointed Bryant to a case. Bryant, with zero litigation experience, expressed her concern and to her relief was appointed a co-counsel. Calloway also offered to allow Bryant to come observe her trial advocacy class at Vanderbilt Law which Bryant jumped on.

By October 2009, Bryant had started her own practice and had her

own real estate business. While she loved being an entrepreneur, Bryant had remarried and was raising their children and found herself looking for more stable hours. She found that balance when she started as an attorney for TennCare in 2015. At TennCare, she found herself enjoying the management aspect of her job but felt that she had peaked for the foreseeable future in that department. As a result, she started searching other governmental jobs, particularly director roles.

In her current role, Bryant found what she looked for in a job.

She is able to educate the public, manage employees, and help develop policies, programming and initiatives. The office regularly oversees approximately 2,400 conservatorships in Davidson County.

When not at work, Bryant has volunteered her service on numerous boards. She currently serves as an NBF Trustee, the co-chair of the NBA Diversity Committee, and on the National Guardianship Board. She also teaches at Belmont Law as an adjunct professor.

Bryant and her husband, Julian, live in Mt. Juliet with three of their children (6, 8, and 10) and their cat Skeeter. Her oldest is a freshman at Morehouse College. In her free-time, Bryant can be found doing anything outdoors, traveling, or Latin dancing. 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.

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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Editorial |

Tennessee Health Care Documents (continued from page 9)

• Similarly, a health care institution is First, is the person’s spouse, so long as directed to comply with the Principal’s they are not legally separated. Next, directions and those of the Health Care is an adult child of the person. Next, a Agent. Regardless, the institution parent of the person, and then an adult may refuse to comply due to reasons sibling of the person. Next, an adult-rel of conscience or if the instruction-“re ative of the person.9 uq ires medically inappropriate health • The Health Care Agent’s authority care or health care contrary to general becomes active when the person is 10 ly accepted health care standards -ap deemed to lack capacity.

Capaci7 plicable to the health care institution.”

• A Living Will and Durable Power of Attorney for Health Care are still valid risks, and alternatives to proposed and coexist with the Advanced Care health care and to make and com 11 Directive and the Appointment of municate a health care decision.”

Health Care Agent. Prior documents • The Advanced Care Directives and executed as a Living Will and Med the Appointment of Health Care Agent ical Power of Attorney are still valid. can be combined into one document.

A person does not have to execute These two health care documents a new Advanced Care Directive and work together. An Advanced Care -Di 8 Appointment of Health Care Agent. rective provides instruction for a person’s • If a person does not have an Appoint health care and the Appointment of Health ment of Health Care Agent, a health sible for implementing these and other make decisions. Tennessee statute health care instructions. sets an order of preference of who is Health care decisions are some of authorized to become a surrogate. the most important decisions a person can

make for themselves. With an Advanced Care Directive and the Appointment of Health Care Agent in place, a person can better ensure that they will experience endof-life care that matches their wishes.

DAVID HELLER is a partner at Martin Hel er Potempa & Shepard.

Heler’s practice focuses on family wealth preser vation, which includes estate planning, estate tax planning, and asset protection planning.

T.C.A. Section 68-11-1801, the Tennessee Health Care Decisions Act 2 T.C.A. Section 68-11-1802(a)(1) 3 T.C.A. Section 68-11-1805 4 T.C.A. Section 68-11-1803(a) 5 T.C.A. Section 68-11-1803(b) 6 T.C.A. Section 68-11-1803(e) 7 T.C.A. Section 68-11-1808(b) 8 T.C.A. Section 68-11-1803(j) 9 T.C.A. Section 68-11-1806(3) 10 T.C.A. Section 68-11-1803(c) 11 T.C.A. Section 68-11-1802(a)(3) 1

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

BILL & PHIL’S GADGET OF THE MONTH

Bose Frames |

Bill Ramsey & Phillip Hampton heft to the sunglass frame, they do not feel excessively heavy on your face. We have worn our pair casually while driving and also while walking or running outside and have not felt that the frames were too heavy.

The Bose Frames connect to your smartphone via Bluetooth; and then you can listen to any content from your phone via the speakers located in the frame arms. The music or other audio content from your phone is delivered to your ears using something that Bose calls their Bose Open Ear AudioTM. The sound is surpris-

If you have heard us speak this year, you know that we are all about immersive technology these days. The key to immersive technology is the removal of barriers to utilize technology in our daily lives. The less devices we have to physically hold in our hands and the less buttons we have to push, the better, in our view. So, it was no surprise that we were attracted to our latest gadget, the Bose® Frames audio sunglasses. These specially equipped sunglasses allow us to listen to audio content from our phone, take calls, and even dictate commands completely hands free and without any headphones or ear buds.

Talk about freedom!

First of all, the Bose Frames look like regular sunglasses to the casual observer. They remind us of the traditional Ray Ban look with the classic black styling. If you look more closely at them, you will notice that the arms of the sunglasses that rest on your ears are a little thicker than normal sunglasses because they house the electronics that make the frames work. Each arm contains small speakers along with a microphone that allows the wearer to both hear and speak handsfree.

While these electronics add a little bit of

over your ear like a headphone or in your ear canal like an ear bud. We especially like using our Bose Frames when taking a walk to our favorite restaurant at lunch so we can listen to a podcast or catch up on our voicemails all hands free while still being able to hear sounds from the physical environment around us. Complete ambient noise cancellation is great if you are sitting on a noisy plane but is not option foot. So, we joyfully wear our smart sunglasses while walking to court or to ly knows that we are listening to music, voicemails, podcast, or whatever. Even if we pass somebody in a close encounter on the street, the person next to us cannot hear the audio from the Bose Frames.

The only clue they might have that we are either using a smart device or we’re crazy is when they see us talking to no one in particular, or dancing like nobody is watching.

Yes, the mic on the Bose Frames is good enough to carry on a phone conversation much like you would with your phone on speakerphone mode. We did notice on one occasion when we were taking a call while walking outside on a

particularly windy day, that the other party could hear a lot of wind noise over the mic. Of course, this happens also when using either Bill’s Air Pods or Phil’s Galaxy Buds.

The Bose Frames come in several different styles from classic looks to more stylish and sporty looks. The lenses on the frames can be interchanged for different colors and gradients. On its website, Bose also indicates that it can provide frames with prescription lenses via special order.

Bose touts the battery life on the Frames to be up to 5.5 hours. We have not challenged that limit yet as we typically don’t wear them more than an hour at a time. The sunglasses come with a proprietary charging cable. We wish that the charging cable was something more standard like a USB-C cable, but that is a minor irritation.

All in all, we are very pleased with our new “immersive” tech gadget. Contrasted with the garish Bluetooth earpieces that executives used to wear conspicuously how busy they were; we love the incognito nature of the Bose Frames that lets us use our tech while appearing to be completely unencumbered to those around us.

- Bill & Phil

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

13

Feature Story |

Thinking About Mary Northern (continued from page 8)

33 port on capacity.

Although the report is prima facie evidence of lack of capacity, it is also hearsay. Typically, however, no

unless action is taken and can not adequately act in the client’s own interest, the lawyer may take It has been the author’s experience reasonably necessary protective that some people are so obviously inca action, including consulting with pacitated or are so well known to their individuals or entities that have the ability to take action to protect for performing the evaluation. If it is a the client and, in appropriate cas closer question, one can turn to neurolo es, seeking the appointment of a gists or psychiatrists. A “forensic” doctor guardian ad litem, conservator, or is a doctor who will come to court. guardian.35 Many physicians would agree that a As part (b) of the rule sets out, therefore, neuropsychological examination can be a lawyer can have a duty to take protec extremely helpful. A neuropsychologist tive action. administers a battery of tests to deter Comment (5) under the topic Taking mine intellect, reading comprehension, Protective Action is especially enlight language usage and understanding, ening in the situation where an attor attention/concentration, processing ney-ad-litem is appointed to represent speed, learning, memory, executive the respondent in a conservatorship functioning, mood, and personality. action and the client has been diag nosed with dementia. The duty to take How Do the Model Rules of protective action comes into play when Conduct Affect Our Understanding of Our Duty as Attorneys? to communicate or to make adequately The American Bar Association (ABA) considered decisions in connection with 36 Model Rules of Professional Conduct the representation.”

The comment were adopted by the ABA House of concludes with the following sentence: Delegates in 1983. Tennessee adopted In taking any protective ac tion, the lawyer should be guided Rules in 2002.34 by such factors as the wishes and Rule 1.14: Client with Diminished values of the client to the extent Capacity, states as follows: known, the client’s best interests (a) When a client’s capacity to make and the goals of intruding into the adequately considered decisions in client’s decision-making auton connection with a representation omy to the least extent feasible, is diminished, whether because maximizing client capacities and of minority, mental impairment, or respecting the client’s family and 37 for some other reason, the lawyer social connections. shall, as far as reasonably possible, Accordingly, the wishes and auton maintain a normal client-lawyer -re omous decision-making of a client with lationship with the client. dementia are important,but so are the (b) When the lawyer reasonably be client’s best interests. lieves that the client has diminished capacity, is at risk of substantial

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

How Should e W Advocate Then as Retained or Appointed Counsel in a Conservatorship Action? ad litem in a conservatorship case will always be: Is the client incapacitated?

The answer to that question will deter mine whether we must abide by the client’s decisions about the objectives of the representation or whether we are also called upon to consider the client’s best interests under Rule 1.14 of the Rules of Professional Conduct.

It is quite common that the client has said: “I don’t need a conservator 38 ship!” There is even a medical term for our inability as humans to understand that our condition may be causing: Ano sognosia. The client’s persistent belief that he or she does not need help may be the very reason for the conservator ship action.

Under the guidance of the ABA and American Psychological Association, we must exercise our judgment from the outset, even in determining whether it is a close case and the client needs 39 an evaluation by a professional.

In the author’s opinion, if it is obvious that our client is demented, then Rule 1.14 applies, and we need to consider our client’s best interests in going forward.

What if an attorneyad litem is not certain about whether the client is inca pacitated; i.e., needs the assistance of the court? Depending on your client’s resources, you will need to have your client evaluated by another “physician . . . psychologist or senior psychological examiner.”40 uations about whether the client lacks capacity, one can ethically advance the client’s expressed wish not to have a (continued on page 25)

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. MONDAY, A PRIL 11 | VIRTUAL SEMIN A R

TH U R S D AY, A P R I L 14 | LI V E SEM IN A R

GOING GREEN...BURIALS

DAVIDSON COUNTY BEHAVIORAL CARE CENTER

OVERVIEW

DIVERTING MENTAL ILLNESS OUT OF THE CRIMINAL JUSTICE SYSTEM OVERVIEW Co-Produced by the General Sessions Committee & Criminal Law and Criminal Justice Committee Produced by the Estate Planning & Probate Committee Tennessee law allows for a variety of funeral and burial practices beyond the traditional routes. This CLE course will explore the regulations surrounding non-traditional options such as green burials, home funerals, and more.

PRESENTERS April Harris Jackson Graceful Aging Legal Services Ivy Grizzle Belmont School of Law, Student D E TA I L S

Learn more about the new Davidson County Behavioral Care Center and its impact on the criminal justice system. Presenters will provide a look into the center’s goals, the process of how cases are referred and reviewed, as well as the discharge process. Other topics will include competency of clients, jail classificationbarriers,waiverofprelimtim rule, expungement of records and more! Following the seminar, attendees will be invited to tour the Behavioral Care Ctr. PRESENTERS Eric Bauder, Exective Director, Behavioral Care Center Lacey Monday, Program Manager, Behavioral Care Center Kyle Morris, Assistant Public Defender, Nashville Defenders Jordan Shannon, Assistant District Attorney General

Seminar ����������������������������������������������������������12:00 – 1:00pm

D E TA I L S

Credit ��������������������������������������������������������������������1.0 General

Seminar ������������������������������������������������������������2:00 – 3:00pm

Location ������������������������������������������������������������ Virtual - Zoom

Credit ��������������������������������������������������������������������1.0 General

COST

Location ����������������������������������������������������������������� Live - BCC

Attendance Only (No CLE Credit) �������������������������������������$0

COST

NBA Members �����������������������������������������������������������������$35

Attendance Only (No CLE Credit) �������������������������������������$0

Non-Members �������������������������������������������������������������������$89

NBA Members �����������������������������������������������������������������$35 Non-Members �������������������������������������������������������������������$89 APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

15

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. TUESDAY, APRIL 19 | HYBRID SEMINAR

TUESDAY, MAY 3 | VIRTUAL SEMINAR

THE ETHICS & LOGISTICS OF WORKING REMOTE

CREATING A CULTURE OF RESPECT WITH NTRINSX

OVERVIEW

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES As an attorney, you interact with a wide range of personalities – clients, opposing parties, other attorneys, courts, and your own staff. Ntrinsx is designed to help you understand the intrinsic values that truly motivates the way people behave in a given situation.

Even before the current pandemic forced us to work from home, most all of us were working from home periodically (some more than others). With the majority of the workforce now working remotely, the initial concerns were connectivity to resources and collaboration. However, working remotely in a secure and ethical manner quickly came to light. This session will discuss some technology hacks to be more productive and will provide an emphasis and methods to do so securely and ethically to protect your clients and yourself while working remotely.

Based on data derived from tens of thousands of validated assessments, Ntrinsx helps you interpret a person’s behavior when they are in esteem and how their behavior manifests differently when they are stressed out. Since we all have different values, we tend to view the behavior of people we interact with through our own lenses. That biases our judgement.

PRESENTER

PRESENTER

Bill Dean LBMC Information Security

Roberta Scott Pettis FocusWorks Consulting Group

D E TA I L S

D E TA I L S

Seminar ����������������������������������������������������������� 12:00 – 1:00pm

Seminar ����������������������������������������������������������� 12:00 – 1:00pm

Credit ����������������������������������������������������������������������1.0 General Location ��������������������������������������������������������������Virtual - Zoom

The Ntrinsx Getting Started workshop teaches the theory using four colors to provide an intuitive, easy to apply tool that can be used in both your professional and personal life situations.

Credit ��������������������������������������������������������������������������� 1.0 Dual Location ��������������������������������������������������������������Virtual - Zoom

COST

COST

NBA Members ������������������������������������������������������������������ $45

Single Seminar Only ���������������������������������������������������������� $40

Non-Members �������������������������������������������������������������������� $89

16

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Series Package ������������������������������������������������������������������ $99

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. MONDAY, MAY 9 | HYBRID SEMINAR

TUESDAY, MAY 10 | VIRTUAL SEMINAR

[THE] POINT [OF] BREAK[ING]

PERSUASION THROUGH STORYTELLING

WHEN TO APPOINT A SUCCESSOR, WHEN TO TRANSFER, & WHEN TO TERMINATE OVERVIEW

FINDING YOUR UNIQUE VOICE OVERVIEW PROFESSIONAL DEVELOPMENT SERIES

Produced by the Estate Planning & Probate Committee This seminar will provide a brief overview of the statutory requirements to transfer a conservatorship from county to county or state to state; plus, practical advice about resigning, appointing a successor conservator, and terminating a conservatorship that is no longer necessary.

PRESENTER Jennifer Sheppard Martin Heller Potempa & Sheppard, PLLC D E TA I L S Seminar ����������������������������������������������������������� 12:00 – 1:00pm Credit ����������������������������������������������������������������������1.0 General Location �������������������������� Hybrid(NBAOffice&Virtual-Zoom) COST Attendance Only (No CLE Credit) �������������������������������������� $0 NBA Members ������������������������������������������������������������������ $35

As attorneys, we are entrusted with the privilege of telling our clients’ stories. Persuasive storytelling isn’t a slick defense lawyer trick; it is a critical tool for effective attorneys in all types of practices. Join Martesha Johnson, Chief Public Defender, and Georgia Sims, Assistant Public Defender and Training Director, as they review the neuroscience of effective stories, discuss ethical considerations for learning and sharing the storiesofothers,andreflectonourpersonale findingouruniquestorytellingvoices.

PRESENTERS Martesha Johnson Nashville Defenders Georgia Sims Nashville Defenders D E TA I L S Seminar ������������������������������������������������������������ 12:00 – 1:00pm Credit ����������������������������������������������������������������������������1.0 Dual Location ���������������������������������������������������������������Virtual - Zoom COST Single Seminar Only ����������������������������������������������������������� $40 Series Package ������������������������������������������������������������������� $99

Non-Members �������������������������������������������������������������������� $89 APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

17

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. TUESDAY, MAY 17 | VIRTUAL SEMINAR

TUESDAY, MAY 24 | VIRTUAL SEMINAR

WHO’S IN CHARGE? OUR BRAINS OR OUR BODIES?

BREAKING DOWN THE WALL OF BUSYNESS

UNDERSTANDING THE BIOLOGY OF OUR BODIES, SLEEP, & PERFORMANCE

LIFE HACKS TO BUY YOUR TIME BACK

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES What if there were a sustainable way to work differently, enhance your professional capital and improve your health daily?

What if you could achieve more and work less? Or does this seem like a fantasy?

From stress to sleep and personal to professional performance, understanding the importance of sleep on our brains and bodies will change the way you value sleep, naps, and long-termramifications.Whydowesleep?Whathappens If you’re intrigued, come join us for an engaging discussion in our brains when we sleep? Is there a difference between where we explore why “busyness” does not equal success and beingtiredorfatigued?Whatdefinesagoodsleep?

This Instead,youwillleavewithanaltern fulfillment. workshop will take a deep dive into the consequences of working where you are in the driver’s seat of creating a system inadequate sleep, how stress and performance are interconthat works for you. We will focus on the inner game (how to nected, and how our brains and bodies react. This is a real identify what’s important to you) and the outer game (tactical eye opener! tools that really work for lawyers). In this seminar, learn how to achieve more space, joy and well-being in your life, without compromising your career.

PRESENTER Dr. Donna Van Natten Body Language Dr D E TA I L S Seminar ����������������������������������������������������������� 12:00 – 1:00pm Credit ��������������������������������������������������������������������������� 1.0 Dual Location ��������������������������������������������������������������Virtual - Zoom COST Single Seminar Only ���������������������������������������������������������� $40 Series Package ������������������������������������������������������������������ $99

PRESENTER Julie Bonasso Wayfinders LLC D E TA I L S Seminar ������������������������������������������������������������ 12:00 – 1:00pm Credit ����������������������������������������������������������������������������1.0 Dual Location ���������������������������������������������������������������Virtual - Zoom COST Single Seminar Only ����������������������������������������������������������� $40 Series Package ������������������������������������������������������������������� $99

18

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

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 David Anthony

Aubrey Harwell

David Raybin

Gail Ashworth

Trey Harwell

David Ridings

Laura Baker

Lisa Helton

Nathan Ridley

Daniel Berexa

John Holt

Christopher Sabis

Michael Berman

Lloyd Houk

Joseph Shelton

Mark Beveridge

Paul Housch

Kimberly Silvus

Joe Binkley

Joseph Hubbard

Martin Sir

Melissa Blackburn

R. Jan Jennings

Elizabeth Sitgreaves

Charles Bone

Andrew Kaufman

Ronald Small

Josh Brand

Jordan Keller

Eric Smith

C. Dewey Branstetter

Christopher Kelly

Laura Smith

Joe Brown

John Kitch

Saul Solomon

Kenneth Byrd

William Koch

Kimbra Spann

Christopher Cardwell

Irwin Kuhn

John Spragens

Loy Carney

Edward Lanquist

Joycelyn Stevenson

Mark Chalos

Thomas Lawless

Michael Stewart

William Cheek

Wendy Longmire

Gerard Stranch

Daniel Clayton

Christina Lopez

James Stranch

Seth Cline

Randal Mashburn

Aleta Trauger

Todd Cole

Sam McAllester

Howard Vogel

Christopher Coleman

Amanda McClendon

Michael Wall

Grover Collins

Carol McCoy

Elizabeth Washko

John Day

Bob Mendes

Jim Weatherly

Joy Day

Margaret Moore

Carolyn Wenzel

Jacqueline Dixon

Patricia Moskal

Thomas White

Keith Frazier

Phillip Newman

Thomas Wiseman

Barry Gammons

Andrew Noell

Talley Wood

David Garrison

Mattison Painter

Edward Yarbrough

Andy Goldstein

David Parsons

Bill Young

Gregory Pease

Stephen Young

William Harbison

Andrea Perry

Gulam Zade

Marian Harrison

Tracy Powell

Stephen Zralek

JohnGriffin

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

19

TENNESSEE CHAPTER

Nashville Area Members recognized in 2021 for Excellence in the field of Dispute Resolution

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 627-9390

Paul DeHOFF (615) 631-9729

Barry L. HOWARD (615) 256-1125

James KAY (615) 742-4800

Mark LeVAN (615) 843-0308

Gayle MALONE, Jr. (615) 651-6700

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Michael RUSSELL (615) 815-0472

Tracy SHAW (615) 921-5204

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Kreis WHITE (615) 309-0400

Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org is free, funded by members

For more information about NADN, please watch the short video at www.NADN.org/about

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

when Gerald McCormick decided not to tion of our parole system is also ongoing. seek reelection. Her sentencing hearing While the state’s economy is still roaring is scheduled for October 17, 2022. She along, the oil price shocks give some stated that she is cooperating fully with budget writers cause for concern. the federal government with respect to other individuals involved in the fraud Local Elections. investigation. Ms. Smith will remain free Candidates for local -offices i on bond until the sentencing hearing. The ing state trial court positions and general offense is a felony punishable by up to sessions court positions as well as disyears 02 confinementandafineofupto trict attorney general are set for the May $250,000. It is unclear whether she will 3, 2022, primary. The early voting period serve time, but she will probably be comis April 13 through 28. We will have some pelled to make restitution for any frauduspicy contested races. Vote!

“Lie down with dogs, and you will get up lent payments received and to forfeit any fleas.” other ill-gotten gains.

Calendar Notes.

March 7 saw the State Senate swear Sausage Grinding.

Beware, not the Dog, but those Subin former State Representative London Modern German founder and Chanversive Librarians.

Lamar after the Shelby County Commiscellor Otto von Bismarck noted that one House Bill 1944, by Representative sion named her as the interim replaceshould never see sausage or legislation Scott Cepicky (R) of Maury County, a ment for the expelled Senator Katrina being made. Our legislative friends are mortgage banker and cattle farmer, reRobinson. Senator Lamar will seek a full grinding a large volume of sausage now moves the present wiggle room in the four year term in the upcoming election as they begin to wind down this year’s statutory exception in the obscenity law cycle. regular session. For example, the Senfor anyone having scientific, educational, Noon on Thursday, April 7, is the ate Commerce and Labor Committee or similar justification qualifying deadlineinfor those seeking had18items on its calendar forgovernmental, its final the material.

In making the change to election to the 113th General Assembly. meeting, but they were slow dogs comthe statute, a librarian would become at The current legislative session is pared the State and Local Government risk of criminal prosecution for housing expected to adjourn in early May, but unCommittee which had 143!

Ulysses, The Catcher in the Rye, or even reasonable optimists are hoping for a late Nineteen Eighty-Four with its mention April adjournment.

Former State Representative Robin of an absolute prohibition of alternative State and NBA offices will obse Smith. thinking which is viewed by the ruling parthe Good Friday holiday on Friday, April Late on Friday afternoon, March 4, ty as “thoughtcrime.”

15, and the Memorial Day holiday on the federal government filed its Criminal Each of the noted books has been found by a court to be Monday, May 30. n Information against State Representaobscene or banned by a local authority. tive Robin Smith (R) of Hamilton County.

The nine page document became public PEGGY SUE is fond of the Crystal Ball. on Monday morning as did her letter of classic 1957 Buddy Holly The 2022 regular legislative session resignation from the House of Represensong. When hunting legislative news or biscuits, she is is expected to run through late April or tatives. Late on Tuesday afternoon she hard to contact. early May. The K-12 education funding pleaded guilty to one count of Honest formula with the new title of Tennessee Services Wire Fraud in violation of 18 Investment in Student Achievement United States Code Sections 1843 and (TISA) still has the attention and focus .Ms. 6481 Smithwasfirstelectedtothe of Governor Bill Lee. Work on criminal State House in 2018 when she ran for the sentencing reform with a possible aboliopening created in the District 26 seat APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

21

Editorial |

Will Pugh

Business Courts from Tennessee to Delaware

Vanderbilt Law School and the lief granted thereafter “is just not going to and (ii) a possibility of irreparable harm Nashville Bar Association recently hostmatter.” if relief is not granted before a sp ed a CLE seminar conducted by Vice Chancellor Martin’s Hines v. Good date. If this standard is met, the entire Chancellor Joseph R. Slights III of the Horse Business Court case (No. 21Delaware court system is prepared to go Delaware Court of Chancery and Chan0737-BC) serves as a prime example. to extreme lengths to meet the parties’ cellor Anne C. Martin of the Chancery There, a complaint and motion for prelimdeadlines. For example, in the 1993 Court of Davidson County. Chancellor inaryinjunctionfiled ( onAugust Paramount )120, v. QVC litigation, a complaint Martin also serves as the Business Court sought guidance that, if not granted bewas filed on October,3192seeking Docket judge by virtue of her appointfore August 31, would potentially scuttle an injunction to stop a transaction. Folment by the Tennessee Supreme Court. an $80 million transaction. Chancellor lowing 31 depositions, the production of The seminar, titled Business Courts from Martin was able to issue her Memoran1 million pages of documents, 400 pages Tennessee to Delaware focused on the dum and Order on August 20 in which of briefing, and an evidentiary heari business court movement. Both judgshemadepreliminaryfactualfindings the Courtand of Chancery issued a 60-page es emphasized that the “business court construed multiple, complex, provisions opinion granting a preliminary injunction model” works and that, where appropriof the Purchase and Sale Agreement. on November 23. Following an expeate, litigators should advise their clients With this guidance, the parties were able dited appeal and hearing, the Delaware to utilize business courts. to resolve their dispute1—meaning that SupremeCourtaffirmedonDecember.9 When asked to define business the real estate development project could This extraordinary pace is intended to encourts, both judges agreed. Business proceed. sure that the Delaware courts can “move courts prioritize exibility, fl speed, Both and the Tennessee Business (continued on page 23) well-written opinions that can be made Court and the Delaware Court of Chanavailable to reduce legal uncertainty in cery have procedural mechanisms for the future. Drawing on the first litigants twotoofinform the court of key deadthese themes, and to quote Vice Chanlines in their disputes soon after the cellor Slights, business cases frequently commencement of proceedings. In Delhave time constraints such that if the aware, parties may file a Motion to Ex parties cannot receive guidance from pedite—which requires a showing of: (i) the court before a specific- date, a colorable any reclaim (a non-frivolous claim)

22

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Editorial |

Business Courts from Tennessee to Delaware (continued from page 22)

Opinions, and Orders are published on Westlaw and LexisNexis. One caveat to this general rule is that oral Bench Rulings issued by the Delaware Court of Chancery are not published but must be individually collected and curated—a practice common tomanyDelawarelawn firms. at the speed of business”—which is a comWILL PUGH is an associate at mon goal shared by all business courts.

Sherrard Roe Voigt Harbison, The Tennessee Business Court Dockwhere he represents clients in 2 a wide range of practice areas et has similar procedures for expedition. including both litigation and Within 30 days of service of a complaint, transactional matters involving apartymayfileaRequestforDesignation, corporate, mergers and acquisitions, commercial provided the case meets certain eligibil- real-estate, and bankruptcy law. He also specializity requirements. Upon designation, the es in complex business disputes and fiduciary duty litigation.

Court “promptly” issues an order setting a conference to enter a Case Litigation Plan Endnotes pursuant to T.R.C.P. 16. Through this Plan, the parties can request—and the Court 1 Drew Hutchinson, “Hines, Martin Management, can order—that the litigation proceeds with Jim Reed Automotive lawsuit over Midtown land deal dismissed,” Nashville Business Journal, sufficientspeedtogiveguidance beforeit January 18, 2022, https://www.bizjournals.com/ becomes moot. nashville/news/2022/01/18/reed-lawsuit-reAccording to both judges, business solved.html courts will frequently be amenable to 2“Guide To The Business Court Docket—Phase case-specific scheduling orders.

- 2,” https://www.tncourts.gov/node/4761374 An ex ample provided by Vice Chancellor Slights 3 Tennessee State Courts, Business Court Deciis that parties may request the option of sions, https://www.tncourts.gov/node/3938267 conducting targeted, expedited discovery to allow for an early Motion for Summary Judgment on a discreet issue—without resolving other significant aspects of the dispute. This could be an efficient option for litigants where the resolution of a single, hard-fought issue might permit more productive mediation opportunities for the larger case.

Finally, both judges stated that one of the important roles of business courts is to make their decisions available so that they can offer guidance to non-parties and reduce legal uncertainty over time. The Tennessee Business Court publishes many of its decisions online,3 and most Delaware Court of Chancery Opinions, Memorandum

DO YOU HAVE AN IDEA FOR A CLE?

The NBA is asking for your help!

We are inviting members to join the CLE Committee for 2022. We ask that committee members attend four to six meetings per year, and contribute to the planning and production of our seminars.

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APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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barBITES |

Joseph Hubbard, Kay Griffin

COD PUTTANESCA Ingredients One (1) loaf ciabatta or French breach 4codfilets,about6oz.each Extra virgin olive oil 2 Tbsp chopped fresh oregano 2 Tbsp chopped fresh basil 3 (or more) cloves garlic, smashed 4to6(ormore)anchovyfilets 28-ounce can San Marzano tomatoes, diced or crushed 1 tablespoon tomato paste ½ cup pitted kalamata olives 2 Tbsp capers Pinchredpepperflakes(optional)

Directions Preheat oven to 400 degrees. Slice ciabatta into four (4) 1-inch thick slices (or, slice French bread lengthwise and cut into 4-inches wide pieces). Drizzle lightly with olive oil and sprinkle with oregano and basil. Bake for 15 minutes or until golden brown.

While bread is baking, heat two (2) tablespoons extra virgin olive oil in ovenproof skillet (12-inches or bigger) over medium heat. Add garlic, anchovies, and red pepper and cook about two minutes, until anchovies break down. Don’t let garlic or red pepper burn. Then, add one (1) tablespoon tomato paste and stir until dissolved, one to two minutes.

Add can of tomatoes (undrained) along with olives, capers, and ½ cup water. Cook until simmering, 3 to 4 minutes.

Remove bread from oven. Season cod with kosher salt and fresh cracked pepper and arrange on top of sauce in skillet.Transferskillettoovenandbakeuntilfishiscooked,8to10minute Afterfishiscooked,placeslicesofbreadintofourTop (4)shallow withfish pasta andsauce. bowls.Enjoy!

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Feature Story |

Thinking About Mary Northern (continued from page 14)

conservator appointed. vested in a conservator. Again, although dementia/index.html 7 What interests of the client must we we should take into account our client’s 8 Id. Id. consider if we are required under Rule wishes and his or her decision-making 9 Alzheimer’s Association, 2020 Alzheimer’s dis1.14 to consider “best interests”? At the autonomy, we also have a duty to use our ease facts and figures own judgment as to the best interests of 10 Id. least,weshouldconsiderfinancial, social, 11 our client.

State Dep’t of Human Services v. Northern, medical, and spiritual interests.

563 S.W.2d 197.

In all of these situations, where our Objecting to the Physician’s Report 12 Tenn.

Code Ann. § 34-3-102. as hearsay without a good reason com- determination of the best interests of our 13 Id. §34-1-108, 34-1-126. demented client differs from what he or 14 promises the client’s financial interests, Id. §34-3-107. she wants, we have a duty to explain ev- 15 Id. §34-1-128. simply costing money for the hours spent by the doctor, the lawyers, and the court erything. In the words of Rule 1.14, we 16 Id. §34-1-107. reporter in taking a deposition. There have a duty “as far as reasonably pos- 17 Id. §34-1-125(a).

18 Id. §34-3-106(5). are other ways to over-litigate cases, of sible, to maintain a normal client-lawyer 19 Id. relationship with the client.” course.

20 In conclusion, the appointment or re- 21 Id. . §34-1-132.

We may also need to advocate as to Id. the choice of a conservator. The priority tention of a lawyer to represent a client in 22 Id. 23 a difficult bal - is of persons to be appointed is governed a conservatorship action Id. 24 ancing act.

But our job is more than simply Id. §34-3-105(a).

by Tennessee Code Annotated Section 25 34-3-103, which sets out persons chosen advocating for whatever a demented per- 26 Id. Id. in writing by the respondent, the spouse, son says that he or she wants. We have a 27 Id. §34-3-105(c). any child, the closest living relative or rel- duty to advise and inform and, in appropri- 28 Id.§34-1-126. atives, a district public guardian, and other ate cases, to resist requests by our clients 29 Id. 30 In re Conservatorship of Groves, 109 S.W.3d person or persons. Appointment in that that will impair their own best interests. n order, however, is “[s]ubject to the court’s BARBARA MOSS is a the determination of what is in the best interfounder of Elder Law of Nashests of the person with a disability.”41 ville, has been practicing law in Nashville for more than 30 The statute and our own common years. She started out as a trisense, then, indicate that our client’s best al lawyer and now focuses her interests may be affected by the selection practice on elder law, conservatorships, probate, of the conservator. A client with dementia, estate planning, Medicare and Medicaid. might, for example, want a child who has a history of stealing money to serve as con- Endnotes servator.Otherinterests1besides financial The Nashville Bar Association, as a part of the may also be compromised in the selection wonderful continuing education series produced of a conservator. As examples, I would its Historical Committee, presented The Case of not advocate for a child with religious ob- Mary Northern on October 16, 2019. (Hereinafter, Mary Northern CLE) All who read this article jections to medical treatment or the child are encouraged to watch! who opposes the client’s religious choic- 2 Mary Northern CLE; State Dep’t of Human Seres to be the conservator of the person. vices v. Northern, 563 S.W.2d 197 (Tenn. App. 1978) cert. denied.

I would not advocate for the child who 3 State Dep’t of Human Services, 563 S.W.2d at opposes his parent’s same sex marriage 207. to have the right to determine visitation.42 4 Id. 5 Id. at 215; State Dep’t of Human Services, 575 Finally, we might be called to adS.W.2d 946 vocate in connection with which rights 6 Centers for Disease Control and Prevention should be taken away from our clients and (“CDC”), available at https://www.cdc.gov/aging/

317, 331 (Tenn. App. 2003).

31 In re Conservatorship of Groves, at 333. With regard to legal standards of capacity for specific tasks, the author recommends: American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities (2d Ed. 2021) 32 In re Conservatorship of Groves, at 334.

33 Id. §34-3-105(c).

34 In re: Tennessee Rules of Professional Conduct, filed September 17, 2002, No. M200002416-SC-RL-RL 35 Tenn. Sup. Ct. R. 8, RPC 1.14.

36 Id. Comment (5) 37 Id. 38 On a personal note, I plan to be onery and demented someday.

39 American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities, p 1 (2d Ed. 2021) 40 Tenn. Code Ann. § 34-3-105(a).

41 Id. §34-3-103.

42 Although the Campbell Falk Act should limit a conservator’s ability to restrict visitation in such a case. Tenn. Code Ann. § § 34-3-107(c).

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

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Hearsay | Honors & Awards, On the Move, Firm News HONORS & A WARDS

and professionalism of its members as General Assembly on March 2nd, Holt they pursue the course of a balanced will serve a five-year term.

Bradley Arant Boult Cummings justice system and represent those ON TH E M O V E LLP is pleased to announce that in need of a defense in civil lawsuits. the firm’s Government Contracts Starnes Davis Florie Practice Group was named among The YWCA of NashLLP welcomes Law360’s 2021 Practice Groups of the ville & Middle Tennew associate, NiYear. Bradley is one of only six firms nessee hosted its cole Poole to the in the nation to receive this honor.

30th Anniversary firm’s Nashville of the Academy for office.

Poole’s Dickinson Wright PLLC is pleased to Women of Achievepractice will include professional liaannounce that it has received a score ment (AWA) this week. Among those bility, medical malpractice, and longof 100 on the Human Rights Campaign honored was DarKenya Waller, exterm care & nursing home litigation.

Foundation’s 2022 Corporate Equality ecutive director, Legal Aid Society Index, the nation’s foremost benchof Middle Tennessee & the CumberRainey, Kizer, Remarking survey and report measuring lands and former NBA Board Member. viere & Bell, PLC is corporate policies and practices repleased to announce lated to LGBTQ+ workplace equality.

Charles W. (Chuck) new Partner BranDickinson Wright’s efforts in satisfying Cagle, shareholder don J. Stout. Stout all of the CEI’s criteria also earn the and chair of Educais a member of the Firm the designation as one of the Best tion Law and Govfirm’s Malpractice Practice Gro Places to Work for LGBTQ+ Equaliernment Relations where he represents physicians, denty. The ratings criteria is rigorous and Practice Group in nurses, hospitals, and clinics in specific, providing businesses Lewiswith Thomason’s Nashvilletists, office, medical malpractice litigation. Brana transparent set of metrics and best has been appointed a member of don also has experience representing practices that improve the experiencthe Tennessee Baptist Convention health care providers before the Tenes of LGBTQ+ employees across in(TBC) Sexual Abuse Task Force. Canessee Board of Medical Examiners dustries. Only 13 companies achieved gle oversees the firm’s representation during investigations conducted by the a 10 score on the first CEI in 20 . of over 70 public boards of educaTennessee Department of Health Oftion, two private schools, two private fice of Investigations.

Mary Beth White, universities, and a private medical shareholder and school in a variety of legal matters.

The Galaher Law chair of the TransFirm is proud to portation Practice Sherrard Roe Voigt announce that JesGroup in Lewis & Harbison is proud sica Prater has Thomason’s Nashto announce that been named as an ville office, has been inducted into themember Ryan Holt Associate AttorFederation of Defense & Corporate has been appointed ney to their law offices in Frank Counsel (“FDCC”). The FDCC is an the Fifth CongressioTennessee. Prater joins the fi invitation-only trade association comnal District representative on the TenLitigation section where she will pracposed of recognized leaders in the nessee State Board of Education, Tentice civil and commercial litigation in legal community who have achieved nessee’s K-12 education policymaking the areas of business torts, breach professional distinction and is dedicatbody. Selected by Governor Lee in of contract claims and real estate. ed to promoting knowledge, fellowship, February 20 and confirmed by the

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Hearsay | Honors & Awards, On the Move, Firm News -

Lewis

Thomason, P.C.

-

M. Clark Spoden

-

-

-

Liz Washko -

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Byron Trauger

Doug Sloan Jon Cooper Quan Poole -

amond Stewart

Di-

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F I RM NEWS

Matt Harris Rick Pensing -

er Christian Schütz

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Patten

Lauren

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Bradley Arant Boult Cummings LLP

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Hearsay | Honors & Awards, On the Move, Firm News member of the firm’s Complex Com mercial Litigation and Disputes group.

Mark Your Calendar

Bradley Arant Boult Cummings LLP is pleased to announce that nine attorneys have joined the firm’s office in Nashville.

Myles W. Chaney, Matthew C. Copeland, Aaron M. Johnson, Benjamin A. Johnson, Josh Kleppin, Sophie Lange, Mary-Kathryn (“MK”) McKinney, Caroline C. Waters, and Luke R. Yordy. n

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