Nashville Bar Journal | August/September 2018 by Nashville Bar Association

JOURNAL Journal Journal

AUGUST/SEPTEMBER 2018 | VOLUME 18 | NO. 4

FEATURE

Addressing the Opioid Epidemic in Our School Systems

ALSO

Data Privacy vs. Data Use: Facebook Edition The Education Records as Evidence Act Membership 101 & More!

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $255 value) for one year. We have several great checking options you can choose – each available with the convenience of free Banking Online and Mobile Banking. Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

*Terms and Conditions: Offer valid April 1, 2018 - April 1, 2019. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum

opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $255 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by April 30, 2019. FSR: Use promo code NBADUE.

JOURNAL 6 Journal Journal AUGUST/SEPTEMBER 2018 | VOLUME 18 | NO. 4

FE ATU R E

Addressing the Opioid Epidemic Brad Sayles & Kelly L. Frey

DEPA R TM E N TS

From the President

Calendar of Events

11 Back to School:

Sean J. Martin

Erin Palmer Polly

Hear Ye, Hear Ye

2019 Board Elections Annual Member Picnic Brews for Backpacks Golf Tournament Karaoke Happy Hour Membership Renewals Tune Awards

17 Member Updates 30 Photo Gallery 32 Hearsay 34 100% Club 38 CLE Schedule

Data Privacy vs. Data Use, Facebook Edition

The Education Records as Evidence Act 25 Chuck W. Cagle Membership 101 29 Wendy Longmire Boosting Diversity Through Mentorship 31 Jennifer Robinson CO L UMNS

Background Check 13 Bart Pickett Gadget of the Month 15 Bill Ramsey & Phillip Hampton Capitol Notes 27 Peggy Sue, the Beagle Hound AUG/SEP 2018 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL FROM THE PRESIDENT Diversity & Inclusion | Erin Palmer Polly Journal At first glance, one might believe that the NashJournal ville legal community is at the forefront with respect to

ERIN PALMER POLLY, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE HUDSON, Managing Editor

JILL PRESLEY, Marketing & Communications Director

EDITORIAL COMMITTEE NOEL BAGWELL JERRY BRIDENBAUGH KIMBERLY FAYE TIM ISHII KELLY FREY ROB MARTIN EVERETTE PARRISH BART PICKETT LAUREN POOLE MIKE SANDLER KRISTIN THOMAS JONATHAN WARDLE ELEANOR WETZEL NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, 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 1050 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. The NBA—with over 2,600 members—is the largest metropolitan bar association in Tennessee.

diversity and inclusivity and is immune to the issues that plague so many others. For example, some of our largest law firms have women at the helm as their managing partners. Female lawyers recently were selected to lead the Legal Aid Society and the Public Defender’s Office. Our chief judge in the Middle District of Tennessee is an African American lawyer, and we recently elected several lawyers to the Davidson county bench that come from culturally diverse backgrounds. Women currently serve as presidents of all five of our local bar associations, and two diverse lawyers have led the Nashville Bar Association in the last five years. While this is impressive, the national numbers highlight a starker reality.

● A 2017 report released by the National Association for Law Placement, Inc. found that women account for 35% of law firm lawyers and 23% of partners and that diverse lawyers account for 15% of law firm lawyers and 8% of partners. ● A 2018 study conducted by the U.S. Census Bureau found that female lawyers earn 78% of what their male counterparts do; while a 2016 survey that was performed by the legal search firm Major, Lindsey & Africa found that in large law firms, female lawyers earn 56% of what their male counterparts do. ● A 2016 survey performed by the Minority Corporate Counsel Association found that 9% of Fortune 500 companies selected female and/or minority lawyers to lead their legal departments. ● A 2017 report released by the Congressional Research Service found that 35% of active U.S. circuit court judges were women, 13% were African American, 9% were Hispanic, and 3% were Asian American. These numbers provide a disheartening dose of reality. Thankfully, however, we have the ability to improve the situation. While organizational engagement and planning are critical, I want to focus on what you as individuals can do to make a meaningful difference. First, actively recruit diverse lawyers to your workplace—for example, through the Nashville Bar Association’s Damali Booker 1L Minority Job Fair. Second, recognize that while getting these lawyers in the door is important, assigning work and providing opportunities in equal measure is even more important. Give them genuine opportunities to succeed. Third, mentor and champion diverse lawyers. You do not have to have the same background, gender, or skin tone of those you mentor. Over the last 16 years, many of my mentors have been men—Joe Welborn chief among them, and my law practice and my life have been enriched by working alongside them. Fourth, recognize and refuse to accept unconscious bias. And, finally, challenge others around you to do the same—to recruit, mentor, and champion diverse lawyers. Improving diversity and inclusivity in the Nashville legal community requires the collective effort of all of our lawyers. What will your contribution be? And, more importantly, who will you champion? n —

NASHVILLE BAR JOURNAL | AUG/SEP 2018

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

AUGUST 2018 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

2020 Diversity Summit | 12:00pm

Middle TN Paralegal Association Mtg 11:30am

Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBA Board Meeting | 4:00pm

YLD Board Mtg | 12:00pm | Waller

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

LAW Board Mtg | 11:30am

9 CLE Committee Mtg | 11:30am

Memorial Committee Mtg | 12:00pm

NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell Brews for Backpacks 5:30pm | Craft Brewed

10 Collegiality Coffee | 10:30am Historic Courthouse (Jury Assembly Room)

15 NBA Happy Hour: Karaoke Edition 5:30pm | Alley Taps

21 Napier-Looby Mtg | 12:00pm

Leadership Forum Steering Committee Mtg | 4:00pm

NBF Trustees Mtg | 12:00pm

14 Ethics Committee Mtg | 12:00pm

SEPTEMBER 2018 M O N D AY

Leadership Forum Steering Committee Mtg | 4:00pm

T U E S D AY

W E D N E S D AY

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

T H U R S D AY

Leadership Forum Mentor Orientation | 4:00pm

LABOR DAY

F R I D AY Middle TN Paralegal Association Mtg 11:30am

Diversity Committee Mtg | 12:00pm

Holiday | NBA Offices Closed

10 Probate Committee Mtg | 11:30am

4 LAW Board Mtg | 11:30am

Ethics Committee Mtg | 12:00pm

Memorial Committee Mtg | 12:00pm

Leadership Forum Steering Committee Mtg | 4:00pm

Napier-Looby Mtg | 12:00pm

Leadership Forum Opening Day 10:00am NBA Annual Free Member Picnic 5:30pm | Walk of Fame Park

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

2018 NBA BOARD OF DIRECTORS ERIN PALMER POLLY, President

Hear Ye, Hear Ye | Events of Interest 2019 Membership Renewals

It’s time to renew your membership! The 2018 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!) or by contacting Vicki at Vicki.Shoulders@nashvillebar. org or 615-242-9272. If your firm is part of Firm Billing with the NBA, please check with your administrator before renewing online. Thank you for your continued support and membership. We appreciate you! n

LAURA SMITH, President-Elect

ROBERT C. BIGELOW, First Vice President

MARGARET M. HUFF, Second Vice President MARY TAYLOR GALLAGHER, Secretary JEFF GIBSON, Treasurer MALAKA WATSON, Assistant Treasurer TERA RICA MURDOCK, YLD President LELA HOLLABAUGH, General Counsel NATHAN H. RIDLEY, Immediate Past President JACQUELINE B. DIXON, First Vice President-Elect WENDY LONGMIRE, Second Vice President-Elect MICHAEL ABELOW LAURA B. BAKER DANIEL P. BEREXA MARK S. BEVERIDGE HON. SHEILA D. CALLOWAY BRIGID CARPENTER SAMUEL P. FUNK LYNNE T. INGRAM TRACY DRY KANE HON. WILLIAM C. KOCH, JR. RYAN D. LEVY

Annual Golf Tournament: Rain Date Presented by the Nashville Bar Association & the Nashville Bar Foundation Due to inclement weather (again!), the Annual Golf Tournament has been rescheduled for Tuesday, October 16, at Vanderbilt Legends Club in Franklin, Tennessee. If you want to play a round in gorgeous autumn weather, now is your chance! We are accepting registrations and sponsorships through Tuesday, October 9. For more information, visit NashvilleBar.org/GolfTournament. Range balls will be available at 12:00pm, followed by a shotgun start at 1:00pm. The entry fee—$160 for NBA members and $180 for non-members — includes range balls, greens fee, cart, beverages, snacks, and dinner. n

CHANCELLOR ELLEN HOBBS LYLE W. BRANTLEY PHILLIPS, JR. DAVID L. RAYBIN ERIC W. SMITH DARKENYA W. WALLER CHANCELLOR BILL YOUNG STEPHEN J. ZRALEK

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator JAN MARGARET CRAIG, CLE Director TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director VICKI SHOULDERS, Membership Coordinator, Office Manager MARIEL ZELHART, CLE Coordinator

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.

Tune Award Nominations

We are now seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Wednesday, December 5, at Music City Center. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. To submit your nomination, email Traci.Hollandsworth@nashvillebar.org no later than Friday, October 19, expressing why you believe your nominee is deserving of this prestigious award. Visit NashvilleBar.org/Awards for more information. n

NASHVILLE BAR JOURNAL |AUG/SEP 2018

6th Annual YLD Brews for Backpacks

Presented by the NBA Young Lawyers Division, this is a great back to school opportunity to help students in need. On Thursday, August 16, from 5:30 to 7:30 at Craft Brewed in Melrose, swing by and have a pint on us! For every new or lightly used backpack and any school supplies you donate, you will receive free pint of Bearded Iris beer! This highly anticipated annual event benefits Middle Tennessee’s children in foster care with the Department of Children’s Services. Visit NashvilleBar. org/BrewsForBackpacks to RSVP. n

2019 Board of Directors Election

Members of the NBA will be electing six new Directors to serve on the Board for a four-year term commencing January 1, 2019. If you are an active member of the NBA and are interested in being considered for Board service, please contact Monica.Mackie@nashvillebar. org to submit your name. All names must be submitted for consideration by Friday, August 17. The election will take place in November, and all members whose 2019 membership dues are received no later than Wednesday, October 31, will be eligible to vote. n

NBA Happy Hour: Karaoke Edition

In Music City, it seems like everybody has talent—even NBA members. If your dream is to be the next American Idol, make plans to attend this one-ofa-kind evening of karaoke at our August happy hour. The event will be held on Wednesday, August 22, at Alley Taps in Printer’s Alley. Additionally, the NBA and RayNa Corp (RayNaCorp.com) are giving away two tickets (to be awarded separately*—an $849 value!) to the Clio Cloud Conference—held on October 4-5—in New Orleans. To enter the drawing, all you have to do is RSVP to the happy hour! You must be a current NBA member and present to win. You will receive one additional entry upon arrival to Alley Taps. The drawing will be held at 6:45pm on August 22. n

2018 Annual Member Picnic (It’s Free!)

The 21st Annual FREE Member Picnic will be held on Thursday, September 27, from 5:30-8:30pm at Walk of Fame Park—located downtown across from the Country Music Hall of Fame. This event is co-sponsored by the Metro Law Department. Family-friendly, casual environment, a delicious BBQ dinner, friends and attorneys galore, music, and an open bar stocked full of local beers and wine. Sounds like fun, doesn’t it? We’re also offering Lyft discount codes so you don’t have to worry about parking downtown (see Travel and Accomodations section on the event page online). For sponsorship and registration information, visit Nashville Bar. org/MemberPicnic or email Traci. Hollandsworth@nashvillebar.org. We look forward to seeing you there! n

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Feature Story | Brad Sayles & Kelly L. Frey

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Addressing the Opioid Epidemic in Our School Systems Over the last decade, our country has rapidly slipped into an unprecedented epidemic. Opioid related overdose deaths have more than quadrupled, leading President Donald Trump on October 26, 2017, to declare the opioid epidemic a national public health emergency. This national public health emergency has taken its toll in Tennessee. In 2016 alone, 1,186 Tennesseans died from opioid overdoses, an average of more than three deaths a day.1 While there are many factors contributing to this alarming increase in use of and deaths from opioids, at least part of the problem lies in the over-prescribing of opioids by healthcare providers to manage pain. In 2013, healthcare providers wrote nearly a quarter of a billion opioid prescriptions—enough for every American adult to have their own bottle of pills.2 Among all states, Tennessee ranks third in opioid prescribing rates, trailing only Alabama and Arkansas.3 As the epidemic continues to devastate Tennessee communities, one of the places feeling this impact is our school systems, both in the devastating toll it has taken on families and in the use of opioid drugs by students themselves. Drug overdoses are now the leading cause of death among Americans under the age of 50,4 with shocking headlines of parents overdosing while children are present.5 Tennessee has seen a 50% increase in the number of parents permanently losing parental rights and “the state’s opioid addiction epidemic is the key driver” in this increase.6 Often school counselors are the first contact for these children, but the treatment necessary for such children often extend

beyond what counselors and the school systems are able to provide. In 2016, Tennessee adopted the Prescription Safety Act, which enhanced the Controlled Substance Monitoring Database Program (CSMD).7 The CSMD tracks the dispensing of opioids to patients, and healthcare practitioners are required to check the database prior to issuing a prescription for opioids. In March of 2017, TCA. § 49-6-303 was amended to permit school counselors to refer students to a counselor or therapist outside of the school for mental health assessments or services. This change gives counselors another tool to meet the needs of these children; however, the costs for the referred services fall on the child’s family, which may not have the resources or capability to follow through (especially if the family is uninsured or underinsured). In addition to the effects on children of family opioid abuse, actual opioid use has increased among school-aged children. A 2017 survey of Knox County schools indicated that one in eight students had misused pain medication and 23% reported they had been offered, sold, or given an illicit substance on school property.8 Metro Nashville Public Schools (MNPS) have noticed similar trends. Dr. Tony Majors, the MNPS Executive Officer for Students Services, has stated, “the school system is seeing more opioid use in line with the national opioid epidemic.”9 According to the Tennessee Department of Mental Health and Substance Abuse Services, 33,325 students used opioids non-medically in 2016.10 (continued on page 8) (continued on page 00)

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Feature Story | Addressing the Opioid Epidemic... One approach to addressing the tragic overdose numbers is providing greater access to opioid antagonists, such as Narcan (or other drugs that immediately reverse the physiological effects of an overdose). The need for broader access to these lifesaving drugs has now reached our school systems. In 2017, Tennessee became one of six states allowing schools to have the drug on site and to administer it to students they suspect are suffering from an opioid overdose.11 Despite overwhelming support for this initiative, only a handful of schools have started carrying the drug (partially due to the drug’s steep $140 price tag and partially due to its limited 18-month shelf life—a sad trade-off of economics over the lives saved by the drugs).12 MNPS, however, are among those that have made the drug available to school nurses. In addition to treating overdoses, equally important is educating students about the risks of addiction and treating those students at risk for or suffering from substance abuse disorder. A national longitudinal study of high school students found that “opioid use before high school graduation was shown to be independently associated with a 33% increase in the risk of future opioid misuse after high school.”13 In January of this year, Gov. Bill Haslam unveiled an extensive plan to further combat the opioid epidemic in Tennessee, which includes increases to prevention education for elementary and secondary schools through revisions to the state’s health education academic standards. Governor Haslam also supported and signed into law bills placing greater limitations on the prescribing of 8

opioids, creating a pilot juvenile drug court system, and establishing recovery high schools to serve teens struggling with substance abuse (based upon studies indicating that recovery high schools have significant effects on students maintaining sobriety and curb school absenteeism).14 However, since 2014, Ridgecrest Academy in Nashville has operated as the state’s only recovery high school.15 But, Ridgecrest has struggled due to the high costs of operating such programs. New laws, codified at TCA § 496-4, allow local boards of education to establish the recovery high schools, which would receive state and local funding for operation per student just as any other public school. Whether this new funding—which is less than $9,000 per student—will spur local education boards to create recovery high schools has yet to be seen. The estimated cost to establish a recovery high school is more than $100,000, or if a new building is constructed, more than $1.3 million.16 As we wait on more educational centers with these expanded capabilities, schools continue to come up with other options for students struggling from substance abuse. For example, the MNPS “First Time Offenders” program allows students who violated school drug policies to avoid expulsion if they attend drug education classes (with their parent or guardian) and undergo subsequent drug testing to ensure they are maintaining sobriety.17 While we struggle to find solutions to the underlying problems and conditions that result in and foster opioid abuse, we continue to put support

NASHVILLE BAR JOURNAL | AUG/SEP 2018

(continued from page 7)

systems in place to ameliorate the inevitable lethal results of this epidemic (specifically in our school systems). Some suggest that we are treating the symptoms, rather than the causes, of this epidemic with such support systems. But, a core tenant of medical triage is “keeping the patient alive” (long enough to cure him/her)—and that is where we find ourselves with this epidemic, triage. There are no quick (or cheap) fixes, and more changes to our laws and support systems are needed if we are to adequately protect those who are least able to protect themselves—the children in our Tennessee school system. n Endnotes Tennessee Department of Health, Drug Overdose Dashboard, TN.gov/health/health-pro1

gram-areas/pdo/pdo/data-dashboard.html.

CDC, Prescription Opioids, (last updated Aug. 29, 2017), CDC.gov/drugoverdose/opioids/prescribed.html.

CDC, U.S. State Prescribing Rates, 2016 (July 31, 2017), CDC.gov/drugoverdose/maps/ rxstate2016.html.

4 Josh Katz, Drug Deaths in America Are Rising Faster Than Ever, N.Y. Times, June 5, 2017, available at NYTimes.com/interactive/2017/06/05/upshot/opioid-epidemic-drugoverdose-deaths-are-rising-faster-than-ever. html. 5 See e.g., Anne Woolsey & A.J. Willingham, A mom apparently overdoses next to her child and why police want you to watch, CNN (Sept. 23, 2016), CNN.com/2016/09/23/health/heroin-overdose-video-massachusetts-trnd/index. html.

Anita Wadhwani, Tennessee parents lose kids as opioid crisis rages on, The Tennessean, Nov. 26, 2016, available at Tennessean.com/ get-access/?return=https%3A%2F%2Fwww. tennessean.com%2Fstory%2Fnews%2Finvestigations%2F2016%2F11%2F26%2Fnas-lo ss-parental-rights%2F94231538%2F. 6

7 The Tennessee Prescription Safety Act of 2016, Tenn. Pub. Acts, ch. 1002 (2016). 8 Erin Barnet, Dealing with drug culture in East Tennessee Schools, WATE (Feb. 22, (continued on page 14)

Connecting Talent with Opportunity NBA Career Center Whether you’re a Job Seeker searching for Career Resources or an Employer looking to Search Resumes for your next all-star team member, the NBA Career Center has everything you need!

§ EMPLOYERS

JOB SEEKERS

• Post your job in front of the most qualified group of legal professionals in the industry.

• Search and apply to more legal jobs than in any other job bank.

• Promote your jobs directly to candidates via the exclusive Job Flash email.

• Upload your anonymous resume and allow employers to contact you through our Career Center’s messaging system.

• Search the anonymous resume database to find qualified candidates. • Manage your posted jobs and applicant activity easily on this user-friendly site.

• Access career resources and job searching tips and tools. • Have your resume critiqued by a resume expert.

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 2,600 members—is the largest metropolitan bar association in Tennessee.

150 4th Ave N, Ste 1050 • Nashville, TN 615-242-9272

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

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.

JUN/JUL GOLDEN OLDIES

No one was able to correctly identify the individuals in the June/July photo. From left to right: Bob Brandt, Gareth Aden, Steve Baker, and Barrett Sutton.

Community Relations + Diversity Committees =

The Oasis Snack Pack Drive! In June, the NBA Diversity Committee’s high school interns—along with the Community Relations Committee—partnered with Oasis Center to provide Snack Packs to teens who are experiencing homelessness.

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Editorial | Sean J. Martin

Back to School: Data Privacy vs. Data Use, Facebook Edition Mark Zuckerberg’s testimony before both the House and Senate, in the wake of the Cambridge Analytica scandal, demonstrates what many already suspected: Mark Zuckerberg outsmarted those who questioned him. It also proved that Zuckerberg understands the nuances of the data privacy and use issues far better than those who seek to regulate them. At 34 years old, Zuckerberg is several decades younger than the senators who questioned him. He grew up and played a major role in creating the world we now live in—a society where our thoughts, actions, memories, and photos can be publicly posted on the worldwide bulletin board that is social media. Privacy to Zuckerberg, and many others of his generation, is viewed as a choice. These hearings exposed—what appears to be—a generational gap in opinions on privacy and sharing. The disconnect was best illustrated by the exchange between Zuckerberg and Senator Dick Durbin below: Sen. Dick Durbin (DD): Mr. Zuckerberg, would you be comfortable telling us the name of the hotel you stayed in last night?

Mark Zuckerberg (MZ): Uhh, no. DD: If you’ve messaged anybody this week, would you share with us the names of the people you’ve messaged? MZ: Senator, no, I would probably not choose to do that publicly here. DD: That might be what this is all about. Your right to privacy, the limits of your right to privacy, and how much you give away in the name of quote “connecting people around the world.” Senator Durbin effectively proved his point: Americans have an expectation that their personal, private information should be kept private. However, Senator Durbin missed the real issue—whether publicly-shared data can be used by third parties, and if so, how and to what extent is it used? In a separate round of questioning, Senator Durbin unwittingly sets Zuckerberg up to drive home the choice to share: (continued on page 12)

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Editorial | Data Privacy vs. Data Use DD: The question basically is what information Facebook is collecting, who they’re sending it to, and whether they ever asked me in advance my permission to do that. Is that a fair thing for a user to expect? Z: Yes, Senator, I think everyone should have control over how their information is used. And that happens every day when people come to our services and choose to share photos or send messages. Every single time they share something, they have a control right there over who they want to share it with. Zuckerberg’s response shifts the focus from how Facebook uses your data to what users choose to post. In focusing on data privacy rather than data use, Senator Durbin missed the point entirely. Outside the congressional hearings, the Supreme Court has weighed in on privacy and sharing data, specifically, on sharing “passive” data like that shared in GPS services.

(continued from page 11)

In Carpenter v. United States, the issue was whether the government has the right to access data passively shared with a third-party cell service provider without a warrant.1 On June 22, 2018, the Supreme Court, in a 5-4 ruling, said it does not. But what about when the government is not involved? Do we have an expectation of privacy with respect to publicly-shared data? Probably not. However, privacy and publicly-shared data is only one part of the issue. Passive use of private data is another. Most know social media and Internet websites use our data to target persons for products and services. Some find the phenomena useful while others find it creepy. Regardless, it is perfectly legal (for now). Later in his Senate testimony, Zuckerburg explains how Facebook uses passive data: There is a very common misconception that we sell data to advertisers, and we do not sell data to advertisers. What we do is, we allow

Valuation, litigation, forensic and mediation support services require an independent and objective assessment. Price CPAs has assisted in cases involving these services. THESE SERVICES INCLUDE:

• Minority shareholder disputes • Valuations • Wrongful Death/Personal Injury • Divorce (equitable distribution) • Comingling & Transmutation • Business damage assessment and determination • Solvency analysis and fraudulent conveyance • Litigation consulting services.

THESE SERVICES ARE LED BY THE FOLLOWING PROFESSIONALS:

• Tom Price, CPA/ABV/CFF, CVA • Alan Webb, CPA • Mark Fly, CPA, ABV • Brett Henry, CPA, MBA • Gary Pounders, CPA, CFE CONTACT US TODAY TO DISCUSS HOW WE MIGHT BE OF SERVICE TO YOU.

3825 BEDFORD AVE | STE 202 | NASHVILLE, TN 37215

615.385.0686 | w w w. p r i c e c p a s . c o m

NASHVILLE BAR JOURNAL | AUG/SEP 2018

advertisers to tell us who they want to reach, and then we do the placement. So, if an advertiser comes to us and says, ‘All right, I am a ski shop and I want to sell skis to women,’ then we might have some sense, because people shared skiing-related content, or said they were interested in that, they shared whether they’re a woman, and then we can show the ads to the right people without that data ever changing hands and going to the advertiser. If Facebook is already keeping our data private, then the question is whether consumers have a right to know what is being done with their publicly-shared data. Claiming publicly-shared data should be kept private feels hypocritical. Having a stake in how your data is used and who shares it, by contrast, appears reasonable and consistent. Regardless, it is clear Congress will attempt to regulate third party data use. Whether such attempts will be marketed as legislation concerning privacy rights, consumer rights, electoral integrity, or national security remains to be seen. In the meantime, the responsibility for protecting our data is in our hands. n Endnotes Carpenter v. U.S., 138 S.CT. 2206 (June 22, 2018). 1

SEAN J. MARTIN is a partner at Martin Heller Potempa & Sheppard, PLLC in Nashville, practicing both family law and personal injury. He likes going to court and mustard, and is also a big fan of technology. He believes that lawyers must take advantage of available #legaltech solutions in order to stay competitive. Sean will happily show you how it can improve your practice. Just ask him!

BACKGROUND CHECK

Dean William (Bill) Koch | Bart Pickett

William (Bill) Koch, the dean of Nashville School of Law (NSL), has traveled an interesting path to his current role. His grandfather and father migrated to Hawaii in the early 1900s, and he was born there before it became a state. His family lived on Oahu, but he attended boarding school on the Big Island. (Some of his classmates remain his closest friends. The “boys” all returned to the Hawaii last November to celebrate a joint 70th birthday.) Bill left Hawaii in 1965 and headed to Trinity College in Connecticut with plans to get his education and return to the Islands. But an unexpected introduction to the works of an American writer and Nobel Prize laureate changed all that. Koch completed all of his requirements for his English major by the end of his third year. The college let him personally design his fourthyear curriculum. He decided to read everything by Faulkner and became captivated by “the South.” Desiring to see the South of Faulkner’s narratives, Bill applied to all law schools south of the Mason-Dixon line. He was accepted at Vanderbilt University Law School and came to Nashville in 1969, where he met Tennessee Attorney General David Pack. He began working as a law clerk and remained

with General Pack throughout law school. After graduation, Bill accepted a clerkship with a federal judge in West Virginia. In a strange twist of fate, the judge died before the clerkship began, opening the way for Bill to return to General Pack’s AG office. So, in 1972, young lawyer Bill accepted a job as an assistant attorney general, got a Tennessee driver’s license, and officially considered himself a Tennessee resident. It was during his tenure at the AG’s office that he first met Lamar Alexander with whom he shared several cases. When Alexander won his 1978 gubernatorial bid, he offered Bill a job as the governor’s legal advisor. As one of six senior deputy attorneys general for the state, Bill had the unique assignment of being part of the legal team charged with finding a justification for removing Governor Ray Blanton from office and swearing in Governor-Elect Alexander early. Their story is told in the book Coup by former Tennessean editor Keel Hunt. Bill then transitioned to his role as Commissioner of Personnel. In 1981, Governor Alexander selected him to serve as counsel to the governor, a position he held until his 1984 appointment to the Court of Appeals. At the ripe age of 37, Bill took his seat on the Court of Appeals. He served in that role until Governor Bredesen appointed him to the Supreme Court in 2007. He never imagined leaving the judiciary, but less than a decade later, the NSL search committee came calling and Bill was appointed dean of the school in July 2014. (He left the Supreme Court on a Friday and began his first private sector job on a Monday.)

Bill began his teaching career at NSL in 1997, as an adjunct constitutional law professor. The passion and work ethic exhibited by the students at NSL had a positive impact on him. As his wife Debby observed, “When you [Bill] talk about that school, you act differently.” When asked if he misses the judiciary, Bill responds that he doesn’t view his career by looking backwards. He loved his 30 years on the bench, but that portion of his legal career has ended. Bill met Debby the night Alexander was sworn in early as governor in 1979. She served as the governor’s press secretary. The couple married in 1985 and live in the Hillsboro-Belmont area with their two cats. The couple enjoys traveling, especially to Hawaii. Bill stays active in the non-legal community serving on the boards of the United Way, Cumberland University, Nashville Conflict Resolution Center, and The Community Foundation. Perhaps one of his lasting accomplishments has been helping with the creation of two local Inns of Court and many around the state. This July, he ascended to the role as president of the American Inns of Court for a two-year term (see page 36 for details). 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.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Feature Story | Addressing the Opioid Epidemic... 2018), available at Wate.com/news/local-news/ dealing-with-drug-culture-in-east-tennesseeschools/986940588. 9 Julie Edwards, ‘One of the biggest challenges,’ says Metro Schools exec on teens and drugs, WKRN (Sept. 28, 2017), available at WKRN. com/news/julie-drugs-in-metro/1057463178.

Tyler Whetstone, Legislator pushes for recovery schools for kids struggling with substance abuse, Knox News, Jan. 11, 2018, available at KnoxNews.com/story/news/politics/2018/01/11/ legislator-pushes-recovery-schools-kids-struggling-substance-abuse/1016250001/. 10

See Tenn. Code Ann. § 49-50-16.

See Chris Bundgaard, ‘Hope is not a strategy’: District makes Narcan available in schools, WKRN (Oct. 12, 2017), WKRN.com/special-reports/tennessee-s-opioid-crisis/hope-is-not-astrategy-district-makes-narcan-available-in-sc hools_2018032603281844/1077086560; Chris Gadd, Dickson Co. Schools stock opioid overdose halting drug Narcan, The Tennessean, Apr. 3, 2018, available at Tennessean.com/story/ news/local/dickson/2018/04/03/dickson-coschools-stock-opioid-overdose-halting-drug-narcan/479038002. 12

Richard Miech, et al., Prescription opioids in adolescence and future opioid misuse, 136 Pediatrics 1169 (Nov. 2015), available at Pediatrics. aappublications.org/content/136/5/e1169. 13

See e.g., Andrew J. Finch, et al., Recovery high schools: Effect of schools supporting recovery from substance use disorders, 44 Am. J. Drug & Alcohol Abuse 175 (2018), available at TandFOnline.com/doi/ abs/10.1080/00952990.2017.1354378?journalCode=iada20. 14

Brad Schmitt, Nashville’s fledgling addiction recover high school, The Tennessean, Nov. 14, 2016, available at Tennessean.com/story/ news/2016/11/14/nashvilles-fledgling-addiction-recovery-high-school/93492500. 15

Heather Duncan, Recovery Schools’ Could Save Tennessee Teens from Addiction, 100 Days In Appalachia (Feb. 7, 2018), 100DaysInAppalachia.com/2018/02/07/dont-treat-now-will-treatlater-recovery-schools-save-tennessee-teensaddiction. 16

Julie Edwards, ‘One of the biggest challenges,’ says Metro Schools exec on teens and drugs, WKRN (Sept. 28, 2017), WKRN.com/news/juliedrugs-in-metro/1057463178.

(continued from page 8)

BRAD SAYLES is of counsel in Nelson Mullins’ Nashville office where he practices health care law. He assists clients navigate the highly regulated health care landscape to ensure they are compliant with laws and industry standards. He works with providers from clinical laboratories, hospice and home health providers, health systems, physician groups, and long-term care providers to small rural health care entities and individual practitioners. KELLY L. FREY is a partner at Nelson Mullins Riley & Scarborough, LLP. He practices corporate law and was selected last year as “Best of the Bar” in Technology Law by the Nashville Business Journal. He is past-president of the Nashville Film Festival and current chair of the Board of Governors for the Franklin Theatre.

RESERVE OUR FACILITIES Did you know? The Nashville Bar Association offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville. We have a spacious Conference Center and a smaller Board Room— both of which have Wi-Fi access, a computer, and phone—available for your use. For more information, contact Vicki.Shoulders@nashvillebar. org or visit NashvilleBar.org/ ReserveOurFacilities.

NASHVILLE BAR JOURNAL | AUG/SEP 2018

BILL & PHIL’S GADGET OF THE MONTH

Back to School Tech Round-Up | Bill Ramsey & Phillip Hampton

Every year around this time, we go shopping for some good deals on laptops. It seems that retailers offer good pricing for budget laptops centered around “backto-school” promotions. We have no intention of going back to school, but we are donning our backpacks and trying to act like students as we hunt for some good deals on laptops. Here are some of our favorite laptops suitable for students (or lawyers) on a budget. ASUS Chromebook Flip C302 This may be the first time we have written about a Chromebook. When Chromebooks (laptops that run Google’s Chrome operating system) first appeared on the market, we were not terribly impressed. Users with these laptops were confined to internet browsing and Chrome apps (which also were limited). Times have certainly changed; now that you can use Microsoft Office apps on Chromebooks, we believe they are indeed a good, inexpensive option for the budget-conscious consumer. The ASUS Spin C302 has a very compact form factor with a metal body, backlit keyboard, and bright touchscreen display. The screen portion of the laptop is hinged and can be rotated 360 degrees, giving a lot of options for work or play. We are not going to give up our Windows laptops for this Chromebook, but if you just need an inexpensive laptop to take to school or on the road for basic internet, email, and some word processing, this laptop would be a good fit.

Surface Go Microsoft surprised us once again when they announced a new, budget-friendly Surface laptop called Surface Go. We love our Surface laptops (we have multiple versions: Surface Pro, Surface Laptop, Surface Book), but we know that the price point for these excellent machines is somewhat higher than what most budget-conscious buyers are willing to pay. Microsoft has eliminated that constraint with the new Surface Go, which is priced very competitively with Apple’s new lower-priced iPad. While the Surface Go—with its 10-inch screen and incredibly light weight of just over one pound— reminds you of an iPad, under the hood is a “real” computer running the Windows operating system on an Intel Pentium Gold Processor. No, it is not as fast or as powerful as the more expensive Surface Pro, but we think it is a great lower-priced alternative that will allow you to work as if you were working at your desktop at the office or at home. We love the fact that Microsoft kept the kickstand feature with the Surface Go—a great feature we love on all the Surface models. iPad 2018 We know the kids love their iPads, and we do, too. But, until recently you could buy a really nice, fully functional Windows laptop for the price you paid for an iPad. Facing pressure from the growing popularity of Chromebooks, Apple introduced a sub-$400 iPad in 2017, and a year later, followed it up with the iPad 2018. This entry-level iPad has a 9.7-inch screen and is plenty powerful for basic computing needs. It does not have the big, beautiful screen or the power of the iPad Pro, but this 2018 model does support the popular Apple Pencil (purchased separately). If you are in the market for an

iPad, but don’t want to break the bank, we recommend this entry-level model or perhaps even a one- or two-year-old “gently used” iPad from a reputable seller. Like the Chromebook, an iPad can handle Microsoft Office apps. Acer Spin 1 This 2-in-1 convertible sits in the budget bin, but we feel that it is a great buy for the money. The Acer Spin 1 is a fully functional Windows 10 laptop. With an 11.6-inch screen and a weight just under three pounds, it is a bit bulkier than the other laptops we tried. But, with an all-metal body and incredibly bright HD screen, you might be fooled into thinking this machine costs a lot more than it does. The Acer Spin has an Intel Celeron processor that is sufficient for basic computing, but can show signs of strain with extreme multi-tasking or any graphics intensive application. Like the ASUS Flip, the Acer Spin has a screen that can rotate 360 degrees to be used in tablet mode, traditional laptop mode, or somewhere in between. It’s a little heavy and not a speed demon, but if you want to give Junior a good dependable laptop-tablet hybrid to take to school, the Acer Spin 1 will do the trick and leave you some extra lunch money. n

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

NashvilleBar.org/FindAMediator

NEW! Personalized Mediator Listings As a mediator or arbitrator, you can now create a personal profile to showcase your expertise and personal brand. Your mediator profile will be searchable based on qualifications—Rule 31 Civil and/or Family, Arbitration, or Federal Court— subject area experience, and last name.

§ Showcase Your Expertise Display your qualifications and subject matter experience in the search results—the most visible marketing opportunity in the greater Nashville area for attorneys and consumers.

Save 25% on Downtown Office Space Rentals

Increase Your Profile

We offer our conference rooms for attorneys who need a convenient place to meet in downtown Nashville. Visit NashvilleBar.org for pricing.

Find a Mediator is the premier online destination for attorneys and consumers seeking mediation services. What better way to brand yourself and your practice!

Think Win-Win and Sign Up Today! Visit NashvilleBar.org/FindAMediator to learn more. Fees for a listing are $200/year for NBA members and $350/year for non-members. Nonattorney mediators may participate if they have been approved as a Supreme Court Rule 31 mediator.

FOLLOW. LIKE. SHARE. TWEET. WATCH.

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. T UE S DAY, AUGUST 2 1 | LIVE SEMIN A R

TH U R S D AY, A U G U S T 23 | LI V E S EMIN A R

RELOCATION, RELOCATION, RELOCATION… IT’S ALL ABOUT RELOCATION

THE ETHICAL ISSUES IN REPRESENTING BANDS

A Look Into Tennessee’s New Relocation Statute (T.C.A. § 36-6-108) OVERVIEW

OVERVIEW The NBA Entertainment, Sports & Media Law Committee presents... Rock ‘n’ Roll Ethics: A Case Study of The Beatles.

PRESENTERS

This ethics CLE focuses on the unique issues faced when representing an organization. As a former General Counsel bringing his first-hand experience in this area, presenter Jim Jesse uses the final few years of The Beatles as a case study to highlight ethical issues faced when providing legal representation to a band or artist. Specific emphasis is placed on the Model Rules of Professional Conduct 1.7 (Conflict of Interest—Current Client); 1.13 (Organization as a Client); 1.14 (Client with Diminished Capacity); and 2.1 (Role as Advocate). The ethical issues in the “My Sweet Lord” copyright infringement case will also be discussed.

Hon. Phillip Robinson, Judge, Third Circuit Court

PRESENTER

Hon. Philip E. Smith, Judge, Fourth Circuit Court

Jim Jesse, CEO/Founder Rock ‘n’ Roll Law and Law Office of Jim Jesse

The new “Relocation Statute” will have a significant impact on relocation cases and is very different from the prior statute. This CLE helps attorneys and mediators understand how significant this change is and how it will impact their relocation cases. Gain an understanding of the changes in § 36-6-108 and application of the same, learn how the change in the statute will change relocation as we have known it, and get tips for mediators when mediating relocation cases.

Teresa Oglesby, Special Master, Third Circuit Court Stephanie J. Williams, Special Master, Fourth Circuit Court

D E TA I L S

DETAILS

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:30 – 3:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 2:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3:00 – 5:00pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 Dual

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 General & 2.0 CME

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Location. . . . . . . . . Jury Assembly Room, Historic Courthouse

COST

NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189

For registration after August 21, add a $10 late fee.

For registration after August 17, add a $10 late fee. AUG/SEP 2018 | NASHVILLE BAR JOURNAL

W E DNE S DAY, AUGUST 2 9 | LIVE SEMINA R

TH U R S D AY, S E P TE M B E R 6 | LI V E S E M IN A R

BACK TO SCHOOL

THE STARK DIFFERENCES THAT DISTINGUISH TENN. R. CIV. P. 26 PROTECTIVE ORDERS, WHICH FACILITATE DISCOVERY, FROM ORDERS THAT SEAL COURT RECORDS

Parental Liability OVERVIEW Are you a practicing parent? Find out what potentail liabilities you may face as a mom or dad with this “back to school” program on parental liabilities.

OVERVIEW

PRESENTER

Judge Frank Clement will discuss why a mere showing of “good cause” may justify the issuance of a protective order to facilitate discovery as distinguished from the necessity to establish “compelling reasons” to justify sealing court records. Topics will include: • The relaxed standards that apply to unfiled discovery. • The stringent standards that apply to pleadings, documents or other papers filed with the court. • The necessity for an individualized determination by the trial court, with findings of fact and conclusions of law, to seal any part of a court record. • The rules and standards that apply when sealed records from the trial court are filed with the appellate court.

Rob McKinney, Law Office of Rob McKinney

PRESENTER

D E TA I L S

Hon. Frank G. Clement, Jr. Tennessee Court of Appeals Judge

Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

COST

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after August 27, add a $10 late fee.

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

COST* NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after September 4, add a $10 late fee. *Judges and Chancellors are invited to attend this seminar FREE of charge. To register at the Judicial Rate, please email Mariel. Zelhart@NashvilleBar.org or call 615-242-9272.

NASHVILLE BAR JOURNAL | AUG/SEP 2018

T HURS DAY, SEPTEMBER 1 3 | LIVE SE M I N A R

TH U R S D AY, S E P TE M B E R 20 | LI V E SEM IN A R

MAKING CONNECTIONS: WHERE ADDICTION, RECOVERY, AND THE LAW INTERSECT

CHECKLIST FOR AN ETHICAL PRACTICE

OVERVIEW

This CLE outlines a proactive self-assessment to reduce complaints. The checklist discusses core principles such as competence, diligence, communication, conflicts, confidentiality, fees, and trust accounts with references to ethics opinions and recent disciplinary decisions.

In partnership with the NBA, Renewal House will present Making Connections: Where Addiction, Recovery, and the Law Intersect. Founded in 1996 with a mission to preserve and strengthen families, Renewal House is the most comprehensive provider serving women with addictions and their children in Middle Tennessee. With the epidemic of opioid abuse, increasing numbers of families are finding themselves involved with the legal and child welfare systems. The Making Connections seminar will provide thought-provoking insights into the opioid crisis, the nature of addiction and recovery, the challenges that treatment providers and their clients face when interacting with legal professionals, and the resources available to assist individuals and families affected by addiction. PRESENTERS Pamela Sessions, CEO, Renewal House

OVERVIEW

PRESENTER Sandy Garrett Chief Disciplinary Counsel Board of Professional Responsibility of the Supreme Court of Tennessee D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Savak Millis, Director of Programs, Renewal House Brianna White, Children’s Program Case Manager, Renewal House Roland W. Gray, MD, DFASM; Former Medical Director, Tennessee Medical Foundation’s Physician’s Health Program D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after September 18, add a $10 late fee.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

F RI DAY, OCTOBER 5 | LIVE SEMINAR

TU E S D AY, O C TOB E R 9 | LI V E S E M IN A R

BUSINESS LAW INSTITUTE

EMPLOYMENT LAW INSTITUTE

OVERVIEW

This CLE features a networking breakfast and four hours of CLE on important topics in business law. The agenda is available online at NashvilleBar.org/BusinessLawInstitute.

This CLE features a networking lunch and four hours of CLE on important topics in employment law. An agenda is available online at NashvilleBar.org/EmploymentLawInstitute.

PRESENTERS A full list of presenters is available online at NashvilleBar.org/BusinessLawInstitute. D E TA I L S Registration & Breakfast. . . . . . . . . . . . . . . . . . 8:30 – 9:00am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00am – 1:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

PRESENTER A full list of presenters is available online at NashvilleBar.org/EmploymentLawInstitute. D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389

COST NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 3, add a $10 late fee.

NASHVILLE BAR JOURNAL | AUG/SEP 2018

For registration after October 5, add a $10 late fee.

PLI LIVE WEBCASTS L i ve CL E Cre dit f r om Innov a t iv e We bcast s

P LI LI V E WE B C A S TS Li ve C LE C redi t f rom I nnovat i ve We b c a s ts Hedge and Private Fund Enforcement & Regulatory Developments October 9, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

PLI and the NBA provide sophisticated programs to Tennessee attorneys through live webcasts held at the NBA Conference Center. Attendees will earn live CLE credit. Registration is FREE for PLI’s Privileged members. Visit NashvilleBar.org/ CLE for course details and to register. Ethics in Banking and Financial Services August 14, 8:00 – 11:00am

2.58 Dual

Complimentary breakfast included.

Nonprofit Organizations: Governance, Form 990 Reporting, and Compensation Issues October 16, 8:00 – 11:45am 3.25 General

The Ethics of Electronic Information: Competence, Confidentiality, and Other Ethical Conundrums October 19, 8:00 – 11:30am 3.0 Dual Complimentary breakfast included.

Cybersecurity: Managing Cybersecurity Incidents September 14, 8:00am – 4:00pm 6.25 General Complimentary breakfast included.

Advanced Compliance and Ethics Workshop October 29 – 30, 8:00 – 11:30am 9.25 General Complimentary breakfast included.

Hot Topics in Electronic Discovery: What Corporate and Outside Counsel Need to Know September 17, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

1.0 Dual | 5.0 General

Complimentary breakfast included.

White Collar Crime: Prosecutors and Regulators Speak October 3, 8:00am – 4:00pm 6.0 General Complimentary breakfast included.

Think Like a Lawyer, Talk Like a Geek Get Fluent in Technology October 4, 8:00am – 4:00pm 1.0 Dual | 5.25 General Complimentary breakfast included.

Complimentary breakfast included.

Storming the Gatekeepers: When Compliance Officers and In-House Lawyers Are at Risk September 5, 8:00am – 4:00pm 6.0 General

Securities Arbitration September 26, 8:00am – 4:00pm

“Technotainment:” Distributing Content Across Multiple Platforms Term October 15, 8:00am – 4:00pm 1.0 Dual | 5.0 General

Trial by Jury November 7, 8:00am – 4:00pm

1.0 Dual | 5.0 General

Complimentary breakfast included.

Communications Law in the Digital Age November 8 – 9, 7:45am – 4:15pm 1.0 Dual | 12.25 General Complimentary breakfast included.

Pocket MBA: Finance for Lawyers and Other Professionals November 19 – 20, 8:00am – 4:00pm 1.0 Dual | 11.75 General Complimentary breakfast included.

20th Annual Commercial Real Estate Institute December 3 – 4, 7:45am – 4:00pm 1.0 Dual | 11.25 General Complimentary breakfast included.

Ethics for Corporate Lawyers December 20, 1:00 – 3:30pm

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

2.08 Dual

NBA ONLINE SEMINARS P e rso n al i zed Le a r ning on Your Sc he dul e

WE B I N A R S | FE ATU R I N G S E A N C A R TER , ESQ . Laugh Whi l e You Learn

is the exclusive online support network for the NBA.

Check out our NEW online seminars at NashvilleBar.org/CLE! FEATURING A Comedy of Ethics Come see the Ethics CLE 400 years in the making. Professional actors from the internationally celebrated Nashville Shakespeare Festival present the Bard’s scenes illustrating ethical dilemmas just like the ones faced by lawyers today, and attorney Donald Capparella addresses the cutting-edge ethical issues you need for your practice.

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Don’t Try This At Home Why You Should Never Emulate TV Lawyers August 15, 12:00 – 1:00pm

1.0 Dual

Fantasy Supreme Court League: The 2018 Season August 22, 11:00am – 1:00pm 2.0 General If You Can’t Say Something Nice, Shut Up! The Ethycal Imperative for Civility August 29, 12:00 – 1:00pm

1.0 Dual

Thou Shalt Not Lie, Cheat & Steal The Ten Commandments of Legal Ethics September 5, 12:00 – 1:00pm

1.0 Dual

Staying Within the Lines Avoiding Ethical Penalties & Infractions September 10, 12:00 – 1:00pm

1.0 Dual

Get to Stepping! The Path to Lawyer Well-Being September 19, 12:00 – 1:00pm

1.0 Dual

Sue Unto Others As You Would Have Them Sue Unto You September 25, 12:00 – 1:00pm 1.0 Dual

GET A CLE EASY PASS & GO! 3 EASY PASSES TO CHOOSE FROM:

8-HOUR CLE PASS

10-HOUR CLE PASS

$265 (2 free CLE hours = $95 savings)

15-HOUR CLE PASS

$315 (3 free CLE hours = $135 savings)

$420 (6 free CLE hours = $255 savings)

Valid from Nov 1, 2018 to Oct 31, 2019.

Purchase your members-only CLE Easy Pass now, and save up to $255 on cutting edge CLE! Choose a CLE Easy Pass that fits your “Live” CLE hour needs and your budget. For questions or to purchase your CLE Easy Pass, email NBA_CLE@nashvillebar.org or call 615-242-9272.

R E GI S TR ATI O N MAIL Nashville Bar Association | ATTN: CLE Division 150 4th Ave N, Ste 1050 | Nashville, TN 37219

ONLINE NashvilleBar.org/CLE

PHONE 615-242-9272

Please register me for the following NBA live seminars:

Name:

BPR#

Address: City:

State:

Zip:

Phone:

Email: (Required to receive seminar materials)

PAYMENT OPTIONS Visa

Discover

Mastercard

Cardholder Name: Billing Zip Code:

AMEX

Check (payable to the Nashville Bar Association)

Card Number: Exp Date:

Amount:

Signature:

LATE FEE: Registration must be received by 5:00pm two business days ahead of the seminar. If you register late, please add a $10 late fee to your payment. CANCELLATION: No refund or credit will be issued after 5:00pm two business days ahead of the seminar; however, a substitute may attend for a registered participant. CLE EASY PASS HOLDERS: Cancellation must be received by 5:00pm two business days ahead of the seminar to retain CLE Easy Pass hours. CLE Easy Passes are non-transferable, and a substitute may not attend for an Easy Pass Holder.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

L E T ’ S WO R K T O G E T H E R T O P RO T EC T YO U R C L I E N T S ’ I N T E L L EC T UA L P RO P E R T Y.

We are committed to protecting your clients’ IP assets, leaving you to focus on all other legal matters. Learn more at iplawgroup.com.

Or i g i n a l Th i n k i n g. U n i q ue P ro t ec t ion.

Editorial | Chuck W. Cagle

The Education Records as Evidence Act In 2002, Tennessee enacted the Education Records as Evidence Act.1 At least once a week, I get the opportunity to speak with attorneys about producing educational records pursuant to this statute. Conversations are usually initiated by a client school board employee who received a subpoena duces tecum to appear and produce evidence contained in a student’s transcript and records. The client school superintendent then contacts me and requests I do something to prevent this occurrence. It is here where knowledge of this little-known statute, and a measure of diplomacy mixed with willingness to assist my colleagues, usually gets us past a tricky hurdle. Without any doubt, student records are confidential records. They are listed as a specific exception to laws declaring records of public government entities to be open records.2 Moreover, the United States Code contains provisions stating institutions that receive federal education dollars may have all of those appropriations withheld if there is a reckless release of confidential student record information.3 As one might imagine, information contained in student

records can be valuable and relevant to a matter in litigation, either in an administrative proceeding or in civil litigation. If the records are sought for the purpose of establishing student attendance, for instance, then a parent can request a release of that information without the need for a subpoena. However, if a school employee is subpoenaed to produce the original records and testify to the contents contained in them, then the provisions of this statute will apply. What Does the Statute Provide? This statute applies when a subpoena duces tecum is served upon a custodian of educational records in any educational institution in this state: (1) in a matter in which the institution itself is not a party; (2) the institution is not the place where the cause of action is alleged to have arisen; and (3) the subpoena requires the production of all or any part of the educational records of the educational institution or of a past or present student of the institution.4 In these cases, the custodian of the record has 20 days (continued on page 26)

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Editorial | The Education Records as Evidence Act

(continued from page 25)

after being served to either personally deliver the subpoenaed records or mail the records via certified mail. The custodian must certify, by affidavit, that the records are a true and correct copy of the records described in the subpoena and that the parent or student has been notified of the issuance of the subpoena.5 Note that the statute requires the records custodian to make a reasonable effort to notify the parent or the student (if an adult) of the subpoena so that the parent or student may exercise their right to seek protective action.6 There are exceptions to this notice requirement that apply in instances where the issuance of the subpoena is ordered not to be disclosed.

and must display the title or case number of the action, the name of the witness subpoenaed, and the date of the subpoena was issued; (2) the affidavit of the custodian should be attached to the envelope containing the records; and (3) the affidavit and the envelope containing the records should be placed in an outer envelope, sealed, and delivered.7 If the records were subpoenaed to a court hearing, then they must be delivered to the clerk of court. If the records are for a deposition, then the records should be delivered to the attorney taking the deposition. In other cases, the records should be delivered to the officer, body or tribunal conducting the hearing.8

In What Form Are the Records Transmitted? The Tennessee Code Annotated describes the exact method of packaging the records for delivery: (1) a copy of the records shall be placed in an inner envelope or wrapper, sealed,

When Are the Records to be Unsealed? Unless the attendance of the custodian of records is compelled, the records shall be opened at the trial, the deposition, or at the administrative hearing by the presiding officer. Prior to unsealing the records, the officer

must ascertain that the records have been produced in strict compliance with the statute and that no motion to quash the subpoena is pending.9 Is There a Cost Associated with the Production of the Records? There may be. The affidavit of the custodian of the records should state the reasonable fees incurred by the educational institution for the production of the records.10 In addition, if the attendance of the custodian of the records is compelled at the hearing or deposition, then the subpoena shall state specifically that “[t]he procedure authorized pursuant to § 49-501503 shall not be deemed sufficient compliance with this subpoena.” 11 In those cases, where both the personal attendance of the custodian and the production of the records is required, then the reasonable costs of the attendance of the custodian shall be taxed as costs of the court. Generally, these costs are calculated to equate to a day’s salary for the custodian. What is the Benefit of this Statute? If strictly followed, this statute declares that educational records produced in compliance are self-authenticating. Copies of the records shall be admissible “to the same extent as though the original of the record were offered and the custodian had been present and testified to the matters stated in the affidavit.”12 Further, the statute provides “[t]he affidavit shall be admissible in evidence and the matters stated in the affidavit shall be presumed true in the absence of a preponderance of evidence to the contrary.”13 (continued on page 28)

NASHVILLE BAR JOURNAL | AUG/SEP 2018

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound election the path to this office; five states have the governor appoint the AG, and Maine has the legislature appoint the AG. All dogs understand the allure of popular election for public officials. For the weakest branch of our state government to have and exercise well this appointing authority for 148 years, maybe the drafters of our 1870 Constitution were on to something. Be sure to know the position of your gubernatorial and legislative candidates on maintaining this constitutional provision as it stands today.

—If you want to run with the big dogs, you have to get off the porch. We Should Be Flattered Not only did the Nashville Bar Journal dedicate the last issue to our canine friends, but as you read this, we will be coming to the end of a season those humans in the northern hemisphere recognize as the “dog days of summer.” Those dog days have sultry heat, drought, sudden thunderstorms, lethargy, fever, and yes, even mad dogs. Stargazers know the star Sirius is part of the constellation Canis Majoris, and for about 40 days in the summer, Sirius rises and sets in conjunction with the sun. Some ancient Greeks thought the additional star power added to the heat of the summer season, but folks now attribute the season’s heat to the tilt towards the sun as this wacky world rotates on its axis. Speaking of Wacky It is still election season, even though the August 2 primary is now behind us. While the primary election is a marathon for many candidates, the time period before the November 6 general

election is a 90-day sprint for the two major party winners. In the greater community, lawyers have to be the big dogs for the legal system and its four core values: (1) the rule of law; (2) equal justice under the law; (3) fair, independent, and impartial judges; and (4) trial by jury. We educate and bark about these core values because we know the judicial branch is the weakest of the three branches of government. The legislative branch makes the law and has the power of the purse, which is the power to tax and to spend public money; the executive branch has the power to execute and enforce the law, as well as the bully pulpit, and to a certain extent patronage. The judicial branch has very little intrinsic power except for its inherent authority to regulate the judicial system itself. President Kennedy noted, “Our nation is founded on the principle that observance of the law is the eternal safeguard of liberty, and defiance of the law is the surest road to tyranny.” Tennessee has a quirky and unique constitutional provision in Article V, Section 5, which authorizes our Supreme Court to appoint the State Attorney General. Forty-three states make popular

Checklist for August and September 1. Be sure your state representative and state senator are in your contact lists. 2. Judge Shelia Calloway wants to see you on August 22 for the NBA Karaoke Happy Hour at Alley Taps. 3. Mark your calendar to attend the NBA’s annual free member picnic on September 27 at the Hall of Fame Park downtown. It is always a fun event, and we all know the most effective form of communication is face to face. 4. Use the website GoVoteTN.com to register to vote or to update your voter registration online. The last day to register to vote for the November election is October 5. Calendar Notes State and NBA offices will be closed Monday, September 3, for the Labor Day holiday. With the new school year starting, be watchful of students (and dogs) as we all adjust to new seasonal traffic patterns. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Editorial | The Education Records as Evidence Act A Note of Caution Although this statute permits educational records to be self-authenticating if produced in compliance with the statute, it does not guarantee the contents of the record are self-explanatory. Lawyers using these records must remember they may be voluminous and may contain specialized information that requires professional interpretation. For instance, the testing results generated for psychological evaluation provides an example of the type of a situation where a school professional should appear and offer explanation, should such evaluations be relevant to the matters in litigation. Conclusion When my colleagues receive a phone call (not email) from me, the school board attorney, they are sometimes guarded asking questions about the subpoenas duces tecum issued for student records. I make a concerted effort to be diplomatically persuasive to convey that I really

(continued from page 26)

am trying to assist them in obtaining the needed records and documents. That method generally becomes very effective when we get to the part of the conversation concerning the court ordering payment for the custodian in the amount of a day’s salary to bring the original records and attend court. When I hang up the phone after reaching an agreement, I always smile and recite the phrase, “Yes, I represent the government, and I am here to help you.” n Endnotes 1 2002 Public Chapter 621, codified at Tenn. Code Ann. §§ 49-50-1501 et seq. 2

Id. at § 10-7-504(a)(4)(A).

20 USC § 1232g, et seq.

Tenn. Code Ann. § 49-50-1503.

Id. §§ 49-50-1503, 1504.

Id. at § 49-50-1503(a).

Id. at § 49-50-1504.

Id.

Id. at § 49-50-1505(a).

LOOKING TO ACQUIRE ESTATE PLANNING, TRUST, AND PROBATE LAW PRACTICE(S) OF RETIRING ATTORNEY. . .

We are able to service your existing clients and referral sources and will consider hiring your employees for a smooth transition. We will also consider a cooperative relationship with the seller of the firm to provide transition to the seller and his or her clients and referral sources. We have successfully acquired the estate planning, trust, and probate law practice of an attorney who exited the practice of law. The interests of your clients will be protected. We are experienced, and all inquiries will remain confidential. Interested parties should contact Justin Gilbert for more information at 615-636-9277.

Id. at § 49-50-1506.

Id. at § 49-50-1508.

Id. at § 49-50-1507(a).

Id. at § 49-50-1507(b)(1).

CHUCK W. CAGLE is a shareholder in the Nashville office of Lewis Thomason and chairs the firm’s education law practice group and coordinates the firm’s representation of over 70 local boards of education, 3 private colleges, and a private medical school. He is also a registered lobbyist who represents the interests of school districts, higher education clients, and other agencies in matters pending before the Tennessee General Assembly.

LAWYER REFERRAL SERVICE

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area? If so, the NBA Lawyer Referral & Information Service needs you. For information on joining the NBA LRIS, contact Wendy.Cozby@ nashvillebar.org or visit NashvilleBar. org/LRISAttorneyRegistration. We look forward to hearing from you!

EXCLUSIVE TO THE NBA 28

NASHVILLE BAR JOURNAL | AUG/SEP 2018

IT’S MEMBERSHIP RENEWAL TIME!

Member Benefits 101 | Wendy Longmire The Nashville Bar Association’s (NBA) membership year runs from November 1 through October 31. As we enter Fall, we encourage you—a valuable member—to renew your membership. Not only to keep your benefits alive, but to keep the NBA thriving. We also encourage you to invite new members to join us. What are the advantages of signing up now? New members who join the NBA will receive two free months of membership and all that comes with it; if a new member signs up for membership in August, they receive benefits through October 2019, including CLE discounts, a FREE Karaoke Happy Hour at Alley Taps on August 22, and access to our FREE Member Picnic at the Walk of Fame Park on September 27, with barbeque, music, drinks, and fellowship. Additional benefits include networking opportunities, career services, affinity discounts, and an array of continuing education. Networking The NBA offers multiple opportunities to socialize and network with fellow lawyers and judges throughout Middle Tennessee, developing an informal referral service within. I found stepping out of my practice area and engaging in conversation with other members has enriched my life, both professionally and personally. There are specific “client-driven” benefits of your membership, as well. The NBA offers an exclusive lawyer referral and information service (LRIS). Established over 35 years ago, LRIS refers 6,000+ callers annually to participating NBA members. I can personally attest to the value added by being a part of this program. If you are looking to expand or

launch your mediation practice, the NBA now offers “Find a Mediator” services and encourages Rule 31 Listed Mediators to establish a presence on NashvilleBar.org to attract business.

they will pay your member dues. Our affinity program offers discounts on local food, clothes, and services. Check out NashvilleBar.org/AffinityProgram for more information.

Career Services If you are early on in your career or are seeking a career change, the NBA offers an online career center for employers and job seekers to list or view job postings, upload resumes, and access a career resources library. Looking for a place to hold a mediation, arbitration, or client meeting? The NBA offers a beautiful conference center, board room, and attorney guest office complete with wifi and computer, available to all members. I have held mediations at the NBA and can vouch for its efficiency and function, as well as its neutrality. Newly admitted lawyers can avail themselves of the FREE Friday Fundamentals program where seasoned attorneys offer a “Lawyer 101” course on all areas of practice. Many attorneys are natural leaders, and the NBA offers a space for those seeking leadership positions by serving on practice and service committees, serving on the NBA and/or Young Lawyers Division (YLD) boards, working with the Nashville Bar Foundation, or writing articles for the Nashville Bar Journal.

CLE Rocks! The NBA offers innovative CLE programs that are unique and informative. For example, there have been CLEs on the Kentucky Bourbon Trail and even in Cuba. Members receive discounted registration for CLEs.

Money Talks If none of the above grabs your attention, you can also save money on personal and business expenses by being a member of the NBA. First Tennessee Bank offers exclusive sponsorship to the NBA. If you open an account with First Tennessee Bank,

We are all busy in the practice of law, but I can assure you there is an opportunity to be renewed and refreshed through your NBA membership. Please email Marnie Huff or myself with any questions. I hope to see you at the picnic on September 27! n WENDY LONGMIRE is a partner at Ortale Kelley Law Firm. She handles complex civil litigation involving death and personal injury alleged to have resulted from professional negligence and simple negligence, healthcare liability, products liability, negligent design and employment disputes. Wendy serves on the NBA Board of Directors and as second vice president-elect.

PROUD TO SUPPORT THE NASHVILLE BAR ASSOCIATION HERMAN HICKS

Vice President Private Client Relationship Manager (615) 734-6186 • hahicks@ftb.com

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

TENNESSEE CHAPTER

Nashville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 893-4160

Paul DeHOFF (615) 631-9729

Hon. Robert ECHOLS (615) 742-7811

Barry L. HOWARD (615) 893-8896

James KAY (615) 742-4800

Mark LeVAN (615) 843-0300

Gayle MALONE, Jr. (615) 651-6700

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Leigh Ann ROBERTS (615) 767-5900

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

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

CAREER ADVOCACY PROGRAM

Boosting Diversity Through Mentorship | Jen Robinson

As a young lawyer in the mid-1990s, I quickly connected with a mentor—a senior lawyer at the small firm I worked at in California. He taught me a lot, and I would go so far to say that he changed the trajectory of my career. So, when I was asked to serve as an Advocate in Littler’s Career Advocacy Program (CAP) in 2015, I didn’t hesitate. I knew how much a good mentor could contribute to a new lawyer’s career growth. CAP pairs diverse associates (Protégés) with influential leaders and rainmakers at Littler (Advocates). The idea is to help ensure that Protégés are exposed to the right mix of work and clients so they can develop the skills and visibility needed to progress in their careers. They also receive practical advice on issues like business and career development and relationship-building. Littler Advocates include office managing shareholders and practice group leaders like myself, as well as members of Littler’s Board of Directors and other leaders. Another unique and important element of CAP is that the program pairs Protégés with Champions (general counsel(s) from major corporations). This gives associates a window into how these C-suite decision makers achieve

success, offer strategies for taking ownership of their careers, and provide tangible examples of what general counsel expects from outside counsel. It is a feather in any Protégé’s cap to be selected for this program, and many note the importance of the program in the development of their careers. Since signing on as an Advocate, I have had the good fortune to work with multiple Protégés, including two that are based in the New York area. While both relationships have focused on supporting each lawyer’s career goals, my role with each Protégé is different. Focus on Business Development With my Protégé based in Long Island, we meet in person at least once a year and regularly connect by phone— me in my Nashville office and him at his desk more than 300 miles away. Our conversations have focused largely around business development, and it is fair to say that he has become quite the rainmaker in his own right. I believe I have been most helpful to him as a sounding board—for advice about individual pitches, about what I think will work and what won’t, and who, if anyone, he should take with him when meeting prospects. I would never take credit for his success, or the success of anyone I mentor for that matter. They are the ones doing all the work, after all. But I am happy to help with the brainstorming. Work-Life Balance My other Protégé speaks four languages and was born and educated in China, although she now resides in New York City. When I met her, she had a small child and her husband worked in

Boston; she later gave birth to twins. While our conversations also focused on business and career development, I think I was most helpful in providing advice on juggling her personal and professional commitments. As a working mom, I could very much relate to much of what she was going through, and we talked candidly and openly about these issues. Why This Matters Studies continue to show that despite gains in some areas, the legal industry as a whole still struggles when it comes to diversity and inclusion. Littler has long been focused on both areas as evidenced by our success in attracting and advancing diverse attorneys; with CAP, Protégés have represented 1840% of the new shareholder class over the past three years. To be clear, my participation in CAP is about making our industry more diverse and inclusive, something I strongly believe is the right thing to do. But, I also want to help young lawyers, just as I was helped all those years ago. I am sure I will be in touch with both of the Protégés I have worked with for years to come. And I speak from experience—I talk to my mentor from more than 20 years ago even today! n JENNIFER ROBINSON is the office managing shareholder of Littler Mendelson’s Nashville office and co-chair of the firm’s Hospitality Industry Group. She counsels and defends employers on a wide range of matters, including those related to wage and hour law, discrimination, harassment, retaliation and failure to accommodate. She can be reached at jenrobinson@littler.com.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

Thank You for Your Membership! The NBA Premier Membership is a special category that recognizes our 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.

2018 PREMIER MEMBERS

Gail Vaughn Ashworth

Jamie Hollin

Sara Reynolds

Heidi Barcus

Paul Housch

Daniel Berexa

Margaret Huff

Nathan H. Ridley

Mark Beveridge

R. Jan Jennings

Hon. Joe Binkley, Jr.

Andrew Kaufman

Charles Bone

Jordan Keller

Eric Smith

C. Dewey Branstetter, Jr.

John Kitch

Saul Solomon

Kenneth Byrd

Dean Bill Koch, Jr.

Christopher Cardwell

Irwin Kuhn

John Spragens

Kay Caudle

Ed Lanquist, Jr.

Mark Chalos

Thomas Lawless

William Cheek, III

Clay Lee

Al Stolte

Hon. Patsy Cottrell

Hon. Randal Mashburn

Gerard Stranch

John Day

Sam McAllester, III

Joy Day

Hon. Amanda McClendon

Jim Stranch

Karl Dean

Rocky McElhaney, II

Jacqueline Dixon

Nicholas McGregor

Howard Vogel

David Downard

Bob Mendes

Michael Wall

Blair Durham

Margaret Moore

Elizabeth Washko

John Floyd

Marlene Moses

Keith Frazier

Patricia Moskal

Richard Green

Jennifer Mueller

John Griffin, Jr.

Phillip Newman

Thomas White

Jay Harbison

Mark Overlock

Larry Williams

Bill Harbison

Mattison Painter

Hon. Marian Harrison

Rose Palermo

Thomas Wiseman, III

Aubrey Harwell, Jr.

Gregory Pease

Trey Harwell

Andrea Perry

Laura Heiman

Tracy Powell

Stephen Young

Lisa Helton

David Raybin

Stephen Zralek

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Carolyn Schott Kimberly Silvus

Joycelyn Stevenson Michael Stewart

Hon. Aleta Trauger

Jim Weatherly, Jr. Peter Weiss

Sheree Wright Ed Yarbrough

Welcome to the NBA! Congratulations on your new membership! Thank you for joining the NBA and all that it has to offer. We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org for questions and general information.

NEW MEMBERS (MAY 1 - JUNE 30) William H. Agee

Andrew Gardella

Mary Little Pirtle

Sonya G. Bellafant

Marbut G. Gaston, Jr.

Addison Rogers

Morgan Bernard

Katherine P. Griffin

William C. Scales, Jr.

Daina Bray

Rachel Harris

David P. Steine

Melissa A. Brown

Ellie Keiper

Douglas T. Thibodeaux

Jenny L. Carey

Soon Young Kwon

Charles M. Vance, II

Therese F. Casler

Kenneth F. Major

Kirkland T. Vaughn

Tasneem U. Chowdhury

Nicholas McGregor*

Jacob Vega

Lucian E. Dervan

Mary A. Murphy

Kasi Wautlet

Candace Fox

Elizabeth Shiers Nolan

John M. Windle

Barbara Futter

Heath Pennington

*denotes Premier Member

VOLUNTEER FOR DIAL-A-LAWYER Dial-A-Lawyer is held the first Tuesday of each month from 6:00 – 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact our LRIS Coordinator at Wendy.Cozby@nashvillebar.org. Pro Bono credit applies, and a complimentary

Thank you to our June & July volunteers!

CHRIS HUGAN TOM LAWLESS DOUG PIERCE JOE RUSNAK ERIC SMITH

dinner is provided.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

Summer 2018 Highlights

NBA High School Summer Intern Program

NBA Happy Hour | Dodson Parker Behm & Capparella

NASHVILLE BAR JOURNAL | AUG/SEP 2018

VISIT NASHVILLEBAR.ORG/PHOTOGALLERY FOR MORE!

2018 NBA Family Zoo Day

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

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

past president of the NBA.

G. Gordon Bonnyman was awarded a 2018 Kutak-Dodds Prize. The award honors attorneys who, through the practice of law, have significantly enhance quality of life for individuals who cannot afford legal representation. Bonnyman, a staff attorney and former executive director of the Tennessee Justice Center, was recognized for his work in poverty law, focusing on improving access to healthcare for the poor and uninsured. Aubrey B. Harwell, Jr., co-founder of Neal & Harwell, PLC, was recognized by The Business Journals as one of “100 Influencers of Law” in the United States. Harwell’s practice focuses on commercial litigation, white-collar criminal defense, and crisis management. He is a

Judge Lynda Jones, Davidson County General Sessions Court Judge, will speak at the Tennessee Attorney Memo 12th Annual Law Conference for Tennessee Practitioners on November 15. She will address practice tips for the Small Business Court and discuss the Joint Pre-Trial Statement created by the Small Business Court Committee. Retired Tennessee Supreme Court Justice and Nashville School of Law Dean William C. Koch Jr. has been elected president of the Board of Trustees of the American Inns of Court. Koch served on the national Board from 2000 to 2008 and 2014 to the present, and helped found the Harry Phillips American Inn of Court as well as six other Inns in Tennessee. He currently serves on the NBA Board of

What if your legal research takes you places it never could before? Like inside a judge’s mind … or your opposition’s case strategy. Using sophisticated analytics and smart, connected content, the Lexis Advance® service is providing today’s data-driven attorneys with the power to know what was once unknowable. See what’s possible now at lexisnexis.com/la-insights or call 800.628.3612

Lexis Advance® advancing what’s possible

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Directors and is a Trustee of Cumberland University. Amy S. Leopard has been elected to the Board of Directors of the American Health Lawyers Association (AHLA). Leopard has chaired the AHLA Health Information and Technology Practice Group for the past three years. She is a partner at Bradley and a member of the Healthcare Practice Group. Leopard is a former hospital executive, working in the healthcare industry for more than two decades. Gary Montle has been named president of the Tennessee Intellectual Property Law Association. Montle, a registered patent attorney, is a shareholder at Patterson Intellectual Property Law, PC, and focuses his practice on the procurement and enforcement of intellectual property rights. Prior to attending Vanderbilt University Law School, he was an electrical engineer with Beta Lasermike, Inc. Paul C. Ney, Jr. has been confirmed by the U.S. Senate as general counsel for the Department of Defense. Ney was most recently with the State of Tennessee Attorney General’s Office as chief deputy. His past experience includes serving as shareholder at Patterson Intellectual Property Law, PC, chief deputy director of the Nashville Davidson County Mayor’s Office of Economic and Community Development, deputy general counsel

Hearsay | Honors & Awards, On the Move, Firm News for the U.S. Department of Defense, acting general counsel and principal deputy general counsel for the Department of the Navy, and as partner in the law firm of Trauger, Ney & Tuke. Ney is a registered patent attorney and a past president of the Nashville Bar Association. Jennifer Robinson, a managing shareholder at Littler, has been appointed cochair of the firm’s Hospitality Industry Group. Robinson focuses her practice on labor and employment law. Sims Funk, PLC has elevated Gil Schuette to partner. Schuette represents clients in a broad range of complex business disputes and will lead the firm’s recruiting efforts. He also serves as Treasurer for the NBA YLD. Wade Sims, staff attorney at Patterson Intellectual Property Law, has been elected to the board of Electronics Recycling Solutions, a nonprofit organization that provides sustainable electronics, waste management solutions and ethical, longterm employment for adults with disabilities. George D. Spanos has been named a partner of the firm of Rogers, Kamm & Shea. Spanos practices in all areas of family and probate law, including divorce,

post-divorce, child custody and visitation, child support, juvenile, and wills and estates. David Wicker, partner at Stites & Harbison, PLLC, was awarded the 2018 Nashville Emerging Leader Award for Legal Services. The NELAs are presented annually by the Nashville Area Chamber of Commerce and YP Nashville to recognize young professionals in Middle Tennessee between the ages of 21 and 40 for exceptional professional and community-building achievements. Wicker’s practice includes all aspects pertaining to the development, acquisition, sale, and financing of commercial real estate. ON THE MOVE A. J. Bahou, a registered patent attorney, has joined the Waller Nashville office. Bahou brings more than 15 years of experience in electrical and computer engineering technologies to the firm. Bahou earned his JD from the Franklin Pierce Law Center and an LLM in Intellectual Property from the University of New Hampshire, and is a former chair of the NBA’s Intellectual Property Law Section. Michael Russell has launched Russell Dispute Resolutions, PLLC, a firm that provides mediation and arbitration services across the state. Russell, a veteran employment attorney, was most recently a

partner at Waller. He previously spent nearly 17 years as a partner at the law firm then known as Gilbert Russell McWherter Scott Bobbitt PLC, and is a member of the National Academy of Distinguished Neutrals. Kaitlyn L. Dunn recently joined Bass, Berry & Sims, where she counsels healthcare clients in matters related to regulatory compliance, fraud and abuse, and government investigations. Prior to joining the firm, Dunn was an associate with Waller, and previously served for three years as associate counsel at the HHSOIG, where she was team leader for the New York, Chicago, and Kansas City regions. FIRM NEWS Baker Donelson has been named a finalist for the prestigious award, Outstanding Firm in Advancing Gender Diversity and Inclusion, by the Chambers Women in Law Awards: USA 2018. The Chambers Women in Law Awards are designed to recognize companies who have achieved dramatic improvements in gender equality, women’s advancement, and inclusion in the legal profession. McGlinchey Stafford has opened a new office in Nashville. This is the 7th new office opened by the firm in the last 9 years and its 14th nationwide. The Nashville office is staffed with an initial team of attorneys experienced in appellate law, class action defense, commercial litigation, consumer financial services litigation, insurance defense and coverage, and products liability litigation.

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

The Affinity Program EXCLUSIVE MEMBER SAVINGS ON LOCAL PRODUCTS & SERVICES!

The Affinity Program is a partnership between the NBA and local businesses that fosters a mutually beneficial relationship between the NBA, its members, and participating local businesses. In order to take advantage of these member benefits, present your NBA membership card to the business. Don’t have a membership card? Email Mariel.Zelhart@nashvillebar.org today!

Save 10% on case management software, private cloud solutions, and fully managed solutions portfolios.

Save 20% off all menu items. Alcohol excluded. Cannot combine with other offers. (Downtown)

Receive 10% off a purchase of $30 or more. Promotional value valid on food and beverages. Minimum purchase of $30 is required, before tax and gratuity. Available at both the Nashville and Brentwood locations. (Midtown & Brentwood)

Receive a complimentary dessert with the purchase of an entrée. (12 South)

Receive 20% off all services offered. (Green Hills)

Receive a 25% discount on three books: Day on Torts: Leading Cases in Tennessee Tort Law (3rd edition & 2016 Supplement), Tennessee Law of Civil Trial (2014), and Tennessee Tort Reform Statutes and Related Case Law (2008-2016). (Green Hills)

Receive 15% off all services offered. (Brentwood) Receive 10% off all corporate bulk orders. To redeem, call Batch at 615-931-3912. (Germantown)

Receive 10% off of your lunch or dinner order. Excludes alcohol. (Midtown) Receive either a FREE appraisal or FREE home warranty option (value up to $500). Call us when you’re ready at 615-557-4650.

Receive either a FREE appraisal or FREE home warranty option (value up to $500). Call us when you’re ready at 615-557-4650.

Receive 10% off resume services. (Green Hills) Receive a 15% discount on tens of thousands of expertly curated gifts and unique ideas. Visit Gifts.com and use code BLUEGOLD15.

Sign up for a complimentary Brooks Brothers Corporate Membership Card online at BrooksBrothers.com. As a Brooks Brothers Corporate Member, you will receive an everyday 15% savings on full priced merchandise at Brooks Brothers stores, by phone, and online at BrooksBrothers.com. (Midtown & Brentwood)

Receive 15% off any purchase at the Goo Goo Shop and Dessert Bar. (Downtown/SoBro)

NASHVILLE BAR JOURNAL | AUG/SEP 2018

Get to and from select NBA events with ease thanks to our ridesharing partner, Lyft! If you’re new to Lyft, visit lyft.com/i/nba2017 and you’ll get up to $10 each of your first 5 rides. Already have Lyft? Save 10% off two rides to/ from select events with the code provided to you in event promotions at NashvilleBar.org. (Nashville)

The Affinity Program Save 20% off on all orders. (Germantown)

Save 50% off the current initiation fee ($250 instead of the current $500) along with a $100 food and beverage credit on a new membership account. (Downtown)

Save 10% off any adult enrichment classes. Members will receive a special code for use at online checkout or mention over-the-phone/in person when registering for a class. (Sylvan Park)

Receive 10% off application fee. (Nashville)

Receive a 15% discount on a wide variety of customizable gifts for every recipient and occasion. Visit PersonalCreations.com and use code BLUEGOLD15.

ProFlowers offers a wide assortment of floral arrangements, plants, and gifts for any occasion. Receive 15% off your order using the discount code BLUEGOLD15. Visit our website at ProFlowers.com today.

Receive 10% off products in the Shop at Thistle Farms. (Sylvan Park)

Receive 10% off all purchases. (Downtown)

Present membership card for 10% off food and beverages (excludes alcohol), private dining room fee waived for groups of eight or more, and/or Complimentary prosecco toast. (Downtown)

Receive a 20% discount on a subscription to The Sewanee Review, America’s longest-running literary quarterly. Enter online discount code NBAAFFINITY and save!

Receive a 15% discount on chocolate covered strawberries, gourmet chocolates, delicious cake pops, and other treates. Visit Berries. com and use code BLUEGOLD15.

Receive 10% off Pilates equipment, classes, and class packages. Not applicable on membership or unlimited packages. (Melrose)

All members will receive employee pricing on new and pre-owned vehicles (excludes limited edition vehicles), 10% discount on service and parts at both locations, personal service advisor assigned to member, free oil and filter change on first visit. (Mt. Juliet)

Receive 10% off all repairs up to $250 ($25 flat rate above $250) and 25% off all accessories (does not include UBIF temporary glass). Discounts do not apply to professional services such as data recovery and backup disk copy. (Green Hills)

POLISHED First-time clients receive a free haircut with any color service; $5 off blowout services. (Green Hills)

Enjoy 10% off all food and products. Excluding alcohol, tobacco, and art. (Downtown/SoBro)

AUG/SEP 2018 | NASHVILLE BAR JOURNAL

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!

Aaron | Sanders, PLLC (3)

Kinnard, Clayton & Beveridge (5)

Raybin & Weissman, PC (3)

Anderson & Reynolds, PLC (3)

Larry R. Williams, PLLC (3)

Reid Leitner Law Group, PLLC (3)

Baker Donelson (104)

Latitude (3)

Riggs Davie, PLC (3)

Bone McAllester Norton, PLLC (37)

Law Offices of John Day, PC (7)

Riley, Warnock & Jacobson, PLC (17)

Bradley (135)

Leader, Bulso & Nolan, PLC (7)

Robinson, Reagan & Young, PLLC (4)

Branstetter, Stranch

Legal Aid Society of Middle TN (15)

Rogers, Kamm & Shea (7)

& Jennings, PLLC (16)

Leitner, Williams,

Rudy Winstead Turner, PLLC (5)

Brewer, Krause, Brooks

Dooley & Napolitan, PLLC (11)

& Chastain, PLLC (14)

Shackelford, Bowen,

Lewis Thomason (32)

McKinley & Norton, LLP (7)

Buffaloe & Vallejo, PLC (4)

Lieff, Cabraser, Heimann

Sherrard Roe

Burr & Forman, LLP (28)

& Bernstein, LLP (5)

Voigt & Harbison, PLC (35)

Butler Snow (53)

Lindsey & Amonette, PLLC (4)

Sims|Funk (3)

Cameron Worley, PC (3)

Martin Heller Potempa

Smith Cashion & Orr, PLC (12)

Cole Law Group (3)

& Sheppard, PLLC (8)

Smythe Huff & Hayden, PC (3)

Cornelius & Collins, LLP (17)

McAngus Goudelock & Courie, LLC (7)

Spicer Rudstrom, PLLC (14)

Dickinson Wright, PLLC (30)

Meridian Law, PLLC (3)

Stites & Harbison, PLLC (28)

Evans, Jones & Reynolds, PC (6)

MTR Family Law, PLLC (5)

Taylor, Pigue,

Floyd Law Group, PLC (3)

Nashville Electric Service (4)

Marchetti & Blair, PLLC (7)

FordHarrison LLP (3)

Neal & Harwell, PLC (34)

Trauger & Tuke (5)

Frazer PLC (4)

Nelson, Mullins,

Veazey & Tucker (3)

Riley & Scarborough (19)

Venick, Kuhn, Byassee,

North, Pursell & Ramos, PLC (10)

Austin & Rosen PLLC (5)

Ogletree Deakins (17)

Watkins & McNeilly, PLLC (11)

Ortale Kelley Law Firm (25)

Waypoint Law, PLLC (3)

Patterson Intellectual

Weatherly, McNally & Dixon, PLC (3)

Property Law, PC (17)

White & Reasor, PLC (6)

Pepper Law, PLC (3)

Wiseman Ashworth

Prochaska, Quinn & Ferraro, PC (3)

Law Group, PLC (9)

Frost Brown Todd, LLC (26) Grissim & Hodges (3) GSRM Law (29) Hall Booth Smith, PC (14) Healthcare Realty Trust, Inc. (3) Holton & Mayberry, PC (4) Keller, Turner, Ruth, Andrews & Ghanem, PLLC (8)

NASHVILLE BAR JOURNAL | AUG/SEP 2018

YOUR LOGO

Your Law Firm 1234 Main Street Anytown, TX 12345 512-555-1234 payments@yourlawfirm.com www.yourlawfirm.com

Invoice Payment Payment Detail Amount $ 500.00

Card Information Name on Card Roy Smith Card Number

CVV

5555 5555 5555 5555

111

PAY ATTORNEY

Exp. August

2020

EASY FOR YOUR CLIENTS, A NO-BRAINER FOR YOUR FIRM. SECURE credit card processing for law ﬁrms IOLTA COMPLIANT

THE PREFERRED CHOICE

Approved Member Beneﬁt of 47 STATE BARS

For more than a decade, LawPay has been the go-to solution for the legal industry. Our simple online payment solution helps lawyers get paid faster. LawPay lets you

Trusted by over 50,000 lawyers

attach a secure payment link to your email, website, or invoices so that clients can pay with just a click. Our solution was developed specifically for law firms, so earned and unearned fees are properly separated and

Powering payments for 30+ TOP PRACTICE MANAGEMENT SOLUTIONS

your IOLTA is always protected from any third-party debiting. Simply put, no online payment processor has more experience helping lawyers than LawPay.

Bar-Approved Member Benefit

Contact our legal payment experts at

888-983-7511 or visit lawpay.com/nashvillebar LawPay is a registered ISO of Citizens Bank, N.A.

My client’s problem isn’t paying for the care his mom needs... It’s finding it.

Long-term illness and disability raise tough questions for your clients. n How can we keep Mom in familiar surroundings

for as long as possible? n How do we find the services she needs, including the right nursing home when the time comes? n What will we do if there are problems? n How do we get the best care for Mom, spend her money wisely, and honor her wishes to leave a legacy for her family? Point your clients in the right direction with a referral to Takacs McGinnis Elder Care Law, PLLC. For more than 25 years, our Certified Elder Law Attorneys, elder care coordinators, and other professionals have been helping families protect assets, find high-quality care, and navigate the long-term care system.

(615) 824-2571

Toll-Free: (866) 222-3127

201 Walton Ferry Road

PO Box 364

Helping you protect whatTN matters most in your life Hendersonville, 37077-0364

Life Care Planning Elder Law Estate Planning Care Coordination

www.tn-elderlaw.com

* Takacs McGinnis, PLLC has been named a Tier 2 firm in Nashville for Elder Law Practice by U.S. News - Best Lawyers”, “Best Law Firms” in 2018.