Nashville Bar Journal | October/November 2019 by Nashville Bar Association

JOURNAL Journal Journal

OCTOBER/NOVEMBER 2019 | VOLUME 19 | NO. 5

FEATURE

To Serve or Not to Serve: An Interview with Senator Lamar Alexander ALSO

Partisan Gerrymandering Are You Ready for (Electoral) College? The Case of Mary Northern

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JOURNAL 6 Journal Journal OCTOBER/NOVEMBER 2019 | VOLUME 19 | NO. 5

FE ATU R E

To Serve or Not to Serve: An Interview with Senator Lamar Alexander Bruce Phillips

DEPA R TM E N TS

From the President

Calendar of Events

11 Partisan Gerrymandering:

Laura Smith

Hear Ye, Hear Ye

Outside Reach of Federal Courts

Junaid Odubeko

2020 NBF Grants Are You Ready for (Electoral) College? Annual Banquet Jonathan Wardle Attorney Headshots Breakfast w/ the Judges The Case of Mary Northern (Free Historical CLE) Fall Memorial Service John C. McLemore FREE Historical CLE John C. Tune Award Membership Renewals CO L UMNS

37 41

21 Photo Gallery 46 Hearsay 48 100% Club 52

CLE Schedule

Background Check 13 Bart Pickett

Gadget of the Month 19 Bill Ramsey & Phillip Hampton Capitol Notes 39 Peggy Sue, the Beagle Hound

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL FROM THE PRESIDENT The Practice of Civility | Laura Smith Journal Civility is hard to codify or legislate, but you know it Journal when you see it.

LAURA SMITH, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE E. SAPP, Managing Editor LAUREN POOLE, Managing Editor

JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE JERRY BRIDENBAUGH KIMBERLY CLARK TIM ISHII KELLY FREY ROB MARTIN OLIVIA PARK BRUCE PHILLIPS BART PICKETT SYDNEY RAINES KRISTIN THOMAS JONATHAN WARDLE CRAIG WEBB 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 2,500+ members—is the largest metropolitan bar association in Tennessee.

— Justice Sandra Day O’Connor The rule of law is rooted in civility. At the NBA Annual Banquet, in my first remarks to the NBA membership, I talked about what an important time it is to be a lawyer. I reflected on the challenges in today’s world to engage in civil discourse and theorized that, as lawyers, we can set the example for positive interactions between those with opposing views. The Institute for Civility in Government defines civility as “disagreeing without disrespect, seeking common ground as a starting point for dialogue about differences, listening past one’s preconceptions, and teaching others to do the same.” Society all around us seems to be increasingly intolerant of opposing views and beliefs. The Charles Koch Institute opines that incivility poses a threat to modern free society. Facing the threat of verbal tirades, the ability to debate important issues breaks down. As fewer people choose to engage in healthy debate, fewer ideas emerge, and innovation is slowed. This type of environment degrades the connectivity between individuals and decreases the amount of social capital in our communities. So, how can lawyers play a role in restoring civil discourse? Zealous advocacy for our clients often places us in adversarial positions with our opponents, and sometimes, fellow bar members. Our ethical obligations demand civil behavior toward each other and the courts in which we practice. By applying these principles outside of our legal practice, we can help improve the tone of communications in the broader community. First, understand your own position. As lawyers and advocates, we spend a great deal of time researching and fleshing out the rationale behind our positions. Having an understanding of why we’ve taken a particular position helps us be rational rather than emotional about it. Next, listen. Being a good listener demands that we listen to understand rather than listen to respond. We should be active listeners, too—asking questions, communicating a desire to gain knowledge and understanding. Approaching the discussion of a difficult topic as a conversation rather than a debate helps us be better listeners. Finally, be respectful. At a minimum, respect requires that we refrain from emotional outbursts and name-calling. Instead, we can utilize the skills we have as lawyers to express disagreement agreeably. We also need to seek to find commonalities—in positions or values—and acknowledge that we may need to agree to disagree. It is easy to be discouraged by the lack of civility in today’s society. Using these principles, lawyers can teach civility in action to the rest of society. By applying simple principles of civility—principles that are pivotal to our effective practice of the law—lawyers can play a role in improving the practice of civil discourse in modern society. —

NASHVILLE BAR JOURNAL | OCT/NOV 2019

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

OCTOBER 2019 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

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

1 LAW Board Mtg | 11:30am

2 Lawyers & Lattes 9:00am | Birch Building Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBA + YLD Cocktails for Costumes 5:30pm | Bastion

8 Ethics & Professionalism Committee Mtg | 12:00pm

3 NBF Leadership Forum Steering Committee Mtg | 4:00pm

Finance/Exec Mtg | 4:00/4:45pm

Memorial Service Committee Mtg 12:00pm

NBF Leadership Forum Alumni Happy Hour 5:30pm | Hi-Fi Clyde’s

4 Collegiality Coffee 10:30am | Historic Courthouse

Membership Committee Mtg | 9:00am NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell

NBF Trustees Mtg | 12:00pm

F R I D AY

Project C.U.R.E. 4:30pm | Nashville Distribution Center

15 YLD Annual Mtg 5:30pm | Hi-Fi Clyde’s

22 Are You A New Lawyer? Have Breakfast w/ the Judges! 7:30am | Metro Courthouse

NOVEMBER 2019 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

1 NBA Board Mtg | 4:00pm

NBF Leadership Forum Steering Committee Mtg | 4:00pm

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

4 NBF Trustees Mtg | 12:00pm

FREE Historical CLE The Case of Mary Northern 1:00pm | Nashville Public Library

6 New Member Biscuit Breakfast 7:30am Historical Committee Mtg 11:30am | Hal Hardin’s Office Diversity Committee Mtg | 12:00pm

Ethics & Professionalism Committee Mtg | 12:00pm

Membership Committee Mtg | 9:00am Fall Memorial Service 11:30am | Downtown Presbyterian Church

Finance/Exec Mtg | 4:00/4:45pm

THANKSGIVING DAY

DAY AFTER THANKSGIVING

Holiday | NBA Office Closed

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

29 3

JOURNAL JOURNAL Journal Journal

2019 NBA BOARD OF DIRECTORS LAURA SMITH, President

Hear Ye, Hear Ye |

Events of Interest

2020 Membership Renewals

Itâ&#x20AC;&#x2122;s time to renew your membership! The 2019 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. Please check with your administrator before renewing online to be sure you are not already part of our firm automatic renewal process. Thank you for your continued support! n

LAURA BAKER, President-Elect

JACQUELINE DIXON, First Vice President

WENDY LONGMIRE, Second Vice President SAL HERNANDEZ, Secretary MALAKA WATSON, Treasurer JEFF ALLEN, Assistant Treasurer GULAM ZADE, YLD President LELA HOLLABAUGH, General Counsel ERIN PALMER POLLY, Immediate Past President BRANT PHILLIPS, First Vice President-Elect TRACY KANE, Second Vice President-Elect MICHAEL ABELOW RAQUEL BELLAMY DANIEL BEREXA MARK BEVERIDGE HON. MELISSA BLACKBURN

NBA Annual Meeting & Banquet

Save the date! Please join us on December 5 for our Annual Meeting & Banquet. A reception for our members will begin at 5:30pm followed by dinner and the program at 7:00pm. Watch your NBA Weekly Update for details! n

BRIGID CARPENTER SAMUEL FUNK MARY TAYLOR GALLAGHER JEFF GIBSON LYNNE INGRAM MARTESHA JOHNSON RYAN LEVY CHANCELLOR ELLEN HOBBS LYLE LIZ SITGREAVES ERIC SMITH DARKENYA WALLER

2018 Annual Banquet Highlights

CHANCELLOR BILL YOUNG STEPHEN ZRALEK

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director VICKI SHOULDERS, Membership Coordinator, Office Manager TBD, CLE Director TBD, Administrative 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 still seeking nominations for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on Thursday, 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 18, expressing why you believe your nominee is deserving of this prestigious award. Visit NashvilleBar.org/Awards for more information. n

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Free Professional Headshots in November!

FREE Historical CLE

In a case that shook Nashville to its foundation 41 years ago, the Tennessee Department of Human Services was authorized to amputate the frostbitten and gangrenous feet of Mary Northern, 72, who would not grant permission to her physicians. The case went from Chancery to the US Supreme Court in a matter of days. For more details on the case, refer to page 41. Find out what happened in DHS vs. Northern at our annual FREE Historical CLE Program on November 8, at the Downtown Public Library. Make your reservations at NashvilleBar.org/MaryNorthern! n

Is your “current” headshot over three years old? Are you a new lawyer who doesn’t have a headshot yet? Either way, we’ve got your back! In today’s modern world, photos are one of the most important self-promotion tools an attorney can have. That’s why the NBA has partnered with J. Russell Photography—the nation’s leading executive portrait studio—to photograph our members for (1) our online Member Directory available at NashvilleBar. org/Directory, and (2) the 2020 Printed Attorney Directory. The photography sessions are FREE and will be held at the NBA offices the week of November 4–8. To learn more, visit NashvilleBar.org/Headshots today! n

Fall Memorial Service

Our Fall Memorial Service will be held on Thursday, November 21, at the Downtown Presbyterian Church. The service begins at 11:00am with a reception lunch—featuring Martin’s BBQ—immediately following in the Fellowship Hall. A project of the NBA’s Historical Committee, the memorial service honors the memory of those Nashville lawyers and judges who have recently passed away. Stay tuned to upcoming NBA Weekly Update emails and NashvilleBar.org/MemorialService for a list of those who will be honored. n

Pass the Bar Much?

Are you one of the lucky ones who passed the 2019 Tennessee Bar Exam? If so, the Nashville Bar Association would like to celebrate with you. On behalf of the Davidson County Judges, you are cordially invited to our Breakfast with the Judges: Up Close and Personal at the Metro Courthouse on Wednesday, October 30, at 7:30am. Visit NashvilleBar/ Breakfast to learn more. n

Nashville Bar Foundation Grant

The Nashville Bar Foundation is now accepting grant applications for 2020. If you know of any 501(c)(3) organizations that may be eligible for a Foundation Grant, please spread the word. View grant eligibility and application guidelines at NashvilleBar.org/NBFGrantGuidelines. The Foundation will allocate funding each budget year on the basis of written applications in a format prescribed by the Foundation. Grant applications can be found at NashvilleBar.org/NBFGrantApplication and are due in mid-January. Watch your NBA Weekly Update for further information. n OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Feature Story | Bruce Phillips

NASHVILLE BAR JOURNAL | OCT/NOV 2019

To Serve or Not to Serve: An Interview with Senator Lamar Alexander

We are a nation that prizes the rule of law—I’ve heard President Trump say that, and I’ve heard President Obama say that. — Lamar Alexander, December 21, 2018

Lamar Alexander in one of his many his comfort zones – at the keys with songwriters in The Tracking Room recording studio in Nashville.

Born July 3, 1940, and raised in Maryville, Tennessee, US Senator Lamar Alexander traces his Tennessee roots back seven generations. In 1962, he received a bachelor’s degree from Vanderbilt and in 1965, earned a JD from NYU. He clerked for Judge John Minor Wisdom on the Fifth Circuit, worked as a legislative assistant to US Senator Howard Baker, spent a year as staff assistant to President Nixon, and managed Winfield Dunn’s successful campaign for governor. Senator Alexander has served as governor of Tennessee (1979-1987), as president of the University of Tennessee

(1988-1991), as US Secretary of Education (1991-1993), and as a US Senator (since 2002). Earlier this year, Senator Alexander and his wife, Honey, celebrated 50 years of marriage. They have four children and nine grandchildren. Around his lifetime of public service, Senator Alexander has found time to write seven books, play piano, and even write songs. Senator Alexander has been a major supporter of the rights of songwriters. He co-sponsored the Music Modernization Act, which was signed into law in 2018. He currently serves as chairman of the Senate Health, Education, Labor and Pensions Committee. He also has been elected by his colleagues as the chairman of the Senate Republican Conference three times. In addition to his years of public service, Alexander also co-founded the Nashville law firm of Dearborn & Ewing, the Blackberry Farm resort in the foothills of the Smoky Mountains, and Corporate Childcare, Inc., which later merged with Bright Horizons, Inc. to become the world’s largest provider of worksite daycare. As of October 2019, Senator Alexander will have served more combined years as US Senator and Governor than any other Tennessean. NBA member Bruce Phillips caught up with him at his home in East Tennessee. Bruce Phillips: A recent study has shown that 36.5% of congressional members are also lawyers. Do you believe a legal education helps legislators form laws and public policy? Why or why not? (continued on page 8) (continued on page 00)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Feature Story | Lamar Alexander: It helps. The percentage of lawyers in Congress is smaller than it ever has been, but onethird still is substantial. The reason is obvious: if your job is to make, interpret, and debate laws, it helps to have studied the law. I attended New York University Law School on a Root-Tilden scholarship, which was awarded to college graduates based upon their academic achievement and aptitude for public service. NYU Dean Arthur T. Vanderbilt believed it was important to encourage what he called “practicing law in the Grand Manner.” BP: Does experience in the private practice of law help legislators and publicly elected administrators better perform their job as elected officials? LA: Yes. To be successful in the private practice, you have to be able to attract clients, work hard, write, and speak in compelling terms and be a vigorous advocate. All of these characteristics are useful for elected officials.

To Serve or Not to Serve (continued from page 7)

BP: Do attorneys possess common personal characteristics that assist them in public service? Likewise, do we possess common characteristics that prevent us from being the best public servants? LA: It depends. When asked about his Oklahoma congressman—a man who had a notorious reputation—the humorist Will Rogers once answered, “Well, I know the congressman, and I know the district, and I can tell you he is fairly representative of most of the people in the district.” Lawyers, like congressmen, also are fairly representative of the general population so you have some lawyers with good characteristics and some with not so good. Rigorous legal training, a code of ethics, and learning to distill the essence from a mound of facts all help to strengthen the characteristics that help good lawyers become good public servants. Bad characteristics? Former Senate Majority Leader Howard Baker used to say that the essence of being a good

US Senator is to become an “eloquent listener.” Lawyers are such good talkers they may forget to listen. Baker’s father-in-law, US Senator Everett M. Dirksen, once suggested after Baker made a long speech, “Howard, perhaps you might occasionally enjoy the luxury of an unexpressed thought.” BP: Were there areas of your dayto-day work as governor where you thought your legal education and experience in private practice helped you better perform your job? How about as a senator? LA: Learning to organize my thoughts and to write and speak in compelling, plain English. When I was elected governor, Tennessean publisher John Seigenthaler gave me a book by George Reedy, President Lyndon Johnson’s press secretary. In the Twilight of the Presidency, Reedy wrote that the job of a president is to (1) see an urgent need, (2) develop a strategy to meet the need, and (3) persuade at least half the people you are right. I found that was good advice for a governor or a senator. My legal training, especially on the New York University Law Review, taught me to write—and therefore to speak—in declarative sentences more likely to persuade the reader or listener. We spend a lot of time in my Senate office fooling with words, trying to say or write something that will persuade at least half the people that my strategies and policies are right. BP: Does one area of your experience—education, private practice, business, authorship, family, etc.—stand out to you as being more important than (continued on page 14)

NASHVILLE BAR JOURNAL | OCT/NOV 2019

TENNESSEE CHAPTER

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

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 627-9390

Gayle MALONE, Jr. (615) 651-6700

Paul DeHOFF (615) 631-9729

David NOBLIT (423) 265-0214

Matt SWEENEY (615) 726-5774

Barry L. HOWARD (615) 256-1125

Dan NOLAN (931) 647-1501

John TARPLEY (615) 259-1366

James KAY (615) 742-4800

Michael RUSSELL (615) 815-0472

Mark TRAVIS (931) 252-9123

Mark LeVAN (615) 843-0300

Tracy SHAW (615) 921-5204

Jack WADDEY, Jr. (615) 850-8752

Check preferred available dates or schedule appointments online directly with the stateâ&#x20AC;&#x2122;s top neutrals www.TennesseeMediators.org www.TennesseeMediators.org is is free, free, funded funded by by members members

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

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.

AUG/SEP GOLDEN OLDIES

Congrats to Gayle Malone, Jr. of Bass Berry & Sims for identifying the individuals in last issue’s photo. From left to right: Erin Palmer Polly and Sara Reynolds.

NBA Firm Spotlight

Thank you to the Bradley for all you do for the NBA. We value your membership and support!

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Editorial |

Junaid Odubeko

Partisan Gerrymandering: Outside Reach of Federal Courts On June 27, 2019, the Supreme Court issued its opinion in the consolidated cases of Rucho v. Common Cause and Lamone v. Benisek, ultimately holding that partisan gerrymandering claims present a political question outside the reach of the federal courts.1 The plaintiffs in both cases alleged that the gerrymandering undertaken by the state legislators in North Carolina and Maryland violated the First Amendment, Equal Protection Clause, and Article I, § 2 of the US Constitution. Mapmakers in both cases readily admitted that they drew the district lines in an effort to advantage one political party at the expense of the other. For instance, in Rucho, the chair of the Republican-controlled redistricting committee responsible for drawing the district lines openly stated that the map was drawn with the goal of electing 10 Republicans because he believed “electing Republicans is better than electing Democrats.”2 The lower courts in both cases held the maps were impermissible. Historically, the Supreme Court has struggled with claims of partisan gerrymandering. In the 1986 case of Davis v. Bandemer,3 the Court held that partisan gerrymandering claims were justiciable, although only a plurality of the Court stated

that partisan gerrymandering violated the Equal Protection Clause. The high court took up the issue again in the 2004 case Vieth v. Jubelirer,4 which involved a challenge to the post-2000 redistricting of Pennsylvania’s congressional districts. Again, the Supreme Court did not reach a definitive conclusion. In Justice Antonin Scalia’s plurality opinion, the four conservative justices held that partisan gerrymandering was a political question off limits to the courts because there are no “judicially discernible and manageable standards” for gauging when mapdrawers went too far.5 Four other justices disagreed, arguing that it was proper for courts to intervene in partisan gerrymandering cases. Falling between the two camps, Justice Anthony Kennedy affirmed that partisan gerrymandering is an issue courts can decide, but he determined that none of the proposed standards would suffice. Nevertheless, Justice Kennedy refused to believe that the Court should foreclose all relief for political gerrymandering. This summer the Supreme Court, with Chief Justice Rob(continued on page 12)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Editorial |

Partisan Gerrymandering: Outside Reach... (continued from page 11)

erts writing for the majority, reversed the lower court in Rucho and Lamone, holding that partisan gerrymandering claims are non-justiciable political questions. Adopting an originalist approach, the 5-4 majority opinion rejected each of the plaintiffs’ claims that partisan gerrymandering violated any provision of the Constitution. The Rucho district court opinions borrowed from the racial gerrymandering cases, requiring the plaintiffs to prove that the mapdrawer’s “predominant purpose” was to subordinate the will of one political party at the expense of the other.6 The Supreme Court held that the test for racial gerrymandering cases fell flat when applied to partisan gerrymandering claims: “A permissible intent—securing partisan advantage— does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.’”7 In an attempt to narrowly tailor the standard to be judicially manageable, the Rucho district court also required the plaintiffs to show that the partisan gerrymander would persist in future elections such that the prospective winner would ignore those constituents that fell in the gerrymandered minority. The Supreme Court rejected this effort, aptly noting that such a showing not only required a “nuanced prediction”8 regarding which candidate would prevail in years to come, but that the winner would also obtain a margin of victory large enough to overlook those voters who supported the other candidate. Similarly, the Court also rejected the plaintiffs’ First Amendment claims that the gerrymandered districts burdened voters’ political speech and associational rights. The Court found that redistricting plans did not implicate 12

any First Amendment rights given that voters are free to exercise their First Amendment rights “no matter what the effect of a plan may be on their district.”9 The Court later reasoned that recognizing a claim for discrimination based on political affiliation in the redistricting process would invalidate every plan that considers any level of partisanship. Lastly, the Court swiftly rejected any argument that partisan gerrymandering violated the Elections Clause and Article I, § 2, relying on the Court’s pronouncements from the plurality in Vieth to hold that neither provision “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”10 Notably absent from the Court’s opinion was any statement that the express holding of Davis v. Bandemer was overruled. Justice Kagan authored a scathing dissenting opinion on behalf of the four liberal justices, accusing the majority of refusing to remedy “a constitutional violation because it thinks the task beyond judicial capabilities.”11 After detailing the ways in which partisan gerrymandering “have debased and dishonored our democracy,” the dissent concluded that it would have upheld the District Courts’ decisions and found partisan gerrymandering claims to be not only justiciable, but unconstitutional. The departure of Justice Kennedy undoubtedly played a decisive role in the Court’s decision to depart from the pronouncements of Bandemer. Justice Kennedy had long acted as the swing vote on partisan gerrymandering claims. Just last year, the Supreme Court seemed to indicate that future partisan gerrymandering claims could proceed, and be found justiciable, if presented

NASHVILLE BAR JOURNAL | OCT/NOV 2019

under a theory of vote dilution. Although the Supreme Court has declared that partisan gerrymandering claims are non-justiciable, there are still avenues to address these claims. State courts will likely see increased litigation attempting to strike down gerrymandered districts, and more states will push to enact independent redistricting commissions. The Court’s decision in Rucho and Lamone gives a green light to state legislatures and mapmakers to maximize the number of seats they can win through partisan gerrymandering. With new technology available to mapmakers, the next round of redistricting following the 2020 census promises to be the most aggressively partisan redistricting cycle in the history of the Country. n Endnotes 1 Rucho v. Common Cause, __U.S.__139 S. Ct. 2484, 204 L. Ed. 2d 931 (2019). 2

Id. at 2491.

Davis v. Bandemer, 478 U.S. 109 (1986).

Vieth v. Jubelirer, 541 U.S. 267 (2004).

Vieth, 541 U.S. at 279.

Rucho, 139 S. Ct. at 2502; see also Common Cause v. Rucho, 318 F. Supp. 3d 777, 867 (M.D.N.C. 2018), vacated and remanded, 139 S. Ct. 2484 (2019). 6

Rucho, 139 S. Ct. at 2503.

Id. at 2503.

Id. at 2504.

Id. at 2505.

Id. at 2509 (Kagan, J. dissenting).

JUNAID ODUBEKO is a litigator at Bradley focusing his practice on advising and representing clients in complex commercial and business disputes and real estate litigation. Junaid also represents and advises clients in the political arena on legal issues and issues related to campaign finance. Prior to joining Bradley, Junaid served as legal counsel and deputy legal counsel to Governor Phil Bredesen, serving as the governor’s liaison to the Tennessee Attorney General and each state agency.

BACKGROUND CHECK

Bob Mendes | Bart Pickett

In what has seemed like a never-ending election cycle in recent times, one person stood out and breezed to an outright victory to a second term as a council member at-large on August 1. One might wonder how a Chicago-native could come into a crowded field of candidates and be the only one to emerge elected short of a runoff. Bob Mendes credits his work ethic and unassuming, natural leadership style—he just tries to do the right thing and let the chips fall where they may. A lifelong Cubs fan, Mendes grew up three miles from Wrigley Field in an apartment building owned by his uncle and occupied mostly by his large, Catholic family. He attended parochial schools until college and left Chicago in 1984 to attend the University of Illinois in Champaign. He studied aeronautical engineering for two years, but following the Challenger explosion, he switched his major to political science. He graduated from college in 1988 and headed back home to start law school at the University of Chicago. Throughout law school, Mendes worked for the legal aid clinic where he represented tenants from housing projects in a federal class action suit. After his second year, he worked at a large law firm in town and accepted a business litigation associate position

there for post-graduation (1991-1995). In 1992, he met his wife, Sue, who was living in Atlanta at the time. They ultimately decided to move to Nashville—a city in the middle—not knowing a single soul there. Mendes took the Tennessee bar exam, and following a swearing-in ceremony by Judge Thomas Shriver, he took Judge Shriver up on his offer to take some indigent criminal arraignment appointments. The first morning, Mendes appeared in Judge Shriver’s court having never seen an arraignment. In the years that followed, he ended up doing criminal appointments and credits his time at the courthouse with much of his current success. It was there where he developed relationships with some wonderful people who have been friends, mentors, and business referrals for him over the years, including Judge Randall Wyatt, Judge Ana Escobar, and Judge Shelia Calloway. In 1998, Mendes started a firm which eventually became known as MGLaw and focused on litigation within the bankruptcy world. In 2008, his law partner moved to the Virgin Islands, leaving Mendes managing a nine-person firm until 2012 when they merged with Frost Brown Todd. By then, he had decided it was time to give up the management aspect and focus on practicing. Mendes had not really considered public service until he served a term on the NES board following an appointment by Mayor Dean. During that time, he ascended to chair of the five-person board. After that experience and his involvement in the 2014 Tennessee Supreme Court judicial retention election, he decided to run for Metro Council for an at-large position in 2015. Having finished as a top 10 finisher in the general election, Mendes easily won one of the 5 positions in the

runoff. Once involved in the political world, Mendes determined that big firm life might not fit neatly. Given Frost Brown Todd’s strong lobbying practice and to avoid potential conflicts of interest, Mendes decided to leave and start Waypoint Law along with his now-partner, Mark Donnell. At Waypoint, they focus on low-volume, high complexity in terms of cases. Their business law practice includes bankruptcy, litigation, and transactions. When the new council term begins, Mendes plans to continue working on making the Metro government be more transparent and effective. For the last four years, he has served on the Budget and Finance Committee and hopes to continue to do so. Mendes also remains active in the nonprofit community. He served on the NBA board of directors from 2008 to 2011, serving as president during his last year. He currently sits on the Nashville Bar Foundation board, Father Ryan High School board, Park Center board, and the New Level Community Development Corporation board. Mendes and his wife, along with their two teenage daughters, live in the Hillsboro-West End neighborhood, not far from his office. You might even see the alternative transit supporter riding his electric bike between the two. 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.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Feature Story | any other area in your day-to-day work as a senator? LA: Yes. When I was running for president of the United States in 1996, William Bennett, the former Education Secretary for President Reagan, was my campaign chairman. In most of my speeches, I would talk about the values that I grew up with in Maryville. One day, Bennett said to me, “Lamar, not every town is like Maryville.” “Well, Bill,” I said, “They should be.” Over 79 years, I have learned a lot from a lot of people in a lot of places, but the most lasting lessons have come from my family, church, scout troop, community, and schools in which I grew up in Maryville. And there is something about a small town that encourages achievement and adventure. BP: Generally speaking, do you believe there are professions/experiences other than the practice of law that are particularly helpful in preparing a person for a life of public service as an ad-

To Serve or Not to Serve (continued from page 8)

ministrator or legislator? LA: Of course. Any profession that exposes you to a variety of experiences is good preparation for public service. John McCain’s military experience made him a better senator. Senator Mike Enzi of Wyoming is an accountant and, therefore, a better chairman of the Senate Budget Committee. Senator Patty Murray of Washington State was a kindergarten teacher and a “little mom in tennis shoes” who puts her background to work in our Senate health and education committee. It works the other way too. Sometimes a businessperson makes a lot of money doing one narrow thing and, as a result, thinks he or she knows everything. Such people usually have a hard time in public life. BP: Senator, you gave up a promising career in private practice to enter public service. Would you encourage a young attorney in 2019 with credentials similar to yours in the mid-70’s to do the same?

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LA: Yes. But the more responsible advice would be that a young person would be better off building a family, career, reputation, and income before launching into the uncertainty of political life. On the other hand, while there are many public service opportunities, the right ones do not always arrive at a convenient time. So I followed the advice of Boss Plunkitt of New York City’s Tammany Hall who said, “I seen my opportunities and I took ‘em.” In 1974, I ran for governor at age 33, when very few thought I would win—and I didn’t. In fact, The Tennessean reported after I lost that there wouldn’t be another Republican governor for 50 years. I was elected governor in my second try, four years later. BP: Do you have any advice for lawyers entering politics? Are there unexpected challenges they can expect to face? LA: Be prepared to have everything about your private life (going back to your high school yearbook) made public. Usually the best way to handle any problems is to announce them yourself at the beginning of your campaign or appointment. In other words, tell the truth. It’s the right thing to do, and it will confuse your opponent. If you announce your own mistakes, usually the public pays little attention because most people have made a mistake or two during their lifetimes. BP: For those less interested in becoming politicians but interested in becoming more active in community and social issues, what have you found to be the most effective ways to reach out and (continued on page 42)

NASHVILLE BAR JOURNAL | OCT/NOV 2019

ROCK THE VOTE

2020 Board Nominees | Ballots Coming in November!

Be sure to vote in the upcoming 2020 NBA Board Election! Renew your membership at NashvilleBar.org/Renew no later than October 31 for eligibility. Michael Russell is a full-time mediator and arbitrator. He founded Russell Dispute Resolutions after almost 20 years as a litigator. He graduated Phi Beta Kappa and summa cum laude from the University of Tennessee, Knoxville and earned his law degree from the University of Memphis where he graduated magna cum laude and was a Humphreys Law Fellow. In addition to his mediation practice, Michael has served on the adjunct faculty at the Belmont University College of the Law. He has published articles in the American Journal of Trial Advocacy, the Ohio Northern University Law Review, the Seton Hall Constitutional Law Journal, and Employee Rights Quarterly. Michael currently co-chairs the NBA’s Alternative Dispute Resolution Committee and is a former chair of the Tennessee Bar Association’s Labor and Employment Section. In 2018, he chaired NBA’s cultural immersion trip to Cuba. Michael served two terms on the board of the University of Tennessee National Alumni Association, co-founded the Podcast Committee of the American Bar Association Section on Dispute Resolution, and previously hosted reg

ular podcasts for the ABA on mediation and arbitration. Michael is especially interested in the way bar associations can better serve small firm and solo practitioners. He is also passionate about access to justice issues among the more vulnerable residents in our community. n Marlene Eskind Moses graduated from Tulane University and earned her law degree from the Nashville School of Law where she later received the Outstanding Alumni Award. She currently manages MTR Family Law, and is a past president of the American Academy of Matrimonial Lawyers, receiving its Outstanding Fellow of the Year Award in 2001. Marlene is a Diplomate in the American College of Family Trial Lawyers and a member of their Executive Committee. She is a Fellow in the International Academy of Matrimonial Lawyers serving as president-elect, and was past president of the International Academy of Matrimonial Lawyers’ US Chapter. Marlene also served as a member and past president of the Board of Law Examiners for the (continued on next page)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

ROCK THE VOTE

2020 Board Nominees | Ballots Coming in November! State of Tennessee. In 1993, she served as first vice president of the NBA. Marlene is a member of the American Bar Association, the Tennessee Bar Association, Tennessee Lawyers Association for Women, and the Lawyers Association for Women. Marlene is a certified mediator and arbitrator by the American Academy of Matrimonial Lawyers and is certified by The National Board of Trial Advocacy as a family law trial specialist. n Gulam Zade is the CEO of LOGICFORCE, a legal IT consultancy serving law firms across the country. He received his BA from Western Kentucky University and his JD from the Louis D. Brandeis School of Law at the University of Louisville. Gulam is currently president of NBA Young Lawyers Division and has served multiple terms as the chair of the NBA’s Bankruptcy Court Committee. He was a member of the inaugural class of the Nashville Bar Foundation Leadership Forum and currently serves as the Forum’s cochair. In addition to the NBA, Gulam serves on the advisory board for the Association of Corporate Counsel annual meeting, is vice-chair of the National Small Law Department Network, and treasurer of the Tennessee Chapter of the ACC. He is on the board of directors and president of the Mid-South Commercial Law Institute, which conducts an advanced two-day CLE seminar on commercial and bankruptcy law. He also chairs the Cystic Fibrosis Foundation’s Young Professionals Board. Gulam is a recent recipient of the Nashville Area Chamber of Commerce’s Nashville Emerging Leader Awards (NELA), the Nashville Business Journal’s 40 Under 40 Award, a multi-year winner of the publication’s Best of the Bar Award and was named one of Nashville’s Top 30 Under 30 by the Cystic Fibrosis Foundation’s Middle Tennessee Chapter. n Jola Moore was licensed in Tennessee in January 1990 after moving to the US after her marriage to Jeffrey Moore, MD in December 1988. She graduated from the University of Lagos, Nigeria with a Bachelor of Law degree in 1980 and obtained 16

NASHVILLE BAR JOURNAL | OCT/NOV 2019

a Barrister at Law Certificate to practice law in Nigeria in 1981. She practiced with the law firm of Onagoruwa & Co in Lagos, Nigeria from 1981 until 1988. Jola worked with the Tennessee Department of Health and was counsel to the Board of Medical Examiners, The Board of Nursing, and The Board of Chiropractic Examiners, prosecuting malpractice and other disciplinary issues. She has been in private practice since 1994 and focuses on estate planning, wills, trust and probate, and personal injury. Jola chaired the NBA’s Minority Opportunities and Solo/Small Firm Committees and is a member of the Lawyer Referral Committee, the Probate Committee, and the Sister Cities Committee. She was named a Fellow of the Nashville Bar Foundation in November 1999, and is also a member of the Tennessee Bar Association, Napier-Looby Bar Association, and the Lawyers’ Association for Women. Jola was appointed to the Board of Directors of the Tennessee Protection & Advocacy from 1999 to 2003 and was elected as chairperson from 2002 to 2003. n Jaz Boon is an associate attorney in Waller’s Trial and Appellate Practice Group, where his practice focuses primarily on complex commercial and construction litigation, as well as environmental enforcement defense and compliance. Prior to joining Waller, he served as a judicial law clerk to the Honorable Richard H. Dinkins on the Tennessee Court of Appeals. In 2014, Jaz obtained a law degree as a member of Belmont Law’s Charter Class and a degree in biology from Lipscomb University in 2003. Jaz is a member of the NBA Young Lawyers Division and a 2019 graduate of the Nashville Bar Foundation’s Leadership Forum class. In addition, he currently serves as chair of the Tennessee Bar Association’s Environmental Law Section and is on the Board of Directors for the Nashville Children’s Alliance. Jaz’s interests include improving opportunities for and the retention of diverse attorneys in law firms as well as encouraging healthy life habits for attorneys. n J.K. Simms is a partner with Thompson Burton, PLLC and leads the firm’s employment law practice. He received his (continued on next page)

ROCK THE VOTE

2020 Board Nominees | Ballots Coming in November! undergraduate degree from Lipscomb University and his law degree from the University of Tennessee College of Law. For his nearly two decades of practicing law, JK has been active in the Nashville and Tennessee Bar Associations. He was recognized as Best of the Bar by the Nashville Business Journal in 2015 and 2016, as a “Super Lawyer” by the Super Lawyers publication every year since 2014, and by Best Lawyers in America for his work in employment law every year since 2017. In addition to JK’s legal work, he currently serves as Board Chair of a global nonprofit organization based in Nashville which focuses on prevention of human trafficking. Bar issues of interest are the increasing need for younger lawyers to be mentored by more experienced lawyers who are committed to investing in the future of the NBA and exploring opportunities for the bar to be actively involved in activities that serve our communities. n Yanika “Nikki” Smith-Bartley received her bachelor’s degree in Psychology from Fisk University and her JD from Vanderbilt University Law School. She currently holds the position of Vice-President & Special Counsel, Diversity and Inclusion at Asurion. She also serves on their Human Resources Leadership Team. Under her leadership, Asurion has been recognized both nationally and locally for its diversity and inclusion program. Before joining Asurion, Nikki practiced employment law at Baker Donelson, where she also served as a diversity inclusion trainer, vice-chair of the Diversity Committee, and as a member of the Recruiting Committee. She is a past president of the Marion Griffin Chapter of the Lawyers’ Association for Women, served as secretary for the Nashville and Napier-Looby Bar Associations, is an alumnus of Tennessee Bar Association Leadership Law, Young Leaders Council, and Harry Phillips American Inn of Court, and a past board member of Bethlehem Centers of Nashville and Nashville Electric Service. Nikki currently serves on the boards of Nashville Public Television and CABLE. She is also an active member of the Williamson County Area County Chapter of Jack and Jill of America and Kappa Lambda Omega Chapter of

Alpha Kappa Alpha Sorority. Nikki also received the following Nashville Business Journal awards: Women of Influence – Trailblazer (2019), Best of The Bar (2017) and Top 40 Under 40 (2013), and is a Fellow of the Nashville Bar Foundation. n Junaid Odubeko is a partner at Bradley. He practices in the areas of commercial and real-estate litigation, administrative law, and election law. He received his undergraduate degree from the University of Tennessee, Knoxville in 2001 and his JD from Vanderbilt University Law School in 2004. Junaid is an active member of the NBA, a Fellow of the Nashville Bar Foundation, and a graduate of the Tennessee Bar Association Leadership Law Class of 2010. Outside the bar, he has served on the boards for Hands on Nashville and the Imagination Library of Middle Tennessee. He has also served as legal counsel and deputy legal counsel to Governor Phil Bredesen, serving as the governor’s liaison to the Tennessee Attorney General and each state agency. In addition, he has served as an adjunct professor of Campaign Finance and Elections Law at Vanderbilt University Law School. Junaid’s areas of interest include promoting and increasing diversity in the within the legal profession and fostering civility amongst the members of the bar. n Lora Barkenbus Fox is a senior litigator for the Metropolitan Government Department of Law. She received her undergraduate degree from Indiana University and her JD, cum laude, from Georgetown University. Lora served as co-chair of the NBA’s Government Law and Candidate Evaluation Committees, and as member of the NBA’s Appellate Practice Committee. She is active in the Belmont Law School Inn of Court and Davidson County Youth Court. She has also served as secretary, newsletter editor, breakfast co-chair, archivist, and lean-in mentor for the Lawyers’ Association for Women. She is the co-founder and president of the nonprofit Friends of Green Hills Park and enjoys vigorous athletic pursuits, including chasing her three children. (continued on next page)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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2020 Board Nominees Since the mission of the NBA is to improve the practice of law through Education, Service, and Fellowship, Lora’s goals as a board member are to (1) create a forum—such as a speaker’s bureau—so that members can easily share their expertise with the community, serve as a resource for the local media, or speak at conferences or community meetings, (2) continue the very fine services that the NBA already provides to the bar and community, and (3) focus on quick social mixers for attorneys with children and pets (i.e., lunches or other brief gatherings out of the office in a relaxed setting). n William J. “Paz” Haynes, III is a member of Bone McAllester Norton. He received his BA from Johnsj Hopkins University in 1992 and his law degree from Vanderbilt University in 1995. His law practice concentrates on business, labor and employment, administrative, healthcare, and commercial and civil litigation. Paz has served as president of both the Napier-Looby Bar Association and Foundation, and was Secretary of the Tennessee Bar Association. He has served on the board of the NBA and is a Fellow of the Nashville Bar and Tennessee Bar Foundations. In 2017, Paz was appointed to the Board of the Tennessee Registry of Election Finance. In addition to bar association and civic activities, Paz has served on the Father Ryan High School Board of Trustees, the Pastoral Council, the Christ The King School board, and the board of the Belcourt Theatre. He currently serves on the Board of Directors of Tennessee Justice for Our Neighbors. Paz has also been involved in the arts, representing and promoting visual artists and musicians during his practice. He has published two poetry collections. He is a civil servant, poet, lifetime student, “yogi,” and steward of his faith. His hobbies and interests include history, philosophy, theology, and sports. n After graduating from Vanderbilt University School of Law, Luther Wright, Jr. began his career with a general practice firm in the litigation section. He spent the first several years of his legal career practicing in the general litigation area

NASHVILLE BAR JOURNAL | OCT/NOV 2019

before joining the labor and employment team at Ogletree Deakins. Luther has significant experience in the areas of labor and employment law, corporate business litigation, and complex litigation, including class action and collective action lawsuits. He typically represents management in all forms of employment discrimination litigation, including litigation based on federal anti-discrimination statutes, state statutes and common law, violence in the workplace, Fair Labor Standards Act claims, and independent contractor disputes. Luther also devotes a significant amount of his practice to day-to-day client advice and supervisor/employee training. n Julie Bhattacharya Peak is Resident Attorney for Liberty Mutual Insurance Company where she manages a diverse team of trial attorneys in the defense of its insureds across the State of Tennessee. She is a 1997 graduate of Rhodes College and 2000 graduate of the University of Memphis Cecil C. Humphrey’s School of Law. She served as the judicial law clerk to the Honorable William C. Koch at the Tennessee Court of Appeals and was an equity partner at Ortale Kelley. Julie is an active member of the NBA, having been named a Fellow of the Nashville Bar Foundation in 2012. She is a member of the Diversity Committee and has served as a speaker for various NBA programming. She was part of the inaugural class of the Tennessee Bar Association Leadership Law program, chaired the Tennessee Bar Association Tort & Insurance Practice Group, and served on the Tennessee Bar Association’s Diversity and Bench and Bar Committees. She also serves on the board of the Lawyer’s Association for Women and co-chairs its annual Empowerment Conference. Julie also serves as a trustee of The Oak Hill School, chairing the Diversity, Equity, and Inclusion Committee and is legal advisor to the board of Mother to Mother. She is eager to bring her passion for growth and support of diverse professionals within the organization, fostering a culture of inclusivity and respect within the profession. n

BILL & PHIL’S GADGET OF THE MONTH

Should We Allow Cellphone Voting? |

Should we make voting for politicians like voting for Dancing with the Stars? We love our cellphones, as we have made abundantly clear in many previous articles. We also consider it our public duty to vote in every election. So, when we read about opportunities to vote from mobile devices (making the voting experience simpler and quicker), we became very interested. Think about it. We all use our phones for mobile banking and for pretty much everything else you can do—no matter how personal or private. Those transactions are very secure—sometimes. Why can’t our voting be just as secure? If we can improve our democracy by increasing accessibility for our voters (and thereby, hopefully, increasing the level of participation) and still make the voting process secure, wouldn’t that be a win-win situation? There have been a few efforts to open voting via telephone in the US. For example, the Democratic National Committee (DNC) offered to have a telephone voting option in the presidential caucuses in Iowa and Nevada

for 2020. However, only a few weeks ago (August 31, 2019), the DNC— through its Rules and Bylaws Committee—concluded that there was too great a risk of outsiders disrupting the “virtual voting” process in Iowa and Nevada. The DNC, in making this decision, relied strongly on reports of the Senate Intelligence Committee on Russian activity in previous elections. Too bad. We would have liked to have seen how the experiment worked. Iowa’s solution was a bit clunky. It divided its virtual voters into four precincts and the virtual votes would only be awarded 10% of the delegates for the night. In addition, the virtual caucus participant would need to register beforehand. Each voter would receive an email login and virtual voting would only be open on certain times and dates. The voters would dial and listen to recordings where the candidates were listed. They would then enter their choices according to their rank on their keypad, sort of like paying their bill by phone (or like voting on Dancing with the Stars). Nevada, on the other hand, planned on developing an app for cellphones that would be used by the precinct caucus chairs. It is all moot anyway. Apparently, the DNC ran some tests and the systems appeared to be vulnerable to hacks, so the DNC decided that “there was no company that can [make it secure].” In West Virginia, an Uber investor, Bradley Tusk, financed a pilot project to allow West Virginians who were in the military and living overseas to cast their ballots through a smartphone app. The app at least

Bill Ramsey & Phillip Hampton appears to be secure. Tusk believes that modernizing voting through the use of cellphones is the way to remedy the problem with low voter turnout. His app is called Voatz. It works like this. You use Voatz to take pictures of government issued ID cards and then verify your identity by taking a selfie and letting an app identify your face. The app uses blockchain technology (which was discussed in the September 2017 Online Gadget of the Month, Bitcoin, Ether, Cryptocurrency & Such). This technology allows the record of each vote to exist on several different computers as a double-check for the integrity of the voting record. Tusk apparently spent $250,000 to subsidize the project, and he is prepared to spend at least $1M to make it work in other states. With all the controversy surrounding Russia’s meddling in our elections, cellphone voting certainly has its detractors. However, it does appear that our populous wants to vote by phone. Consumer Reports conducted a 2016 survey in which one-third of the respondents said they would be much more likely to vote if they could do it from a device like their smartphones. In fact, over 30 states already allow people—like service members—to file absentee ballots online. Voting online, however, limits the ability to keep the voting records anonymous. Given the ability to trace Internet records to the device that created the record, it is almost impossible to separate the voter’s identity from the actual vote they cast. The people who created Voatz claim that not only is it more secure (continued on page 20)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Gadget of the Month |

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

Should We Allow Cellphone Voting? (continued from page 19)

than merely logging onto the Internet to vote, but it also can keep the identity of the voter anonymous. All the records entered into the Voatz system are supposed to be protected by encryption, and the principals at Voatz are the only ones holding the encryption key. In addition, the voters can take a screenshot of their vote to maintain a hard copy for a security audit or receive an email confirming their vote. Despite all the critics, naysayers, and concerns regarding security, we think voting by cellphone is a good idea. We are hopeful that the creators of this technology can figure out a way to protect the integrity and security of voting and make the exercise of our voting rights less burdensome. If Dancing with the Stars can do it, so can our election officials . . . maybe. n See you next time,

We are committed to protecting

your clients’ IP assets, leaving you

to focus on all other legal matters. Learn more at iplawgroup.com.

— Bill & Phil

VOLUNTEER FOR DIAL-A-LAWYER Thank you to our August and September volunteers!

GINA CRAWLEY LESLIE FORSLEY TOM LAWLESS WENDY LONGMIRE

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 dinner is provided.

Or i g i n a l Th i n k i n g. U n i q ue P r ot e c t ion.®

NASHVILLE BAR JOURNAL | OCT/NOV 2019

To learn more, visit NashvilleBar.org/DialALawyer

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. W E DNE S DAY, OCTOBER 1 6 | LIVE SE M I N A R

TH U R S D AY, OC TOB E R 17 | LI V E SEMIN A R

LUNCH WITH CHIEF JUDGE KENNETH M. SWITZER & JUDGE DALE TIPPS

ESTATE PLANNING & PROBATE PRACTICE INSTITUTE

Court of Workers’ Compensation Claims OVERVIEW The ninth Lunch with the Judges CLE presenters are the Honorable Kenneth M. Switzer, Chief Judge of the Court of Workers’ Compensation Claims, and the Honorable Dale Tipps, Court of Workers’ Compensation Claims Judge. They will address issues, tips, and insights related to practice in the Court of Workers’ Compensation Claims.

OVERVIEW Co-produced by the Estate Planning & Probate Committees The NBA Estate Planning and Probate Committees are pleased to present their annual Estate Planning and Probate Practice Institute. Registrants are invited to join their colleagues for a networking lunch and four hours of CLE credit.

PRESENTERS Honorable Kenneth M. Switzer Chief Judge, Court of Workers’ Compensation Claims Honorable Dale Tipps Judge, Court of Workers’ Compensation Claims 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59 For registration after October 14, add a $10 late fee.

PRESENTERS For a full list of presenters along with travel information, visit NashvilleBar.org/EstatePlanningProbateInstitute. D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 15, add a $10 late fee.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

T U E S DAY, OCTOBER 2 2 | LIVE SEMINA R

WE D N E S D AY, OC TOB E R 23 | LI V E S EM IN A R

ENVIRONMENTAL LAW LITIGATION ROUNDUP

AN INTRODUCTION TO THE STUDENT LOAN PROBLEM

OVERVIEW

Produced by the Environmental Law Committee

There are 1.5 trillion dollars in outstanding student loans in the US that affect 40 million Americans. As attorneys, we need to have a basic knowledge of how to assist our clients in the handling of this type of debt and best be able to explain options.

The NBA Environmental Law Committee invites you to their litigation roundup discussing recent judicial opinions and ongoing/pending cases that are likely to produce such opinions soon. Our speakers will cover cases from the state and Supreme Court of the United States. This seminar is free, with a fee for those seeking CLE credit.

The student loan problem is often very confusing and misunderstood by the student loan borrower as well as the public in general. It is multi-generational and continues to be the number one hurdle for the first-time home buyer. Student loans can, and often do, negatively impact retirement, saving, job opportunity, and employment options. This CLE is particularly relevant for practitioners who advise consumers, consumer advocates, bankruptcy attorneys, and debt defense attorneys. You will learn:

PRESENTERS Jenny Howard, General Counsel Tennessee Department of Environment & Conservation Amanda Garcia, Southern Environmental Law Center J.B. Ruhl, Vanderbilt Law School

• Basic types of student loans • Application of the statute of limitations • How to cure defaulted student loans • How to manage student loans based on income • How to utilize the Bankruptcy Process to address student loans PRESENTER D.J. Rausa Bankruptcy and Student Loan Lawyer D E TA I L S

D E TA I L S

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

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

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

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

COST

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 21, add a $10 late fee.

T HURS DAY, OCTOBER 2 4 | LIVE SEMI N A R

FR I –S AT, OC TOB E R 25–26 | LI V E SEM IN A R

HOW TO AVOID CONFLICT OF INTEREST MALPRACTICE MISSTEPS

THE KENTUCKY BOURBON TRAIL AND KEENELAND CLE

OVERVIEW

Journey with the NBA to the historic Kentucky Bourbon Trail and enjoy an afternoon of races at the Keeneland Racecourse.

Brought to you by ALPS—a Strategic Sponsor of the NBA—this ethics program will begin with a brief review of the specific conflict rules from the Rules of Professional Conduct.

OVERVIEW

From there, Mark Bassingthwaighte will challenge the typical excuses for not maintaining a formal conflict checking system and addressing in detail what a state of the art conflict checking process looks like. The program will conclude with a discussion of common conflict missteps that lawyers make coupled with practical advice on how to avoid these missteps. Join us for a light breakfast before the seminar, sponsored by ALPS.

Registration includes bus transportation to and from Kentucky, general admission to Keeneland for afternoon races, two bourbon tastings, 2.5 hours of CLE credit, and lunch at historic Bardstown’s Old Talbott Tavern on Saturday. A block of rooms has been reserved for this event; please see “Travel” section online to book your room (not included in registration fee). Space is limited—reserve your spot today! PRESENTERS

PRESENTER Mark Bassingthwaighte, Esq. Risk Manager, ALPS Property & Casualty Insurance Company D E TA I L S Registration & Breakfast. . . . . . . . . . . . . . . . . . 7:00 – 7:30am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7:30 – 8:30am

For a full list of presenters along with travel information, visit NashvilleBar.org/BourbonTrailCLE. D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am Seminar and Trip. . . . . . . . . . . . . . . . . . 9:00am – 5:30pm (+1) Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual

COST*

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

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $319

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 22, add a $10 late fee.

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $419 Non-Attorney Guests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $219 Includes $50 late fee (for registration after September 10). *Cost does not include hotel room. Please visit NashvilleBar.org/BourbonTrailCLE for information on booking.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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FAMILY LAW INSTITUTE

FROM X TO BLACK

OVERVIEW Produced by the Domestic Relations Committee The NBA Domestic Relations Committee presents the annual Family Law Institute, featuring a networking lunch and four hours of CLE. This year’s institute includes Judge Phillip Robinson’s and Judge Philip Smith’s perspectives from the bench, a case law update, and a session on Collaborative Law: Rule 53.

Litigating the Ride-sharing Injury Case OVERVIEW Ride-sharing services like Lyft and Uber have been in the Nashville market since 2013. Wrecks involving these vehicles are inevitable and bring their own set of unique issues. This program will explore special considerations in auto injury cases involving ride-sharing vehicles, including pre-suit investigation, the ordinances and laws that apply to rideshare vehicles, the insurance policies at play, the independent contractor defense, and discovery tools in the litigation process.

PRESENTERS Honorable Phillip Robinson Circuit Court, 20th Judicial District, Div. III Honorable Philip Smith Circuit Court, 20th Judicial District, Div. IV Grant Glassford Law Office of Grant C. Glassford Irwin Kuhn Venick, Kuhn, Byassee, Austin & Rosen, PLLC Brenton Lankford Stites & Harbison, PLLC D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am Seminar & Lunch. . . . . . . . . . . . . . . . . . . . . . 9:00am – 1:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 24, add a $10 late fee. 24

NASHVILLE BAR JOURNAL | OCT/NOV 2019

PRESENTER Laura Baker Law Offices of John Day, PC D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 25, add a $10 late fee.

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GUN LAW UPDATE & SKEET SHOOTING AT NASHVILLE GUN CLUB

SOLO & SMALL FIRM INSTITUTE

OVERVIEW Join us for a gun law update and skeet shooting at Nashville Gun Club. Attorney John Harris will provide an overview of gun laws in Tennessee and discuss constitutional provisions, terminology in state and federal statutes, and expected legislation. A round of skeet shooting will follow the seminar.

OVERVIEW Produced by the Solo & Small Firm Committee You are invited to our annual Solo & Small Firm Institute. Our anticipated topics include time management, technology, ethics, and more—all targeted for small firm and solo attorneys. Registrants will gain access to networking opportunities throughout the seminar, which offers special discount pricing, ethics credits, and lunch!

PRESENTER John I. Harris III Schulman, LeRoy & Bennett D E TA I L S Registration at Nashville Gun Club. . . . . . . . . . 1:30 – 2:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:00 – 3:00pm

PRESENTERS

Skeet Shooting . . . . . . . . . . . . . . . . . . . . . . . . . 3:00 – 5:00pm

For a full list of presenters along with agenda information, visit NashvilleBar.org/Solo.

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . . . . . . Nashville Gun Club

D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . . . . 11:15 – 11:30am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 4:30pm Credit. . . . . . . . . . . . . . . . . . 3.0 Dual & 1.0 General (Pending) Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

COST (INCLUDING SKEET SHOOTING) CLE Easy Passholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $85 NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $120 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $160 Non-Attorney Audit Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . $99

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $69 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99 For registration after October 30, add a $10 late fee.

C O S T ( C L E O N LY; N O S K E E T S H O O T I N G ) CLE Easy Passholder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $0 NBA Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 28, add a $10 late fee.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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SERVING ON NONPROFIT BOARDS

MUSIC MODERNIZATION ACT

OVERVIEW

Co-produced by the Entertainment, Sports & Media Law and IP Committees

Are you an attorney interested in serving on a board? This seminar covers what you need to know as an attorney to serve successfully on the board of a nonprofit organization.

OVERVIEW

The Entertainment, Sports & Media Law and Intellectual Property Committees will hold a joint meeting on November 5 at the NBA office for an update on the Music Modernization Act. All are welcome. CLE credit is available with the payment of a fee. Lunch is sponsored by Bradley and Shackelford. PRESENTERS Erin McAnally Artist Rights Alliance Steve Ruwe Attorney-Advisor, US Copyright Office

PRESENTERS

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

Will Helou WSMLEGAL, PLLC

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

Laura Smith General Counsel, Nashville Electric Service

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST

Joseph K. Presley Chairman, President & CEO, Cumberland Trust

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35

Moderated by Edward D. Lanquist Shareholder, Patterson Intellectual Property Law, PC

Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 Dual & 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after October 31, add a $10 late fee.

D E TA I L S

Tommy Wooten Belmont University Blankenship CPA Group, PLLC

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

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CODE SWITCHING

THE CASE OF MARY NORTHERN

The Reality of Linguistic Diversity OVERVIEW Produced by the Diversity Committee As part of a 4-part series put on by the Diversity Committee, this seminar addresses the concept of linguistic diversity and the ways our “voice” reflects each of us. That reflection can be received and misconceived depending upon the audience.

OVERVIEW Produced by the Historical CLE Committee In a case that shook Nashville to its foundation 41 years ago, the Tennessee Department of Human Services was authorized to amputate the frostbitten and gangrenous feet of Mary Northern, 72, who would not grant permission to her physicians. The case went from Chancery to the US Supreme Court in a matter of days. For more details on the case, refer to page 41.

The presenters will define linguistics and “code switching,” linguistic diversity in the courtroom, as well as hands-on aspects of linguistic diversity, such as working with LEP individuals, what you need to know about interpreters, reasons why you need to consider using an interpreter, how you need to handle audio/ video evidence, and even text messages and social media. PRESENTERS Stacy Miller District Attorney’s Office Khadija Babb District Attorney’s Office Cristina Frasier Interpreter for Metro Nashville Remarks by Kaya Grace Porter Lewis Thomason; NBA Diversity Committee Chair D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

Find out what happened in DHS vs. Northern at our annual FREE Historical CLE Program on November 8, at the Downtown Public Library, as those who were there examine this high profile case under a microscope. Make your reservations now at NashvilleBar.org/MaryNorthern while there’s still space left! Three hours of CLE credit will be given to those who request it. PRESENTERS A full list of presenters and planning committee members is available online at NashvilleBar.org/MaryNorthern. D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00pm – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 CLE Location. . . . . . . . . . . . . . Nashville Public Library (Downtown) COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE Non-Members* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE *Non-Member registration opens on October 15.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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HELPING OUR SENIOR CLIENTS

ADVANCED FEDERAL COURT PRACTICE INSTITUTE

Eligibility for TennCare and the Ethics of Representing Seniors OVERVIEW

Learn how to help your senior clients. This seminar begins with a screening of Aging Matters: Legal Help, followed by a discussion of the CHOICES program and medical eligibility for TennCare presented by Katie Ann Twiggs. Barbara Moss will discuss financial eligibility and ethics.

OVERVIEW Produced by the Federal Court Committee Get tips for practicing in the US District Court for the Middle District of Tennessee. This Advanced Federal Court Practice Institute—produced by the NBA Federal Court Committee—will present information directly relevant to federal practice in this district, including a discussion with our magistrate judges, a Sixth Circuit case law update, and an ethics component featuring an interview with Kirk Davies, Clerk of the US District Court for the Middle District of Tennessee, by David Esquivel, Pro Bono Member of Bass Berry & Sims, regarding the clerk’s work and the court’s pro bono initiatives.

PRESENTERS

Barbara Moss Elder Law of Nashville, PLC

A full list of presenters and planninng committee members is available online at NashvilleBar.org/FederalPractice.

Katie Ann Twiggs CHOICES Client Advocate, Tennessee Justice Center

D E TA I L S

Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 3:15pm

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

Credit. . . . . . . . . . . . . . . . . . 0.5 Dual & 2.5 General (Pending)

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 1:00pm

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

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 0.5 Dual & 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $65 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $135 For registration after November 11, add a $10 late fee.

NASHVILLE BAR JOURNAL | OCT/NOV 2019

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after November 12, add a $10 late fee.

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PIONEERS IN THE LAW

LUNCH WITH JUDGE RACHEL L. BELL

African American Lawyers & Admission of Women to the Bar in the Late 19th & Early 20th Centuries OVERVIEW This seminar provides a history of the legal and social obstacles that women had to overcome in order to be admitted to the bar, both nationally and in Tennessee, along with the history of admission of African Americans to the bar. More details coming soon to an inbox near you! PRESENTERS

OVERVIEW The 10th Lunch with Judges CLE presenter is Judge Rachel L. Bell, General Sessions Court, Division VIII; and founder and presiding judge for the General Sessions Music City Community Court. She will address issues and provide tips on practicing before the General Sessions Court along with her experiences hanging your own shingle to running for office, serving on the General Sessions Court Judiciary, and birthing the first Community Court in the State, right here in Nashville, Tennessee.

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

In addition, Judge Bell will share information about the 2018 Community Court grant received with the US Department of Justice, Bureau of Justice Assistance, and the Center for Court Innovation, to launch the C.A.R.E. Diversionary Court for adults ages 18-26. The Music City Community Court is one of five courts in the nation to receive the 2018 Community Court Grant. The other court recipients are located in Wilmington, Delaware; Fort Lauderdale, Florida; Reno Municipal Court, Nevada; and Puyallup, Washington.

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

PRESENTER

Mary Bers David Ewing D E TA I L S

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after November 13, add a $10 late fee.

Honorable Rachel L. Bell General Sessions Court, Division VIII 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $39 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $59 For registration after November 14, add a $10 late fee.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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BUSINESS LAW INSTITUTE OVERVIEW

ANNUAL ETHICS, LIES & VIDEOTAPE, PART XVII

Produced by the Business Law Committee

OVERVIEW

The NBA Business Law Committee is pleased to present the annual Business Law Institute. Registrants are invited to join their colleagues for a networking lunch and four hours of CLE credit. This year’s institute will include sessions on ethics, the anatomy of a deal, data security and privacy issues, and cannabis law for business lawyers.

Don’t miss our most popular ethics and professionalism program! Join your colleagues in viewing scenes from movies to explore, analyze, and compare “reel” life with common ethical issues and the Rules of Professional Conduct. How many gavels will the movie receive? How many ethical violations can Hollywood exploit? How much popcorn can you eat?

PRESENTERS For a full list of presenters along with travel information, visit NashvilleBar.org/BusinessLawInstitute. D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual & 3.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

PRESENTERS Honorable Barbara D. Holmes, Magistrate Judge US District Court for the Middle District of Tennessee Edward D. Lanquist, Jr. Patterson Intellectual Property Law Honorable W. Neal McBrayer, Judge Tennessee Court of Appeals

COST

D E TA I L S

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm

For registration after November 18, add a $10 late fee.

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after November 20, add a $10 late fee.

NASHVILLE BAR JOURNAL | OCT/NOV 2019

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NAVIGATING THE GENERAL SESSIONS CRIMINAL COURT DOCKET

“THE CENTRAL PARK FIVE”

OVERVIEW

Presented with Napier-Looby Bar Association

Produced by the General Sessions & Criminal Committees

Are you looking for a fun way to earn your CLE credits? Discover and analyze legal issues as you watch an entertaining and thought-provoking film, The Central Park Five.

This seminar will help attorneys that are new to Davidson County General Sessions Court understand the various dockets and rotating schedules. After attending this seminar, attendees will be able to recognize the various docket designations and identify and have the necessary contact information for supporting agencies to assist clients in need.

CLE Film Festival OVERVIEW

Filmmakers Ken Burns, Sarah Burns, and David McMahon examine a 1989 case of five teenagers who were wrongfully convicted of raping a woman. After they had spent from 6 to 13 years in prison, a serial rapist confessed to the crime. Following the film, join presenters and colleagues for a lively discussion surrounding the many ethical and professionalism issues that the film brings to life. This program is free to attend; CLE credit is available for a small fee. PRESENTERS

PRESENTER Philip N. Clark, PNC Law D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $35 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89

Chris Bellamy Neal & Harwell, PLC Keeda Haynes Metropolitan Public Defender’s Office Ben Raybin Raybin & Weissman, PC D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30 – 1:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA & Napier-Looby Members . . . . . . . . . . . . . . . . . . . . . $69 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $99 Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

Attendance Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FREE

OCT/NOV 2019vvv | NASHVILLE BAR JOURNAL

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ANNUAL ENTERTAINMENT, SPORTS & MEDIA LAW INSTITUTE

CURRENT DEVELOPMENTS FROM THE BPR

OVERVIEW

Produced by the Entertainment, Sports & Media Law Committee

This seminar will provide attorneys with an update on various developments from the Board of Professional Responsibility. Attendees will be provided with information on how the Board functions, how it handles complaints, the different types of complaints the Board receives, and discipline imposed by the Board. You will learn about:

Register now and join your colleagues for the Entertainment, Sports & Media Law Committee’s premier annual event at a new and convenient venue. For the first time, you can get all seven of your required “live” CLE credits at this one event! This full day, information-packed seminar will feature panels or presentations on exploring the FBI’s role in working with artists who are targeted by criminals, a legal primer on making independent films, Professor Stan Soocher’s tried and true entertainment litigation “year in review,” and more topics to be announced (including a dual ethics credit sports law panel, a music law panel, and a special lunch presentation).

• The Disciplinary Process • Consumer Assistance Program • Nature of Complaints • Board of Professional Responsibility Functions Anyone who is curious about how the Board of Professional Responsibility functions will enjoy this CLE! PRESENTER

If you practice in entertainment, sports, or media law, you don’t want to miss this opportunity to stay current on timely topics and network with other colleagues in your field. Attorneys in other legal practice areas are also welcome and encouraged to attend. Lunch and a reception are included with registration.

Sandy Garrett Chief Disciplinary Counsel Board of Professional Responsibility of the Supreme Court of Tennessee

PRESENTERS

D E TA I L S

A full list of presenters is available online at NashvilleBar.org/EntertainmentSportsMedia.

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

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Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Seminar & Lunch. . . . . . . . . . . . . . . . . . . . . . 9:00am– 4:50pm

COST

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Dual & 5.5 General

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45

Location. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Horton Events COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $549 For registration after December 4, add a $10 late fee.

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after December 5, add a $10 late fee.

F RI DAY, DECEMBER 1 3 | LIVE SEM I N A R

FR I D AY, D E C E M B E R 13 | LI V E S EM IN A R

THE WATERGATE CLE REPLAY

THE NIXON COURT REPLAY

OVERVIEW

Were you interested in seeing The Watergate CLE, but you missed John Dean’s and Jim Robenalt’s visit to Nashville? This is your chance—we are broadcasting The Watergate CLE recording at the NBA for LIVE credit.

Were you interested in seeing The Nixon Court, but you missed John Dean’s and Jim Robenalt’s visit to Nashville? This is your chance — we are broadcasting The Nixon Court recording at the NBA Office for LIVE credit. Seats are limited, so reserve your spot today!

Featuring John W. Dean & James D. Robenalt (Videotaped)

Over 40 years ago, Richard Nixon became the only president in US history to resign, in large part because of disclosures about the Watergate scandal by his White House counsel, John Dean. During this presentation, Dean will be joined by nationally renowned trial expert James D. Robenalt as they tie this historic chain of events to the ethical issues you likely face every day in your practice.

John Dean and James Robenalt provide an in-depth look at vetting Supreme Court candidates, the Burger and Rehnquist Courts, and the backstory of Roe v. Wade. John Dean helped to vet Supreme Court candidates as White House counsel, including Mildred Lillie—the first woman to be considered for the Court. Learn what it was like behind the scenes!

NOTE: Stay all day and earn 6 hours of DUAL CLE credit by watching The Nixon Court Replay!

NOTE: Stay all day and earn six hours of DUAL CLE credit by watching The Watergate CLE Replay!

PRESENTERS

Originally presented by John W. Dean & James D. Robenalt

D E TA I L S

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30 – 9:00am

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00am – 12:15pm

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual

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

COST

CLE Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279

For registration after December 11, add a $10 late fee.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

NBA O NLINE SEMINARS P e rso n al i zed Le a r ning on Your Sc he du l e

P LI LI V E WE B C A S TS Li ve C LE C redi t f rom I nnovat i ve Web c a s ts

PLI and the NBA provide sophisticated programs to local attorneys through live webcasts held at the NBA. Attendees earn live CLE credit and registration is FREE for PLI’s Privileged members. Visit NashvilleBar.org/CLE to learn more.

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Securities Law and Practice: How the SEC Works October 17, 12:30 – 4:00pm 3.0 General Bank Fiduciary Activities and Collective Investment Funds October 29, 12:30 – 4:00pm 3.0 General Insider Trading Law October 30, 12:30 – 4:00pm Trial by Jury November 1, 8:00am – 4:00pm

3.0 General

1.0 Dual | 5.0 General

Complimentary breakfast included.

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

Banking Law Institute November 12, 8:00am – 4:45pm

6.5 General

Complimentary breakfast included.

21st Annual Commercial Real Estate Institute November 18 – 19, 7:45am – 4:00pm 1.0 Dual | 11.5 General Complimentary breakfast included.

Pocket MBA: Finance for Lawyers and Other Professionals November 25-26, 8:00am – 4:00pm 1.25 Dual | 11.25 General Complimentary breakfast included.

Nuts & Bolts of Corporate Bankruptcy December 2-3, 8:00am – 4:00pm 1.25 Dual | 11.25 General Complimentary breakfast included.

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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.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

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NASHVILLE BAR JOURNAL | OCT/NOV 2019

Editorial |

Jonathan Wardle

Are You Ready For (Electoral) College? One particular constitutional provision has made a lot of noise of late. It received press coverage when Donald Trump was elected president despite losing the popular vote. Freshman Senator Alexandria Ocasio-Cortez recently referred to it as “electoral affirmative action.” And the provision faces continued media interest as our country again begins the process of selecting a chief executive. Yes, it seems like everyone wants to talk about the electoral college these days. But then, disputes about the electoral college are nothing new. Donald Trump is not the first president to win the White House without winning the popular vote. In 2000, George W. Bush was awarded the executive office despite losing the popular vote to Tennessee native Al Gore—and the history is much larger than just that. In 1824, another Tennessee native won the plurality of both the popular vote and the electoral college vote, but Andrew Jackson did not gain enough electoral votes to win the election outright. So, under the constitutional tie-breaker provision, the US House of Representatives handed the election to John Quincy Adams instead. In 1876, Rutherford B. Hayes was the first president elected

with a majority of electoral votes despite losing the popular vote. Benjamin Harrison followed suit just eight years later. Even John F. Kennedy may have won the presidency despite losing the popular vote. The obvious question is, to what do we owe this electoral oddity? Why did the Framers allow for someone be elected as our chief executive even when the majority of the population votes for someone else? One popular explanation is that the electoral college is designed to protect the rights of less-populous states. That explanation does not account for the process implemented by the Framers, nor does it account for the Framers’ own explanations. The Electoral College is a Process The US Constitution apportions to every state a number of Electors “equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” For example, Tennessee is entitled to 11 of the 538 total Electors because Tennessee has two senators and nine representatives. Each state gets to decide how its Electors are chosen. In most (continued on page 38)

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Editorial |

Are You Ready For (Electoral) College? (continued from page 37)

states, each presidential candidate (or, more likely, that candidate’s political party) designates potential Electors who commit to cast their votes for that presidential candidate. So when a voter goes to the polls, he or she is actually casting his or her vote in favor of a slate of potential Electors. This is important because the constitution grants each chosen Elector the power to cast their own vote, regardless of his or her commitment to vote for any particular candidate. These so-called “faithless votes” are rare, but they do occur—for example, seven Electors cast “faithless votes” in the 2016 presidential election. The Electors from the various states meet to cast their votes on “the first Monday after the second Wednesday in December.” Those votes are sent to Congress where they are tallied in a joint session on January 6. If a presidential candidate wins a majority of the votes, that candidate becomes the President-elect. If no president wins an outright majority, the House of Representatives chooses the president-elect from among the three candidates who received the highest number of votes in the electoral college. However, each state is allocated only one vote for this decision, so each state’s representatives must decide how to cast their state’s lone vote. More than Just States’ Rights It is apparent that the Framers were not just trying to protect less-populous states. Other constitutional provisions demonstrate how the Framers chose to meet their goal. For example, the Framers allotted to every state the same number of senators, regardless of population. And they originally let the legislative bodies of the states choose who would serve in the Senate (though that choice devolved upon the people with the passage of the 17th 38

Amendment). The calculus behind the electoral college looks vastly different, however, even if the total number of Electors does equal the total number of legislators from each state. Then again, that is the point: more popular states will always have more Electors in the electoral college, even if their proportion of Electors is slightly watered down by adding two Electors to each State. Protecting the People from Themselves The key to understanding the electoral college is to recognize that Electors are not bound to vote for any particular candidate, regardless of the popular vote or the wishes of the states’ legislative bodies. The renowned Publius argued that the president should be chosen “by men most capable of analyzing the qualities adapted to the station” and who “will be most likely to possess the information and discernment requisite to such complicated investigations.” In response, the anonymous Republicus opposed a system where “a free people should first resign their right of suffrage into other hands besides their own.” Nonetheless, the Framers’ clear intent was to create a system where the people did not directly choose the president. That choice was to be left in the hands of other supposedly more suitable people who were specifically chosen for that purpose. If anything, the Framers’ design was even less democratic than what has been attributed to it by Senator Ocasio-Cortez and others. Then again, the Framers did not foresee the evolution of our current two-party system, and there is nothing inherently crazy about selecting a few people to do the work of determining the merits of various candidates. Even the system of del-

NASHVILLE BAR JOURNAL | OCT/NOV 2019

egates (and especially of superdelegates) employed by the major parties to select their presidential nominees belies any claim to favor a truly democratic system.

Endnotes See, e.g., Pamela Duncan & Cath Levett, Clinton won more votes, Trump won the election. And it’s not the first time, The Guardian (Nov. 11, 2016).

2 See Robert M. Alexander, Alexandria Ocasio-Cortez has a point about the Electoral College, CNN (Aug. 29, 2019). 3 See Tara Law, These Presidents Won the Electoral College—But Not the Popular Vote, Time (May 15, 2019); Historical Election Results, Electoral College Box Scores 2000-2016, Nat’l Archives & Records Admin. 4 See Historical Election Results, Electoral College Box Scores 17891996, Nat’l Archives & Records Admin. 5 See Law, These Presidents Won the Electoral College, supra; Electoral College Box Scores 1789-1996, supra note 3. 6

Id.

See Walter A. McDougall, The Slippery Statistics Of the Popular Vote, N.Y. Times, Nov. 16, 2000, at A35. 7

See US Const. art. II, § 1, cl. 2.

See Distribution of Electoral Votes, Nat’l Archives & Records Admin.

See US Const. art. II, § 1, cl. 2; 3 USCA §§ 5-6.

See About the Electors, Nat’l Archives and Records Admin.

See Baca v. Colorado Dep’t of State, No. 18-1173, --- F.3d ---, 2019 WL 3938266, at *37 (10th Cir. Aug. 20, 2019) (“In short, while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins . . . .”).

13 See Historical Election Results, Electoral College Box Scores 17891996, Nat’l Archives and Records Admin.; see also Fix the Electoral College—Or Scrap It, N.Y. Times, Aug. 30, 2019, at A22. 14

3 USCA § 7.

See US Const. amend. XII; 3 U.S.C.A. § 15.

See US Const. amend. XII. This is how John Quincy Adams won the presidency in 1824.

Id.

See US Const. art. I, § 3, cl. 1.

Id.; id. at amend. XVII.

The Federalist No. 68 (Alexander Hamilton).

The Anti-Federalist No. 72.

See Ed Crews, Voting in Early America, Colonial Williamsburg Jour-

nal (Spring 2007).

23 See, e.g., Alex Seitz-Wald, Democrats strip superdelegates of power and reform caucuses in ‘historic’ move, NBC News (Aug. 25, 2018).

JONATHAN WARDLE is an Assistant Attorney General in the Criminal Appeals Division of the Office of Tennessee Attorney General, services on the NBJ Editorial Committee and is a Fellow of the Nashville Bar Foundation.

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound ond, Chapter 507 is more far reaching and is Tennessee’s response to the 2018 Murphy v. NCAA US Supreme Court decision permitting states to regulate sports gambling. Implementation is still in progress under the auspices of the Tennessee Education Lottery Corporation. Nashville attorney Tom Lee has been appointed to nine-member sports wagering advisory council created by Chapter 507.

—Good dogs and the law. Summer Session The 2019 legislative session has proven to be the gift that keeps on giving. The General Assembly rumbled into town on August 23 for an Extraordinary Session called by Governor Bill Lee—ostensibly for the House to ratify court rule changes proposed by the Tennessee Supreme Court, but realistically to give the House the opportunity to formally choose their new Speaker. While the Senate Republican Caucus took the opportunity to have a fundraiser on the evening of August 22 and lunch on the 23, the House had a bit more drama. House Drama The Senate—while facing a much lighter docket—worked off a few memorializing resolutions, honored Tim Corbin for his Vanderbilt baseball team’s success in winning the 2019 College World Series, passed an adjournment resolution, and went to lunch. Yes, the House had more serious work and at the end of the day, they had a new Speaker in 48-year-old Cameron Sexton of Crossville. (FYI – the

House also took time to honor Coach Corbin and the Vandy Boys.) Cameron Sexton has served in the State House since his election in 2010 when he challenged incumbent Eric Swafford in the Republican Primary and won big. He quickly rose in the House ranks and has served as Chair of the Health Committee and most recently as Republican Caucus Chair. His career to date has shown graceful political skills. For example, in 2018, he was an early supporter of Randy Boyd in the Republican primary for Governor even as his House Speaker, Beth Harwell, sought the same office. In 2019, he avoided voting for Speaker Casada’s school voucher bill while staying in the Speaker’s good graces. It’s A Gamble The General Assembly knows good dogs like to follow the law. They also recognize that social attitudes towards gambling have moderated. You may see that recognition in two 2019 statutes. First, Chapter 126 legalized those informal basketball pools and small fantasy teams if the entry fee is no more than $25 and the total pool is no more than $1,000. Sec-

Checklist for October & November 1. Send a note or call your newly elected Metropolitan Nashville public officials to congratulate them on their election successes and wish them well during their service to our community. 2. Register for the FREE historical CLE presentation on Mary Northern on Friday, November 8. Visit NashvilleBar. org/MaryNorthern for details. 3. Good dogs and drivers follow the law. If you must bark or talk on your mobile device while driving, be sure you do so paws- and hands-free. Calendar Notes State offices will be closed on November 11 for Veterans Day and November 28-29 for the Thanksgiving holiday. The first day a candidate may pick up a qualifying petition for the local offices to be decided in coordination with the March 3, 2020 presidential primary election is October 14. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

OCT/NOV 2019 | NASHVILLE BAR JOURNAL

Thank You for Your Service! In honor of Veterans Day, the Nashville Bar Association will be recognizing the US veterans in our local legal community. The names in bold denote NBA members. If your name is not on this list and you would like to be included next year, please contact Vicki.Shoulders@nashvillebar.org. We hope you will join us on Monday, November 11, as we march in the Veterans Day Parade to honor all those who have served. Thank you for your service—we salute you!

Terry Adams

Craig Gabbert

Jim Price

Larry Ahern

Mike Galligan

Dale Quillen

Graham Baker

John Gillmor

D.J. Rausa

Russ Baldwin

Charles Grant

Charles Reasor, Jr.

Lee Barfield

John Gupton

Fritz Richter

Mark Baugh

James Haltom

Charles Sanger

Daniel Berexa

Joe Hardesty

Jim Blackstock

John Heacock

William Scales

Ross Booher

AJ Hermansdorfer

Martha Boyd

Sam Hodges, III

Robert Brandt

Paul Housch

David Broemel

Tim Ishii

Judge Joe Brown

Randy Kinnard

Judge Chip Campbell

Tracey Kinslow

Brett Carter

John Kitch

John Cauley

Walter Kurtz

Brent Cherry

Bill Leader

Don Cochran

Jesse Lords

Erin Coleman

James Mackler

Charles Cornelius

Matthew McFarland

Ed Davies

Joe Napiltonia

Kevin Doherty

Seth Norman

Darren Drake

Bill Norton

Kurt Winstead

Jay Drescher

George Paine

Judge Tom Wiseman, Jr.

Blair Durham

Rob Peal

Judge Randall Wyatt

Robert Echols

Doug Pierce

Vincent Wyatt

Crystal Etue

Kathleen Pohlid

Ed Yarbrough

Pete Ezell, Jr.

William Pomy

John Zimmerman

Charles Frazier

Ryan Pratt

NASHVILLE BAR JOURNAL | OCT/NOV 2019

Sean Scally Gil Schuette John Seehorn Kevin Sharp Keith Simmons Judge Jennifer Smith Rick Smith Thomas Smith Don Sullivan Brad Telfeyan Paul Tennison Andrew Tharp Bob Tuke Warren “Skip” Wild

FREE HISTORICAL CLE!

The Case of Mary Northern | John C. McLemore

When confronted with an issue of immediate life or death, what does a civil trial court do? Chancellor C. Allen High was assigned what appeared to be just such a case on January 24, 1978. Mary Caroline Northern, a recluse, came from a good family. She was an only child. Her mother was a homemaker and her father an insurance broker. She attended and graduated from the finishing school Ward Belmont, the predecessor to today’s Harpeth Hall and Belmont University, and stayed on for two years of college instruction in art. Ms. Northern never married. She lived with her parents and cared for them until they died. At 72 years old, she was still living in her childhood home, often referred to as “The Farm.” She was a poor, sick-but-alert elderly woman who lived in filth. Her home had been condemned by Metro Codes. Shortly after Tennessee Department of Human Services v. Mary C. Northern was filed, a social counselor would describe the home as unfit to live with no running water, boarded windows, and no heat other than a coal burning fireplace. Ms. Northern’s feet had gangrene— probably the result of frostbite in combination with burns on her feet from holding them too close to the coal grate. The issue before the court was whether the

State could authorize doctors to amputate her gangrenous feet without her consent. The ensuing fight for Ms. Northern’s feet would result in almost daily coverage by The Tennessean and The Nashville Banner for the remainder of January, February, and part of March. Nashville’s three television stations, WSM, WTVF, and WSIX (now WKRN), brought vivid descriptions of rotting flesh into our homes at suppertime. Physicians at the hospital believed that Ms. Northern’s condition was so severe death was imminent, and that the patient had a lack of understanding of her condition. Meanwhile, the infection was spreading. The hospital sought assistance from the Department of Human Services (DHS). DHS asked if two physicians would certify Ms. Northern lacked the capacity to consent. They did, and the suit was filed. By 3:30pm, on the date the complaint was filed, a young lawyer named Carol McCoy was appointed guardian ad litem and told there would be a hearing the next day on whether to grant DHS authority to order amputation of Ms. Northern’s feet. There were only two witnesses at the hearing—the DHS social counsellor who had visited with Ms. Northern seven or eight times, and his boss who had visited Ms. Northern the day before the hearing. When the social counselor was asked if Ms. Northern had the mental capacity to consent, McCoy objected, insisting a medical expert, such as a psychiatrist, testify/answer. She was overruled. Because she had virtually no time to prepare, McCoy asked the court if she could make an oral report on her client’s condition. What followed set the medical and legal communities on their ear na-

tionwide. McCoy told the court she had met with her client and discussed amputation with her, as well as the powers of the court and DHS. McCoy said Ms. Northern told her she felt it was a terrible thing when the government could take a person’s two feet with the person being denied the right to make the decision. McCoy concluded by telling the court she believed Ms. Northern needed the recommended surgery, but she was convinced her client was capable of consent and competent to make that decision. Chancellor High granted DHS authority to proceed with the treatment. McCoy appealed, setting the stage for a Saturday hearing before the Court of Appeals in Ms. Northern’s hospital room. During the next few weeks, the case would be rejected by the state supreme court and the US Supreme Court—but not because of McCoy’s lack of effort. The Mary Northern case will be the topic of the NBA Historical Committee’s annual CLE program where we will take a close look at medicolegal ethics. To hear the rest of the story, with its many twists and turns, reserve your seat learn more at NashvilleBar.org/MaryNorthern. The program begins at 1:00pm on Friday, November 8, at the Downtown Public Library. Three free hours of general or ethics CLE will be credited to those who request them. n JOHN C. MCLEMORE represents both debtors and creditors and is best known for his work as a bankruptcy trustee. He is admitted to practice in federal and state courts in Tennessee, as well as the US Sixth Circuit Court of Appeals. McLemore is also well-known among the local law community as a photographer for NBA events, documenting the people, places, and events that comprise Nashville’s legal history.

APR/MAY 2019 | NASHVILLE BAR JOURNAL

Feature Story | work with elected officials, both locally and nationally? LA: It’s easier than you might think. Early in 1966, when I was a law clerk for Judge John Minor Wisdom, I wrote Howard Baker Jr. and offered to help him in his US Senate campaign. I never received a response. So during Easter break, I made an appointment to see Baker in Knoxville. I had expected to find him surrounded by a vast political machine because both his father and mother had been our congressmen, and he had run once before. Instead, I found that he had three staff members and an intern. Baker was happy to add me, first as a volunteer, later as a low-paid staff member. When he won, I became his legislative assistant. My advice is pick someone you respect, offer to help by doing anything legal he or she asks you to do, and learn from their success and mistakes. Those lessons can come in handy if you run for office yourself someday.

To Serve or Not to Serve (continued from page 14)

BP: Do you believe people have preconceived notions about politicians and public service that you have found to be inaccurate? LA: Yes. Today’s “internet democracy” allows anyone to advertise anything about anybody, and much of the negative information is aimed at those in public life. This is not new. What is new are the 2 billion iPhones and other devices that make information instantaneous and pervasive. So I recommend that you look at the US Congress as if it were a split-screen television set. On the one side, you see the food fights (Kavanaugh hearings, Mueller testimony, tweets), but on the other side, at the same time, you can see 65 senators of both parties working together to enact a response to the opioids crisis that President Trump said was “the largest response to a public health epidemic in history.” In my experience, the second screen is the more accurate picture of what goes on in the US Senate. BP: Is there any part of your lifetime of

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public service you have found to be particularly rewarding? LA: When I take US History teachers on the floor of the Senate, one almost always asks, “What would you like for us to take back to my students?” My answer is, “I hope you will tell them that we have a remarkable system of government and that every day I get up thinking that I will likely do something good to help our country, and most nights, I go to bed thinking that I have.” BP: Do you have any suggestions on how the Nashville bar can promote the importance of public service? LA: In your system of rewards within the firm, make a lawyer’s time spent in public service a credit instead of a debt. Leave some room in your compensation system to encourage lawyers—especially young lawyers—to participate in campaigns and community activities. I would never have been able to run for governor twice without tolerant partners like Lew Conner, Robert Echols, and Martin Simmons, who worked a little harder because I spent more time seeking a role in public life. n BRUCE PHILLIPS has practiced law on Music Row for over 25 years. He chaired the NBA’s Entertainment and Sports Law section in 1997 and 2005 and is a Fellow of the Nashville Bar Foundation. Bruce would like to thank Senator Alexander’s Communications Director, Ashton Davies, and Jordin Wentworth for their support and assistance with Senator Alexander’s interview.

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Password Insecurity | Mark Bassingthwaighte

For several years, my wife viewed my focus on computer security and passwords as something approaching mild paranoia. I, on the other hand, viewed her insistence on using one easily remembered password for everything in her life the equivalent of tattooing the phrase “victim here” on her forehead. We agreed to disagree, and things were good—at least for a while. A few years ago, our son informed us that my wife’s email account had been hacked and the hacker was sending spam emails. A few months later, we received notice from a credit union on the opposite side of the country that they were most displeased with my wife. Apparently, credit unions don’t like it when someone gets a new credit card, immediately maxes it out, and then fails to make any payments. Unfortunately, given that my wife wasn’t the one who applied for and received that credit card, we had a new problem. As a result of the initial identity theft, a federal and an out-of-state tax return were fraudulently filed in my wife’s name. I spent over three years working to get everything cleaned up—but we’ll never get her identity back. We’ll have to deal with the ramifications of that for the rest of our lives. These are the kinds of problems

that can arise when we underestimate the importance of passwords. Every one of us needs to abide by a password policy to protect ourselves and our practices from identity theft. Imagine if the identity of one or more of your clients is stolen because someone got into your office network. Not good. Here is what not to do: (1) Use the same password on multiple devices, apps, and websites; (2) Keep passwords on sticky notes; (3) Use common phrases like “qwerty,” “password,” “1234567,” or “letmein”; or (4) Allow computer browsers to remember passwords; (5) Choose passwords based on birth dates, social security numbers, pet names, and street addresses. This kind of information just isn’t as confidential as you think. Knowing the missteps isn’t enough. Develop a formal, firmwide password policy that mandates the use of strong passwords as follows. A password is strong if it is long—a minimum of 15 characters—and includes numbers, special characters, and upper and lower-case letters. Every application and device should have its own unique password; passwords for mission critical devices and applications (e.g., banking login credentials, firm VPN login) should be changed every six months; old pass-

words should never be reused; and user ids and passwords should never be shared with anyone. Require two-factor authentication for any device or application that allows it. How to keep track of all these complex passwords? Use a password manager such as RoboForm, LastPass, or Dashlane. (My wife began using a password manager shortly after the kerfuffle with the credit union and it has made a world of difference!) Such tools are often cloud-based software applications that allow users to conveniently store and manage all of their passwords. The data is encrypted and can only be accessed once a master password has been entered. Users will only need to commit to memory, or otherwise securely store, one long and strong master password. Note: Lawyers are sometimes hesitant to use the cloud. Don’t make that an excuse for lackadaisical security! Password managers are more secure than Excel or Word files, let alone sticky notes, and provide far more robust security than any of the bad habits so many of us have by default. n MARK BASSINGTHWAIGHTE is Risk Manager with ALPS. He has conducted over 1,200 law firm risk management assessment visits, presented over 400 CLE seminars throughout the US, and written extensively on risk management, ethics, and technology. He is a member of the State Bar of Montana and the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee.

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NEW MEMBERS (JULY 1 - AUGUST 31) William Ball

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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.

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Happy Hour: Karaoke Edition Highlights

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Summer 2019 Highlights

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Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS The Davidson County Chancery Court, Part III, has been awarded the 2019 Outstanding Community Service Award by the Southeastern Association of Area Agencies on Aging. The Court program provides dental, transportation, housing, and legal services to over 17,174 elderly Tennesseans. It is administered by Chancellor Ellen Hobbs Lyle with a team consisting of Tennessee Commission on Aging and Disability Executive Director Jim Shulman, General Counsel Charles Ferguson, Attorneys for the Receiver Paul Davidson and Tera Rica Murdock, Receiver William C. Matheney, and representatives of five nonprofit agencies across the State: West End Home Foundation, HCA Foundation, Assisi Foundation, United Way of Greater Knoxville, and the Memorial Foundation. The judges of the Metro Nashville-Davidson County General Sessions Court have elected Judge Lynda Jones to preside over the Court, effective September 1. Judge Jones was elected to General Sessions Court Division IX in 2014. Seth Ogden, PhD, Senior Associate at Patterson Intellectual Property Law, was recently named to the Operation Stand Down Tennessee (OSDTN) Board of 48

Directors. For more than eight years, Ogden has provided pro bono legal services to veterans and has volunteered with OSDTN in that capacity since 2015. Ogden also serves as cochair on the NBA Veterans Committee. ON TH E M O V E Starnes Davis Florie welcomes Alan Bean as a partner to the firm’s Nashville office. Bean has represented numerous hospitals, medical groups, clinics, physicians, nursing homes, and other health care providers in all phases of health care liability, premises liability, products liability, and personal injury cases in Tennessee, Florida, Texas, New Hampshire, West Virginia, and Alabama. Manier & Herod is pleased to announce the addition of two associate attorneys to its litigation practice. Jacob Bolton and Jenna Macnair join the firm as recent graduates of the University of Tennessee College of Law. Stites & Harbison welcomes Elizabeth Anne Bowden to the Creditors’ Rights & Bankruptcy Service Group where she will focus on commercial transactions, litigation, banking, and bankruptcy and creditors’ rights. Prior

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to moving to Nashville, Bowden practiced in Knoxville. GSRM Law is pleased to announce that Miller K. Hunt recently joined the firm as staff attorney. Miller will practice in the firm’s Estate Planning and Probate section with a focus on providing individuals and families with estate planning solutions including wills, trusts, financial and healthcare powers of attorney, and probate administration. Prior to joining GSRM Law, Miller was an attorney at Elder Law of Nashville. Bradley is welcoming former FedEx Express litigation chief Connie Lewis Lensing to the firm. Lensing pioneered the “in-housing” of litigation and trial responsibility for corporate legal departments by establishing an internal law firm at FedEx to actively try cases. Lensing serves as vice-chair of the board of directors and as chair of the executive committee of the US Chamber of Commerce’s Institute for Legal Reform. She also serves as a member of the board of directors and executive committee and as secretary treasurer of Lawyers for Civil Justice. Stites & Harbison welcomes attorney Mary Lu Noah to its Real Estate & Banking Service Group. Her practice focuses on real estate and environmental issues. Before joining Stites &

Hearsay | Honors & Awards, On the Move, Firm News Harbison, Noah was Assistant District Counsel for the US Army Corps of Engineers, Nashville District, serving as its primary real estate and natural resource attorney. Doug Sloan, former VP and Chief Legal Officer at the Metro Nashville Airport Authority, has joined Bone McAllester Norton to lead the firm’s Land Use and Zoning practice. He comes to the firm with more than 15 years of experience in government relations and land use and zoning regulations. He also served in the office of Mayor Karl Dean, where he managed land purchases for Nashville after the 2010

flood and as liaison to the Tennessee General Assembly for the city. FI R M N E WS Bradley is pleased to announce two of the firm’s Nashville attorneys, Stephanie M. Hoffmann and Janus Pan, have been selected to participate in the American Health Lawyers Association (AHLA) Leadership Development Program (LDP). Hoffmann will take part in the AHLA’s Hospitals and Health Systems practice group LDP,

and Pan will participate in the AHLA’s Regulation, Accreditation, and Payment practice group LDP. Rose Immigration Law Firm is proud to announce that Douglas Russo has been named a partner at the firm. Russo will continue his practice on all aspects of immigration law, with an emphasis on assisting international businesses with professional-level workers and intracompany transferees. A musician, Rose assists international musicians and entertainers. He has also been active in the Nashville immigration community. n

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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 Chelsea.Raymer@nashvillebar.org today!

AT NASHVILLE

Receive 20% off General Admission tickets. Maximum of four tickets per cart. Must call NBA for code and show Affinity card at check-in. (West Meade)

Receive 10% off food and beverage purchases. Only Valid on Member’s check with Affinity card present. Available at both the Nashville and Brentwood locations. (Midtown & Brentwood)

Complimentary dish of the chef’s choice with purchase of entree. (The Gulch)

Receive 15% off all services offered. (Brentwood)

First three classes free. (Charlotte Ave)

Receive 10% off your first custom corporate order. To redeem, call Batch at 615-931-3912. (Germantown)

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)

Complimentary dish of the chef’s choice with purchase of entree. (West Nashville)

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

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)

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Receive 10% off resume services. (Green Hills)

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Complimentary dish of the chef’s choice with purchase of entree. (The Gulch)

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50% off Membership Initiation fee. (Downtown)

The Affinity Program 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)

Complimentary dish of the chef’s choice with purchase of entree. (The Gulch)

All diagnostics are FREE except for TV’s. TV’s require a $35 deposit fee which is either applied to the cost of the repair or refunded when the customer picks up their TV. Discounts on Cell Phones/Smartphone devices:

Enjoy 15% off any adventure. Valid in-store or online. Please contact the NBA for code. (Downtown/Berry Hill/Opry Mills) Receive 10% off application fee. (Nashville)

Save 10% off any detail packages. (Nashville)

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

* $10 OFF all Apple iPhones and non-Samsung devices * $20 OFF all Apple iPads and all other tablets No discounts on Samsung Product

Free piece of chocolate with a purchase of $10 or more. (Germantown)

$20 off an initial 90-minute acupuncture treatment, or $10 off an initial acupunture treatment. (Germantown)

Computer repair will offer a 10% discount on professional services and parts. Professional services do not include software keys for new OS installs, only the service of re-installation of the OS, other services include hard drive replacement backup and restore, cloud backup, forensic data recovery, virus removal, and data backup.

Discounted end zone and sideline tickets for select games. LSU, Missouri, Kentucky, and ETSU. (West End)

Receive 10% off products in the Shop at Thistle Farms. (Sylvan Park) 10% discount on wine 5% discount on liquor (West End)

Specialized Attorney Services is state-wide process serving company that will serve any type of legal papers while providing GPS iServe technology coordinates through our Iphone app to ensure quality service to clients. We offer services such as document retrieval, filing and research as needed by our clients. Members will receive a 10% discount and volume discount.

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)

15% off of all services! Lash Extensions, Microblading, Mobile Spray Tan, Waxing, etc. (Nashville)

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Thank you for supporting your local bar association!

The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. To become part of NBAâ&#x20AC;&#x2122;s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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