Nashville Bar Journal | October/November 2021 by Nashville Bar Association

OCTOBER/NOVEMBER 2021 | VOLUME 21 | NO. 5

FEATURE

Judge Haywood and the Convenience Store ALSO

Leveling the Playing Field Unearthing the Dead: Protocol, Process, and Reverence Probate Court: Remote Wills and More Contested Scenarios

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

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

Official Bank Partner of the Nashville Bar Association

FE ATU R E

Judge Haywood and the Convenience Store

OCTOBER/NOVEMBER 2021 | VOLUME 21 | NO. 5

by George C. Paine II

DEPA R TM E N TS

From the President

Mike Abelow

Calendar of Events

Hear Ye, Hear Ye

NBF Grant Applications Fall Memorial Service NBF Fellows Dinner

Leveling the Playing Field Jeffrey L. Carson & Mark Kilgore

28 Unearthing the Dead: Protocol, Process, and Reverence

Lisa K. Helton

Court: Remote Wills and More 30 Probate Contested Scenarios

CLE Schedule Olivia Park

barBITES

Hearsay

100% Club

C O L UMNS

Background Check 11 Bart Pickett Gadget of the Month 17 Bill Ramsey & Phillip Hampton Capitol Notes 27 Peggy Sue, the Beagle Hound

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

FROM THE PRESIDENT

My Year as President | Mike Abelow MIKE ABELOW, Publisher WILLIAM T. RAMSEY, Editor-in-Chief CAROLINE SAPP, Managing Editor LAUREN POOLE, Managing Editor ADRIENNE BENNETT CLUFF, Layout/Design/ Production

EDITORIAL COMMITTEE RAMONA DESALVO TIM ISHII KELLY FREY SUMMER MELTON ROB MARTIN BART PICKETT KATLIN RYAN KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials toAdrienne.BennettCluff@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1350 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

It is hard to believe, but the year has flown by and this is my final chance to address you in writing as your NBA President. It has been a true honor to serve in this capacity –– an honor I would not have enjoyed had you not elected me to the Board over four years ago. For that, I thank you. I may well have had one of the more unusual years of presidency in the history of the NBA, second perhaps only to my immediate predecessor, Laura Baker, who experienced the jarring interruption of a global pandemic that would forever change our daily lives as we knew them. Laura, at least, had no inkling that her year would be disrupted by COVID, whereas I “came to the nuisance” and had some time to prepare. Through the pandemic, the Christmas Day bombing, flooding, and other unexpected events, the NBA has reacted swiftly and creatively to serve its members and our broader Nashville community. I quickly came to realize that we would not be returning “back to normal” during my tenure. “Normal” would have to change, and it has. The President’s Reception was held outside mid-year. Law Day will be held in October rather than on actual Law Day in May. We’ve added a second golf tournament and restarted the tennis tournament. We’ve started a trial court report, and are holding a roundtable on space and office needs given the new remote environment. Through it all, the NBA has tried to put your membership to work in ways that foster the legal and broader community. Looking forward, we recently conducted a survey of our members and other attorneys in town who are not members. Over 500 members responded, and over 381 non-members responded. We were blown away by the number ad quality of responses. We reviewed the survey results in connection with our Board Strategic Planning session. Thank you to those of you who took the time to complete the survey—the data was extremely helpful to the Board as we formulated our plan for the next two years. Our plan recognizes that 80% of what we are doing is going well, but like good Type A, self-critical people we focused on the 20% we can do better. One adjustment in focus that you should expect is a re-dedication to Bar members practicing in-house, government, and solo practitioners. The entire Bar, including those of us who practice at law firms, is strengthened if we draw more members from all constituencies. As Nashville and its legal community continue to grow, the strength of the Bar is critical to preserving the core of Nashville’s unique legal culture that make it a pleasure (most days!) to practice law here, while adapting to inevitable change. As new firms come to town, as more people work remote, and as more firms move out of the Downtown corridor, the Bar will continue to work creatively to provide ways for our members to connect with each other, to be apprised of the cutting edge legal and practice management developments, and to serve our community. It has been my great honor to serve as your President in making strides along these lines in 20202021. Again, thank you for that privilege. n

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

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

OCTOBER 2021 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

NBA Ethics Committee 12:00pm NBFLF Committee 3:00pm NBA Board Meeting 4:00pm Dial-A-Lawyer 6:00-8:00pm

NBA Diversity Committee 12:00pm

NBA Law Day Lunch 12:00pm | Renaissance Hotel

NBA + YLD Cocktails for Costumes 5:30pm | Bastion NBA Finance Committee 4:00pm

7 CLE Committee 12:00pm

NBA Memorial Service Committee 12:00pm

NBF Trustees 12:00pm

6 NBA Historical Committee 11:30pm NALS Meeting 12:00pm YLD Board Meeting 12:00pm

NBA Executive Committee 4:45pm

NBA + NBF Golf Tournament 12:30pm | Hermitage Golf Course

NOVEMBER 2021 M O N D AY

T U E S D AY

NBFLF Committee 3:00pm NBA Board Meeting 12:00pm | NBA Dial-A-Lawyer 6:00-8:00pm

W E D N E S D AY

9 Ethics Committee 12:00pm

T H U R S D AY

F R I D AY NBF Fellows Dinner 6:30pm | Loews Hotel

NBA Diversity Committee 12:00pm

LAW Meeting 11:30am

NBF Trustees 12:00pm

3 NBA Historical Committee 11:30am NALS Meeting 12:00pm YLD Annual Meeting 5:30pm

Fall Memorial Service 11:00am NBA Finance Committee 4:00pm NBA Executive Committee 4:45pm

THANKSGIVING DAY (OBSERVED)

DAY AFTER THANKSGIVING

Holiday | NBA Office Closed

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

2021 NBA BOARD OF DIRECTORS MICHAEL ABELOW, President

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

DANIEL BEREXA, Second Vice President JOSH BURGENER, Secretary JUSTIN CAMPBELL, Treasurer FLYNNE DOWDY, Assistant Treasurer LELA HOLLABAUGH, General Counsel JOSEPH HUBBARD, YLD President LAURA BAKER, Immediate Past President HON. MELISSA BLACKBURN, First Vice President-Elect LIZ SITGREAVES, Second Vice President-Elect

Hear Ye, Hear Ye |

Events of Interest

Nashville Bar Foundation Grant Applications

The Nashville Bar Foundation is now accepting grant applications for 2022. If you know of any 501(c)(3) organizations that may be eligible for a Foundation Grant, please spread the word. Grant eligibility and application guidelines can be found 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

BAHAR AZHDARI JAZ BOON BRIGID CARPENTER RAQUEL EVE OLUYEMO SAM FELKER LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES KIM LOONEY HON. ELLEN HOBBS LYLE MARLENE ESKIND MOSES JUNAID ODUBEKO

Membership Renewals

It's time to renew your membership! The 2021 membership year ends on October 31. You may renew online at NashvilleBar.org/Renew (it only takes a few minutes!) or by contacting Vicki at Vicki.Shoulders@nashvillebar. org or 615-242-9272. If your firm is part of Firm Billing with the NBA, please check with your administrator before renewing online. Thank you for your continued support and membership! n

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

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

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

Fall Memorial Service

Our Fall Memorial Service will be held on Thursday, November 18. The service begins at 11:00am. Stay tuned to upcoming NBA Weekly Update emails and NashvilleBar.org/MemorialService for a list of those who will be honored. 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. n

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

Nashville Bar Foundation Fellows Dinner

Enjoy a delectable dinner, bid on enticing silent auction items, welcome the 2020 and 2021 classes of Fellows, and recognize the latest Nashville Bar Foundation grant recipients, at the Loews Vanderbilt Hotel on Friday, November 5th. We will also be honoring Edward M. Yarbrough, our 2020 Rutherford Award Recipient. For More information, contact Traci.Hollandsworth@NashvilleBar. org. Thank you to our sponsors, Andrew Byrd, Branstetter Stranch & Jennings, Nashville Electric Service, Tune Entrekin & White, Bart Durham Injury Law, Bradley, Kinnard Clayton & Beveridge, Lieff Cabraser Heimann & Bernstein, Miles Mediation and Arbitration Services, Ogletree Deakins Nash Smoak & Stewart, Sherrard Roe Voigt & Harbison, Wiseman Ashworth Law Group, and Lewis Thomason. n

Save the Date! NBA Annual Meeting & Banquet Gather around for our annual meeting on Thursday, December 9th. A reception for our members will begin at 5:30pm followed by dinner and the program. Watch your NBA Weekly Update for more details!

2019 Annual Banquet Highlights

Free Professional Headshots in October

Are you using a headshot that’s 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 selfpromotion tools an attorney can have. That’s why the NBA has partnerered with J. Russell Photographer––the nation’s leading executive portrait studio––to photograph our members for (1) our online Member Directory, and (2) the 2022 Printed Attorney Directory. The photography sessions are FREE and will be held at the NBA ofices the week of October 25-29. To learn more or schedule an appointment, visit www.goJRussell.com today!

SAVE THE DATES Oct 14 | Cocktails for Costumes Nov 10 | YLD Annual Meeting Dec 2 | CLE with the Davidson County Judges Dec 6 | 2021 Arts Immersion View photos of these past events or at NashvilleBar.org/ PhotoGallery. Be on the lookout for more information about upcoming YLD events! n

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Feature Story | George Paine II and Hal Hardin

Close up photos of the Haywood monument

Haywood tombstone 1911

View of the Haywood monument from the street

Group filing photo

Judge Haywood and the Convenience Store Judge John Haywood (1753-1826) is recognized as the architect of Tennessee jurisprudence and history. Haywood wore many hats as a prolific historian, legal scholar, writer, and jurist. The prominent lawyer was also the founder of the first law school in the Southwest. Haywood County bears his name in honor of his contributions to the State of Tennessee. However, despite the attempts of state and local bar associations and historical societies to properly honor Haywood posthumously, the remains of this legal and historic progenitor and that of his family are currently located next to a convenience store.1 Upon his death in 1826, Haywood was buried at his family farm in Tusculum, Tennessee along Nolensville Road. The area in Tusculum where Haywood’s family farm was once located is now part of a commercial development, and the Haywood family cemetery now sits next to a convenience store and gas station, without much in the way of significant markings and relatively inaccessible to his descendants, historians, and the public at large. Three years ago, Nick Fielder, then Tennessee State Archeologist, and Jeff Sellers, Director of Education & Community Engagement of the Tennessee State Museum, approached the NBA Historical Committee (NBAHC) to assist them in locating the remains of Judge Haywood and his wife Martha for reinterment in the historic Nashville City Cemetery where many city, state and national leaders are buried.2 The history of Judge Haywood’s grave is complicated. In 1879, the Nashville Bar Association (NBA) voted to properly mark his grave. Twenty years later in 1899, the Nashville American newspaper published an article, lamenting the lack of public recognition of Judge Haywood on the 75th anniversary of his death and bemoaning the fact that the precise location of his burial site on his farm was unknown. In 1910, the Tennessee Historical Society (THS) highlighted the need for a monument but pointed out that “nobody kn[ew] where to put it.” When THS attempted to mark the graveyard, the then owner of the land objected. In 1911, the THS erected a tablet on the land erroneously identifying the location of the graves

of Judge Haywood and his wife. In 1947, the State of Tennessee purchased a tiny parcel of land adjacent to a local church where officials thought the graves of Haywood and his wife were located. A decade later in 1957, the Tennessee Bar Association (TBA) led an effort, spearheaded by Nashville lawyers to erect an obelisk at the grave marker where Haywood’s and his wife’s remains were believed to be located. With contributions from the TBA, the THS, the Tennessee Historical Commission (THC) and Haywood County, the obelisk was dedicated in 1959. Thereafter, the Tennessee State Museum acquired the grave marker for display. Unfortunately, the marker supposedly identifying the location of the graves was later determined to be inaccurate. The actual graves were, in all likelihood, not on the parcel purchased by the State in 1947 but on a small piece of land belonging to a Texaco gas station and located next to a church. In March 2019, Fielder and Sellers, along with members of the NBAHC, received permission to probe the small piece of land belonging to the Texaco gas station. Fielder concluded that graves were likely present, but he required ground penetration radar to confirm that probability. 3 Sellers then contacted Dr. Zada Law, the Director of the MTSU Department of Geospatial Research Center, and she volunteered her department’s expertise and equipment. On a cold day in March 2020, Dr. Law, Fielder, Sellers, John McLemore, Chris Sabis, and George Paine joined MTSU graduate student Oluwatosin Obe, who conducted the radar survey and who reported a “high probability that unmarked graves existed within the area.” Shortly thereafter, Hal Hardin, a stalwart of the NBAHC, volunteered to prepare and file the Chancery Court relocation petition to remove the graves to the historic Nashville City Cemetery He investigated the ownership of the land, the current lessee of the land and the existing known descendants of Judge Haywood and inveigled interested parties to join the effort.4 (continuedononpage page00) 8) (continued

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Feature Story | Judge Haywood and the Convenience Store

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Remarkably, NBAHC discovered that two of Judge Haywood’s direct descendants are the daughter and son of longtime NBA member Judge Bert Haywood who passed away in 2003. In addition to the landowner and lessee of property, the Nashville City Cemetery Association, the Tennessee Supreme Court Historical Society, the Tennessee Bar Association and the Tennessee Historical Society agreed to join in the petition, and Dr. Carole Bucy, the Davidson County Historian, provided a supporting declaration, enthusiastically supporting the petition. The preparation of the petition involved at least a hundred pro bono hours of work and the drafting participation of Hardin, attorney Linda Knight, Chancellor Carol McCoy and Assistant Attorney General Jonathan Wardle. Further, Sellers and members of the NBAHC spent an inordinate amount of time investigating, identifying and locating descendants, organizing facts and enlisting interested parties and archaeological authorities. Hardin signed the petition as attorney for the organizational parties and Ed Lanquist, a former NBA president, signed as attorney for the TBA. On July 21, 2021, Hardin, Sellers and Paine filed the petition with the Clerk and Master Maria Salas and Deputy Clerk Betty Jo Ross, and the case was assigned to Chancellor Ellen Lyles.5 Since the filing of the petition, NBAHC member Paul DeWitt discovered that he possessed a first edition of Judge Haywood’s North Carolina Reports (1808), which Judge Thomas Higgins, former president of the NBA, gave to Dewitt’s father, Ward DeWitt, a longtime member of the NBA, in 2005. The transmittal letter accompanying the

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

(continued from page 7)

first edition references the unsuccessful search conducted by Ward Dewitt, Judge Higgins, and Bill Willis, former president of the NBA, for Haywood’s grave in the 1980s. However, according to Ward DeWitt, they abandoned the notion of locating and moving the remains when considering the difficulty of “how to identify the remains, notify the descendants, getting their permission, etc.” Paul DeWitt has generously given the first edition book, valued at $1,500 to the NBA law library. The book is currently in the safe at the Metropolitan Archives.6 Post filing, Dr. Sharon Chappell Hodge, the Anthropology Program Director at MTSU, learned of NBAHC’s efforts and volunteered her services and that of the MTSU laboratories of Anthropology and their facilities for the required osteological analysis. MTSU will provide NBAHC with a secure storage space of any remains, their washing, processing, and skeletal analysis along with in-person and remote advice to NBAHC. Further, Dr. Hodge’s husband, Phil Hodges, the State Archeologist, has graciously offered the services of the state Division of Archeology to the project. The petition and hearing before the Chancery Court, the excavation, the examination of the remains and reinterring, all supervised by professionals, will cost an estimated $15,000 or more. To date, NBAHC members have spent hundreds of pro bono hours investigating the facts of the matter and preparing the petition. Further, members paid for the ground penetrating radar that located the graves and the filing and publication fees in the Chancery Court. (continued on page 18)

Editorial |

Jeffrey L. Carson & Mark Kilgore

Leveling the Playing Field:

Understanding Tennessee’s New Name, Image, and Likeness Law Introduction College sports is a large and booming business. In particular, the “big three”–football, basketball and baseball–are money-making franchises for many schools in the Power 5 conferences.1 Historically, college student-athletes (“athletes”) have been prohibited from participating in the financial rewards of the college sports in which they compete. However, momentum has been slowly building in college sports to alter the old standard created and governed by the NCAA regarding financial benefits and college athletes. Recent developments have set the stage to dramatically alter the financial playing field of college sports.2 Although revenue sharing and direct compensation remain off limits, several states, including Tennessee, have passed legislation that will allow college athletes to profit from their individual name, image, and likeness (“NIL”).3 A Short History Of NIL (Rights Of Publicity) While typically associated with athletes and entertainers, every individual domiciled in the State of Tennessee possesses a right of publicity. The Tennessee Court of Appeals first recognized the right in a landmark case concerning the Estate of Elvis Presley in Elvis Presley Int’l Memorial Foundation v. Crowell.4 In its decision, the Court of Appeals held that the Tennessee Constitution provides a common law right of publicity under Article I, Section 8 (deprivation of life, liberty, or property).5 In 2006, the courts revisited the issue and confirmed that an individual’s property rights under the Tennessee Constitution specifically includes “the property right in the use

of one’s name, photograph or likeness.”6 Additionally, the Tennessee General Assembly codified the right of publicity with the enactment of the Tennessee Personal Rights Protection Act (TPRPA), which provides similar rights as those enumerated in the Tennessee Constitution. Under the TPRPA, “every individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.”7 In comparison to most other jurisdictions, Tennessee provides broad protections (even more so than California and New York), which include an individual’s rights of publicity being freely assignable and licensable, extending to persons who are deceased regardless of commercial exploitation during the person’s lifetime. Further, the right is descendible to executors, assigns, heirs, or devisees.8 The breadth of Tennessee’s common law and statutory rights, in conjunction with other favorable laws like the repeal of the state income tax, creates an environment that is highly favorable to those individuals interested in utilizing their individual right of publicity.9 Summary Of The Tennessee NIL Law On May 11, 2021, Tennessee Governor Bill Lee signed into law House Bill 1351, which is the General Assembly’s direct attempt to address the long-simmering controversy around the ability of college athletes to profit from the use of their individual NIL. The law has an effective date of January 1, 2022. At the time of passage, (continued on page 12)

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

CAN YOU NAME THESE PEOPLE?

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

AUG/SEPT GOLDEN OLDIES

Congratulations to Ronald McNutt of Bureau of Workers’ Compensation for correctly identifying the individuals in last issue’s photo! From left to right: Mike Mondelli, Frank Grace, Tommy Peebles, Tom Peebles, Bill Purcell, and Patsy Cottrell.

2021 Nashville Pride Parade

Thank You to Our Sponsor

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

BACKGROUND CHECK

Honorable Randy Kennedy | Bart Pickett

For all his life, Judge Randy Kennedy has lived within a ten miles radius of his first home. He grew up in Donelson, in a blue-collar family. He recalls, at the age of twelve, he accompanying his father, a steamfitter and pipefitter, to a National Labor Relations Board grievance hearing where his dad stood against his former employer. At that moment, Kennedy first saw justice. It was “justice for the little guy,” and it stuck with him. Kennedy went to Donelson for elementary and high school. Kennedy and his wife, Debbie, met at a young age and married while they were still teenagers. Being a newlywed, Kennedy decided on college at MTSU where he could easily commute. He initially majored in speech/broadcasting with the hope of being a disc jockey or a sportswriter but ultimately switched to business with a minor in speech for more financial security. Kennedy graduated college in three years. Married with a toddler, he took a year off after college to enjoy not being in school and to make some money working for Aetna Casualty Insurance Company. He then started night law school and when Aetna asked him to move to Iowa, he had to quit after

learning he would lose his law school credits. Kennedy started working at the old Nashville City Bank, ultimately becoming the Hermitage Branch Manager. Upon graduating from Nashville School of Law in 1977, Kennedy joined with two other lawyers to start a practice with offices in Hermitage and Lebanon. He did that until the early 80’s when they split the offices up and he formed an association of attorneys in the Hermitage office. He quickly went from a junior associate to essentially a managing partner. The group eventually became known as Kennedy & Brown and moved into a building in Donelson. Kennedy remained at that firm until December, 2003. He considered the firm to be a classic, general practice in both litigation and transactional law. He did a significant amount of work related to probate, estates, divorces, and conservatorships but also represented lots of small businesses in the Donelson-Hermitage area. Kennedy dipped his feet into electoral politics in 1989 when the Metro Council seat in his district opened. He ran and won that contested race and was re-elected in 1991. Having served the remainder of an unexpired term and one full term, he chose not to run for a third time in 1995. In 1998, Kennedy ran, unsuccessfully, for an open General Sessions judgeship. He looks back on that loss as a blessing, as he feels that was not the right job for him. At the time, his son David had recently graduated from UT Law and had joined his father’s practice. Kennedy continued his firm focus on serving Davidson County and particularly his

Donelson-Hermitage community until the fall of 2003 when several judicial openings in sparked Kennedy’s interest in the judiciary again. Judge Frank Clement had been appointed to the appellate court, thereby opening the Seventh Circuit Court seat. Kennedy, along with seven others, applied for the opening. Kennedy remembers driving to court around Thanksgiving and receiving a call from Governor Bredesen saying, “Congratulations, your Honor.” Kennedy took the oath of office on December 4, 2003, and has served in that role ever since. He survived a contested election in 2004 and then was re-elected in 2006 and 2014. Davidson County residents will have the opportunity to vote for him again in 2022 as he seeks another term. Probate court is one of the busiest courts in Davidson, yet Judge Kennedy absolutely loves what he does every day from trials in the beginning of the week to dockets on Fridays and everything in between. Kennedy and wife are in their 53rd year of marriage, have two adult children, David and Shelley, and three grandchildren. When not working, you may find Kennedy enjoying sports, particularly the Titans, or in the water. Kennedy believes you must have balance in life and has tried not to lose sight of that throughout his career. 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.

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Editorial |

Leveling the Playing Field (continued from page 9)

Tennessee was the fifteenth state to pass legislation addressing the issue. Several of the other states’ laws went into effect on July 1, 2021.10 The new law was added to Title 49, Chapter 7 of the Tennessee Code,11 which concerns Higher Education and it is evident the General Assembly has attempted to narrowly focus the potential impact on the athletes in the state’s four-year public and private colleges and universities.12 Some key provisions of the law permitting an “intercollegiate athlete”13 to earn compensation from the use of the athlete’s name, image, or likeness are: 1) the institution may not be involved in “the development, operation, or promotion of a current or prospective athletes’ NIL”; 2) an athlete earning compensation for use of their NIL must disclose any agreement and the terms to the institution and file annual reports with the institution; 3) an institution cannot adopt any rules that prevents or “unduly restricts” an athlete from earning compensation for the use of the athlete’s NIL; 4) an institution may adopt reasonable time, place, and manner restrictions to prevent an athlete’s NIL from interfering with activities and use of facilities; 5) an institution may prohibit an athlete’s involvement in NIL activities that are reasonably considered to be in conflict with the values of the institution; 6) an athlete may obtain representation by a third party, including an athlete agent, for the purpose of securing compensation for the use of the athlete’s NIL,14 7) institutions must conduct a financial literacy workshop for athletes during the athlete’s first full-time term of enrollment. What’s To Come? As many expected, the NCAA Board

of Directors waited until June 30, 2021, the day prior to the effective date of several state measures, to suspend the organization’s rules prohibiting athletes from selling the rights to their NIL. Unsurprisingly, the current NCAA rules that prevent schools from making direct compensation to athletes remain in place. Additionally, any payments made to athletes cannot be directly related to athletic achievements, which is geared towards reducing the potential for recruiting inducements, although it is expected that activity in the “transfer portal” will be in high gear next year. Some activities athletes can conduct include, monetizing social media, autographs, camps, and advertising campaigns. Additionally, athletes will be allowed to sign with agents or other representatives to help them acquire endorsement deals. The NCAA instructed schools in states that have a NIL law to follow the state’s law in making determinations as to what their athletes can do going forward. Schools located in states without an NIL law are directed to create and publish their own policies to provide clarity to the gray area and come up with a plan to resolve any disputes that arise. It is assumed schools in states like Tennessee, which have passed laws but are not yet in effect will be allowed and expected to create their own policies that do not contradict the new NCAA guidelines nor their pending state law; admittedly not an easy task. The NCAA has stated the new guidelines are temporary to make sure all athletes have some opportunity to profit from NIL as state laws start to go into effect. The expectation of most in the industry is that Congress will step in to pass a uniform federal law that sets a national standard for schools and athletes going forward. While there are many details remaining to be worked out and there will certainly be stops and

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

starts along the way, the financial future of college athletes appears to be trending in their favor, particularly in Tennessee. n JEFFREY CARSON is Senior Vice President with Diversified Trust Co. in Nashville. Jeff serves firm-wide as Senior Fiduciary Officer, charged with leadership and ongoing oversight of the company’s Firm’s comprehensive trust and estate services. MARK KILGORE focuses his practice on patent prosecution and intellectual property infringement litigation. He also counsels clients on IP procurement in both patents and trademarks.

Endnotes

1 See https://www.ncaa.org/about/resources/research/finances-intercollegiate-athletics. 2 The U.S. Supreme Court issued an opinion on June 21, 2021 in NCAA v. Alston, which unanimously ruled the NCAA cannot prohibit member schools from providing athletes with education-related benefits. Further, as discussed herein, on June 30, 2021, the Governing Board of the NCAA voted to lift restrictions on individual athlete’s use of name, image and likeness. 3 Other states to pass legislation include Florida, Georgia, Alabama, Mississippi, South Carolina, and Kentucky. 4 733 S.W.2d 89 (Tenn. Ct. App. 1987). 5 733 S.W.2d at 96. 6 Polygram Records, Inc. v. Legacy Entm’t Group, LLC, 205 S.W.3d 439, 445 (Tenn. Ct. App. 2006). 7 TENN. CODE ANN. § 47-25-1103(a). 8 Id. §47-25-1103(b). 9 Returning to the landmark case State ex rel Elvis Presley, the Tennessee Court of Appeals stated the following: “These endorsements are of great economic value to celebrities and are now economic reality.” 733 S.W.2d at 94. The rise of college athletics as a major money-making business, and thereby the rise of the college athlete to celebrity status, has pushed the “economic reality” into the spotlight. The words written by the Tennessee Court of Appeals in 1987 have transcended time and markets and now poignantly identify the value a college athlete may possess in their name, image, and likeness. 10 Alabama, Florida, Georgia, Mississippi, and South Carolina laws have an effective date of July 1, 2021. Texas’ bill will go into effect September 1, 2021, and Arkansas’ law is effective as of January 1, 2022, like Tennessee. 11 TENN. CODE ANN. § 49-7-2801. 12 An “institution” means a four-year public or private institution of higher education located in the state of Tennessee. Notably this does not include an institution of higher education governed by the board of regents of the state university and community college system. 13 An “intercollegiate athlete” is defined in the statute as a student who is enrolled in an “institution” and participates in an “athletic program.” See TENN. CODE ANN. § 49-7-2801(4). 14 The athlete cannot enter into an agreement for compensation if it conflicts or unreasonably competes with the terms of an existing agreement of the athlete’s institution and may not extend beyond the duration of the athlete’s participation in an athletic program at an institution.

ROCK THE VOTE

2022 Board Nominees | Ballots Coming in November! Be sure to vote in the upcoming 2021 NBA Board Election! Renew your membership at NashvilleBar.org/Renew no later than October 31 for eligibility. Erin Coleman graduated from Johns Hopkins with a degree in Civil Engineering in 2002 and was commissioned as an Engineer Officer in United States Army. She served on active Army service from 2002-2006, deploying to Iraq in 2005 and supporting FEMA in the reconstruction of electrical systems after the devastation of Hurricanes Katrina, Dennis, Rita and Wilma. She served in the Maryland National Guard from 2006-2008, ending her career as a Captain. She attended University of Baltimore School of Law, graduating in 2009. She also completed a Master of Science in Project Management from Boston University in 2008. Coleman began her legal career with the Corps of Engineers in the Baltimore District. She and her family moved to Nashville in 2011, where she worked for the Nashville District until 2013. In 2014, she began Yad Consulting LLC, a project management consulting firm in the construction space. In 2015, she ran for Metro Council at Large in Davidson County and then ran for State Senate in 2016. She was honored with the endorsement of President Obama in the 2016 race. Coleman started her solo practice in 2017 focusing primarily on criminal defense. She has three children - Batya (12), Hirsch (10), and Yael (8). Erin serves on the boards of the Mary Parrish Center, AWAKE, Renewal House, Hadassah, National Council of Jewish Women, American Constitutional Society, Women for TN Future, Community Relations Council for the Jewish Federation of Middle TN and volunteers for Gordon JCC, Moms Demand Action, TN Achieves, and Planned Parenthood. Anthony (Tony) McFarland is a member of Bass, Berry & Sims, and a summa cum laude graduate of both Vanderbilt Law School and the University of Dallas. A native Nashvillian, McFarland comes from a family steeped in local politics. His career has fo-

cused on commercial and business litigation, including privacy and data security incidents. McFarland is a thirty year member of the NBA. He currently serves on the Federal Court Committee, and is a member of and past chair of the Chancery & Circuit Court Committee. McFarland is a Nashville Bar Foundation fellow, and a mentor in its Leadership Forum program. He is actively involved in the Legal Aid Society pro bono referral program, including his firm’s LAS pro bono adoption initiative. McFarland serves as Finance Committee chairman at St. James the Less Episcopal church, and is a long-term member of the Diocese’s Constitution & Canons Committee. He and his wife have raised three sons, two of whom are now practicing members of the Nashville bar. McFarland’s bar interests include expanding resources for new and small firm attorneys, and increasing involvement in programs providing legal services to those in need. Elizabeth E. Foy is a native Nashvillian who attended the University School of Nashville. After studying economics at Kenyon College in Gambier, OH, and a brief stint in Washington, DC, she attended the University of Tennessee College of Law, from which she graduated in 2007. Foy immediately began working as an Assistant District Attorney for the 20th Judicial District, where she prosecuted in many different capacities in many different courtrooms in Davidson County. After ten years with the DA’s Office, Foy shifted to civil practice in-house with Liberty Mutual Insurance Company and the Law Office of Julie Bhattacharya Peak. Recently, she began working with the Tennessee Department of Health, where she is a legislative liaison. Foy is a fellow of the Nashville Bar Association, a graduate of the Nashville Bar Leadership Forum, a graduate of Tennessee Bar Association Leadership Law, and a former barrister with the Harry Phillips Inns of Court. Elizabeth is on the steering committee for the Nashville Bar Leader(continued on next page)

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

ROCK THE VOTE

2022 Board Nominees | Ballots Coming in November! ship Forum. She is married to Michael Wilson and has two small children, Hailey and Beau. Joshua Brand is a true solo practitioner. His practice involves representation of individuals and small business in criminal, domestic, and civil litigation matters. Born and raised in Michigan, he earned his undergraduate degree in cultural anthropology from the University of Michigan and his law degree from Michigan State University. Having served as the chair of the Criminal Law and Justice Committee for the Nashville Bar Association, Brand is a Fellow of the Nashville Bar Foundation, and is currently participating in the pilot training program for the local federal Criminal Justice Act (CJA) Panel. He has written articles for the Nashville Bar Journal about indigent defense funding and the intersection of criminal and civil law. Brand is passionate about the needs of solo practitioners, including the importance of mentorship. He believes technology and “small law” play a critical role in bridging the access to justice gap. He is a dedicated family man with a wife and two children (and one on the way) and most of the time would rather be playing the banjo. Mandy Strickland Floyd is a passionate advocate with a wide range of experience in civil litigation, dispute resolution, and appellate practice. Floyd concentrates her practice in the areas of labor and employment law, constitutional and civil rights, education law, and general business litigation. In addition to her active litigation work, she advises clients concerning business and employment disputes. Following two years of service with the ACLU of Tennessee, she returned to Bone McAllester Norton. While working as an ACLU-TN Staff Attorney, Floyd focused on constitutional and civil rights issues through her federal trial and appellate work. Prior to joining the Firm in 2014, she served as a law clerk to the Honorable Richard H. Dinkins of the Tennessee Court of Appeals, where she first began to develop her appellate expertise. Chad White is a senior partner with the law firm of Tune Entrekin & White, P.C., where he has practiced since 2003. White is a native of Nashville. He graduated from Miami University, Oxford, Ohio in 1998 and Vanderbilt University Law School in 2001. He is married to Misty White; their son, Colton, is a sophomore at MBA and their daughter, Maddie, is an 8th grader at Harding Academy. 14

(continued from page 13)

White began his practice doing insurance defense work under Tracy Shaw at Howell & Fisher. For the first ten or so years at Tune Entrekin & White, P.C., White’s practice focused on construction and contract litigation. During his next ten years, White’s practice transitioned to more transactional work assisting large publicly traded companies and small local builders acquire and develop properties in Nashville and surrounding areas. White was inducted as a Fellow of the Nashville Bar Foundation in 2018, and he was a Barrister of the Harry Phillips American Inns of Court from 2011 through 2015. White enjoys cooking and entertaining, wood working and “projects,” and activities on the family farm. Yanika “Nikki” Smith-Bartley is originally from Cleveland, Ohio. She is married to Brian Bartley and they have two sons, Grayson (10) and Harper (7). She received her Bachelor’s degree in Psychology from Fisk University and her Juris Doctorate from Vanderbilt University Law School. She currently holds the position of Vice-President, Chief Diversity Equity and Inclusion (DEI) Officer and Counsel at Asurion where she leads the DEI and HR Compliance functions. Under her leadership, Asurion has been recognized both nationally and locally for its diversity and inclusion program. Before joining Asurion, Smith-Bartley 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. Smith-Bartley 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, where she served as Vice-Chairman of the Board. Currently, Smith-Bartley serves on the boards of CABLE (Legal Advisor), Nashville Public Television and Tennessee Alliance for Legal Services (Chair of Racial Equity and Justice Committee). She is also an active member of the Williamson County Area County Chapter of Jack and Jill of America, Inc., and Kap pa Lambda Omega Chapter of Alpha Kappa Alpha Sorority, Inc. where she previously served as parliamentarian and held the regional position of Tennessee Connections Chair. She has received the following Nashville Business Journal awards: “Women of Influence – Trailblazer” (2019), “Best of The Bar” (2017) and “Top Forty under 40” (2013), was a 2018 Nashville CABLE ATHENA nominee, and is currently a Nashville Bar Foundation Fellow.

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

ROCK THE VOTE

2022 Board Nominees | Ballots Coming in November! Chris Sabis heads Sherrard Roe Voigt & Harbison’s Government Compliance & Investigations Group and is a member of its Litigation Group. Before joining SRVH, he served as an Assistant United States Attorney in Nashville. Sabis earned his J.D. at Georgetown University, and a B.A. in History and Political Science magna cum laude from the University of Rochester. Sabis is primarily interested in expanding Bar membership to a broader constituency of attorneys, preserving the history and stories of the Bar, and advocating for the interests of the Bar’s membership in Nashville and throughout Tennessee. He is a Premier Member of the NBA, a Nashville Bar Foundation Fellow, Chair of the NBA Historical Committee, and an active member of the NBA Diversity Committee. He also serves as a Hearing Examiner for the Tennessee Board of Professional Responsibility. He is the Program Committee Chair of the Harry Phillips American Inn of Court and has served as Chair of the TBA Federal Practice Section. Sabis is the past chair of Stars Nashville, board secretary of Autism Tennessee, and a member of the Rotary Club of Nashville and the Economic Club of Nashville. He enjoys hockey, theater, and spending time with his wife and two young boys. Justin Campbell is a partner in the Bankruptcy and Creditors’ Rights group at Thompson Burton, PLLC, where he has practiced for the last seven years. Justin’s primary practice includes assisting debtors, creditors, and trustees in various forms of bankruptcy court litigation and other related matters. Prior to joining Thompson Burton, Campbell was an associate attorney with Garfinkle, McLemore, & Young, PLLC. He received Bachelor of Arts degrees in Political Science and History from the University of Tennessee, Knoxville and his J.D. from the University of Mississippi, where he was founder and editor-in-chief of the Mississippi Sports Law Review. Campbell currently serves as the Treasurer for the NBA Board of Directors and co-chair of the NBA’s Bankruptcy Court Subcommittee and is a 2017 graduate of the Nashville Bar Foundation Leadership Forum. He is particularly interested in the NBA’s community outreach and pro bono work, having assisted with outreach efforts after the 2020 tornado and during the pandemic. Campbell is also a member of the Music City Classic Board of Directors and Martha O’Bryan’s NextUp Board.

(continued from page 14)

Joseph Hubbard is a partner at Kay Griffin. Hubbard graduated with honors from the University of Tennessee College of Law, where he served as Editor in Chief of the Tennessee Law Review. He received his B.A. magna cum laude from the University of Tennessee and was a recipient of the Torchbearer award—the highest student honor conferred by the university. Hubbard is a trial lawyer, and he represents individuals and corporate clients in state and federal courts, as well as in arbitration and before administrative agencies. His practice focuses on commercial disputes, education and civil rights, employment, and transportation. Hubbard also has an active appellate practice. Before entering private practice, he worked as a judicial clerk for the Honorable Richard H. Dinkins on the Tennessee Court of Appeals. Hubbard is a Fellow of the Nashville Bar Foundation, and he currently serves as president of the NBA’s Young Lawyers Division. Joseph graduated from the Nashville Bar Foundation’s Leadership Forum, and he serves on its steering committee and as co-chair of its mentorship program. He actively participates in many other NBA events and initiatives. Hubbard has volunteered for and served on boards for several local organizations, including the Belmont University College of Law American Inn of Court and the Phoenix Club of Nashville. Joseph is a cancer survivor, and he has volunteered over 130 hours of service at Monroe Carell Jr. Children’s Hospital at Vanderbilt. He lives in Nashville with his wife and two daughters. Marie Scott practices with Neal & Harwell and focuses on crisis management, white collar criminal defense, toxic tort defense, and complex civil litigation. She is a proud “Wahoo” from the University of Virginia, graduated from Saint Louis University School of Law, and attended Boston University School of Law as a visiting student. Scott is a long-time member of the Nashville Bar Association. She was in the 2019 Class of the Nashville Bar Foundation Leadership Forum and currently serves on the NBFLF Steering Committee. She has served as co-chair of the NBA Nashville Student Suffrage Project Committee, which launched a program to promote voter registration within local high schools prior to the State and Federal General 2020 Election, and she serves on Neal & Harwell’s Social Justice Task Force and Recruiting Committee. (continued on next page)

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

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2022 Board Nominees | Ballots Coming in November! P. Danielle Nellis is an attorney by training, teacher by calling, and blessed to combine a myriad set of skills to train, consult, encourage, and motivate others. Nellis began her legal practice as a solo practitioner where she focused on criminal defense. Following her solo practice, Nellis joined the Office of the District Attorney General. In 2019, Nellis began working as the Judicial Law Clerk for the Honorable Angelita Blackshear Dalton in the Davidson County Criminal Court. Nellis recently joined the team at Klein Solomon Mills, PLLC as Counsel. There she represents businesses and individuals in civil litigation matters. Danielle is also the Adjunct Professor for Mock Trial at Vanderbilt University Law School. Nellis graduated from Spelman College in 2005 and Boston University School of Law in 2009. She is active with the Nashville Bar Association as a member of the Diversity, Memorial and Criminal Law Committees and has produced/ taught several CLE’s. She also chaired the 2020 Diversity Summit Committee and served on the 2018 and 2022 Summit Committees. Danielle received the NBA President’s Award in 2017 and 2020. Nellis believes the most pressing issues facing the Bar (lawyers generally) is a return to the ethical obligation and high calling to forward justice as an idea and in practice. Christen Blackburn is shareholder of Lewis Thomason, where her practice focuses on defending companies in complex and catastrophic transportation and products liability claims. In 2021, she was named as 40 Under 40 by the Nashville Business Journal and “Lawyer of the Year” for Litigation-Insurance by Best Lawyers. She is a Past President of Lawyer’s Association for Women. Blackburn is an active member of the NBA. Since 2018, she has served as a Chair of the NBA’s Community Relations Committee, planning community service opportunities for NBA members at Habitat for Humanity, Second Harvest, and Metro Nashville Public Schools. Blackburn also hosts networking lunches for NBA members at restaurants that re-invest in the community and has worked with NBA’s High School intern program. Blackburn has contributed to a number of NBA programs concerning women in the law, including 100 Years of Woman Suffrage, celebrating the 100th Anniversary of the 19th Amendment, and the celebration of the life of Justice Ruth Bader Ginsberg. She would be honored to continue to serve the NBA on the Board of Directors where she would focus on increased opportunities for networking through service and through collaborative partnerships with all of Nashville’s bar associations.

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

(continued from page 15)

Mark Your Calendar Oct 14 | Cocktails for Costumes @ Bastion

Oct 30 | NBA + NBF Golf Tournament

@ Hermitage Golf Course

Oct 30 | NBA Grand Slam Tennis Tournament

@ Seven Hills Swim & Tennis Club

Nov 5 | Nashville Bar Foundation Fellows Dinner

@ Loews Vanderbilt Hotel

Nov 18 | Fall Memorial Service @ Downtown Presbyterian Church

Dec 6 | 2021 Arts Immersion

@ Mercy Lounge

Dec 9 | Annual Meeting and Banquet @ Music City Center

BILL & PHIL’S GADGET OF THE MONTH

DON’T FORGET YOUR DIGITAL ASSETS AND LEGACY IN YOUR ESTATE PLANNING | Bill Ramsey & Phillip Hampton

We are getting old, especially Bill. Planning for how our assets will be handled after we kick the bucket has suddenly become very important. We own a bunch of gadgets and other electronic stuff. Ok, most of it is, will soon become obsolete electronic recycling fodder. But we both have some valuable digital stuff. We bet that most of you do too. A competent estate plan, in this day and time, must include the preservation and transfer of digital assets as essential components. Now, you may ask, “What are the digital assets you are talking about?” Those assets include all electronic information and records that you own or possess: Digital Photos, Stored Films and movies, Ebooks, all information in cloud accounts, Social media accounts, Digital Subscriptions, online access to financial assets, websites, trademarks, personal information stored electronically, cryptocurrency, NFTs, online access to bank and investment accounts, credit card rewards, email accounts, and so forth. Digital assets are possessions that are purchased, stored, or available on digital

devices or online services. These may include photos, videos, music, websites, blogs, and eBooks. The Digital Legacy Association is an excellent resource for guidance in these matters. It defines “Digital Legacy” as follows: A digital legacy is the digital information that is available about someone following their death. Someone’s digital legacy is often formed by information that they leave online. This may include any website or blog listings about the person, their social media profiles, photos, videos, gaming profiles and interactions they have had online. It defines “Digital Assets” as follows: Digital assets are possessions that are purchased, stored or available on digital devices or online services. These may include photos, videos, music, websites, blogs and eBooks. How do you properly plan for the preservation and transfer of these assets? First, prepare a will, but the will cannot be the type we learned about in Decedents’ Estates in law school. The will must contain specific provisions and directives on how to deal with your digital assets and digital legacy. A good place to start is the Revised Uniform Fiduciary Access to Digital Assets Act, TCA § 358-101 et seq. (“RUFADDA”). You should have a clause addressing the issue of digital assets. It should specifically address a fiduciary’s access to digital assets, electronic communications, and online accounts. Your financial power of attorney should address the same issues. But that is not enough. You need to discuss these assets with your loved ones. You need to prepare an inventory of

all your digital assets, accounts, etc. You need to include passwords, hardware, subscriptions, etc. Put that information in a safe deposit box or other safe, secure place In order to make the process easier after you are gone, make sure you have implemented a password manager, and provided information on how to access your cellphone (which will come in handy on two-factor authentication). All of this needs to be accomplished in accordance with the provisions of the RUFADDA. It is a good idea to consult with a “techie” or someone who is knowledgeable about all this stuff. For example, do you want your Facebook page to survive you? Do you want to leave your Instagram photos posted? Make your wishes clear. At a minimum, you need to have all your digital assets “locked down” and secure to prevent the risk of identity theft, etc. You can put your wishes in your will or in a separate document left for those who will be handling your matters. If handling these matters is “over the head” of your executor, give your executor guidance on who to turn to for advice in these technical, digital matters. There many complicated issues in this area. Just make sure you have fully considered and provided for your digital assets and your digital legacy before it is too late. We hope we did not “bum you out” with this article, but we feel these matters are really important. See you next month, Bill and Phil n

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Feature Story |

Judge Haywood and the Convenience Store (continued from page 8)

GEORGE C. PAINE II was a chief judge for the U.S. bankruptcy court, Middle District of Tennessee. He retired from the court in 2011. HAL HARDIN provides legal services for issues involving Criminal Defense, Business Litigation and Personal Injury at Hardin Law Office.

Endnotes

Haywood’s publications include: North Carolina Reports (1806), A Manual of the Laws of North Carolina (1808), A Revisal of the Public Acts of the States of North Carolina and Tennessee (1809), Duty and Authority of Justices of the Peace (1810), The Statute Laws of the State of Tennessee (1831), The Natural and Aboriginal History of Tennessee (1823), The Civil and Political History of the State of Tennessee (1823), and The Christian Advocate (1819). 2 The cemetery opened in 1822 and is the oldest cemetery in Nashville. There are over 22,000 deceased Nashvillians therein, of whom 6,000 are African Americans. Included in this group are two of Nashville’s founders, numerous lawyers, the first Superior Court Judge of the Cumberland Frontier; four judges of the Supreme Court of Errors and Appeals; a Chief Justice of the Supreme Court; a Judge of the Superior Court of Law and Equity; Davidson County Attorneys; a Tennessee Governor; twenty two mayors; a US Secretary of the Treasury; and Ambassador to Russia; three Davidson County Court Clerks, two of the historic Jubilee Singers; a US Attorney General; three US Senators; US Representatives; school teachers: business persons; and others from all walks of life. 3 According to Fielder’s Declaration, the task should be easier because Judge Haywood reportedly weighed 400 pounds and would be in a larger than normal grave and coffin. 4 Hal Hardin is a former NBA Board Member, US Attorney and Presiding Judge of the Nashville trial courts; he has received the trifecta of NBA honors the Tune, Rutherford, and Norman Awards. 5 It is worth accessing the Petition to review the full extent of Judge Haywood’s disappearance and the declarations of Fielder, Sellers and Bucy. (Polly Property, LLC, et al vs. Known and Unknown Heirs of Judge John and Wife, Mrs. Martha Haywood, et al, Case No. 21-0696-III.). You also may email George Paine for a copy. 6 Value from George E. Webb Jr., Tennessee Books & Autographs, P.O. Box 637, Rogersville, TN 37857, the premier appraiser of antiquarian items in the region. 1

Because so many have been involved in the project, there is a risk of not thanking everyone. However, NBAHC is grateful for the help of Chris Sabis, the chair of the NBAHC; NBAHC members Mary Bers and John McLemore; Jim Hoobler, president of the Nashville City Cemetery; Leslee Hughes, treasurer of the Nashville City Cemetery; David Fox and Bob Buchanan, present and former presidents of THC; Judge Andy Bennett, president of the SCHS ; Robert I. Thomason Jr. and Steve Hostetter, attorneys for the land owner and lessee, respectively; Margaret Haywood Siegrist, John Haywood and Annabeth Hays, Haywood descendants; Pastor Paul Gunn of the Tusculum Hills Baptist Church; and Karen Barnes of Hardin Law Office. To complete this project, the parties are seeking donations that will be tax deductible as they will be paid to the Nashville City Cemetery Association, Inc., a 501(c)(3) not for profit organization, P.O. Box 150733, Nashville, TN 37215. Any monies left unspent will go to future maintenance of their graves and others within this historic cemetery. n

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

N B A O N LI N E S E M IN A R S P ersonal i z ed Learn in g o n Your S chedul e

WE’VE GOT YOU COVERED Visit NashvilleBar.org/CLE for the lastest

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. F RI DAY, OCTOBER 1 5 | HYBRID SEM I N A R

M O N D AY, O C TO B E R 18 | H Y B R I D SEM IN A R

DUNDER MIFFLIN PAPER COMPANY, INC. V. MICHAEL SCOTT AND MICHAEL SCOTT PAPER COMPANY:

FAMILY LAW INSTITUTE OVERVIEW

A Discussion on Enforcement of NonCompetes in TN OVERVIEW

If you’re a fan of The Office, then you know about Michael Scott setting up a rival paper company. You also know that Michael was not subject to a non-compete agreement. But what if Michael Scott had signed a non-compete agreement? Join the discussion of what could and should have happened had Dunder Mifflin drafted and tried to enforce a viable non-compete agreement. This presentation will include a discussion on the drafting of non-compete agreements under TN law as well as a “day in the life” type review of non-compete litigation. PRESENTERS

The NBA Domestic Relations Committee presents the annual Family Law Institute, featuring 4.0 hours of CLE. This year’s institute includes Judge Phillip Robinson’s and Judge Philip Smith’s perpectives from the bench, a case law update, and more! PRESENTERS A full list of presenters is available online at NashvilleBar.org/FamilyLawInstitute. D E TA I L S

Joe Shelton Fisher Phillips

Seminar ��9:00am – 1:30pm Credit ��4.0 General

Tom Shumate Meridian Law

Location �� Hybrid (NBA Office & Virtual - Zoom) COST

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

NBA Members ��$195 Non-Members ��$389

Location �� Hybrid (NBA Office & Virtual - Zoom) COST NBA Members ��$45 Non-Members ��$189

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

TH U R S D AY, O C TO B E R 28 | ZOO M S E MIN A R

REAL ESTATE ROUNDTABLE

ESTATE PLANNING & PROBATE PRACTICE INSTITUTE

OVERVIEW Occupancy costs account for 25% of a law firm’s overhead, on average. This seminar will discuss the latest trends on this significant expense item, including how remote work impacts space decisions, what’s coming online in the next few years, and common negotiation issues and lease discussion points. A lively panel discussion will be accompanied by lunch sponsored by CBRE.

OVERVIEW The NBA Estate Planning & Probate Committee is pleased to present their annual Estate Planning and Probate Practice Institute. Topics will include updates regarding legislation, case law, remote notarization, the intersection of Probate and PI, and feature a Judge’s Panel.

PRESENTERS Brigid Carpenter Baker Donelson Ryan Levy Patterson Intellectual Proprerty

PRESENTERS

Frank Thomasson CBRE

For a full list of presenters and agenda, please visit NashvilleBar.org/EstatePlanningProbateInstitute.

David Wicker Stites & Harbison D E TA I L S Seminar ��12:00 – 1:00pm

D E TA I L S Seminar ��12:00 – 4:10pm Credit ��4.0 General Location ��Virtual (Zoom)

Credit ��1.0 General COST

Location �� Baker Donelson COST

NBA Members ��$195 Non-Members ��$389

NBA Members ��$45 Non-Members ��$89

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

M O N D AY, N OV E M B E R 1 | LI V E SEMIN A R

TN WHISKEY LAW

TN CAMPAIGN FINANCE, REDISTRICTING, ETHICS & LOBBYING REQUIREMENTS

OVERVIEW

Journey with the Nashville Bar Association to the historic Tennessee Whiskey Trail. Your registration includes bus transportation, two bourbon tastings & tours, 1.0 hour of CLE credit, and lunch at historic Miss Mary Bobo’s Restaurant. PRESENTERS A full list of presenters along with travel information is available online at NashvilleBar.org/TNWhiskeyCLE.

Join us in a lively discussion regarding all you need to know for the upcoming 2022 election. Presenters will discuss requirements, guidelines and deadlines to help you understand campaign financials, redistricting implications, lobbying, and more! PRESENTERS

D E TA I L S Seminar �� 9:00am – 5:00pm

For a full list of presenters, visit NashvilleBar.org/ElectionLaw.

Credit �� 1.0 General D E TA I L S COST

Seminar �� 12:00 – 3:00pm

NBA Members �� $175

Credit ��3.0 General

Non-Members �� $275

Location ��NBA Office (Live)

Non-Attorney Guest �� $135 COST NBA Members �� $139 Non-Members �� $279

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

FR I D AY, N OV E M B E R 5 | ZOO M S E MIN A R

DOMESTIC VIOLENCE FOR LAWYERS

DIVERSITY ON TRIAL: A LOOK AT THE ROLE OF DIVERSITY IN OUR COURTS

HOW TO HELP YOUR CLIENTS & TAKE CARE OF YOURSELF

OVERVIEW

OVERVIEW Thousands of cases of domestic violence are reported in Middle Tennessee each year. Sadly, some incidents result in the death of the victim, children, and/or the perpetrator. Unfortunately, this tragic result is becoming more common. In response to this growing crisis, Judge Smith has assembled a distinguished panel of judges, attorneys, and professionals to inform lawyers on: • How to Best Assist and Protect Domestic Violence Clients • Red Flags of Domestic Violence with Clients • Vicarious Trauma Attorneys Experience from Domestic Violence Cases and Available Support Services through TLAP • How to Protect Yourself as an Attorney PRESENTERS For a full list of presenters, visit NashvilleBar.org/DVCLE. D E TA I L S

This seminar will expound upon the biases and need to recognize diversity in and out of court. Through our panel learn how each client is viewed by prosecutors, judges, and jurors. PRESENTERS For a full list of presenters, visit NashvilleBar.org/DiversityonTrial. D E TA I L S Seminar ��12:00 – 2:00pm Credit ��2.0 General Location ��Virtual (Zoom)

Seminar ��4:00 – 6:00pm

COST

Credit ��2.0 General

NBA Members ��$95

Location �� A.A. Birch Building, Jury Assembly Room

Non-Members ��$189

COST NBA Members ��$95 Non-Members ��$189

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

TU E S D AY, N OV E M B E R 16 | LI V E SEM IN A R

SERVING ON NONPROFIT BOARDS

BUSINESS LAW INSTITUTE

OVERVIEW

The NBA Business Law Committee is pleased to present the annual NBA Business Law Institute. Registrants are invited to join their colleagues to discuss complex aspects of a sale/merger/transaction, COVID-19’s Impact on Commercial Leases, and an update on changes in business law in 2021, among other topics of interest. Please join us!

OVERVIEW

Are you an attorney interested in serving on nonprofit boards? This CLE will cover what you need to know as an attorney to serve successfully on the board of a nonprofit organization. PRESENTERS For a full list of presenters, visit NashvilleBar.org/NonprofitCLE.

PRESENTERS Talor Bearman K&L Gates Oliver Davis Polsinelli

D E TA I L S Seminar ��1:00 – 4:15pm Credit �� 2.0 General & 1.0 Dual

Bobby Guy Polsinelli

Location ��Virtual (Zoom)

Ralph Levy. Jr. Dickinson Wright

COST

D E TA I L S

NBA Members ��$139

Seminar ��12:00 – 4:30pm

Non-Members ��$279

Credit ��4.0 General Location �� NBA Office (Live) COST NBA Members ��$195 Non-Members ��$389

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

FR I D AY, D E C E M B E R 3 | LI V E S E M IN A R

ETHICS, LIES & VIDEOTAPE, PART XIX

ENTERTAINMENT, SPORTS & MEDIA LAW INSTITUTE

OVERVIEW

Don’t miss one of the NBA’s most popular ethics & professionalism programs! Past seminar participants have rated this seminar a “10.” 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?

Register now and join your colleagues for the Entertainment, Sports & Media Law Committee’s annual event at the Nashville Public Library - Downtown location!

PRESENTERS Edward D. Lanquist, Jr. Patterson Intellectual Property Law Hon. W. Neal McBrayer Judge, TN Court of Appeals D E TA I L S

This full day, information-packed seminar will feature panels or presentations on Professor Stan Soocher’s tried and true entertainment litigation “year in review,” taking a closer look into the growing indie sector of the music industry, highlighting the legal requirements and potential pitfalls of celebrity endorsements and brand partnerships, and an important discussion on Title IX jurisprudence and sexual harassment, assault, and abuse claims in professional sports (dual ethics). 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. Lunch and a reception are included with registration.

Seminar ��1:00 – 4:15pm

PRESENTERS

Credit �� 3.0 Dual

A full list of presenters is available online at

Location �� Hybrid (NBA Office & Virtual - Zoom)

NashvilleBar.org/ESMInstitute.

COST NBA Members ��$139 Non-Members ��$279

D E TA I L S Seminar ��9:30 – 5:15pm Credit �� 1.5 Dual & 5.5 General Location �� Nashville Public Library - Downtown COST NBA Members ��$295 Non-Members ��$549

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

FR I D AY, D E C E M B E R 10 | LI V E S EMIN A R

SLAVERY IN INTERNATIONAL LAW & DOMESTIC POLITICS:

GOVERNMENT PRACTICE INSTITUTE

NEW INSIGHTS FROM THE PAPERS OF

OVERVIEW

ANDREW JACKSON OVERVIEW During Andrew Jackson’s presidency (1829-1837), a series of maritime mishaps in the Bahamas brought freedom to scores of enslaved people and fueled diplomatic tensions with Great Britain that persisted into the 1840s. Both before and after Britain abolished slavery throughout most of its empire in 1834, local British authorities declared that American slaves shipwrecked in the Bahamas were free. The Jackson and Martin Van Buren administrations protested vehemently on behalf of American slaveholders, producing a diplomatic deadlock over portentous questions about property rights, sovereignty, and comity under international law. After tracing the diplomatic history surrounding these incidents, this seminar explores documents recently discovered by the Papers of Andrew Jackson that reveal grassroots efforts by American slaveholders to shape the position taken by U.S. diplomats. PRESENTER

The NBA Government Practice CLE will offer six hours of CLE credit, with three of those hours being dual (ethics) credit. Topics for the December programs include Ethical Issues in State Government, Tips on Appearances Before the TN Supreme Court, Title VI Talk, a Supreme Court Update, and the Annual Ridley Staley Report. PRESENTERS A full list of presenters and agenda is available online at

Michael E. Woods University of Tennessee, Knoxville

NashvilleBar.org/GovernmentCLE. D E TA I L S

D E TA I L S Seminar ��12:00 – 1:00pm Credit ��1.0 General Location ��Virtual (Zoom)

Seminar ��8:10 – 4:15pm Credit �� 3.0 Dual & 3.0 General Location �� TN Tower (Live) COST

COST NBA Members ��$45

December 10 Institute ��$229

Non-Members ��$89

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

TENNESSEE CHAPTER

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

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 627-9390

Paul DeHOFF (615) 631-9729

Barry L. HOWARD (615) 256-1125

James KAY (615) 742-4800

Mark LeVAN (615) 843-0308

Gayle MALONE, Jr. (615) 651-6700

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Michael RUSSELL (615) 815-0472

Tracy SHAW (615) 921-5204

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Kreis WHITE (615) 309-0400

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

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

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

Even a dog knows the difference between being tripped over and kicked. Special Session. The General Assembly is like a thunderstorm this summer. It rumbles all the time. The most recent rumble of thunder comes in response to President Biden’s Path Out of the Pandemic announcement of an executive order requiring federal employees to be vaccinated. The President has also signed an executive order extending this requirement to employees of contractors that do business with the federal government. The President also announced that the Occupational Safety and Health Administration (OSHA) will issue an emergency rule requiring all employers with 100 or more employees to ensure either that their workplace is fully vaccinated or tests negative for Covid-19 at least once a week. Within the space of five days, two state house members have asked for an extraordinary session to deal with this national issue. No word yet from Governor Bill Lee or the Senate Leadership for that matter. State Revenues. The department of revenue continues to report healthy monthly state revenue collections. While Commissioner Butch Eley is as skittish as a cat in a dog pound by stating that future growth remains a concern, the state has been on a roll. The state has enjoyed

good revenue success during pandemic times. While our Nashville hospitality service provider friends and others across the state have struggled mightily, home improvement stores and furniture stores and internet sales have been good sources of sales tax revenue. For the entire state, general fund revenues were $1.9 billion more than the budgeted estimate from the state funding board. While state revenues are a dry topic, in a low tax, low service state like Tennessee, the healthy collections allow state policy makers to enact a balanced budget, keep a fully funded K-12 education program and TennCare program, have a debt free highway construction program and maintain a well-funded consolidated retirement system for state and local government employees. Judicial Elections. Each general sessions court slot and each state trial court slot will have a general election on August 4, 2022, for a full eight year term beginning September 1, 2022. The first day a candidate may pick up a qualifying petition from the election commission office for the May 3, 2022, primary is Monday, December 20, 2021. The next campaign financial disclosure report is due January 31, 2022, and the qualifying deadline is noon on Thursday, February 17, 2022.

Calendar Notes. Make time for your human’s Covid-19 vaccination and miss the pandemic of the unvaccinated. No doctor and only a beagle here, but I did grow up on a puppy farm. Ivermectin is a great drug to treat beef cattle for parasites such as worms. Ivermectin, however, does not prevent or cure Covid-19. The State and NBA will be closed on Thursday, November 11 to observe the Veterans Day holiday, and Thursday and Friday, November 25 and 26 for the Thanksgiving holidays. The NBA gets really busy in the fall. Mark your calendars for events such as the Law Day Luncheon on October 12, the Nashville Bar Foundation Fellow Dinner on November 5, and the Fall Memorial Service on November 18. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

We Already Knew That. The journal, Scientific Reports, recently published a study by German scholars noting that dogs may well be able to distinguish human intentional and unintentional conduct. This suggests dogs have at least one aspect of something known as the Theory of Mind - an ability to attribute mental states to oneself and others, something long regarded as uniquely human. A pool of 51 dogs participated in the study. We would have been struck for cause on voir dire.

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Editorial |

Lisa Helton

Unearthing the Dead: Protocol, Process, and Reverence You never know what – or who – lies beneath the surface. Imagine engaging in construction, landscaping, or other improvements to real property, and suddenly making a grim discovery: you have stumbled upon human remains. Tennessee law imposes obligations on one who accidentally disturbs a gravesite and prescribes the process to follow, should the cemetery need to be relocated. First, stop all activity at the site. With some exceptions for farming and surface collecting activity, Tenn. Code Ann. § 11-6-107(d) requires parties who encounter or accidentally disturb human remains to immediately cease disturbing the ground and contact the state coroner or medical examiner and local law enforcement. Failure to comply with these requirements is a Class A misdemeanor.1 Either the coroner or the medical examiner must examine the remains and, within five working days, determine whether the site merits further investigation.2 If the coroner or the medical examiner and law enforcement have no forensic or criminal concerns with regard to the site, then the coroner or the medical examiner shall notify the Tennessee Division of Archeology.3

Rebury the remains. After satisfying all notice requirements and alleviating any forensic or criminal concerns, Tenn. Code Ann. § 116-119 imposes, with some exceptions, a duty to rebury the remains within six months of the discovery. The statute details the manner in which the remains must be reburied, providing a mechanism for scientific analysis of the remains beforehand. Tenn. Code Ann. § 11-6-104 discusses the treatment of artifacts recovered at the gravesite, stating that these objects may become the property of the state of Tennessee and be placed under the custodianship of the Division of Archeology. These statutes apply to the inadvertent unearthing of human remains per Tenn. Code Ann. § 11-6107(d)(4). Petition for terminating a gravesite. The procedural complexity comes when a party finds it necessary to relocate the gravesite, such as in the case of the discovery of human remains during the construction of a residential neighborhood. Tenn. Code Ann. §§ 46-4-101 to -104 outline the procedure for terminating a site as a burial ground. The owner of the real property where the grave was discovered, certain governmental entities, or any other in(continued on page 29)

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

Editorial |

Unearthing the Dead (continued from page 29)

the burial ground is no longer suited or proper for use as a gravesite because: (1) The burial ground is abandoned; (2) The burial ground is in a neglected or abandoned condition; or (3) The existence of any conditions or activities about or near the burial ground that the court finds render the further use of the burial ground for the purposes mentioned in this section that are inconsistent with due and proper reverence or respect for the memory of the dead, or for any other reason unsuitable for those purposes.6 terested person may bring the petition in the Chancery Court in the county where the grave is situated.4 Tenn. Code Ann. §§ 46-4-102 and 103(b) and relevant case law require the petitioner to make reasonable efforts to locate potential interested persons. “Interested persons” is defined in Tenn. Code Ann. § 46-4-102 to include the nearest relative(s) of the decedents. From a practice standpoint, genealogy websites and professional heir searches are helpful for this task. Tenn. Code Ann. § 46-4-103(b) provides that known defendants who are minors or otherwise incompetent or under disability shall be represented by a guardian ad litem. If the petitioner cannot locate the interested persons, the petitioner may notify unknown defendants by publication.5 Effective 2018, Tenn. Code Ann. § 464-103(c) contains provisions requiring notice to the Tennessee Historical Commission: To succeed in the Chancery Court, the petitioner must demonstrate that

Create a detailed reburial plan. As part of the petition, the petitioner must have a plan to relocate and rebury the decedents. The petitioner must show to the court’s satisfaction that the removal and reburial of the remains will be done with due care and decency and that a suitable memorial will be erected at the place of reburial.7 From personal experience, the court may request such details as the type of marker to be placed at the new gravesite and the permanency of the memorial, to ensure the graves are not lost again in the future. Some of the above discussion varies depending upon whether the grave discovered contains Native American remains or artifacts.8 While you may imagine it is rare to discover an unmarked grave, I have represented clients who have encountered this situation and have found the final resolution rewarding for all parties involved. The process can bring a sense of closure. Not only is the abandoned grave restored and maintained

going forward, but some relatives may not even know that family members were buried nearby. Recently, I had the honor of being graveside while the heirs held a ceremony for their loved ones as they were reburied. It is about dignity, reverence, and respect. The intent behind Tennessee’s grave discovery and relocation statutes is clear: the living should treat the dead with respect and dignity, and the deceased’s closest relatives must be given the opportunity to participate in any decision to relocate their remains. It is a gratifying process that invokes legal analysis, history, ancestry, and mortality. n LISA K. HELTON is a member of Sherrard Roe Voigt & Harbison, PLC, where she focuses on estate and trust litigation, appellate practice, general and commercial litigation, landlord-tenant disputes, representation of homeowners associations, and IRS tax litigation and controversy.

Endnotes 1

Tenn. Code Ann. § 11-6-107(d)(5).

Id. § 11-6-107(d)(2).

Id. § 11-6-107(d)(3).

Id. § 46-4-103(a).

Id. Tenn. Code Ann. § 46-4-103(b).

Id. § 46-4-101.

Id. § 46-4-104

For a detailed analysis of additional rules and protections applicable in such a situation, see State ex rel. Comm’r of Transp. v. Eagle, 63 S.W.3d 734, 751 (Tenn. Ct. App. 2001). 8

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Park Bill & Phil’s Editorial | Olivia Gadget of the Month | Bill Ramsey & Phillip Hampton

Probate Court: Remote Wills and More Contested Battle of theScenarios Pros The year 2020 introduced many new challenges into the iPad Pro 12.9 vs iPad Pro 9.7 practice of law. One of the most notable was the overnight

basis of undue influence, improper execution, and/or incompetence. Remote notarization and remote witnessing place introduction to widespread use of video conferencing. Estate limitations notaries and thatgreat in-person We love to buy gadgets as soon as they Yes, witnesses you can take selfies pose of having an iPad.certain (At least we felt on cameras. planning, in particular, area of directly impactnotarization and witnessing dopictures not. Arguably, a witness is hit the market. We arewas fullyanaware thatpracticethat and great with the high-resolution way after we bought it.) ed by theextra introduction the observe the signer’s capacity demeanor you pay for being of anvideo early conferencing. adopter. camera that comes with it.and Yes, you can The 12.9” displaybetter is so able largetoyou In response to the broke COVID-19 Gov. Bill he or she is record able tovideos do remotely. More so, it is Guess we enjoy being (and epidemic, also even in 4k resolution. really needLee to iscarry it in-person in a laptopthan bag, sued Executive 26 with on April henot have impossible for a witness observe people outside theusers view being the first kidsOrder on theNo. block the 9, 2020 toNevertheless, for just regular and itwhereby just does the portable, temporarily the “inasperson” forfeel the that wit- madeofthethe camera ability new toy). So,suspended it should come no sur-requirement it is be veryaffecting hard to the tell signatory’s the iPad Pro 9.7 compact original iPadwho could nessing and notarization of certain legal documents, including to act voluntarily. To minimize the risk of challenges to legal prise that we bought Apple’s big screen apart from the iPad Air. The displays are and its successors so popular. So, while but not limited wills,astrust durable of is powerful documents and witnessed pursuant to same Executive 12.9 iPad Pro astosoon it hitagreements the market. and the nearly identical. They run the softiPadpower Pro 12.9 andnotarized has attorneys. Pursuant to the Executive Order, aindividuals could Order No. 26, some practitioners have taken measures such ware. They use the same apps. There great deal of potential—especially for execute these documents a notary public and media as re-executing planning documents in person. The iPad Pro 12.9 in the presence ofgraphic does not seem to be a great advandesigners creators—estatejust via real-time audioweand visual communication (such as Zoom, Despite the necessity of remote execution for versus estate We must admit, were a bit disaptage to having an iPad Pro 9.7 it is not a laptop killer in our opinion. Teams, FaceTime, etc.), provided that certain requirements planning documents inhaving light ofa the pandemic, there will inevpointed when we started fooling with regular iPad (especially the were physical documents signed under Executive The iPadpresPro 9.7 itably be challenges tosleek it. Yes,met. theSuch iPad requirements Pro 12.9 wasincluded: the big- (1) the iPad Air 2). ence of the witnesses, notary, signatoryWe’re in the Orderexecs No. 26 and its extensions. Since the expiration of the notState sure of if the Apple heard gest, fastest Apple tablet ever and made. Tennessee; the ability all parties hear each allowance remote iPad execution notarization relatively Proand 12.9 v. iPad isPro 9.7 ourand complaints about the 12.9 iPadforPro, You can buy(2) a really nice ofkeyboard to to see other simultaneously; andYou (3) can the inclusion of statement in a nodnew, it will likely be some time before willofknow how Returning to theattorneys comparison the iPad buta we took it as in our direction go with it, and we did. also the document stating that the parties executed the they document courts will handle Proissues. 12.9 tonthe iPad Pro 9.7 (yes, we got when subsequently announced a these buy a pressure-sensitive stylus/pencil in take compliance with Executive accordance a bit sidetracked), we believe the iPad iPad with Pro, the 9.7. Gadget nerds to notes, sketch, and reallyOrder create26. In smaller the Executive Order,that parties execute like the us document Pro 12.9 is actually a superior product. and our in money are soon parted. great art. We bought too. could The giant counterparts; however, thequad witnesses public The PARK high resolution the civil four-speakSo, when the had new iPad Pro 9.7 became OLIVIA screen is beautiful, and the speak-and notary Olivia Park and practices litigation at to sign documentThe withinlarge ten days of the signatory’s datehad of to buy one immediate- McAngus er system take greater advantage the available, we ers aretheincredible. screen Goudelock and Courie. Prior to joiningofMGC, execution. faster on processor superior display on ly, as well. And, as usual, we were excit- she focused really works well with split screen apps intellectual and property, litigation, wills, trusts Gov. Bill Lee extended effective provisions of delivery of our new and estates, the iPad Pro models. addition, in anticipation that are now available in thethenew iOS termedand as well as family law at In a Nashville firm.you Halis unequivocally her favorite Executive No. 26 through Execuhave more screen realholiday. estate to use gadget. We were certain that the new, loween 9ofseries. You Order can watch movies on seven the subsequent tive Orders, of which expired 28, 2021. As the split screen feature that is bundled smaller iPad would be more portable right-side of the yourlatest screen and edit doc- on April a result,onforthe slightly a year,InTennessee attorneys into iOS 9—now 9.3.1. Of course, you and more incould line with the iPads we had uments left, forover example. othfinalize planning documents and oversee execucan use the split screens feature on any cometheir to know and love, while providing er words,estate you can play and work at the tion without a clientweever stepping foot into their law“Pro” offices. iPad, but it just works better on the largall the advantages. Unfortunately, same time; which don’t necessarily litigation, forensic mediation services The suspension of “in person” notarization andbecome witness-spoiled. Valuation, erand screen. Thsupport e bottom linerequire is that while we had recommend but do occasionally enjoy. an independent and objective assessment. Price CPAs has assisted in these services. documents the ability attor-the iPadcases the 12.9 iPad Pro is a bit more cumber planning After using Proinvolving 12.9, the ing ofBut, we were facilitated not as overjoyed withof estate neysnew to assist mitigating risk ofon contractsome to carry, you get spoiled once you the 9.7 seemed tiny (yes, we our priceytheir toyclients as wewhile thought we thescreen THESE SERVICES ARE LED BY THESE SERVICES INCLUDE: THE FOLLOWING PROFESSIONALS: ing COVID-19. of remoteknow notarization and that the• Minority have used the larger screen. You do not we complained 12.9 was too disputes would be. First,Despite by the the timebenefit we added shareholder • Valuations • Tom Price, CPA/ABV/CFF, CVA witnessing storage, of documents, the modem, elimination ofbig; theforgive “in-person” want to return to a smaller iPad model. us for being tech divas). With additional a cellular • Wrongful Death/Personal Injury • Alan Webb, CPA • Divorce (equitable distribution) • Mark Fly, CPA, ABV 12.9 is the raises some concerns. So, in our opinion, the iPad the 9.7 we began to feel like• Commingling we were just arequirement Bluetooth keyboard, and the pencil, & Transmutation • Stephanie McGuire, CPA/ABV, Business price Perhaps, one creeping of the most abil- screen.• In winner (but barely) over the lookingisatthe an iPhone fact, itdamage was assessment the tag was up significant north of concerns CFE, CAMS, MS iPad Pro 9.7 and determination ity of remote witnesses notaries the to signavery hard tell the difference between $1,200. For that price weand could buy ato evaluate • Solvency analysis and or just a regular iPad. But, here is a word fraudulent conveyance CONTACT US TODAY TO DISCUSS HOW tory’snice mental andlaptop to confirm acting to the wise and thrifty. If youTOare a regularisiPad or iPad Air 2• and the iPad very fullycapacity functional (key-the signatory WE MIGHT BE OF SERVICE YOU. not a Litigation consulting services. knowingly and freely. Estate the planning whether spendthrift like us, our best advice is to Pro 9.7. Yes, the iPad Pro 9.7 has a faster, board included). In addition, large documents, witnessed notarized by traditional by buyBEDFORD neitherAVE“Pro” model and stick with moremeans power or processor than the iPad Air size makesand the iPad Pro 12.9 seem lessin-person 3825 | STE 202 | NASHVILLE, TN 37215 615.385.0686 | w w w. p r i c e c p a s . c o m video conference, are subject challenges on the an iPad Air 2. Save your money. n 2. Yes, Apple has updated the iPad Pro portable. Its size almost defeats to thepossible pur-

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NASHVILLE BAR BAR JOURNAL JOURNAL || FEB OCTOBER/NOVEMBER 2021 NASHVILLE / MAR 2016

barBITES |

Cameron Adkins, Nashville Bar Association, CLE Director

BUFFALO CHICKEN DIP Kitchen Notes Kick off football season with Buffalo Chicken Dip! Ingredients 1-1.5 lbs Chicken Breast 1 Block of Cream Cheese 1 8oz Bag of Shredded Cheddar Cheese Frank’s Red Hot Buffalo Sauce Ranch Dressing 1 bag of Your Favorite Tortilla Chips Directions 1. Boil chicken breast 2. Once chicken is cooked thoroughly, place chicken in an oven-safe pan and shred 3. After shredding, add 1 block of cream cheese, 5 oz of Frank’s Red Hot Buffalo Sauce, 5 oz of Ranch Dressing, and half a bag of cheddar cheese to pan 4. Mix together until all ingredients are spread evenly in dish 5. Place the pan in the oven and bake for 6 minutes 6. After 6 minutes, take the pan out of the oven and change the oven to broil at 500 degrees 7. While the oven is heating, mix the ingredients again, and add the remaining cheddar cheese 8. Lastly, place the pan back in the oven for 5 minutes 9. Enjoy with your favorite tortilla chips and football team!

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

VOLUNTEER FOR DIAL-A-LAWYER Dial-A-Lawyer is held the first Tuesday of each month from 6:00 – 8:00pm, and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact Traci.Hollandsworth@nashvillebar.org.

Thank you to our August and September volunteers! CHRIS HUGAN TOM LAWLESS

Pro Bono credit applies, and a complimentary dinner is provided.

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Welcome to the NBA!

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

NEW MEMBERS (JULY 1 - AUGUST 30) Tom Aumann

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Casey Malloy

Clayton Stansell

Michael Caskey

Betsy Mangum

Jennifer Tag

William Cox

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Kathryn Donaldson

Brandon Meredith

Angie Washington

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Will Fitts

Hollie Parrish

Stella Yarbrough

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101 Years of Woman Suffrage Reception | August 2021

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OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

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YLD Carbolic Smoke Ball | August 2021

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OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS Metropolitan Nashville-Davidson County General Sessions Court Judge Lynda Jones was appointed to the Behavioral Health and Wellness Advisory Council (BHWAC). The Behavioral Health and Wellness Advisory Council (BHWAC) was established by executive order in May 2018 and reaffirmed and continued by Mayor John Cooper in September 2019. The BHWAC was charged with identifying, reviewing, and promoting community behavioral health priorities, and determining best practice goals and strategies for lessening the impact of mental illness and addiction on the people of Nashville. Chambers USA High Net Worth selected Stites & Harbison, PLLC attorney Gregory D. Smith for inclusion in its 2021 guide in the category of Family/Matrimonial for USA: Tennessee. Chambers High Net Worth ranks top lawyers and law firms in the international private wealth market. Smith is a Member of Stites & Harbison based in the Nashville office. He is a family law lawyer with 36 years of experience whose practice focuses on complex, difficult disputes between spouses and former spouses. Bradley Arant Boult Cummings LLP is pleased to announce that Alé Dalton, an associate in the firm’s Nashville office, is the recipient of Bradley’s 2021 Cameron J. Miller Award for Excellence

and Community Service. This annual award honors an associate who exemplifies the excellence of Cameron Miller, who passed away in June 2012 after battling cancer his first year as an attorney at Bradley. Through the award, Mr. Miller’s contributions and service to the firm and the community will continue to be recognized in a tangible way. Dalton is a member of Bradley’s Healthcare Practice Group where she provides her clients counsel during mergers and acquisitions, as well as guiding them through issues that arise from the complex nature of operating in a highly regulated industry. Bradley Arant Boult Cummings LLP is pleased to announce that Lela M. Hollabaugh, has been named to the 2021 Benchmark Top 250 Women in Litigation list. Hollabaugh advises leading natural gas pipeline companies and other infrastructure clients on issues involving location, land acquisition, construction and operations. Hollabaugh recently co-authored an amicus curiae brief to the U.S. Supreme Court in support of the industry’s position in the scope of the Natural Gas Act and the state’s 11th Amendment immunity. K&L Gates partner, Jason Callen, has been named as president of the Economic Club of Nashville (ECON). ECON is a local civic and service organization

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

that works to make Nashville a better place to live. The Club (which draws its history and tradition from its predecessor organization, the Nashville Exchange Club) was chartered in 1920 to serve the community and bringing business leaders together to discuss economic, social and other public issues in a non-partisan forum. L. Gino Marchetti, Jr. has received the Richard Boyette Award for Outstanding Contributions to the National Foundation for Judicial Excellence. This award is designed to recognize individuals who demonstrate a commitment to excellence in judicial education and exemplify professionalism in promoting the case for a well-educated judiciary. Marchetti is a past president of the International Association of Defense Counsel and an inspired leader of the NFJE. Marchetti currently serves as Managing Partner of Taylor, Pigue, Marchetti & Blair, PLLC. O N TH E M OV E Bass, Berry & Sims has grown with the addition of five attorneys in its Nashville office. Caleb Hogan (not pictured) joins as a senior litigation attorney and Scott Pilkinton as an attorney, along with associates Curtis Beem, Fady Ghaly and Jeremy Gunn. Hogan focuses his practice on complex commercial litiga-

Hearsay | Honors & Awards, On the Move, Firm News tion, representing clients in a wide range of matters including antitrust matters, business and contract disputes, and investigations. Pilkinton counsels individuals, families and businesses with traditional estate planning needs. Prior to joining Bass, Berry & Sims, Pilkinton was a staff attorney and special master with the Seventh Circuit Court of the Twentieth Judicial District in Tennessee. Sean Kirk has joined FLEETCOR Technologies, Inc. as its Senior Litigation counsel, in charge of its global pre-litigation and litigation matters. Prior to joining FLEETCOR Technologies, Inc., Kirk was in private practice for 18 years with two midsize Southeastern law firms, including two of the largest law firms based in Nashville and Chattanooga, handling commercial litigation and creditor’s rights matters. Paige I. Bernick joins Lewis Thomason as special counsel with experience in commercial litigation, construction litigation, health care liability, personal injury, and employment liability. Bernick is based in the firm’s Nashville office and will be a member of the firm’s state-wide transportation practice group. In addition to her prior private practice experience, Bernick represented the United States Secretary

of Labor in health and safety litigation at the United States Department of Labor. Patterson Intellectual Property Law is pleased to announce that David Rue has joined as the firm’s Chief Operating Officer. Rue, a seasoned attorney, entrepreneur, and law firm strategist will focus on the firm’s operations and strategic development.

and court ordered mediation along with CARES Grant funding dispersed by United Way’s Financial Assistance Network and MAC has been first of its kind here in Tennessee. n

LAWYER REFERRAL & INFORMATION SERVICE

FI R M N E WS Attorney Steve Groom announces the launch of Dedicated General Counsel, PLLC, a law firm designed to provide companies with the legal services they need. Groom has held General Counsel and Executive Vice President roles with four public companies and has practiced law with three prominent law firms, where he represented public and private companies of all sizes. Bone McAllester Norton will merge with Spencer Fane, an Am Law 200 firm based in Kansas City, Missouri, and one of the nation’s fastest growing and most successful law firms with offices in 20 cities nationwide. Davidson County’s L.E.G.A.C.Y. Housing Resource Diversionary Court was featured during the White House Eviction Prevention Summit on Wednesday, July 21, 2021. The L.E.G.A.C.Y. Housing Resource Diversionary Court (HRDC) and its partnership with Metro Action Commission’s (MAC) Hope program dispersing U.S. Treasury ERAP funds is modeled on the TN Supreme Court Alternative Dispute Resolution Plan

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area? If so, the NBA Lawyer Referral & Information Service needs you. We are currently in need of attorneys who handle issues such as:

COVID-19 Related Employment Evictions Immigration Workers’ Compensation For information on joining the LRIS, contact LRIS@nashvillebar.org. We look forward to hearing from you!

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA

OCTOBER/NOVEMBER 2021 | NASHVILLE BAR JOURNAL

Thank you for supporting your local bar association!

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

Latitude

Raybin & Weissman, PC

Baker Donelson

Law Offices of John Day, PC

Riley Warnock & Jacobson, PLC

Blink Law, LLC

LBMC, P.C.

Reno & Cavanaugh, PLLC

Bone McAllester Norton PLLC

Legal Aid Society of Middle TN

Robinson, Reagan & Young, PLLC

Bradley

Leitner, Williams, Dooley & Napolitan, PLLC

Rogers, Shea, Spanos

Branstetter, Stranch & Jennings, PLLC

Lewis Thomason

Brewer, Krause, Brooks & Chastain, PLLC

Lieff, Cabraser, Heimann & Bernstein, LLP

Bulso PLC

Lindsey Amonette Nemer + Glassford PLLC

Butler Snow, LLP

Martin Heller Potempa & Sheppard, PLLC

Cole Law Group, P.C.

Matt Hardin Law, PLLC

Cornelius & Collins, LLP

McCarter & Beauchamp, PLLC

Dickinson Wright, PLLC

McCracken - Kuhn, PLLC

Dodson Parker Behm & Capparella, PC

Meridian Law, PLLC

Equitable Trust Company

Morgan & Akins, PLLC

Evans, Jones & Reynolds, PC

MTR Family Law, PLLC

Fisher & Phillips LLP

Nashville Electric Service

Frazer PLC

Neal & Harwell, PLC

Grissim & Hodges

Nelson, Mullins, Riley & Scarborough, LLP

Gullett, Sanford, Robinson & Martin, PLLC

North, Pursell & Ramos, PLC

Hall Booth Smith, PC

Ogletree, Deakins, Nash, Smoak & Stewart, PC

Healthcare Realty Trust, Inc.

Ortale Kelley Law Firm

White & Reasor, PLC

Holton & Mayberry, PC

Parker, Lawrence, Cantrell & Smith

Wiseman Ashworth Law Group, PLC

Kay Griffin, PLLC

Patterson Intellectual Property Law, PC

Wood Stabell Law Group

Keller, Turner, Andrews & Ghanem

Pepper Law, PLC

Wyatt, Tarrant & Combs, LLP

Kinnard, Clayton & Beveridge

Rainey, Kizer, Reviere & Bell PLC

NASHVILLE BAR JOURNAL | OCTOBER/NOVEMBER 2021

Rudy Winstead Turner PLLC Shackelford, Bowen, McKinley & Norton, LLP Sherrard Roe Voigt & Harbison, PLC Sims|Funk, PLC Smith Cashion & Orr, PLC Smythe Huff & Murphy, PC Spicer Rudstrom, PLLC Starnes Davis Florie, LLP Stites & Harbison, PLLC Sutherland & Belk, PLC Taylor, Pigue, Marchetti & Blair, PLLC The Swafford Law Firm, PLLC Venick, Austin & Rosen, PLLC Watkins & McNeilly, PLLC

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Nashville Bar Journal | October/November 2021

Articles inside

Judge Haywood and the Convenience Store

Hearsay

Unearthing the Dead: Protocol, Process, and Reverence

Probate Court: Remote Wills and More Contested Scenarios

Background Check

Capitol Notes

Leveling the Playing Field

Hear Ye, Hear Ye

From the President