pro bono in your futurejan 01, 2019 · cover story 12 pro bono in your future this simple guide...

Pro Bono

In Your FutureThis Simple Guide Shows You the Options

ALSO: A Guided Tour of New TennesseeSupreme Court Rule 9

Donald F. Paine’s Legacy at theTennessee Bar Journal

JA N U A RY 2 014 | VO L U M E 5 0 , N O . 1 T B A . O R G

COVER STORY

12 Pro Bono in Your FutureThis Simple Guide Shows You the Options

FEATURE STORIES

17 Commitment to Public Service HonoredLawyers and Law Students Doing Their Partby Barry Kolar, Suzanne Craig Robertson and Elizabeth Slagle Todaro

22 A Guided Tour of New Tennessee Supreme Court Rule 9by Brian S. Faughnan

3 PRESIDENT’S PERSPECTIVEA Renewed Commitment to the Cause of Justiceby Cynthia Richardson Wyrick

4 LETTER | JEST IS FOR ALL by Arnie Glick

5 YOU NEED TO KNOWNEWS: Series Focuses on Civil Right to Counsel| PEOPLE | LICENSURE & DISCIPLINE

30 PAINE ON PROCEDUREGone Missing: The Disappearance of Robert Charles Armstrongby Donald F. Paine

31 EDITORIAL LICENSEHe Loved the Law … and This Journal by Suzanne Craig Robertson

33 DAY ON TORTSProtecting Yourself from Statutes of Repose by John A. Day

35 THE LAW LAUNCH PROJECT

36 FAMILY MATTERSThe ART of Having Three Biological Parents by Marlene Eskind Moses with Manuel Benjamin Russ

40 BUT SERIOUSLY, FOLKS!Remembering Two Great Teachers by Bill Haltom

42 CLASSIFIED ADVERTISING

J A N U A R Y 2 0 1 4 V O L U M E 5 0 , N O. 1

ON THE COVER

It’s easier to take ona pro bono case thanyou may think. Readabout some of theoptions, beginning

on page 12, to help you decide.

Photo JupiterImages.

Take a picture of this withyour smart phone and readthe Tennessee Bar Journal at www.tba.org

J A N U A R Y 2 0 1 4 V O L U M E 5 0 , N O. 1

2 | TENNESSEEB A RJOURNAL J ANUARY2 0 1 4

JOURNAL STAFFSUZANNE CRAIG ROBERTSON, [email protected] BUTLER, Publications & Advertising [email protected] KOLAR, Assistant Executive [email protected]

EDITORIAL BOARDANDRÉE SOPHIA BLUMSTEIN, Nashville, ChairWADE V. DAVIES, KnoxvillePAUL A. GONTAREK, NashvilleSCOTT GRISWOLD, KnoxvilleSUZANNE LANDERS, MemphisKAVITA GOSWAMY SHELAT, MemphisLAURA S. WOODS, Kingsport

THE TENNESSEE BAR JOURNAL is listed in the INDEX TO LEGAL PERIODICALS. Tennessee Bar Journal, ISSN0497-2325, is published by the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, (615) 383-7421, monthly. Periodicals Postage Paid, Nashville, Tenn. Subscription price: $60 per year.Members: $22 per year. Individual issues: $10 per copy. Back issues sold on an “as available” basis. Statementsor opinions expressed herein are those of the authors and do not necessarily reflect those of the Tennessee BarAssociation, its officers, board or staff.

POSTMASTER: Send address correction to Tennessee Bar Journal, 221 Fourth Ave. N., Suite 400, Nashville, TN37219-2198.

© COPYRIGHT 2014 TENNESSEE BAR ASSOCIATIONADVERTISING POLICY: While the Tennessee Bar Journal attempts to confine its advertising to legitimate busi-ness endeavors, the statements and material appearing in the advertisements are solely the responsibility ofthe advertiser. The Journal and the Tennessee Bar Association do not directly or impliedly endorse, support orvouch for the authenticity of any representation made in any advertisement appearing herein. The Journaldoes not intend to accept any advertising material that is false and misleading. The Journal reserves the rightto refuse an advertisement it deems inappropriate.

CHANGE OF ADDRESS: If your address has changed, please notify the Tennessee Bar Association at 221 Fourth Ave.N., Suite 400, Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal and otherTBA publications.

BOARD OF GOVERNORSCYNTHIA RICHARDSON WYRICK, Sevierville, President; JONATHAN O.STEEN, Jackson, President-Elect; WILLIAM L. HARBISON, Nashville, Vice Pres-ident; JACQUELINE B. DIXON, Nashville, Immediate Past President; SHERIEEDWARDS, Brentwood, Treasurer; JASON PANNU, Nashville, Secretary;JASON LONG, Knoxville, East Tennessee Governor (Position 1); ANDREWROSKIND, Knoxville, East Tennessee Governor (Position 2); GARY SHOCKLEY,

Nashville, Middle Tennessee Governor (Position 1); JAMES R. CARTIGLIA , Nashville, Middle TennesseeGovernor (Position 2); MICHELLE SELLERS, Jackson, West Tennessee Governor (Position 1); BRIANFAUGHNAN, Memphis, West Tennessee Governor (Position 2); ERIN MCARDLE, Jonesborough,Governor/1st District; TASHA BLAKNEY, Knoxville, Governor/2nd District; CHRIS VARNER, Chattanooga,Governor/3rd District; DONNA PIERCE, Sewanee, Governor/4th District; MARY DOHNER SMITH,Nashville, Governor/5th District (Position 1); DAN BEREXA, Nashville, Governor/5th District (Position 2);KIM HELPER, Franklin, Governor/6th District; JASON CREASY, Dyersburg, Governor/7th District; CARLCARTER, Memphis, Governor/8th District; CHARLES L. TROTTER JR., Huntingdon, Speaker/House ofDelegates; DAVID MCDOWELL, Chattanooga, President/TBA Young Lawyers Division; STACIEWINKLER, Memphis, President-Elect/TBA Young Lawyers Division; HON. JERRI BRYANT, Athens, Presi-dent/Tennessee Judicial Conference; District Attorneys General Conference representative to be deter-mined; CAMPBELL SMOOT, Tullahoma, President/District Public Defenders Conference; PAUL NEY,Nashville, General Counsel.

TENNESSEE BAR ASSOCIATION STAFFALLAN F. RAMSAUR, Executive Director; BARRY KOLAR, Assistant Executive Director; JOSIE BEETS,Public Policy Coordinator; DENISE BENTLEY, Youth Court Coordinator; KAISHA BOND, CLE Coordinator;LANDRY BUTLER, Publications Coordinator; THERESE BYRNE, Director of Meetings; CHRISTYGIBSON, Assistant Committees and Sections Coordinator; PAM JOHNSON NOLAN, Financial Adminis-trator; JENNY JONES, Executive Assistant; LAUREN HOPPER LEE, CLE Coordinator; STEVE KING, A/V& Webcasting Coordinator; LINDA MURPHY, Receptionist; LYNN POINTER, Programs Administrator;SUZANNE CRAIG ROBERTSON, Editor, Tennessee Bar Journal; STACEY SHRADER JOSLIN, MediaRelations and Young Lawyers Divison Director; BRITTANY SIMS, Leadership Law Coordinator; KELLYSTOSIK, Membership Director; MINDY THOMAS-FULKS, Director of Continuing Legal Education; ELIZABETH SLAGLE TODARO, Access to Justice and Public Education Coordinator; and TANJATREZISE, Customer Service Coordinator/ Accounts Receivable.

TENNESSEE BARA S S O C I A T I O N

@TennesseeBare Tennessee Bar Association providesquality CLE, timely information andadvocacy for the profession. TBA Assistant ExecutiveDirector Barry Kolartweets what you want toknow so you can keepup with the profession.

@TennBarJournale Tennessee Bar Journal is the monthlypublication of the Tennessee Bar Association. Its editor,Suzanne CraigRobertson, tweets newsand tips about writing,the law and more.

@TBAMavene Membership Maven is the alterego of Tennessee Bar Association’sMembership Director, Kelly Stosik.Let’s get the most outof membership andhave some fun!

Follow uson Twitter!

JANUARY2 0 1 4 T ENNESSEEB A RJOURNAL | 3

bearing witness as so many of ourneighbors are without the financialmeans to meaningfully participate in thelegal system that we all hold dear; to thefact that we are facing unprecedentedattacks on our justice system and thelegal profession.

I wish that I could report that withthe dawning of the new year, these chal-lenges have all resolved, but I cannot;however, as the calendar turns to 2014,I am more convinced than ever thatwhen we combine the collectiveresources of our members, we canaddress the challenges that we face in apositive and meaningful way.

So what can we do to be the agentsfor change that the public and profes-sion so desperately need us to be? It justso happens that this month’s edition ofthe Tennessee Bar Journal can answersome of those questions for you, espe-cially with regard to the issue of accessto justice. The cover story provides anexcellent roadmap as to how you canquickly and easily become engaged inthe fight for access to justice for all. Infact, you will find that you can evenprovide much-needed assistance tothose with legal needs while sitting atyour home computer in your pajamas!

Of course as we consider how we canprovide meaningful access to the justicesystem for all, we must also considerwhat we can do to preserve and improvethe justice system. To that end, yourassociation has already been hard at

work preparing for the 2014 session ofthe Tennessee General Assembly bysetting our legislative agenda. As I hopeyou are aware, the Tennessee Bar Associ-ation employs lobbyists who spend timeyear ’round working to craft and lobbyfor the passage of legislation of impor-tance to the justice system, legal profes-sion and the public at large. Likewise,they also spend time working to insurethat proposed legislation that would beharmful to the justice system, legalprofession or public is not enacted.While our team of lobbyists has notbeen able to win every battle, it is fair tosay that they have played far “abovetheir heads.”

Prior to each new session of theGeneral Assembly, our lobbyists meetwith our Governmental AffairsCommittee and association leadership toconsider requests made by our sectionsand committees for the association'ssupport in obtaining the passage oflegislation of importance to their respec-tive groups. Our lobbyists also work toprepare for legislation that is expected tobe introduced. At the fall meetings ofyour Board of Governors and House ofDelegates, our lobbyists presented infor-mation about these important topics inorder to allow association leadership toset the legislative agenda for the year.

Both the Board of Governors and theHouse of Delegates agreed that the

PRESIDENT’S PERSPECTIVE BY CYNTHIA RICHARDSON WYRICK

A Renewed Commitment to the Cause of JusticeHappy New Year to you and your family from your TBA family! I

always look forward to the New Year as a time for renewal. Let’s face

it, the practice of law can be difficult and discouraging at times. The

issues that challenge us are many, including everything from the

inability to obtain justice for our clients at times; to the difficulty of

Continued on page 4

… as we consider howwe can provide

meaningful access to the justice system for all,we must also consider

what we can do topreserve and improve

the justice system.

This Is How You Do Pro BonoSue McClure, daughter of Memphis lawyerPaul J. McClure Jr., sent this letter alongwith her father’s obituary. Col. McClure

died Nov. 6, 2013. Read his obituary onpage 10 and an article about him in theJanuary 2009 TBJ at www.tba.org/journal/on-the-job-at-88.

… He had been doing probono work for low-incomeseniors for the past 11years. In fact, Suzanne CraigRobertson did a beautifulpiece on his pro bono workwhen he was 88. He died at93, still serving others.

Daddy enjoyed readingthe Tennessee Bar Journaland appreciated your hardwork to keep Tennesseelawyers informed.

— Sue McClure, Spring Hill

LETTERS OF THE LAW

WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publicationon the basis of timeliness, taste, clarity and space. They should be typed and include theauthor’s name, address and phone number (for verification purposes). Please send yourcomments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058;EMAIL: [email protected].

agenda should include attempting toobtain the passage of a statute of reposefor legal malpractice claims. I ampersonally in favor of this effort as well.Those of you who know me may besurprised by that fact, as I proudly carrythe title of plaintiff's lawyer, and amgenerally opposed to legislation thatlimits the rights of the citizens of ourstate. In fact, one of my fellow triallawyers for whom I have great admira-tion and respect, John Day, has a columnin this edition of the Journal (page 33),which sets forth some reasons that hebelieves statues of repose are a bad idea.So why do I believe that this is anappropriate course for our association?

Currently, given that there is nostatute of repose applicable to legalmalpractice claims, lawyers and theirfamilies, as well as those law firms bywhom they have been employed, havevirtually limitless exposure to malprac-tice claims. At present, a lawyer can besued for malpractice decades after workwas performed. In that instance, thelawyer may have destroyed the file, andif the case was not of significant timeduration, the lawyer may not even havean independent recollection of thematter. In those situations, it is virtuallyimpossible to mount a reasonabledefense. This raises a question of funda-mental fairness. There also should comesome point in each lawyer’s career thatthey should be able to retire from thepractice without continuing to worryabout whether they might be sued forwork they performed many years before.It is important to note that a statute ofrepose would not apply if a lawyerintentionally covered up acts consti-tuting malpractice, as those would beexempted from the statute of repose.

While we are focusing on legislativematters, I also want to take the opportu-nity to share some very exciting newswith you about a campaign that is nowunderway which will help us achieve

"You just get satisfaction from trying to help people," McClure

said in a 2009 interview about theextensive post-retirement pro bono

work he did for residents of nursing homes. "… It gives me

something to do; otherwise I'd be taking naps or raking leaves."

PRESIDENT’S PERSPECTIVEcontinued from page 3

Continued on page 35



BRIEFS

TBA Launches New Health Insurance ExchangeThe Tennessee Bar Association has a newbenefit to help members navigate thecomplicated health insurance market.Launched in early December, the TBAHealth Insurance Exchange allowsmembers to quickly and easily obtainquotes from insurance plans that areavailable on either public or privatehealth insurance exchanges.

The TBA Health Insurance Exchangeis operated through JLBG Health. It willhelp you assess your situation to findout if you are eligible for subsidies, shopfor plans that are on either public orprivate health insurance exchanges, andapply for the health plan of your choicewith or without subsidies. You will beable to shop from multiple qualitycarriers such as Blue Cross, Aetna,Assurant, Cigna, Humana and manyothers. To use the exchange, go towww.tbahealthinsuranceexchange.com/and fill out a short form to get a quoteor call (866) 907-2763. No medicalquestions will be asked and all pre-existing conditions are covered.

Death Tax Chart Updated for 2014In a 2011 Tennessee Bar Journal column

on estate planning, Dan Holbrookwrote about federal estate tax,with an accompanying chart onCombined Federal and TennesseeDeath Tax. Holbrook has updatedthe chart to incorporate the 2014indexed federal estate, gift and

generation-skipping transfer (GST) taxexemptions, announced by the IRS to be

YOU NEED TO KNOWNEWS

Deadline Is March 20

Comment on CLE Rule

Legal Aid of East Tennessee and theTennessee Bar Association conducted amulti-city panel discussion series onthe issue of Civil Right to Counsel lastfall. This year is the 50th anniversaryof Gideon v Wainwright, which estab-lished the right to counsel in criminalcases. There has been a great deal ofdiscussion nationally about the lack ofa right to counselin critical civilcases where therisk of harm isgreater than thatin many criminalcases, includingdomestic violence,custody and fore-closure.

Each of thesessions beganwith videosfeaturingTennesseeSupreme CourtChief Justice Gary

Wade and Tennessee Bar AssociationPresident Cindy Wyrick. The events,all in November, were held at LincolnMemorial University’s Duncan Schoolof Law, Memorial Park CommunityCenter in Johnson City and theUniversity of Tennessee Chattanoogacampus.

continued on page 6

Series Focuses on Civil Right to Counsel

The Tennessee Supreme Court filed anorder last fall soliciting comments onamendments to Supreme Court Rule21, which have been proposed by theTennessee Commission on Continuing

Education. Commentsshould be filed byMarch 20, 2014. Theorder, petition and appendix are available online.

Legal Aid of East Tennessee, Executive Director Dave Yoder and BradMorgan, who is access to justice and mentoring programs coordinator at theUniversity of Tennessee College of Law, participate in the Civil Right toCounsel session at Lincoln Memorial University.

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Find the links and

more details for

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tba.org/journal_links


NEWS continued from page 5

$5,340,000. The updated chart is avail-able at http://tinyurl.com/k9jh685

Guardian Ad Litem Roles Subject of Ethics OpinionA formal ethics opinion released Dec. 12,2013, by the Board of ProfessionalResponsibility addresses the question ofwhether it is a conflict of interest for alawyer who was appointed guardian adlitem to subsequently represent anotherinterest in a matter regarding the child forwhom the lawyer was appointedguardian ad litem. The opinion states inpart that an attorney who was appointedguardian ad litem for a child may repre-sent another party’s interest as long as it isconsistent with the interests of the childand does not violate professional conductrules. To insure that the subsequentrepresentation of another interest is notinconsistent with the interest of the child,it would be advisable to secure consent orpermission from the judge who hadappointed the lawyer as GAL to representthe other party.

Bill Young Joins AOC as DirectorFormer Tennessee Solicitor General BillYoung started work in December asadministrative director of the Adminis-trative Office of the Courts. Young wasappointed by the Tennessee SupremeCourt in September to succeed LibbySykes, who held the position for sevenyears before retiring. He will direct anoffice of about 75 people who provideadministrative support to the trial andappellate judges and courts across the state.

ABA Accepting Nominations for AppointmentsThe American Bar Association (ABA) isaccepting applications and nominationsfor 2014-2015 presidential appointmentsto ABA standing committees, specialcommittees, commissions and other enti-ties and initiatives. The online applicationprocess is available until Feb. 28.

Judiciary Museum Launches New Exhibits, Website

The Tennessee Judiciary Museumlaunchedseveral newexhibits and awebsite inDecember tocelebrate itsone-yearanniversary.The exhibitsdetail several historic cases, divided byalcoves that show examples from alllevels of Tennessee courts — trial courts,appellate courts and the TennesseeSupreme Court. The museum alsolaunched its own website, tennesseejudi-ciarymuseum.org, to provide informationto prospective visitors about the museumand offer lesson plans and other informa-tion for educators. The museum is openMonday through Friday from 9 a.m. tonoon. Admission is free.

Survey: People Want a LawyerWho Is Confident, RealisticA recent survey by the attorney ratingcompany Avvo Inc. says that consumerswant a lawyer who is confident and real-istic, but reality show fans want lawyerswho are aggressive and attractive. Thethree lowest-ranking characteristicspeople want in their lawyers are ambi-tious (12 percent), friendly (15 percent)and reassuring (18 percent). TheNashville Business Journal notes thatresponsiveness was the top factor, citedby 92 percent of respondents, followedby track record (80 percent).

Mock Trial Case About Song-Writing Infringement The problem and rules for the 2014Tennessee High School Mock TrialCompetition are now available. Thisyear’s problem involves allegations that ahit song climbing the country chartsviolates the copyright of a song penned

by struggling singer-songwriter JessieJameson. The infringement suit claimsthat the hit song is substantially similar toJameson’s and that the author had access

to the work. The defenseargues that similaritiesbetween the songs are merelyscenes à faire — commonthemes, language and expres-sions that appear frequentlyin country songs — and thatthe defendant did not haveaccess to the work. Witnesses

such as Dr. Doe Raymie and Jordan“Catnip” Evergreen, and two songswritten and recorded just for the compe-tition, make this year’s case entertainingas well as educational.

Updated Trust Article OnlineTennessee’s trust law underwentsweeping changes in 2013, with the goalof making Tennessee a leadingcontender in the national race for trustbusiness. Tennessee practitionerslearned the top 10 changes, as outlinedby the lawyers of Knoxville’s HolbrookPeterson Smith PLLC, in last month’sJournal. The printed version of thearticle contained minor formattingissues, but the online version is correct.Read the text version athttp://www.tba.org/journal/big-changes-to-tennessee-s-uniform-trust-code ordownload a pdf at http://www.tba.org/sites/default/files/UniformTrust-CodeArticle_Updated_0.pdf.

33 Attorneys Selected for 2014TBA Leadership Law ClassThirty-three lawyers from across the statewere selected for the TBA’s 2014 Leader-ship Law program. Now in its 11th year,Leadership Law is designed to equipTennessee lawyers with the vision,knowledge and skills necessary to serveas leaders in their profession and localcommunities. See the list atwww.tba.org/press-release/tba-selects-attorneys-for-2014-leadership-law-class.


REINSTATEDThe Tennessee Supreme Court reinstatedthe law license of Murfreesboro lawyerBrandon Michael Booten on Nov. 27,2013. Booten had been suspended Nov.1, 2013, for failing to respond to theBoard of Professional Responsibilityregarding a complaint of misconduct.After responding, Booten petitioned thecourt to remove the suspension. Ahearing panel recommended that thesuspension be set aside so long as Bootencomplies with Supreme Court Rule 9,Section 19; continues consultation with,and adheres to any recommendationsfrom, the Tennessee Lawyers AssistanceProgram; and provides disciplinarycounsel with a copy of any and all assess-ments and/or monitoring agreements.

DISABILITY INACTIVEThe Tennessee Supreme Court trans-ferred the law license of Blount Countylawyer Keith Lane Edmiston todisability inactive status on Dec. 2,2013, pursuant to Section 21 ofTennessee Supreme Court Rule 9.Edmiston may not practice law while oninactive status. He may return to thepractice of law after showing by clearand convincing evidence that thedisability has been removed and he is fitto resume the practice of law.

DISCIPLINARYCensuredMonroe County lawyer Barry KeithMaxwell was publicly censured on Nov.14, 2013, and ordered to pay restitutionto his client after the Board of Profes-sional Responsibility found that he didnot promptly refund an advancepayment of fees when the work he hadbeen retained to do was deemed unnec-essary. Maxwell submitted a conditional

guilty plea acknowledging a violation ofRule 1.16 of the Rules of ProfessionalConduct.

Montgomery County lawyer JohnMinor Richardson was publiclycensured on Nov. 1, 2013, for failing toadequately supervise a non-lawyeremployee. The Board of ProfessionalResponsibility found that the employeedid not follow internal accountingprocedures, resulting in a monetary lossto a client. When Richardson discov-ered the problem, he terminated theemployee and conducted an extensiveinternal audit of his accounts. He alsorepaid the client for the loss. Hesubmitted a conditional guilty pleaacknowledging violating Rules ofProfessional Conduct 1.3, 5.3 and8.4(a).

SuspendedKnoxville lawyer M. Josiah Hoover IIIwas suspended on Nov. 15, 2013, forone year for charging excessive fees andpracticing law while his license wassuspended. Hoover previously wasdisbarred on Nov. 15, 2012. Inimposing the new discipline, theTennessee Supreme Court mandatedthat the suspension run concurrentlywith the disbarment. Hoover’s actionswere found to violate Rules of Profes-sional Conduct 1.5(a), 5.5 and 8.4(a).

The Tennessee Supreme Courtsuspended Davidson County lawyer HalWilkes Wilkins on Dec. 2, 2013, afterfinding that he failed to respond to theBoard of Professional Responsibilityregarding a complaint of misconduct.

DisbarredMurfreesboro lawyer Derek A. Artripwas disbarred Nov. 14, 2013, by theTennessee Supreme Court based on two

complaints that he neglected clientmatters and abandoned his law practice.In the first complaint, the client allegedthat he failed to adequately communi-cate with her regarding the status of thecase and the use of the retainer fee, andfailed to have the matter heard by acourt within 30 days as promised. Inthe second complaint, the client allegedthat Artrip did not return the case fileor provide any information about thestatus of the matter. In addition, thecourt found that Artrip did not respondto the petition for discipline and did notappear for the final hearing. His actionswere determined to violate Rules ofProfessional Conduct 1.1, 1.3, 1.4, 1.5,1.16(d), 3.2, 8.1(b) and 8.4(a) and (d).The disbarment comes in addition to asuspension that was imposed in 2012and remains in place for failure torespond to complaints of misconduct.

Lance William Parr of Birmingham,Ala., was disbarred by the TennesseeSupreme Court on Nov. 18, 2013, andordered to pay restitution to his former

continued on page 9

YOU NEED TO KNOWLICENSURE & DISCIPLINE

Administrative Suspensions Now OnlineNotice of attorneys suspended for,and reinstated from, administrativeviolations — including failure topay the Board of ProfessionalResponsibility fee, file the IOLTAreport, comply with continuinglegal education requirements andpay the Tennessee professionalprivilege tax — is now availableexclusively on the TBA website.

Visit http://www.tba.org/directory-listing/administrative-suspension-lists to see adminis-trative suspensions imposedsince 2006.


YOU NEED TO KNOWPEOPLE

Memphis city attorney Herman MorrisJr. is the 2013 recipient of the Interna-tional Municipal Lawyers Association’sJoseph I. Mulligan Jr. DistinguishedPublic Service Award, which recognizesachievements in local government law.Morris is the first attorney from Memphisto receive this award.

Rosemary E. Phillips has beenappointed Robertson County clerk andmaster by Chancellor Laurence M.McMillan Jr. She succeeds KennethHudgens, who is retiring after 35 years. Aresident of Goodlettsville, Phillips haspracticed law for 31 years in the fields offamily law and mediation. She earned herlaw degree from the University ofMemphis School of Law in 1982. She willtake office on Jan. 13.

John Ray Clemmons and J. MichaelClemons have launched Clemmons &Clemons, a civil litigation and generalpractice firm in downtown Nashville. Thepair says the firm will focus on youngprofessionals and small-business ownerswho need affordable, competent legalrepresentation. John Ray Clemmons grad-uated from the University of MemphisSchool of Law in 2005. Michael Clemonsearned his law degree from the NashvilleSchool of Law in 2005.

Alexander OaksWaters has joined Long,Ragsdale & Waters as anassociate attorney. Hewill focus on real estatetransactions. Watersbegan clerking with the

firm in December 2011. He also clerkedwith the Knox and Sevier counties’ districtattorneys in the summer of 2011. Heearned his law degree from the Universityof Tennessee College of Law in 2013.

Clarksville lawyer Roland Robert

Lenard, pro bono chair of the MidsouthChapter of the American ImmigrationLawyers Association (AILA), recentlyauthored an article on how to run anethical pro bono immigration clinic. Thepiece was published in the fall issue ofAILA’s Pro Bono Newsletter. Last year,Lenard chaired AILA’s Nashville Pro BonoImmigration Clinic, which was held inconjunction with the association’s annualconference with more than 2,500 immi-gration lawyers attending.

Memphis lawyer Haavi Morreim hasbeen appointed vice chair of the AmericanBar Association’s Task Force on ADR andConflict Resolution in Health Care, as wellas vice chair of the American HealthLawyers Association’s Alternative DisputeResolution Affinity Group. Morreim is a

principal in the Alterna-tive Dispute Institute anda Rule 31-listed mediatorfor both civil and familymatters. She teaches lawand bioethics at the UTCollege of Medicine.

Burr & Forman recently announcedthat Nashville-based partner BrendiKaplan has been selected for the 2014class of Leadership Middle Tennessee. Shewill join 30 other community and busi-ness leaders in the year-long program. At

Burr & Forman, Kaplanpractices in the areas ofhealth care, real estateand public finance. She graduated in 1984from the John MarshallLaw School.

Karen G. Crutchfield has joined theKnoxville office of Wimberly LawsonWright Daves & Jones as a member. Shemaintains a general civil litigation prac-tice. She earned a law degree from theUniversity of Tennessee College of Law in

1994 and a master in social work fromWashington University in St. Louis.

Memphis attorney Pamela WilliamsKelly received this year’s Celebrate ProBono Award from the Memphis Bar Asso-ciation Access to Justice Committee andthe Memphis Area Legal Services Pro BonoProject for accepting the largest combinednumber of legal clinic and extendedservice cases for indigent clients. Kellyoperates the Law Offices of Pamela Kellywhere she handles family law, immigra-tion, business, intellectual property andveterans’ cases.

Beau Creson hasjoined the Nashville lawfirm of Walker, Tipps &Malone, where he willfocus on business andtort litigation and arbitra-tion. Originally from Memphis, Cresonattended and graduated from VanderbiltUniversity Law School in 2013.

Chattanooga-based Olsen Law Firmrecently announced that Elizabeth“Eliza” L. Epps has joined the immigra-tion firm as an associate. A native of LittleRock, Epps earned herlaw degree from William& Mary Law School. She previously clerkedwith the firm as well aswith the ArkansasSupreme Court andLegal Aid of Arkansas.

The husband-and-wife team of Russelland Julie Cornell has opened the CornellLaw Group in Nashville’s historic German-town neighborhood. The firm will handleestate planning, probate and tax matters,and will have a special focus on familieswith young children. Both earned theirlaw degrees from Pepperdine UniversitySchool of Law. Russell Cornell went on to

Morreim

KaplanWaters

Creson

Epps


earn amaster oflaw in taxa-tion fromNew YorkUniversitySchool ofLaw. He previously practiced with KPMG’sinternational corporate tax group. Thefirm is located at 1312 5th Ave. N., Suite102, Nashville, TN 37208. It may bereached at (615) 301-1733 orwww.lawclg.com.

Nelson Mullins Riley& Scarborough recentlyhired Nashville realestate lawyer Tim Meyeras an attorney of counsel.Meyer will focus hispractice on mergers and

acquisitions, and corporate and loantransactions. He previously was leadcounsel for a publicly traded real estateinvestment trust’s business group focusingon medical facilities. Meyer earned his lawdegree and a master of business adminis-tration from Vanderbilt University.

Attorney Rachel C. Nelley has joinedthe Nashville office of Farris BobangoBranan as an associate. She will focus onadministrative and health care law,including matters involving licensure and

disciplinary proceedings.She also will assist clientswith probate, estate andrelated issues. Nelleyearned her law degreefrom the CumberlandSchool of Law in 1998.

Proceeds from the National Bar Associ-ation Ben F. Jones Chapter’s Barrister’s Ballhelped fund scholarships for threeminority students at the University ofMemphis School of Law and the pro bonowork of Memphis Area Legal Services. Atthe event, Tennessee Court of CriminalAppeals Judge Camille McMullen andRegional Medical Center lawyer MonicaWharton received the A. A. Latting Awardfor outstanding service to the legal profes-sion and local community. Lawyer and

Shelby County Commissioner WalterBailey received the President’s Award fromImad Abdullah, chapter president andattorney at Baker Donelson Bearman,Caldwell & Berkowitz. Also at the meetingthe chapter announced its 2014 ExecutiveBoard. TBA members among the groupare Vice President Amber Floyd andCorresponding Secretary Asia Diggs.

Hendersonville lawyer Timothy L.Takacs recently sponsored the 14thAnnual Time Out Workshop, which drewmore than 200 professionals who servethe elderly and disabled throughoutTennessee. The program featured notedexperts in the long-term care field andvendor exhibits from 18 organizations.Takacs operates The Elder Law Practice ofTimothy L. Takacs. He graduated in 1980from Vanderbilt University Law School.

Two lawyers withLewis, King, Krieg &Waldrop recently wereelected to leadershippositions with profes-sional organizations. Inthe Nashville office,shareholder RobertChapski was named asustaining member of theProduct Liability Advi-sory Council Inc. In theKnoxville office, share-holder Richard W. Krieg

was one of six attorneys selected to serveon the board of directors of ALFA Interna-tional, a global legal network of 145 firms.

The Nashville law firm of Cornelius &Collins has added Sepideh C. Khansariand Peter C. Robison as associates.Khansari brings more than four years ofcivil litigation experience to the firm,having previously worked at Butler Snowand Miller & Martin. Sheearned her law degreefrom Washington & LeeUniversity and a masterof business administra-tion from MiddleTennessee State Univer-sity. At the firm, she will

work in the areas of insurance, medicalmalpractice and personal injury. Robisonfocuses his law practice on employment,insurance, general civil litigation andestate administration. Prior to joining thefirm, he practiced atDrescher & Sharp andclerked for DavidsonCounty Circuit CourtJudge Thomas W.Brothers. He earned hislaw degree from Vander-bilt University in 2008.

Seven Tennessee lawyers recently wereadmitted to practice before the U.S.Supreme Court during admission cere-monies in Washington, D.C. They areDaniel Berexa with Cornelius & Collinsin Nashville; Molly Glover with Burch

clients as a condition of reinstatement.The Board of Professional Responsibilitybrought charges against Parr after he wassuspended from practicing law beforethe U.S. District Court for the EasternDistrict of Tennessee. The board foundthat he neglected cases, failed tocommunicate with clients and opposingcounsel, failed to protect clients’ inter-ests, demonstrated incompetence, andabandoned his practice. Parr did notrespond to the petition for disciplineand did not appear for the final hearing.The Supreme Court determined that hisactions violated Rules of ProfessionalConduct 1.1, 1.3, 1.4, 1.16, 3.2, 3.4 and8.4(a) and (d).

Compiled by Stacey Shrader Joslin frominformation provided by the Board ofProfessional Responsibility of the TennesseeSupreme Court. Licensure and disciplinarynotices are included in this publication as amember service. The official record of anattorney’s status is maintained by the board.Current information about a particularattorney may be found on the board’swebsite at www.tbpr.org.

LICENSURE & DISCIPLINEcontinued from page 7

continued on page 10Meyer

Nelley

Krieg

Chapski

Robison

Khansari

Julie and Russell Cornell


Porter & Johnson in Memphis; Cookevillelawyer Gregory L. Groth; formerKnoxville lawyer Angela Bolton Rauber;TBA President-elect Jonathan O. Steenwith Redding, Steen & Staton in Jackson;David Veile with Schell & Davies inFranklin; and 13th Judicial DistrictAttorney General Randy York ofCookeville.

Chambliss, Bahner & Stophel has

added three new associate attorneys.Martha Culp joins the firm’s businessgroup. She graduated from the Universityof Alabama School of Law in 2013. AlexMcVeagh joins the firm’s litigation andrisk management practice group. He grad-uated in 2013 from Vanderbilt UniversityLaw School. Jed Roebuck joins the firm’shealth care practice group. He also willhandle business matters. He earned hislaw degree in 2011 from the University of

Mississippi School of Law.

Ashley Farrell has joined the Nashvillelaw firm of Hollins, Raybin & Weissmanas an associate attorney.She will focus her practiceon plaintiff’s personalinjury and domestic rela-tions. Farrell graduatedfrom the Nashville Schoolof Law in 2013.

PEOPLE continued from page 9

Compiled by Linda Murphy and Stacey Shrader Joslin Tennessee Bar Association members may send information about job changes, awards and work-relatednews. Send it to PEOPLE, c/o The Journal at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, or email to [email protected]. Submissions are subject to editing.Pictures are used on a space-available basis and cannot be returned. Electronic photos must be saved as a tiff or jpeg (with no compression), minimum resolution 200 dpi,and at least 1"x1.5" or they will not be used.

PassagesMemphis lawyer CHARLES JEFFREY“C. J.” BARNETT died Nov. 21, 2013.He was 62. Barnett earned his lawdegree from the University of MemphisCecil C. Humphreys School of Law in1975. He operated a general civil prac-tice focusing on insurance, tort andpersonal injury law, and provided alter-native dispute resolution services toclients. In lieu of flowers, the familyrequests donations be made to NewHope Christian Academy, 3000 Univer-sity St., Memphis 38127.

Chattanooga attorney and Miller &Martin partner JAMES GUY BEATTYJR. died Nov. 12, 2013, after a longillness. He was 82. A graduate ofEmory University School of Law, Beattywas named a distinguished alumnus ofthe school in 1999. He was a memberof the Tennessee Board of Law Exam-iners and chair of the board of directorsfor the National Conference of BarExaminers. He also served in the ABAHouse of Delegates. In lieu of flowers,contributions may be made to theChurch of the Good Shepherd, 211Franklin Rd., Lookout Mountain, TN37350; Community Foundation ofGreater Chattanooga, 1270 Market St.,

Chattanooga 37402; or the donor’sfavorite charity.

Former Jasper city attorney PAULDEWITT KELLY JR. died Nov. 16,2013, at 86. A graduate of VanderbiltUniversity and its law school, Kellypracticed law in Jasper as both a solopractitioner and a partner in Kelly andKelly Attorneys, where he remained ofcounsel after his retirement. He servedas a member of the Tennessee Bar Asso-ciation, Tennessee Bar Foundation andMarion County Bar Association, whichhe also led as president. He was active inthe American College of Trial Lawyersand the American Board of Trial Advo-cates. Memorial contributions may bemade to Hospice of Chattanooga, 4411Oakwood Dr., Chattanooga, TN 37416;Alzheimer’s Association, P.O. Box96011, Washington, D.C., 20090; orHosanna Community, P.O. Box 958,Hixson 37343.

Memphis lawyer PAUL J. McCLUREJR. died Nov. 6, 2013. He was 93. Agraduate of the University of MemphisCecil C. Humphreys School of Law, heserved in World War II as an ROTCprofessor at Rutgers University, and laterpracticed law with Woen & Lail in

Memphis. After retirement he spentmany hours every week helping low-income retirement home residents withlegal documents. Memorials may bemade to the Church Health Center orColonial Park United Methodist Church.Read more about him on page 4.

Knoxville attorney DONALD F. PAINEdied Nov. 18, 2013. He was 74. Aformer president of both the Knoxvilleand Tennessee Bar associations, Painealso was a founder of the Tennessee LawInstitute and a well-known speaker andauthor. He was a founding member ofthe Tennessee Bar Journal Editorial Boardand frequent contributor. He wasawarded the Journal’s Justice Joe HenryAward for Outstanding Legal Writing in1989 and 1997. A graduate of theUniversity of Tennessee College of Law,Paine was of counsel with the firm ofPaine, Tarwater, and Bickers LLP. In lieuof flowers, the family asks that dona-tions be made to Legal Aid of EastTennessee, 502 S. Gay St., Suite 404,Knoxville 37902. Also, the TennesseeJudicial Conference Foundation isaccepting donations for the DonaldFranklin Paine Scholarship. Send to1903 Division St., Nashville 37203.Read more about Mr. Paine on page 31.

Farrell

This SimpleGuide Shows

You the Options

You know about the need. You probably know that an estimated 1

million Tennesseans are in need of civil legal services and don’t have

the resources to pay for it.1 And you would volunteer if you could, if

you had time, and if it just wasn’t so hard to plug in.

This article is going to make it easy for you to sort through the

options, understand the levels of commitment and review the types of

help required so you can decide, get up and go do something.

Is There Really a Need?

Tennessee attorneys dedicated more than 800,000 hours to pro bono

legal service in 2011 (the most recent year for which data is avail-

able).2 The nearly 10,000 attorneys who reported their volunteer time

actually exceeded, on average, the state Supreme Court’s aspirational

goal of 50 hours of pro bono service per year3 and many others

certainly devoted time without completing the voluntary report.

Pro Bonoin Your Future

12 | TENNESSEEBARJOURNAL J ANUARY2 0 1 4

COVER STORY

Tennessee continues to lead the way inexploring and implementing innovativeprograms to help diminish the justicegap for those who cannot afford legalassistance, and there is no shortage ofopportunity to volunteer legal expertise.

However, even with the hundreds ofthousands of volunteer hours dedicatedto pro bono, the gap in legal services isstill immense. While 45 percent ofTennessee’s attorneys reportedperforming free or reduced-rate legalservices,4 that leaves many who are notyet volunteering. One hour per monthfrom that remaining 55 percent wouldadd up to more than 50 full-time attor-neys serving the needs of our state’smost underserved and vulnerable indi-viduals and families.

“Pro bono work is critical to meetingthe legal needs of Tennesseans,”Supreme Court Justice Janice M. Holdersays, highlighting the ripple effect thatvolunteer legal service creates. Holder isthe court’s liaison to the Access to JusticeCommission. “It not only provides amuch-needed service but also helpsstrengthen communities. When legalneeds are met, our citizens can refocuson their jobs and families.”

The legal community must continueto focus on enhancing existing programsby stepping up to serve as volunteersand also by supporting new endeavorsproposed by the access to justicecommunity. Access to Justice Commis-sion Chair and former TBA PresidentGeorge “Buck” Lewis notes both theprogress that has been made since theTennessee Supreme Court made accessto justice its top priority, and the workthat remains.

“We can all be rightfully proud ofwhat Tennessee lawyers and theTennessee judiciary have accomplishedthe last five years,” Lewis says. “Thechallenge in front of us now is tocontinue to innovate and to focus ourresources on the programs, old and new,which have proven to have the mostimpact on the lives of our clients.”

The Tennessee legal community isfortunate to have such a variety of waysto fulfill the commitment to pro bono

service: from traditional walk-in clinicsor extended representation to providingonline legal advice or representation forappeals, the opportunities for directservice as well as involvement withcommittees and outreach is vast andcontinues to increase. Also, theTennessee Supreme Court has beenactive in implementing rules changesthat encourage lawyers to do more probono as well as report their service. 5

Legal Clinics and Pro Bono ProjectsThere are many opportunities to providedirect legal service to clients in need.Volunteering to give advice and counselat a free legal clinic is a great way toperform pro bono. Legal clinics areregularly hosted by legal aid programs,local bar associations and law schools.Many clinics invite clients to participatewithout an appointment and with anylegal issue, while others may be gearedto serving a particular population orissue area.

During the clinic, volunteers listen toclient stories and help them identifytheir legal issues. In many cases, attor-neys will be able to quickly answer all ofthe questions right then. Other clientsmay need additional assistance fromexisting legal or social service organiza-tions, and all of the information andadvice offered by legal volunteers helpsmove the client one step closer toresolving their legal issue. Legal clinicsare also a chance for less-experiencedattorneys, law students, or those seekingto increase their experience in a partic-ular area to work with experiencedlawyers while also providing much-needed support to clients.

It is precisely this exchange thatengages many attorneys to devote timeto service in pro bono clinics.

“The gratitude that one gets fromdoing pro bono work becomes addic-tive,” Access to Justice Commissionerand clinic innovator Tony Seaton says.“After you have spent time with a fewneedy people and they graciously andwarmly thank you for your time andefforts, you begin to realize that the

ability to practice law is a gift to you thatyou can either squander or share.”

Some clinics are aimed at servingparticular groups that may presentspecial needs or issues: homeless, immi-grants, senior citizens, domestic violencesurvivors, veterans, emergency firstresponders or other professional groups.Other clinics may focus on helping withspecific legal needs such as family law,employment, health care,landlord/tenant or other housing issues.

For example, the Wills for Heroes(WFH) program has been a primarypublic service project of the TBA YoungLawyers Division for the past six years.WFH events are scheduled acrossTennessee throughout the year. At theevents, volunteer attorneys provide freewills and other basic estate planningdocuments to emergency first respon-ders and their families. To date, theprogram has served almost 2,000 firstresponders in Tennessee, and more than900 lawyers have volunteered their timeto the program.

Whether volunteers are interested inparticipating in a regularly scheduledlegal aid clinic or working with aspecific issue group, many opportunitiesexist to get involved.

“Attorneys are always surprised athow much they are able to impact ourclient’s lives in just an hour or two oftheir time,” says Charlie McDaniel, whois Pro Bono project director at Legal Aidof East Tennessee in Chattanooga.“Sometimes all it takes is a letter or aphone call to keep a family in theirhome. Sometimes quickly drafting a willor power of attorney can allow someoneto rest easier knowing their affairs are inorder. Other cases — adoptions,conservatorships, benefits — may callupon an attorney’s particular expertisein an area of law. With their knowledgeand skill set, pro bono attorneys areuniquely positioned to make huge,positive changes in people’s lives and inthe community.”

If an area does not currently offer alegal clinic, there are many resourcesavailable to help develop one. Though it

JANUARY2 0 1 4 T ENNESSEEBARJOURNAL | 13



may seem intimidating, there are organi-zations eager to collaborate to providelegal assistance in underserved areas.Additionally, the Tennessee Access toJustice Commission has developed a“Pro Bono Clinic in a Box,” whichprovides all the basic instructions, formsand other documents needed to operatea legal clinic. More information is avail-able at http://justiceforalltn.org/i-can-help/clinic-box2.

OnlineTNJustice.org: Do It from HomeOnlineTNJustice (OTJ) is a joint project ofthe Tennessee Alliance forLegal Services (TALS) andthe TBA. OTJ is an onlineopportunity based on thewalk-in-clinic model whereclients request brief adviceand counsel about a specificcivil legal issue from avolunteer lawyer. Lawyersprovide basic informationand advice without any expectation oflong-term representation, all via a securewebsite.6 OTJ provides an option both forlow-income Tennesseans in need of legalassistance and is a convenient way forattorneys to offer pro bono assistance.

OTJ works to eliminate those barriersthat may keep a client or a volunteerattorney from participating in other legalclinics. Whether it is geographic loca-tion, work schedule or family obliga-tions that keep individuals from takingpart in existing legal services, OTJ offersa unique option for clients and volun-teers alike. It was also developed toexpand pro bono services in rural areasof the state and to provide alternativesfor clients who may be eligible for legalaid services but are turned away becauseof the organization’s lack of resources.

Once approved, OTJ volunteer attor-neys may log-in anytime and reviewposted user questions.

Volunteer lawyers are able to read thefull question before deciding whether tochoose to answer it. Follow-up ques-tions are permitted, and the volunteers

may remain completely anonymous orprovide whatever identifying informa-tion they want. OnlineTNJustice is anideal option for attorneys with limitedavailability for in-person legal clinics orthose who would prefer to be able toselect only specific issues to address.

“OTJ offers a flexible, easy way tohelp someone in need and earn CLEcredit at the same time,” TALS ExecutiveDirector Ann Pruitt explains. Volunteerattorneys receive one hour of pro bonocredit for every five hours spentresearching and answering civil legalquestions on the site, and, she says,TALS handles filing for the CLE creditand provides malpractice coverage to the

attorney volunteers. “I’m excited to report that we are

adding a training component to the OTJsite so attorneys can access legalresources, created by the Access toJustice Commission and by experts atlegal aid offices around the state,” Pruittsays, “to help answer our mostfrequently asked questions relating tofamily law, housing and debt.”

Since OTJ was launched in 2011,more than 350 attorneys have signedup, answering more than 5,000 ques-tions. OTJ was developed with thefinancial support and technical expertiseof Baker, Donelson, Bearman, Caldwell& Berkowitz PC; more than a dozenother states are now exploring programssimilar to OTJ.

Committee Service, Leadership and Outreach EffortsThe access to justice community inTennessee is an active and collaborativegroup, with many opportunities forserving, beyond direct client service.The TBA’s Access to Justice Committee

and the Tennessee Supreme Court’sAccess to Justice Commission both haveongoing projects and give those in thelegal community the chance to be partof setting the future direction of accessto justice work in the state.

The Access to Justice Commissionwas created by the Tennessee SupremeCourt in 2009 to help address thegrowing civil legal needs crisis in thestate. The 10-person ATJ Commissionoperates under a strategic plan andassigns tasks to its five AdvisoryCommittees: Education, Faith-BasedInitiatives, Pro Bono, Public Awarenessand Self-Represented Litigants. Thecommittees can also propose and

develop specific initiativesin response to legal needs.The commission andcommittees welcome inputas well as volunteers toassist with project imple-mentation. Some of thespecific projects includesupporting the develop-ment of new legal clinics

in underserved areas of the state,increasing resources for pro se litigantsand producing videos for the public andattorneys. The attorney educationvideos are designed to provide volun-teers with the necessary skills to take oncases that may be outside of their day-to-day practice area.

The commission is developing itsnext strategic plan, which it will releaseearly this year. The 2014 plan willinclude specific goals, tasks and time-lines for project implementation.7

Law Students: ‘We Are BeingTrained to Help People’Law schools in Tennessee provide oppor-tunities for students to get experience byactively participating in clinics, extern-ships and other pro bono projects. Lawstudents play a significant role in manypro bono programs, and the experiencecan help them both with developingcrucial skills and creating the habit ofpro bono early in their careers.

Many students volunteer at legal aidclinics throughout the year, under the

Pro Bono continued from page 13

Learn More

For more information about these and other probono legal opportunities in Tennessee, visit www.tba.org/resource/i-want-to-do-pro-bono

supervision of experienced attorneys. T. Kyle Turner, a student at University ofMemphis, Cecil C. Humphreys Schoolof Law, has participated in the monthlySaturday Legal Clinics hosted byMemphis Area Legal Services and theMemphis Bar Association, since thebeginning of his first year in law school.

“I was always aware that there was a‘need’ for many in the community butnever understood how that ‘need’ couldbe met. By sitting down, listening topeople’s issues and providing them withadvice, their trajectories could becompletely changed,” Turner says. “As alaw student, I am able to see the class-room learning come alive. Abstractconcepts from books become real peopleand real issues. Seeing firsthand that whatwe learn every day has a practical appli-cation is inspiring. More important,however, is the idea that we are beingtrained to help people. Offering pro bonoassistance and working with the under-served not only helps the community atlarge but also enhances my education inways a classroom never can.”

That spirit of collaboration and coop-eration between the students helped togenerate opportunities across Tennesseefor students to engage in alternativespring break projects (ASB). In theseprojects, students from Tennessee lawschools spend their spring breaksworking together, sometimes consecu-tively, to collaborate on a larger projectthat could not be completed by onegroup in only a week’s time.

In 2013, the foremost collaborativeendeavor was a joint effort assistingwomen who have been victims ofviolence be able to obtain a U Visa,which allows them to temporarilyremain and work in the United States.The multiweek project involved lawstudents from Belmont College of Law,Lincoln Memorial University, Universityof Memphis and the University ofTennessee working together and washosted by UT.

Rising third-year Belmont studentKristi Pickens says that assisting thesewomen “required learning how to be asympathetic listener and professional at

the same time. The woman we helpedthrough the U Visa process had a heart-breaking story, and at times I wanted tocry. As part of the application process,we had to know everything — the good,the bad and the ugly. It was hard for herto open up, and it was heart-wrenchingto have to pry. But the more details wegathered, the stronger we could makeher application. And the stronger andmore professional we were, the strongershe seemed to be in telling her story.”

These and related law school projectshelp create a culture of pro bono withparticipating law students that, the hopeis, will continue as they enter the prac-tice of law.

Tennessee Appellate Pro Bono Project Though many pro bono opportunitiesare focused on limited-scope representa-tion, some clients are in need of repre-sentation pursuing appeals. In response



A major component of the TennesseeSupreme Court’s Access to Justiceinitiative is promoting pro bonoservice among the state’s attorneys.

To encourage such efforts, thecourt will for the first time in 2014recognize attorneys and law studentswho have demonstrated a commit-ment to providing legal services tothose in need.

Any attorney who has performed50 or more hours ofpro bono work in 2013will be recognized bythe court as an“Attorney for Justice.”Similarly, any 2014 lawschool graduate whohas given at least 50hours during their lawschool career will benamed a “Law Studentfor Justice.”

Recipients of the recognitions willbe honored at regional events hostedby Supreme Court justicesthroughout the state. The court hasdeclared that its key strategic initia-tive is access to justice — and probono work is a key component ofthat objective.

“Pro bono work is an importantand valuable element of our service inthe legal community,” Chief JusticeGary Wade said. “Ensuring accessiblelegal services to those who could nototherwise afford them is most

deserving of this recognition.“To be considered for the program,

all service must have been providedunder the provisions of Rule 6.1 ofthe Rules of Professional Responsi-bility, which includes delivery of asubstantial portion of legal serviceswithout fee or expectation of fee anddelivery of legal services at no fee orat a substantially reduced fee torecognized groups and individuals.

The program is entirelyvoluntary and based onself-reporting.

Law offices located inTennessee also maysubmit applications forthe honor. Informationon how attorneys willreport pro bono serviceand the law office appli-cation process is avail-

able on the Administrative Office ofthe Courts website,www.tncourts.gov.

The program is the result of arecommendation by the SupremeCourt’s Access to Justice Commis-sion, which is tasked with makingsuch recommendations to theSupreme Court of projects andprograms necessary for enhancingaccess to justice.

— by Michele Wojciechowski, Adminisrative Office of the Courts

communications director

Supreme Court Begins Program to Honor Pro Bono Work


to this need, the TBA and TALSlaunched the Tennessee Appellate ProBono Pilot Program in 2011. This pilotinitiative provides pro bono representa-tion to litigants appearing in theTennessee appellate courts who other-wise could not afford counsel.

The Tennessee Appellate Pro BonoPilot Program’s primary goals are toimprove access to justice for low-incomelitigants in Tennessee’s appellate courtsby establishing a qualified panel ofappellate attorneys to provide pro bonorepresentation on appeal while alsoproviding increased opportunities forattorneys with appellate practiceexpertise to use their skills to serveclients who could not otherwise affordrepresentation. The program alsoprovides an opportunity for younglawyers seeking appellate practice expe-rience through pro bono representation,under the mentorship of senior appellateattorneys.

Interested volunteers, both experi-enced appellate litigators and thoseseeking to enhance their skills, areencouraged to contact the TBA to bepart of this unique program.

Get StartedWhile a commitment to pro bonoprograms and service is not a substitutefor adequate funding and support ofexisting legal aid services, it does play acrucial role in the comprehensiveapproach that is required to help all ofthose in need have meaningful access tojustice in our state, regardless of theirability to pay for legal representation.

Some have noted that one of the mainbarriers to attorneys doing pro bonowork is simply inertia or lack of time tonavigate a potentially complicatedprocess. Fortunately, there are so manyopportunities available that these should never be excuses for those in the Tennessee legal community toavoid their responsibility to servingthose in need.

“Don’t tell me we can’t change theworld,” Buck Lewis says, “because I haveseen far too many examples of the workwe do meaning the world to our clientsand the lawyers who serve them.”

Just choose one of these projects,then pick up the phone and begin. It’sthat easy.

Tennessee Bar Association Access to JusticeCoordinator LIZ TODARO and members of theTBA Access to Justice Committee contributedto this article.

Notes1. “Report from the Statewide Comprehen-

sive Legal Needs Survey for 2003,” January2004, prepared for the Tennessee Alliance forLegal Services (TALS) by the University ofTennessee College of Social Work, Office ofResearch and Public Service.

2. See the 2012 Tennessee Pro Bono Reportof the Tennessee Supreme Court at

https://www.tncourts.gov/sites/default/files/docs/final_2012_pro_bono_repor_w_exhibits.pdf

3. Tennessee Rules of Professional Conduct(TRPC) 6.1: “A lawyer should aspire to render

Pro Bono continued from page 15

Look for this year’s Pro Bono Honor Roll online! The Tennessee Bar Association is pleased to have this opportunity to join the pro bono programs in honoring those

lawyers who participated in pro bono activities during the past year. More than any other profession, lawyers give oftheir time and talents to serve those who need their services.

We recognize that the list is not an all-inclusive list of all of the pro bono services provided in Tennessee, and weapplaud all of those countless members of the bar who selflessly serve in any of the multitude of ways cataloged in theRules. The online list is of attorneys who volunteered with the specified Tennessee pro bono programs between Nov. 1,2012, and Oct. 31, 2013, as reported by the following programs: Chattanooga Bar Association P.A.T.H. Program,Community Legal Center, Disability Law & Advocacy Center of Tennessee, Legal Aid of East Tennessee, Legal Aid Society of Middle Tennessee & the Cumberlands, Memphis Area Legal Services, Tennessee Justice for Our Neighbors,Southeast Tennessee Legal Services, Tennessee Alliance for Legal Services/OnlineTNJustice.org, Tennessee Justice Center,Volunteer Lawyers & Professionals for the Arts, West Tennessee Legal Services and other local clinics and programs.

To read the list, go to http://www.tba.org/journal/2013_probono



Harris Gilbert Pro Bono Volunteer of the YearThis year’s Harris Gilbert award ispresented to CHARLES W. “BUZ”DOOLEY. The award recognizes privateattorneys who have contributed significantamounts of pro bono work and havedemonstrated dedication to the develop-ment and delivery of legal services to thepoor. The award is named after Gilbert, aNashville attorney and past Tennessee BarAssociation president, who exemplifies thistype of commitment.

When Buz Dooley started practicinglaw, they didn’t even use the term probono. Now at 78 and three years into

retirement, Dooley is downright evangel-istic about the concept.

“It was just part of your duty as anattorney, to help out,” he says of his earlyexperience providing legal services forfree. “The court appoints you, and youneed to take your share of the load.” Thecourt-appointed cases he took are the onlycriminal cases he has handled in his longlegal career doing civil defense work.Today, of counsel and retired from Leitner,Williams, Dooley & Napolitan PLLC,Dooley still practices law. But a lot of it ispro bono, which he does as an intake andplacement attorney at Legal Aid of EastTennessee.

“Buz Dooley is exponentially the most

active pro bono attorney in Chattanooga,both in terms of time donated and clientsserved,” says Charles McDaniel, who isSouthern Region pro bono project directorfor LAET and who nominated Dooley forthe award. Dooley goes to LAET everyWednesday morning without fail, to meetwith clients, offer advice and, whenneeded, make phone calls to line up otherattorneys to take the cases. “On average,Buz meets with almost 200 clients a year,usually spending over an hour with each— an unmatched level of dedication topro bono,” McDaniel says. “Buz is trulythe best friend low-income, elderly andabused Chattanoogans have.”

FEATURE STORY

continued on page 18

Each year the Tennessee Bar Association recognizes outstanding service by attorneys and law students

who have dedicated their time to help others. The awards given are the Harris Gilbert Pro Bono Volun-

teer of the Year, the Ashley T. Wiltshire Public Service Attorney of the Year and the Law Student

Volunteer of the Year. Read the stories of those recognized here.

Harris Gilbert Pro Bono Volunteer of the Year Buz Dooley

Lawyers and Law Students Doing Their Part

Commitmentto PublicService

Honored Ph

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At LAET, Dooley sees all types of cases— landlord/tenant, domestic, contractsand more. “Any kind you can imagine, wedeal with,” he says. In his position, hepoints out, he has to be vaguely familiarwith all types of cases so he’ll know whoto ask to take each one on.

“We try not to overload [the othervolunteers],” Dooley says of how the casesare spread around. “We want to keepthem happy. I try to use some of my sales-manship with that because I know whenthe phone rings and the caller ID says‘legal aid’ they say oh no, more free work,”he laughs. “But they do avery good job of joiningin and helping out.”

Dooley admits he canbe persuasive, an attributehe says he learned as aclothing salesman in theyears between earning hiseconomics and businessdegree from Vanderbiltand his law degree fromCumberland School ofLaw at Samford. Histenure as president of theChattanooga Bar Associa-tion in 1991-92 also helps him as heconnects pro bono clients with specificneeds with lawyers. “I knew an awful lotof attorneys pretty close [as president],” hesays. “You get to know a lot of people thatway.” So he calls them up and asks themto take a case, and usually they do it.

Dooley credits many of his prior expe-riences with his career successes, espe-cially his high school years at ColumbiaMilitary Academy where he learned “theimportant life lesson of self-discipline.” Healso served in the ROTC at Vanderbilt andin the Army at Ft. Benning. He then wentto work in the clothing store his parentsowned in Lawrenceburg, Tenn., where hegrew up. This led him to work as asalesman for Jantzen, selling swimwearand sportswear in several Southeasternstates. He loved the work. But when hemarried Annette, he soon realized thetraveling lifestyle was not going to fit into

their vision of raising a family.He didn’t plan to be a lawyer, but

several things came into play that sentDooley to law school. One was a promisehe had made to Annette, that he wouldnot continue to travel so much once theystarted a family. He had told her that afterfive years he would either open a retailstore and settle down, or go back toschool for a higher degree. He wasmowing his yard one day, he says,“thinking and praying about it, and it justhit me the thing for me to do was to go tolaw school. That’s what happens whenyou pray about it, I guess.”

Early on, Dooley says he and Annettedeveloped priorities for their lives, which

are religion,marriage/familyand country. “Ifelt like I couldhelp out people,my country andmy family if Ibecame alawyer.”

While atCumberland,with a wife andtwo children, hewas very activeon campus as

well as holding down three jobs: workingat the law library, clerking at a downtownlaw firm and working on weekends at adepartment store.

Now their two children — Doug andAnn Elizabeth — are also lawyers, havinggrown up around his firm. Doug, now amember at Leitner, worked in its librarywhen he was young, his dad says, andAnn Elizabeth, who practices in Mont-gomery, Ala., worked sometimes as thereceptionist there. “I thought surely theywouldn’t want to become lawyers afterthat!” he says.

Dooley has not always been a poet butwhen his son graduated from high school,he penned a poem for the occasion andhas since written many others. Morerecent poems have commemorated his lawfirm and LAET.

“My grandfather was a real poet,” hesays of the man he knew who typed

poems with one arthritic finger because hecouldn’t move any of the others. “I had alot of admiration for a guy like that.”

“When I was actively practicing, weweren’t keeping up with that sort ofthing,” he says of pro bono hours. “Itwasn’t coming through legal aid. We weredoing it because we were required to do it— because we were attorneys.”

As for new lawyers, Dooley likes thatmany schools are now requiring andemphasizing pro bono work.

“That’s a huge change right there,” hesays. “It was hardly talked about when Iwas in law school, except for criminalappointments. I think it will get morepeople interested at an early stage.”

Like volunteer work of almost anykind, Dooley agrees that you will get moreout of it than you put in.

“In what I’m doing [at LAET], I’mtickled to death when I get someonewho is competent in the field on thecase. That’s where I get my pleasure,from the people who I make placementsto. That is the reward for me, just to seethat they have some good help and nothave to worry because they can’t affordan attorney.”

If you are on the fence about doing probono, Dooley has some advice for you:“You’ll be happy that you did it because itwill make you feel good. Besides, it willmake your mother proud.”

— Suzanne Craig Robertson

Public Service Awardscontinued from page 17

I have a passion forhelping victims ofdomestic violence, and I also have a

passion for people who need help and don’thave a means to get it.

— Deborah Yeomans

at least 50 hours of pro bono publico legalservices per year.”

4. Supra note 2. 5. “Rule Changes Advance Access to

Justice,” by Alexandra McKay, John Blanken-ship and Liz Todaro, January 2013 TennesseeBar Journal. “Supreme Court Turns Up the Heaton Access to Justice,” by Suzanne Robertson,January 2011 TBJ.

6. See Online Tennessee Justice FrequentlyAsked Questions atwww.onlinetnjustice.org/Account/AttorneyFAQ

7. For a better understanding of thecommittees’ activities, go to www.tncourts.gov/programs/access-justice and read the 2012Strategic Plan. For more information, contactAnne-Louise Wirthlin, access to justice coordi-nator for the commission, at (615) 741-2687or [email protected].

Pro Bonocontinued from page 16

Ashley T. Wiltshire PublicService Attorney of the YearThe Public Service Award is given to anattorney who has provided dedicated andoutstanding service while employed by anorganization that is primarily engaged inproviding legal representation to the poor.This year’s award is given to DEBORAHYEOMANS.

Before Deborah Yeomans even enteredlaw school, she knew exactlywhat she wanted to do withher life: help victims ofdomestic violence.

And even today — 24 yearsafter starting work at the LegalAid of East Tennessee — there’sno doubt in her mind that sheis where she should be.

“If someone came in andoffered me a job in privatepractice paying twice themoney, I’d say no,” she sayswithout hesitation.

“I have a passion forhelping victims of domestic violence, andI also have a passion for people who needhelp and don’t have a means to get it.”

Thousands of clients have benefitedfrom this passion over the years,including many who are also facingbankruptcy or tax problems — twoareas of the law where Yeomans hasrecently gained expertise. But the 51-year-old lawyer has also gone beyondjust providing one-on-one assistance,sharing her knowledge and commitmentacross the state. Most notably, she hasbeen involved with the StatewideDomestic Violence CoordinatingCouncil, LAET Associate Director DebraHouse noted in her nomination ofYeomans for this award.

Last year the group named Yeomansits Advocate of the Year, both for heractive support of the organization andher work in Tennessee’s appellatecourts, where she had four casesaddressing various order of protectionissues, most significantly concerning thepayment of court costs. She was victo-rious in defining the proposition thatthe order of protection statute really

means that a victim of domesticviolence cannot be charged with thecosts of an Order of Protection, Housewrote. “This decision has impact acrossour state for countless victims who seekprotection through our court system.Deborah is relied upon by local judgesand court clerks for her expertise in thearea of domestic violence.”

Beyond herwork in the area ofdomestic violenceYeomans has alsobeen a leader inhelping people getwhat they need outof the legal systemeven if they cannotafford an attorney,House adds. Sincethe early 1990s,she has beeninvolved withstatewide pro se

efforts, most recently helping develop thenewly released pro se divorce forms.

“Probably the number one call we getis for help with divorces, and we justdon’t have resources to do them,”Yeomans said. “There are people whohave not lived together for years, but theyare still married because of the cost ofgetting a divorce.”

Finding ways to help clients like this iswhat continues to drive Yeomans. Whiletaking on these statewide responsibilitiesand serving as managing attorney ofLAET’s Johnson City office, she still keepsmore than a full load of cases. And theyare where she is touched the most.

“I understand what they are goingthrough because I witnessed what mymom went through,” Yeomans says. “All ofthose things that my clients tell me they’resuffering, I heard out of my dad’s mouth.”

— Barry Kolar

Law Student Volunteer of the YearThis award recognizes a Tennessee lawschool student who provies outstandingvolunteer services while working with anorganization that provides legal representa-tion to the indigent. This year’s winner isKATIE BLANKENSHIP, a third-year lawstudent at Belmont University School of Law.

Like many law students, KatieBlankenship has long known that shewould pursue a legal career. In fact, shehas been helping out at her parents’Murfreesboro-based law firm, Blanken-ship & Blankenship, since she was a teen.Now at 33 and as a third-year law studentwho is proud to be part of the inauguralclass of Belmont University College ofLaw, it is her intense devotion to probono work that is the defining aspect ofher chosen vocation.

In addition to excelling academically,Blankenship has served as a founder andleader of the Belmont Legal Aid Societyand two legal clinics, as well as dedicatingcountless hours to other Middle Tennesseelegal advocacy organizations. She hasvolunteered with Justice for Our Neigh-bors, the Tennessee Immigrant & RefugeeRight’s Coalition, the Hannah Project andVolunteer Lawyers for Professionals in theArts, among others.

“It is easier to follow a well-worn paththan to create a new one,” Belmont LawProfessor Jeffrey Usman points out. Hesays when Belmont opened its doors inthe fall of 2011 he was curious as to thetype of students who would attend,knowing that the charter class would havea greater impact on shaping studentculture than any subsequent group.

“I know now that part of the cultureof Belmont law students is an under-standing of the law as a profession ofservice to those in need and dedication tovolunteering to provide such service,” hesays. “The biggest single force in creatingthat culture is the leadership of KatieBlankenship. There have been no easysteps along the way. She has had to leadrather than be able to follow. It is not onlythe difficulty of the path that she has had



Public Service Attorney of the YearDeborah Yeomans


to travel but the remarkable distance thatshe has covered that sets Katie apart fromother students.”

Usman points to Blankenship’s roles asa founder of the Belmont Legal AidSociety, the Magdalene House Legal Clinicand the Sophia’s Heart Legal Clinic. “Thefirst would be a tremendous success for alaw school student; either of the latter twowould frankly be a tremendous successfor a practicing lawyer and all the more sofor a student,” he says.

It is doubtful that Blankenship wouldever use a word like legacy to describe herimpact, but she is hopeful that her inau-gural class at Belmont “is looked back

upon as one that cared about the commu-nity and valued pro bono service.”

This sentiment is completely consistentwith her fervent belief that lawyers havean explicit obligation to serve the commu-nity. Her conviction on this point stemsfrom the examples of her grandfather,mother and father, all Tennessee attorneys

who built legal careers “framedaround service to the commu-nity. To never saying no whensomeone is in trouble.” Hergrandfather was Nashvillelawyer Paul G. Blankenshipand her parents are John T.and Patricia A. Blankenship,who continue to practice inMurfreesboro.

“In her past two years oflaw school, Katie has devotedmore time and effort thanmost attorneys do in anentire career,” says BelmontLaw Professor Ellen Black. “Her historyof service to pro bono organizationsspeaks for itself, and she serves as atremendous role model to the law schoolcommunity and the Nashville legalcommunity. As a law student, she isalready making a difference in the livesof those less fortunate.”

Multiple nominations for this awardspecifically mentioned the MagdaleneHouse legal clinic’s work, including itshelp alleviating “crippling court costs,”that would have been virtually impossibleto do without legal representation. Usmansaid he “had the great pleasure ofwatching the lives of several womenchange in a Nashville Davidson Countycourtroom because of the dedication andleadership of Katie Blankenship.”

Blankenship’s commitment to pro bonoservice extends beyond personal philos-ophy. She is driven to bring access tojustice issues to the attention of her fellowlaw students and others in the legal

community. “She isthe kind of personthat inspires peoplearound her and is anatural leader andorganizer,” saysCasey Gill Summarof VolunteerLawyers & Profes-sionals for the Arts.“She instantlystands out as adistinct advocate forpro bono. She isunafraid to pursue a

different path and lends such enthusiasmand excitement to the cause that she oftenbrings along several other students withher, both literally and figuratively.”

In addition to direct client representa-tion, she is involved with communityeducation projects, serving as an activevolunteer with the TBA’s Public Educa-tion Committee and leading conversa-tions about civics and the law withNashville high school students. She alsoseamlessly incorporates foundations fromboth her undergraduate degree incultural anthropology and her master’sdegree in humanities in her approach tolegal issues. She is interested inpromoting holistic, community-basedresponses that empower individuals.

As she enters the last semester of lawschool, Blankenship is focused onfostering practical transitions and conti-nuity for the organizations and programsshe helped found. This includes defining ameaningful role for alumni to remaininvolved and supportive.

After law school, she is interested inpursuing a career in public service but shealso “has a soft spot for being part of asmall firm, maybe even with family.”Given that she has more than two decadesof experience navigating private practicevia her parents’ firm, it seems in perfectbalance that this fall, she will start a clerk-ship with the United States District Court,serving in the chambers of the Hon. C.Clifford Shirley and the Hon. H. BruceGuyton in Knoxville.

— Elizabeth Slagle Todaro

Public Service Awardscontinued from page 19

Law Student Volunteer of the YearKatie Blankenship

In her past two years oflaw school, Katie has

devoted more time andeffort than most attorneys do in

an entire career.

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justice for all

Since 2003, LexisNexis™ has donatedmore than $220,000 to Tennessee

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comment on that proposal and distrib-uted a revised proposal for furtherpublic comment on April 18, 2013.Curiously, the Aug. 30, 2013, orderadopting the new Rule 9, indicates thatit will have prospective application only,so as to apply only to “matters filedwith or initiated before the Board ofProfessional Responsibility” on or afterJan. 1, 2014. Given the sweeping natureof the revisions to Rule 9 (the priorversion of the rule has been replacedentirely), it will be interesting to seehow things play out with two differentsets of rules and procedures in place for

some period of time, particularlywhether it is even feasible for the boardto leave in place certain proceduresacceptable in older, pending matters butnot usable in new matters.

Although the court’s new Rule 9 willnot satisfy all those with an interest inhow the disciplinary process inTennessee operates, everyone should beable to agree that the new Rule 9 isvastly improved in terms of organiza-tion, architecture and clarity. Among thestructural improvements to Rule 9 is anew section defining terms used in therule, including “respondent,” which will

Effective Jan. 1, 2014, lawyers who end up having to seek to justify

their conduct in the face of a disciplinary complaint (and lawyers who

represent lawyers in such circumstances) will have to navigate a new,

overhauled version of Tennessee Supreme Court Rule 9. The adoption

of the new rule is the culmination of a year-long process initiated by

the Tennessee Supreme Court when it distributed its initial proposal to

revise Rule 9 on Aug. 8, 2012. The court received extensive public

FEATURE STORY

A GuidedTour of NewTennesseeSupremeCourt Rule 9

By Brian S. Faughnan

be used throughout the rest of thisarticle to refer to a lawyer who is thesubject of a disciplinary proceeding. § 2.

In my opinion, the revisions are bestexplained with reference to how alawyer is likely to encounter them —the life cycle of a disciplinary complaint.Accordingly, this article will provide aguided tour of new Rule 9 in thatcontext, noting where appropriate boththe important changes from the currentprocess and those areas where, for betteror worse, the rules remain the same.

Some of you now may be saying toyourself, “I don’t plan ever to be arespondent; is there anything about Rule9 I still need to know?” Setting aside thefact that no one ever really plans to be arespondent, there are a few importantaspects of the new Rule 9 that do notarise in the context of disciplinaryproceedings, but happen to be housedin Rule 9. For those of you who are onlyinterested in those topics, you can turnyour attention immediately over to thesidebar material titled “Other NotableAspects of New Rule 9” on page 27.

If you are still with me at this point,let’s start that guided tour:

Disciplinary proceedings have alwaysbeen most likely to begin because of acomplaint to the Board of ProfessionalResponsibility by a lawyer’s client, formerclient or some other person who feelsthemselves aggrieved by the lawyer’sconduct. That will continue to be true in2014 and beyond. However, despitepublic comment critical of limiting thebroad immunity afforded to complainantsand witnesses in disciplinary proceed-ings, new Rule 9 now strips immunityfrom complainants and witnesses if theyprovide “false” information in communi-cations or testimony and they have“actual knowledge of the falsity.” § 17.

In terms of how (and about whatexactly) someone complains to theboard about a lawyer, new Rule 9changes the landscape somewhat. For acomplaint to be sufficient to triggerdisciplinary counsel’s obligation toinvestigate, Section 15.1 now requiresnot only that the complaint be in

writing, but also that it identify, and besigned by, the complaining party. Thisshould mean the end of the use ofanonymous complaints to bring aboutan investigation by disciplinary counsel.Importantly, in the event that acomplaint received by disciplinarycounsel is frivolous (or complains ofconduct falling outside its jurisdiction)on its face, then disciplinary counsel candismiss the complaint, and the rule doesnot require notice to the accused lawyerin such circumstances. New Rule 9 alsoremoves one potential source ofcomplaints against lawyers by deletingconduct in violation of the attorney’soath of office from the section identi-fying conduct that is grounds for disci-pline. Compare § 11.1 with Section 3.2of old Rule 9. Thus, for example, in2014 a complaint against a lawyer thatalleges only a violation of the oath ofoffice should presumably result in animmediate dismissal and could comeabout without the accused lawyer evenbeing aware of the developments.

Although the submission of acomplaint remains the most likely wayfor disciplinary proceedings tocommence against a respondent, it isstill not the only way. Rule 9 stillprovides disciplinary counsel with someauthority to initiate an investigationeven in the absence of a person submit-ting a sufficient complaint. For example,a media report could be sufficientlyserious to justify disciplinary counselopening an investigation file underSection 4.5(a). New Rule 9 alsocontinues to permit disciplinary counselto seek the immediate, but temporary,suspension of a lawyer when a lawyerhas (1) misappropriated funds, (2) failedto respond to a disciplinary complaint,(3) failed to comply with a certain typeof TLAP monitoring agreement; or (4)otherwise poses a threat of substantialharm to the public. § 12.3(a). In thepast, such a suspension triggered theobligation of disciplinary counsel to filea formal petition for discipline againstthe lawyer thereafter to seek a finaldetermination regarding appropriatediscipline; new Rule 9 however leaves it

to the respondent to file a petition toseek to have such temporary suspensiondissolved or amended. § 12.3(d).

Finally, Rule 9 also continues torequire certain swift disciplinary action inthe form of immediate suspension againstattorneys who have been convicted ofany “serious crime,” a defined term thatnow includes convictions in jurisdictionsoutside of the state of Tennessee. § 2.New Rule 9 deletes one other circum-stance that resulted in immediate, tempo-rary suspension, by dropping theconvoluted proceedings required underold Rule 9 regarding a lawyer held incontempt in a case in which they are aparty and, instead, simply states thatanytime a lawyer is found in contempt ofa court order such conduct is grounds fordiscipline. Compare § 11.3 with Section3.4 of old Rule 9.

Fundamental to understanding themechanics of what happens in the disci-plinary process in Tennessee is an under-standing of the structure of the boarditself. New Rule 9 retains and continuesthe internal structure of the Board ofProfessional Responsibility, its districtcommittees, and its relationship withdisciplinary counsel. The board continuesto be comprised of 12 members who areappointed by the court, comprised ofnine attorney members and three non-attorney members. §4.1. The state ofTennessee is divided into nine discipli-nary districts (§ 3), and there must beone attorney board member from eachdistrict, while the three non-attorneymembers include one from each ofTennessee’s three Grand Divisions.Voting, quorum and other proceduralrequirements (including the ability tomake decisions by telephone conferenceor even e-mail) with which the boardmust comply are set out in § 4.3. Andalthough the court’s original proposalwould have made clear that the membersof the board, who receive no compensa-tion for their service (§ 4.4), mustcomply with the disqualification/recusalrequirements imposed upon judges byTenn. Sup. Ct. R. 10, new Rule 9 as ulti-mately adopted by the court makes a




curious decision to say only thatmembers of the board should not beinvolved in adjudicative functions whendoing so would violate “federal orTennessee constitutional due processrequirements for administrative adjudica-tions” and states that the procedures formotions to disqualify set out in Tenn.Sup. Ct. R. 10B do not apply. § 4.6.

District committee members — thosewho review certain recommendations ofdisciplinary counsel and who, in groupsof three, serve as members of hearingpanels — continue to be required to belawyers and, for each disciplinarydistrict the committee must have at leastfive members. § 6.1. District committeemembers are appointed by the courtbased upon the recommendation of theboard or by the leadership of local barassociations in each district. Id. Districtcommittee members, whether acting asan individual reviewing a recommenda-

tion by disciplinary counsel or servingas a hearing panel member, must alsocomply with Tenn. Sup. Ct. R. 10 ondisqualification/recusal as if they were ajudge; however, new Rule 9 providesthat the mechanics for motions todisqualify under Tenn. Sup. Ct. R. 10Bdo not apply. § 6.5. New Rule 9 doesimpose term limits upon service as aDistrict committee member but providesthat a person can be reappointed as amember, even after having served themaximum of two consecutive three-yearterms, if they spend one full year off ofthe District committee. § 6.2.

Chief disciplinary counsel continuesto be appointed to the position by thecourt and to serve, at the court’spleasure, as something of a combinationof an independent prosecutor and in-house lawyer for the board itself. § 7.1.Section 7.2 of new Rule 9 provides forthe powers possessed by chief discipli-nary counsel alone; while § 7.3 enumer-ates the powers equally available to chief

disciplinary counsel and any full-timestaff disciplinary counsel employed bychief disciplinary counsel. Among thoseenumerated duties are both the power toinvestigate possible misconduct and theduty to present disciplinary proceedings.This is consistent with the two-staged/two-tiered system contemplated by Rule9 made up of informal but highly impor-tant (and confidential) investigativeproceedings and formal, public discipli-nary proceedings.

Upon the receipt of a sufficientcomplaint to trigger its investigativeobligations, disciplinary counsel mustprovide a copy of the written complaintsubmitted against the lawyer. The lawyershall then have an opportunity (thetypical letter from disciplinary counseloffers a period of 10 days) to provide aresponse to the complaint. Nothingabout the revisions to Rule 9 changesthis process from taking place in the waythat it long has with the potential for

New Rule 9 continued from page 23


2014 CorporateCounsel Pro BonoInitiative Gala

Saturday, March 1Hermitage Hotel,Nashville

Reception: 6 p.m.Dinner: 7 p.m.

The Corporate Counsel Pro Bono

Initiative helps foster a coordinated

approach to pro bono work and

support for the access to justice

community by corporate and in-house

legal departments in Tennessee. This

initiative has raised more than

$350,000 and awarded grants to

more than a dozen organizations over

the past eight years.

Tennessee law firms, corporations,

organizations and individuals are

invited to support the Initiative by

becoming recognized sponsors at the

eighth annual CCPBI Gala.

Sponsorship levels start at $3,000

and include recognition in event

materials and in the Tennessee Bar

Journal as well as one table for 10 at

the March 1 Gala.

(Individual tickets are also available for $200.)

The 2014 Gala will feature keynote

speaker Bruce Ives, vice-president

and deputy general counsel at

Hewlett-Packard. The Corporate

Counsel Pro Bono Initiative Awards

will be presented to a Tennessee

law firm and corporate legal

department that best exemplify

extraordinary commitment to

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service and the Corporate Counsel

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For more information about the Corporate Counsel Pro Bono Initiative and the upcoming

Gala, please contact Liz Todaro at [email protected] or (615) 383-7421 or visit the TBA

website at http://www.tba.org/corporate-counsel-pro-bono-initiative

multiple rounds of exchanges of letterswith disciplinary counsel receiving thelawyer’s response and packaging it upand sending it to the complainant for areply and vice versa. In order to insure,however, that disciplinary counsel doesprovide respondent with all suchsubmissions from the complainant, newRule 9 explicitly requires disciplinarycounsel not only to provide the originalwritten complaint against the lawyer butalso any further supplemental submis-sions made by the complainant. § 15.1(a). That same section alsorequires disciplinary counsel to providea respondent with a copy of any infor-mation which results in an investigationby disciplinary counsel in the absence ofa written complaint.

Though a complainant may be whatgets the proceedings started, new Rule 9continues to provide that an investiga-tion, once commenced, does not have tostop because a complainant changes hisor her mind. § 20. Likewise, disciplinaryproceedings still need not automaticallybe put on ice because the allegationsmade to the board are substantiallysimilar to allegations pending in crim-inal or civil litigation. § 21. Rather, anyrequest to stay disciplinary proceedingson that basis is left to be resolved by theboard at its discretion based on a “goodcause” standard. Id. In most circum-stances, this means that, regardless ofany other issues respondent may bedealing with, disciplinary counsel’sinvestigation continues until s/he is inposition to conclude them. When thattime comes, one of several things canhappen as is explained in § 15.1(b).

First, disciplinary counsel mightconclude that the complaint against thelawyer should simply be dismissed. Toaccomplish this, the disciplinary counselmust obtain approval of the recommen-dation for dismissal from one member ofthe district committee. §§ 6.3, 15.1(c). Inthe event that the reviewing disciplinarycommittee does not agree with discipli-nary counsel’s recommendation, the

member may attempt to “modify” such arecommendation but cannot seek toimpose discipline greater than a privateinformal admonition and can only offerdiversion if disciplinary counsel concurswith diversion. §§ 6.3. 15.1(c).

If approved, then the complaint isdismissed, the file is closed, and the factof the complaint and the investigationremain confidential. The complainant isnotified, however, that the complaint hasbeen dismissed. A complainant unhappywith that outcome can appeal thedismissal, in writing, within 30 days ofreceiving the notice of same. § 15.4(f).That appeal goes to the board, where thedismissal can be approved, modified,disapproved, or the board can directdisciplinary counsel to investigate further.

Second, disciplinary counsel maydecide to recommend imposition of thelowest form of discipline — a privateinformal admonition (PIA). Section 12.6defines a PIA as a form of disciplineappropriately imposed “when there isharm or risk of harm to the client, thepublic, the legal system or the profes-sion, but the misconduct appears to bean isolated incident or is minor.” Inter-estingly, while the review process by thedistrict committee member is the same aswith a recommended dismissal and thecomplainant similarly will receive noticeof the outcome, when a recommendedPIA is approved the complainant has noright to appeal. §15.1(g). The respon-dent also has no right of appeal, but candemand a formal disciplinary proceedingbe initiated and have the PIA vacated. § 15(e). Such a course of conduct for arespondent is risky, however. Once

formal proceedings are initiated, thesecond, formal (and public) stage ofdisciplinary proceedings begins, and thismeans that, unless exonerated by thehearing panel, a public censure is thelowest form of discipline that can bemeted out to the respondent.

Third, disciplinary counsel mightconclude that the alleged conduct of thelawyer in question merits disciplinegreater than a PIA but should not resultin the imposition of formal proceedings.If so, then disciplinary counsel’s optionsare to recommend imposition of aprivate reprimand or public censureagainst the lawyer. Section 12.5 definesa private reprimand as the form of disci-pline that should be imposed eitherwhen “there are several similar acts ofminor misconduct with the same timeframe, but relating to different matters”or the conduct is of the same nature aswhat is appropriately punished througha PIA but the respondent has previouslyreceived a PIA for the same conduct andis now repeating such misconduct.Section 12.4 explains the impact of apublic censure (which as the name itselfstrongly hints involves being censuredfor your conduct in a public fashion),but does not undertake to define whenit is appropriate.

Whether disciplinary counsel recom-mends private reprimand or publiccensure, the review of the recommenda-tion is made by the board itself, and ifapproved, the choice for the respondentis then the same — either accept theproposed discipline or demand that aformal proceeding against her be




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commenced. § 15.1(e). The board, ofcourse, need not approve the recom-mendation and could insist that a lowerform of discipline (even outrightdismissal) be the outcome but could alsodirect disciplinary counsel to proceedwith formal proceedings instead ofresolving through the proposed disci-pline. The revisions to new Rule 9 solvea problem often articulated by discipli-nary counsel that public censure couldnot be accompanied by any furtherforms of requirements (i.e., publiccensure plus) and makes clear that as toany form of public discipline, the partiescan stipulate, or be ordered to have,accompanying conditions. § 12.8.

Because imposition of private repri-mand or a public censure require theapproval of the full board and not justone member of the district committee, aprivate reprimand or public censure thatis imposed by the board, and agreed toby the respondent, is not something thatthe complainant has any ability toappeal. As to private reprimands, thispoint is made clear by Section 15.1(h),which also indicates that thecomplainant will be notified that thematter was resolved through a privatereprimand but that the proceedings areconfidential. As to a public censure, thisoutcome is apparent only by way ofimplication.

Another important distinctionbetween disciplinary counsel recom-mending a private reprimand or a publiccensure at this stage of the proceedings

involves other potentially availablecomponents of a proposed resolution.While the potential for a TLAP moni-toring agreement requiring reporting tothe board is available either way, thepossibility of diversion can only accom-pany private discipline while the imposi-tion of a practice monitor can only bepart of recommended public discipline.

New Rule 9 maintains diversion as arecognized concept, but it is limitedonly to circumstances where private,rather than public, discipline aredeemed appropriate and also nowprovides that diversion is not somethinga complainant can appeal, but when amatter is handled through diversion, thecomplainant will receive notice that the

complaint was resolved in a confidentialmanner. § 13.9. Section 13.1 also makesplain that entering into and complyingwith a TLAP monitoring agreement canbe made a part of a diversion program.Whereas diversion is only available inconnection with what would otherwise

be private discipline, practice monitors— now enshrined in the rules as adefined concept in §2 and regulatedthereby in § 12.9 — are only availablefor inclusion as a condition connected topublic discipline.

Finally, disciplinary counsel couldconclude at the end of the investigationthat formal disciplinary proceedingsshould commence against the lawyer. Ifso, and if the disciplinary counsel’srecommendation for such a step isapproved by the board, then the natureof the proceedings takes a much morepublic, and significantly more formal,turn. This more public, more formalturn of events can also come to pass (asset out above) because the board insistsrather than approve a lesser recommen-dation of disciplinary counsel or becauserespondent so demands rather thanagree to discipline as described above.

With respect to commencing formalproceedings, the new Rule 9 maintainsthe procedural approach in which theboard files a petition, the respondentanswers, and the proceedings thencontinue in a fashion similar to civil liti-gation, including the requirement of apre-hearing conference — much akin toa Rule 16 conference in federal court —to be held by the hearing panel within60 days of the filing of the petition or 30days after the answer to the petition (ifan extension of the time to answer wasgranted). § 15.2(f). Before such a confer-ence can occur, however, there must bean assignment of the matter to a hearingpanel. Despite suggestion being madethat the rules should be revised to havea hearing panel assigned as soon as theboard’ s petition is filed (for amongother reasons allowing it to be thehearing panel that rules on motionsrequesting additional time to respond toa petition), the court has maintained itsapproach that the triggering event forassignment of a hearing panel is theservice of the answer to the petition bythe respondent. § 15.2(d).

Another revision on the topic of assign-ment of hearing panels not adopted bythe court was one regarding themechanics of the board’s operations and


… lawyers will likelycontinue to be placed in

the position of having to include such

constitutional challengesin response to formal

disciplinary proceedings.

what information is communicated by theboard to potential hearing panel membersprior to appointment of the hearing panel.Despite being encouraged to limit any exparte communications to potentialhearing panel members to only the infor-mation that is necessary to allow for the

running of an appropriate conflicts checkto determine whether recusal would beneeded, the court opted simply to bless exparte communications between the boardand such potential hearing panelmembers generally. § 15.2(e).

New Rule 9 contains a number of

other improvements directed at theformal stage of the disciplinary process.New Rule 9 continues to provide refer-ence generally to the applicability of boththe Tennessee Rules of Civil Procedureand the Tennessee Rules of Evidence to



First, and perhaps most important ofall, Section 29 of Rule 9 will now offera comprehensive regime forappointing counsel (“receiverattorney”) to protect the interests ofclients when a lawyer has died, disap-peared, become disabled or incapaci-tated (the “affected attorney”).

• Section 29.2 establishes theground rules for when the appoint-ment of a receiver attorney is appro-priate, how proceedings to cause theappointment can be commenced, andthe standard for determining whethera receiver attorney is needed.

• Section 29.3 articulates dutiesowed by, and powers of, a receiverattorney including authorizing thereceiver attorney to take control of andhave signatory power over the affectedattorney’s bank accounts.

• Section 29.4 explains thatalthough no attorney-client relation-ship is created between receiverattorney and the clients of the affectedattorney, the attorney-client privilegeapplies to their communications andthe receiver attorney is still governedby Tenn. Sup. Ct. R. 8, RPC 1.6 withrespect to information regarding therepresentation of the clients by theaffected attorney.

• Sections 29.5 and 29.6 addressthe trial court’s ability to protect clientfiles and records and the ability of thereceiver attorney to be compensatedfor performance of the required duties.

• Section 29.7 provides immunityto a receiver attorney for good faithconduct in the course of officialduties, and Section 29.8 makes clearthat, without permission from the

trial court and the informed consentof the client, the receiver attorneycannot represent a client of theaffected attorney.

• Section 29.9 importantlyprovides recognition for attorneys todesignate in advance for someone toessentially serve as a receiver attorneywith all the duties and powers other-wise provided for in this rule.

• Section 29.10 establishes that anorder appointing a receiver attorneyunder this rule serves to toll statutes oflimitation and other deadlines of theclients of the affected attorney for a60-day period.

Section 5 maintains the ability ofthe Board of Professinal Responsibilityto issue formal ethics opinions thatwill bind the board and bind anyperson who requested the opinion andalso maintains the ability of discipli-nary counsel to issue oral informalopinions to lawyers “when there isreadily available precedent.” § 5.4.

Section 10.1 enshrines in the rulesthe “birth month” approach to submis-sion of the required annual registrationstatement and payment of a lawyer’s$170 annual registration fee that theboard implemented in the recent past.

Section 10.7 retains the perhaps-not-widely-known-of provisions inRule 9 that require certain categoriesof lawyers whose licenses have beenput in inactive status to still pay aregistration fee to the BPR, albeit areduced one of $85.

In 2014 and beyond, Rule 9 willcontain in Section 37 a regime forbringing about the suspension oflawyers who are in default with respectto repayment of their student loans.

Rule 9 will also continue to containprovisions for the administrativesuspension of lawyers who fail to paytheir privilege taxes under Tennesseelaw (Section 26) or fail to pay theirregistration fee to the BPR (Section10.6). The new Rule 9, however, moredirectly addresses the mechanics ofhow such suspensions work in termsof the reinstatement of lawyers oncethey comply with the obligation thattriggered the suspension and nowspecifically address that if the lawyerdoes all that they can do within 30days of their suspension — i.e. notonly comply but cause a proposedReinstatement Order to have been sentto the court — then their reinstate-ment is automatic even if there is somedelay on the part of the court inentering any such of order of reinstate-ment. Lawyers who do not resolvetheir issues within those 30 days willhave to comply with the provisions ofSection 28 to provide notice to theirclients, opposing counsel, etc. of thefact of their suspension.

Additionally, a few improvements tobetter clarify the role of the TennesseeLawyers Assistance Program (and itsautonomy from the board) and the factthat it offers a variety of types of moni-toring agreements to lawyers can befound in Section 36.

Other Notable Aspects of New Rule 9


formal disciplinary proceedings. § 34.3(a). Yet, with respect to the pursuitof discovery, disciplinary counsel hassubpoena power from the beginning ofthe investigative process, while respon-dent obtains the ability to obtain issuanceof subpoenas only after formal proceed-ings have commenced. § 19.1. The rulesdo provide though for the ability of arespondent to seek discovery even beforeformal proceedings are instituted, butonly upon obtaining an order from thechair of the board. § 19.5. Section34.3(b) expressly imposes stronger limitsupon a respondent’s ability to takediscovery from disciplinary counsel andfrom the board itself as an entity.

Other revisions that make new Rule 9more consistent with the TennesseeRules of Civil Procedure include changesto what must happen for a default judg-ment to go down against a respondentand clarifying disciplinary counsel’sability to file an amended or supple-mental petition (as well as the ability of

the respondent to file an amendedanswer). §§ 15.2(a), (b). Similarly,consistent with Tenn. R. Civ. P. 72, newRule 9 permits a sworn declaration to beoffered whenever the rules otherwisewould require an affidavit.

As was briefly mentioned above, oncea formal petition for discipline has beenfiled, the possibility of the imposition ofany private discipline is foreclosed,leaving only a range of potentialoutcomes (besides a hearing panelruling in his or her favor) of publiccensure, suspension or disbarment as ismade plain in Section 15.4(a). New Rule9 continues to require the hearing panelto use the ABA Standards for ImposingLawyer Sanctions as its guide in deter-mining the appropriate type of disci-pline, if any. § 15.4(a). Although Rule 9continues to afford the potential forimposition of a term of probation alongwith discipline in the form of a suspen-sion, new Rule 9 makes clear that anyorder of suspension must require thelawyer to at least serve an active suspen-sion of 30 days. § 12.2.

Upon conclusion of the hearingbefore the hearing panel, an exerciseintended to work much like a benchtrial in other forms of civil litigation, thepanel is required not only to rule but toproduce written findings and judgment.New Rule 9 extends the hearing panel’sdeadline for issuing its ruling from 15days after the hearing to 30 days. § 15.3(a). Rule 9 provides both a mech-anism for the hearing panel to requestmore time from the chair of the boardfor issuing its ruling and makes clearthat the hearing panel’s failure to complywith required deadlines will not providea basis for respondent to seek to havethe matter dismissed. § 15.3(a).

Despite being intended to look like atribunal independent from the boarditself, new Rule 9 fails to have thehearing panel directly transmit its rulingto the parties. Instead, a hearing panel isto provide its ruling to the executivesecretary of the board and leaves it tothe executive secretary to serve theruling upon disciplinary counsel and therespondent. § 15.3(a).


TBA Convention 2014June 11-14 • Park Vista Hotel, Gatlinburg

Get Away to the Smokies is Summer!


Another way in which Rule 9 wasquite purposely not revised by the courtis worthy of mention at this point intalking about any ruling made by thehearing panel. The Tennessee Bar Asso-ciation advocated in its public commentsubmitted to the court on Feb. 8, 2013,that Tennessee should drop the “prepon-derance of the evidence” standard it hasemployed for years in lawyer discipli-nary proceedings and move to the stan-dard used by an overwhelming majorityof U.S. jurisdictions, “clear andconvincing evidence.” In making thatrequest, the TBA flagged the proceduraldue process concerns — implicatingboth Article I, § 8 of the TennesseeConstitution and the FourteenthAmendment of the U.S. Constitution —of a system in which a lawyer’s licensecould be revoked on the basis of thelowest form of proof known to civil law.The TBA also reminded the court thatjudicial disciplinary proceedings inTennessee do require proof by theheightened “clear and convincingevidence” standard. See In re Bell, 344S.W.3d 304, 314 (Tenn. 2011) (citingTenn. Code Ann. § 17-5-308(d)).

Nevertheless, the court refused tochange its proposed course and Section15.2(g) of new Rule 9 still indicates thatdisciplinary counsel need only provethat a lawyer violated an ethical rule bya preponderance of the evidence. Like-wise, and potentially serving only tocontinue to exacerbate the risk of consti-tutional challenge, the court also left inplace the requirement that a lawyerseeking reinstatement has to satisfy thehigher clear and convincing evidencestandard. While one has to be skepticalabout whether this iteration of theTennessee Supreme Court — havingpassed over the opportunity to changethis standard with full awareness of theconstitutional dimensions — will enter-tain any challenge to the constitution-ality of this standard of proof, lawyerswill likely continue to be placed in theposition of having to include suchconstitutional challenges in response toformal disciplinary proceedings —proceedings that the United States

Supreme Court itself has described as“quasi-criminal” in nature. See In ReRuffalo, 390 U.S. 544, modified on othergrounds, 392 U.S. 919 (1968).

New Rule 9 explicitly prohibits anyeffort by the respondent or disciplinarycounsel to seek any petition forrehearing. 15.3(b). Instead, the party notsatisfied with the outcome must file anyappeal within 60 days of the entry of thejudgment of the hearing panel. § 33.1(a).

As has long been the case, appealsfrom the ruling of the hearing panel goto the Circuit or Chancery Court, and anout-of-town trial judge is to beappointed by the chief justice of thecourt. § 33.2. Such appeals are limited tothe contents of the record created beforethe hearing panel and are governed by alimited review similar to many otheradministrative proceedings using, forexample, the “substantial and material”evidence standard. § 33.1(b). Both thehearing panel and the trial court areafforded the power and discretion to staythe effect of their rulings pending appeal.§ 33.3. The trial court is also given theauthority to stay the ruling of the hearingpanel even if the hearing panel does not.§ 33.3(a). Any appeal from the ruling ofthe trial court is lodged with theTennessee Supreme Court. § 33.1(d).

At any stage of the proceedings,including even as early as when discipli-nary counsel is still engaged in investi-gating the matter and has not yet filed aformal petition for discipline, Rule 9continues to permit the respondentlawyer to simply consent to disbarment. § 23.1. Although obviously any order ofdisbarment resulting therefrom is a publicdocument, Rule 9 continues to affordconfidential treatment to the affidavit orsworn declaration of the respondentlawyer. § 23.3. Section 24 also continuesto encourage the concept of discipline byconsent even for results involving lesserpunishment than disbarment through thetender by the respondent of a conditionalguilty plea but only after formal chargeshave been filed against the lawyer. Ulti-mately, any such discipline by consent issubject to approval by the TennesseeSupreme Court after review of a proposed

Order of Enforcement and a ProtocolMemorandum required to be submittedto the court. The Protocol Memorandumhas long been something created andsubmitted to the court, but it is nowenshrined in the rule and its contents andpurpose (including specifically disclosureof what is considered by the board to be“comparative Tennessee discipline insimilar cases”) defined. § 2. Unfortunately,however, the court has opted to specifi-cally prohibit respondent from submittingany response to a Protocol Memorandumsubmitted by the board. § 24.1.

Reinstatement proceedings undernew Rule 9 are governed as set out inSection 30 and are largely unchangedwith respect to substance. The mostnoteworthy change is that instead ofsimply being able to automaticallyresume practice at the end of the periodof suspension, a lawyer who has beensuspended for less than one year cannotresume practice under new Rule 9without first filing a petition for rein-statement and obtaining an order ofreinstatement from the court. § 30.4(c).Further underlining the potentialproblem with the court’s refusal to adopta clear and convincing evidence stan-dard for the imposition of discipline, anattorney seeking reinstatement afterbeing disbarred or receiving a discipli-nary suspension must demonstrate theirentitlement to reinstatement by clearand convincing evidence. § 30.4.

BRIAN S. FAUGHNANpractices with theMemphis law firm ofThomason Hendrix HarveyJohnson & Mitchell PLLC.In addition to the area oflawyer ethics and profes-

sional responsibility, his practice is focused oncommercial litigation, appellate litigation andmedia law. He is a frequent author and speakeron ethics and professional responsibility issues,writes “Faughnan on Ethics,” a column forMemphis Lawyer magazine, and is a co-authorof the book Professional Responsibility in Litiga-tion published by the ABA. Faughnan is thechair of the TBA’s Standing Committee onEthics and Professional Responsibility andserves as West Tennessee Governor on theTBA Board of Governors. Contact Brian [email protected].


at first. Armstrong, 40, sold life insuranceand traveled a lot. But on this trip, unbe-knownst to his wife, he was accompaniedby another insurance agent. She wasWanda Green, the young mother, 21, of ayoung daughter, 4.

After a month of Bob’s lies aboutbeing divorced and wanting to remarry,Wanda Green and child flew toNashville. Bob called her on the tele-phone. From the transcript in a latertrial, we learn the conversation.

Q. What did he say to you?A. He wanted to know if I wascoming back to him. I told him no. Itold him to come to Nashville and hesaid no. He threatened me that, if Ididn’t come back to him, he woulddisappear from the face of the earth.

Years passed, and neither wife Wandanor brief-mistress Wanda heard tidingsfrom Robert Charles Armstrong. WandaArmstrong filed suit on Aug. 11, 1980,against Pilot Life Insurance Company tocollect a $30,000 policy. Trial was heldin Gallatin, Sumner County, beforeChancellor Edward M. Turner on Feb.25, 1982, more than seven years afterthe disappearance.

I invite you to read Judge LewConner’s excellent opinion, Armstrong v.Pilot Life Insurance Company, 656 S.W.2d18 (Tenn. App. 1983). But the Tenn.Code Ann. has been amended since then.So let’s examine current law on the

presumption arising from absence.Tenn. Code Ann. §§30-3-101 through

114 comprise the Uniform Absence asEvidence of Death and Absentees’ Prop-erty Law. Portions of §30-3-102 arecrucial and worth quoting.

(a) A person absent from suchperson’s residence and unheard of forseven years or longer, whose absenceis not satisfactorily explained, ispresumed to be dead; provided,however, such presumption may berebutted by proof.

(b) Exposure to specific peril shallbe considered in every case. If duringsuch absence the person has beenexposed to a specific peril of death,this fact shall be considered by thecourt, or if there be a jury, shall besufficient evidence for submission tothe jury.

Wanda Armstrong lost her lawsuitagainst Pilot Life. Would she win today?I’m unsure, but the presumption ofdeath would give her a better chance ofrecovering $30,000.

DONALD F. PAINE died Nov. 18, 2013. He was apast president of the Tennessee Bar Associationand at the time of his death was of counsel to theKnoxville firm of Paine, Tarwater, and Bickers LLP.He was member emeritus to the Tennessee BarJournal Editorial Board. He wrote his columnsmonths in advance, and as a result, “Paine onProcedure” will continue through mid-2014.

Let’s examine currentlaw on the presumptionarising from absence.

PAINE ON PROCEDURE BY DONALD F. PAINE

Gone Missing: The Disappearance of RobertCharles ArmstrongThe modern illiterati have coined the verb “to go missing.” Bob

Armstrong did that back in literate days. On Monday, Aug. 19, 1974, he

left his wife Wanda (Elwanda) and two daughters and two foster sons

in Hendersonville to take a trip to Texas. Nothing seemed unusual

The Journal is what it is today, in largepart, because of Don, his vision and hisextreme care for what was publishedand how it was written.

He was a founding member — it washis idea, in fact — of the Tennessee BarJournal Editorial Board, which wasformed in 1989. It was a project Donhad put in the works not long after hewas president of the Tennessee Bar Asso-ciation in 1986–1987. Instituting theboard was a move that revolutionizedthis magazine, giving it a broader depthof knowledge and raising the standardsfor what would be published.

Earlier the same year, Don beganwriting his column, “Paine on Proce-dure.” It first ran in theJanuary/February 1989 issue of theJournal. That column, “Nonsuits Don’tNecessarily Save You,” included a tagthat said the new column would runthroughout that year, which would’vebeen a total of six columns. I don’t recalldiscussing renewal; Don just kept righton writing and readers kept eating it up,and here we are 25 Januaries later.

The first board was three members –Don, Bill Haltom and Mary MartinSchaffner, who was followed by LucianPera. The board later grew to five andthen to its current number of seven.

In the beginning, the article reviewsystem worked this way: I would mailhard copies of each submission to theboard for comment. Weeks later, I’dhave their responses. If there wasdispute or discussion, add another

several weeks. (The magazine waspublished six times a year then so wehad a little time to play with.)

Turnaround time was cut shorterwhen the TBA acquired a fax machine,although Don did not trust the newtechnology right away so I continued tomail his copies. You can imagine how hefelt about email, but fortunately by thattime he had embraced the fax machine.More recently and up until the end oflast November, Iwalked to the faxmachine only oncea month, when Isent Don a proofcopy of hiscolumn.

It was duringthis routine that Ifirst learned ofDon’s death fromhis long-time assis-tant Karen Roberts.I had not heardfrom Don after Ifaxed him the Friday before with hisDecember column’s proof, and this wasunusual. It was Don’s habit to call eitherme or our publications coordinator,Landry Butler, to discuss any changesshortly after he received the fax. Or wewould receive a reply fax with marks allover it. I had a bad feeling that morningwhen there was no fax or voice mail toeither of us.

Don wrote 237 columns, 31 feature

articles and 30 book reviews for thismagazine. In 2007 he took emeritusstatus on the board but never waiveredin production of his writing. He had acolumn, feature article or book review(and sometimes two of those things) inevery issue since 1989. Counting the pres-ident’s columns he wrote before that andthe ones we will publish posthumously,he has been a part of 246 issues. (TheJournal became monthly in 1999, and

when Don learned hewould need to writetwice as much, hejust dug in and wrotefaster.) That’s morewriting than any otherperson has done forthis magazine.

He was a sticklerfor detail and beingcorrect, for which Iam grateful. If hefound a problem,sometimes it was myerror (and he

extended exceptional grace to me morethan once), but more often it was ourdifference of opinion on style. He wouldinsist, for example, on the capitalizationof certain words or the inclusion of thedreaded (in my opinion) OxfordComma in a simple series. I have hadmore conversations with Don aboutcommas than with anyone, and believeme, I have talked about commas a lot.He viewed the Associated Press Style,



He Loved the Law … and This JournalThe passing of Don Paine last November reverberated through the legal community as his colleagues, students

and friends poured out their hearts about what he had done for them either directly or indirectly (read many of

the tributes at www.tba.org/news/legal-community-mourns-don-paine). He changed the law and the way many

practice it, through his teaching, writing and doing. This magazine you are holding (or reading online) is just one

of the ways Don Paine helped improve and advance the legal conversation in Tennessee.

EDITORIAL LICENSE BY SUZANNE CRAIG ROBERTSON

The procedural law ofTennessee simply

would not exist in itscurrent form without

Don’s pro bono efforts.—Hon. Martha Craig Daughtery, 1992


which the Journal uses, with disdain.But if I could cite to a reference as towhy I did something like I did, and ifwe were consistent, he would give in.

With his stylish exclamation pointsthat looked like alarmed triangles, hewould fax the proof back to correct mymistakes or omissions with short hand-written instructions: “Quotation marksneeded!” If he had left off the quota-tion marks himself, he was quick toadmit that.

Don had always worked ahead,having two or three columns in the canlong before they were due. But when wegot his submis-sion recently forthe April, Mayand June issues,I have to admit Inoticed that wasfarther out thanhe’d everwritten.

A few daysafter he died, hisreply fax for theDecember proofappeared in mymailbox, whichhe had in factsent the after-noon before hedied. Someonemust havepicked it up by mistake and finally put itin my mailbox. The final magazine proofhad already been signed off to ourprinter and there could be no changes atthat late date, so I picked it up gently,wondering what he had marked andwould’ve been disappointed to knowwould not be changed.

Scrawled at an angle across the top, itwas as if his dear, scratchy voice wascoming through loud and clear. It said,“Looks good, Suzanne. – Don.”

Suzanne Craig Robertson is editor of theTennessee Bar Journal. Read Mr. Paine’s obituary on page 10.

Don Paine continued from page 31

Just Do It Donald F. Paine doesn’t remember whenhe started donating legal services topeople who could not afford a lawyer —he just always has.

“I think I’m being honest withmyself when I say that I’ve alwaysthought you’re just supposed to dothat,” he says. “I’ve just been taking[pro bono cases] all along, if someonedidn’t have the money.” Also, he

laughs, “I was out browbeating folksto sign up, so I sort of feel like Ishould keep doing it myself. Plus,they need lawyers,” Paine says of thelegal service organizations in theKnoxville area. … He is a long-timeconsistent supporter of the Volun-teer Legal Assistance Program inKnoxville, where he gets many of hispro bono referrals. He doesn’t keeptrack of how much time he spendson pro bono cases. “I wouldn’t evenhave any idea,” he says.

“A lot more pro bono work goeson than is recognized,” he says,pointing out that there are manylawyers who donate time withoutgoing through a formal referralprocess.

“If somebody comes through thedoor with a meritorious case — whocan’t pay or can’t pay much — youought to give some thought to takingthe case,” he says.

“I do believe very fervently, though,that a lawyer should to able to pick andchoose cases, other than criminalappointments. I’ve turned down probono cases just like I’ve turned downthose that aren’t pro bono.”

In presenting the award, [thenTennessee Supreme Court] JusticeMartha Craig Daughtrey said, “He hasspent literally hundreds of hoursworking with our advisory committees

on the Civil Rules, the Criminal Rulesand the Tennessee Rules of Evidence.And he has donated a substantialamount of staff time to these commit-tees. … The procedural law of Tennesseesimply would not exist in its currentform without Don’s pro bono efforts.”

The case that stands out the most toPaine involved trying to get custody forthe mother of a girl who was deaf. Hisclient, the girl’s mother, was alsohearing-impaired. The girl had beentaken away to Chicago years earlierwhen Paine became involved.

“I tried to handle it administrativelyat first,” he says. He thought it was allworked out at one point and thedaughter was supposed to be on a planefrom Chicago before Christmas. Butthen he got a telephone call he says henever will forget — everything hadfallen through.

“I had to go tell [my client] rightbefore Christmas that her daughterwasn’t coming home.

Paine said he felt like telling thepeople in Chicago: “I think you pickedon the wrong country boy this time,”and immediately started looking for aco-counsel who was licensed in Illinois,since Paine was not. He called a Chicagolawyer he barely knew who said he’d beglad to help, even though Paine advisedhim that “there’s no money in it.”

During the course of the custodybattle, Paine went to court in Chicagotwo or three times and “had a big,knock-down, drag-out trial.” …

They won the case and the womangot her daughter back. When he went tothe phone to call his assistant KarenRoberts to tell her the outcome, he sayshe started crying.

“That’s the only time I ever cried [overa case]. I wanted to win so badly.”

Don Paine had been a columnist for the Journal three years already when in1992 he was one of the recipients of the newly established Pro Bono Volunteerof the Year awards, the forerunner of today’s Public Service Awards (see page17 for this year’s winners). He was one of three honored that year, along withMemphis lawyer Brooke Lathram and the Nashville Pro Bono Program Inc.

In that story Paine speaks words that still are true more than two decades later:

By Suzanne Craig Robertson, excerpted from the July/August 1992 Tennessee Bar Journal

Photo by Mark Mackenzie


minds agree that there has to be somedeadline for bringing legal action.

Statutes of repose are different.Statutes of repose eliminate claims,regardless of their validity, simplybecause a certain amount of time passedbetween one person’s conduct and thetime a lawsuit was filed. That is, statutesof repose are triggered based on a datelinked to the potential defendant’s actionsrather than on the date of the injury ordeath. The result: persons injured orkilled by another’s conduct lose theirright to bring suit simply because theyweren’t hurt or killed quickly enough.

Here is how a statute of repose works.Assume that a person receives a horribleinjury after being ejected through thewindshield in a car wreck on Sept. 21,2013. Investigation reveals the seat beltsin her car, a 2004 model, have beenfrequently reported as suffering from“false latching.” False latching means theseat belt latch plate looks, feels and evensounds like it is latched when insertedinto the buckle but is not fully engaged.Minimal amounts of force will cause afalsely latched buckle to completelyrelease the latch plate, meaning the occu-pant is essentially un-belted and unre-strained and moves as though he or shewere never belted in the first place. Thepotential plaintiff maintains she securedthe seat belt and had no reason to believethe latch was defective. She wants tobring a products liability claim againstthe product manufacturer.

Tennessee law requires that a productsliability claim be brought within 10 yearsafter the product is sold to the first useror consumer.1 Thus, if research revealsthat the 2004 car the potential plaintiffwas riding in was sold in August 2003(right when 2004 models first went onthe market) her right to bring a claim wasbarred before she was injured becausethe 10-year period expired before theaccident. If the car was sold to the firstuser or consumer on Oct. 1, 2003, shewould have only nine days to file suit orher rights would be lost forever. If the carwas sold to the first user or consumer onSept. 24, 2004, she would have thetypical one year to file suit under thestatute of limitations, and the statue ofrepose would not bar her claim.2

To be sure, we can debate whetherthese laws are good for society. Propo-nents argue that such laws grease thewheels of commerce and the fact thatpeople are from time to time killed orinjured by these greasy wheels must beignored so that the beneficiaries of suchlaws can provide jobs in the favoredindustry. Opponents of the laws argue noindustry or person should be a “get outof jail free” card and that no consumershould lose a right before they know theyhave one.

Those debates will continue. Whatwe know now is this: (1) statutes ofrepose cut off claims regardless of theirvalidity; (2) one defendant can ask that

DAY ON TORTS BY JOHN A. DAY

Protecting Yourself fromStatutes of ReposeCertain folks have persuaded the General Assembly that they are

entitled to special treatment in our court system. Statutes of limitation

mandate that every dispute be presented to a court within a certain

period of time, and, while reasonable minds can differ about whether

the given time period is too short, too long or too ill-defined, reasonable

Editor’s Note: TheJournal values differentpoints of view. The view-

points of authors andcolumnists are not

necessarily those of theTBJ, the Tennessee Bar

Association nor its leadership. The TBA

president is an officialspokesperson for the

TBA and the TBJ.In her column on page 3,

TBA President CindyWyrick explains the

TBA's support for adop-tion of a statue of reposefor lawyer professional

liability claims.


fault be assigned to a non-party whocannot be sued because of the expirationof a statute of repose; and (3) fault allo-cated to a non-party protected by thestatute of repose is ultimately borne bythe plaintiff.3

The purpose of this article is toprovide lawyers guidance on how toavoid the consequences of a statute ofrepose. Here is a checklist for lawyersfaced with this issue:

1. Know which interest groups thathave lobbied for and received thebenefit of a statute of repose. Theyinclude health care providers, productmanufacturers, the constructionindustry, sellers of securities, officersand directors and surveyors.4

2. Know what event triggers therunning of each statute of repose andwhat period of time must pass beforerights are lost.

3. Know the exceptions, if any, tothe general rule for each statute ofrepose.

4. When offered representation,exercise reasonable diligence to under-stand whether a statute of repose ispotentially applicable and, if so,whether (a) it has expired or (b) if ithas not expired, when it will expire.

5. If the statute of repose hasexpired against the only otherwiseviable defendant, decline the case.

6. If the statute of repose hasexpired against one of multiple defen-dants, determine whether the poten-tial fault allocation against thenow-immune non-party makes thecase unviable against the remainingdefendants. If so, decline the case. Ifnot, advise the client of the potentialimpact of the statute of repose on theultimate recovery.

7. If the statute of repose has notyet expired against a possible defen-dant, determine if you have enoughtime to investigate and evaluate thecase before the statute expires. If not,decline the case.

8. If you have a valid claim against

one or more defendants but areconcerned that one of those defen-dants may attempt to assert faultagainst a person or entity potentiallyprotected by a statute of repose thatwill vest in the future, file suit andpromptly seek an order limiting thetime period within which a defen-dant can assert fault against any non-party.5 The entry of such an orderwill give you the opportunity to addthe non-party potentially protectedby a statute of repose as a party tothe case if a defendant asserts faultagainst the non-party, forcing thedefendant who asserted fault toattempt to prove the assertion.

Finally, when you explain to yourpotential client why you must decline thecase or, if you can accept it, why and howthe statute of repose will impact therecovery, make sure that he or she under-stands that these laws are the product ofeffective lobbying of the GeneralAssembly. The common law should notbear such a stain.

JOHN A. DAY is a trial lawyer in Brentwood,Tenn. His most recent book, Compendium ofTennessee Tort Reform Statutes and RelatedCase Law, 2009-2013 (2nd ed.), is available bycontacting Kori Conner at [email protected].

Notes1. Tenn. Code Ann. § 29-28-103(a).

2. The three-year statute of repose in health

care liability cases arises frequently in potential

delayed diagnosis of cancer cases. For example,

assume that a pathologist misreads a slide and

thus fails to catch cancer when it is still treat-

able. The cancer is not discovered until three

years later and there is no longer any effective

treatment. Under the statute of repose, the

doctor cannot be sued unless the patient can

prove that the doctor was guilty of “fraudulent

concealment.” The three-year statute of repose

also impacts children brain-injured at birth by a

medical error — they too lose their rights unless

their parents bring a claim within three years.

3. Dotson v. Blake, 29 S.W.3d 26, 29 (Tenn.

2000). So, for example, if the products claim of

the prospective plaintiff in the hypothetical

above was barred by the statute of repose, the

at-fault driver could still ask that fault be

asserted against the car manufacturer. The at-

fault driver would bear the burden of proof at

trial on that affirmative defense. If the jury

found the seat belt was defective and appor-

tioned fault 20 percent to the at-fault driver and

80 percent to the car manufacturer, plaintiff

would collect 20 percent of her damages from

the at-fault driver and would bear the financial

consequence of the 80-percent fault allocation to

the manufacturer.

4. The construction industry (Tenn. Code

Ann. § 28-3-202 (four years after substantial

completion of an improvement to real prop-

erty)); product manufacturers (Tenn. Code Ann. §

29-28-103(a) (10 years “from the date on which

the product was first purchased for use or

consumption, or within one (1) year after the

expiration of the anticipated life of the product,

whichever is shorter”; exceptions are made for

asbestos injuries (no time limit) (Tenn. Code Ann.

§ 29-28-103(b)) and silicone breast implants

(25 years)(Tenn. Code Ann. § 29-28-103(c)); the

medical industry (Tenn. Code Ann. § 29-26-

116(a)(3) (bars medical malpractice actions

brought “more than three (3) years after the date

on which the negligent act or omission occurred

except where there is fraudulent concealment on

the part of the defendant, in which case the

action shall be commenced within one (1) year

after discovery that the cause of action exists.”);

corporate officers and directors (Tenn. Code Ann.

§ 48-18-21) (three years “after the date on

which the breach or violation occurred, except

where there is fraudulent concealment on the

part of the defendant, in which case the action

shall be commenced within one (1) year after

the alleged breach or violation is, or should have

been, discovered”); surveyors (Tenn. Code Ann. §

28-3-114) (four years from the date the survey

is recorded on the plat); and those involved in

the sale of securities (Tenn. Code Ann. § 48-2-

122) (two years after the act or transaction

constituting the violation). See 17 John A. Day,

Donald Capparella & John Walker Wood, Tenn.

Prac. Tennessee Law of Comparative Fault § 5:12

(2013 ed.).

5. This is accomplished by a request for a

scheduling order under Rule 16 of the

Tennessee Rules of Civil Procedure.


Day on Torts continued from page 33


I know we all chose this life we

lead, but heck I didn’t know I

would miss the little kids growing

up while I was in school and

working full-time for four years.

From left: Belmont University College of Law, Lincoln Memorial University DuncanSchool of Law, University of Memphis Cecil C. Humphreys School of Law, NashvilleSchool of Law, University of Tennessee College of Law and Vanderbilt Law School.

Last fall, The LawLaunch Project

began following 15members of theClass of 2014 asthey wrap up law

school and prepareto be lawyers. Let’scheck in on whatthey’re saying.Read more at

http://tbalawlaunch.wordpress.com

We will get our lives backnext August.

It can be difficult in the early months and years of law school to know how

to allocate limited time and attention. Some things deserve a little. Some

deserve none. Others deserve as much as they can get — often

more than a busyschedule will allow.

THE LAW LAUNCH PROJECT

our legislative advocacy goals. As youknow, one of my focuses for our asso-ciation this year is building relation-ships with our legislators, andencouraging more lawyers to seekpublic office on the local, state andnational levels. As we can all agree,our legal system and our profession asa whole need more friends in thelegislative branch of our governmentat all levels. While building relation-ships and encouraging our fellowlawyers to seek public office are bothcritically important steps for us totake, it is equally important that weposition ourselves to financially assistthose who are friends of our profes-sion or who would be if elected tooffice. While many of our membershave given to our association’s politicalaction committee, LAWPAC, far morehave not participated. For that reason,your TBA leadership determined that acampaign to raise money for LAWPACwas essential. In order to demonstratejust how critically important webelieve this campaign to be, your asso-ciation officers chose to lead the wayin the campaign by each makingcontributions, at a level equal to orgreater than what we are asking of ourmembers. You will soon receive mate-rials that explain in more detail thepurpose of LAWPAC and the goals forthe campaign. When you do, I hopethat you will join us in financiallysupporting this very worthy cause.

As we celebrate the New Year, Ihope that you share my sense of opti-mism about the positive change wecan achieve on behalf of our justicesystem and those who are without thefinancial means to access it. Now,more than ever, “Together We Make aDifference!”

TBA President CINDY WYRICK practices lawwith Ogle, Gass & Richardson PC in Sevierville.

PRESIDENT’S PERSPECTIVEcontinued from page 3

UPDATE

I think by now most peoplewould agree that the legalindustry is facing some changes.Some may debate the finer points ofhow long this change has been goingon, to what depth it will change, orwhat has caused it … but I think atleast most people would say “thetimes they are a changing.”

I was struck with just how lucky I have

been over the last few years to have had

the opportunity to meet and work with so

many talented people who have

been willing to take the time

to talk with me and help

guide me in the right

direction.

It’s crunchtime. You hope that all ofthe hard work, the long hours,the sacrifices you and your lovedones have madehave prepared youfor that final time atthe plate, that lastswing of the bat.

I believe things are going in the right direction. …

The market looks promising. The goal is to build

self-confidence and trust in others. The rest is to

pass the BAR.

Doing less is a great way to do more, once you know what is important.

The Art of Having ThreeBiological ParentsThe issues surrounding same-sex marriage, surrogacy, second-parent

adoptions, parental rights stemming from in vitro-fertilization and

other forms of assisted reproductive technology (ART) and how these

issues translate from state to state within the U.S. are hot-button

ones in the field of Family Law. The science that facilitates some of

FAMILY MATTERS BY MARLENE MOSES WITH MANUEL BENJAMIN RUSS

these possibilities is advancing daily,and the capability to provide thechance for children to couples, both tosame-sex and heterosexual partners,that never existed before is taking thearea of Family Law into truly unchartedwaters. Another issue, the subject ofthis article, that will further muddythose waters, is the possibility of a childhaving three parents based on DNAcontributions from at least threedistinct people to form the embryo. Inorder to understand the state of the lawin Tennessee and elsewhere, as well asthe science, in layman’s terms, thatmakes this actually possible, a shortoverview of both is required.

The scientific arenas of genetic testingas well as insemination and fertilizationhave been growing for years at an accel-erated speed. It is now possible to tell,from the potential parents of a child, agreat deal of information about the childto be. One item that can be determinedis a child’s proclivity to develop mito-chondrial disease. The mitochondria aresub-parts of human cells that processglucose into energy. In simple terms, themitochondria are the battery packs ofthe cell. Mitochondrial disease occurs inapproximately 1 in 4,000 births in theUnited States and prevents the mito-chondria from properly functioning.This disease usually disrupts organs inthe body that are major users of energy,like the heart, the brain, the kidneys andthe liver. If a person has mitochondrial

disease, it may cause damage to any ofthese organs or others and lead to aplethora of health problems throughoutthat person’s lifetime.

Scientists have hypothesized andconducted experiments to prove that themitochondrial DNA1 that each personpossesses, if determined to be deficientthrough screening, can be substitutedwith that of another, healthy mtDNAdonor. The current technology has beentested with monkeys successfully andallows for the replacement of the defi-cient mtDNA with healthy mtDNA. Thistechnology has been replicated withhuman eggs to create embryos free ofmitochondrial disease in the child, withat least one living as long as eight daysin a laboratory. The complicated processactually involves implanting mtDNAfrom a healthy egg into the core ofanother egg where the deficient mtDNAhas been removed. Consequently, from apotential legal perspective, the futurechild could have mitochondria from oneperson as well as DNA components froma man and a woman all in its makeup.

Where then does this leave the legaldebate and how does this narrow issuefit into the larger debate about donors,surrogacy, intended parents and therights as well as obligations of parents?As most people are aware, the landscapeof the American family has changeddrastically in recent years. The advent ofeffective assisted reproductive technologyhas opened the possibilities for families


… the legal argumentsalter yet again. Whatrights, if any, does a

person donating only aportion of the DNA thatcomposes a child have?

of every configuration, including thosethat would have been previously unable,in the biological sense, to create theirown children. The legal community hasgrappled over the course of the past 20years with an effective way to keep pacewith the scientific possibilities thatnecessarily create the practical realities ofnon-traditional families. The possibilityof a couple, either same-sex or hetero-sexual, to use a surrogate in order tocreate children from their own DNA hasraised serious questions about the law’straditional assumptions regarding who isa legal parent.

A brief set of definitions commonlyused in surrogacy discussions is usefulhere. Intended parents is the term used todefine the couple that is the intendeddestination, legally and practically, of thechild. Also, there are two common typesof surrogacy: traditional surrogacywherein the woman carrying the child isimpregnated with the sperm of thefather, but the intended mother has nobiological contribution and gestationalsurrogacy where both of the intendedparents’ DNA is contributed by use of aninseminated egg that is then implantedin the surrogate. On occasion, there arealso gametes donors, generally someonewho contributes sperm anonymouslyand that DNA is later used for insemina-tion with or without a surrogate for theintended parents. Gametes donors gener-ally do not become involved in the livesof the children that their DNA is used toproduce, but there has been debatesurrounding the subsequent right of achild to later find the gametes donor.

Different jurisdictions had theseissues surrounding surrogacy in anumber of ways and employ differentmethods of insuring that the rights of allof these parties are observed. Somejurisdictions have taken the approachthat the intended parents should hold allparental rights regardless of the biolog-

ical connection or lack thereof, to thechild created. Recently, this logic hasbeen extended to same-sex couples inthose same jurisdictions. Other jurisdic-tions have maintained a more tradi-tional approach that the genetic parentsof a child will also be the legal parentsregardless of the wishes of the intendedparents absent some sort of waiver ofthe rights.

Tennessee in particular has adopted amiddle-ground approach that not onlyconsiders the procreative intent of theparties, but also factors in who the birthparent was and whether there are anyother parties who have claims toparentage of any kind.2 Since there areclearly still disputes between the juris-dictions and simply being the intendedparents is not necessarily a guarantee ofbeing the legal parent of a child, theimplication that the rights of biologicalcontributors of DNA are viable regard-less of pre-conception and pre-birthintent raises more questions regardingthe donation of mtDNA.

The discussion of surrogacy above isonly an analogy to the discussion ofmtDNA. When a surrogate is used withsame-sex couples, and in some instanceswith heterosexual couples, there will beat least one parent who does notcontribute to the child’s DNA or to itsgestation. However, the use of anmtDNA donor would not prohibit theuse of DNA from both a potentialmother and father and, typically, a childwould be carried by the mothercontributing her DNA, not a surrogate.The use of substitute mtDNA is only fora portion of the cell, not a replacementfor the entire sperm or egg. Therefore,the legal arguments alter yet again. Whatrights, if any, does a person donatingonly a portion of the DNA thatcomposes a child have? Will this issuebe handled on a jurisdiction-by-jurisdiction basis as the issue of surro-

gacy has been, or will the contributionof mtDNA be considered a lesser contri-bution than that of using the womb forgestation or actual egg or sperm dona-tion has been?

The United Kingdom has attemptedto address the issues surrounding the useof mtDNA donors and what parentalrights, if any, those persons mightpossess. In the European legal commu-nity, standards have been adoptedregarding the legal implications of tissueand cell donation. These standardssuggest that, in most instances, thedonor would be anonymous and therecipient of the tissue or cells would havefew, if any rights to knowledge of theidentity of the donor, or anything aboutthe person. The corollary being, ofcourse, that by donating tissue or cells,



this does not create a right for the donorto have information about the recipientor control over anything regarding theirdonation. In 2012 in the UnitedKingdom, based on a lengthy debateabout the status of potential mtDNAdonors, the conclusion was reached thatmtDNA donors should be consideredakin to tissue donors and not that ofgametes donors, giving them no signifi-cant rights as parents to the unborn childdespite the potential of being the “third”parent in the creation of the child.

Which direction will the UnitedStates go if and when mitochondrialDNA donation becomes a reality? Obvi-ously, this debate, and its place in thelarger area of assisted reproduction,creates more questions than it immedi-ately answers. The work of lawyers andcourts in the past 20 years has laid thegroundwork for achieving workable andfair solutions to the most personal oflegal issues such as, who is the legalparent of a child.

MARLENE ESKIND MOSES is the principal andmanager of MTR Family Law PLLC, a family anddivorce law firm in Nashville. She is a past pres-ident of the American Academy of MatrimonialLawyers. She has held prior presidencies withthe Tennessee Board of Law Examiners, theLawyers’ Association for Women and theTennessee Supreme Court Historical Society.She is currently serving as a vice president ofthe International Academy of MatrimonialLawyers. The Tennessee Commission on Contin-uing Legal & Specialization has designatedMoses as a Family Law Specialist; she is boardcertified as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor ofarts from Johns Hopkins University, a master ofarts from University College London, and a lawdegree from the Emory University School of Law.He is in private practice in Nashville focusingprimarily on criminal defense.

Notes1. This is often noted in the literature with

the acronym mtDNA.

2. In re C.K.G. 173 S.W.3d 714 (Tenn.

2005).

Family Law continued from page 37


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There Ought to Be a Law

THIS YEAR’S CONTEST THEMEHow often have you said or heard it said, “There ought to be a law …”? If you could put a lawinto place or take an existing law off the books, what would it be? Don’t just complain about thestate of things; learn about the process of implementing a law and propose a change.

Middle and high school students are invited to participate in the Tennessee Bar Association’s4th Annual YouTube Video Contest and create a 3-minute video that explores this issue. Somekey questions to consider include the following:

• What is the problem that needs a legislative solution?• What is your solution? Be as detailed as possible.• Background information: the rationale, research, personal experience and evidence relating

to your proposal.• Are you aware of similar legislation previously introduced in Tennessee or in other states?

If so, you may want to mention it and include outcome of the legislation.• Please describe any costs or benefits that may be associated with your proposal. (Consider

financial expenses, savings or revenue, health, social, environmental or other impacts.)• Who do you think would support the bill? Who do you think would oppose the bill? (Consider

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For contest rules and entry form visithttp://www.tba.org/programs/the-tba-youtube-video-contest

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Video Contest

Remembering Two Great TeachersOne taught us law. The other taught us grace. And those of us blessed

to practice law need to learn as much as we can about both topics.

The law professor was Don Paine. His gracious and grace-filled

colleague was John Smartt. They were proud, first generation

lawyers, colleagues and close friends. And they died within just a

BUT SERIOUSLY FOLKS BY BILL HALTOM

few days of each other last November. I first met Don Paine 35 years ago

when I took the Crossley Bar ReviewCourse. I took the course to help mepass the Bar Exam, and it worked.

But I got a lot more out of theCrossley Bar Review Course than my lawlicense. For the first time, I began toactually learn the law.

Don taught me more law in threeweeks in the Bar Review Course than Ihad learned in three years of law school.

I had somehow managed to obtain alaw degree without also obtaining apractical working knowledge of the law.I’ll be the first to admit that this wasmore of an indictment of me than it wasof my law professors. As a first genera-tion law student, torts, civil procedure,Constitutional law and evidence were allforeign subjects to me.

But in Professor Paine’s bar reviewclass, the law suddenly began to makesense to me.

Don’s approach to the law wasn’tesoteric, philosophical or abstract. It waspractical. Imminently practical.

And not only was it practical, it wasfun. Like all great trial lawyers, Don wasa great storyteller, and he illustrated therules of law with great stories about howthey were applied (or not applied!) inTennessee courtrooms.

My legal education from Don didn’tend with the bar review course. After thecourse was over and I passed the Barand hung out my shingle, I kept going

back to Don’s classroom. Don’s classrooms were found all over

the state in CLE programs, including themarvelous Tennessee Law Institute.

And perhaps his best “classroom”was found each month on a page or twoin the Tennessee Bar Journal in his “Paineon Procedure” column.

But great teachers do not confine theirteaching to the classroom. They teach intheir friendships with students. Over theyears, I was blessed to develop a friend-ship with Don and have him teach me lawnot only in lectures or columns, but overmany nice beers from local breweries.Don was not only Tennessee’s leadingauthority on the law of evidence. He wasthe Volunteer State’s top expert on beer.

And like all good professors, Donwas available for student conferences.Like so many Tennessee lawyers, when Ihad a question of law that needed to beaddressed, I would just call Don at hisoffice. He never failed to take my call.Not once. And I never met a Tennesseelawyer who had an unanswered call toDon Paine.

I met John Smartt in 1981, when Iattended my very first Tennessee BarConvention. John was serving as“emcee” of the UT Law School AlumniBreakfast, just as he did each year.

John was the perfect host for theevent because he was a proud graduateof the University of Tennessee College ofLaw and a proud lawyer.


I had somehow managedto obtain a law degreewithout also obtaining

a practical workingknowledge of the law.


A member of the greatest generation,John was one of the many veterans whocame to “The Hill” in the late 1940s toattend law school on the GI Bill.

After receiving his law degree in1948, John was UT Director of AlumniAffairs from 1948 to 1969. And in 1972,John teamed up with his friend Don tocreate the Tennessee Law Institute,serving as its coordinator and “chiefmarketer” from 1972 to 1988.

I have met few people who enjoyedlife as much as John Smartt did. He wasa runner, a swimmer and a biker longbefore folks ever heard of triathlons.

For more than 30 years, hecompeted in the Senior Olympics at thedistrict, state and national levels. And hedidn’t just compete; he won. In 1995, atthe youthful age of 76, he took fifth

place in his age group at the SeniorOlympic Games in San Antonio. A yearlater, he was chosen to carry theOlympic torch through the streets ofKnoxville as it passed en route to Atlantafor the Summer Games.

And John didn’t just run and swim.He also took the time to walk, leadingwildflower hikes in the Great SmokyMountains.

John loved to sing. In his 90s, heformed a barber shop quartet thatperformed a capella concerts at seniorcitizens homes across East Tennessee.

We UT grads like to talk about “thespirit of The Hill.” John Smartt personi-fied that spirit more than any man Iever met. John was a powerful personnot because he sought power, butbecause he transferred power to others.

He was a kind, selfless person, whobragged about you and everyone buthimself, and in the process, he made usall feel special.

Don and John were quite a team inthe Tennessee Law Institute and in theirsupport and friendship for Tennesseelawyers.

From Don, we learned all aboutTennessee law. And from John, welearned to love and cherish life in general,and a life in the law in particular.

We were all so blessed to share theirlives of law and grace.

BILL HALTOM is a partner with the Memphisfirm of Thomason, Hendrix, Harvey, Johnson &Mitchell. He is past president of the TennesseeBar Association and is a past president of theMemphis Bar Association.

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pro bono in your futurejan 01, 2019 · cover story 12 pro bono in your future this simple guide...

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