Memphis Lawyer Volume 34 Issue 1

the magazine of the Memphis Bar Association

Vol. 34, Issue 1

Cover story:

Mental Health Court: Just the Right Thing to Do for My Community THIS ISSUE:

The Solo Practitioner and Involuntary, Emergency Detentions in Tennessee

Conservatorships for the NonProbate Lawyer

Littler Mendelson FTA Program Provides Flexibility, Career Advancement

MOST FINANCIAL COMPANIES ARE INTERESTED IN YOUR MONEY. WE’RE INTERESTED IN YOUR FUTURE.

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Volume 34, Issue 1

FEATURES 8

Cover story: Mental Health Court: Just the Right Thing to Do for My Community

12

The Solo Practitioner and Involuntary, Emergency Detentions in Tennessee

16

Conservatorships for the Non-Probate Lawyer

18

Littler Mendelson FTA Program Provides Flexibility, Career Advancement

20

Using Macros in Microsoft Word

22

Memphis Chapter of the American Inns of Court Achieves Coveted Platinum Status

24

Another Grand Adventure

25

Unity in Diversity: A Stride in the Direction of Change

26

2016 AWA Annual Banquet

BY JUDGE GERALD SKAHAN AND KIM DAUGHERTY

BY BRANDI LYNN HEIDEN

BY CHASITY SHARP GRICE

BY AMBER ISOM-THOMPSON

BY SEAN ANTONE HUNT

BY DAVID COOK

BY DAWN CAMPBELL

COLUMNS 6

President’s Column

28

Memphis Bar Foundation in Practice: Summer Law Intern Program

30

CLC: Trump’s Defeat in Immigration Ban a Preview of Legal Battle to Come

32

MALS Corner: A Journey To Give Back To Memphis

BY DEAN DECANDIA

BY QUINTON E. THOMPSON AND MICHELLE KIMBRIL-PARKS

BY STEVEN J. MULROY

BY IRWIN A. MAGEVNEY

DEPARTMENTS 34

The Court Report

42

People in the News

46

Classified Advertisements

BY DEAN DECANDIA, CHARLES “BO” SUMMERS AND STEPHEN LEFFLER

3

MEMPHIS LAWYER

2016 MBA Officers

the magazine of the Memphis Bar Association

MBA Publications Committee Stephen R. Leffler, Chair Preston Battle Karen Campbell Dean DeCandia Chasity Grice Nicole Grida Sean Hunt Harrison McIver Jared Renfroe Jacob Strawn Charles “Bo� Summers Ellen Vergos Christy F. Washington

The Memphis Lawyer is a publication of the Memphis Bar Association, Inc. that publishes six times each year. The publication has a circulation of 2,200. If you are interested in submitting an article for publication or advertising in an upcoming issue, contact Katherine Newsom at 527.3573; knewsom@memphisbar.org The MBA reserves the right to reject any advertisement or article submitted for publication.

Dean DeCandia President

Mike Adams Jeremy Alpert Megan Arthur Graham Askew David Bearman Sherry Brooks Lara Butler Leslie Coleman Amber Floyd Nicole Grida Jennifer Hagerman Doug Halijan Jonathan Hancock Earl Houston

www.memphisbar.org

4

Annie Christoff

Secretary/Treasurer

Shea Sisk Wellford Past President

Sean Antone Hunt Steve Leffler Gigi Gaerig McGown Jim Newsom Lisa Overall Jill Steinberg Alex Wharton Section Representatives Anne Davis Chasity Grice Mary Hamm Mike Mitchell Jennifer Sisson Kathy Steuer

ABA Delegate Lucian Pera AWA Representative Laquita Stokes Law School Representative Elizabeth Rudolph NBA Representative Kevin Bruce YLD President Adam Johnson

MBA STAFF

Anne Fritz

145 Court Ave. Suite 301 Memphis, TN 38103 Phone: (901) 527-3573 Fax: (901) 527-3582

Vice President

2017 Board of Directors

Executive Director

The Memphis Bar Association

Earle Schwarz

Lesia Beach

CLE/Sections Director

Charlotte Gean

Executive Assistant/ Membership Coordinator

Katherine Newsom Communications and Membership Director

INSIGHT BEYOND NUMBERS

the

ACCOUNTING & FINANCIAL REPORTING

D UE DILIGENCE / QUALITY OF EARNINGS

FORENSIC ACCOUNTING & FR AUD INVESTIGATIONS

BUSINESS FORMATION, GROWTH, & EXIT STRATEGIES

FAMILY LAW – FINANCIAL & TA X ANALYSIS

MERGERS & ACQUISITIONS

BUSINESS VALUATIONS

FEDERAL, STATE & LOCAL TAX CONTROVERSIES

SHAREHOLDER / PARTNER CONTROVERSIES

BUSINESS CONTROVERSIES

FEDERAL, STATE & LOCAL TAX COMPLIANCE & PLANNING

STRATEGIC PLANNING

9 0 1 . 7 6 1 . 3 0 0 3 • T H E M A R S T O N G R O U P. C O M

PRESIDENT'S COLUMN

by DEAN DECANDIA

This Is Your Brain on the MBA

T

he MBA even may save your life (by helping you feel less “scrambled”).

I know that sounds extreme. But what if you donated just a little of your time to MBA efforts? What if your volunteering with the MBA became an energizing escape from the daily grind of work and family, in which you established meaningful connections with others who share common goals and interests? What if those connections offered relief of stress, anger and anxiety, lessened the harm of those physical emotions, and thereby reduced the risk of disease?

In this issue, we explore mental health in the courts.

The articles that follow remind us of the responsibilities that we have in the legal system to ensure that the mentally ill receive equal justice.

But what about your mental health? We have all heard evidence regarding the high rates of depression, substance abuse and suicide in our profession. The statistics remind us that mental issues don’t only affect clients. They affect us. So while we are working tirelessly to save our clients, we must also take regular steps to save ourselves. One way we can do that is to find activities that give us alternative points of focus, strengthen our ties to the community, broaden our support networks, and bring us fun and fulfillment.

Studies 6

have

shown

connections

between

volunteering and improved health, both mental and physical. Researchers have found consistently that volunteering can lead to greater self-esteem, life satisfaction and sense of purpose. Volunteering has been associated with lower rates of depression, increased wellbeing, and lower mortality rates. MRI tests have even shown a “helper’s high” among those who volunteer.

If you resolve to enrich your mental health (and don’t we all), the MBA offers all of these benefits. By serving on a committee, teaching a seminar, or participating in a legal aid clinic, you can draw upon the same legal expertise that you use every day to serve the bar and greater community. In other words, there is no need to familiarize yourself with a new skill or nonprofit area.

Furthermore, most our activities are short-term. So your willingness to help does not mean overcommitting yourself. Finally, the variety of efforts that we undertake offers you choices through which to tailor your interests.

The MBA recognizes that service is more rewarding when it feels like a hobby rather than a chore.

Here are just a few of the committees and projects that can use your help: Access to Justice Committee: provides pro bono opportunities, namely the Saturday Legal Clinic (2nd Saturday of each month at the Benjamin Hooks Library) or the weekly clinic at the courthouse;

Legal Fee Dispute Committee: serve on a panel to hear fee disputes between attorneys and clients and render a decision; Publications: write an article for this magazine; Summer Law Intern program: host a minority high school student at your firm for four weeks in the summer; Wellness committee: help organize the annual John Dice Seminar, which covers lifestyle topics such as fitness, nutrition and substance abuse; Sections: Join a section that centers on your area of practice, and draw upon the knowledge and wisdom of practitioners in your field.

Please contact me if you would like to get more involved with the MBA. Your life (at least your lifestyle) depends on it. t dean.decandia@usdoj.gov (901) 969-2944

The New Standard In Mediation In the world of mediation, experience is vital. That’s why Memphis Mediation Group was established. John R.Cannon, Jr., Michael G. Derrick, and Frank S. Cantrell are each Tennessee Rule 31 Listed General Civil Mediators with decades of combined state and federal litigation and mediation experience. With their deep backgrounds and continual proven success, John, Mike and Frank are setting the new standard for mediation in Tennessee.

Schedule a case with Memphis Mediation Group at

901-259-5915

7

MENTAL HEALTH COURT: Just the Right Thing to Do for My Community

By JUDGE GERALD SKAHAN, Division 9 General Sessions Court, Shelby County and KIM DAUGHERTY, LMSW, Mental Health Court Coordinator, Shelby County

T

he numbers of persons with untreated and undertreated mental health needs in our jails can’t be ignored. An increasing number of individuals in jails, prisons, and community correction settings have mental and substance use disorders or co-occurring disorders that present significant challenges in providing effective services. [1] Studies indicate that 60%-87% of justice-involved individuals have co-occurring mental health and substance abuse disorders. [2] To address the overwhelming and growing need for additional ways to address the increasing number of arrestees with severe and persistent mental health needs, the Shelby County Tennessee Mental Health Court (MHC) was established in January 2016. On any given day, there are approximately 550 persons with a mental health diagnosis in the Shelby County Jail system. Shelby County Jail often serves as a detoxification facility for arrestees. Shelby County Jail is also the largest institutional provider of behavioral health supports in the state of Tennessee, offering psychiatric services including access to psychiatrist and psychotropic medication and providing support groups. Upon entering the jail many receive these needed supports for the first time in years. MHC is the most recent strategy developed by the community to meet this challenge.

When approached in the spring of 2015 regarding forming a mental health court in Shelby County, I knew it was the right thing to do for my community.

My experiences as a criminal defense attorney left me with decades of knowledge about how the intersection of poverty, substance abuse, and untreated/undertreated behavioral health issues could damage a person. By the time I met many defendants, they had failed in so many of the systems meant to help them that jail was their only safety net. Their lives were out of control, and there was no other system left to offer help. Later in the summer of 2015 I met Kim Daugherty. Kim describes herself as an old social worker. I encourage her to use the term experienced. Kim left a job she loved to join me in creating the court by filling the role of Coordinator of MHC. 8

She had been serving as the executive director of Friends For Life, a nonprofit organization supporting people living with HIV/AIDS, for several years. Prior to that, she worked for the State of Tennessee many years, most notably as a significant contributor to the development of a statewide case management system for persons with intellectual disabilities. Like me, she saw great value in the creation of the MHC for our community. Anyone who has heard me speak about MHC has heard me say, “Credit for building MHC goes to Kim; I could not have done it without her.”

As we endeavored to form the Shelby County MHC, we learned about the behavioral health system, formed partnerships with community based service providers, sought out partners in the justice system, and planned a systematic approach to one person at a time for the people we would meet with very complex problems. The MHC is built on principles and methods of person-centered planning. We have sought to strengthen each person we have met and help them on the path of acquiring health, while maintaining the belief that public safety is best achieved when we are all our best selves.

We have a robust system of crisis intervention in Shelby County, which diverts persons experiencing behavioral health incidents directly to communitybased behavioral supports providing an alternative to incarceration. Should a person be determined to be in need of emergency committal, Shelby County works with Memphis Mental Health Institute to assure that ready access is able to provide this support. “A mental health court is a specialized court docket for certain defendants with mental illnesses that substitutes a problem solving model for traditional criminal processing. Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed jointly by a team of court staff and mental health professionals. Incentives reward adherence to the treatment plan or other court conditions, non-adherence may be sanctioned,

and success or graduation is defined according to predetermined criteria.” [3] The MHC’s mission is to serve persons who are severely and persistently mentally ill with services that reduce recidivism to incarceration, reduce days of psychiatric hospitalization, and reduce number of days incarcerated for persons participating in the court. A community change model was used in the creation of MHC. The community change model used in the design of the mental health court ensures a sense of ownership of all involved in the court, gives confidence to each team member in fulfilling their unique role, and removes any confusion about participant goals.

During the planning phase of implementation of MHC we determined our mission and what outcomes were to be tracked and data to be gathered. Eligible participants are persons with severe and persistent mental illness who have been charged with a nonviolent misdemeanor crime that can be attributed to mental illness and who do not have a history of violent criminal behavior. Participants will be assessed to be at high risk, have prognosticated risk of poorer outcomes in standard rehabilitation programs, and have high criminogenic needs. Risk is determined by administering the Ohio Risk Assessment System (ORAS). Referrals to the MHC are made to the Mental Health Court Coordinator by judges, treatment providers, attorneys, the Public Defender’s office, Pretrial Services Counselors, family members, and other interested parties.

An attorney for the applicant (or other referral source) submits the MHC referral form to the MHC Coordinator.

The District Attorney’s office is then consulted to screen potential participants’ applications by reviewing current charges, facilitating interstate and national background checks, if needed, and requesting input of supervision concerning from previous probationary supervisions.

Once screening is complete, the defense attorney and prospective participant are contacted to confirm continued willingness to participate in the program and given extensive information about treatment and behavioral expectations. After the prospective participant receives this information and states a willingness to comply with the requirements of MHC, the Coordinator brings forward the referral to the MHC team to determine admission status at MHC team staffing.

All persons are offered a choice between MHC and the traditional court system. The offender is given the opportunity to discuss the case with an attorney prior to voluntarily entering the program. Once the applicant has been approved for admission, the opportunity is given to

review all documents and paperwork required for entry, including the consequences of a plea or waiver, with an attorney. Prior to pleading into MHC, all persons sign the participant’s performance contract and are provided information regarding the phases of Mental Health Court. Participants are fully informed of all program requirements and what is required to be successful in MHC prior to pleading into the court.

Mental Health Court is a four phase program designed to assist a participant in acquiring health and sobriety over a yearlong participation in treatment, community based support meetings, case management, and supervision.

During all phases, participants are given freedom of choice when there are multiple sources of programs that meet their needs. The Addiction Severity Index – Lite is administered to all participants. Participants also selfidentify needs through an interview process with their case manager. At a minimum the following areas are assessed: mental health, substance abuse, medication management, housing, transportation, benefits, and additional medical supports. When a participant identifies a need they are introduced to appropriate service providers available through a network of resources. Professional service providers conduct assessments and provide services to meet individual needs.

Phase I consists of stabilization and orientation to the MHC and lasts four weeks. The participant completes program orientation and all required treatment (individual and group counseling) sessions in accordance with the recommended level of care and the treatment plan. The participant also receives an initial assessment to evaluate basic case management needs. The primary focus of Phase I is the attainment of needed medications, acquiring financial support, and identifying stable housing. Supervision requirements are at a minimum of four times per month at times and locations determined by the case manager. The participant may be required to maintain curfew throughout this phase. Travel outside of the county is not allowed during Phase I, and the participant cannot change residences without first advising the case manager. Random drug testing occurs at least weekly during this phase.

Phase II is a period of intensive treatment and is anticipated to last a minimum of twenty-four weeks. The treatment requirements in Phase II are similar to those in Phase I with additional requirements of participating in evidence-based interventions that support recovery and address criminogenic needs as part of the treatment plan.

Participants may be required to attend up to two support 9

meetings of their choice per week and show evidence of this in court at each appearance. Support meetings may be Alcoholics Anonymous, Narcotics Anonymous, Double Trouble, and/or other pro-social support activity such as parenting classes. Everyone is offered nonsecular and secular options to meet their support needs. Participants meet with their MHC case manager as needed, and according to his/her case management plan while adhering to supervision requirements of meeting four times per month. Frequency of required supervision and court review may be adjusted based on progress or lack of progress of the participant in meeting the treatment plan and maintaining sobriety. There may continue to be curfew requirements in this phase, travel outside the county continues to require preapproval, and participants may not change residences without consulting with their case manager. Participants must attend the court review weekly. The participant must maintain compliance with court orders and be sanction-free for a minimum of sixty days prior to promotion to Phase III. Random drug testing continues to occur at a minimum of once a week.

Phase III is a time to develop healthy living skills and is anticipated to last twenty weeks. Treatment requirements are similar to Phase II. There is added emphasis on community support meetings in this phase.

The participant may be required to attend a minimum of three community support meetings per week. In this phase, the goal is to establish recovery behaviors that the participant will continue using after the completion of the MHC program. MHC participants are matched with program and support locations that can be easily accessed in their community. The participants meet with the MHC case manager as needed, according to his/ her Case Management Plan and have four supervision meetings. Travel and residency changes continue to require pre approval. Persons attend court hearings once every two weeks. The participant must maintain compliance with court orders and be sanction-free for a minimum of ninety days prior to promotion to Phase IV. Random drug screenings continue to occur weekly at a minimum. Frequency of required court reviews and drug testing maybe adjusted based on progress or lack of progress of the participant on meeting the treatment plan and maintaining sobriety.

Phase IV is a time for transition to aftercare. It is anticipated to last four weeks. The participant continues in treatment as denoted by the recommended level of care and prescribed in treatment plans. Community support meetings are required up to three per week. Meetings 10

with the MHC case manager are as needed while adhering to supervision requirements of two supervision meetings monthly. Persons in this phase receive random drug screens one time weekly. Prior to graduation from the program, the participants develop a transition plan to community services and supports needed to maintain mental health and sobriety. Participants attend status reviews with the court one time during this period. They must maintain compliance with court orders and be sanction-free for a minimum of one hundred and twenty days prior to graduation from MHC. Participants are discharged from the program three ways: graduation, withdrawal, and involuntary discharge. Successful participants are discharged via program completion. They graduate! Upon meeting all requirements for graduation, the participant and their family are invited to a graduation ceremony where all our team members recognize them for completing the program. The final case disposition is dependent upon the original plea into the Court and is most often followed by an expungement of the charge. As Mental Health Court is voluntary, participants may voluntarily withdraw from the program at any time. All requests of withdrawal are discussed with the Coordinator to assure they are fully aware of all ramifications of the decision. If the participant voluntarily leaves the program, the participant will be sentenced immediately based on their original plea into MHC. Persons may also be involuntarily discharged from the program for non-compliance or new criminal charges. The District Attorney’s office may file a motion seeking an order for revocation. The attorney for the participant represents them during any revocation proceedings. As the Judge, I make the final decision regarding termination. In case of revocation from the Mental Health Court, those who do not successfully complete MHC cases are disposed of with the defendant’s exposure limited to that which was stated under the original negotiated sentence. Persons who withdraw or who are involuntarily discharged are welcome to reapply for MHC. There were wins and losses during the first year of operation of Shelby County MHC. A few of the first participants recently graduated, and participants have reported significant life changes. One participant reported the daily use of illegal drugs for years to relieve symptoms of mental illness and had been involved in a succession of thefts. Their condition was such that they were nearly unable to interact with us due to overwhelming anxiety and could not comfortably sit in the courtroom with

others without experiencing an anxiety attack. To address these issues, community-based resources were identified for behavioral therapy, psychiatric services, medication management services, and community support groups.

With this assistance, the participant was able to end the use of illegal drugs and to find stable housing. After graduation, the participant continues to attend mental health support groups and to receive psychotropic medication.

R. H. Peters, J. Kremling, N. M. Bekman, & M. S. Caudy, “Cooccurring disorders in treatment-based courts: Results of a national survey,” Behavioral Sciences & the Law 30 (2012): 800-820.

What we learned in the first year of MHC is that there is more to learn, we need more partners in our community who are comfortable treating persons who are severely mentally ill and addicted to drug and/or alcohol, and MHC is a marathon - not a sprint. Continued learning on the appropriate care and treatment for MHC participants is critical, as well as a better understanding of what quality care looks like, what less than quality care looks like, and how to ensure accountability among providers is needed. Finding professional and competent care for persons who are unstable mentally and struggling with an addiction is difficult and capacity must be identified. If Mental Health Court is to succeed we must commit to being there for our participants for the months of recovery while they are in court and after graduation. We recognize that recovery is a lifelong process. It is a linear and multi-faceted event in a person’s life. Recovery will not be fully accomplished in a year while a person participates in Mental Health Court. We see our work as helping people find their path in a way that serves justice. There will be relapses and their mental health will become unstable. Although we have helped them plan for that, if it were just that easy to find your way to recovery we would have never meet any of the participants. We ask they call on us should they find themselves unstable again at any point. I tell participants to come back to court, call the Mental Health Court Coordinator, or drop into the Mental Court Case Manager’s office anytime. We will be there to connect them to the resources they need to assure our jail never again becomes their safety net. Incarceration should not be needed to enter the behavioral health system. t

Doris J. James & Laura E. Glaze,” Special Report: Mental Health Problems of Prison and Jail Inmates,” U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Washington DC 20531 (2006).

Notes: 1. Jacques Baillargeon, “Risk of Incarceration Among Prisoners with Cooccurring Severe Mental Health and Substance Use Disorders,” Administration and Policy in Mental Health and Mental Health Services Research 37 (2010) (4): 367-374.

Doris J. James & Laura E. Glaze,” Special Report: Mental Health Problems of Prison and Jail Inmates,” U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Washington DC 20531 (2006).

Arthur J. Lurigio, “People with Serious Mental Illness in the Criminal Justice System Causes, Consequences, and Correctives,” The Prison Journal supplement to 91 (3) (2011): 66S-86S.

2. Karen Abram and Linda A. Teplin, “Co-occurring disorders among mentally ill jail detainees: implications for public policy,” American Psychologist 46 (10) (1991): 1036-1045.

Karen Abram, Linda Teplin, & Gary McClelland, “‘Comorbidity of Severe Psychiatric Disorders and Substance Use Disorders Among Women in Jail,” American Journal of Psychiatry 160 (2003): 1007–1010.

J. A. Chiles, E. Von Cleve, R. P. Jemelka, & E. W. Trupi, “Substance abuse and psychiatric disorders in prison inmates,” Hospital and Community Psychiatry 41 (1990): 1132–1134.

Arthur J. Lurigio, “People with Serious Mental Illness in the Criminal Justice System Causes, Consequences, and Correctives,” The Prison Journal supplement to 91 (3) (2011): 66S-86S. R. H. Peters, J. Kremling, N. M. Bekman, & M. S. Caudy, “Cooccurring disorders in treatment-based courts: Results of a national survey,” Behavioral Sciences & the Law 30 (2012): 800-820.

H. J. Steadman, R. H. Peters, C. Carpenter, K. T. Mueser, N. D. Jaeger, R. B. Gordon, & C. Hardin, “Six steps to improve your drug court outcomes for adults with co-occurring disorders,” National Drug Court Institute and SAMHSA’s GAINS Center for Behavioral Health and Justice Transformation (2013).

3. Adapted by Henry J. Steadman from Henry J. Steadman, Susan Davidson, and Collie Brown, “Mental Health Courts,” Psychiatric Services 52 (2001): 457-458.

Bios: For 23 years, Judge Gerald Skahan was a Criminal Defense Attorney. He spent 19 years as a sole practitioner and 4 years as the head of the Shelby County Capital Defense Team.

Judge Skahan was a trial lawyer specializing in First Degree Murder and Death Penalty trials. In 2014, Judge Skahan was elected to the bench and now serves as the Judge of Division IX of General Sessions Criminal Court. In January 2015, Division IX opened the first Mental Health Court in West Tennessee.

Kim Daugherty, LMSW, currently serves Shelby County as its Mental Health Court Coordinator.

Prior to taking this position she was the Executive Director of Friends For Life, one of the largest providers of services to person living with HIV/ AIDS in the southern United States. She worked with persons with severe intellectual and physical disabilities nearly 20 years. Serving as the State of Tennessee’s, Director of Program Operations, Division of Mental Retardation.

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THE SOLO PRACTITIONER and Involuntary, Emergency Detentions in Tennessee

By BRANDI LYNN HEIDEN

A

s a solo practitioner, I was recently approved to be on the panel for judicial hospitalization contracts in Shelby County, Tennessee. Being a new attorney, and not familiar with mental health law, it was necessary that I familiarize myself with state and federal laws that govern involuntary commitments; as well as, familiarize myself with any significant case law on the same.

This article is a quick summary of what I feel would be helpful to the new lawyer who may have a desire to join the panel.

Mental illness alone creates no barrier to an individual’s right to liberty. When a mentally ill person’s right to liberty is threatened with involuntary commitment, the due process rights of that individual are considered to be as equally sacrosanct as the sane individual.

In O’Connor v. Donaldson, the 1975 landmark decision regarding mental health and involuntary commitments, the U.S. Supreme Court held that “a finding of mental illness cannot alone justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. O’Connor v. Donaldson, 422 U.S. 563 (1975).

Assuming that the term can be given a reasonably precise content and that the mentally ill can be identified with reasonable accuracy, there is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.” Id at 575.

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Involuntary, Emergency Detention in Tennessee In Tennessee, involuntary, emergency detention is governed by Tenn. Code Ann. § 33-6-401 which reads: IF AND ONLY IF (1) a person has a mental illness or serious emotional disturbance, AND, (2) the person poses an immediate substantial likelihood of serious harm under § 33-6-501 because of the mental illness or serious emotional disturbance, THEN (3) the person may be detained under § 33-6-402 to obtain examination for certification of need for care and treatment.

Deprivation of Individual’s Right to Liberty Involuntary commitment, like involuntary confinement of an individual for any reason, is a deprivation of that individual’s right to liberty. Specht v. Patterson, 386 U.S. 605, 608 (1967); State v. Phillips, 968, S.W. 2d 874, 879, (Tenn. Crim. App. 1996); Vickroy v. Pathways, Inc. W2003-02620-COA-R3-CV. 2004 WL 3048972 (Tenn. Ct. App. Dec. 30, 2004).

Clear and Convincing Evidence The courts may not, therefore, order involuntary commitment without according the individual all the due process rights that apply when his constitutional rights are threatened, including requirement that the necessity of confinement be proven by clear and convincing evidence. State v. Groves, 735 S.W.2d 843, 846 (Tenn. Crim. App. 1987).

Substantial Likelihood of Serious Harm Tenn. Code Ann. § 33-6-501 defines “a substantial likelihood of serious harm” under the following circumstances: IF AND ONLY IF, (1)(A) a person has

threatened or attempted suicide or to inflict serious bodily harm on the person; OR, (B) the person has threatened or attempted homicide or other violent behavior; OR, (C) the person has placed others in reasonable fear of violent behavior and serious physical harm to them; OR, (D) the person is unable to avoid severe impairment or injury from specific risks, AND (2) there is a substantial likelihood that the harm will occur unless the person is placed under involuntary treatment; THEN, (3) the person poses a “substantial likelihood of serious harm.”

Certificate of Need for Emergency Diagnosis, Evaluation and Treatment If the person is detained under Tenn. Code Ann. § 336-402, then “the physician, psychologist, or designated professional shall immediately examine the person and decide whether the person is subject to admission to a hospital or treatment resource under Tenn. Code Ann. § 33-6-403. If the person is subject to admission, then the physician, psychologist, or designated professional shall complete a certificate of need for such emergency diagnosis, evaluation and treatment. Tenn. Code Ann. § 33-6-404(2) and (3)(B)(i) and (ii).

Emergency Treatment Only Emergency treatment does not include any treatment that will render the defendant unable to participate in probable cause hearing inclusive of any treatment that would make the defendant unable to consult with counselor to prepare a defense in proceedings for involuntary care and treatment. Tenn. Code Ann. § 336-415.

Notice of Emergency Involuntary Commitment The chief officer of the treatment facility shall notify the judge of the general sessions court where the hospital or treatment resource is located providing the information from the certificates of need and any other information bearing on the condition of the person.

Tenn. Code Ann. § 33-6-413. An Ex Parte Order to Hold Defendant for Emergency Diagnosis, Evaluation, and Treatment will also be entered with the court. Tenn.

Code Ann. §33-6-413(b).

Right to Probable Cause Hearing A probable cause hearing shall be held within five (5) days from the date of the order, excluding Saturdays, Sundays and holidays. Tenn. Code Ann. § 33-6-422.

Notice of Probable Cause Hearing and Defendant’s Rights Subsequently, the general sessions court will provide notice of the probable cause hearing and an outline of the defendant’s rights, inclusive of, but not limited to: (1) the right to counsel, and to appointed counsel, if indigent, Section 33-3-608; (2) the right to waive the probable cause hearing, Section 33-6-420; (3) the right to waive defendant’s own presence at the hearing, Section 33-3-612(b); (4) the right to accept the doctor’s testimony by deposition or affidavit, Section 33-3615(a); (5) the right to confront and cross-examine witnesses at the hearing; and (6) the right to be protected from self-incrimination.

No Probable Cause If there is no probable cause to hold the defendant, the court will dismiss the complaint and order that the defendant be immediately released from custody under Tenn. Code Ann. § 33-6-423.

Probable Cause Found When there is a finding of probable cause based on the evidence presented at the hearing, the court will enter an order directing that the defendant be held pending a hearing for involuntary commitment under Tenn. Code Ann. § 33-6-500.

Involuntary Commitment and Change in Legal Status When involuntarily committed, the defendant’s legal status will change as follows: (1) the defendant will be prohibited from purchasing a firearm pursuant to Tenn. Code Ann. § 39-17-1316; (2) the defendant will be prohibited from obtaining a handgun permit pursuant to Tenn. Code Ann. § 39-17-1351; and (3) the defendant’s current handgun carry permit will be suspended or revoked pursuant to Tenn. Code Ann. § 39-17-1352.

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Right to an Appeal Under Tenn. Code Ann. § 39-17-1316 the defendant will have the right to appeal the prohibition against purchasing a firearm. The defendant will also have a right to appeal the denial of a handgun carry permit pursuant to Tenn. Code Ann. §§ 39-17-1352, 39-17-1353, and 39-17-1354.

Recent Case Law - Involuntary Commitment in Tennessee No Justification for Involuntary Commitment when Risk of Harm is Financial Injury Alone In Hartman, the trial court ordered a sixty-eight year old army veteran to be involuntarily hospitalized because it found that he suffered from a mental illness that rendered him unable to avoid severe impairments or injury from specific risks.” Director, TVHS, Murfreesboro Campus v. Lawrence Hartman, M2013-01141-COAR3-CV, (Tenn. Ct. App. January 23, 2014). When asked to describe with particularity the injuries and risks, the staff psychiatrist explained that the defendant was easily confused by the actions of other people and was extremely vulnerable to financial injury as a result of fraudulent actions by others.” Id. at 2.

“Same” Physician Must Examine Personally and Sign Certificate of Need The Vickroy court found that the use of “the” preceding the phrase “physician, psychologist, or designated professional” in both subsections (2) and (3) of Tenn.

Code Ann. § 33-6-404 indicates that the same physician, psychologist, or designated professional is expected to examine the person, decide whether the person should be admitted for treatment, and also complete the certificate of need. Vickroy v. Pathways, Inc. W2003-02620-COAR3-CV. 2004 WL 3048972 (Tenn. Ct. App. Dec. 30, 2004). In this case, the defendant physician signed a certificate of needs for emergency admission under Tenn.

Code Ann. § 33-6-103(c) when he had not personally examined Vickroy, but rather, relied on the prior physician’s examination, who was no longer on duty. Id at *1-2.

The Vickroy court also pointed out that under Tenn. Code Ann. § 33-4-108 (b) “the execution of a certificate concerning the mental conditions of a person by a professional who has not personally observed and examined the person is a Class E felony. Id. Non-Emergency Treatment - Violation of T.C.A. § 33-6-415

The Court of Appeals stated that the statutory purpose of “specific risks” as outlined in Tenn. Code Ann. § 33-6-501(1)(D) without further elaboration as to the nature of those risks, is necessarily ambiguous, calling it the “catch-all” provision - the designee of those situations that do not fit neatly into the categories of suicide, homicide, violence or threat, but nonetheless, present dangers of sufficient magnitude to justify confining an individual against his will. (citations omitted).

In Abeyta, the plaintiff brought suit against Parthenon alleging medical malpractice and negligence per se, when she was administered psychotropic medication, specifically Haldol, Depakote and Abilify, after being involuntarily detained, but several days prior to her probable cause hearing, in violation of Tenn. Code Ann. § 33-6-415. Jessica Abeyta v. HCA Health Service of TN, Inc. d/b/a Parthenon Pavillion (Tenn. Court App. 2012).

The Hartman Court held that “the possibility others would take advantage of Mr. Hartman’s condition to cheat him out of his property right would not constitute a sufficient basis to confine him against his will, in violation of his constitutional rights. Id. The trial court’s order was reversed and it was ordered that Mr. Hartman be released from confinement. (citations omitted).

The Abeyta Court held that Abeyta could go forward on the negligence per se claim, but summarily dismissed the medical malpractice claim, stating that “in a negligence per se claim, we are concerned with the timing of the administration of the medication and not with whether the medication was medically necessary or counter-indicated.” Id.

14

Sample Forms and Pleadings The Tennessee Department of Mental Health and Substance Abuse Service’s website has a plethora of legal forms available for involuntary commitments.

These forms are an excellent roadmap for statutory law and procedural guidelines for emergency, involuntary commitments.

Conclusion In conclusion, in researching the law specific to involuntary commitments, it is evident that mental illness alone does not create a barrier to an individual’s right to liberty. When a mentally ill person’s right to liberty is threatened with involuntary commitment, that individual is afforded the same due process rights as any other individual. Further, as an attorney defending persons who may be involuntarily committed, there is obligation and duty to make sure that the statutory protections in place for the mentally ill are not violated. t

HAPPENINGS 3/23

Bar Meet 4/2

Annual Memorial Service 4/20

Legal Lines 4/27

Law Week Party + Trivia Night 5/11

Bar Meet 6/22

Bar Feud 7/13

Tax Problems?

Jerry H. Schwartz, Attorney & CPA     

Serving Memphis attorneys and their clients Over 30 years tax experience Rated A+ by the Better Business Bureau Confidential and dedicated service Professional effective tax resolution

YLD Bowling Night 7/21-23

Bench Bar: New Orleans 8/24

Bar Meet 9/22

YLD Golf Tournament 9/28

Lawyers Got Talent 11/2

Bar Meet 11/9

YLD Annual Meeting 6260 Poplar Avenue | (901) 683-8766 Memphis, TN 38119 | attycpa1040@gmail.com www.jerryhschwartz.com

12/14

MBA Annual Meeting Visit memphisbar.org/events for a full list of events and details.

15

CONSERVATORSHIPS for the Non-Probate Lawyer

I

By CHASITY SHARP GRICE

t is Sunday afternoon and your phone rings just before you and your family sit down to enjoy dinner. It is your old friend, Kyle1, who frantically tells you that his mother has had a stroke.

His mother, Karen, is seventy-one (71) years old and he has no idea what to do next. He is told by the bank that he needs a power of attorney so is begging you to come to the hospital and execute a power of attorney because he knows that his mother would have wanted that. So, what happens when your friend Kyle tells you that they really want you to help them even though you don’t practice in that area? What should you watch out for?

1. Explain to your friend that a Power of Attorney may not be the solution.2 T.C.A. § 34-6-102 defines a “durable power of attorney” as “a power of attorney by which a principal designates another as the principal's attorney in fact in writing and the writing contains the words ‘This power of attorney shall not be affected by subsequent disability or incapacity of the principal,’ or ‘This power of attorney shall become effective upon the disability or incapacity of the principal,’ or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal's subsequent disability or incapacity.” Inherent in this definition is that the principal’s incapacity is after executing a power of attorney. Therefore, if Kyle’s mother lacks the mental capacity the understand the content of power of attorney, then his only option to handle his mother’s affairs is to file a Petition for the Appointment of Conservator.

2. Ensure that there are were no power of attorney forms previously executed. In November, 2008, AARP’s Public Policy Institute, in conjunction with the American Bar Association’s Commission on Law and Aging, discussed the three categories of Power of Attorney abuse; 1) Transactions that exceed the intended authority; 2) Transactions that involve self-dealing with 16

the agent; and 3) Transactions in contravention of the wishes of the principal.3 Although it is a legal document, a durable power of attorney is widely abused. If a durable power of attorney is located and Kyle has concerns about the appointed agent, he may wish to proceed with a conservatorship. If there is no concern with the appointed agent, then this may circumvent the need for the conservatorship. Review the document carefully and the rights granted to the agent. If it gives sufficient authority to pay bills, sell property for the benefit of the disable person, and perhaps engage in tax or estate planning, the agent may be able to handle Karen’s financial affairs without court intervention.

3. Secure a sworn examination report and the supporting medical records. The Respondent must have been examined by a physician, psychologist or senior psychological examiner within ninety days of the filing of the petition.4 Generally, where a person’s incapacity is evident from an emergency episode such as a coma or stroke, getting the sworn examination report should not be an issue. If, however, the Respondent is not cooperating and there may be a question of capacity and ability to handle their affairs, it may be necessary to put a request in your petition that the court order the Respondent to appear for examination. T.C.A. § 34-3-105 requires, however, that if the examination has not been completed within ninety days of filing the petition, that the petitioner include a statement that one has not been completed but will prior to the hearing on the petition.

Most practitioners won’t even file the petition until the affidavit is secured as you will not be able to proceed on your petition without it. In contested matters especially, ensure that the affidavit is completed by someone who specializes in the specific area of disability, i.e. geriatric specialist for seniors with some form of dementia.

4. Include all statutory provisions in the Petition for Appointment of Conservator. Tennessee Code Annotated §34-3-104 specifies all required provisions that must be in the petition. The sworn petition must

contain the following: (1) The name, date of birth, residence and mailing address of the respondent; (2) A description of the nature of the alleged disability of the respondent; (3) The name, age, residence and mailing address of the petitioner, a statement of the relationship of the petitioner to the respondent, and a statement of any felony or misdemeanor convictions of the petitioner, if any; (4) The name, age, mailing address, relationship of the proposed conservator and a statement of any felony or misdemeanor conviction of the proposed conservator and, if the proposed conservator is not the petitioner, a statement signed by the proposed conservator acknowledging awareness of the petition and a willingness to serve; (5) The name, mailing address and relationship of the closest relative or relatives of the respondent and the name and mailing address of the person or institution, if any, having care and custody of the respondent or with whom the respondent is living. (6) A summary of the facts supporting the petitioner's allegation that a conservator is needed; (7) The name of the respondent's physician or, where appropriate, respondent's psychologist or senior psychological examiner and the sworn examination report;5 (8) The rights of the respondent to be removed from the respondent and transferred to the conservator; and (9) Any financial information known about the Respondent if the Petitioner is requesting authority to manage his or her finances.6 5. Make an evaluation of the necessity of a Guardian ad litem and/or Attorney ad litem.7 In most cases, the courts would want to consider a Guardian ad litem to investigate the petition and ensure that the appointment of a conservator and the petitioner, specifically, would be in the best interest of the Respondent. In limited cases, however, the court is willing to consider waiving the appointment. For example, where all of Kyle’s siblings consent to the appointment of Kyle as Conservator of his mother, then the court may waive the appointment of Guardian ad litem as all interested parties consent. If, however, the Respondent indicates an unwillingness to cooperate, then the appointment of an attorney ad litem may be necessary to provide the Respondent with her own representation.

6. Consider an emergency conservatorship.8 Kyle may need immediate access to his mother’s funds, which could necessitate an emergency conservatorship.

Consult T.C.A. § 34-1-132 for all requirements as they are separate and distinct from the general discussion of this article.

7. Draft the Order with your client’s needs in mind.

Delineate all rights transferred from the Respondent to the Conservator pursuant to T.C.A. § 34-3-104. Also, ensure that if entities require special language that you have included that language to avoid multiple visits to the courthouse. Second, ensure that your order invalidates and revokes all prior power of attorney documents executed on behalf of the Respondent. t 8. Learn when to say no. Once consulting with prospective clients, should their questions rise above your level of comfort, refer it to someone who is more knowledgeable. The last thing you want to do is subject yourself to a malpractice claim.9 For the sake of simplicity, this article will refer to her as Respondent as she has not yet been determined as a “person with a disability” pursuant to T.C.A. §34-1-101.

1

Tennessee Code Annotated § 34-6-101 et seq.

2

http://assets.aarp.org/rgcenter/consume/2008_17_poa.pdf.

3

T.C.A. § 34-3-105.

4

See T.C.A. § 34-3-104 for exceptions. Ensure that the sown examination report follows T.C.A. § 34-3-105(c).

5

This is referred to as Conservatorship of the Estate.

Conservatorship of the Person is the authority conferred by the probate court to an agent to make healthcare and residential decisions regarding the Respondent. See T.C.A. § 34-3-104 for a list of rights to be transferred for each type of Conservatorship.

6

Make sure to explain to your client that, if there are no funds of the Respondent, then he may be required to pay the fees of both Guardian ad litem and Attorney ad litem.

7

See T.C.A. § 34-1-132 for the requirements of filing a petition and requesting an emergency, temporary conservatorship.

8

Please note that, for purposes of this article, many complexities were not discussed and the reader should be sure to consult the Tennessee Code Annotated, Title 34, Chapters 1 through 3 and local rules of the probate court for more information. This article is not designed to create an attorney-client relationship and is for informational purposes only.

9

Chasity Sharp Grice represents families located in Dallas, Texas and Memphis, Tennessee. She began her practice developing estate plans for middle to high net worth clients at a Certified Public Accounting firm located in Dallas, Texas. She now focuses on estate planning, probate, and elder law in the Dallas, Collin, Tarrant counties of Texas and Shelby County of Tennessee. Call 901.761.3140 or email cgrice@pgmlawyers.com for more information.

17

LITTLER MENDELSON FTA PROGRAM Provides Flexibility, Career Advancement

By AMBER ISOM-THOMPSON, Littler Mendelson

A

ll my life, the law and family have been deeply intertwined.

I was born while my parents were attending law school — before my mother became a state trial court judge and my father a solo practitioner.

Some of my earliest memories involve discussions of legal issues around the kitchen table.

Today, I maintain that family legal tradition, and my parents’ commitment to family, by practicing law in a way that allows me to spend more time with my two daughters than my parents ever could have dreamed possible. I do it by working as an Early Case Evaluation FlexTime Attorney (FTA) at Littler, the world’s largest employment and labor law practice representing management. The firm’s FTA program, made possible by our technology-connected era, allows me to advance my legal career while having the flexibility to spend more time with my family.

I made the decision to become an FTA in late 2014, about three years after Littler combined with Kiesewetter Wise Kaplan Prather in Memphis. I spent more than a decade practicing with Kiesewetter Wise and was a shareholder at Littler. Ever since my first daughter was born, I have been focused on having a work-life balance that fits best with my priorities. When 18

I learned Littler’s FTA program was expanding, I thought an FTA position would pair well with my priorities, giving me the opportunity to continue using the skills and experience I gained in my practice of law.

The FTA program is part of Littler CaseSmart, a technology platform for resolving administrative agency charges, single-plaintiff employment litigation, and wage and hour class and collective actions. Through the platform, Littler uses a combination of technology, alternative staffing, and legal project management to handle matters in a more cost-effective and efficient manner, while providing data-driven insights to spot patterns of potential business risk and areas of improvement.

I have really enjoyed working with an amazing team of experienced, highly-skilled FTAs. Littler FTAs are U.S.-based attorneys that have an average of more than 13 years of legal experience who focus on specific tasks within the legal process, such as early case investigation, brief writing, research and discovery. We coordinate with each other in our separate roles, and with the case teams, which include shareholders and associates, to meet the needs of each case.

As an Early Case Evaluation FTA, I am able to focus

on the investigation aspects of litigation, including reviewing documents and interviewing witnesses, as well as drafting summaries of the facts and legal analysis in the Early Case Evaluation reports. Those tasks have always been favorites of mine. I doubt I’d be as satisfied with the FTA program if it didn’t allow me to continue honing my legal skills.

It’s also been exciting to be part of something relatively new and evolving. The platform was founded in 2010 by Littler Shareholder Scott Forman, who is widely regarded as a leading innovator in the legal industry. Initially, the platform was designed to manage administrative agency charges. Since then, it has grown significantly and now includes single plaintiff litigation and class action defense. This growth has expanded the FTA career track providing opportunities to advance within the program to various managerial roles.

There are definitely advantages to not having to go to the office each day, but I initially was concerned that working from home would make me feel isolated and

not part of a team. Neither concern proved warranted, as I’ve developed strong relationships within the firm.

The FTA program is perfect for lawyers who want challenging work along with more flexible schedules and the ability to work from home. Before I made the switch, I wanted to be a parent who could pick up my kids at the end of the school day. Since becoming an FTA, I am able to take a break from my work day to happily greet my kids when the school bell rings, establishing a work-life balance I may not otherwise have had. t Amber Isom-Thompson is a FlexTime Attorney at Littler Mendelson, based in Tennessee.

She has extensive experience representing employers in the defense of employment–related claims dealing with unlawful discrimination, wrongful discharge, violation of federal and state employment statutes and wage and hour issues, among other areas.

19

Using Macros in

Microsoft Word

by SEAN ANTONE HUNT

B

y now, if you are a Microsoft Word user, you should’ve heard of macros. However, most of us don’t use them as much as we should.

For example, if you have a task that you do repetitively, either when you open a document or when you create a specific type of document, most of us open a version of that document and simply make changes to it. But here’s an idea, what if you could take that document, for example a letter, and simply format the information that’s on the current page into your normal letter format. That would give you the ability to simply make changes in the appropriate spots without having to open up a new document and find the new spots. To do this, you use a macro.

Create macros in Microsoft Word For most of us, the easiest way to create a macro in Microsoft Word is to use the recorder. It’s harder to find it now but still in Microsoft Word. Simply navigate over to “View” and the “Macros” ribbon item will be fairly close to the right-hand side on the ribbon.

Click on the item and click record. Then do the tasks that you want in your macro while recording.

Thereafter, all you need to do is click stop and name the macro. If you know some Visual Basic, you can also go into the macro and make small changes or, you can create a macro completely from Visual Basic at this point as well. Then, to execute your macro simply click on “View” and that the “Macros” ribbon item and then choose “View Macros” and then choose the macro by the name you gave it earlier. In the alternative, you can also, when you are creating the macro, assign the macro a particular keystroke or a button on the ribbon. That way, when you’re using the macro, you can simply press the keystrokes or click on the ribbon item that you make.

Note, if you want to take your macros from one computer to another, simply go to C:\ Users\%USERNAME%\AppData\Roaming\Microsoft\ Templates, where “%USERNAME%” is your username for your computer and copy the “Normal.dotm” file and place it on a removable medium. Then, when you get to the new computer, simply copy this “Normal.dotm” filed to the same location on the new computer, remembering to change to the appropriate username as above, and when you open up Microsoft Word you will find your macros there. Note that every time you open Microsoft Word, if the file “Normal.dotm” does not exist in the appropriate folder on the computer, Microsoft Word will then create one. So, keep a copy of your file with your macros and it just in case something happens to the original version.

Assign keystrokes to macros in Microsoft Word When creating a macro, it gives you the option of assigning the macro to a keystroke. This is fairly easy to

20

do and can be done when you create the macro. But what if you did not assign the macro initially to a keystroke. You may still assign the macro to a keystroke or place it on the ribbon. Here’s how you would assign it to a keystroke.

Click on “File” and then “Options” and then choose “Customize Ribbon”.

Then, at the bottom click on “Customize…” Next to “Keyboard shortcuts:”.

If, for some reason, you want a macro to run automatically when you open a document, simply name the macro “Document_Open” or if you want the macro to run every time you create a new document then name it “Document_ New” and save these macros to the Normal.dotm template. Then, whenever you open a document or create a new document, this macro will run. t

21

Memphis Chapter of the American Inns of Court Achieves Coveted Platinum Status n October 18, 2016, the Leo Bearman, Sr. chapter of the American Inns of Court made history by becoming the first chapter in Tennessee to achieve the sought-after Platinum Status. The Inns of Court is an invitation-only association of lawyers, state and federal judges, law school professionals, and law students who meet monthly to discuss pressing legal issues and obtain continuing legal education (CLE) credit in a social environment.

O

attorney, Maureen Holland, discussing her fight in the United States Supreme Court to make gay marriage the law of the land.

Our local chapter was awarded platinum status from the national Inn because of the outstanding programs it produced and its community outreach efforts in the 2015 – 2016 term. For instance, the chapter’s monthly CLE programs included renowned sports columnist, Geoff Calkins, discussing the interrelation between sports and the law; Boston Scientific’s General Counsel, Tim Pratt, discussing effective leadership skills; and local civil rights

To achieve platinum status, the Leo Bearman, Sr. chapter had to exhibit extraordinary community outreach efforts. As part of those efforts, the chapter’s executive committee attended an Oxford, Mississippi Inn of Court chapter meeting to collaborate on programming, membership, and community service efforts. The Leo Bearman, Sr. chapter also partnered with the Jackson, Tennessee Inn of Court chapter to present a voir dire

22

The chapter also instituted a mentor program in which the more experienced members of the Inn were paired with less experienced members to mentor them on topics such as the importance of civility in the legal profession, career objectives, and balancing career and personal life.

CLE presentation in Jackson. The community outreach efforts also included sponsoring a Memphis Area Legal Services Saturday morning legal clinic.

In addition to its regional and local community outreach efforts, the chapter received international recognition when one of its members was awarded the prestigious Pegasus scholarship from the national Inn, whereby he got the financial funding and opportunity to visit London for six weeks to learn about the English legal system. Only two attorneys nation-wide are awarded this scholarship per year.

Because of the platinum status designation, the chapter got the opportunity to participate in the spectacular Celebration of Excellence event in Washington, D.C. on November 5, 2016, which is a black-tie event held at the United States Supreme Court hosted by a Supreme Court Justice. Dinner was served in the Great Hall, and the awards ceremony was held in the courtroom.

The ascent to platinum status has been decades in the making, as the chapter celebrated its 20th Anniversary in December 2015 with a program and reception in the South Hall of the Judge D’Army Bailey Courthouse. Federal Judge Jon Phipps McCalla and attorney Annie Christoff led the efforts in the chapter achieving platinum status.

The other 2015 – 2016 officers and executive committee members instrumental in the chapter’s milestone year were Connie Lewis Lensing (President), Judge Phyllis Gardner (Vice President), Judge Jerry Stokes (Treasurer), Dean Peter Letsou (Secretary), Judge Samuel Mays, Jr. (Immediate Past President), Judge Robert Childers (Emeritus Representative), Leland McNabb (Emeritus Coordinator), Terrence O. Reed (Program Committee Chair), Lucie Brackin (Program Committee Vice-Chair), and Judge Valerie Smith (Assistant Treasurer). t

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Settlement Solutions 23

Another Grand Adventure

by DAVID COOK

I

wrote an article describing my first grand adventure in 2013, a trip to St. Petersburg, Moscow, and Kazan to lecture on American Civil Law. I have just returned from my second grand adventure, a month-long trip to Ukraine to lecture on American Civil Law in Odessa and Kiev.

I stayed, in Odessa, at the dormitory of the National University, located in the Center City area, near Cathedral Square. I gave ten ninety-minute lectures and gave my twenty-four avid students a final exam based on the MultiState Bar Exam. They were all very proficient in English and were fascinated to spend time with an old American lawyer, and to hear war stories and watch videos from several of my actual jury trials. America is the last jurisdiction in the world with civil jury trials, and it is important for foreign lawyers to understand how our system- the worst in the world, except for all the others- works.

Odessa National University Law Academy

Odessa is a beautiful Black Sea port, founded by Catherine the Great in 1794. The climate is similar to the Memphis climate, and the hospitality of my hosts, students, and all the Ukrainians with whom I interacted was even warmer than the vaunted hospitality of the American South. For example, my cab driver, Sasha, took me to a performance of Turandot at the Odessa Opera House, perhaps the most beautiful opera house anywhere.

The local currency exchange rate is twenty-eight Ukrainian dollars to one American dollar. I never had to use an ATMthe cash I brought with me more than sufficed for all expenses, including some unique antiques.

On my last night in Odessa, the Law Academy hosted its yearly anniversary function. The main event was a beauty 24

Certificate Ceremony contest, to name “Miss Odessa Law Academy” for 2017.

I served as a judge, and will most certainly never forget that experience. I was interviewed by local television, and muddled through when asked about the contest by stating that it had proved to me (as if I needed any further proof) that Ukrainian women are the planet’s most beautiful.

After completing my Odessa lectures, I traveled to Kiev, the capital of Ukraine, a bustling city of 3.3 million citizens. The atmosphere was vastly different from Odessa, but equally enjoyable. I lectured at the Kiev branch of the Odessa Law Academy. Kiev is an ancient city, dating back to at least 822 CE. It is one of the most historic sites in Europe, and played a huge role in the founding of Russia.

My lecture assignments are arranged through the Center for International Legal Studies in Salzburg, Austria. More information can be found at http://www.cils.org under the green “teaching” tab, “SL Professorships.” I urge all my colleagues to seriously Saint Sophia Cathedral, consider your own grand Kiev adventure.

Despite serious consideration as to defecting after the presidential election outcome, I have returned, although I will return to Ukraine to lecture again next fall.

I am pondering giving seminars on retirement to all of you. t

UNITY IN DIVERSITY: A Stride in the Direction of Change

T

By DAWN CAMPBELL

he American legal profession is arguably the most influential profession in American society. For far too long, legal diversity has been widely embraced in principle but seldom realized in practice. With the profession’s diversity performance remaining at a disappointing plateau, the legal profession continues to be one of the least diverse professions in the country.

As the first in my family to attend law school, I know first-hand the importance of access and opportunity. As President of the Benjamin L. Hooks Chapter of the Black Law Students Association (“BLSA”) at the University of Memphis Cecil C. Humphreys School of Law, I made a commitment to making legal diversity a priority by creating more opportunities for diverse students to pursue a legal education.

On February 23, 2017, BLSA held the first annual Unity in Diversity Scholarship Banquet at the new Guesthouse at Graceland. The purpose of the event was to celebrate the very differences that strengthen our unity and drive innovation and excellence. The sold-out event was attended by more than 500 lawyers, judges, students, and corporate executives from various sectors, including the healthcare, automotive, courier, and insurance industries. The inaugural event raised more than $100,000 for diversity scholarships and initiatives at the University of Memphis School of Law and, as remarked by law school Dean, Peter Letsou, is potentially “the largest fundraiser by a student organization in the history of the law school.”

Delivering the keynote address was Robert Grey Jr., President of the Leadership Council on Legal Diversity (“LCLD”) and the second African-American ever to lead the 430,000-member American Bar Association as former President. The LCLD is an organization comprised of dynamic leaders—corporate chief legal officers and law firm managing partners—committed to creating a truly diverse legal profession. The Excellence in Diversity Award was presented to law firms, corporations, and individuals who have consistently demonstrated a commitment to diversity in the Memphis community. In addition

to providing scholarships for diverse law students, the Unity in Diversity Scholarship event serves as a Pipeline Program to provide students as earliest as high school Dawn Campbell, Nicholas Whiteside

with access and exposure to the legal profession. Among this years’ honorees was seventeen-year-old Hillcrest High School senior, Nicholas Whiteside. With a 4.2 GPA, Nicholas is a participant in REACH Memphis, a non-profit organization established in 1969 to enable public high school students in Memphis to reach new heights by leveraging a summer program experience into a college preparatory one with boarding schools and colleges across the United States at respected schools like Phillips Exeter Academy in New Hampshire. Nicholas was awarded the student Excellence in Diversity Award for his commitment to diversity and is, for the first time, considering pursuing a career in the legal profession.

Gaging by the tremendous support of the first annual Unity in Diversity Scholarship Banquet, this event is well on its way to becoming a signature event that celebrates diversity in the legal profession for years to come and lends hope for the potential impact that it will have on diversity in the legal profession. t 25

AWA Annual Banquet A newly renovated Clark Tower served as an ideal backdrop to usher in a brand-new AWA board on Jan. 31 during the 37th annual Association for Women Attorneys (AWA) Annual Banquet. Diana Comes, attorney with Butler Snow, officially stepped into the role of president while the board officers and committee chairpersons were inducted and more than 180 professionals looked on.

For the first time, the organization honored a colleague posthumously with the Marion Griffin-Frances Loring Award for outstanding legal achievement. Mary L. Wolff, founding shareholder of Wolff Ardis, P.C., passed away on Dec. 24, 2015. Her former law partner, Pat Ardis spoke with endearment about her. “We called her ‘Tennessee’ at Boston University, which is where I first met her,” he recalled. He pointed out her intellect and said that she was one of the brightest human beings he had ever met. Ardis fondly remembered that she never compromised on doing “the best work in the nation” and never said no to anyone who needed legal assistance even if he or she could not afford it. “She believed in taking on all the cases because it was the right thing to do,” he said.

A total of $10,000 in scholarships were presented to the following law students at the University of Memphis: Stephanie Berish - Dorothy Osradker Memorial Scholarship of $2,500; Karlyn C. Washington -Judge Rita Stotts Memorial Scholarship of $2,500; Kelly L. Hagy - Susan Clark Scholarship of $2500; Elizabeth “Liz” Stagich - AWA Scholarship of $1000; Ashley N. Finch - AWA Scholarship of $500; Callie M. Tran AWA Scholarship of $500; and Holly J. Stanford - AWA Scholarship of $500.

New President Diana Comes challenged her peers to “join the conversation to create meaningful opportunities for engagement and to amplify the voices of the AWA’s diverse membership,” which is her platform theme. She asked her audience of legal professionals to become members of AWA and embrace a quest to level the playing field. She noted that studies and statistics show a great disparity in women’s representation and pay as law firm partners that persists even today.

Diana also reiterated how helpful AWA has been to her in support, networking and professional development.

Diana is a former AWA scholarship recipient herself, which she said helped to make her dream of becoming an attorney a reality. She credited Linda Seely, the 2014 recipient of the Marion Griffin-Frances Loring Award, as well as Past AWA Presidents Judge Kay Robilio and Laurie Christensen, with inspiring her to join AWA. She also lauded Lucie Brackin, also a former AWA president, with encouraging her to join the board.

2017 marked the first Wine Pull held during the AWA Banquet. Approximately $1700 was raised, according to Banquet Co-Chair Laura Deakins. Banquet Co-Chair Kirkland Bible and Kristen Berning of A Step Ahead Foundation staffed the wine pull station.

Also during the evening, President Diana Comes recognized the organization’s Publicist Kim Brukardt, for her longstanding service and support of the AWA. t

26

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MEMPHIS BAR FOUNDATION IN PRACTICE:

Summer Law Intern Program (“SLIP”)

By QUINTON E. THOMPSON and MICHELLE KIMBRIL-PARKS

O

ne day during my junior year of high school, my U.S. History teacher and Mock Trial coach asked me to stay after class. Knowing that I aspired to become an attorney, he told me about the Summer Law Intern Program (“SLIP”) through the Memphis Bar Association, and encouraged me to apply.

He went on to explain that the goal of the program is to expose more minorities to the legal profession.

That very same day, I eagerly filled out the application, and asked a few teachers to write recommendation letters.

A few weeks later, I was scheduled for three interviews.

One interview was with the District Attorney’s Office of Memphis, TN, and the other two interviews were with law firms. At the time, I was the biggest fan of the Law and Order television shows, so I was most interested in acing the interview with the District Attorney’s office.

I did my first interview with an attorney at one of the firms, and I remember that it did not go so well because I was extremely nervous and I was answering the questions by telling him what I thought he wanted to hear. At the end of the first interview, the attorney graciously gave me some tips, which I utilized in my next interview with the district attorney’s office. He told me to relax, do not be afraid to pause before answering questions, and to be myself. Due to his suggestions, I went into my next interview with the District Attorney’s office extremely confident. A couple of weeks later I found out that the District Attorney’s office selected me for the internship.

I remember the first day of my internship as if it were yesterday because I was a rising senior in high school 28

surrounded by University of Memphis law students. I was both frightened and excited about participating in the program with law students. I was frightened because it was obvious that they would be more knowledgeable than I would, and I was excited because I realized that I could be one of them someday. After orientation, I met my site mentor and supervisor Michelle KimbrilParks. She was the lead prosecutor of Criminal Court Division 10.

It was such an honor for me to observe her fight for justice every day. She was the first exposure I had to the legal profession outside of television, and she happened to be a minority. It was inspiring to watch her argue with opposing counsel, interrogate witnesses, and respectfully debate with the judge. From the first time I saw her in the courtroom, I knew for sure that I wanted to be an attorney. Many times, I would watch trials during the internship and I would want to get up myself to object or cross-examine a witness. I would often be late for my job at the movie theater because I wanted to see how a trial would end.

This experience allowed me to have the vision that someday I, too, could get up in front of many people and advocate for justice. I had known since I was 12 years old that I wanted to be an attorney, but my experience with SLIP validated my belief that this dream was not an impossible dream.

After several years of hard work, my dream finally came true in May of 2015 when I graduated from Vanderbilt Law School. I could not believe that I finally did it, and one of the first people I called was Michelle to thank her for inspiring me all those years ago.

When I finished the internship in 2007, I told Michelle that I wanted to be a prosecutor because I had thoroughly enjoyed the internship. Michelle told me that she was happy that I had a great experience, but she encouraged me to keep an open mind regarding my career path.

I believe the open mind Michelle encouraged me to have led me to my current position at Nahon, Saharovich and Trotz, PLC (“NST”). At NST, I practice in the areas of auto accidents and litigation. I chose NST because this is the kind of firm that cares about helping people and it would allow me to truly represent the underdog and give a voice to the voiceless. It gives me much satisfaction to help injured people recover compensation due to someone else’s negligence. Moreover, since we only receive a fee if we recover compensation, we can help anyone regardless of their socioeconomic status.

Many times as I walk down the hallway at NST to my office, I think about my unique experience with the SLIP program. About how it allowed me to see that my life could be better than society expected it to be.

Many minorities do not have the inspiration to dream big dreams because they do not have many examples of successful people around them. Moreover, they may only see negative or unrealistic portrayals of people that look like them in the media.

A 2010 study Reported by the American Bar Association found that only 5% of all lawyers in the United States are black. The percentage of white attorneys in 2010 was 88%. The SLIP program was important to me because many times growing up I only saw a black man in a courtroom when he was charged with a crime on the 5 o'clock news.

Furthermore, the only black men displayed in the media that were successful were athletes, rappers, and actors. Due to this program, I was able to hold on to my dream that I had since I was 12, and I was able to become a part of another 5% because I graduated from a school that is in top 5% of all law schools in the country.

SLIP helped me see that regardless of how certain people in society may see me, as long as I believe in myself, I can achieve anything!

Why You Should Host an Intern By Michelle Kimbril-Parks The Summer Law Intern Program (“SLIP”) was created in 2007 to provide rising junior and senior high school minority students the opportunity to work alongside attorneys in private law firms, corporate legal departments, or government agencies. In 2007, as an Assistant District Attorney with the Shelby County District Attorney’s Office, I had the great privilege of working with Quinton Edward Thompson, a junior at

Germantown High School. At that time, I had been practicing law for seven years, and how refreshing it was to have this young man remind me how intriguing the law is, and why I became so interested in the practice of law. On my desk, I still have Mr. Thompson’s 2012 invitation announcing his graduation from the University of Tennessee, a letter stating that he would be attending Vanderbilt University School of Law in the fall, and thanking me for helping him decide to become an attorney. Today, I am proud to call Mr. Thompson a colleague as he is currently an attorney at Nahon, Saharovich & Trotz.

Why become a mentor? As an attorney, I cannot express enough the importance of mentoring those interested in practicing law as well as those actively practicing law. Mentoring gives you the extraordinary opportunity to facilitate a protégé’s personal and professional growth by sharing knowledge you learned through years of experience. Whether a government attorney, a corporate attorney, or a solo practitioner your experiences are impactful to a high school student trying to decide, “what do I want to be when I grow up?”

Why become a mentee? Why not? As a student interested in the study of law or indecisive as to what to study, participating in a mentoring program such as SLIP has many benefits. From the application process, to the interview process, to the extraordinary opportunity to work side by side with an attorney on a daily basis, SLIP allows you to assess early on whether becoming an attorney is a career path that you should pursue. t The Summer Law Intern Program seeks to develop and nurture an interest in the legal profession among young people from underrepresented groups.

Students accepted into the program are placed in law firms, corporate legal departments, or government agencies and are required to work a total of 60 hours during the four-week period in the summer. Upon completion of the internship, they will receive $500.

If you are interested in participating, hosting an intern or donating, please visit bit.ly/MBASLIP for more information. Applications are due March 31, 2017.

29

Trump’s Defeat in Immigration Ban a Preview of Legal Battle to Come

by STEVEN J. MULROY

B

ecause the Community Legal Center has worked with immigrants and asylum seekers for over 10 years, we’ve naturally been following with interest the litigation over the President’s recent Executive Order restricting entry from certain countries. Recently, the 9th Circuit Court of Appeals upheld a nationwide injunction against enforcing the Order, and the Administration has responded with a new Executive Order. The new Order has also been challenged; while it is less legally problematic, it still has its issues.

In many ways, the court decisions were unsurprising.

They both signal skepticism of the President’s position and spotlights issues for the further appeals sure to follow.

The original executive order banned for 90 days the entry of any nationals from seven majority Muslim countries, and imposed a 120-day ban on admitting refugees. Further, priority was to be given to members of minority religions in their home country. As applied to the Muslim countries affected by the Order, this would have the effect of favoring Christians.

In its opinion, the 3-judge panel of the Ninth Circuit Court of Appeals found it likely that states had legal standing to sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. They also held that the executive order violated the Due Process rights of at least some of those it affected: before the government can restrict the traveling freedom of anyone present in the U.S. (even a noncitizen), it must give affected persons advance notice and a hearing. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.” More recently, a district judge in Virginia held that the Executive Order targeted Muslims and benefited Christians, thus violating the separation of church and state. This was a clear defeat for the Trump Administration.

30

The new Executive Order is similar, but eliminates the priority for a country’s “minority” religious groups.

This should help Trump on the “separation of church and state” issue, since it no longer appears to be a preference for Christians. But prior statements by Trump and others about a “Muslim ban” still provides some evidence of discriminatory intent; no rewrite of the Order can unring that bell.

The new Order also clarifies that it does not apply to those with green cards or lawful visas. This will reduce the number of people with a Due Process claim, since only noncitizens who are present in the U.S. have Due Process rights to complain about. But there might still be some noncitizens present in the U.S. who can raise this claim. Of course, if Trump were to lose on that claim, one easy fix might be to give that small number of persons hearings, and leave the rest of the Order in place.

Moreover, the Order still imposes blanket bans on entry based on national origin. A 1965 federal statute bars such national origin discrimination regarding the issuance of visas. At least as it affects visa applicants, this appears to be a serious legal issue.

The courts will now have a second round of rulings.

This time, Trump’s case will be stronger, but may still fall short.

Summing up with a limerick: They say it’s protecting our nation/ To deeply restrict immigration/The courts will have to state/ So we’ll just have to wait/ But some will surely call it discrimination. t Steve Mulroy is a University of Memphis law professor and a CLC board member.

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MALS

CORNER

A Journey To Give Back To Memphis”

by IRWIN A. MAGEVNEY, Director of Pro Bono Programs, Memphis Area Legal Services, Inc.

S

ometimes the best opportunities come along when you aren’t even looking.

As I reflect on the first few months in my role as the Director of Pro Bono at Memphis Area Legal Services, this cliché statement certainly rings true for me. As a lifelong Memphian, I have a passion for our amazing city. I am energized by the growth and growing civic pride I have seen in the last decade, but there is still much work to do. You could say serving Memphis is in my blood, as a descendant of Eugene Magevney, Memphis’s first school teacher who later fought to establish public schools; I always knew I’d have a career serving Memphis.

I have so many wonderful memories of Memphis as a child. The Hernando Desoto Bridge was lit up for the first time on my sixth birthday. I remember picnicking with my family in what is now known as the 4th Bluff Park to celebrate our city and see the bridge illuminated. It is truly amazing to me that I now look out my office window and see that same park every day.

My earliest memories of serving others were with my family and my Church. I remember going with my father to help at a soup kitchen. During High School, I participated in Bridge Builders, and this program more than any other really opened my eyes to how unique and diverse Memphis is. Even then I knew I wanted to help Memphians, but I had no idea what that would look like.

Fast forward a few years, with an art history degree under my belt and no distinct career path, I found myself as a 1L at the University of Memphis Law School. Law school was a trying three years for me, and while I knew I wanted to help people I wasn’t sure 32

exactly how I was going to accomplish that. I finished law school in 2007 right as the mortgage bubble was bursting. I took a job handling consumer bankruptcy cases.

I enjoyed helping people, but the practice quickly became routine. I didn’t feel that I was getting to use my creativity (I do have an artistic side), and I wanted to make a bigger impact.

Through a bit of trial and error, I discovered everyone has a story, and I have a passion for listening to those stories then offering assistance. This past fall, as I was job searching after a corporate downsizing, I had multiple colleagues whom I greatly respect reach out to me and suggest I apply for the Pro Bono Director position at MALS. I was familiar with MALS through previous volunteer work, but I was hesitant to apply; I knew the previous Director and knew I had big shoes to fill. After about the fourth phone call suggesting I apply, I figured sometimes those around you know you better than you know yourself.

From the day I began at MALS, I have been truly grateful. The entire staff at MALS has made me feel so welcome, and the legal community has been so gracious in responding to my calls for volunteers. I love that my new career allows me to balance working with clients and working with other attorneys. The clients at MALS are some of the kindest, most grateful people I have ever encountered, and our volunteers allow us to reach so much further into Memphis than our staff alone would be able to do. For those of you, who have already volunteered or contributed during my tenure, thank you! For those of you who have not had a chance yet, please reach out to me at imagevney@malsi.org. t

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COURT REPORT

THE

by CHARLES “BO” SUMMERS

CRIMINAL COURT—Covers the weeks of September 19 to November 7, 2016 COURT

JUDGE

DIV. I

SKAHAN

VERDICT 1. STATE V. DEANDRY PETERSON: Indicted for Aggravated Rape; Aggravated Burglary. Trial lasted from November 29th through December 2nd. Verdict: Guilty as Charged in the Indictment Prosecutors: Carrie Shelton & Abby Wallace Defense: Deandry Peterson represented himself pro se 2. STATE V. DERRICK FIFER: Indicted for Especially Aggravated Kidnapping. Trial lasted from January the 30th through February the 3rd. Verdict: Not Guilty Prosecutor: Pam Stark & Leslie Byrd Defense: Jason Ballenger & Seth Seagraves 3. STATE V. MARK LOVE: Indicted for Aggravated Assault x 2. Trial lasted from February the 6th through the 8th . Verdict: Guilty of Domestic and Simple Assault Prosecutors: Kenya Smith Defense: Brett Stein

DIV. II

WRIGHT

1. STATE V. CHRISTOPHER TALLEY: Indicted for Criminal Attempt Murder Second.Trial lasted from February the 6th through the 7th. Verdict: Guilty as charged in the Indictment Prosecution: Gavin Smith Defense: Claiborne Ferguson & John McNeill 2. STATE V. DEVELLE JOHNSON: Criminal Attempt: Murder First; Esp. Aggravated Robbery. Trial lasted from February the 21st through the 23rd . Verdict: Guilty to the lesser included offense of Voluntary Manslaughter. Prosecutor: Muriel Malone Defense: Ed Lenow

DIV. III

CARTER

1. STATE V. CARL HADEN: Indicted for Sexual Battery Trial lasted from October the 17th through the 20th. Verdict: Not Guilty Prosecutor: Omar Mailk & Dru Carpenter Defense: Bill Massey & Chelsea Harris 2. STATE V. ALBERT BRADLEY: Indicted for Rape of a Child X 2 Trial lasted from December 12th through the 15th.

Verdict: Hung on the lesser included offense of Aggravated Sexual Battery Prosecutors: Lessie Rainey & Leslie Fouche Defense: Tom Leith 3. STATE V. TYLER BROOKS AND TAVARES JACKSON: Aggravated Robbery Trial lasted from January 9th through the 12th. Verdict: Guilty as charged in the Indictment Prosecutors: Lessie Rainey & Leslie Fouche Defense: Ben Baker(Brooks) & Shannon Davis(Jackson) 4. STATE V. JAMES WILLIAMS: DUI Second Offnese Trial lasted from January 24th through the 26th. Verdict: Hung Jury Prosecutors: Sam Winnig & Scott Smith Defense: Terrell Tooten

DIV. IV

BLACKETT

1. STATE V. ADRIAN LEWIS: Indicted for Rape of a Child Trial lasted from November the 29th through December 4th.

Verdict: Not Guilty Prosecution: Paul Goodman Defense: Tom Leith 2. STATE V. TERRY PATTERSON : Indicted for Murder First Degree, Aggravated Child Abuse Trial lasted from February the 13th through the 19th. Verdict: Guilty of the lesser included offense of Murder Second and as charged as to Aggravated Child abuse Prosecutors: Carrie Bush & Josh Corman Defense: Kathy Kent

DIV. V

LAMMEY

1. STATE V. ROBERT TAYLOR: Indicted for First Degree Murder Trial lasted from November the 29th through December 3rd . Verdict: Guilty of Second Degree Murder Prosecution: Kirby May & Meghan Fowler Defense: Claiborne Ferguson 2. STATE V. JAQUET MOORE: Indicted for Aggravated Robbery Trial lasted from December 5th through the 8th. Verdict: Guilty as charged in the Indictment Prosecution: Abby Wallace and Gavin Smith Defense: Tashun Moore & Regina Thompson 3. STATE V.: Jaquet Moore: Indicted for Aggravated Rape Trial lasted from December the 12th through the 15th. Verdict: Not Guilty Prosecutor: Jennifer Nichols and Abby Wallace Defense: Tashun Moore 4. STATE V. QUANTEZ PERSON: Indicted for Aggravated Rape Trial lasted from January 30th through February the 3rd.

Verdict: Not Guilty Prosecutor: Abby Wallace Defense: Claiborne Ferguson

34

CRIMINAL COURT—Covers the weeks of September 19 to November 7, 2016 COURT

JUDGE

DIV. VI

CAMPBELL

DIV. VII

COFFEE

VERDICT 1. STATE V. ANQUAVIOUS JORDAN: Indicted for Rape of a Child Trial lasted from February the 6th through the 8th.

Verdict: Hung Jury Prosecutor: Josh Corman Defense: Constance Barnes 1. STATE V. DARNAVIUS WAYNE: Indicted for First Degree Murder Trial lasted from November the 29th through December 3rd . Verdict: Not Guilty Prosecution: Colin Campbell & Trayce Jones Defense: Mike Working 2. STATE V. ANTONIO BENSON: Indicted for First Degree Murder Trial lasted from January 12th through the 14th.

Verdict: Hung on the lesser included offense of Aggravated Sexual Battery Prosecutors: Karen Cook & Stacey McEndree Defense: Jimmy Thomas & David Mays 3. STATE V. TEVIN WHITLEY: Indicted for Especially Aggravated Robbery Trial lasted from January 24th through the 26th. Verdict: Guilty of the lesser included offense of Aggravated Assault Prosecutors: Stacey McEndree Defense: Lauren Paisley 4. STATE V. FELIPE GONZALES: Indicted for Rape of a Child Trial lasted from February the 6th through the 10th.

Verdict: Guilty as charged in the Indictment Prosecutors: Jeff Jones & Lessie Rainey Defense: Jenny Case 5. STATE V. TORAN HARPER: Indicted for Murder First degree Trial lasted from February the 13th through the 18th.

Verdict: Guilty as charged in the Indictment Prosecutor: Alanda Dwyer & Chris Lareau Defense: Juni Ganguli

DIV. VIII

CRAFT

1. STATE V. KEITH AUSTIN : Indicted for CA: First Degree Murder. Trial lasted from December the 12th through the 15th.

Verdict: Prosecution: Jose Leon Defense: Jim Hale 2. STATE V. LADARIUS LOCKHART: Indicted for Rape Trial lasted from January 3rd through the 6th. Verdict: Guilty as charged in the Indictment Prosecution: Josh Corman Defense: Larry Fitzgerald 3. STATE V. ARTHUR HUEN: Indicted for Rape of a Child Trial lasted from January the 17th through the 19th. Verdict: Guilty as charged in the Indictment Prosecutor: Josh Corman Defense: Juni Ganguli 4. STATE V. GRANT JASELYN: Indicted for Murder First Trial lasted from January the 30th through February the 4th.

Verdict: Guilty of the lesser included offense of Murder Second Prosecutor: Marianne Bell & Glenda Adams Defense: Vicki Carriker

DIV. IX

WARD

DIV. X

BEASLEY

1. STATE V. SHERMAN LEWIS: Indicted for First Degree Murder Trial from November 28th through December 2nd.

Verdict: Guilty of the lesser included offense of Voluntary Manslaughter Prosecution: Pam Stark Defense: Juni Ganguli 1. STATE V. KEVIN GIBSON: Indicted for Aggravated Assault Trial from November 14th through the 17th. Verdict: Mistrial Prosecutor: Michael McCusker Defense: Josie Holland 2. STATE V. TREVENO CAMPBELL: Indicted for Murder First Trial lasted from January 24th through January 31st Verdict: Guilty of the lesser included offense of Murder Second Prosecutor: Alanda Dwyer and Reggie Henderson Defense: Bill Massey & Lorna McCluskey 3. STATE V. CUTRELL CHAPMAN: Indicted for Murder First Degree Trial lasted from February 13th through the 17th.

Verdict: Not Guilty Prosecutor: Michael McCusker & Steve Ragland Defense: Rob Gowan

35

Circuit Court Report

by STEPHEN LEFFLER

DIV 1: FELICIA CORBIN-JOHNSON 1. CT-000218-13: 9-16-16, Sheena Lee v. William MacMillan Rodney, M.D. and Medicos General PLLC, Med Mal, Jury, Murray B. Wells, Carlissa Shaw and Arthur E. Horne III, for Plaintiff, Joseph M. Clark and Samantha Bennett for Defendants, Defense Verdict.

2. CT-004499-15: 11-22-16, Auto X-Change v. Robert Poole, Breach of Contract, Non-Jury, Roger A. Stone for Plaintiff, Robert E. Poole, Pro Se, Plaintiff Verdict for $12,272.66.

3. CT-000608-14: 12-1-16, United Rentals. v. H&K Plumbing and Heating, Inc., Patricia Kraig and Harolg Kraig., Breach of Contract, Non-Jury, Alan Kleiman for Plaintiff, Edward Bronston for Defendants, Plaintiff Verdict for $1,470.18.

DIV 2: JAMES F. RUSSELL 1. CT-003839-14: 10-21-16, Estella Yarborough, Administrator ad Litem for the Estate of Danny Yarborough v. James J. Pearce, Auto Accident, Jury, Drew Davis and William B. Ryan, for Plaintiff, James B. “Trey� McLain III for Defendants, Defense Verdict (60% fault to Plaintiff, 40% fault to Defendant).

DIV 3: VALERIE L. SMITH 1. CT-000986-14: 9-29-16, Sharon Davis, Individually and as Next Friend to Frederick Davis, a Minor v.

Michael Freels, Auto Accident, Jury, W. David Cheek for Plaintiff, Andrew H. Owens for Defendant, Defense Verdict.

2. CT-004998-14: 11-22-16, Jeremy Alexander v.

Michael Widmer, Auto Accident, Jury, Beth Brooks for Plaintiff, Bradford D. Box and W. Christopher Frulla for Defendant, Defense Verdict.

3. CT-005475-11: 11-28-16, Terry G. Reid and Shirley Conley Reid v. Jeremy R. Hunt, Auto Accident, Jury, Edwin C. Lenow for Plaintiff, Lori D. Parish for Defendant, Gross Plaintiff Verdict for Terry Reid: $3,400,942.63; Gross Plaintiff Verdict for Shirley Conley Reid: $53,000.00; Comparative Fault: 75% to Defendant, 25% to Plaintiff; Net Plaintiff Verdicts: $2,550,706.97 to Terry Reid and $39,750.00 to Shirley Conley Reid; Recovery for Terry Reid reduced to $1,113,206.97 per Tennessee Civil Justice Act. 36

4. CT-002321-11: 12-2-16, Nicole Coppola v. J. Santos Magana Alvarez and Maria Alvarez, Auto Accident, Jury, Skip Carnell for Plaintiff, William Jeter for Defendant, Mistrial on the grounds that the investigating officer volunteered that he issued a traffic ticket to the defendant because he found her to be more at fault

DIV 4: GINA C. HIGGINS 1. CT-001057-07: 10-6-16, State of Tennessee on Relation of the Commissioner of the Department of Transportation v Mervyn Israel, Sandra Israel and Cheryl Dixon, et. al., Condemnation, Non-Jury, George G. Boyte, Jr., J. Kevin Walsh and David Wade for Plaintiff, Taurus Bailey, Guardian ad Litem, Gregory S. Gallagher for Shelby County, Paul Turner for City of Germantown, Plaintiff Verdict for possession; Defense Recovery of $139,573.

2. CT-000145-07: 10-7-16, Charles Darnell v. Marvin Priolla, Damage to Real Property, Non-Jury, R. Linley Richter for Plaintiff, Geoffrey Gaia for Defendant, Plaintiff Verdict for $117,352.00.

3. CT-005348-10: 10-10-16, Charlotte Addison, Individually and as Legal Guardian and Next Friend of Erin Cunningham, a Minor v. City of Memphis, GTLA (Negligent Road Design), Non-Jury, Mark Ledbetter for Plaintiff, J. Michael Fletcher for Defendant, Defense Verdict.

4. CT-001248-15: 10-21-16, Odell Exum v. Yaneth Garcia, Dog Bite, Non-Jury, Michael Don Harrell for Plaintiff, Defendant, Pro Se, Plaintiff Verdict for $2,062.00.

5. CT-003203-15: 10-24-16, William Marr and Sharon Marr v. Tierney Jordan, Auto Accident, Jury, David A. Gold, Sarah K. Koon and David A. McLaughlin for Plaintiffs, Dawn Davis Carson for Defendant, Plaintiff Verdict for $7,500.00.

DIV 5: RHYNETTE HURD 1. CT-001877-13: 10-10-16, Frederick M. Smith v.

City of Memphis and Torrence Taylor, GTLA (Auto Accident), Non-Jury, Derek O. Fairchilds for Plaintiff, Taurus Bailey for Defendant, City of Memphis, Plaintiff Verdict for $68,183.00. Case dismissed as to Torrence Taylor.

2. CT-004785-15: 11-16-16, 187 Pinehurst Associates v.

Neely Anne Bryan, General Sessions Appeal, Non-Jury, Howard R. Peppel for Plaintiff, Bruce L. Feldbaum for Defendant, Plaintiff Verdict for $1,082.16.

DIV 6: JERRY STOKES 1. CT-005376-12: 7-21-16, Arner Frison v City of Memphis, GTLA (Defect in Pavement), Non-Jury, Christopher L. Taylor for Plaintiff, Prince C. Chambliss, Jr., for Defendant, Defense Verdict.

2. CT-000531-14: 8-2-16, Rosie M. Smith v. Akash N. Karawadra, Auto Accident, Jury, Eric J. Plumley and Charles Silvestri Higgins for Plaintiff, Stephen C. Barton for Defendant, Plaintiff Verdict for $6,674.47.

3. CT-002499-12: 9-8-16, Corey Finley v City of Memphis, Breach of Contract, Non-Jury, Martin R. Kriger for Plaintiff, Prince C. Chambliss, Jr., for Defendant, Plaintiff Gross Verdict for $40,000.00, Comparative Fault: 52% to Defendant and 48% to Plaintiff; Net Plaintiff Verdict: $20,800.00. After setoff of $42,798.00 for medical expenses, zero recovery for Plaintiff.

4. CT-002082-15: 10-25-16, Herman Smith v Lee Woods, Auto Accident, Jury, Richard Click and Greg Mangrum for Plaintiff, H. Lynne Smith for Defendant, Plaintiff Verdict for $12,000.00.

5. CT-004507-15: 11-16-16, American Express Bank FSB v. Michael Bast, Breach of Contract, Non-Jury, Michelle S. Moghadom and Alex S. Dimitt for Plaintiff, Defendant Pro Se, Plaintiff Verdict for $13,579.88.

DIV 7: DONNA M. FIELDS / MARY L. WAGNER 1. CT-004249-10: 8-18-16, Cindy Hatfield, Administratrix of the Estate of Martha Jane Pierce and on behalf of the Wrongful Death Beneficiaries of Martha Jane Pierce v. Allenbrooke Nursing and Rehabilitation Center, LLC d/b/a Allenbrooke Nursing and Rehabilitation Center, Aurora Cares LLC, DTD HC, LLC, and Chief Executive Officer and Chief Financial Officer of Aurora Cares, LLC, and Norbert Bennett, Individually and as the sole member of D&N, LLC, and Chief Executive Officer of Aurora Cares, LLC, Nursing Home Negligence, Jury, Cameron C. Jehl, Carey L. Acerra and Deena K, Arnold for Plaintiff, Craig C. Conley and Michael Goodin for Defendants, Plaintiff Verdict for Negligence: $1,906,000.00; Plaintiff Verdict for violation of Tennessee Adult Protection Act: $129,000.00; Defense Verdict for Wrongful Death of deceased; Punitive Damages of $28,000,000.00.

DIV 8: ROBERT S. WEISS 1. CT-003394-15: 8-30-16, Kristin Danielle Holloway v.

Group Properties, LLC, Premises Liability, Non-Jury, Michael S. Long for Plaintiff, Andre B. Mathis for Defendant, Plaintiff Verdict for $5,040.00.

2. CT-002782-14: 9-13-16, Greentree Financial Servicing, LLC n/k/a Ditech Financial LLC v. Tiffenett Ritter, Foreclosure, Non-Jury, Elizabeth Ann Cash for Plaintiff, Curtis D. Johnson, Jr., for Defendant, Plaintiff Verdict for possession.

3. CT-002813-10: 10-10-16, Cedric Scott v. Gregory Collier and City of Memphis, GTLA, Non-Jury, Amanda K. Strange for Plaintiff, Philip Oliphant for Defendant, Plaintiff Gross Verdict for $35,294.12, reduced by 49% comparative fault; Net Verdict $18,000.00.

4. CT-001158-12: 10-25-16, Sheila Parks On Behalf of her Mother, Florence Johnson v James Eric Gardner, M.D., Med Mal, Jury, Robert L.J. Spence and Regina Guy for Plaintiff, Kimbrough Johnsons, Marcy D. Magee and Natalie Bursi for Defendant, Defense Verdict.

5. CT-004325-13: 10-28-16, Jerry R. Price v. Carolyn W. Wilkins, Auto Accident, Jury, Adam H. Johnson for Plaintiff, James E. King, Jr. for Defendant, Defense Verdict on Counterclaim (51% Fault to Plaintiff and 49% Fault to Defendant), $650.00 Defendant’s gross damages for a net defense verdict for $331.50.

6. CT-001116-15: 11-9-16, Vernon Cole v. James Davis d/b/a James Davis Auto, Breach of Contract, NonJury, Matt C. Gullota and Ruchee J. Patel for Plaintiff, Jimmie D. Drewery for Defendant, Plaintiff Verdict for $600.00.

7. CT-000179-15: 11-18-16, Shalisa D. Pritchard v. Anne M. May, Auto Accident, Jury, Adam H. Johnson for Plaintiff, Lawrence W. White for Defendant, Plaintiff Verdict for $13,877.98.

DIV 9: ROBERT L. CHILDERS 1. CT-000218-16: 11-15-16, William Sidney v. Nekola Conery, Landlord / Tenant, Non-Jury, Roger A. Stone for Plaintiff, Defendant pro se, Plaintiff Verdict for $6,560.00.

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COURT REPORT

United States District

by DEAN DECANDIA

Covers July to December 2016 FOWLKES 1. USA v. Robert Bates: Trial from Oct 31 to Nov 2.

Indicted for 8 counts of possession of firearm while a convicted felon. Verdict: Guilty as indicted. Prosecution: David Pritchard, Will Crow. Defense: Art Quinn.

2. USA v. Charles Tigner: Trial from Dec 5 to 6.

Indicted for possession of firearm while a convicted felon, possession of firearm in a school zone. Mistrial.

Prosecution: Bayonle Osundare, Dean DeCandia.

Defense: Vicki Carriker, Greg Allen.

LIPMAN 1. USA v. Antonio Stacker: Trial from Aug 15 to 18.

Indicted for possession of firearm while a convicted felon. Verdict: Guilty as indicted. Prosecution: Bridgett Stigger, David Biggers. Defense: Mary Cay Robinson, Ned Germany.

2. Wright v. Sam’s Club: Trial from Nov 28 to 29.

Complaint for negligence (premises liability). Defense verdict. Plaintiff: John Cocke, Charles Merkel, Jr. Defense: Russell Reviere, William Frulla.

3. USA v. Evaristo Millan: Trial from Dec 5 to 8. Indicted for Conspiracy: possession to distribute over 50 g. methamphetamine with intent to distribute. Verdict: Guilty as indicted. Prosecution: Mark Erskine, Joe Murphy. Defense: Janika White, Dewun Settle.

4. USA v. Aaron Hope: Trial from Dec 12 to 14. Indicted for conspiracy to pass altered money orders, 3 counts of passing altered money orders. Guilty plea as indicted during trial. Prosecution: Michelle Parks, Jerry Kitchen.

Defense: Jocelyn Henderson, Corliss Shaw.

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MAYS (SENIOR STATUS) 1. Baxter Bailey & Associates v. Powers & Stinson, Inc.: Trial from Jul 25 to 26. Complaint for cybersquatting, trademark dilution, violation of the Tennessee Consumer Protection Act, and civil conspiracy to unfairly compete. Verdict: $1,000 award to plaintiff.

Plaintiff: Edgar Davison. Defense: Taylor Cates, Russell Fox. 2. USA v. Jamie Thomas: Trial from Sept 6 to 12. Indicted for possession of firearm while a convicted felon.

Verdict: Guilty as indicted. Prosecution: Marques Young, Murre Martindale. Defense: Stephen Leffler.

3. Joanne Russ v. MLGW: Sept 26 to Oct 6. Complaint for ADA employment discrimination and retaliation.

Defense verdict. Plaintiff: Kathleen Caldwell. Defense: Saul Belz, Michael Tauer, Miska Shaw.

MCCALLA (SENIOR STATUS) 1. USA v. Preston Byrd: Trial from July 6 to 7. Indicted for making false statements. Verdict: Guilty as indicted.

Prosecution: Carroll Andre. Defense: James Jones.

2. William H. Thomas, Jr. v. John Schroer (as Commissioner of TDOT): Complaint and request for declaratory judgment for violation of 1st Amendment and Equal Protection rights. Defense verdict. Plaintiff: George Fusner. Defense: Dawn Jordan, Amanda Jordan, George Boyte, Jr.

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Memphis-based law firm McNabb, Bragorgos & Burgess, PLLC proudly announced the firm’s name change to McNabb, Bragorgos, Burgess and Sorin, PLLC, effective immediately. RICHARD E. SORIN is a member of the firm, and has been with the firm since its inception in 2002. Marc A. Sorin, Richard's brother, is also a member of the firm, having joined the practice in 2010. Founded in Memphis, the firm is comprised of 15 attorneys who provide a full array of legal services in various practice areas throughout Tennessee, Mississippi, Arkansas and Kentucky. The home office is located at 81 Monroe Avenue, 6th Floor in downtown Memphis, TN. Attorney GRAY BARTLETT has joined Shea Moskovitz & McGhee. Prior to joining the firm, he practiced for 17 years with Ballin, Ballin & Fishman, PC. Mr. Bartlett’s practice areas include criminal defense, asset forfeiture and federal criminal law. He is licensed in the State of Tennessee and the United States District Court for the Western District of Tennessee. In addition, he is a member of the Memphis Bar Association, the Tennessee Bar Association, the American Bar Association, the Tennessee Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers.

The Adverse Childhood Experiences (ACE) Awareness Foundation announced Shelby County Public Defender STEPHEN C. BUSH as its new board chair. The Memphisbased Foundation’s mission is to educate, inform and lead on the ACE issue to position the Greater Memphis-area to be a catalyst in enacting lasting and enduring change in policy and practice to permanently reduce toxic stress in family systems.

Bush, a founding member of the ACE Awareness Task Force, is replacing the Foundation’s founding board chair, Barbara H. Nixon, who will become an ex-officio member on the board will continue to serve the Foundation as a consultant.

Bass, Berry & Sims PLC announced that JOHN S. GOLWEN has been appointed to serve as the managing partner of the firm’s 51-person Memphis office. Golwen succeeds Richard

R. Spore as managing partner, who served in the position for three years.

In a career spanning more than 25 years, Golwen has represented a variety of businesses and company executives in all types of business litigation and related disputes.

Throughout his career, he has tried numerous cases in courts and arbitration tribunals around the country and has argued many cases in front of the appellate courts in Tennessee and in federal courts of appeals. Golwen also is a certified Tennessee Supreme Court Rule 31 Mediator and regularly serves as a mediator in commercial litigation cases.

DOUGLAS F. HALIJAN, a partner at Burch, Porter & Johnson, PLLC, has been appointed by the Tennessee Supreme Court to a three-year term on the Advisory Commission for the Tennessee Rules of Practice and Procedure. The Commission advises the Supreme Court and the Administrative Office of the Courts on the rules of practice and procedure. The issues before the Commission frequently involve proposed revisions and additions to the Tennessee Rules of Civil Procedure and Tennessee Rules of Criminal Procedure, as well as other court rules affecting the administration of justice in Tennessee courts.

The Commission is also responsible for drafting the Advisory Commission Comments that accompany all amendments to the Rules of Civil Procedure.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. announced that CHRIS HARRISON has been elected to the position of shareholder. Harrison’s practice includes all aspects of labor and employment law, including litigation, arbitrations, non-compete agreements, collective bargaining, union representation issues, grievances and labor arbitrations, unfair labor practices, employment discrimination, retaliation, whistleblower claims, administrative law claims, and airline regulatory matters.

The law firm of Baker Donelson has named MARY ANN JACKSON chair of the Firm's Corporate Finance & Securities Group. Ms. Jackson is a shareholder located in Baker Donelson's Memphis office and serves as corporate counsel to her clients, helping them to achieve their business objectives through financings, mergers and acquisitions, tax planning and general counseling. She has extensive experience in forming and structuring business organizations, such as limited liability companies, partnerships and joint ventures, as well as advising clients regarding private securities offerings, shareholder agreements, employment agreements, venture capital fund formation, real estate and other fund formation, confidentiality agreements and general business contracts.

If you are a MBA member in good standing and you’ve moved, been promoted, hired an associate, taken on a partner, or received an award, we’d like to hear from you. Talks, speeches, CLE presentations and political announcements are not accepted. In addition, we will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers). Notices must be submitted in writing and limited to 100 words; they are printed at no cost to members and are subject to editing. E-mail your notice and hi-resolution photo (300 dpi) to sklarson@memphisbar.org.

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ZACHARY B. JOHNSON is the first recipient of the Nahon Saharovich & Trotz Law Firm Scholarship, which will be awarded annually to a third-year law student at the University of Memphis Cecil C. Humphreys School of Law. Johnson was selected by a law school committee based on a written essay and academic excellence. The winning NST scholarship recipient also must be interested in the legal area of personal injury and must have been a member of Law Review or worked in a judicial office. The scholarship is funded through an endowment given by NST to the law school.

City of Memphis Mayor Jim Strickland appointed MILES MASON, SR. JD, CPA to the Memphis and Shelby County Community Redevelopment Agency Board. Mr. Mason, along 1

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with fellow members of the Board, reviews applications for Tax Increment Financing (“TIF”) Districts, which allocates additional tax revenue needed to fund redevelopment projects.

Adams and Reese announced that M. ROXANA “ROXY” RUDOLPH has joined the firm as an Associate in the Litigation Practice Group. Rudolph has experience in various areas of civil litigation, including commercial disputes; products liability matters; medical malpractice suits; banking and financial matters; and appellate work. She focuses her practice in the areas of product liability, banking/financial services, commercial dispute resolution, First Amendment and media law, appellate matters, and securities. t 3

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Chris Harrison Douglas F. Halijan Gray Bartlett John S. Golwen Mary Ann Jackson

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Richard E. Sorin Miles Mason, Sr M. Roxana “Roxy” Rudolph Stephen C. Bush Zachary B. Johnson

SUBMIT YOUR NEWS AND UPDATES ONLINE AT: WWW.MEMPHISBAR.ORG/BLOG/SUBMIT-CONTENT 43

TENNESSEE CHAPTER Memphis Area Members recognized for Excellence in the field of Mediation or Arbitration

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