Nashville Bar Journal
August 2013 - VOL 13, NO. 7
Inconvenient Justice A Profile of the Tennessee Justice Center James W. White
SEQUESTRATION OF JUSTICE: Will the 50th Anniversary of Gideon v. Wainwright Be Marked by Gutting the Federal Public Defender’s Office? Dumaka Shabazz & Henry Martin
NBA Picnic Registration Form
Nashville Bar Association
BUILDING ON 50 YEARS OF SERVICE TO THE LEGAL COMMUNITY.
16th Annual FREE Member Picnic Event
September 19, 2013 y 5:30-8:30PM
The 16th Annual Nashville Bar Association Member Picnic will be held on September 19, 2013!
The ABA RETIREMENT FUNDS PROGRAM is proud to celebrate its 50th year of providing comprehensive and affordable retirement plans
y BBQ y Open Bars y Music y Socializing
exclusively to the legal community. Your membership has made the Program a success. Thank You. Find out what thousands of Program member firms already know about saving for retirement.
Call an ABA Retirement Funds Program Regional Representative today at (866) 812-1510. www.abaretirement.com joinus@abaretirement.com Please visit the ABA Retirement Funds at the upcoming Nashville Bar Picnic for a free cost comparison and plan evaluation. September 19, 2013 • Hall of Fame Park, Nashville, TN The Program is available through the Nashville Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC). The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services. CN0311-8581-0415
This year's picnic will have a fun team sports theme and will include trivia and fun activities provided by the event sponsors, prize drawings, and more! Please feel free to show support to your favorite sports team by wearing a jersey and/or team hat. Bar-B-Q Dinner and Open Bars will be also be provided. The event begins at 5:30 pm with dinner served at 7 pm. The Hall of Fame Park is located centrally downtown between the Country Music Hall of Fame, Downtown Hilton Hotel and the Schermerhorn Symphony Center. We look forward to seeing you all there! Please RSVP Using the form on page 15 or RSVP Online at www.nashvillebar.org
A Monthly Publication of the Nashville Bar Association
Articles 6 8
Departments 2
Inconvenient Justice: A Profile of the Tennessee Justice Center
4
James W. White
Affordable Care Act Insurance Mandates: Is Your Firm Ready? Jeff Smith, CPA
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SEQUESTRATION OF JUSTICE: Will the 50th Anniversary of Gideon v. ......... Wainwright Be Marked by Gutting the Federal Public Defender’s Office?
CENTER SECTION
Columns
16
13
100% Club
15
NBA Picnic Registration Form
22
Gadget of the Month
Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting
Book Review: A Lost Gun
Communique • Carbolic Smoke Ball • Directory Photography • NBA Picnic • Tune Award • Golden Oldie Reveal • Upcoming Events
CONTINUING LEGAL EDUCATION
Dumaka Shabazz & Henry Martin
12
From the President
24
Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings
Golden Oldie
Reviewed by Ellie Wetzel
Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.
NBA Calendar of Events August 13 - 7:30 AM Solo/Small Firm Committee Meeting August 13 - 12 PM L.A.W. Meeting August 13 - 12 PM Ethics Committee Meeting August 15 - 1:30 PM CLE Committee Meeting
August 22 - 12 PM NBF Trustees Meeting August 22 - 3:30 PM Finance Committee Meeting August 22 - 4:30 PM Executive Committee Meeting September 19 - 5:30 PM NBA Picnic
Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org
A Monthly Publication of the Nashville Bar Association
Tom Sherrard, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com
Eleanor Wetzel, Managing Editor
From the President A Man for all Seasons by:
Tom Sherrard
eleanorwetzel@jis.nashville.org
Journal Staff:
Nikki Gray, Director of Communications nikki.gray@nashvillebar.org
Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org
Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb
Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219
No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.
Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org
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Nashville Bar Journal - August 2013
In the July 2013 issue of the Tennessee Bar Journal, Donald F. Paine wrote a brief feature story on William J. Harbison, referring to him as “Tennessee’s greatest lawyer.” I wholeheartedly agree, and I am certain many others who knew Bill Harbison would concur. Certain qualities of personality made him a remarkable lawyer, jurist, teacher, mentor and friend. To begin, Bill Harbison was gifted with an extraordinary intellect, including nearly total recall. Valedictorian of his high school class and Phi Beta Kappa at Vanderbilt University, he graduated from Vanderbilt Law School in 1950 as the Founder’s Medalist with a grade point average that has never been equaled. There is a wonderful, and true, story about Bill Harbison’s remarkable intelligence. Having taken the Tennessee Bar Examination after graduation in 1950, a member of the Board of Bar Examiners called John Wade, then the Dean of Vanderbilt Law School, to voice his concern that one of Vanderbilt’s recent law graduates had cheated on the Bar Exam. It seems that the examinee in question had not only made an impossibly high score, but the numerous case citations in the exam answers referred to specific book and page numbers. These were checked by the examiners, and were all found to be correct. John Wade, very concerned, asked who the alleged offender was, and he was told it was a young man named William J. Harbison. Dean Wade chuckled and responded, “Well, if it was Bill Harbison, he certainly wasn’t cheating. He did the same amazing thing on all of his law school examinations.” Bill Harbison’s professional career spanned 43 years of private law practice in Nashville and service as a Justice on the Tennessee Supreme Court, first by special appointment in 1966‑67, and then for two elected terms, from 1974 until his retirement in 1990. Justice Harbison and his four colleagues on the Supreme Court during this period constituted what many believe was Tennessee’s most distinguished Supreme Court. Justice Harbison’s service on the Supreme Court was exemplary. Justice Frank Drowota, who served with him during this period, stated that “although the position of Chief Justice rotated, Bill Harbison was the quiet, soft-spoken, inspirational leader of the Court during his 16‑year tenure.” Justice Drowota also remarked that “his opinions were always clear, concise, forceful, logical; they have greatly enriched the jurisprudence of this state. His tenure on the Court left an indelible imprint.” 1 Bill Harbison was also a natural born teacher, and from the time he graduated from law school until his death, he also taught at Vanderbilt and, beginning in 1991, at the Nashville School of Law. During those 43 years, thousands of law students experienced his unparalleled intellect and his warm, engaging and understated approach to teaching and learning, an approach that resulted year after year in his being considered one of the finest and most popular teachers. In 1990, upon his retirement from the Supreme Court, Bill Harbison joined Sherrard & Roe, and for the next three years, until his untimely death in October 1993, I and all the lawyers in our firm had the rare privilege of witnessing those qualities that made Bill Harbison such a highly respected lawyer and jurist. If asked, I suspect many of us who knew him would respond that Bill Harbison’s most appealing characteristics were those of modesty and humility. Although he was deferential, he was nonetheless a man of deep convictions, and was always willing
2013 NBA BOARD OF DIRECTORS
to take a stand and defend his position with all his talent and energy. He was softspoken and a good listener. He was genuine in all things, and was never pretentious or false. Although he stood at the pinnacle of his profession, he did not take himself too seriously. He had a wonderful sense of humor. He was not aloof or distant, and was always approachable by even the youngest attorney seeking his counsel. These attributes explain why so many lawyers, myself included, considered Bill Harbison as a mentor, a role that he assumed naturally and with enthusiasm. In the May 2013 issue of the Nashville Bar Journal I penned a short piece on the coarsening of the profession and the rise of incivility among lawyers.2 To the contrary, Bill Harbison was a model of civility, courtesy and professionalism, and he served as an exemplar of what is best about the profession of law. n
(Endnotes) 1 Frank F. Drowota, III, In Memoriam: William J. Harbison, 61 Tenn. L. Rev. 395, 396-97 (1994). 2 Thomas J. Sherrard, The Coarsening of the Profession, Vol. 13, No 4 Nash. B.J. 2 (May 2013).
Thomas J. Sherrard, President Charles K. Grant, President-Elect Patricia Head Moskal, First Vice President John R. Tarpley, Second Vice President John D. Kitch, Immediate Past President Cornell Kennedy, Secretary Trace Blankenship, Treasurer Gareth Aden, General Counsel Robert E. Boston Dewey Branstetter Kay Caudle C. Dawn Deaner Michele M. Johnson Edward D. Lanquist, Jr. Hon. Randal S. Mashburn John C. McLemore Jeffrey Mobley Andrea P. Perry Matt Potempa Maria M. Salas Saul A. Solomon Jocelyn A. Stevenson Overton Thompson, III
Got an Idea for an NBJ Article? We want to hear about the topics and issues readers think should be covered in the magazine. Send it to nikki.gray@nashvillebar.org
Nashville Bar Journal - August 2013
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communiqué
NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION
Carbolic Smoke Ball On July 27, 2013, the Nashville Bar Association’s Young Lawyers Division held the 16th Annual Carbolic Smoke Ball. Proceeds from this year’s event benefit two local non-profit organizations: CASA Nashville & The Nashville Children's Alliance. This year’s fundraiser, co-chaired by Kerry Ewald & Will Hicky, featured live music from the 90s cover band "My So Called Band", heavy hors d’oeuvres (catered by Paradise Park), casino gaming, and an open bar. A big thank you to our generous sponsors, hosts, and committee members! 2013 CARBOLIC SMOKE BALL SPONSORS: Gold Sponsors- Stites & Harbison; Waddey & Patterson; and Waller Silver Sponsors- Baker Donelson; Bradley Arant Boult Cummings; Burr Forman; Constangy, Brooks & Smith; Dickinson Wright; Gullett, Sanford, Robinson & Martin; Neal & Harwell; RJ Young; and Sherrard & Roe Bronze Sponsors - Adams & Reese; Bass, Berry & Sims; DHPM, P.C.; Frost Brown Todd; HCA; Leitner Williams; Nelson, Mullins, Riley & Scarborough; Ortale, Kelley, Herbert & Crawford; and Walker, Tipps & Malone Small Firm Sponsors - Counsel on Call; Kinnard, Clayton & Beveridge; and Littler Mendelson Vendor: Priscilla's Plants, RJ Young, and Thompson Reuters 2013 CARBOLIC SMOKE BALL COMMITTEE: Katie Atkins, Bahar Azhdari, Robb Bigelow, James Bowden, Colleen Bracken, Allison Economy, Bill Fiala, James Haltom, Lauren Kilgore, Jamie Machamer, Emily Mack, Robert Pinson, Lindsay Schenk, Rissa Weathers, Michael Wennerlund, and Kyle Young
UPCOMING EVENTS: NBA Picnic Hall of Fame Park Thursday, September 19, 2013 ---------------------------------NBA Swearing-In Ceremony Justice AA Birch Building Tuesday, November 12, 2013 --------------------------------------
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Nashville Bar Journal - August 2013
Memorial Service Downtown Presbyterian Church Thursday, November 21, 2013 -------------------------------------Annual Banquet Wildhorse Saloon Thursday, December 5, 2013 --------------------------------------
n
n
SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS
NBA Free Member Picnic! The Annual Nashville Bar Association Free Member Picnic, co-sponsored by Metro Law Department, will be held on September 19, 2013, at Hall of Fame Park. This event is free to all NBA Members! The event begins at 5:30 pm with dinner served at 7:00 pm. The Hall of Fame Park is located centrally downtown between the Country Music Hall of Fame, Downtown Hilton Hotel and the Schermerhorn Symphony Center.
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COMMITTEE INFORMATION n NBA NEWS
2014 Directory Photography September 1 - September 30
The photography for the 2014 NBA Photo Directory has been set for September 1st September 30, 2013. Contact Bob Siddens Photography at (615) 419- 0355 or at bob@bobsiddensphoto.com if you have any questions or would like to schedule a session.
Hope to see you all there!
TUNE AWARD NOTICE
NBA News
Nominations are being sought for the John C. Tune Public Service Award to be presented at the Annual Meeting & Banquet on December 5, 2013.
Since 1831, the Nashville Bar Association has provided our members with programs and services to broaden their legal knowledge, further career goals, expand their client bases, give back to the legal community, and serve the public. And, through our many events and activities, CLE seminars, and committees, our members can take advantage of important networking and fellowship opportunities.
This award is to be given to the Nashville Bar Association member who has shown the highest degree of dedication not only to his or her work as a lawyer but to the betterment of the community in which he or she lives. The purpose of the award is to recognize members who make outstanding contributions to the greater Nashville area community while distinguishing themselves as practicing attorneys. Because of the nature of the award and the fact that it is to be considered the highest award which can be bestowed upon a member, it was decided that the award did not necessarily have to be given annually, but only when there is someone deserving of this award. Nominations should be directed to Traci Hollandsworth at 615242-9272 or traci.hollandsworth@nashvillebar.org.
-Golden Oldies
Over the past few years, the Nashville Bar Association has added the Solo and Small Firm and the Veteran's Committees to its roster of member committees and is considering the formation of a Senior Lawyers Committee; implemented the Lawyer2Lawyer mentoring initiative to provide a web-based resource to connect experienced attorneys with newer attorneys who desire guidance on substantive legal matters or the personal and professional demands of practicing law; implemented the NBA Career Center/Board for attorneys and paralegals; and began offering an attorney guest office and meeting space for those times our members need an "office away from the office." In order to continue to develop and enhance benefits and services such as these, as well as ensure adequate resources to meet future member needs, NBA dues would be raised by $10. This change will bring total regular dues to $245 for the upcoming membership year. Dues for Associate and Law Student Memberships and for the Young Lawyers Division will remain at current rates. Ever mindful of these economically challenging times, the NBA will continue to offer a sliding-scale dues structure that is based on law-related income.
James Hofstetter correctly identified the individuals in the July 2013 Golden Oldies photo. Pictured are: Harry Phillips, Weldon White, Thomas Wardlaw Steele and B.B. Gullett
We appreciate your commitment to and involvement with the Nashville Bar Association as we work together to improve the practice of law in our community.
Nashville Bar Journal - August 2013
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Feature
INCONVENIENT JUSTICE by:
James W. White
Tucked away in the basement of a non-descript parking garage in downtown Nashville, its location marked only by a simple nameplate, is the modest office of the Tennessee Justice Center (TJC). There is no outward indication of the importance of the Justice Center's work. The setting lacks the grandeur of the State Capitol, the stateliness of the Tennessee Attorney General's office, and the amenities of large downtown firms two blocks away. But every day the attorneys and staff of the Justice Center perform some of the most vital public interest legal representation in the State of Tennessee, defending bedrock constitutional rights of due process and equal protection of the law for over 1.3 million Tennesseans. They help secure basic health care and social services for those persons who are most vulnerable: the poor, people with disabilities, the very young, and the very old. They are the voice for the voiceless. The Tennessee Justice Center was founded as a non-profit organization by bar leaders from Nashville and across the state in 1996 to complement the work of the Legal Aid Society and Tennessee’s other federally funded legal services programs. Congress had just imposed restrictions, such as a ban on handling class actions, on those programs. Bar leaders established TJC to handle those types of restricted cases, and TJC and Legal Aid continue to work together closely to serve low-income families. Since its mission is to provide legal services to low-income Tennesseans in matters that cannot be handled by government-funded legal aid programs, TJC has received no state or federal funding since its founding. TJC continues to benefit, however, from strong support from the bar. Its board of directors, chaired by Rebecca McKelvey, is comprised primarily of bar leaders from across the state. The Tennessee Bar Foundation’s IOLTA program remains TJC’s largest single funder. Within the past year, Nashville law firms have taken 6
Nashville Bar Journal - August 2013
the lead in starting TJC’s Raising the Bar Campaign by making multi-year pledges of financial support for TJC. Nashville lawyers have donated many hours of pro bono help to assist low-income clients whom TJC lacked the resources to serve. Major national law firms have donated over $16 million in professional services as cocounsel in TJC’s major cases. The first two attorneys to staff TJC were Legal Aid alumni, Gordon Bonnyman and Michele Johnson, and they remain on the staff 17 years later. The other attorneys presently at TJC are Chris Coleman and Kristin Ware, who joined TJC in recent years. Gordon has devoted his 40-year career to serving low-income clients. Michele who is from a large Nashville family, received her law license in 1994 and also has worked her whole career in public interest law. She received the American Bar Association Young Lawyer Division’s Children’s Advocate of the Year for her work on behalf of low-income families and children. All four TJC attorneys are actively involved in professional organizations. Michele is a member of the NBA Board of Directors, Gordon received the NBA’s John Tune Community Service Award in 1995, and TJC received the NBA’s Liberty Bell Award in 1999. On January 1, 2014, Gordon will relinquish his role as executive director and become a staff attorney. Michele, who is currently serving as managing attorney, will become the new executive director. It is therefore a fitting time to review the history and legal work of the Justice Center.
For more information about the Tennessee Justice Center, please visit http://www.tnjustice.org/.
Since 1996, the voice of the Tennessee Justice Center on behalf of its clients has been heard, loudly and clearly, in the halls of power a short distance away. Often, power has not reacted kindly. The highest calling of the lawyer is to represent an unpopular client in defense of a principle that may be inconvenient in the political environment of the moment. The Justice Center has answered this call repeatedly, most notably during the history of the TennCare program (Tennessee's version of Medicaid). The State of Tennessee's denial of basic constitutional safeguards and its failure to provide federally required services for children has led the Justice Center to pursue class action litigation on behalf of TennCare beneficiaries to defend those rights. The legal battles in these cases have been epic and the stakes have been high. For the Justice Center's clients, life itself has often been at risk. This litigation has resulted in landmark decisions that have recognized and safeguarded the right of TennCare beneficiaries to challenge denials of coverage and services by their insurance plans (Binta B. v. Gordon, previously styled Grier v. Gordon)1; to receive nursing services at home rather than in nursing homes (Newberry v. Goetz); to receive notice and an opportunity to appeal termination of TennCare coverage (Rosen v. Goetz); and to receive federally mandated health care for children (John B. v. Goetz).2 There will always be robust public debate about the role of government and the cost of services that it provides. Regardless of political view, however, the lawyer who steps forward to represent an unpopular client against the emotion and pressures of public opinion, or a governmental entity with vastly greater resources, holds a place of special honor in our legal system. From John Adams's representation of the British soldiers in the Boston Massacre, to Atticus Finch's noble defense in To Kill a Mockingbird, a fictional portrayal
so powerful that it inspired a generation of young persons to become lawyers, the legal profession at its best has upheld the rule of law and individual rights of citizens against the storms and seemingly inexorable tides of the moment, no matter how strong, whether the pressure comes from government or the will of a transient majority. Bonnyman and Johnson are quick to say, however, that the real heroes are their clients. In addition to class action litigation, TJC’s attorneys and dedicated paralegal staff work one-on-one every day with individual clients who face denial of basic life-saving services. Much of this day-to-day casework takes place away from the spotlight of publicity and public awareness. They assist many individuals who need life-saving surgery but face denial of coverage due to mistake or indifference. They help their clients with the maze of complicated paperwork and application requirements, make phone calls, write letters, and persist in the face of daunting obstacles, all to the end of helping their clients receive the benefits to which the law says they are entitled. This work is not glamorous, but it is vital. In addition to high-profile health care-related work, the staff has served thousands of Tennesseans in matters involving access to nutrition and public assistance. Sometimes, successfully navigating bureaucratic obstacles is not sufficient. Policy choices about the scope and funding of TennCare have resulted in income limitations that at times have arbitrary and tragic consequences. For instance, some persons who become seriously ill and lose their job are forced to obtain disability benefits, only to find that the amount of the disability payments, though very modest, puts them slightly over the income limit for TennCare eligibility, leaving them with no alternative to pay for expensive medical treatments for cancer and other illnesses.
Other persons with very serious health needs have been cut from the TennCare program due to reductions in the size of the program, including diabetics, persons with dangerously high blood pressure, leukemia, and other life-threatening illnesses. The Justice Center helps these persons find alternative sources of health care, an effort that, given the current gaps in health insurance, calls for creative lawyering. The TennCare income eligibility limit is driven by immediate budget considerations, not the health care needs of low-income individuals or potential long-terms savings from better health. In these cases, the Justice Center educates policymakers and the public about the impact of policy decisions on health care services for low-income persons. The positions advocated by the Justice Center are often inconvenient for policymakers. It is difficult to hear that an income limitation set to meet a short-term budget requirement may result in death or unnecessary illness. Taking action that will produce savings in future years does not help meet an immediate budget shortfall. Perhaps an even greater challenge for the Justice Center is preserving the basic constitutional rights of due process and equal protection. The gradual erosion of due process through seemingly insignificant restrictions on notice and opportunity to be heard is insidious. Gradual erosion clears the way for greater erosions in the future, eventually resulting in a wholesale denial of the right to be heard. The Justice Center has successfully challenged many of these efforts through its class action litigation on behalf of low-income persons and in doing so has created an important set of procedural safeguards to protect beneficiaries from unjust denial of coverage. Continued on Page 14
Nashville Bar Journal - August 2013
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Feature
Affordable Care Act Insurance Mandates: Is Your Firm Ready? by:
Jeff Smith, CPA
What will the Affordable Care Act (ACA) insurance mandates mean to my practice as an employer? In recent conversations I have had with small business owners, I have discovered that most are struggling to understand their duties as employers regarding new health insurance mandates set to take effect in 2014. Confusion Is Abundant and Your Employees Are Looking to You for Answers A recent poll by the Kaiser Foundation indicates that most individuals are either unaware or confused by the mandate. In an April 2013 poll, 12% of the people polled indicated the law had been repealed by Congress, 7% believed that the Supreme Court had overturned the law, and 23% just did not know if the ACA remained as law. Another article that I read indicated that most employees are looking for their employer to help them understand the ramifications of the law. Two Significant Provisions to Know Let’s consider two major provisions in the law for businesses that, until recently, were scheduled to begin in January 2014. These are just two of the approximately 17 provisions that go into effect in 2014. The Employer Penalty First of all, large employers (defined as 50 or more employees) will face penalties for not providing a minimum level of health insurance benefit at an affordable rate to the employee. The law defines the minimum level of benefit as coverage that
provides an actuarial value of at least 60% − meaning that on average the insurance plan covers at least 60% of the cost of covered services for a typical population. The law defines affordable coverage as a charge to the employee for the employee coverage of a premium that does not exceed 9.5% of the worker’s income. So if you have an employee that makes $40,000 per year, the cost for their health insurance cannot exceed $3,800 per year ($316.66 per month). On July 2, the Treasury Department announced that it would delay its enforcement of these penalties until January 1, 2015. Individual Penalty The second part of the law imposes penalties on individuals for not having a minimum level of health insurance. This provision, known as the individual mandate, is scheduled to go into effect on January 1, 2014. Individuals will face penalties in 2014 of up to $285 for a family, or 1% of family income, whichever is greater. These penalties are schedule to increase in years to follow after 2014. So What About Small Employers? Where does that leave smaller employers – those with fewer than 50 employees? While they will not be penalized for failure to provide health insurance benefits, the costs of these plans is expected to rise. In addition, these benefits have long been used to attract and retain quality employees, and many small business owners will still want to continue to provide health insurance benefits to key employees as well themselves. Continued on Page 19
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Nashville Bar Journal - August 2013
TODAY. GONE TOMORROW.
RX
IS GS
OPPORTUNITY Sales Event ENDS SEPTEMBER 3
GOING ON NOW AT WWW.NASHVILLELEXUS.COM AND COOL SPRINGS
NASHVILLE Nashville Bar Journal - August 2013
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Feature
SEQUESTRATION OF JUSTICE:
Will the Fiftieth Anniversary of Gideon v. Wainwright Be Marked by Gutting the Federal Public Defender’s Office? by:
Dumaka Shabazz & Henry Martin August 5 marked the 50th anniversary of the trial of Clarence Earl Gideon after his successful battle in the U.S. Supreme Court.1 He faced the same judge, prosecutor, and witnesses he had faced almost two years earlier when he was convicted and sentenced to five years in prison. But this time, he was represented by a lawyer, W. Fred Turner, and was found not guilty, after a little more than an hour of deliberation.2 Ironically, in the 50th Anniversary year of the extension of the Sixth Amendment right to counsel to those unable to pay for legal services, the right is again at risk.3 Gideon v. Wainwright is not at risk of reversal in the courts. Rather the system built to implement the right is on the verge of bankruptcy – collateral damage from the sequestration of the federal budget. Our office returned to a five day work week July 29 for the first time since the end of March. This reduction of operations was not caused by lack of work. The sequestration of the federal budget left the office with insufficient funds to operate until the end of the fiscal year. Instead of closing the doors for most of September when money ran out, the office elected to furlough staff and close the office every Friday for a period of seventeen weeks. For the entire staff this meant a 20% cut in pay for four months – a loss that by law may not be made up. Our clients’ needs continued five days a week if not six or seven.
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Information about the Office of the Public Defender for the Middle District of Tennessee is available at http://tnm.fd.org/.
Each Friday one lawyer was in the office to handle emergencies and any new cases. “Furlough Fridays,” as these days were irreverently called, generally found several staff members at work, as did the Saturdays and Sundays before the office reopened on Monday. Other Federal Defender offices around the country suffered as well – some by laying off staff, some by drastic cuts in employee benefits and many with furloughs as we did. This all came after cutting all discretionary spending, including training, to the bone. None of the United States Attorneys’ offices had to furlough or lay off staff. In this district, the clerks’ offices and probation office avoided furloughs as a result of not filling vacancies in recent years.4 The federal judges here understand our plight and have been most cooperative. They have avoided scheduling appearances on Fridays when the office was closed, continued cases, and appointed panel lawyers as co-counsel in cases with expert witness needs beyond the capacity of our reduced budget. They have also let appropriate decision makers know that there will be serious harm to their ability to administer justice if the funding issues are not resolved. Sequestration ends with this fiscal year, September 30. However, the budget control act will still require drastic cuts in federal spending. Assuming political commentators are correct, there will be no federal budget passed by Congress this year. If the government is funded after September 30, it will be through a continuing resolution. While there remains much speculation, our office has been told that we could be cut by up to 23% of what it takes to operate the office with current staff. Given that personnel costs and rent make up all but about 10% of the budget,
such a cut would likely result in a loss of a third of the staff, or more. This would bring chaos to our clients’ cases, leading to continuances and substitutions of counsel. It would result in the tragic loss of employment for skilled staff members who have dedicated their talents and labor to the representation of the indigent, many of whom moved to Nashville for their jobs. Ironically, the cuts to our budget would not save money. The Bill of Rights requires the government to provide our clients with a lawyer. If we are not able to represent them, their cases will be reassigned to private attorneys who are members of the Criminal Justice Act panel in this district. The lawyers on this panel are good lawyers and do exceptional work. But they are compensated on an hourly rate and would have to get additional funds for investigators, paralegals, and expert witness services. Their total cost per case is consistently higher than representation provided by a staffed public defender office. While it is most likely that no decision maker intended harm to the federal defender program, there are decision makers who can avoid it. In mid-August, the Executive Committee of the U.S. Judicial Conference will meet. On its agenda is what the priorities should be in developing a spending plan for Criminal Justice Act programs with whatever money Congress provides. Historically, it has often dealt with budget shortfalls by deferring payments to panel lawyers for the last days or weeks of the fiscal year and then paying them at the start of the new fiscal year. When sequestration hit this year, the Executive Committee initially decided not to defer panel lawyer payments, placing the entire burden of the shortfall on federal defender offices – the offices and panel
lawyers are all funded from the Criminal Justice Act (CJA) appropriation. When the committee saw that defender offices had to lay off or furlough staff and close their doors periodically, it relented and agreed to limited deferral of panel payments. The decision the Executive Committee makes at its August meeting could protect defender offices from significant further damage by agreeing to panel payment deferral. Generally, panel lawyers recognize the important role defender offices play and support deferrals if necessary to preserve the offices. Unfortunately, the Executive Committee is also considering a temporary reduction of the rate of compensation paid to panel lawyers – a response not supported by defender offices or panel lawyers. Ultimately, this funding crisis can only be resolved by Congress. Since the spring when sequestration cuts forced us to resort to drastic action, efforts have been made to raise the visibility of our plight with members of Congress and their staffs. Considerable progress has been made, including a hearing before a Senate subcommittee July 23 that focused on the impact of sequestration on federal courts and federal defender offices. Both the House and Senate have marked up a budget that would bring relief to federal defender offices. However, the likelihood of Congress passing a budget could make these mark-ups academic. We anticipate that the Judiciary will ask Congress for an anomaly that would allow spending beyond the limits of a continuing resolution. If granted, the anomaly temporarily could save defender offices from loss of staff, until Congress returns to its responsibility to pass a budget. The Federal Public Defender’s office was opened in spring 1978, at the insistence of then Chief Judge L. Clure Morton.
Continued on Page 18
Nashville Bar Journal - August 2013
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The Galaxy S4: Samsung Holds Serve
We live in a binary world. Many choices come down to the best of two: Republican or Democrat, East Coast or West Coast, Leno or Letterman, Federer or Nadal (or is it Murray vs. Djokovic?). And so it is no surprise that the race for the superior smartphone has come down to competing tech giants, Apple vs. Samsung. Indeed, the smartphone war between Apple and Samsung continues unabated with Samsung firing the latest salvo in the release of its highly anticipated follow-up to the mega-popular Galaxy S3 smartphone .
that we catch ourselves trying to use the swyping technique on the iPad, to no avail). The 13mp rear camera on the S4 is simply amazing. There are many scene features that enable you to shoot photos like a pro, although we usually just default to the Auto setting and take consistently very good pictures. Some have knocked the low-light photo quality on this phone; however, we have seen just the opposite. In our few tests, when setting the scene for low-light, the resulting photos are great.
The successor Galaxy S4 was released in April of 2013; and, of course, we had to get one. We were not disappointed. The S4 is much like the S3, only a bit faster and better in many respects. Although the display size is larger, coming in at a whopping 5 inch Super AMOLED HD screen, the thickness and weight of the phone have miraculously gone down compared to the S3. Some may not like the plastic feel of the casing, as opposed to the more sturdy-feeling aluminum case of the iPhone5, but it really doesn’t bother us at all. We want a large enough smartphone to do actual work, but light and thin enough to slip unnoticed into a coat pocket. Score one for the S4.
Samsung really upped the ante with ground-breaking new features on the S4 which have received a lot of attention. With Air Gesture you can flip through photos and other select operations by simply waving your hand over the screen. Similarly, the Smart Pause feature somehow “reads” your eyeballs and will pause a video when you look away or auto-scroll a long document as you look down at the bottom of the page. While we have had some fun trying out these cool features; in all reality, we don’t use them on a regular basis. But they do make us look oh so sophisticated when we show out in front of our colleagues. Little do they know that we practically never use these features to do any real work.
One of the best things we like about the S4 is not one of the sexier features you often see highlighted in the tech media. It’s simply the incredible battery life. There is nothing worse than taking an important call at the end of a long day, only to have your smartphone die mid-conversation. As of yet, we have not run out of juice using the S4 even on the tail-end of some long, marathon litigation days. Boring battery life aside, however, there are many really cool features on the S4 that make it stand out from the crowd. The phone is fast as lightning with its quad-core processor and 2GB of RAM. The Jelly Bean version of Android that comes on the S4 has matured into a very reliable and efficient operating system. We find the Android interface intuitive and easy to master. The Swype Android keyboard technique is fantastic (so much in fact 12 Nashville Bar Journal - August 2013
One gripe we have about the S4 is the sensitivity of the buttons on either side of the S4 case. When handing the phone over to a friend to show a photo invariably the friend will accidentally hit one of the buttons and instead of seeing a beautiful beach panoramic photo, the friend sees either a pop-up screen or another photo (maybe one we didn’t want them to see). Those buttons are just too easy to activate when handling the phone normally. All in all, however, we love the Samsung Galaxy S4 for all the right reasons: it’s light, it’s fast, it’s big, it’s bold, and it’s cool. Apple, your serve. See you next month, —Bill & Phil
The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual directory. Contact Vicki Shoulders at 615-242-9272 or vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!
Waller Lansden Dortch & Davis, LLP (160) Bradley Arant Boult Cummings LLP (95) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (80) Stites & Harbison, PLLC (46) Butler, Snow, O'Mara, Stevens & Cannada, PLLC (45) Adams and Reese LLP (33) Harwell Howard Hyne Gabbert & Manner, P.C. (32) Bone McAllester Norton PLLC (32) Lewis, King, Krieg & Waldrop , P.C. (30) Sherrard & Roe, PLC (30) Neal & Harwell, PLC (30) Dickinson Wright PLLC (28) Gullett, Sanford, Robinson & Martin, PLLC (27) Frost Brown Todd LLC (23) Ortale, Kelley, Herbert & Crawford (20) Riley Warnock & Jacobson, PLC (18) Leitner, Williams, Dooley & Napolitan, PLLC (18) Waddey & Patterson, P.C. (17) Cornelius & Collins, LLP (16) Burr & Forman LLP (15) Walker, Tipps & Malone, PLC (15) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (14) Brewer, Krause, Brooks, Chastain and Burrow, PLLC (15) Tune, Entrekin & White, P.C. (14) Smith Cashion & Orr, PLC (13) Branstetter, Stranch & Jennings, PLLC (13) Watkins & McNeilly, PLLC (11) Parker, Lawrence, Cantrell & Smith (11) Hughes & Coleman (11) Spicer Rudstrom, PLLC (10) White & Reasor, PLC (9) Morgan & Akins, PLLC (9) Hall, Booth, Smith, P.C. (9) Dollar General Corporation (10) Dodson Parker Behm & Capparella, P.C. (9) Schulman, LeRoy & Bennett, P.C. (9) Levine, Orr & Geracioti, PLLC (8) Jones Hawkins & Farmer, PLC (8) Littler Mendelson, P.C. (7) Lassiter, Tidwell & Davis, PLLC (7) Howard Mobley Hayes & Gontarek, PLLC (7) Evans, Jones & Reynolds, P.C. (7) Buffaloe & Associates, PLC (7) Barrett Johnston, LLC (6) Taylor, Pigue, Marchetti & Blair PLLC (6) Nelson Mullins Riley & Scarborough (6) Leader, Bulso & Nolan, PLC (6) Keller, Turner, Ruth, Andrews, Ghanem & Heller, PLLC (6) Holton Blackstone & Mayberry, P.C. (6) Hollins, Raybin & Weissman, P.C. (6) Garfinkle, McLemore & Young, PLLC (5)
American General Life Insurance Company (6) Vanderbilt University Law School (5) Trauger & Tuke (5) Rocky McElhaney Law Firm, PC (5) Prochaska Thompson Quinn & Ferraro, P.C. (5) Loeb & Loeb, LLP (5) Kinnard, Clayton & Beveridge (5) Haynes, Freeman & Bracey, PLC (5) Farris Bobango, PLC (5) Direct General Corporation (5) Chaffin & Burnsed, PLLC (5) Thrailkill, Harris, Wood & Boswell, PLC (4) Tennessee Justice Center (4) Shackelford, Zumwalt & Hayes, LLP (4) Rutherford & DeMarco (4) Rogers, Kamm & Shea (4) Papa & Roberts, PLLC (4) Mudter & Patterson (4) MTR Family Law, PLLC (4) Lieff, Cabraser, Heimann & Bernstein (4) Law Offices of John Day, P.C. (4) Law Office of Julie Bhattacharya Peak (4) Hale & Hale, PLC (4) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Cheatham, Palermo & Garrett (4) Weatherly, McNally & Dixon, PLC (3) Video Gaming Technologies, Inc. (3) The Jones Law Group, PLLC (3) Southland Title & Escrow Co., Inc. (3) Smythe & Huff (3) Puryear Law Group (3) Norris & Norris, PLC (3) Nashville Electric Service (3) McKenzie Laird, PLLC (3) McKenzie Jackson, PLC (3) McCarter & Beauchamp, PLLC (3) May & Ryan, PLC (3) Marlowe Law Offices, PLLC (3) Luna Law Group, PLLC (3) Larry R. Williams, PLLC (3) Hix & Gray, PLC (3) Hall & Sitler (3) Grissim & Hodges (3) Glasgow & Veazey (3) Ernst & Young, LLP (4) Cheadle Law (3) Cameron Worley, P.C. (3) Barry Gammons, Attorney at Law (4) Baker, Campbell & Parsons (3) Affinion Benefits Group, LLC (3) Nashville Bar Journal - August 2013
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Inconvenient Justice Continued from page 7
These protections benefiting 1.3 million TennCare beneficiaries, as well as other institutional reforms improving the quality of care, are perhaps the Justice Center's greatest legacy. The state itself has credited the Grier orders as giving “TennCare … one of the most comprehensive, thorough and memberfocused systems of due process in the country,” and last year Senior U.S. District Judge Thomas A. Wiseman, Jr. commended TJC for bringing and prosecuting the John B. case over many years. In ruling that the case could now be closed, Judge Wiseman found that the lawsuit “has clearly served its purpose well in bringing about a level of service to [TennCare’s 725,000 children] that is demonstrative of the compassion that is characteristic of the State of Tennessee and fully compliant with [federal Medicaid] law and regulations.” The future will bring new challenges and opportunities for the Justice Center. Implementation of the Affordable Care Act, the State of Tennessee's continuing negotiations with the federal government over potential Medicaid expansion, and ongoing administration of the TennCare program are all areas of need for the Justice Center's clients. Compliance with constitutional safeguards and requirements will no doubt continue to be inconvenient for public officials, and the Justice Center will continue to hold them to account. Gordon Bonnyman and Michele Johnson have traveled far on behalf of their clients, from their homes in towns and cities across Tennessee to the United States Supreme Court, with the great inscription on its imposing facade, at once majestic and egalitarian, "Equal Justice Under Law." The path has been difficult, filled with setbacks and obstacles, but their steps have been sure and unwavering.
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John Adams described his defense of the British soldiers as "One of the best pieces of service I ever rendered my country." Harper Lee wrote through Atticus Finch, "The one thing that doesn't abide by majority rule is a person's conscience." The Tennessee Justice Center, through the work of Gordon Bonnyman, Michele Johnson, and its other attorneys and staff, embodies these ideals. John Adams and Atticus Finch would approve. (Endnotes) 1 More information about the case with a link to the final decision is available at http://www.tnjustice.org/ resources/grier/.
James W. White is a member of the law firm of Jones Hawkins & Farmer, PLC, in Nashville. Previously, he served as Executive Director of the Fiscal Review Committee in the Tennessee General Assembly, as Counsel to the Speaker of the Tennessee House of Representatives, and as Counsel to the Tennessee House Finance, Ways & Means Committee. He is a past Staff Chair of the Budgets and Revenue Committee of the National Conference of State Legislatures. His undergraduate degree is from the University of Tennessee and his law degree is from Georgetown University Law Center, where he was an editor of the Georgetown Law Journal.
More information about the case with a link to the final decision is available at http://www.tnjustice.org/ resources/john-b/.
2
Michele Johnson Gordon Bonnyman
Nashville Bar Association
The 16th Annual Nashville Bar Association Member Picnic will be held on September 19, 2013!
16th Annual FREE Member Picnic Event
This event is FREE for all NBA Members
y BBQ y Open Bars
September 19, 2013 y 5:30-8:30PM
y Music y Socializing This year’s picnic will have a fun Sport Team Theme! Including trivia and fun activities provided by the event sponsors. Prize drawings and much more. Please feel free to show support to your favorite sports team by wearing a jersey and/or team hat. Bar-B-Q Dinner and Open Bars will be also be provided. The event begins at 5:30 pm with dinner served at 7:00 pm. The Hall of Fame Park is located centrally downtown between the Country Music Hall of Fame, Downtown Hilton Hotel and the Schermerhorn Symphony Center.
Let us know that you are coming: RSVP online at: www.nashvillebar.org or fill out registration below:
Exclusive Sponsors:
Event Sponsors: ABA Retirement Nashville School of Law Thomson Reuters Vocational Economics
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SPONSORS:
NBA Member?
Yes! (Free)
No ($20)
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Name:
Name: _______________________________________________ BPR#
Phone:
Email:_______________________________ BPR#:
Bring Friends! (Just Remember to include $20 for each non-NBA Member) Phone:________________________________ Member? Yes! No ($20) Guest 1: Member? Guest 2:
Member? Yes! No ($20) Member?
Guest 3:
Member? Yes! No ($20) Member?
Fax:__________________________________
Member? Yes! No ($20) Member? Fax form to: 615-255-3026 or send with payment to: Nashville Bar Association Or RSVP online at: www.nashvillebar.org 150 4th Ave., N., Suite 1050 Nashville, TN 37219 Guest 4:
Nashville Bar Journal - August 2013
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Book Review
Reviewed by:
Ellie Wetzel
A Lost Gun By Wix Simon A Lost Gun Author: Wix Simon 238 pages, also available as ebook Publisher: iUniverse, Inc. Release Date: 2012 ISBN: 9781475926682 Crime fiction aficionadas won’t be disappointed with A Lost Gun, which includes the genre’s requisite components of violence, murder, and sex. In fact, the inspiration for the novel came from one of Simon’s biology students who put himself through school working at a S&M club.1 Simon also draws from his experience as a toxicologist as well as encounters with the lead investigator of the high profile “Atlanta Child Murders,” to give the reader a realistic overview of modern police procedure, reminiscent of Law & Order: SVU. Set in Atlanta, the plot follows variety of interconnected characters beginning with a rookie cop who loses her service weapon during a shootout with a murder suspect that she had just witnessed kill his wife and children. While a crosscounty Internal Affairs investigation is pending the weapon is used to murder a prominent attorney. This story line is just one of the several intertwined subplots that take the reader through a variety of sexually-tinged “situations,” such as the aforementioned S&M club, a “cult” for runaway teens run by a minister who engages in sex with his female mentees, an international human trafficking operation, adulterous encounters, and the misdeeds of a corrupt cop. All of which is presented in a detached tone without any judgment. As another review has noted, “The narrative is delivered in a curious, matter-of-fact tone: newspaper articles and victims' statements are presented verbatim, with no character interpretation; violence, including murder, happens suddenly and ends just as quickly; and cops spend an equal amount of time investigating as they do writing reports.”2 Although sufficient narrative tension exists to keep the reader engaged, this reviewer found the book to be uneven: tight, well-written portions are peppered by sections that lack credibility, detracting from the plot twists. While the plot is complex, it is presented in crisp language with short chapters—averaging about four to six pages each—making it an easy summer read and beach companion. A Lost Gun is Simon’s sophomore novel, following Toxic Assault. Simon is currently writing his third mystery thriller that will feature characters from A Lost Gun. n (Endnotes) 1
Wix Simon, Q&A, http://www.wixsimon.com/q-a/.
2
Kirkus review, www.kirkusreviews.com.
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Practice Tips for the Post AIA World by:
Mark (Andy) Pitchford
The final provisions of the “America Invents Act” (AIA) became effective on March 16, 2013. The AIA radically altered the rules for securing, asserting, and defending your client’s intellectual property rights. This article highlights certain practice changes which may impact your client’s patent strategies. 1. File Early. For patent applications having an effective filing date on or after March 16, 2013, the application filing date, not the actual invention date, is now the relevant date. Because of this change, inventor notebooks, preserved communications, and records of invention will no longer help to overcome prior art and secure patent rights for your clients’ inventions. Instead, the U.S. now has a “first-inventor-to-file” system based on absolute novelty, similar to the system in most foreign countries. In a “first-inventor-tofile” system, the first inventor to file an application on a particular invention is entitled to the potential patent rights. As with the old “first to invent” system, an applicant that did not actually invent the subject matter of the application is still not entitled to benefit from any potential patent rights. Further, as in most foreign countries, public disclosure of the invention now bars patenting the invention in the U.S., subject to a one year grace period for disclosures by the Applicant.1 Your client is thus in a race to file against not only other inventors who are preparing to file but also against other inventors who may disclose the invention (e.g., publish a report or marketing materials disclosing the invention or show the invention at a trade show). 2. File Often. If your client publicly discloses an invention (e.g., after filing a patent application), other inventors are free to make improvements
upon the invention. If another inventor later publicly discloses any improvements to your client’s invention or files a patent application(s) directed to those improvements, the improvements become prior art against your client for any future filings (i.e., applications for patents). The intervening inventor may even obtain patent protection that prevents your client from commercially exploiting these improvements to the original design. As applications filed by intervening inventors are prior art against your client for future applications, this can prevent your client from obtaining patent protection on these features, even if the improvements were known by your client at the time of the public disclosure. Thus, when commercially significant improvements to you client’s inventions are discovered, your client should file additional patent applications directed to such improvements. Alternatively, your client should at least publicly disclose the improvements to prevent anyone else from obtaining patent coverage on those improvements. Whether to file another application or publicly disclose the improvement should be decided on a case by case basis based on your client’s legal budget, the marketability of the improvement, and potential competition 3. Uncooperative Inventors Are Less Problematic. Prior to the AIA, only inventors could apply for patents and it was necessary to file petitions from the attorney of record, affidavits from the remaining inventors, and/or extrinsic evidence to work around uncooperative, unavailable, or deceased inventors. Under the AIA, an entity to which inventors are obligated to assign an invention (e.g., an employer with such agreements in place) may file an application on behalf of an inventor. Thus, if an inventor is uncooperative or unavailable, a repreContinued on Page 20
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SEQUESTRATION OF JUSTICE: Will the Fiftieth Anniversary of Gideon v. Wainwright Be Marked by Gutting the Federal Public Defender’s Office? Continued from page 11
Judge Morton was tired of presiding over criminal trials where the government was represented by full time, trained professional prosecutors and defendants who could not afford to hire a lawyer (always the majority of defendants) were represented by appointed lawyers who may or may not have federal criminal experience or training. From an initial authorized staff of four, the office has grown over the intervening 35 years to include a team of investigators and paralegals, computer systems administrators, support and administrative staff. The lawyers handle cases that range from petty offenses to constitutional challenges to death sentences and that demand expertise in computer forensics, chemistry, mental health, biology, and accounting among other fields. Throughout its history the federal defender office has served as the nucleus of the federal defense bar in this district. It has provided a diverse array of training opportunities and case specific assistance opportunities through email, phone calls, drop-in visits, and regular group brainstorming sessions. It has taken the lead in developing advocacy strategies with each major shift in federal criminal law and practice, all of which work to keep down the cost of representation while improving the quality. Working closely with our office the lawyers on the CJA panel here have become a skilled and
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cohesive defense network that is the envy of other districts. All of this is at serious risk now. Unless the Judicial Conference or Congress take immediate action to avoid the imposition of drastic budget cuts for the fiscal year beginning October 1, our office will suffer a loss of staff that will endanger our clients and will reduce to a marginal role the center piece of a representation scheme decades in the making. Done in the name of reducing the cost of government, it will increase expenses paid for with taxpayer dollars. What a sad way to honor Gideon’s legacy. Henry Martin serves as the Federal Public Defender for the Middle District of Tennessee. Dumaka Shabazz serves as an as an Assistant Federal Public Defender. He has also operated a private criminal defense practice and served as an Assistant District Attorney with the Metro Davidson County Office of the District Attorney.
(Endnotes) 1
Gideon v. Wainwright, 372 U.S. 335 (1963)
See Anthony Lewis, Gideon’s Trumpet (Random House, NY 1964).
2
3 For more information about the Gideon decision, see the April issue cover story. Dawn Deaner, 50 Years Later: The Legacy of Gideon v. Wainright, 13 Nash. B.J. 6 (Apr. 2013).
Interestingly, the Clerks of the District and Bankruptcy Court and the Chief Probation Officer each offered to share from any surplus funds to help defray our budget deficit. However, to move money from their accounts to ours would have required Congressional action, which was not going to happen. Nevertheless, the generous gesture is reflective of the sense of common purpose and common sense of the federal judicial system in this district.
4
Affordable Care Act Insurance Mandates: Is Your Firm Ready? Continued from page 8
Higher Benefit Costs to Your Practice Even though the financial penalties do not apply to smaller employers, the financial impact of the ACA can be significant. It is possible that you, as an employer, now offer a health insurance benefit to your employees and pay some of the cost for this coverage. However, some of your employees elect not to participate. In the coming months, they will begin to hear more and more about the individual mandate and the penalty for not having health insurance. This may increase the enrollment in your plan and could therefore increase your costs significantly.
Insurance Planning and Service Company, LLC (IPSCO, LLC), the exclusive insurance administrator for the NBA, is working on a new program to assist members to easily analyze their personal situations and create a plan to guide you and your employees to the proper solution for the ACA challenges regarding health insurance mandates on employers and individuals. We will continue to monitor changes as they materialize and provide more information to help our members and their employees make the right decisions. n
Jeff Smith is a CPA and Certified Financial Planner. He is the CFO/Treasurer of IPSCO, LLC and has worked in the insurance industry for 24 years. Any questions or comments can be emailed to him at jeffs@assoc-admin.com.
Higher Cost to Your Employees As I mentioned, many employees will be counting on you – their employer – to provide guidance on the effect the ACA has on them. Without some form of guidance, they could pay more than they have to for their insurance benefit. For example, a single parent, 32 years of age, with two children making $35,000 per year could be eligible for premium subsidies of approximately $5,500. If you, as the employer, offer that employee “affordable coverage” (as defined earlier), the employee would no longer be eligible for the subsidized government premium from the Federal Exchange or Marketplace. Your employer sponsored health insurance plan could end up costing this employee thousands of dollars in subsidies. Now, what once was a key “benefit” to your employee is now a financial impediment to retaining that employee. NBA is Working on a Solution As you can see, there are many reasons for practices of all sizes to analyze the effect of the Affordable Care Act on their business. The problem is that the rules and regulations are still being issued and changes are happening quickly.
Nashville Bar Journal - August 2013
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5 Practice Tips for the Post AIA World Continued from page 17
sentative of the entity such as an executive (e.g., general counsel) or the owner of the entity can now sign a Declaration/Oath on behalf of that inventor without a separate petition or evidence. 4. Use Virtual Marking to Comply with U.S. Patent Marking Requirements. U.S. patent law encourages the marking of products with applicable U.S. patent numbers by restricting infringement remedies when there is a failure to mark.2 The AIA now makes it easier for businesses to take advantage of the benefits of marking. Section 287 of the U.S. Patent Act has been amended to allow “virtual marking.” Patent owners may mark their products with “Patent” or “Pat.” and a reference to a public web address that lists the patent number(s) applicable to that product. Your clients that manufacture or sell patented products can take advantage of these changes by transitioning to an online patent marking system, which lowers the cost of patent marking compliance. Additionally, they can then update patent markings by changing information in an online database instead of having to change markings on the product itself or the product’s packaging.
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5. Be Proactive with Known Competitors. The AIA also creates and expands opportunities for thirdparties to prevent or challenge patent issuance. Prior to the AIA, thirdparties could only submit prior art without commentary to the PTO for consideration. Now, thirdparties can submit relevant prior art with commentary and written statements made by patent owners during litigation or a PTO proceeding with commentary. Your clients can use third-party submissions with commentary to lower their patent infringement risks and limit the scope of competitor’s patents. Whether your clients view the U.S. patent system as a business obstacle, a system to capture and maintain market share, or some combination thereof, the AIA made important changes to U.S. Patent law that requires a reevaluation of your client’s business strategies. n
MARK (ANDY) PITCHFORD is an associate with Waddey & Patterson PC in Nashville who focuses his practice on U.S., international, and foreign patents in the electrical, software, and mechanical arts. He also counsels clients regarding intellectual property portfolio management, enforcement, and licensing. (Endnotes) Canada has a similar one-year grace period, and Japan has a six-month grace period.
1
2
35 U.S.C. § 287.
I work to protect our clients’ interests. Now I know a bank that does the same for my firm.
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Deposit products and services are offered through SunTrust Bank, Member FDIC. Investment and Insurance Products: Are not FDIC or any other Government Agency Insured • Are not Bank Guaranteed • May Lose Value SunTrust Private Wealth Management is a marketing name used by SunTrust Banks, Inc. and the following affiliates: Banking and trust products and services, including investment advisory products and services, are provided by SunTrust Bank. Securities, insurance (including annuities) and other investment products and services are offered by SunTrust Investment Services, Inc., an SEC registered broker-dealer and a member of the FINRA and SIPC, and a licensed insurance agency. Investment advisory products and services are offered by SunTrust Investment Services, Inc., RidgeWorth Capital Management, Inc., and GenSpring Family Offices, LLC, investment advisers registered with the SEC. © 2012 SunTrust Banks, Inc. SunTrust is a federally registered service mark of SunTrust Banks, Inc.
Nashville Bar Journal - August 2013
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Disclosure Alberto Gonzales has been elected elected to The Jason Foundation Inc.’s (JFI) Board of Directors. JFI is a Hendersonville, TN based non-profit and a national leader in youth suicide awareness and prevention. Gonzales served as the nation’s 80th United States Attorney General appointed by President George W. Bush. Gonzales also served as White House Counsel during President George W. Bush’s term. Before Washington DC, General Gonzales served as Secretary of State of Texas and then as a Texas Supreme Court Justice. Olatayo (Tayo) O. Atanda has joined Bone McAllester Norton PLLC. Atanda concentrates his practice in Alcoholic Beverage Law, Entrepreneurial and Emerging Business Law, and Litigation and Dispute Resolution. He is a recent graduate of the College of Law at the University of Tennessee, where he was a Baker Law Scholar and participated in the Phillip C. Jessup International Law Moot Court, Black Law Student Association, International Law Society and the Phi Alpha Delta Law Fraternity. A native of Nigeria, Mr. Atanda moved to the United States at the age of 14 and graduated from Stratford STEM Magnet High School in East Nashville. He is fluent in the West African dialect of Yoruba. Christian Schütz has joined Baker, Donelson, Bearman, Caldwell & Berkowitz, PC as an associate. Schütz focuses his practice in the areas of real estate and economic development. He is a native German and received his law degree from the University of Bonn, Germany, and his Master of Laws from Vanderbilt University. His background gives him particular experience in serving the needs of German clients investing in the U.S. and U.S. clients conducting business in Germany and the European Union. He also has experience with complex commercial
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\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n
real estate transactions, including acquisitions and dispositions, financing, leasing of investment grade properties and economic incentive transactions. Ramona P. DeSalvo and L. Kevin Levine are pleased to announce the formation of their new firm, DeSalvo & Levine PLLC. Practicing exclusively in entertainment, copyright, and trademark law, the firm can be found at 1720 West End Avenue, Suite 403, Nashville, TN 37203. Founding member, Ramona P. DeSalvo, says, “I am excited to partner with Kevin Levine who brings extensive experience in trademark, entertainment and business. Kevin grew up in his family-owned music stores, Pied Piper, Inc., eventually serving as Sales and Marketing Director before attending law school.” DeSalvo, a native Texan, received her J.D. degree from the University of Cincinnati, College of Law and her A.B. from the University of California, Berkeley. Levine, anative of Huntington, West Virginia, received his J.D. degree from the West Virginia University College of Law after earning his B.B.A. and M.B.A. from Marshall University. He also holds a Specialist Certificate in Music Business from the Berklee College of Music extension school, and is an ASCAP. Bob Patterson, managing partner of the Nashville office of Bradley Arant Boult Cummings, has been named to the Nashville Area Chamber of Commerce board of directors. An active community leader, Patterson also serves on the board of the Metropolitan Nashville Airport Authority, Arts at the Airport Foundation; and he has served as chairman of the board of the Monroe Carell Jr. Children’s Hospital at Vanderbilt, the Nashville Convention and Visitors’ Bureau, Kids on the Block, and McNeily Center for Children.
George D. Spanos has joined Rogers, Kamm & Shea as an associate. Spanos graduated from the Nashville School of Law in 2012, and had formerly been employed by the law firm as a law clerk. He will be working in the firm’s civil and family law areas. Kelly Frey, an attorney with Dickinson Wright PLLC, will be speaking on an author panel at the ABA Business Law Section Annual Meeting on August 9, 2013, in San Francisco. The panel is in conjunction with the release of the book, Intellectual Property Deskbook for the Business Lawyer: A Transactions-Based Guide to Intellectual Property Law, Third Edition. Frey co-authored two chapters in the book: “Security Interests in Intellectual Property” (Chapter 3) and “Open Source Software and Intellectual Property” (Chapter 11). The third edition of the book is geared towards general practitioners, business lawyers, and corporate counsel who need to quickly learn and understand the intellectual property issues that arise in various business contexts. The third edition is updated and expanded to include two new chapters; updates to existing chapters to reflect recent changes, including the significant changes brought by the Leahy-Smith America Invents Act; and contributions from 20 peer-reviewers. Sally Ramsey has joined Constangy, Brooks & Smith, LLP as senior counsel. She focuses her practice in comprehensive employment law litigation prevention and defense, as well as counseling on discrimination and EEO-related matters.Ramsey joined Constangy after serving for 11 years as Senior Trial Attorney at the Equal Employment Opportunity Commission. Ramsey’s expertise encompasses all areas of antidiscrimination law, including Title VII, ADA, ADEA, GINA, and the EPA. She has successfully defended clients before the EEOC, and has litigated both jury
Welcome New NBA Members! Olatayo Olatunji Atanda Bone McAllester Norton PLLC* Christopher M. Bellamy Bellamy Law Group Brian G. Bond Srijita DasGupta Metro Legal Department Jane E. Feist Patrick Ryan Hakes Metropolitan Public Defender Aron Z. Karabel Waller Lansden Dortch & Davis, LLP* Elizabeth Sydney Mathis Freeman Webb Companies James Paul McNamara Metropolitan Public Defender Elizabeth M. Mundee-Barket Kevin Anthony Page Waller Lansden Dortch & Davis, LLP* Heather D. Piper Hall, Booth, Smith, P.C.* Kevin M. Rayburn Tennessee Secretary of State Michael L. Schlepp Riley Warnock & Jacobson, PLC* Christopher M. Smith Tennessee Department of Financial Institutions Jason A. Talley Cheatham, Palermo & Garrett* Adrianne G. Thompson A.G. Thompson Law, LLC * Belongs to a 100% Club firm
and bench trials in federal court. A graduate of Touro Law Center, Ramsey earned her Bachelor of Arts degree from the State University of New York at Old Westbury. Prior to law school, she spent 20 years in the private sector, giving her management experience that enhances her perspective of employment law issues.
2013 NBA Premier Members INCLUDE: Frank G. Abernathy Elizabeth A. Alexander Gail Vaughn Ashworth Kathryn E. Barnett Rachel L. Bell Barbara Bennett Michael Weimar Binkley Charles W. Bone Robert E. Boston Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Linda F. Burnsed Kenneth Sherman Byrd C. Mark Carver Kathryn Caudle Robert Garry Chaffin Mark P. Chalos William T. Cheek III John Ray Clemmons James Michael Clemons Dixie W. Cooper John A. Day Karl F. Dean David Clyde Downard John Franklin Floyd Samuel P. Funk Grant C. Glassford Charles K. Grant John J. Griffin Jr. William L. Harbison Trey Harwell G. Miller Hogan II Paul T. Housch Jennifer Hunter
Lynda F. Jones David Randall Kennedy John D. Kitch William C. Koch Jr. Thomas W. Lawless Richard Wesley Littlehale Randal S. Mashburn Rob McKinney John C. McLemore Robert J. Mendes Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Phillip L. North Stephen W. Pate Edgar M. Rothschild III Maria M. Salas Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse James Gerard Stranch IV Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Francis M. Wentworth Jr. Thomas V. White Larry R. Williams Thomas A. Wiseman III Heather D. Wood Amanda Haynes Young Nicholas S. Zeppos
NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services. Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.
Linda Rose was appointed by the American Immigration Lawyers Association (AILA) to serve on the Department of Labor Liaison Committee. This committee monitors and negotiates DOL policy in the process of administering the foreign labor certification program, which allows employers to hire foreign workers. Rose was also appointed to the AILA ACES Committee (Arts, Culture, Entertainment, and Sciences/ Sports), which monitors visa procedures for foreign workers in those occupational areas. This is particularly important considering Nashville is one of the nation’s centers for music and entertainment. Rose is the Managing Member of Rose Immigration Law Firm, PLC.
Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.
July Volunteers:
Julie Cornell
Russell Cornell Tom Lawless Doug Pierce Joe Rusnak
Edgar Rothschild To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@ nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided. Nashville Bar Journal - August 2013
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Classifieds
Office Space
Office Space
Expert Witness Office Space
Brentwood Office share with two established attorneys Wireless, Fax, Phone, Copy, Cable, Storage, Free Parking, Space for your administrative assistant. Chapple Building 5115 Maryland Way - $ 1000 per month, plus incidentals and expenses negotiable. Fore more information contact: grant@gglassford.com or todd@roberttoddjacksonlaw.com.
Music Row Established Bankruptcy law firm located on historic Music Row (16th Avenue) has a large office space, with adjoining secretarial space immediately available. Includes limited receptionist services, copier, scanner, fax, high speed internet access, digital phone system, free and convenient parking. $1,250.00 per month. Contact Kim Lyons (615) 6903120 or kimberly@rothschildbklaw.com.
Legal Nurse Consulting Handling cases with medically related aspects? Best Practice Legal Nurse Consulting can help you with superior case preparation. Best Practice can screen cases for merit, find expert witnesses, write summaries and chronologies of medical records, along with other services. Contact Lisa at 615-481-5047 or visit bplnc.com for more information.
Downtown Office Space to share with three established attorneys - Scan, Fax, Phone, Copy. Parkway Towers. For more information please contact nlemaster@wdtlaw.net.
Advertise your Office Space in the Nashville Bar Journal
NBJ Classifieds Online:
CC
www.nashvillebar.org
Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550. HILLSBORO VILLAGE Established Nashville law association with four experienced lawyers has shared office space available for the right attorney in a large private building (with front lawn and large porch) and plenty of on site parking (and free client parking.) Package includes receptionist services, cable & wireless Internet, telephones and fax, state of the art copier and postage machine, DISH TV, kitchen, all utilities, janitorial service, plus tastefully decorated reception area & conference room, on and off-premise storage, professional liability insurance, website advertising, and all office equipment (including personal computer and all private office furniture.) All inclusive. Added bonus...walk to banks and some of the city’s finest restaurants. Contact adam@durhamanddread.com or call 615-252-9937. Metrocenter Area Law Firm Established Nashville law firm has three office spaces immediately available. Includes receptionist servicces, cable internet, telephones and fax, conference room, kitchen, copiers, some LexisNexis subscription services, website advertising and more. Professional work environment. Free and conveninet parking. Call (615) 252-8866 for details.
Visit the NBA's Career Center & Get Started Today: http://jobs.nashvillebar.org/home
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Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word. Available Sections: Expert Witness, For Sale, Positions Wanted, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, and Accounting.
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Elder Law Practice of Timothy L. Takacs
Elder Law: It’s About More than Just the Money
Elder law is about more than just protecting assets from the high cost of nursing home care. It’s about using those assets to enhance the elder’s quality of life.
When your clients are dealing with the long-term illness or disability of an elderly loved one, point them in the right direction with a referral to Elder Law Practice of Timothy L. Takacs. Our multi-disciplinary practice empowers families to respond to quality of life concerns that asset-focused firms don’t address, such as care coordination, patient advocacy, and insurance issues. For two decades, improving quality of life for elders and the families who love and care for them has been our primary focus. We can help your clients, too. Middle Tennessee: (615) 824-2571 Cumberland Plateau: (931) 268-5761 Toll-Free: (866) 222-3127 Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com
Life Care Planning Elder Law Estate Planning Care Coordination