Nashville Bar Journal
Dec 12 / Jan 13 - VOL 12, NO. 11
-------------------------------------------------------------------------------------------------
Can Success Really Be Failure? Davidson County Mental Health Court in 2012
Judge Dan Eisenstein -------------------------------------------------------------------------------------------------
FLYING SOLO: Tips for Starting a Solo Practice
Carrie Lowery -------------------------------------------------------------------------------------------------
A New Domestic Tort
Helen Sfikas Rogers and Katie Mathews Zipper -------------------------------------------------------------------------------------------------
I work to protect our clients’ interests. Now I know a bank that does the same for my firm.
Private Wealth Management Legal Specialty Group. You’re always focused on what’s best for your clients. With SunTrust’s dedicated Legal Specialty Group, you’ll get that very same treatment. Our knowledgeable financial advisors provide firms like yours with valuable strategies on everything from cash flow to expense management to insurance. Simply put, your interests are our passion. Visit us at suntrust.com/law or contact an advisor and get to know all the benefits of working with SunTrust. Bob Lawhon, Client Advisor, SunTrust Investment Services, Inc. 615.748.5803 or bob.lawhon@suntrust.com
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 A Monthly Publication of the Nashville Bar Association
www.nashvillebar.org
Can Success Really Be Failure? Davidson County Mental Health Court in 2012 PAGE 6 Judge Dan Eisenstein
FLYING SOLO: Tips for Starting a Solo Practice
PAGE 8
Carrie Lowery
FROM THE PRESIDENT Reaching Out
PAGE 2
Tom Sherrard
__________________________________________________________________ 4 Communiqué • One Person, One Vote: Baker v. Carr • Nashville Bar Foundation Dinner • Mock Trial Competition • Golden Oldies • Upcoming Events __________________________________________________________________ 10
Annual Meeting & Banquet Summary
12
Gadget of the Moth: Dragon Naturally Speaking 11.5
December 24 - January 2 NBA OFFICES CLOSED January 4 - 3:30 PM New Board Member Orientation January 4 - 5:30 PM Board / Staff Dinner January 5 - 8:00 AM Board / Staff Retreat January 15- 12:00 PM Ethics Committee Meeting January 15 - 12:00 PM Memorial Service Committee Meeting
February 22
o Race Judicata
March 1 & 2 o Minority Job Fair @ Waller March 1 o Law Day Luncheon @ Downtown Sheraton March 7 - 12:00 PM Minority Opportunities Meeting March 19 - 12:00 PM Ethics Committee Meeting
February 19 - 12:00 PM Ethics Committee Meeting February 22-23 o Mock Trial Competition @ Metro Courthouse
__________________________________________________________________ Guest Gadgeteer: Tim Ishii
View Full Calendar online at www.nashvillebar.org
__________________________________________________________________ CLE Information - Center Section
__________________________________________________________________ 14
A New Domestic Tort
-Golden Oldies-
Helen Sfikas Rogers and Katie Mathews Zipper
__________________________________________________________________ 16
THE SERIES LLC – A Little Known But Advantageous Business Tool Steven G. Gladstone
__________________________________________________________________ 22
Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory
__________________________________________________________________ 24
Classified Listings
__________________________________________________________________ -------------------------------------------------------------------------------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. ------------------------------------------------------------------------
Nashville Bar Journal A Monthly Publication of the Nashville Bar Association
www.nashvillebar.org
William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com
FROM THE PRESIDENT
by Tom Sherrard
Reaching Out
Eleanor Wetzel, Managing Editor 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 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
2 Nashville Bar Journal - Dec 12 / Jan 13
One of the objectives of my inaugural article as President is to introduce myself to members of the Nashville Bar Association. As I look at the roster of former presidents, and it turns out I am the 100th president of our venerable NBA, I note that the vast majority have been primarily engaged in litigation. Transactional lawyers have been elected president this association about as frequently as Nashville suffers a cicada infestation, though I hope the comparison ends there. Litigators have a greater opportunity for frequent interaction, including the “social hour” every Friday as attorneys gather for the civil court motion dockets. Transactional lawyers seem to be a bit more isolated than their courtroom counterparts, and with the internet and the decreased need to close transactions face to face, they see even less of their transactional colleagues. Fortunately, though I tried my last case in 1986 and thereafter opted for a transactional practice, I have had the privilege of teaching a number of our Bar Association members over the years, including my worthy predecessor and good friend, John Kitch. Several of you have thoughtfully asked what particular mission I would embark on during my year as president. For example, John Kitch implemented a lawyer to lawyer program that provides for mentoring opportunities for young lawyers to receive the wisdom of some of our more experienced counselors. My objectives are twofold. Currently the NBA has approximately 2,800 members, but there are a number of lawyers in the Nashville area who have not chosen to join our Association. Not only do I want to retain our current membership, but I also want to reach out to those non-members and seek to bring as many as possible into the fold. That, of course, means that the NBA must be sure we are delivering an appropriate value proposition to all of our existing and prospective members. My second objective will be to focus on the three prongs of our Association’s motto: improving the practice of law through education, service and fellowship. That means our CLE programs must continue to be of high quality, our committees must be proactive and look for ways to serve our larger community, and we want to look for enhanced opportunities for fellowship among all of our members. Fortunately, we approach these objectives with a number of strengths. Our Association has an able and engaged staff with highly effective leadership under Gigi Woodruff. Members of our Board of Directors are active and committed. Our Association has a rich and very active committee structure. We are now enjoying the use of class A office space. Our website contains an enormous amount of valuable information and is easy to navigate. Our Young Lawyers Division is extremely active and engaged. Our CLE offerings are varied and well-attended. And we have strong relationships with two sponsors – SunTrust Bank and our insurance partner, IPSCO. So with all these strengths, increasing the membership of our Association is altogether possible. True, we have competition from various other associations; however, membership in a local bar association provides the greatest opportunities for service to the community and fellowship among the members. In preparing for my role as president, I have taken the time to read the Lawyers Creed of Professionalism produced by our NBA Professionalism Committee. While it generally refers to the same principles that we find in our Rules of Professional
2013 NBA BOARD OF DIRECTORS
Conduct, I nonetheless urge you to take the time to review it again. It can be found under the “Member Resources” section on our website. It is a more personal reflection of those elements that make for an exemplary legal professional: zealousness, loyalty, courtesy, devotion to public service, and candor in all things. A great city such as Nashville must have a well-educated Bar whose members are dedicated to the highest level of professionalism and public service. Our Creed of Professionalism is a document worthy of this outstanding Bar Association. I look forward to serving all of you this coming year. n
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 - Dec 12 / Jan 13 3
communiqué
NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE IN
One Person, One Vote: Baker v. Carr
Nashville Bar Foundation Dinner
Nashville played a pivotal role in the landmark United States Supreme Court decision of Baker v. Carr. To raise awareness and pay tribute to the local players involved in this decision, the Nashville Bar Association co-hosted a 3.25 hour CLE on November 8, 2012 at the Nashville Public Library auditorium that was attended by well over 250 individuals. There was never a Baker v. Carr trial, but the case involved a complex procedural history. It was one of the few cases ever argued before the U.S. Supreme Court twice before a decision was rendered. By the time the opinion was issued the case had involved Attorney General Robert Kennedy and his Deputy Byron “Whizzer” White, Solicitor General Archibald Cox, Justice Felix Frankfurter and the “Political Thicket”, John J. Hooker, Jr., Mayor Ben West, Harris Gilbert, and a host of others. The case and lawyers involved caused one of the greatest reforms in American history without one riot, without one shot being fired in anger, and without polarizing the system. Chief Justice Earl Warren called Baker v. Carr “the most vital decision” of his turbulent years on the Court. If you missed the impressive lineup of panelists interspersed video interviews, the program was recorded for archival purposes and will soon be available for viewing. The booklet for the program is currently available on the Nashville Bar website at www.nashvillebar.org. This historical program would not have been possibly without the generous sponsorship of the U.S. District Court’s Library and Miscellaneous Fund; the Napier-Looby Bar Association; the Nashville Public Library; Baker, Donelson, Bearman, Caldwell & Berkowitz, PC; Bass, Berry & Sims PLC; Bone McAllester Norton PLLC; Bradley Arant Boult Cummings LLP; Gullett, Sanford, Robinson & Martin, PLLC; Leitner, Williams, Dooley & Napolitan, PLLC; NBA Past Presidents; Sherrard & Roe, PLC; Tune, Entrekin & White, PC; Waddey & Patterson, PC; and Waller.
4 Nashville Bar Journal - Dec 12 / Jan 13
The Nashville Bar Foundation honored the 2012 Class of Fellows on Saturday, November 3rd at the Hutton Hotel. Those honored include the following Nashville attorneys: Bill Beck, Michael Castellarin, Dixie Cooper, Sophia Crawford, Stephen Davis, George Duzane, Patrick Frogge, Mary Taylor Gallagher, Paul Gontarek, Beth Guest, Mark Hunt, David Johnson, Michele Johnson, Mary Ellen Morris, Julie Peak, Andrea Perry, Saul Solomon, Overton Thompson and Karl Warden. Contributions made from the NBF Fellows will enable the Foundation to make a substantial grant to the Nashville Pro Bono Program and fund additional programs to advance and promote the administration of justice, the public’s understanding of the law and the legal system, and promote a more effective delivery of legal services to the public at large. The NBF also presented the David Rutherford Award to Margaret Behm. This award is given to a Fellow who exemplifies the memory and ideals of David Rutherford, which include professionalism, charitable contributions in the legal field and in the community as a whole, and the spirit of collegiality among bench and bar.
NFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n
Mock Trial Competition - February 22-23 The Davidson County High School Mock Trial Competition will take place on Friday, February 22, and Saturday, February 23, 2013, at the Davidson County Historic Courthouse. We will need volunteers for each of five rounds and will send out an official call for volunteers in January. Mark your calendar! This year's scenario features Thor Brush, an investment broker who convinces friends and local businessmen to invest in his company U.R. Rich. While promising to invest in established securities, Brush instead spends the money on a lavish lifestyle. When news of the scheme becomes public, clients realize they have lost everything. Brush is indicted and is awaiting trial, when he suddenly dies when his car careens out of control and crashes. The town's premier auto mechanic, who had invested with Brush and had recently worked on the car, is arrested after police determine that the brake connections were deliberately loosened. Prosecutors argue that the mechanic — upset about the financial loss — intentionally tampered with the car. The defense places the blame on Brush himself, who was not wearing a seatbelt, was texting, and had fatal levels of heart and migraine medication in his system at the time of the accident. What no one is talking about though is the town's pharmacist, who also invested with Brush and had just filled his prescriptions prior to the crash! As always, the case offers many opportunities for students to express their creativity, develop persuasive speaking skills and learn the basics of trial procedure.
-Golden Oldies
Allen D. Lentz of Gullett Sanford Robinson & Martin PLLC correctly identified the individuals in the November 2012 Golden Oldies photo. Pictured are: Paul Sloan. Charlie Trabue, Jim Doran, and Gareth Aden.
Do you have an old photo that you would like to see featured in the NBJ? Send it to nikki.gray@nashvillebar.org for consideration.
Our volunteers are what make this event possible every year, and your time and support are greatly appreciated. We look forward to seeing as many of you as possible in February! Please contact Becca Barnett (rmb@iplawgroup.com) or Peter Robison (probison@dhpmlaw.com) for more information.
NBA Veterans Committee The NBA Veterans Committee was formed this year and is off to a fantastic start. The committee offers a great opportunity to meet new veteran friends in the bar, share experiences, and to serve other less fortunate veterans in our community. If you would like to join the committee please call the NBA Offices at 242-9272 or send an email to Vicki Shoulders at vicki.shoulders@ nashvillebar.org.
UPCOMING EVENTS: NBA OFFICES CLOSED For Holidays December 24 - January 2 --------------------------------------
Mock Trial Competition February 22-23, 2013 Volunteers are what make this event possible every year, and your time and support are greatly appreciated. We look forward to seeing as many of you as possible in February! Please contact Becca Barnett (rmb@iplawgroup.com) or Peter Robison (probison@dhpmlaw.com) for more information. --------------------------------------
Members of the NBA Veterans committee marching in the Veteran’s Day parade.
Happy Holidays! Nashville Bar Journal - Dec 12 / Jan 13 5
FEATURE
Can Success Really Be Failure? Davidson County Mental Health Court in 2012 by:
Judge Dan Eisenstein
In August 2004, I was honored to be elected as the Judge of Division II of the Davidson County General Sessions Court. As a part of my duties as Judge of Division II I preside over the Davidson County Mental Health Court. The Mental Health Court began operation in 2001, and was funded through a federal grant with Judge Mark Fishburn being the first Presiding Judge. In 2004, the Mental Health Court’s operation became a part of the General Sessions Courts’ general operations funding. What has occurred in this Court since I was elected in 2004? The Mental Health Court is responsible for supervising the probation and/or diversion programs of criminal defendants who suffer from mental illness. The Mental Health Court supervises both individuals charged with misdemeanors and felonies. Defendants charged with felonies remain under Criminal Court jurisdiction. In felony cases probation supervision reports are sent to the Criminal Court Judge who referred the criminal defendant to Mental Health Court. Supervision of all the individuals in Mental Health Court is comprehensive and involves regular court appearances on Mental Health Court dockets which are held three times per week either at 8 a.m. or at noon. The supervision/ treatment plan involves locating housing, medical care, treatment for mental illnesses and for drug and alcohol addiction, as well as finding appropriate daytime activities including job training, employment, educational programs, or other suitable endeavors. During the course of an individual’s participation in the Mental Health Court successful behavior is rewarded. Proper behavior results not only in praise but also in the receipt of Subway restaurant gift cards. If a person successfully completes his or her probation period they participate in a graduation ceremony and party. 6 Nashville Bar Journal - Dec 12 / Jan 13
When I began my duties as the Presiding Judge of the Mental Health Court in September 2004, there were about 50 active cases. As I write this article I am now supervising 165 persons and the caseload has been as high as 210 individuals. In 2004, the most common mental health diagnosis of participants was bipolar disorder or depression. Now the most common diagnosis is schizophrenia. Additionally, almost everyone in the Court has a drug or alcohol addiction. A number of the individuals are also developmentally disabled. Most everyone in the Court is impoverished and comes to the Court homeless. The crimes committed by the participants have in recent years become more serious with many assaults, both simple and aggravated, being referred to the Court. What has happened since 2004 to cause this dramatic change in the complexion of the Mental Health Court? The Court began to change in 2005, shortly just one year after I was elected. In 2005, the TennCare program began to be dismantled and approximately 21,000 individuals in Tennessee with serious and persistent mental illness were removed from TennCare coverage and lost their ability to secure appropriate and comprehensive treatment for their mental illness. Since 2005, thousands more Tennessee citizens have lost TennCare coverage and/ or have not been able to access other insurance coverage. To complicate the situation the State of Tennessee has either closed or reduced bed availability in its Regional Mental Health Institutes. Now Middle Tennessee Mental Health Institute which serves 36 Tennessee
counties has 165 beds for the treatment of the mentally ill. In 2005, there were 220 beds available. This is a 25% reduction in available bed space in just 7 years in middle Tennessee. From what I observe there is not a 25% decrease in the need for people to receive inpatient mental health services but quite the contrary. In 2009, the Tennessee Legislature passed a law that has muddled the hospitalization issue for the very seriously mentally ill who require hospitalization. This law is known as the “Available Suitable Accommodations” Act (codified at Tenn. Code Ann. §§ 33-6-404 and 33-6-406. A person is found to be in need of “Emergency Involuntary Admission to Inpatient Treatment” pursuant to Tenn. Code Ann. §§ 33-6-401 et seq. if the person is mentally ill, poses an immediate likelihood of harm to themself or others, is in need of treatment for the mental illness, and all less drastic alternatives to hospitalization are unsuitable. Under the “Available Suitable Accommodations” Act a person cannot be involuntarily committed to a Regional Mental Health Institute even under the standards requiring involuntary emergency admission if there is no room at the appropriate Regional Mental Health lnstitute or another state Regional Mental Health Institute. So what happens to this person when there is no room at a state Regional Mental Health Institute? He or she is placed on a waiting list for admission. Where does this person wait? What happens if this person becomes disorderly or violent towards others when he or she is waiting? When people cannot secure adequate medications or treatment for their mental illness some may engage in actions that can run afoul of the law. Sometimes delusions may direct them into improper activities or they may become
agitated and get into an altercation with family members or others. They may misuse alcohol or drugs to alleviate symptoms of their illness. In the last few years since the demise of TennCare, the reduction of available of treatment resources and medications for those who cannot secure insurance coverage and the limitations on hospital beds at Regional Mental Health Institutes, the Davidson County Jail has become the largest “inpatient” resource for mental health treatment in middle Tennessee. Paul Babb, Program Manager of Correctional Mental Health Services at the Davidson County Jail has compiled some startling statistics regarding mental health issues at the jail for the years 2008 through 2011. Mr. Babb found that in this 3 year period at the jail there was a 95% increase in frontline mental health assessments, a 41% increase in mental health requests for services, a 27% increase in psychiatric assessments and a 96% increase in suicide watch placements. This is during a period of time when there was a 13% decrease in the average daily jail population. In 2011, the jail averaged 325 inmates per month who were classified with a Major Axis I Disorder which significantly impairs daily function. In 2006, the correctional mental health team conducted 7,787 mental health assessments in the Davidson County jail and last year that number increased to 12,821 evaluations, a 60% increase. The Davidson County Mental Health Court is successful. It serves a large number of people and assists them in securing services they were not getting in the community. For those individuals who graduate from the program the vast majority do not get rearrested or convicted of new crimes. The treatment program is not complicated. The Court helps individuals with housing,
treatment, medications, appropriate daily activities and assistance in securing financial stability either through work or social security. But is this success really a societal failure? Why does someone have to get arrested, go to jail, get into Mental Health Court to get help with their mental illness and associated problems? Why are there not services, resources and medications more readily available to individuals with mental illness before they begin to decompensate and become enmeshed in the criminal justice system? What does it say about our society when the number of persons with mental illness winding up in jail and in Mental Health Court is dramatically increasing? What if hospital and hospital emergency rooms closed or put people on waiting lists for treatment of physical illnesses such as the flu or pneumonia? Where would these sick people get medical care? Certainly it would not be the jail. Why not put more resources back into the community to help people suffering illnesses of the brain? Maybe if we did this we would see the numbers go down in the jail for those diagnosed with mental illnesses rather than going up each year. For me the true success for the Mental Health Court would be helping a few people diagnosed with mental illness caught in the criminal justice system. In my view helping more and more people with this illness every year is not real success but points to a problem in society. It appears now that the criminal justice system is responsible more and more frequently with treatment of people suffering from illnesses of the brain. I hope that our government takes a hard look at this situation and takes action to reverse this troubling trend. n
Nashville Bar Journal - Dec 12 / Jan 13 7
FEATURE
FLYING SOLO: Tips for Starting a Solo Practice by:
Carrie Lowery
“Now what?” As I pondered this question after making the decision to start my own law firm, I felt overwhelmed and clueless. While I was confident in my legal skills, I had no experience in running a business. Likewise, I had no experience in selling myself or marketing my services. I had a lot to learn, and quickly. Immediately, I reached out to a well-established solo attorney who led me to the solo practitioner’s Bible: Solo by Choice: How to Be the Lawyer You Always Wanted to Be, by Carolyn Elefant.1 Using this text and other resources for solos, I armed myself with the basic knowledge necessary to embark on my solo journey. MARKETING The most important thing to remember is that a law firm is a business, and you must treat it as one. The practice of law is often thought of and treated as a noble profession, which is true. However, solo practitioner Joseph P. Dang cautions, “…it is wrong to conclude from this that a law practice is not a normal business and should not be run as such. It is, and it should. Your law practice must be marketed. You are a salesperson, whether you want to believe it or not.” DO’S AND DON’TS: • DO make marketing part of a daily routine • DO team up with a marketing group of other professionals • DO set aside time for marketing calls and meetings • DO research ethics rules regarding marketing and advertising, especially concerning the use of testimonials • DON’T use deception or superlatives in marketing materials 8 Nashville Bar Journal - Dec 12 / Jan 13
•
DON’T outsource marketing without ongoing and diligent oversight • DON’T use marketing techniques that you don’t believe in Websites, Blogging and Social Media. In recent years, the Internet and social media have radically changed the way that people find attorneys, and the way that attorneys market themselves to the public. An online presence is absolutely crucial to a solo practice. Even if a webmaster is not in the budget, a website is inexpensive to create and maintain with website hosting services available for less than $10 per month and free website creation services such as Wix.com and Weebly.com. Also, social media sites, namely Facebook, Twitter, and LinkedIn, offer inexpensive opportunities to market your law firm to potential clients and make important connections with other attorneys. DO’S AND DON’TS: • DO register a domain name (e.g., www.johndoelaw.com) • DON’T use the name of the host server (e.g., www.aol.com/johndoelaw) • DO display contact information prominently • DO include a professional photograph • DO link Facebook, Twitter, and LinkedIn accounts to the website and vice versa • DON’T link to social media profiles that are not active • DO include disclaimers that sending information does not establish an attorney-client relationship or assure confidentiality • DO provide something of value in return for contact information (e.g., a FAQ sheet about your practice area in exchange for an email address)
• •
•
DO guard your reputation online (e.g., respond to negative reviews) DON’T post fees. The majority view is that posting fees drives away clients who may mistakenly believe they cannot afford your services, and limits flexibility in billing. DO start a legal blog (a.k.a. “blawg”). Blogging is an easy, inexpensive way to showcase knowledge and skill in your practice area. In fact, Elefant calls it “the cornerstone of a successful online presence.”2
Networking. The most effective marketing tool in your arsenal is personal connections. As a new solo, I dreaded the idea of traditional networking. Fortunately, I learned that networking involves much more than attending dry events and awkwardly hawking your services. The most effective connections and referrals often arise from basic involvement in your community. Make sure that your friends, neighbors, and new acquaintances know that you’re an attorney. Join the chamber of commerce, local bar associations and community service organizations, and volunteer for pro bono legal services in your practice area. Most importantly, it is critical that you do not neglect other professionals and colleagues in marketing efforts. Failure to build and utilize a referral network can cost you dearly in terms of potential business. DO’S AND DON’TS: • DO focus on making connections with referral sources • DON’T market yourself only to the general public • DO cultivate relationships (i.e., weekly meetings with potential referral sources, tracking contact information) • DO ask your contacts to pass along your name and information to friends, customers and business partners
• • • •
DO choose high-value networking events DO carry business cards at all times DON’T talk too long or sit at an empty table during networking events DO seek guidance from a mentor, especially if you are beginning a solo practice immediately after law school
SETTING UP A PRACTICE Using modern technology, a solo law office can be run fairly easily on a shoestring budget. Some so-called “virtual” law firms do not even maintain physical office space. If a solo wants a physical office but cannot afford a traditional commercial space, there are economic and professional benefits to sharing space with other attorneys. Also, Elefant notes, “…data on solo earnings suggest that solos in shared space fare better than those in private space or working from home. Working alongside other lawyers can lead to referrals or overflow work, and also motivate you to work harder to keep pace with your officemates.”3 However, the five essential expenditures for every solo practitioner are: licensing, malpractice insurance, financial accounts, legal research tools, and online presence. Licensing and Business Structure. A solo practitioner should make certain that his or her license is current in every jurisdiction necessary for practice, including federal, if needed. Also, check into court membership requirements regarding making applications to practice before specific courts, such as federal district courts (including bankruptcy court) and circuit courts. Finally, choose the business structure that works best for your practice: sole proprietorship, limited liability company, professional corporation, or partnership. The simplest structure is a sole proprietorship, which is an unincorporated law firm owned by an individual. However, even if you choose not to incorporate,
make sure that you are not required to register your law firm with your city or other local authorities. Malpractice Insurance. Malpractice insurance is an absolute necessity. It is probably less expensive than you think, and it is worth every penny. Protect yourself. Financial Accounts. Establish a bank account for your law firm, even if you are operating as a sole proprietor. Online services like Paypal and Google Checkout allow a business to easily accept credit card payments on a transaction fee basis. In addition to a firm bank account, an attorney that will be holding client funds is required in most states to set up an IOLTA-compliant trust account. Check the IOLTA requirements in every jurisdiction in which you practice and diligently comply with them in order to avoid ethical violations. Legal Research Tools. Every attorney knows the two services at the top of the legal research heap: Westlaw and LEXIS. Westlaw’s new product, WestlawNext, is the most expensive. Recently, LEXIS launched a solospecific product called LEXIS Advance, priced at $175/month, which includes all primary law from all states, Shepards and a collection of briefs, pleadings, and motions.4 Additionally, there are budget and free services like LOISlaw, Fastcase, Google Scholar Legal, and Jenkins Law Library.5 Online Presence. As discussed above, an online presence is crucial for a solo practice. The must-haves are a domain name, an email address at the domain name, a website, a blog, and profiles on social media sites like Facebook, Twitter and LinkedIn. OFFICE TECHNOLOGY Software and Data Management. Recently, free services and cloud-based services have begun to significantly change the way that businesses use software and store data. As a result, today’s solo practitioner can spend very little in terms of office technology. Free office suites such Continued on Page 13 Nashville Bar Journal - Dec 12 / Jan 13 9
ANNUAL MEETING & BANQUET SUMMARY
On December 6, 2012, at the Wildhorse Saloon in downtown Nashville, there was more than enough collegiality to go around at the Annual Meeting & Banquet of the Nashville Bar Association. So much collegiality, in fact, that outgoing President John Kitch’s podium announcement at 7 p.m. for everyone to take their seats did not take effect on the attendees until well after 7:10 p.m., because people were talking, drinking, and just enjoying being together in one room for one night. With the evening underway, Executive Director Gigi Woodruff, as in past years, welcomed all in attendance thanking especially the three major sponsors – year-round Title Sponsors SunTrust (Bob Lawhon, Steven Simmons, and Debbie Hooper), IPSCO (Pam McGrath), and Banquet Sponsor, Document Solutions, Inc. (Austin Maddox). Program and Events Coordinator Traci Hollandsworth was recognized for her role in the production of the banquet, and the officers and board members were thanked for their efforts and sacrifices throughout the year. Videographers who at no charge, recorded and preserved the stories and insight of many senior bar members via the Bar Historical Committee’s Oral History Project were singled out including Jim Vowell and Gene Jennings of Vowell & Jennings, Jim Davis, and Todd Davis of Legal Video Services of Tennessee, and Mike Mitchell of VCE. A special remembrance was offered up to volunteer videographer, Tony Nolan, who passed away October 20. Woodruff thanked President John Kitch for his leadership in 2012, and especially in the formation of NBA’s new Lawyer-to-Lawyer Program connecting mentors with protégés in elevating competence, professionalism, and success through the practice of law. Following Woodruff, President Kitch, in what could best be described as an “Aw, Shucks” moment, thanked everyone for their attendance, especially the judges en masse, thus avoiding, in his words, “Leaving the one judge out in whose court I would have to appear tomorrow.” He then called the meeting to order, and the first order of business was the reading of last year’s minutes by Secretary Rebekah Shulman. Before she could begin, though, George Barrett stood from among the crowd and moved that the reading be waived which the membership seconded and unanimously approved. 10 Nashville Bar Journal - Dec 12 / Jan 13
Treasurer Bernadette Welch, succinctly stated what all wanted to hear; there was money in the bank, money left over, and receipts were bigger than expenses. The auditors were happy, so the membership was happy. At the banquet, the members present expressed their delight by applauding the news and especially the extreme brevity by which it was delivered. Amendments to the Association’s By-Laws were approved without any voiced dissent. Retiring board members were recognized and thanked including Judge Randy Kennedy, 1st Vice President, Judge Marrietta Shipley, 2nd Vice President, Rebecca Blair, Barbara Holmes, Mandy Haynes Young, Treasurer Bernadette Welch, and Secretary Rebekah Shulman. Young Lawyers Division (YLD) President Sara Reynolds and YLD President-elect Robb Bigelow were then introduced to present awards for the YLD. Their first award was presented to Matt Cox and Becca Barnett for exhibiting exemplary service to the YLD in organizing the Davidson County Mock Trial event and thus introducing young people to the legal system in meaningful and tangible ways. The Leadership Award went to Tera Rica Murdock for stepping in and leading the efforts to establish a Help Clinic at Room In The Inn and for the Annual Toiletry Drive for the Homeless. The Honorable Judge Randy Kennedy presented the 2012 Emeritus Awards to those attorneys who have participated as members of the Nashville Bar Association for 50 years. Jack Butler, Paul Kent Harrell, and the Honorable Judge Seth Norman each were recognized for their many years of participation and service to the Bar. Judge Kennedy called upon Kelly “Almost-Fried” Frey, and Tracy “Not-Able-But” Kane to present the Nashville Bar Journal Awards on behalf of Journal’s editor-in-chief, Bill Ramsey and the Journal’s Director of Communications, Nikki Gray. Contributor of the Year went to Everette Parrish and Article of the Year went to the Mark Donnell and Ryan Holt for their article, “Civil Lawyers in a Criminal World: Gideon v. Wainwright and Training with the Public Defender.”
The CLE Award was presented by Ed Lanquist, Jr. to long-time member Jeff Mobley, who with over 20 years of CLE education instruction in ethics, estate law and more, made the mundane interesting, and improving the quality of continuing legal education. Lucinda Smith, Director of the Nashville Pro Bono program, took to the podium next and thanked the membership for providing necessary volunteer services unselfishly and tirelessly. She presented the 2012 Pro Bono Leadership Award to the law firm of Stites & Harbison directing attention to the firm’s assistance in over 148 unemployment cases for low-income clients since 2008. Volunteer of the Year went to Perry Happell who has volunteered in bankruptcy cases and SSI appeals going back to 1989, with 19 pro bono bankruptcy cases already handled in 2012. The Honorable Bill Purcell presented the John C. Tune Community Service Award recognizing the highest degree of dedication as lawyer and for the betterment of the community. He presented it to Harlan Dodson, III, whose father was a mentor of John C. Tune and award recipient in 1985. Dodson’s achievements include teacher at Vanderbilt University and Nashville School of Law, author of the annually updated, “Estate Planning and Administration in Tennessee,” editor of the Tennessee Practice Series, member of the Tennessee Judicial Council, and founder of the Oasis Center. In honoring Dodson, Purcell remarked, “Good government is good politics which becomes good public policy, and in the end transforms our city and our state”
MORE PHOTOS ONLINE AT WWW.NASHVILLEBAR.ORG
Dodson in accepting his award quoted Lou Gehrig when he expressed, “I’m the luckiest man on earth. I say this because I’ve spent a lifetime and career with Nashville Bar lawyers. We have a tradition of great competence and great collegiality.” He then thanked his law partner and life partner, Margaret Behm, for her love and her special gift as a problem solver. He further thanked his “Staffof-Staff” of 31 years, Lisa Woodruff, concluding by recalling, “John C. Tune was not a ‘teddy bear’ for he was fierce when he tried a case - teeth, hair and eyeballs. He had a ‘Fight for money, friends for life’ approach to members of the Bar.” Dodson then expressed his commitment to carrying on traditions of competency and collegiality, in order that – 25 years from now – the same might be said of him. Outgoing President John Kitch, in his final remarks as president, acknowledged the lack of scandals under his watch, thanked his wife, Jaci, expressed admiration for the many people he had met as presiContinued on Page 21
Nashville Bar Journal - Dec 12 / Jan 13 11
BILL AND PHIL’S GADGET OF THE MONTH CLUB By: Bill Ramsey of Neal & Harwell, PLC and Phillip Hampton of LogicForce Consulting
Dragon Naturally Speaking 11.5 Nuance software's Dragon Naturally Speaking 11.5 is not only a dictation software but a full computer control software. For the overworked attorney or any person who needs to write lengthy documents on a regular basis, the software is a godsend. Previous generations of the software were slow to him and the earliest versions took up a majority of one's hard drive. Though Dragon software comes in several different specialized packages for different professions, this article only addresses current home version, which is currently available with a wired headset included for $74.99. Previous versions suffered from inaccuracy problems, long set up procedures, and extensive vocabulary training. Those problems have been cured in the current version. After installation, all that is required is short series of menus to tell the software what region of English spoken word you are in your own assessment of what will action you may have. Subsequently, one is asked to read a several hundred word standardized paragraph which gives the software a chance to adjust to your speaking style. This software controls Microsoft Word as well as WordPerfect programs. Additionally, the latest version allows you to choose either documents or emails for the software to scan to determine certain semi-unique words that you use regularly. One may set the program to use Bluetooth headsets, though that was not tried and would involve another layer of setup. To tailor the software to your voice idiosyncrasies one can use the vocabulary training tool to type in words that the software has trouble recognizing and then train it to the way you pronounce the word or phrase. Happily not only pet phrases are able to be trained into the vocabulary for recognition, but technical phrases, legal terms of art, as well as Latin words are easily added to the recognition vocabulary greatly increasing the ease of use of Dragon. Use of the software does require minimum background noise. Conversation, music, and other background sound confuses the software and increases dictation time. It can also lead to interesting misinterpretations by the software, for instance, vocabulary is transcribed as "vocab you Larry." Consequently, Dragon Does Not eliminate the need for careful proofreading of your documents. Controlling other programs and your computer Dragon software can be used not only for dictation but also to control various programs on your computer, move the mouse across the screen or within a document, as well as correcting spelling/grammar in a document. The feature of being able to move the cursor with just your voice is invaluable when juggling documents, exhibits, or any of the other myriad things needed while drafting documents. The software allows you to do your e-mail in Outlook, work in Word, WordPerfect, and to control Windows. Finally, you can use the software to search the web using in of the normal browsers and to formulate queries. SUMMARY With the release of 11.5, Dragon Naturally Speaking software along with computer technology as a whole has finally culminated in a easily used and powerful program for writing using only dictation. In actual practice speed and ease-of-use is exactly what one contemplates what one thinks of using computer for writing by dictation. I can personally recommend the software, especially at the current special price. n Guest Gadgeteer: Tim Ishii
12 Nashville Bar Journal - Dec 12 / Jan 13
FLYING SOLO: Tips for Starting a Solo Practice Continued from page 9
as Open Office offer inexpensive alternatives to traditional word processing and spreadsheet products. Similarly, free document management and email products offered by web-based services such as Google (e.g., Google Docs, Google Drive, and Gmail) and web-based cloud storage systems such as Dropbox offer inexpensive and simple ways to store data, collaborate, and communicate with colleagues and clients. If you opt for the less expensive options, the most important consideration is to make sure that the services you choose offer adequate security and privacy for sensitive client information. Mobile Technology. If you can only afford one computer, it is best to purchase a full-featured laptop which offers some mobility. However, “for portability, easy organization and reliable access to files and reference material, the iPad and Android tablets are rapidly winning over the legal community for their potential in the office and courtroom,” writes Elefant.6 Most web-based services offer mobile applications for tablets and smartphones which allow contact information, calendars, documents and other data to be synced among
multiple mobile devices. Many wireless services providers are now offering comprehensive packages that include voice and data usage shared among various mobile devices for one monthly fee (i.e., Verizon Wireless’ “Share Everything” plans).
•
RESEARCH AND SUPPORT The legal blogosphere is a wealth of information and support for solo practitioners. The most prominent is the American Bar Association’s SoloSez listserv, which is free to members of the ABA, and can be accessed at http:// www.americanbar.org/groups/gpsolo/resources/solosez.html. SoloSez is an active nationwide community of solo practitioners offering assistance and support to one another, and it can also be an excellent source for referrals.
•
Additionally, several legal websites and “blawgs” offer valuable tips for marketing and solo practice, specifically: • www.MyShingle.com and www. Legalmarketingblawg.com – blogs written by Carolyn Elefant, author of Solo by Choice
• • •
• •
www.legalpracticepro.com – tips on law practice marketing http://solopracticeuniversity.com/ blog/ http://legalease.blogs.com/legal_ ease_blog http://stayviolation.typepad.com/ chucknewton/ http://www.legalmarketingblog. com http://www.attorneyatwork.com/ http://www.lawyerist.com
Do your homework, and good luck! n Carrie A. Lowery is the Owner of Authority Legal Research & Writing Service, which is the practical attorney's resource for quality legal research and writing support. You can contact her at carrie@authoritylegal.com (Endnotes) 1 Carolyn Elefant, Solo by Choice 2011-2012 Edition: How to Be the Lawyer You Always Wanted to Be (2nd ed. 2011). 2 Id. at 243. 3 Id. at 88. 4 Id. at 96. 5 Id. at 98. 6 Id. at 108.
Nashville Bar Journal - Dec 12 / Jan 13 13
A New Domestic Tort by:
Helen Sfikas Rogers and Katie Mathews Zipper
With the Tennessee Supreme Court’s recent decision in Hodge v. Craig, the highest court continued the pattern of expanding the number and types of torts available in domestic cases.1 In Hodge, the Court determined that the former spouse of a child’s mother could pursue a common-law claim against the mother for intentional misrepresentation regarding the child’s paternity, i.e., paternity fraud.2 Hodge v. Craig Ms. Hodge and Mr. Craig dated on and off during high school.3 They broke up for several weeks in October 1991.4 During the breakup, Ms. Hodge had sex with another man, Mr. Hay.5 Ms. Hodge and Mr. Craig began dating again, and Ms. Hodge did not tell Mr. Craig that she had sex with Mr. Hay or that at one point, she thought she might be pregnant with his child.6 A month later, Ms. Hodge told Mr. Craig that she thought she was pregnant, and the two went to a doctor’s office to confirm the pregnancy.7 When the test came back positive, Mr. Craig specifically asked Ms. Hodge if she was sure that he was the father.8 Ms. Hodge’s reply was that she was sure Mr. Craig was the father and that the child could be no one else’s.9 Because of the pregnancy, Mr. Craig asked Ms. Hodge to marry him.10 The two married in December 1991, and their son was born in June 1992.11 The son grew up as Mr. Craig’s child.12 Mr. Craig adopted Ms. Hodge’s other child, a daughter from a previous relationship.13 When the parties determined that they did not want any other children, Mr. Craig underwent a vasectomy.14 Mr. Craig began working as an over-the-road driver in order to provide support for the family of four.15 In 2000, Ms. Hodge told Mr. Craig that she was having an affair and then filed for divorce.16 The parties’ Marital Dissolution Agreement provided that Ms. Hodge would be the primary residential parent, and Mr. Craig would have visitation.17 Ms. Hodge remarried in 2002, and Mr. Craig remarried in 2003.18 Mr. Craig moved to Georgia to live with his wife and her daughter by a previous marriage.19 He asked the trial court to lower his child support obligation, and the court lowered it to $180 per week.20 Mr. Craig stayed current with his child support payments and made regular visits to Tennessee to visit the son and daughter.21 On two occasions, Mr. Craig and his new wife visited physicians to find out about reversing his vasectomy.22 Due to the cost of the procedure, the likelihood of success, and the fact that Mr. Craig 14 Nashville Bar Journal - Dec 12 / Jan 13
already had a son to carry on the family name, the couple made the decision to forgo the procedure.23 The parties’ son decided that he wanted to live with Mr. Craig.24 Rather than uproot his son, Mr. Craig moved back to Tennessee.25 In 2005, the trial court modified the parenting plan to reflect Mr. Craig as the son’s primary residential parent, and Ms. Hodge began paying child support to Mr. Craig.26 Over the next year or so, Mr. Craig began questioning whether he was the son’s biological father.27 Mr. Craig took a DNA sample from the son while he was sleeping.28 A DNA test confirmed his suspicions – he was not the biological father.29 Mr. Craig told Ms. Hodge, and she claimed she had a negative pregnancy test after she was involved with Mr. Hays.30 Ms. Hodge broke the news to her son.31 Mr. Craig desired to continue the father-son relationship, but the son told him “it’s not the same now” and that he wanted to live with his mother.32 In 2007, the trial court returned the son to Ms. Hodge’s custody, terminated Ms. Hodge’s child support obligation, and left open the possibility for Mr. Craig to file a counterclaim.33 Mr. Craig filed his counter-claim for intentional misrepresentation and negligent misrepresentation in 2008, claiming that he never would have married Ms. Hodge, adopted her daughter, or had a vasectomy if he had known he was not the biological father.34 The trial court found that Ms. Hodge “purposely defrauded [Mr. Craig] into believing [the son] was his child, knowing she had sexual relations with Joey Hay at the time and a count on one’s fingers would have revealed Joey Hay could be the father.”35 The trial court found Ms. Hodge liable for fraud, intentional misrepresentation, and negligent misrepresentation.36 The court awarded Mr. Craig a judgment equaling the total child support he paid plus the medical expenses and insurance premiums he paid.37 The court also awarded attorneys fees and $100,000 for emotional distress.38 The Middle Section Court of Appeals upheld the trial court’s finding of intentional misrepresentation, but reversed the damage award for child support, medical expenses, and insurance premiums, stating that it was a prohibited retroactive modification of child support.39
The appellate court also reversed the $100,000 emotional distress award stating that noneconomic damages could not be award for a misrepresentation claim and reversed the award of attorney’s fees.40 The Court of Appeals refused to recognize a cause of action for paternity fraud.41 Mr. Craig raised only two issues on appeal to the Tennessee Supreme Court: (1) whether misrepresenting a child’s paternity is fraud, intentional misrepresentation, or negligent misrepresentation, and (2) whether the award for child support, medical expenses, and health insurance premiums was a retroactive modification of child support.42 The Court applied the elements of intentional misrepresentation to the case at bar, and determined that Mr. Craig was able to prove each element.43 The Court explained that Ms. Hodge told Mr. Craig that the child was his and could be no one else’s.44 This was a false statement made with recklessness because Ms. Hodge knew she had sex with Mr. Hay.45 Mr. Craig relied on the truth of this representation and was damaged by doing so by suffering from significant monetary damages.46 The Court then turned to negligent misrepresentation.47 Through a review of the history of this tort, the Court explained that the application of negligent misrepresentation is limited to representations made in a business or commercial transaction.48 The Court recognized that some view today’s marriage as a contractual relationship, but declined to extend the tort of negligent misrepresentation to a paternity case.49 Finally, the Court reached the issue of whether the award of damages for child support, medical expenses, and health insurance premiums was a retroactive modification of child support prohibited by Tenn. Code Ann. § 36-5-101(f)(1).50 The Court determined that it was not.51 Mr. Craig had no legally enforceable obligation to pay child support when the judgment was entered, Mr. Craig did not
owe any child support in 2005, when the court ordered Ms. Hodge to start paying Mr. Craig child support, and Mr. Craig had not been late in paying the child support during the times he was obligated to pay.52 As a result, the damage award did not reduce or terminate any child support arrearage.53 Additionally, the judgment did not attempt to modify Mr. Craig’s child support obligation as it had existed after the 2005 order relieving him of his responsibility to pay child support.54 Mr. Craig was entitled to the pecuniary loss he suffered as a result of his reliance on Ms. Hodge’s representation that the child was his.55 The trial court was correct in calculating this amount based on the child support, medical expenses, and health insurance premiums Mr. Craig paid for the son’s benefit following the divorce.56 As the Court explained its decision to recognize a cause of action for intentional misrepresentation, it stated, “The laudable goals of preserving intact families, promoting healthy relationships between parents and their children, and shielding children from their parents’ vitriolic disagreements will not be advanced in this case by preventing Mr. Craig from pursuing his intentional misrepresentation claim against Ms. Hodge. The family unit here was already dissolved when Mr. Craig and Ms. Hodge divorced in 2001. The once healthy relationship between Mr. Craig and [the child] was extinguished in 2007. Providing stable financial support for [the child] is no longer a concern because the trial court relieved Mr. Craig of his obligation to support [the child] in 2005 and because [the child] turned eighteen in June 2010.”57 The Hodge case was factually very strong with complex damages. It does open the door for many other areas of fraud between spouses and adds a new tort claim. Expanding Arena of Spousal Torts Tennessee abolished spousal immunity in 1983.58 Since then, spouses have been able to sue one another over car accidents and the like. In recent years though, Tennessee litigants have seen a rise in the number of
“spousal torts”. These so-called torts are those that go to the essence of the spousal relationship. Hodge serves to further expand the already wide array of tort actions available to spouses and ex-spouses. Aside from intentional misrepresentation of paternity, Tennessee recognizes many other tort actions in domestic cases. Perhaps the most notable is for negligence in inflicting a spouse with a sexually transmitted disease. Tennessee’s first decision on this issue came from the Tennessee Court of Appeals in 2001: “[We] hold that an individual who knows or should know he has a venereal disease has a legal duty to use reasonable care in preventing the disease’s transmission.”59 In a later case, the Court of Appeals upheld a trial court award for one spouse inflicting an STD upon the other.60 In addition to the traditional order of protection, Tennessee domestic courts also recognize a cause of action for assault and battery against a spouse, which can be brought in a divorce or legal separation action if the applicable statute has not run. Future of Spousal Torts What other spousal torts are on the horizon? The Hodge court hints that there may be a range of torts and defenses available in paternity cases: “Because of the procedural posture of this case, we are not required to address the proper measure of damages in cases of this sort. Mr. Craig has not taken issue with the portion of the opinion of the Court of Appeals vacating his $100,000 damage award for intentional infliction of emotional distress…. The resolution of these questions relating to the claims that can be filed, the defenses that can be asserted, and the damages that can be recovered in cases of this sort, beyond those directly raised by the parties, must await another day.”61 The moral of this story is that domestic attorneys should keep an open mind when deciding which torts to bring as part of a Continued on Page 19 Nashville Bar Journal - Dec 12 / Jan 13 15
Feature
THE SERIES LLC – A Little Known But Advantageous Business Tool by:
Steven G. Gladstone
INTRODUCTION Tennessee entity formation statutes provide an interesting and potentially cost-saving tool available to business owners. From recent experience, few businesspersons or their advisors are aware of it at all. Those who are aware approach with caution due to unanswered legal, business application, and taxation questions. This tool is the Series Limited Liability Company (SLLC) entity form. While this article is not intended to be an exhaustive treatment of the subject, its purpose is to raise general awareness for businesses, their legal counsel, and other advisors of the SLLC entity form through (1) an overview of the origin and rules of formation of the SLLC), (2) a look at its apparent advantages and anticipated disadvantages (mostly unanswered questions, and (3) a discussion of some experiences and observations on its use in practice. 1. OVERVIEW Many of us remember positioning ourselves at a safe distance from the limited liability company entity form when, in 1994, Tennessee enacted its first LLC law. In 2005, changes were made in what is now the Tennessee Revised Limited Liability Company Act (herein, the “Act”), which became effective in 2006. Where mentioned in this article, an “LLC” refers to the limited liability company in general.1 Similarly, the SLLC provisions of the Act effective in 20062 have been viewed with circumspection by many attorneys and their clients. But SLLCs seem destined to stay – enabling provisions have now been enacted, in some form, in Tennessee and eight other states.3 Formed and maintained properly
16 Nashville Bar Journal - Dec 12 / Jan 13
and without taking shortcuts in statutory requirements, the SLLC can be a significant liability shield, potential time and money saver and management tool where there are “members, holders, managers, directors, membership interests or financial rights having separate rights, powers or duties with respect to specified property or obligations of the LLC … [or] profits and losses … [and which] have a separate business purpose or investment objective.”4 The Act provides this fascinating structure in §309. 5 The commentators on the subject generally recognize Delaware as the progenitor of Tennessee’s SLLC provisions.6 A side-by-side analysis of the two states’ statutes, however, shows that Tennessee’s provision for SLLCs is much abbreviated in comparison to the Delaware law. When your author first began investigating and then employing SLLC entities in his practice, literature on the subject was rare and most articles could be characterized as intellectual “head scratching.” At that time, one reported early use was to create a single purpose, liability sheltered entity for each parcel of real property held by real estate developers.7 The proliferation of articles now available on the subject demonstrates a great deal of current interest in SLLCs, with discussion of anticipated benefits of its use while raising many unanswered questions.8 Most often, an SLLC is considered for the principal reason of creating a liability shield between two or more entities and/or their principals. The statutory procedures for formation of an SLLC should be closely studied. The SLLC is a separate, stand-alone entity, and is regarded as such like any filed LLC when it comes to providing a limited liability shield for owners,
affiliate entities and properties. There is also reference to LLC rules relating to its maintenance.9 Even though the Annual Registration Report and fee are not required, the SLLC must follow and conform to certain other statutory provisions that apply to all domestic LLCs.10 These requirements are varied, but some of them can be expected from other entity practice, such as being required to prepare and maintain mandated records and information,11 and separate, extensive rules of entity management apply depending upon its management structure.12 Inherently intended to be construed with some flexibility, the legislature has provided that the statutes comprising Chapter 249 of the Act not be constrained by the common law rule of strict construction.13 Highlights of the steps of formation of an SLLC in Tennessee: In practice, taking advantage of the SLLC provisions begins with the formation of an LLC, requiring careful drafting and filing of its Articles of Organization with the Tennessee Secretary of State, payment of fees, and subsequent filing of the stamped Articles with the appropriate Register of Deeds. That first, filed “Head” LLC must specifically adopt the series treatment provided by §309 of the Act.14 A potential trap for the unwary is that the Head LLC Articles must have specific language to set up authority for a series and to invoke the limited liability provisions. Good practice would be to recite the authority to be a Series LLC, including the separation (liability boundary) language in the Articles of both the Head LLC and the Series LLC. The drafter may then choose whether or not to create the first (and subsequent SLLC) formation documents using a “cookie cutter” approach. There is no statutory requirement or prohibition in doing so. Careful practice would suggest that the Articles of Organization
(or “Formation”) make reference to the Head LLC as authority for its existence. Referring only to the Secretary of State control number of the Head LLC has been used in practice and should suffice. (This is a “tethering” issue, discussed below.) 2.APPARENT ADVANTAGES & POTENTIAL DISADVANTAGES Advantages Offered Taking the statutory provisions at face value, there are several apparent benefits provided, all the while raising questions that until answered call for cautious optimism as to the use of the SLLC form. Section 309 permits “liability walls” to be erected among and between assets or classes of assets, and each entity’s management personnel (Members, Managers or Board Members). The language establishing the limited liability shield for each SLLC makes it clear: Notwithstanding anything to the contrary set forth in this chapter or under other applicable law, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing, with respect to a particular series established under subsection (a), shall be enforceable against the assets of such series only, and not against the assets of the LLC generally, or any other series of the LLC, and, unless otherwise provided in the LLC documents, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the LLC generally, or any other series of the LLC, shall be enforceable against the assets of such series … (15) As mentioned, the SLLC law provides a method for creating multiple limited liability entities without the cost of multiple registrations with the Tennes-
see Secretary of State and Register of Deeds. Neither an initial registration fee of $300 (or more, depending on the number of Members) nor the minimum $300 fee accompanying an Annual Registration Report (which is likewise not required) are needed to form an SLLC. (16) Also, the statutory requirement of filing the Articles with the appropriate Register of Deeds office is not mandated, and to the extent that multiple entities can effectively utilize some similarity in the basic structural language of the principal governing entity documents (e.g., Articles of Organization and Operating Agreement), the SLLC can save immediate and long-term document duplication costs. Hopefully this will result in management gaining a familiarity with its “LLC Documents,” yet highlighting the particular formation nuances of each separate entity. Care must be taken, however, in drafting the particular provisions for instance, those covering management, asset identification, members and termination. Another considerable benefit afforded is privacy of business transactions. Since there is no registration requirement, unless the principals desire to do so the identity and number of parties, management designations and description of assets does not appear of public record. This aspect could be of significant value where the asset(s) to be held by an SLLC embody proprietary assets, trade secrets or are based upon other confidential information, and would have a particular application to the secrecy often required in intellectual property matters, whether in development or as a final product. Inherent in this procedure is another issue: lack of public notice of formation. This lack of filing of public record may be a two-edged sword (see discussion below). Continued on Page 18
Nashville Bar Journal - Dec 12 / Jan 13 17
THE SERIES LLC Continued from page 17
Similarly, a holding company could find cost-effective risk management when owning (or in-licensing) multiple intellectual or tangible properties where one or more carries a high risk of loss or exposure to extraordinary liability. One good example for the use of an SLLC is in the context of forming captive insurance companies which is being promoted by the Tennessee Captive Insurance Association and have been endorsed by the Tennessee Department of Commerce and Insurance.
●
Can or will Tennessee courts look to the Delaware statute for clarification of unanswered Tennessee SLLC issues where the Tennessee statute is silent?
●
What will we see as the effect of lack of recognition by third parties and possibly by foreign jurisdictions? How similar must two states’ LLC statutes be (regarding both LLCs and SLLCs) for one state to give full faith and credit to the attributes of an entity formed in another state? If one state has SLLC provisions and the other does not?18
●
“Piercing the LLC Veil” – will this remedy be available to creditors? Again, will the lack of public filing (i.e., no customary public notice of the limited liability aspect) make “piercing” easier for a creditor of one SLLC to reach the assets of the Head LLC or another SLLC in the series?
The potential advantages of the SLLC entity form are many. Potential Disadvantages The cautious approach of some commentators centers on a reluctance to use SLLCs until there is a plausible resolution to key unanswered questions. From a survey of current literature on the subject, here are a few issues that have been mentioned: ●
●
How “tethered” is an SLLC to its Head LLC? See §48-249309(a) referencing text “…with respect to specified property or obligations of the LLC…” [the “LLC” referred to here is clearly the “Head LLC”] (not a statutorily defined term). This raises further questions such as whether an SLLC will lose its statutory existence if the Head LLC is dissolved. While not addressed in the Tennessee statute, Iowa’s Series LLC provisions answer that question for that particular jurisdiction, stating that loss of the authority of the Head LLC will not terminate the validity of a series. 17 Since the formation documents of an SLLC are not filed with the Secretary of State, the SLLC cannot obtain a “certificate of existence,” which could cause a delay in (or termination of) closing a transaction, especially in the M&A practice context.
18 Nashville Bar Journal - Dec 12 / Jan 13
●
How will Bankruptcy Courts view a series entity?
3. Practice and Experience Prior to forming an SLLC, the owner’s appetite for the accounting, record keeping and management requirements must be honestly assessed. While the acceptance of such routine entity tasks are usually understood in the context of a filed LLC, often it is more difficult for the owner(s) to embrace the same administrative and management requirements in a non-filed entity. From a practical and legal standpoint, conflicts of interest issues should be approached seriously, especially if it is planned that there will be multiple SLLCs formed with multiple managing Members or other form of governance for each SLLC, with no combination of principals being the same between entities.
Experiences and Observations Your author offers one person’s experiences in dealing with SLLCs. Mentioned here are a few situations encountered that have proven interesting and/ or difficult: Banking: Many of the banks approached to open an account do not have any knowledge of the existence of the SLLC authority, and therefore usually insist on obtaining a “copy of the Articles of Organization carrying the Secretary of State filing stamp” to open an account. A memorandum explaining the statute has been helpful in ultimately permitting the depositor to open the account in some instances, no so in others, whether locally or in foreign jurisdictions. Secretary of State: That office does not recognize a non-filed formation document for any purpose, e.g., the subsequent filing of “Articles of Formation” (or similar document) or Assumed Name Registrations. Owners Desiring to Avoid LLC Registration Costs: After describing the advantages and some disadvantages to the SLLC, the cost savings is very much appreciated. However, a few see the formalities of maintaining the SLLC as a separate entity (bookkeeping, accounting, checking account and similar tasks) as pesky details that they don’t care to pay for. Perhaps the filing with the Secretary of State of a regular LLC impresses a sense of separate entity and need for adherence to the rules of operating a business. Some answers are beginning to emerge around state and federal income and franchise/excise taxation issues involved (or potentially involved) and there is affair amount of commentary now centered on these matters.19 This area is mentioned only to give encouragement Continued on Page 20
A New Domestic Tort Continued from page 15
domestic action. They should question clients about these elements and the dates of the same. As the Hodge Court put it, “The courts should not and must not close their doors to changing conditions.”62 This is yet another example of these changing times. Helen Sfikas Rogers and Katie Mathews Zipper practice family and probate law with the firm of Rogers, Kamm & Shea in Davidson and Williamson Counties. Ms. Rogers is a certified civil trial and pretrial specialist.
(Endnotes) 1 See Hodge v. Craig, --- S.W.3d ----, No. M200900030-SC-R11-CV, 2012 WL 4486315 (Tenn. Oct. 1, 2012). 2 Hodge, 2012 WL 4486315, at *11. 3 Id. at *1. 4 Id. 5 Id. 6 Id. 7 Id. at *2. 8 Id. 9 Id. 10 Id.
Id. Id. 13 Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. at *3. 23 Id. 24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. at *3-4. 36 Id. at *4. 37 Id. 38 Id. 39 Hodge v. Craig, No. M2009–00930–COA–R3–CV, 2010 WL 4024990, at *7, 9 (Tenn. Ct. App. Oct. 13, 2010), aff’d in part, rec’d in part, Hodge, 2012 WL 4486315. 11
40
12
41
Id. at *12 Id. 42 Hodge, 2012 WL 4486315, at *5. 43 Id. at *13. 44 Id. 45 Id. 46 Id. 47 Id. at *14. 48 Id. at *15. 49 Id. 50 Id. at *16. 51 Id. at *17. 52 Id. 53 Id. 54 Id. 55 Id. However, in calculating the damage award, the trial court actually double counted the health insurance premiums Mr. Craig had paid. The Supreme Court remanded this case back to the trial court to amend the judgment on this issue. 56 Id. 57 Id. at *14. 58 See Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983). 59 Hamblen v. Davidson, 50 S.W.3d 433 (Tenn. Ct. App. 2000). 60 See Cardella v. Cardella, No. M2007-01522-COAR3-CV, 2008 WL 4367306 (Tenn. Ct. App. Sept. 17, 2008). 61 Hodge, 2012 WL 4486315, at n.30. 62 Id. at *9 (citing Metropolitan Gov’t of Nashville & Davidson Cnty. v. Poe, 383 S.W.2d 265, 277 (1964)).
Nashville Bar Journal - Dec 12 / Jan 13 19
THE SERIES LLC Continued from page 18
to a business owner to work with qualified tax advisors when contemplating formation of an SLLC and again, this article does not include any discussion of tax treatment or tax advice, leaving that to the experts in those areas. CONCLUSION The debate as to whether the benefits outweigh the unknowns is far from over. More questions have been raised than answers given regarding Tennessee’s (and other enacting states’) Series LLC statute. No doubt a measure of clarification will develop as more use is made. There are no reported cases in Tennessee or Delaware construing this entity form. If one reads §309 literally, it is arguably clear as to meaning, unambiguous and direct in its stated purpose, and therefore should be given full effect as enacted. Should uncertainty stop the use of a Series LLC? Care in the formation and subsequent utilization of this entity form should afford some comfort. Details of formation will have to be assessed on a case-by-case basis. Education of the public and governmental authorities about SLLCs would go a long way to removing some of the current day-to-day obstacles encountered in practice. With no “certificate of existence” available, parties to a transaction with the SLLC may have to offer an opinion of counsel as to the existence and validity of the particular series, its assets or liabilities which in turn may cause delay or termination of a transaction and dilute the perceived cost savings of this entity form. Again, this article is intended to be only a “tip of the iceberg” treatment of an important and useful entity framework. Perhaps as more experience is gathered in this area, the Tennessee statutes may create an opportunity for further amendment of §309 of the Act, and in so doing, attempt to furnish answers to some
20 Nashville Bar Journal - Dec 12 / Jan 13
of the questions which currently exist. If a potential SLLC user is willing to follow all the LLC and SLLC rules and watch for case law to develop in this and other jurisdictions, the Series Limited Liability Company can be a useful, expeditious and cost-effective tool where multiple entities are perceived as necessary. n Steven Gladstone is a solo practitioner in Nashville, and has been an entrepreneur for his entire career. Principally focused on entity formation and intellectual property transactions, he can be reached at gladstone.steven@gmail.com.
10 Section 48-248-309(f) of the Act (“Management Duties; Admission of Members; Transfer”) dictates that “parts 4 [Management] and 5 [Admission of Members…] of this chapter shall apply to a series of an LLC, as if the series were a separate LLC.”
For instance, see Tenn. Code Ann. §48-249-406, “Required Records.”
11
12 Tenn. Code Ann. §48-249-401, “Management of LLC.” 13 No Strict Construction – “The rule that statutes in derogation of the common law shall be strictly construed shall have no application to this chapter.” Tenn. Code Ann.§48-249-1018.
(Endnotes)
14 There is some confusion here: §309(a) says that “The LLC documents (see the statutory definition at §48-249-102(16)) may establish, or provide for the establishment one (1) or more designated series …” and this requirement is echoed in §309(b)(1)(A) (emaphsis added). But “notice of the limitation on liabilities” must be stated in the Articles of Organization of the Head LLC, per §309(b)(1)(C). See also §48-249-309(b)(2).
1
Tennessee Revised Limited Liability Company Act, Tenn. Code Ann., §48-201-101 et seq. (2011).
15 Tenn. Code Ann.§48-249-309(b)(1), “Separateness of series.”
2 Tenn. Code Ann. §48-249-309 (2011). Curiously, definitions of “Class” and “Series” appear in 1994 Act (§48-229-102(14) but there was no authority provided to form Series LLCs. In the revised the Act, effective January 1, 2006, Series LLCs were authorized.
16 Annual Report §48-249-1017; however, §309 makes no mention of any requirement to file an SLLC Articles (or anything else) with the Secretary of State or Register of Deeds. Must one be filed with Secretary of State? All the commentary refers to this lack of requirement as a major advantage of the Series LLC. But see Tenn. Code. Ann.§ 48-248309(f) (dictates that “parts 4 [Management] and 5 [Admission of Members…] of this chapter shall apply to a series of an LLC, as if the series were a separate LLC.”). However, the filing requirement for Articles of Organization is found in §48-249-201 which is contained in Part 2 of the Act.
Other States with Series Statutes include Delaware (Del. Code Ann. §18-215)(eff. Aug. 1, 1997)), Illinois (805 Ill. Comp. Stat. 180/37-40)(eff. July 1, 2005)), Iowa (Iowa Code Ann. §489.1201 (eff. Jan. 1, 2009)), Nevada (Nev. Rev. Stat. § 86.011 et seq. (eff. Oct. 1, 2005)), Oklahoma (18 Okla. Stat. Ann. § 2054.4((eff. Nov. 1, 2004)), Texas (Tex. Bus. Orgs. §101.601 et seq. (eff. Jan. 1, 2006)), Utah (Utah Code Ann. § 482c-606)(eff. May, 11, 2010), Wisconsin (Wis. Stat. § 183.0504 et seq.)(eff. Mar. 20, 2002)). 3
4
Tenn. Code Ann.§48-249-309 (2011).
5
Tenn. Code Ann.§48-201-101 et seq. (2011).
Delaware Limited Liability Company Act, Del. Code Ann. §18-215 (eff. Aug. 1, 1997). 6
See examples mentioned in B. Kass, Series LLC offers new twist for real estate investors, C h i . T r i b ., Jan. 15, 2010.
7
Now, a Google search of “Series LLC” will deliver dozens of articles and citations on the subject. See, e.g., A. Nevius, Series LLCs: Pros and Cons of a Growing Trend, J. Accountancy (Jan. 2010); Jean Murray, Series LLC—Is it Right for Your Business?, http://biztaxlaw. about.com/b/2012/07/15/series-llc-is-it-right-foryour-business.htm (Jul. 15, 2012); Bernie R. Kray, Comment, Respecting the Concept and Limited Liability of a Series LLC in Texas, St. Mary’s L.J. (Mar 9, 2011), available at http://stmaryslawjournal.org/pdfs/Kray. pdf; Vickie R. Harding, Series LLCs: A Wave of the Future – Or Not? Mich. Bus. L.J. (Spring 2007), available at http://www.michbar.org/business/BLJ/Spring2007/ harding.pdf. 8
For instance, see §48-249-309(b)(1)(B), “Separate and distinct records are maintained for any such series and the assets of associated with any such series … and accounted for …separately from the other assets of the LLC and the assets of any other series of the LLC. [Note here that “LLC” is used to mean the "Head" LLC which is filed of record.]
9
17
12 Iowa Code Ann. §489.1201 et seq.
This has been answered, in part, by one jurisdiction which does not have an SLLC statute: California. Cal. Corp. Code §17450 states: “(a)The laws of the state or foreign country under which a foreign limited liability company is organized shall govern its organization and internal affairs and the liability and authority of its managers and members. (b)A foreign limited liability company may not be denied registration by reason of any difference between those laws and the laws of this state.” 18
19 The taxation arena is where some early answers are being found to questions such as recognition of the SLLC as a stand-alone entity, treatment as a separate entity for franchise and excise tax, or foreign jurisdiction domestication. See generally B. Carter & J. Long, Jr., Tennessee: State Issues Significant Guidance on the Tax Treatment of Series LLCs, J. 21 Multistate Taxation And Incentives 10 (Feb. 2012).
Annual Meeting & Banquet Continued from page 11
dent, and offered gratitude to his 36-year assistant, Debbie, the entire NBA Board, Treasurer Bernadette Welch, Secretary Rebekah Shulman, as well as the committee chairs and committee members for developing programs, implementing policies, and developing CLEs. He thanked the NBA staff for efficiency and advice at all times, and ended his accolades with, “The collegiality: that’s what makes it work. Thank you all so much.”
Judge Echols. “This new committee has already helped many fellow veterans who are suffering and it is a well-earned award,” Kitch expressed to Mackler and Haltom on stage before a standing ovation.
Law Day with Senator Lamar Alexander and the recent Baker v. Carr program were two programs Kitch was especially proud of as well as the new Veterans Committee comprised of all ranks of all branches from corporals to generals. He applauded their support for veterans and families, the Wounded Warrior project, and Operation Stand-Down. He endorsed the success of the Lawyer-to-Lawyer program as he emotionally acknowledged his own mentor and criminal law professor and friend since 1973, Donald J. Hall, who passed away just a few weeks ago. To Professor Hall’s honor, President Kitch led a toast in which the entire assembly joined.
President-elect Sherrard stated that Gigi Woodruff had confirmed his calculations in that he is to be the 100th President of the NBA. He recalled his involvement in the last three years on the Board, and in that time was impressed to have seen so many lawyers actively engaged in productive committee work. He recognized a dynamic and productive YLD, the Bar’s strong ties with the Napier Looby Bar Association and with LAW, concluding with sincere recognition of the Bar staff in their dedication and hard work providing Nashville with a first-class association.
Kitch’s first President’s Award went to Tom Lawless, a 12-year volunteer of Dial-A-Lawyer who chaired NBA ethics and professionalism committees, and who is a fellow of the NBA. Kitch noted that, “Lawless, out of his own pocket in the past, has sponsored Law Day, the Annual Meeting & Banquet, and the picnic.”
As one final act as president, Kitch introduced Tom Sherrard, another of President Kitch’s former law professors, as the next President of the Nashville Bar Association.
On his “pet” project for 2013, Sherrard stated, “We have about 2800 members, a level number over the last few years. I want to entice those who are not yet members to join us. I want our value proposition to remain strong, to focus on retention,
moderate growth, and member feedback.” President Sherrard commended John Kitch, complimenting his punctuality, delegation skills and efficiency and focus in running his many meetings throughout the year. “John doesn’t rule his meetings with an iron fist, but more like a lead foot,” Sherrard quipped and backed that up indicating that, “The last board meeting lasted only 13 minutes. Thank you, John, for moving us through with great dispatch. Your articles were fun to read. You have good judgment and excellent humor.” As John passed the gavel, President-Elect Sherrard smiled and said, “I can see the relief on your face!” The new president recognized the newly elected 2013 board members: Kay Caudle, Hon. Randal Mashburn, Andrea Perry, Matt Potempa, Saul Solomon, and Jocelyn Stevenson, as well as the new Officers for 2013: General Counsel Gareth Aden, Secretary Cornell Kennedy, Treasurer Trace Blankenship, 2nd VP/Membership John Tarpley, 1st VP/Governance Patricia Moskal, and President-elect Charles Grant. May 2013 be the year for competency and collegiality from every member of the Nashville Bar Association next year! n
General Judge Robert Echols received the second President’s Award singling him out as a retired army general who was appointed to be the first chair of the newly formed Veterans Committee. Judge Echols assembled lawyer members for the Veteran’s Day march down Broadway behind a sign saying “Nashville Bar Association Veterans.” Kitch expressed to Echols heartily, “General Judge or Judge General, Congratulations!” James Mackler and James Haltom received the last two President’s Award for their decision to form the Veteran’s Committee and for their leadership in encouraging its first meeting hosted by Nashville Bar Journal - Dec 12 / Jan 13 21
Disclosure N. Courtney Hollins has joined Dickinson Wright PLLC as a member. Hollins represents buyers, sellers, developers, landlords, tenants, lenders and borrowers in commercial real estate acquisitions, disposition, construction, development, leasing and finance transactions, workouts and restructurings. In addition, she serves as corporate counsel to a variety of entities, organizing and assisting in the management of corporations, limited liability companies, and limited partnerships. She is listed in Best Lawyers in America for Real Estate and was appointed by President William J. Clinton to serve on the National Advisory Council of the United States Small Business Administration from 1997-2001. Hollins received her B.S., cum laude, from the University of Tennessee and her J.D. from the George C. Taylor School of Law. Benjamin Kraft Raybin has joined Hollins, Raybin & Weissman, P.C. as an associate attorney. A 2010 Vanderbilt University Law School graduate, Ben served as a law clerk for Judges Jane B. Stranch and Gilbert S. Merritt, both of the U.S. Court of Appeals for the Sixth Circuit. While at Vanderbilt, Ben was Articles Editor for the Vanderbilt Law Review. Before law school, Ben attended the University of Chicago, graduating with honors and competing for four years on the mock trial team. Jeff Williams recently joined the Nashville office of Shuttleworth Williams, PLLC as an associate attorney. His practice focuses primarily on general liability defense, working closely with local, statewide and national businesses. Williams is a 2009 graduate of the Nashville School of Law. Before joining the firm, he was the law clerk to Davidson County Circuit Court Judge, Thomas W. Brothers and then worked as staff attorney at North, Pursell & Ramos, PLC.
22 Nashville Bar Journal - Dec 12 / Jan 13
\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 William T. Smith has joined Gullett Sanford Robinson & Martin PLLC as an associate in the firm’s Real Estate section. He will focus his practice in the areas of real estate, commercial transactions, commercial leasing, and general business planning. Will graduated cum laude from the University of Tennessee College of Law where he served as executive editor of the Tennessee Law Review. He graduated cum laude from Davidson College with a BA in Religion and Sociology. He is a 2005 graduate of Montgomery Bell Academy. D. Andrew Curtis has joined the firm of Riley Warnock & Jacobson, PLC as an associate. Curtis earned his J.D. degree from Vanderbilt University Law School in 2012, where he was a member of the Order of the Coif and the Vanderbilt Law Review, and was a Thomas W. Beasley Scholar. Curtis graduated summa cum laude from DePauw University in 2005 with a major in economics. Before attending law school, he served as a Platoon Commander and then Company Commander in the United States Marine Corps. He earned a Navy and Marine Corps Achievement Medal for his service, which included a combat tour in Iraq. He will focus his practice on commercial litigation. Hugh C. Gracey, III has joined the firm of Smith & Tomkins in Nashville, TN. Gracey is a 2003 graduate of Cumberland School of Law at Samford University in Birmingham and is admitted to practice in the United States District Courts for the Western District, Middle District and Eastern District of Tennessee. He is a member of the Tennessee Defense Lawyers Association (TDLA), Nashville Bar Association and Defense Research Institute (DRI). He has an AV peer review rating from Martindale Hubbell and will concentrate his practice in the area of premises liability defense, automobile liability defense, products liability defense and construction defect defense.
Bethany Whelan has joined Waddey & Patterson, P.C. A registered patent attorney, Whelan’s practice areas include nutraceuticals, chemical engineering, pharmaceuticals, bioengineering and life sciences. She obtained her Doctor of Jurisprudence degree in May 2012 from Vanderbilt Law School. There she served as a MacArthur Foundation Law and Neuroscience Project Research Assistant and was part of the Vanderbilt Intellectual Property Association. Her undergraduate work in Chemistry was also completed at Vanderbilt, where she graduated Magna Cum Laude in 2007 with a Bachelor’s degree. As an undergraduate, she was honored with the Martin Williams Literary Award and served as the American Chemical Society Treasurer. Jonathan R. Patton has joined Dickinson Wright PLLC as an Associate. Patton will focus his practice in the areas of commercial and business litigation and bankruptcy, restructuring & creditors’ rights. He was previously a Summer Associate with Dickinson Wright in 2011 and served as an intern to the Honorable Aleta Trauger, U.S. District Court for the Middle District of Tennessee. He also served as Authorities Editor of the Vanderbilt Journal of Transnational Law. Patton received his B.A., with honors, from Vanderbilt University and his J.D. from Vanderbilt Law School. April Watkins has joined MTR Family Law firm (formerly Moses Townsend & Russ PLLC) as an associate. Watkins will represent clients with a comprehensive range of family law services including counseling, negotiation, mediation, and litigation. Watkins is a 2009 graduate of the New England School of Law in Boston with a Juris Doctorate degree. Her undergraduate work was completed at Belmont University in Nashville, where she graduated Cum Laude with a Bachelor of Science degree in 2006. Watkins is a trained Rule 31 Mediator, and is a Collaborative Divorce Law practitioner.
DIAL - A - LAWYER Dial-A-Lawyer is held the first Tuesday of each month. November Volunteers:
December Volunteers:
Joe Rusnak Edgar Rothschild Doug Pierce Howell O’Rear Jamie Machamer Tom Lawless Victoria Ferraro Helen Cornell
Helen Cornell Barry Gearon Cheyanne Kinghorn Tom Lawless Edgar Rothschild Joe Rusnak Katie Zipper
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.
Peter Malanchuk has joined Constangy, Brooks & Smith, LLP. He focuses his practice on defense of labor and employment matters in federal and state courts, as well as before administrative agencies including the Equal Employment Opportunity Commission and the Tennessee Human Rights Commission. Prior to joining Constangy, Malanchuk served four years as a law clerk for the Honorable Judge Juliet Griffin, Federal Magistrate Judge in the Middle District of Tennessee. Malanchuk is a graduate of the University of Alabama School of Law. While in law school, Malanchuk served as a the Managing Editor for The Journal of the Legal Professional. He was also a recipient of the CALI Award for Excellence in immigration law and a member of the Bench and Bar Legal Honor Society. Peter received his undergraduate degree from Kenyon College in Gambier, Ohio and graduated with a double major in history and political science.
Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.
WELCOME NEW NBA MEMBERS Anca Cristina Adams Waller* Mary A. Akins Mary Alice Akins - Attorney at Law Nathan Jeremy Bailey Waddey & Patterson, P.C.* Sarah K. Baker Bradley Arant Boult Cummings LLP* Steve M. Benvenuto Coburn D. Berry G. Tyson Bickley Waller* Jessica D. Binkley Law Office of J. Phillip Jones Christine Malishka Jean Bocek Waller* Thallen J. Brassel Burr & Forman LLP* Heather P. Chesser Special Counsel David A. Curtis Riley Warnock & Jacobson, PLC* Michelle L. Delgado McCarter & Beauchamp, PLLC* Norman Adam Dietrich Leitner, Williams, Dooley & Napolitan, PLLC* Katie M. Downey Michael J.M. Dreyfuss Waller* John Cheek Eason Jr. Bass, Berry & Sims PLC Caroline Leigh Eley Butler, Snow, O'Mara, Stevens & Cannada, PLLC* Blake A. Etheridge Jennifer Faucett Waller* Nathan Richard Glassman Glassman, Edwards, Wyatt, Tuttle & Cox Lida Griest Waller* Kimberly Brent Griffin Waller* Todd Ryan Hambidge Waller* William M. Hines Erin Phillips Hughes Waller* Harris D. Kittrell Kittrell, Gibson & Jones Nina M. Kumar Burr & Forman LLP* Emily Herring Lamb Metropolitan Department of Law Robert Redman Laser III Bradley Arant Boult Cummings LLP* Alexandria Victoria Lee Waller*
Amy Sue Leopard Bradley Arant Boult Cummings LLP* Jessica Elizabeth Lingo Frost Brown Todd LLC* Jon D. Long Long and Rossman, PLLC Emily Harper Mack Lewis, King, Krieg & Waldrop , P.C.* Jillian Collins Mastroianni Dodson Parker Behm & Capparella, P.C.* Sean Thomas McKinney The Law Office of Sean Thomas McKinney Sarajane S. McMahon Patrick W. Merkel Cameron Worley, P.C.* Brent Layne Moreland Waller* Leighann Davis Ness Leitner, Williams, Dooley & Napolitan, PLLC* Amanda Elizabeth Nichols Bradley Arant Boult Cummings LLP* Mattie C. Owens Richard Alexander Payne Harwell Howard Hyne Gabbert & Manner, P.C.* Fred C. Pickney Cynthia N Podis Podis & Podis Courtney M. Rogers Waller* Blake Daniel Roth Waller* Kathleen A. Roth Waller* Trevor Marc Sava Waller* Jessica Rose Sievert Waller* John T. Spragens David Paul Staubitz Frost Brown Todd LLC* Lauren M. Sturm Waller* Jennifer L. Tate Waller* Mary Lauren Teague Wyatt, Tarrant & Combs, LLP Dustin Scott Timblin Waller* Casey Coleman Truelove Casey C. Truelove, Attorney at Law Joseph London Watson Waller* Michael N. Wennerlund Tiffany S. Wiggers * Belongs to a 100% Club firm Nashville Bar Journal - Dec 12 / Jan 13 23
Classifieds
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. 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. DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suit which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244. INGLEWOOD/NASHVILLE Office space available immediately on the second level of a converted historic house located approximately 10 minutes from the Courthouse. Approximately 200 square feet of carpeted space includes a window and all utilities, plus these shared amenities: receptionist, reception area, conference room(s), kitchen, bathrooms, ample accessible visitor parking, and telephone service. Internet, scanner, copiers, and fax are also available when needed. Lease this executive space for $750 per month at 4295 Gallatin Road (near the Briley Parkway exit) and practice law alongside three experienced attorneys in a warm and supportive environment. Call Carson W. “Bill” Beck, 615-226-9000.
Nashville Bar Journal Classifieds Online | www.nashvillebar.org
Visit the NBA's Career Center and Get Started Today: http://jobs.nashvillebar.org/home Employers:
Job Seekers:
Position wanted Mature lawyer seeks opportunity to associate with established small firm in Hendersonville or Nashville area. Interested in creditors representation, probate and real estate. Also have background in tax and employment related matters. Let's see if we have mutual interests. Please contact me at tsplaw@comcast.net.
•
Search for and quickly apply to great, relevant jobs
•
Place your job in front of our highly qualified members
•
Set up Job Alerts so you are immediately notified any time a job is posted that matches your skills or interests
•
Search our resume database of qualified candidates
•
Manage jobs and applicant activity right on our site
•
Limit applicants only to those who are qualified
•
Fill your jobs more quickly with great talent
•
Create an anonymous job seeker profile or upload your anonymous resume so employers can find you
•
Access job searching tools and tips
Advertise your Office Space in the Nashville Bar Journal
CC Advertising:
Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word.
Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org
Available Sections: Expert Witness, For Sale, Positions Wanted, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, and Accounting.
24 Nashville Bar Journal - Dec 12 / Jan 13
Where there’s a risk,
THERE’S A WAY. We know you can’t always avoid risk, but we can help you outsmart it. Since 1956 we’ve helped attorneys do just that, with sound property and casualty recommendations and excellent service.
PROFESSIONAL LIABILITY With 14 carriers to choose from, we can properly insure your risk, enhance your coverage and possibly reduce your premium. • Zero deductible available • Choice of claims expenses — inside or outside the limits • Coverage available up to $20 million EMPLOYMENT PRACTICES LIABILITY Protect your firm from employee lawsuits of sexual harrassment, age discrimination, and wrongful termination — no office is immune.
WORKERS’ COMPENSATION A program designed for law offices that allows for upfront and ongoing premium savings. • Up to 25% NBA member discount • Easy, convenient claims reporting • Loss control tools that may help reduce your losses BUSINESS OWNERS POLICY Is your firm adequately covered? Let us do a free comparison. Plus, if you are enrolled in the NBA’s Workers’ Compensation Program, you can earn a 5% discount on the business owners policy.
Contact Pam McGrath today for more information and a no-obligation quote.
615.460.1654 lawyers@assoc-admin.com Call
PLANNING I P S C O INSURANCE - AND SERVICE COMPANY, LLC -
2301 21st Ave South • Nashville, TN 37212 • IPSCOLawyers.com
Elder Law Practice of Timothy L. Takacs
Elder Law is Planning for Quality of Life
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. Improving quality of life for elders and the families that love and care for them has been our focus for nearly two decades. We can help your clients, too.
Call Elder Law Practice of Timothy L. Takacs. 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