Nashville Bar Journal | June 2013

Nashville Bar Journal

June 2013 - VOL 13, NO. 5

Countdown to Compliance:

Making the Deadline by:

Kristi M. Faulkner, Esq.

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“Make It Go Away” Expungement of Criminal Records in Tennessee

Everette Parrish .................................................................................................................................

Nowhere Man – A Review of the Tennessee Venue Statutes

Todd Cole .................................................................................................................................

Alternative Work Environments: Workable for Nashville Lawyers?

Bart Pickett .................................................................................................................................

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A Monthly Publication of the Nashville Bar Association

Articles 6

Departments 2

Countdown to Compliance: Making the Deadline

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Kristi M. Faulkner, Esq.

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“Make It Go Away” Expungement of Criminal Records in Tennessee Everette Parrish

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Communique • Golf Tournament • NBA Federal Courts Committee • Golden Oldie Reveal • Upcoming Events

CONTINUING LEGAL EDUCATION

Nowhere Man – A Review of the Tennessee Venue Statutes

CENTER SECTION

Todd Cole

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Alternative Work Environments: Workable for Nashville Lawyers?

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Bart Pickett

Columns 12

From the President

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100% Club Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Gadget of the Month

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

Golden Oldie ...................................................... Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@ nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue. ......................................................

NBA Calendar of Events June 6 - 12:00 PM Minority Opportunies Committee Meeting June 6 - 12:00 PM Community Relations Committee Meeting June 11 - 11:30 AM L.A.W. Meeting June 11 - 11:30 AM Solo/Small Firm Committee Meeting

June 13 - 11:00 AM CLE Committee Meeting June 18 - 12:00 PM Ethics Committee Meeting June 18 - 12:00 PM Estate Planning Committee Meeting June 19 - 11:30 AM Health & Wellness Committee Meeting

June 19 - 12:00 PM Environmental Committee Meeting June 20 - 12:00 PM NBF Trustees Meeting June 20 - 5:00 PM o Music City Minority Mixer June 27 o NBA YLD Sounds Game Night

Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org

A Monthly Publication of the Nashville Bar Association

Tom Sherrard, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor

From the President Oldies But Goodies by:

Tom Sherrard

eleanorwetzel@jis.nashville.org

Journal Staff:

Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

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Nashville Bar Journal - June 2013

I recently received a telephone call from Denty Cheatham, a long-standing and well‑known member of our Bar Association. Denty had a compelling proposal. He suggested that the Nashville Bar Association consider the creation of a senior lawyers division. Both Denty and I acknowledged the success of the NBA’s Young Lawyers Division and the value it has brought to the young NBA members over the years in fostering education, service and fellowship. As Denty and I discussed the prospect of a division of the NBA focused on our senior lawyers, I realized that there are many reasons why this opportunity should be pursued. For starters, the demographics argue strongly in favor of it. NBA records show that currently we have 348 active members who are 65 or older. Denty and I fit comfortably into that demographic. And, according to the Census Bureau, the general population aged 65 to 74 will nearly double between now and 2030 (only 17 years away!). This means that active lawyers over 65 could be the fastest growing segment of our entire membership for years to come. What programs and responsibilities would this senior lawyers division undertake? My sense is that it need not spring fully formed at the outset, but that its mission and objectives could develop over time. Certainly, providing an opportunity for fellowship could be reason enough for a senior lawyers division. But this could likely expand over time to include a broad array of programs of interest to senior attorneys. Both the American Bar Association and the Tennessee Bar Association have created senior divisions, as have a number of local and state bar associations across the country. There should be plenty of ideas available to fill the agenda of our own senior lawyers division. It goes without saying that I am grateful for and excited about Denty’s proposal, and I am forming an ad hoc committee to study the issue and to make recommendations concerning its membership, its structure and its scope of activities. I certainly welcome any comments regarding this proposal, as well as any indications of interest in serving on the ad hoc committee. ***** Currently the Lawyers Referral and Information Service (LRIS) of the Nashville Bar Association is capably overseen by Wendy Cozby. Several months ago a local company, Legal Intake Professionals (LIP) proposed a collaboration to develop and test a business opportunity that could lead to a broader group of referrals to those lawyers in the LRIS rotation and could, in fact, stimulate a desire for more of our members to become part of the LRIS referral group. LIP is a Nashville-based company that has been in business since 2001. It specializes in receiving legal inquiries on behalf of various personal injury law firms in metropolitan areas across the United States. It serves those firms by providing an answering service on a 24/7 basis, 365 days a year. The referral service run by the NBA allows Wendy to answer phone inquiries for referrals to legal counsel during normal NBA business hours. Any calls seeking legal assistance made in the evenings or on weekends generally go unanswered. For approximately the past six months LIP has taken over the answering of all LRIS

calls on a 24/7 basis, and the results reflect that hundreds of additional referrals could be available if the NBA were to contract with LIP to perform the service of answering the calls, recording the key information and following the referral protocols already established by the NBA. Importantly, this service will be provided at no cost to the NBA. The Board of Directors has carefully considered the proposal and has unanimously approved it. We are currently in the process of developing a memorandum of understanding setting forth the terms and conditions of this arrangement. It is likely that the current structure of the referral process and the manner in which referrals are received and payments are made to the NBA will be modified. While it is expected that this new arrangement with LIP will benefit both the NBA and the lawyers participating in the referral service, the Board of Directors has decided that this new arrangement should be undertaken on a three month trial basis to determine if it is in fact providing the benefits that have been projected. This opportunity not only may afford increased non-dues revenues to the NBA, but it will also provide expanded referrals to NBA members who wish to become part of the referral rotation. We will be providing in-depth information on the terms of the memorandum of understanding as soon as it has been negotiated. In the meantime, please feel free to contact Wendy Cozby or Gigi Woodruff with any questions you may have regarding this new proposed arrangement. n

2013 NBA BOARD OF DIRECTORS

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

ORDER YOUR 2013 DIRECTORY ONLINE TODAY @ WWW.NASHVILLEBAR.ORG What Does That Attorney Look Like Who You Only Communicate With Via Email? Need to find the New Address of an Old Law Parnter? ******************************************* Find Out In The New 2013 NBA Attorney Directory!

--------------------------------------------------------------• Attorney Listings For All Davidson County & Surrounding Communities --------------------------------------------------------------• Over 500 New Member Photos --------------------------------------------------------------• Comprehensive Court Listings --------------------------------------------------------------• Field of Practice Listings --------------------------------------------------------------• Firm Listings --------------------------------------------------------------• Listings For All NBA Boards & Officers --------------------------------------------------------------• Committee Information --------------------------------------------------------------• NBA By-Laws & More ---------------------------------------------------------------

NASHVILLE BAR ASSOCIATION

150 4th Avenue North, 10th Floor, Nashville, TN 37219 (615) 242-9272 Fax:(615) 255-3026 www.nashvillebar.org Nashville Bar Journal - June 2013

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communiqué

NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION

2013 Nashville Bar Association & Nashville Bar Foundation Golf Tournament May 16, 2013 - The Annual Golf Tournament was held this year at the Vanderbilt Legends Club in Franklin, TN. The tournament drew 26 teams that participated in a 4-person scramble. Thanks to everyone who took part in this year’s event.

1st Flight – 1st place winners: Jeff Buschmann Greer Cummings Rick Humbracht Matt Lonergan 1st Flight - 2nd place winners: Todd Hancock Austin Maddox Jeff Stoneking Kevin Tyner 2nd Flight – 1st place winners: Shawn Henry Bobby Lewis Tom Scott Chad White 2nd Flight – 2nd place winners: Roy DeSha Tom Lawless Richard Rooker Glen Watson Closest to the pin – Brett Carter Longest Putt – Matt Lonergan Longest Drive (male) Benton Patton Longest Drive (male) Samuel L. Jackson Longest Drive (female) Peggy Urquhart Thank you to our sponsors: Hole Sponsors: Document Solutions, Inc. Frost Brown Todd Nashville School of Law Golf Cart Sponsors: Alpha Reporting Corporation IPSCO Paranet Corporation On-Course Sponsor/Hole-In-One Contest: J. Michaels Clothiers Raffle winner: Gerard Stranch 4

Nashville Bar Journal - June 2013

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SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS

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COMMITTEE INFORMATION n NBA NEWS

United States District Court Inaugural High School Moot Court Competition Ken Bryant (Stites & Harbison, PLLC) and Jessie Zeigler (Bass, Berry & Sims PLC) Co-Chairpersons, NBA Federal Courts Committee As a part of the Law Day celebration on May 1, the United States District Court for the Middle District of Tennessee hosted its inaugural High School Moot Court Competition with the semi-final and final rounds held at the Estes Kefauver Courthouse. For the subject matter of the competition, the Court selected a conflict between a high school district’s antibullying policy and the First Amendment right to free speech with the facts based loosely on the Fourth Circuit Court of Appeals decision Kowalski v. Berkley County Schools, which involved cyber-bullying. 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S.Ct. 1095 (2012). The pilot program is one of many varied outreach programs of the federal courts. For its inaugural program, the Court, under the leadership of Chief Judge William J. Haynes, Jr., decided upon an essay and moot court competition for Middle District schools that elected to participate. The Court then randomly chose four Middle District counties: Clay County, Lawrence County, Cheatham County, and Marshall County. Based upon the Court’s review of the written essays from selected public or private schools within these four counties, the Court chose Sycamore High School in Pleasant View, Cheatham County, Tennessee. As a result, four Sycamore seniors—Molly Knight, Brianna McNeese, Ryan Shivers, and Bailey Henderson—competed in the program. Eight members of the NBA Federal Courts Committee assisted as “coaches” to the students competitors: Ramona DeSalvo (DeSalvo Law Firm), James Haltom (Burr Forman), Barbara Holmes (H3GM), Matt Kroplin (Stites), Russ Morgan (Bradley Arant), Tim Warnock (Riley Warnock & Jacobson), Ken Bryant (Stites), and Jessie Zeigler (Bass). Members of the Federal Courts Committee began their coaching responsibilities in April, meeting with the students at Sycamore High School. Two attorneys were assigned to each student. The Court held the semi-finals after the NBA Law Day Luncheon with Judge Haynes and Judge Kevin Sharp presiding. The students represented oral arguments for Jane Doe, an alleged cyber-bully, and the School Board seeking to enforce its anti-bullying policy notwithstanding the First Amendment freedom of speech. Thereafter, Judges Haynes and Sharp were joined by Judge Todd Campbell for a panel argument by the two finalists. Although the questioning was fast and furious in both rounds, the students held their own and zealously represented their “clients.” The NBA Federal Courts Committee extends its appreciation to Judge Haynes for inviting its members to contribute to this worthwhile project, to Judges Sharp and Campbell for their participation, and to the members of the Committee who gave their valuable time and commitment assisting the Court and the Middle Tennessee community.

Upcoming Events: June 27, 2013 The NBA YLD is headed to the Sounds game to enjoy food, drinks, and baseball on the Miller Lite Porch.

-Golden Oldies James C. Hofstetter correctly identified the individuals in the May 2013 Golden Oldies photo. Pictured are: Bob Buchanan and Alan Householder

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Feature

Countdown to Compliance: Making the Deadline by:

Kristi M. Faulkner, Esq.

Time moves swiftly, especially when there is a looming deadline. March 26, 2013, was the effective date for the final changes to the Health Insurance Portability and Accountability Act (HIPAA), which makes changes to privacy, security, enforcement and breach notification. Fortunately, businesses have until September 23, 2013, to become compliant. Identifying the changes and ramifications of the final rule should provide additional incentive to meet the deadline. Summary of the Final Rule Changes The final rule institutes the following changes to HIPAA:

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Makes business associates directly liable for complying with certain parts of the Privacy and Security Rules;

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Limits further the use of and disclosure of Protected Health Information (PHI) for marketing and fundraising purposes and requires an individual’s authorization before an entity can sell an individual’s PHI;

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Allows Individuals to receive copies of their health information electronically;

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Requires the modification and redistribution of a covered entity’s notice of privacy practices;

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Changes individual authorization requirements for research, creates a new provision permitting certain disclosures of child immunization records to schools, and clarifies provisions allowing limited access by family members to a decedent’s information;

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Adopts additional HITECH provisions to address the enforcement of noncompliance with HIPAA;

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Increases the amount of civil money penalties;

Nashville Bar Journal - June 2013

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Implements an objective standard to determine when and to whom breach notifications must be sent; and

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Expands the Privacy Rule to include the Genetic Information Nondiscrimination Act (GINA) to prevent most health plans from using or disclosing genetic information for underwriting purposes.

All of these changes are significant. However, the changes regarding business associates and breach notification requirements deserve greater discussion because of their impact on the business of healthcare. Business Associates The final rule affects business associates in three ways: (1) it expands the definition of a business associate, (2) treats subcontractors as business associates, and (3) it requires business associates to comply with the Security Rule and parts of the Privacy Rule. Expansion of the Definition A business associate was originally defined as, “a person or entity, other than a member of the workforce of a covered entity who performs functions or activities on behalf of, or provides certain services to, a covered entity that involves access by the business associate to PHI.”1 The final rule expands the definition of a business associate to include expressly, “a Health Information Organization, an E-prescribing Gateway, or other person that provides data-transmission services regarding personal

health information to a covered entity and that requires routine access to such PHI.” Due to the routine access to PHI, an entity that maintains PHI on behalf of a covered entity is a business associate. A business associate is also, “a person who offers a personal health record to one or more individuals on behalf of a covered entity.”2 The Department of Health and Human Services (HHS) has stated that routine access will be determined on a case-by-case basis. There are, however, two factors that will be used to determine routine access: (1) the nature of the services and (2) the extent to which vendors need access to PHI to perform their services.

disclose PHI in accordance with their business associate agreement or the Privacy Rule; (2) disclose PHI to the Secretary of State when such disclosure is necessary to determine whether the business associate is compliant with HIPAA Rules; (3) disclose PHI to the covered entity, an individual, or his designee as necessary to satisfy a request for an electronic copy of PHI; (4) limit the disclosure of PHI to the minimum necessary to fulfill a request; (5) require subcontractors that receive PHI on behalf of a business associate to be equally liable under the Security and Privacy Rules; and (6) report breaches of unsecured PHI.

The Conduit Exception It is equally important to understand which entities are not business associates. HHS recognizes the so-called “conduit exception” for entities that only transmit PHI and access it on a random or infrequent basis. Examples of businesses that fall in the conduit exception category are the U.S. Postal service, the United Parcel Service, internet service providers, or telecommunications companies.

With the changes in liability, HHS modifies the wording in business associate agreements (BAAs). Now, BAAs must contain provisions that assure the covered entity of its obligation to protect the privacy and security of electronic protected health information. In addition, BAAs must now assure that the business associate will report to the covered entity all unsecured PHI as required by 45 C.F.R.§164.410 of the breach notification rules.

Subcontractors as Business Associates The business associate definition has been expanded to include subcontractors. HHS clarifies its definition of a subcontractor as “a person to whom a business associate delegates a function, activity, or service other than in the capacity of a member of the workforce of such business associate.”3 If a business associate delegates its required responsibilities to a subcontractor, the subcontractor becomes equally responsible for adhering to privacy and security rules. Expanded Liability for the Security Rules and Part of the Privacy Rules Expanded liability is another significant change for business associates. They must now comply with all Security Rules and part of the Privacy Rules. Business associates are now required to comply with the following Privacy Rules: (1) use and

The same is true for BAAs between a business associate and a subcontractor. The subcontractor agrees to comply with both the Security and Privacy Rules. The notification is a little different. Subcontractors shall agree to report unsecured PHI, as required under 45 C.F.R. § 164.410, to the business associate, who then reports the subcontractor’s breach to the covered entity. HHS has provided sample BAA language on its website4; however, all of the sample provisions are not required for compliance. Covered entities and business associates must make their BAAs compliant with the final rule by September 23, 2013.5 Existing BAAs that comply with the old requirements may qualify for up to an additional year to become compliant.

Recommendations With these changes, it is important for covered entities and business associates to do the following: (1) identify whether vendors are business associates or subcontractors, pursuant to the final rule; (2) determine the level of access to PHI a vendor needs to perform the contracted services; (3) train and educate all vendors on their obligation to comply with the Privacy and Security Rules; (4) review all contractual agreements and update the language in the agreements to ensure business associates and subcontractors agree to comply with all of the Security requirements and applicable parts of the Privacy Rules; and (5) meet the applicable compliance date for business associate agreements.6 Breach Notification Requirements An Objective Decision The final rule changes when notices of a breach must be sent. Now, an impermissible use or disclosure of PHI is presumed to be a breach that requires notification, unless the covered entity or business associate can demonstrate a low probability that the breach has compromised the PHI. Entities now must perform a risk assessment that takes into account at least the following four, objective standards to prove a low probability of comprise: (1) the nature and extent of the PHI involved, including the types of identifiers and the likelihood of re-identification; (2) the unauthorized person who used the PHI or to whom the disclosure was made; (3) whether the PHI was actually acquired or viewed; and (4) the extent to which the risk to the PHI has been mitigated proves that there is a low probability that PHI was compromised.7 If the entity can meet all four factors, it does not have to send notification of a breach. Continued on Page 14 

Nashville Bar Journal - June 2013

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Feature

“Make It Go Away” Expungement of Criminal Records in Tennessee by:

Everette Parrish

Close your eyes, count to 10, and *POOF* – it’s gone. If only it were that easy. For many Tennesseans with criminal records, removing the blight and tarnish of a criminal conviction requires the legerdemain of an adroit attorney. Here are some magical tricks of the trade to astound and amaze your clientele as they (hopefully) pay you well to rewrite their past and make prior convictions magically disappear. A criminal past is not good. If the past can be rewritten to gloss over or remove the prior taint, then all will be well in the future. Just Make it Go Away! This is what’s in the mind of your client and this is the basis for “expungement” (or “expunction”, as the Tennessee statutes are wont to use.) People commit crimes. Crime is bad. People who commit a lot of crimes are really bad, but people who simply slipped up, had a bad day, and were boneheaded or exercised poor judgment once, are possibly worthy of a fresh start, a clean slate, a “do-over.” They are entitled to an expungement of their criminal record.

If a client absolutely must bear up under a criminal charge, here are many of the preferred ways the client will want it handled:

Think of expungement as a legislative (not judicial) license to forget. A judgment of guilt is forever just that – a guilty verdict. It remains a lasting fact, short of a higher court overturning it (as in an appeal) or in vacating or setting-aside a verdict (as in a post-conviction ruling).1 Legislatively though (via the court clerk’s “magic wand” of the shredding machine and such) under statutory authority, the criminal record can be made “invisible” and virtually powerless.

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Dismissed

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Retired

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Taken “under advisement”

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Resolved under a nolle prosequi (colloquially referred to as “nolle’d”)

In the early years of Tennessee’s expungement laws2 the 1975 case of Underwood v. State quoted the 1910 case of Richardson v. Young highlighting the legislative nature of expungement law when it pointed out that:

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Allowed to be resolved via a pre-trial diversion

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Adjudicated under a judicial diversion or

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Acquitted; found not guilty.

Theoretically, the legislative power is the authority to make, order, and repeal, the executive [power], … to administer and enforce, and the judicial [power], … to interpret and apply laws.3 8

The legislature directs the court clerk by way of statute to remove many physical and virtual instances of a criminal conviction and allows the convicted criminal a return to the days when he or she could legally and without perjury say, “I’ve never been convicted of a crime.”4 As to the executive powers, the Governor may pardon, but executive pardon is not expungement; the knowledge, stigma, and public record of one’s past remains while civil rights are restored and punishment is cancelled. A pardon allows forgiveness, not forgetfulness.5 Simply put, the judiciary declares what is true and creates a judgment; the legislators through expungement can then remove much of the public record of the judgment and restore rights; and the executive branch can restore rights and cease physical punishment.

Nashville Bar Journal - June 2013

Destruction and release of records for the above criminal case dispositions are found primarily in Tenn. Code Ann. § 40-32-101. Sub-section (a)(1)(A) states, for example, that:

All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if: (i) The charge has been dismissed; (ii) A no true bill was returned by a grand jury; or (iii) The person was arrested and released without being charged. If a charge is dismissed or nolle’d, it is to be expunged.6 If retired, however, it is still subject to further prosecution, and therefore not dismissed and not expungeable.7 If taken under advisement, it is possibly expungeable depending, of course, on what the adjudication became after the under advisement period lapsed. Upon acquittal after a trial, a defendant is afforded the opportunity publically and personally by the presiding judge to have the matter expunged at no cost.8 Generally, these dispositions can be provided over and over to clients as each charge occurs. Pre-trial and judicial diversions are distinctive from the other methods of expungement because they are viewed as earned and merited one-time “do-overs” that are intended to be offered to the deserving “not-likely-to-ever-get-into-trouble-again” individual. There exists a relatively narrow range of offenses where a pretrial or judicial diversion is even allowed. There is even a narrower range wherein the same may be expunged.9 Naturally, the State’s governing entities are loathe to give a pass to sexual offenses, violent crimes, and multiple crimes arising out of one set of facts. Pre-trial diversion is codified in Tenn. Code Ann. § 40-15-102, et seq. It is most effective when both the prosecutor and defendant agree to pursue this avenue of resolution together, although a writ of certiorari is available to challenge prosecutorial abuse of discretion.10 Full disclosure

is vital and perjury is a risk, so this choice most certainly requires the wizardry of an experienced criminal defense attorney. If a defendant is allowed to divert a conviction in this way, there is to be no other diversion remedy in the future. Judicial diversion is utilized more often than pre-trial diversion. It is found in Tenn. Code Ann. § 40-35-313. One Tennessee Supreme Court case labels it a type of legislative largess whereby a defendant adjudicated guilty may, upon successful completion of a diversion program, receive an expungement from all ‘official records’ any recordation relating to ‘arrest, indictment or information, trial, finding of guilty, and dismissal and discharge’ pursuant to the diversion statute.11 Assent from the prosecution in seeking “diversion under 40-35-313” – as it’s commonly known – helps move matters along in the court, but it is the judge who decides whether a client’s verdict of guilt may be expunged or not under this statute. Before allowing such relief, a judge will look at: (a) the accused's amenability to correction, (b) the circumstances of the offense, (c) the accused's criminal record, (d) the accused's social history, (e) the accused's physical and mental health, (f ) the deterrence value to the accused as well as others, and (g) whether judicial diversion will serve the interests of the public as well as the accused.12 Juveniles benefit from additional rights in expunging a record. Most, but not all of a youth’s illegal activities are confidential and hidden from public view.13 Informal Adjustments are available over and over

with the net result being (based on good behavior) that no petition is ever even filed or the petition is dismissed.14 If the juvenile stays out of further trouble (no adult charges) after turning eighteen and does so for an additional year beyond that time, then the entire juvenile record may be expunged upon motion.15 Sadly though, for all who yearn for the “disappearing act” of expungement to excite and amaze a leering public, there are pyrrhic limits as to what actually goes away. In this electronic age, any arrest, allegation or charge creates not only a paper trail but a seriously lingering digital internet trail that is more problematic to erase. If an event gets media coverage, those accounts will remain in print, online, and cached in various internet places. If a mugshot ends up on a mug shot website, grab the checkbook, call the attorney, because there is going to be a battle of reputationrestoring proportions.16 Court clerks will dutifully destroy all court clerk instances of an expungable record as required by law, but clerks cannot control what the police retain, the TBI holds back, or the prosecution or defense preserves. Clients may find comfort in the scripture of statute at this point where Tennessee law asserts: an expunction has the legal effect of restoring the petitioner … to the same status occupied before the arrest, indictment, information, trial and conviction. … [N]o direct or indirect collateral consequences that are generally or specifically attendant to the petitioner's conviction by any law shall be imposed or continued. A petitioner … shall not be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge the arrest, indictment, information, trial Continued on Page 20 

Nashville Bar Journal - June 2013

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Feature

Nowhere Man – A Review of the Tennessee Venue Statutes by:

Todd Cole

Introduction Every attorney, as likely as not, has one law school professor engrained in his mind. Mine typically wore a blue blazer and bow tie to class and was often spotted on a nice day driving a convertible sports car with his Labradoodle in the passenger seat. This particular professor (let’s call him Professor R.) had the exemplary ability to teach both the practical, and the theoretical, aspects of the law. Unlike other professors, who immediately jumped into a discussion of cases assigned for that day, Professor R. typically began his class by asking a thought-provoking question that would frame his subsequent lecture. On one particular afternoon, Professor R. commenced with the following query, “What do you need to know to file a lawsuit?” The question, such a seemingly simple one, caught us by surprise. Answers such as “Plaintiff!” “Defendant!” and “Jurisdiction!” were blurted out by my classmates. When the smoke had cleared, Professor R. shook his head, smiled slightly, and said, “What about venue?” Venue does often seem to be the forgotten ingredient in the filing of a lawsuit, possibly because an improper filing is not typically fatal; the case is either dismissed and can be re-filed, or the case is simply transferred by the judge to the proper forum (in Tennessee, this would be pursuant to Tenn. Code Ann. § 16-1-116). It may also be because a quick analysis (“Hey, that is where the accident occurred so it must be right!”) will almost always yield a single correct, yet not exclusive, answer. Yet, as Professor R. would have us asking before the end of the class, was there really only one possible option given a particular set of circumstances and was it the best option for our client? The Tennessee Venue Statutes A complete and thorough academic analysis of venue is beyond the scope of this article (and probably something better handled by Professor R.). I would, however, like to point out 10 Nashville Bar Journal - June 2013

some of the more important aspects of the Tennessee statutes. In our state, proper venue (when the lawsuit is not governed by specific venue provisions such as in the case of divorce or worker’s compensation) is most often determined by Tenn. Code Ann. §§ 20-4-101 and 20-4-104. Tenn. Code Ann. § 20-4-101. Transitory actions. Tenn. Code Ann. § 20-4-101(a) provides that, “In all civil actions of a transitory (meaning it could happen anywhere) nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where the individual defendant resides.” Let’s apply a hypothetical to this rule…John is driving from Knoxville, Knox County, to Nashville, Davidson County, to see his favorite football team in a 2013 playoff game. (Positive thoughts in hypotheticals never hurt!). Tragically, John becomes fatigued after the long trip and negligently runs a red light, thereby crashing into Sally’s car as she enters the intersection. Where can Sally file suit? The answer to this simple hypothetical, under § 20-4-101(a), is Davidson County (where the accident occurred) or Knox County (where John resides). At this point, the more senior members of our profession may be asking the question at this point, “What about suing in any county where the defendant can be found?” This option is slowly fading and is unavailable, having been eliminated by the 2011 Public Acts, to any cause of actions that have accrued on or after October 1, 2011. Continued on Page 18 

Nashville Bar Journal - June 2013

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We have written previous articles about using the “Cloud” in the practice of law. We continue to remain skeptical about extensive use of the Cloud in the practice of law, but the Cloud is here to stay. There are certainly ethical issues involved in using the Cloud in your practice.1 As you may know, Cloud computing refers to software and information storage that is delivered and accessible over the Internet via a web browser. Normally, the software and/ or the data are not actually stored on the user’s computer. This arrangement can be advantageous in terms of costs, ease of use and flexibility. However, since the data resides on remote servers that are outside the lawyer’s direct control, there are concerns regarding the ethics of its use. Most State Bar ethics opinions require the attorney using the Cloud service to evaluate the technology and to use security precautions to prevent unauthorized access. There are many Cloud Storage options out there: Cloud, Box. com, DropBox.com, SkyDrive (Microsoft), SpiderOak, Amazon Cloud Drive, GoogleDrive; Evernote, ADrive, Cubby, and ShareFile to name a few. In this article we will only review SkyDrive, GoogleDrive, Box.com, DropBox, ShareFile, and SpiderOak. We will also add two “roll your own” options, PogoPlug and My Book Live. 1. SkyDrive, SkyDrive.com (7 gygabytes for free, additional storage available for a fee). Microsoft’s SkyDrive has several good features. Microsoft has added what is called “Office Web Apps” to support SkyDrive. Web Apps allow you to upload, create, edit, and share Microsoft documents directly within a web browser SkyDrive is fully integrated with Microsoft Office, and it supports a variety of other formats. It also can be fully integrated with Outlook.com, meaning you can directly upload documents using Outlook.com, store them on SkyDrive and open them directly on SkyDrive. The problem is,

CLOUD-BASED STORAGE SOLUTIONS

SkyDrive does not have a high level of security. For example, SkyDrive would never be HIPAA compliant. If you have a higher level of security (and you do for client files, in our opinion), you need to use SharePoint over an encrypted VPN (which most of you do not have). 2. GoogleDrive, drive.google.com (free for 15 gygabytes of online storage, you can buy additional storage). In order for GoogleDrive to work, the GoogleDrive client software must be running on your computer. That client will communicate with GoogleDrive online and make sure that the files are synchronized in all locations. All of the Google Chrome Apps are integrated with GoogleDrive and work quite well with it. GoogleDrive also works on virtually all versions of Windows, Mac Os, Android smartphones, and on iPhones and iPads. GoogleDocs has now become a part of GoogleDrive so it works well with GoogleDocs. However, most of you would find GoogleDocs unsatisfactory to use in your day-to-day legal work. Like Microsoft SkyDrive, GoogleDrive is really not secure and should not be used for client files, in our opinion. Just take a look at Google’s Terms of Service. The terms make it pretty clear that Google reserves the right to do anything it wants to with any data you upload to it. As Microsoft puts it, “watch out – you might get ‘Scroogled.’” 3. Box.net, Box.com. (5 gygabytes free, additional storage available for a fee). Box.com is very popular with lawyers. It uses a high level of encryption and is very good as a collaborative tool for giving other users rights to view shared files or to actually edit files and upload them themselves. However, unless you get a business account, Box cannot completely guarantee total security. Persons who work at Box.com will still have access to your Continued on Page 13 

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BIL L G A & PH DG ET O IL'S F THE

MONTH

CLOUD-BASED STORAGE SOLUTIONS Continued from page 12

data. In general, however, Box.com has the highest level of security of most of these services. It is one of our favorites. But, client files are not totally secure, and Box.com, like many other services can turn your documents over pursuant to a government subpoena without your knowledge. 4. DropBox, DropBox.com (2 gygabytes of storage at no cost)(additional storage available for a fee). DropBox is very easy to set up and integrates quite well with Iphones and Ipads. DropBox supports approximately 250 different apps across Android, Blackberry IOS, and Windows Mobile Devices and web applications. It does not do sharing as well as Box.com and its performance is a bit slower. In addition, DropBox has had some security problems, and it does not have as high a level of security as Box. com. There are several add-ons, including Sookasa and other add-on apps that will make DropBox secure enough to use for client data. Its best feature is ease of use and integration with iPads and iPhones. 5. ShareFile, www.sharefile.com (free trial, plans starting at $29 per month) This is a file sharing service that is secure enough for lawyers to use. It is very secure. ShareFile employees cannot see your files. Only you and those whom you authorize can see them. You can send or receive files up to 10 gygabytes. Its file transfer and storage are fully encrypted. Sharefile has an Outlook plug-in and is compatible with many mobile devices. It is clearly useable for client data, but, again, it does cost $29 per month.

6. SpiderOak, https://spideroak.com (Two gigabytes free or $10 per month per 100 gigabyte increment.) SpiderOak works with almost any device. It works on virtually every mobile device and with virtually any operating system through its “Hive” file service. SpiderOak is “one hundred percent private.” The company cannot view any information, any files you upload, whereas most other file sharing sites can access your user data. Hive merges that level of encryption with a very simple interface. You can also share files with friends or colleges with links. The security of SpiderOak and Hive means that even if the government subpoenaed your information, they could not get access to it because you, and only you, have access to the information as well as those you designate. Consequently, we think SpiderOak is a good choice for storing client data. Finally, we want to discuss two “roll your own” solutions for creating your own Cloud: PogoPlug and My Book Live. 1. PogoPlug, www.PogoPlug.com (retail $99.95, as low as $50 on the web)(no monthly charge) With PogoPlug you can create your own personal Cloud and have as high a degree of security as you want. All you do is buy the PogoPlug device and then connect a USB drive to it. (We would prefer that you use USB3.O for speed.) Then you connect the PogoPlug to an Internet connection, and voilà, you have your own personal Cloud device. You can store as much information as is available on the USB drive attached to it. You can set it up to automatically backup your computers. You can upload files from mobile devices automatically. Apps are available for

almost every mobile device and every operating system. We can’t say enough good things about PogoPlug. It is as secure as you want to make it, and you possess your own data. 2. My Book Live, www.wd.com ($165 for 2 terabyte model) Simarily, My Book Live can create your own personal Cloud storage. You simply connect this device to the network, and the network device and the included hard drive are combined into one unit. Again, you can create the level of encryption you want. You can share files with any device that has Internet access. There are mobile apps for tablets and smart phones, and the My Book Live is compatible for virtually all computers. So, there are many options available for Cloud storage for lawyers. Except for those solutions we have outlined above that are secure enough to be compatible with client data, just beware on posting any confidential client information in the Cloud without encrypting the file first. Hope we gave you some guidance.  See you next month, —Bill & Phil (Endnotes) 1 See American Bar Association, Cloud Ehtics Opinions Around the U.S., http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloudethics-chart.html.

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Countdown to Compliance: Making the Deadline Continued from page 7

Factors for Determining Compromised PHI The first factor requires entities to review the nature and extent of the PHI, including the types of identifiers, and the likelihood of re-identification. The more sensitive the PHI and disclosed identifiers, the greater the risk. For example, disclosing a patient’s, birth date, social security number, along with his test results for sexually transmitted diseases, mental health diagnoses, is a high probability of PHI being compromised. On the other hand, disclosing a list of patient discharge dates is a substantially lower risk of compromise because there we no identifiers involved, and the sensitive nature of discharge dates is less sensitive than a test result or diagnosis. The second factor requires entities to consider the unauthorized person who uses the PHI or the recipient of the PHI. The recipient’s obligation to follow HIPAA is pivotal to satisfy the second factor. For instance, if PHI were disclosed to another business entity that is also required to comply with HIPAA’s Privacy and Security Rules, there would be a lower risk of PHI being compromised. However, if the PHI were disclosed to a person or entity not obligated to follow HIPAA, there would be a greater risk of compromise. The third factor requires entities to investigate an impermissible use or disclosure to determine if the PHI were actually acquired or viewed, or if only the opportunity to acquire or view the PHI existed. Mailing PHI is a good example for the third factor. If PHI is mailed to the wrong person, and he or she informs the business entity that he or she received the PHI in error (in a manner that indicates the envelope was opened), that would demonstrate that the PHI has been viewed and accessed. Conversely, if PHI is mailed and later returned to the sender unopened, that would be a lower probability that the PHI has not been viewed or accessed. The fourth and final factor requires businesses to consider the extent to which the 14 Nashville Bar Journal - June 2013

risk to the PHI has been mitigated. In short, what actions did the entities take to prevent further disclosure of the PHI? Examples of mitigation include, getting assurances that emails and faxes improperly sent have been deleted or shredded, or getting a recipient’s written assurance, through a confidentiality agreement, that the information will not be further disclosed. Timeliness, Content of the Notification, and Reporting Obligation Fortunately, the final rule does not change anything regarding timeliness, the content of the breach notices, or the responsibility of reporting breaches. Notices of breaches must be sent without unreasonable delay, not to exceed sixty days of the date the breach was discovered.8 The contents of the notification include a brief description of what happened, including the date of the breach and its discovery; a description of the type of unsecured PHI; any steps individuals took to protect themselves from potential harm stemming from the breach; a brief description of what actions the business associate or covered entity has taken to reduce or eliminate further breaches, and contact information for individuals who may provide additional information concerning the breach.9 Finally, business associates are responsible for reporting breaches to covered entities. Covered entities are responsible for notifying affected individuals and reporting breaches to HHS. Covered entities can contractually delegate that responsibility to business associates.10 Recommendations Prevention is the best remedy. Continue to educate your workforce on how to prevent breaches. Review your breach notification policies and update them according to the final rule. Conduct a risk assessment of your business and identify areas that pose the highest risk of compromising PHI, and design and implement a plan to address them.

Conclusion Identifying and becoming more familiar with the changes and requirements of HIPAA’s final rule are big steps toward erasing PHI infringements and becoming timely compliant. Kristi M. Faulkner is the Privacy Officer and Senior Legal Counsel with Healthways, Inc. Since graduating from the University of Memphis, Cecil C. Humphreys School of Law, Ms. Faulkner began her legal career in the public sector as a litigating attorney. She has since transitioned to the private sector, and is responsible for addressing compliance issues regarding the Health Insurance Portability and Accountability Act (HIPAA), Medicare and Medicaid ( CMS), and other ap-

(Endnotes) 1 U.S. Dep’t of Health & Human Services, Health Information Privacy – Business Associate Contracts (Jan. 25, 2013), available at http:// www.hhs.gov/ocr/privacy/hipaa/understanding/ coveredentities/contractprov.html. 2 U.S. Dep’t of Health & Human Services, 45 C.F.R. Part 160 and 164, Modifications to the HIPAA Privacy, Security, Enforcement, and Breach Notification Rules Under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules; Final Rule (Jan. 25, 2013), available at http:// www.gpo.gov/fdsys/pkg/FR-2013-01-25/ html/2013-01073.htm [hereinafter “45 C.F.R. Part 160 and 164 Modifications”]. 3 45 C.F.R.§ 160.103. 4 U.S. Dep’t of Health & Human Services, Health Information Privacy – Business Associate Contracts, supra note 1. 5 45 C.F.R. §164.532. 6 Covered entities, business associates, and business associate subcontractors may continue to operate under certain existing contracts for up to one year beyond the compliance date of the revisions to the Rules. 7 U.S. Dep’t of Health & Human Services, 45 C.F.R. Part 160 and 164 Modifications, supra note 2. 8 45 C.F.R. § 164.404(b). 9 Id. § 164.404(c). 10

Id. §§ 164.404(a) and 164.408.

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Feature

Alternative Work Environments: Workable for Nashville Lawyers? by:

Bart Pickett

Back in February, Marisa Mayer, the new CEO of Yahoo, made headlines when she announced the end of telelcommuting for Yahoo employees. Citing the need for communication and collaboration as the reason for the change in policy, Mayer ordered all employees to return to the office beginning this month. This move came despite recent studies from Stanford, The University of Texas at Austin, and the Bureau of Labor Statistics showing that working from home actually makes employees more productive. A 2010 poll from the American Bar Association found that 71% of ABA members spend at least some time working from home or somewhere other than the traditional office.

tractions. “When I compare the days I am in the office versus at home, I am able to get more work done in a shorter amount of time at home,” she explains. Sulkowski does not worry about the lack of collaboration feared by Mayer because she goes into the office at least one day a week and has contact with her co-workers by phone or electronically. Julie Bhattacharya Peak, head of Liberty Mutual’s field legal team in Tennessee, has found supervising lawyers remotely to have added challenges but that the explosion in technology has allowed a state wide presence with attorneys working remotely across the state to better service the needs of her clients.

Lawyers, law firms, and corporations in Nashville appear to be utilizing alternative work environments with an increasing frequency. When Lindsey Laughner Sexton and her husband, both attorneys, found out they were expecting their first child, they decided to move back to Tennessee from New York City. Lindsey begrudgingly advised her employer Paychex, a national HR firm, that she had to resign due to the impending move. Not wanting to lose a great employee, Paychex offered to let Sexton work remotely. Paychex changed Sexton’s clients to a list that does not require in-person contact. Sexton logs onto her employer’s computer system remotely every day where she accesses her files just as if she were still in the Big Apple. Through email, phone, and an instant messaging system, Sexton communicates with her employees as if they were down the hall.

It’s not just companies that see the advantage of giving lawyers flexibility in their work environments. Thompson Burton PLLC, a cutting edge firm founded by Kevin Thompson and Walt Burton, prides itself on its creativity and use of technology. For Melissa Martin Burton, Of Counsel, there’s no going back to the traditional office setting. With Thompson Burton being paperless and utilizing cloud-based systems, Burton finds working anywhere, anytime to be possible. “I recently billed nearly an hour using my computer in my car while waiting in line to get my emissions tested,” she says proudly. Besides being professionally the happiest she has ever been, Burton has found that having flexibility in her work environment has made her personal life easier in having more time for family and friends. She also sees the financial perks of saving money on gas, lunch, and her professional wardrobe.

Behnaz Sulkowski also recently began working from home. Sulkowski, a staff attorney for Liberty Mutual, previously worked at a local insurance defense firm that required her to be in the office every day. When given the choice between being in the office every day and working from home, Sulkowski resoundingly prefers the alternative working environment. She thinks too much time gets wasted in traditional office settings either through commute time or typical office dis-

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Burton does not see the trend of Nashville firms allowing their employees to be catching on quickly. In fact, she finds a possible deterrent and the only real downside to working remotely is “the risk that people will judge you for working from home and will interpret that to mean that you are not serious about your career.” She also believes that the tendency in the legal profession is to assume that the only ones who need an alternative work

Judge Gayden on Effectiveness of his 15-Year Job-Share Program arrangement are mothers with children. Because of this assumption, Burton believes many male lawyers or lawyers without children are hesitant to request such an arrangement. Telecommuting isn’t the only alternative work environment that can be found in the legal world. For 15 years, Judge Hamilton “Kip” Gayden utilized a job share program that allowed for several attorneys and an administrator to share a job. The flexibility offered by the job share allowed for female attorneys to have and raise children while still growing professionally. Judge Gayden says proudly, “I am privileged to be a witness to the many benefits that have resulted from providing a flexible haven for qualified females with children that allows them continue in the workplace. The arrangement has and will continue to benefit the women, their children, me and the public, as well.” The Public Defender’s office has also found job sharing to be a workable solution to keeping outstanding employees who are seeking a nontraditional work arrangement. Dawn Deaner, Public Defender, says, “When you can find the right combination of people to do it, it can work very well, given the right setting.” Deaner admits to not generally being a proponent of part-time public defenders but has seen the situation work particularly within the General Sessions Court team based on how they staff that docket. Providing the option of a job share “allows us to have truly exemplary people working with our Office who, without the flexibility of the job-share, would not be with us,” Deaner notes. While the traditional law office has no need to fear its own extinction, it’s clear that lawyers in Nashville are gradually seeing the benefits of an alternative work environment. Those lawyers interviewed for this article would all recommend giving an alternative work environment a try if you’re interested. While at a large Atlanta firm, Martin Burton simply asked her supervisors if she could work from home three days a week. Her employer had never let anyone use such an arrangement but agreed to give it a try. “Nearly two years later, when we decided to move back to Nashville, they repeatedly told me how happy they were that we had made my arrangement work and that they planned to make similar arrangements in the future,” she explained. n Bart Pickett is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

It was with great interest that I read an article recently published in the The Tennessean written by Ann Peldo Carglie, attorney, titled “Working mothers require flexibility.”1 I would like to relate a story that goes along with the theme of that article. This story has a good beginning and continues to have a good ending. As a bit of background, around 15 years ago, President Clinton called on the American employers to consider accommodating women with children who otherwise would have to leave the work force in order to raise their children. Included in his message, President Clinton suggested the concept of job share for mothers. The main idea behind President Clinton’s initiative was to provide a mechanism to perpetuate the talents and contributions of females who would otherwise be forced to leave the workplace in order to nurture their children. The most notable outcome of the President’s plea led to child care centers becoming available at some business locations. I am not sure the job-share idea ever materialized to any appreciable extent. It should have! In answer to the President’s suggestion, as First Circuit Judge, I initiated what became the only job-share program in Metropolitan Government, other than those job share positions that have been created in the Department of Education. My job-share program has lasted for 15 years, and over the period I have hired a handful of female attorneys and a female administrator, all young mothers, sharing one position. Today, I believe I think I have one of the best staffs in the courthouse, and they are all females with children, and all are graduates of the job-share program. Two of the women are experienced attorneys, both of whom have had extensive private practice experience, and both of whom are certified mediators; one is certified in domestic relations and is being utilized by other domestic relations courts. The third female is my secretary, and, during the 15 year period of her tenure she survived a serious illness, and while her recovery period was extensive, the other female staff assumed her duties. As is normal when children are involved, my three conscientious female employees continue to work out their flexible schedules (with my stamp of approval), sometimes requiring unexpected child-related emergencies or appointments or even, for example, a four o-clock soccer game or a school play. These women represent eleven children, with two born during the job-share program. I believe all of the children of my past and present staff have directly and indirectly benefited by this opportunity for their mothers to continue in the work place, with flexible hours, and flexible leaves of absence. One of the children born and raised during the job share programs is now in law school, two are in college, and the other children are either doing, or have succeeded, in academically oriented schools, including Hume-Fogg, Father Ryan, Overbrook, Harpeth Hall and University School. I am privileged to be a witness to the many benefits that have resulted from providing a flexible haven for qualified females with children that allows them continue in the workplace. The arrangement has and will continue to benefit the women, their children, me and the public, as well. Hamilton”Kip” Gayden First Circuit Judge 1 Ann Peldo Cargile, Working mothers require flexibility, Tennessean, Mar. 26, 2013, at A6 (Tennessee Voices section), available at http://pqasb.pqarchiver. com/tennessean/search.html (The Tennessean fee-based online archives) (Abstract: “According to Working Mother magazine, nearly one-third of women attorneys exit the legal profession after maternity leave on average.”).

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Nowhere Man – A Review of the Tennessee Venue Statutes Continued from page 10

Tenn. Code Ann. § 20-4-104. Business office of a party. 1. In the above hypothetical, John was a “natural” person. For all civil actions, if the defendant is not a natural person (i.e., a corporation or other legal entity), pursuant to Tenn. Code Ann. § 20-4-104 the action shall be brought in:The county where all or a substantial part of the events or omissions giving rise to the cause of action accrued. 2.

The county where any defendant organized under the laws of this state maintains its principal office; or

3.

The location of the defendant’s registered agent: a. If the defendant is not organized under the laws of this state, the county where the defendant’s registered agent for service of process is located; or b. If the defendant does not maintain a registered agent within this state, the county where the person designated by statute as the defendant’s agent for service of process is located.

“Unnatural” parties seem to suddenly complicate matters. Let’s take a look at a second hypothetical…John has now moved to Hermitage, Davidson County, and is working as a delivery driver for VQT International, a corporation organized under the laws of Tennessee with

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its principal office in Lebanon, Wilson County. While operating under the scope of his employment with VQT, John (still being a somewhat negligent driver) runs another red light in Davidson County while rushing to make a Nashville delivery and crashes into Jane, also a resident of Davidson County, as she enters the intersection. Where can Jane sue VQT? As a domestic corporation, VQT is susceptible to suit in Davidson County (where the cause of action accrued) or Wilson County (the location of its principal office). Multiple Defendants As if things weren’t complicated enough… what happens if multiple defendants are involved? The venue principal for multiple defendants is where venue is correct for one defendant, properly joined codefendants can be sued in that same county. Now let’s change our previous hypothetical slightly so that Jane’s counsel has determined that both VQT International and the manufacturer of their delivery truck, GPSE Motor Corporation, are proper defendants. GPSE is a domestic corporation with its principal place of business in Clarksville, Montgomery County. Before the accident, Jane had started a move to Clarksville to be with her aging mother and would prefer to file suit there. Under the venue principal for multiple defendants, Jane could sue both GPSE and VQT in Montgomery County or in Wilson County. See Mills v. Wong, 39 S.W.3d 188, 190 (Tenn. Ct. App. 2000); see also Hamilton v. Shrider, 196 Tenn. 667 (Tenn. 1954). Foreign Corporations Foreign corporations are handled differently yet again under the statutes. Pursuant to Tenn. Code Ann. § 20-4-104 (3)(A), a corporation organized under the laws of a different state can be sued where their registered agent for service of process is located. Let’s tweak our hypothetical once again, so that GPSE is now a corporation organized under the laws of Michigan, with its principal place of business in Detroit and its registered agent for

service of process in Nashville, Davidson County. With this change, and armed with the principal for multiple defendants, one might conclude that Jane can sue both GPSE and VQT in Davidson and Wilson counties. Right? Actually, no… The Common County Rule The so-called “common county rule” has been codified under Tenn. Code Ann. § 20-4-101(b). Under this rule, if the plaintiff and defendant reside in the same county, venue is set there or where the cause of action arose. As Jane was a resident of Davidson County, GPSE also (by having its registered agent in Nashville), “resides” in Davidson County, and the accident occurred in Davidson County, the common county rule would be applicable, limiting Jane’s possible venues in which to sue GPSE to only Davidson County. See Suggs v. Gallaway Health Care Ctr., No. W2010–01116–COA–R3–CV, 2011 WL 1458663, 2011 Tenn. App. LEXIS 185 (Tenn. Ct. App., at Knoxville, Apr. 18, 2011), perm. appeal denied (Tenn. Aug, 24, 2011). Nowhere Man So far, the above rules, although somewhat complex at times, seem to make sense. To summarize, in Tennessee you can, generally speaking, sue a defendant where they reside, where the cause of action accrued, or, in the case of a legal entity, where their principal office or registered agent is located. One would think, these rules would be sufficient to cover every situation. Surprisingly, they do not. To explain, I will need to employ a final hypothetical from which this article’s title is derived. Widget Works, Inc. [hereinafter “Widget”] opened its first restaurant in Nashville, Davidson County, in 1963. It’s Widget Burger was an immediate hit and, combined with its popular family-oriented dining environment, Widget had, by the 1980’s, opened restaurants throughout Tennessee while continuing to maintain its principal office in Nashville. Unfortu-

nately, with its fame and success Widget became a target for litigation that was often filed in Davidson County. By 2012, Widget began to see this litigation as a serious financial exposure and wanted to explore options to mitigate its risk. In late 2012, Widget opened a new corporate office in Alpharetta, Georgia. After relocating most of its personnel to this new office (a handful of administrative personnel were left in Nashville to primarily handle accounting of daily receipts), Widget updated its filing with the Tennessee Secretary of State (T.S.O.S.). (As an aside, for the uninitiated the T.S.O.S. is a great source of information on Tennessee businesses and can be found online at http://tnbear. tn.gov/ecommerce). Widget’s online information now shows its principal place of business in Alpharetta, Georgia, and its registered agent at the administrative office address in Nashville. Jane, having fully recovered from her accident with John, is on her way back to Nashville from Clarksville to visit friends. While en route, Jane exits at Pleasant View, Cheatham County, to eat at the Widget Works located conveniently near the interstate. Shortly after arriving in Nashville, Jane becomes extremely ill from food poisoning which it is later determined she contracted from tainted beef in her Widget Burger. Where can Jane file suit? Hah! An easy one! She can sue in Cheatham County, as that is where she was injured. But wait! Is that really what’s best for Jane? Jane doesn’t know anyone in Cheatham County and it is a significant distance from her home in Clarksville. In Nashville, she would at least have some friends she could stay with who could possibly recommend a member of the Nashville Bar Association to represent her. Surely there must

be another, more convenient alternative to Cheatham County, for Jane under the circumstances. Widget Works, Inc. is a corporation organized under the laws of Tennessee. However, its principal office is now in Georgia. That seems to eliminate Tenn. Code Ann. § 20-4-104(2) which would, prior to Widget’s relocation of its office to Alpharetta, have made it susceptible to suit in Davidson County. Turning to the third and final prong of § 20-4-104, we also see no relief for Jane. Section 20-4-104 (3) (a) pertains to defendants not organized under the laws of Tennessee and therefore it is inapplicable to Widget. Furthermore, § 20-4-104 (3)(b) also, strangely, does not apply as it pertains to defendants that do not maintain a registered agent in Tennessee (and Widget, by leaving a small administrative presence in Nashville to serve as its registered agent, does). Widget Works, Inc., by maintaining its status as a Tennessee corporation, by moving its principal place of business to Georgia, and by using its small administrative presence in Nashville as the address of its registered agent, has, to quote a great 20th century philosopher become, “a real nowhere man, sitting in a nowhere land,” susceptible to suit only in the venue where the cause of action accrued. Although (almost) sounding lyrical, how can such a result be possible? Doesn’t this have the undesirable effect of incenting Tennessee corporations to physically relocate their primary offices (and potential tax revenue) from our state? Doesn’t this interfere with longstanding common law rules concerning plaintiff and choice of venue? Can a prospective defendant, by simply leaving the state, essentially usurp, or at least limit, the application of those rules?

This author encourages a further examination of whether a return to the language of the pre-2011 statute may be warranted which read as follows: When a corporation, partnership, or individual has an office or agency in any county for the transaction of business, actions growing out of, or connected with, the business of that office or agency, may be brought in the county in which the office or agency is located. Under the pre-2011 statutory language, Jane would, therefore, have been able to file suit against Widget in Davidson County. Allowing a corporation or other legal entity to be a “nowhere man” is an issue that, even if it comes under examination, will obviously not be resolved overnight. In the interim, many of you may already be asking the question, “The plain language of the statutes notwithstanding, isn’t there still a way for Jane to sue Widget in Davidson County?” The answer to that question, which may partially lie in the Tennessee Consumer Protection Act, and an explanation of how venue can be transferred once litigation has commenced, are topics to be covered in a future article. n Todd Cole is the founder of Cole Law Group. He focuses his legal practice on Family Law, Personal Injury, Business / Contracts, and Appellate matters.

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“Make It Go Away” Expungement of Criminal Records in Tennessee Continued from page 9

or conviction in response to any inquiry made of the petitioner for any purpose. … [T]he conviction for the expunged offense never occurred and the person shall not suffer any adverse affects or direct disabilities by virtue of the criminal offense that was expunged.17 So, reach into the hat, grab the rabbit, wave the wand and with sleight of hand and rule of law, banish the bad and leave only the good for clients seeking a fresh start, a new day, and a clean criminal record. n Everette Parrish (attorney@law4tn. com) is an attorney and regular contributing committee member of the Nashville Bar Journal who maintains a juvenile, family and criminal defense practice in middle Tennessee.

(Endnotes) See generally Tenn. Code Ann. § 40-30-111 (2012). 2 For a standard-bearing treatise on expungement law in Tennessee, see David Raybin, Expungement of Arrest Records: Erasing the Past, 44 Tenn. B.J., (Mar. 2008), available at http:// www.tba.org/journal/archive/2008-03. 3 Richardson v. Young, 125 S.W. 664, 668 (Tenn. 1909). 4 Tenn. Code Ann. § 40-32-101(g)(14) (B),(C)&(D) (2012). 5 State v. Blanchard, 100 S.W.3d 226, 231 (Tenn. Crim. App. 2002). 6 Tenn. Code Ann. § 40-32-101(a)(1)(A)(i) & (a)(3). 7 Authority of Judge Exercising General Sessions Court Jurisdiction to Expunge Defendant's Criminal Record , Op. Tenn. Att’y Gen. 10-18 (Feb. 19, 2010) available at http://www.tn.gov/ attorneygeneral/op/2010/op/op10-18.pdf. Opinion of the Attorney General, No. 10-018, Feb. 19, 2010. 8 Tenn. Code Ann. § 40-32-101(a)(1)(F) (2012). 9 Id. § 40-32-101 especially at (a)(1)(E) and (g). 10 Id. § 40-32-105(b)(3) (2012). 1

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State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999). State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998). 13 Tenn. Code Ann. § 37-1-153 (2012). 14 Tenn. R. Juv. P. 14. 15 Tenn. Code Ann. § 37-1-153 (f)(1). 16 ABC News recently ran an exposé on mugshot websites. Steve Osunami, ABC Nightline, Mug Shot Websites: Profiting off People in Booking Photos? (ABC Television Broadcast Mar. 7, 2013), available at http://abcnews.go.com/Technology/mug-shot-websites-profiting-off-people-bookingphotos/story?id=18669703#.UYvXJcrRzKU. 17 Tenn. Code Ann. § 40-32-101(g)(14)(B),(C)&(D) (2012). 11 12

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Nashville Bar Journal - June 2013

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Disclosure Ben Bodzy has been named shareholder in Baker Donelson’s Nashville office. In his practice, Ben represents management in labor and employment litigation, with two primary focuses: traditional labor matters, and litigation relating to the enforcement of post-employment restrictive covenants. He also defends employers against a broad spectrum of labor and employment claims. A 2004 graduate of the Dedman School of Law at Southern Methodist University, Bodzy was included in the Nashville Post's inaugural "Law Leaders Rising" list of fastrising legal stars in 2012. He is a member of the National Federation of Independent Business Labor Advisory Council as well as the Nashville, Tennessee and American Bar Associations. Gary C. Shockley, head of the government regulatory actions practice group of Baker Donelson, has been certified as a Civil Trial Specialist by the Tennessee Commission on Continuing Legal Education and Specialization (TCCLES) and the National Board of Trial Advocacy (NBTA). He is a shareholder in Baker Donelson's Nashville office where he has tried a wide variety of complex cases to judges in more than 25 state and federal courts, as well as before administrative agencies and arbitrators. His experience includes environmental, personal injury, class action, antitrust, health care and construction cases. Thomas T. Pennington joins Frost Brown Todd’s Nashville office where he will focus his practice in the areas of surety and construction law, including the areas of financing and restructuring transactions. Pennington began to practice law in 1981 after graduating with his JD from Vanderbilt University School of Law. Prior to joining Frost Brown Todd, Pennington was partner at a law firm in Nashville where he focused his practice in general commercial finance and restructuring. John E. Anderson, Sr. recently was elected into membership of the Federation of Defense & Corporate Counsel. Anderson is a Member in Dickinson Wright’s Nashville office. He focuses his practice on the areas of automotive, commercial 22 Nashville Bar Journal - June 2013

\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 & business litigation, real estate and bank litigation, and insurance. He represents clients in state and federal courts throughout the state of Tennessee. The Federation of Defense & Corporate Counsel (FDCC) consists of approximately 1,100 invitation-only peer-reviewed members worldwide. The FDCC membership is comprised of many of the world’s leading corporate and defense attorneys. Anderson received his B.S. from the University of Tennessee and his J.D. from Washington and Lee University School of Law. He is a graduate of the International Association of Defense Counsel Trial Academy in Boulder, Colorado. The Jones Law Group received Nashville Mayor Karl Dean’s seal of approval for their impact on the livability of the city through the Mayor’s Workplace Challenge. The Workplace Challenge recognizes businesses and organizations that show they can move Nashville toward a greener, healthier and more involved future. The contest embodies the movement that the Mayor is calling NashVitality by demonstrating the critical way today’s workplaces are more than just economic drivers. They shape how we live and influence the impact we have on our community. The Jones Law Group was one of 40 businesses awarded the Gold Seal for Involved Workplace, one of ten awarded the Gold Seal for Green Workplace, and one of 33 awarded the Silver Seal for Healthy Workplace. Over 170 businesses participated in the Challenge. The firm was recognized at the inaugural Workplace Challenge Awards Ceremony held at Lipscomb’s Allen Arena. David Lewis has joined Butler, Snow, O’Mara, Stevens & Cannada, PLLC as a member in the firm’s Business Services Practice Group. His focus is on a full-range of strategic initiatives including corporate transactions, corporate governance, business planning, mergers and acquisitions, and healthcare. He has advised clients in multiple industries including technology, healthcare, energy, financial services, and manufacturing. Lewis is a 1993 graduate of Tulane University where he received his Juris Doctorate, and he completed his bachelor’s degree at Rhodes College in 1990. He is an AV-rated MartindaleHub-

bell attorney, serves on various community boards and is a graduate of Leadership Nashville. Lewis is also a member of the Nashville Bar Association and the Tennessee Bar Association. George Crawford III has joined Butler, Snow, O’Mara, Stevens & Cannada, PLLC as a member in the firm’s Business Services Practice Group. Crawford counsels private and closely held businesses with their corporate, real estate, and transactional legal matters,with a focus on emerging technology companies and assisting with their corporate and capital structure issues. He received his Juris Doctorate from the University of Tennessee at Knoxville in 1998, and completed his bachelor’s degree at Centre College in 1993. He serves on various community boards and was awarded the 2006 Tennessee Bar Association’s Leadership Lawyer. Also, Crawford is a member of the Tennessee Bar Association and the Nashville Bar Association. Retired Davidson County Juvenile Court Judge Betty Adams Green and Stites & Harbison attorney Matthew DeVries have joined the board of of directors of the Exchange Club Family Center, the nonprofit organization that supports education and prevention programming to prevent child abuse in Middle Tennessee. Green retired September 2012 after 14 years on the bench and a 44-year professional career in juvenile justice and children’s services. From 1989 to 1995, she served as commissioner of the Tennessee Department of Youth Development, leading the implementation of innovative programs that made Tennessee a recognized leader in juvenile justice. She is past president of the American Correctional Association and past president of the Tennessee Council of Juvenile and Family Court Judges. DeVries is an attorney with Stites & Harbison PLLC, where he primarily focuses on construction and business litigation. He is listed in the Best Lawyers in America for 2013 and was named a “rising star” by Mid-South Super Lawyers in 2011. He is the father of seven children who are frequently the subjects of his blog, www. growingandgrowing.com, which focuses on the subjects of parenting, marriage, life and leadership.

Welcome New NBA Members! Susan West Carey Lewis, King, Krieg & Waldrop , P.C.* Grover Christopher Collins The Collins Law Firm, PLLC Joanna E. Collins Jessica Davey Metro Trustee Cynthia A. Dayhoff Stephen Douglas Hargraves Baker, Donelson, Bearman, Caldwell & Berkowitz, PC* Jenna Lyn Harris Riley Warnock & Jacobson, PLC* Mary E. Mangum Omar N. Mossallati The Mossallati Firm Vincent D. Nord Jacob L. Perry Patrick Harrison Poole Ortale, Kelley, Herbert & Crawford* Jimmy L. Richardson III Dominic A. Saintfort Robert C. Steiner Leandra J. Varney James D. Zimmer * Belongs to a 100% Club firm

Stephen Hargraves has joined Baker Donelson as an associate and a member of the Securities/Corporate Governance Group and the Corporate/Mergers and Acquisitions Group. He focuses his practice on representing public and private companies in a variety of capacities, including transactional, corporate governance, securities and hospitality, franchising and distribution matters. His experience includes mergers and acquisitions, private equity and venture capital transactions, business entity formation and general corporate matters, preparation and review of Securities and Exchange Commission filings and Securities Act compliance. A 2009 summa cum laude graduate of the University of Tennessee College of Law, Hargraves also earned a Masters of Accountancy and a B.S. in Business Administration - Accounting from the University of Tennessee and previously worked as a certified public accountant in assurance. He is a member of the Tennessee State Board of Accountancy and the Tennessee and American Bar Associations.

2013 NBA Premier Members INCLUDE: Frank G. Abernathy Elizabeth A. Alexander Gail Vaughn Ashworth Kathryn E. Barnett Rachel L. Bell Barbara Bennett Michael Weimar Binkley Charles W. Bone Robert E. Boston Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Linda F. Burnsed Kenneth Sherman Byrd C. Mark Carver Kathryn Caudle Robert Garry Chaffin Mark P. Chalos William T. Cheek III John Ray Clemmons James Michael Clemons Dixie W. Cooper John A. Day Karl F. Dean David Clyde Downard John Franklin Floyd Samuel P. Funk Grant C. Glassford Charles K. Grant John J. Griffin Jr. William L. Harbison Trey Harwell G. Miller Hogan II Paul T. Housch Jennifer Hunter

Lynda F. Jones David Randall Kennedy John D. Kitch William C. Koch Jr. Thomas W. Lawless Richard Wesley Littlehale Randal S. Mashburn Rob McKinney John C. McLemore Robert J. Mendes Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Phillip L. North Stephen W. Pate Edgar M. Rothschild III Maria M. Salas Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse James Gerard Stranch IV Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Francis M. Wentworth Jr. Thomas V. White Larry R. Williams Thomas A. Wiseman III Heather D. Wood Amanda Haynes Young Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services. Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.

The Butler, Snow, O’Mara, Stevens & Cannada, PLLC Foundation has awarded grants totaling more than $61,000 to community organizations in the Jackson, MS, Nashville, TN and Memphis, TN areas. Foundation donations for 2013 are focused on health and wellness programs, high-tech learning initiatives for at risk youth, children services and food outreach to underprivileged families. The Butler Snow Foundation has given nearly $1 million in community grants over the past 16 years.

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

May Volunteers:

Chris Boiano

Stephanie Boiano Barry Gearon Tom Lawless

Edgar Rothschild Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Joe Rusnak

To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@ nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided.

Nashville Bar Journal - June 2013

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Classifieds

Office Space

Office Space

Expert Witness Office Space

Brentwood Office share with two established attorneys Wireless, Fax, Phone, Copy, Cable, Storage, Free Parking, Space for your administrative assistant. Chapple Building 5115 Maryland Way - $ 1000 per month, plus incidentals and expenses negotiable. Fore more information contact: grant@gglassford.com or todd@roberttoddjacksonlaw.com.

Music Row Established Bankruptcy law firm located on historic Music Row (16th Avenue) has a large office space, with adjoining secretarial space immediately available. Includes limited receptionist services, copier, scanner, fax, high speed internet access, digital phone system, free and convenient parking. $1,250.00 per month. Contact Kim Lyons (615) 6903120 or kimberly@rothschildbklaw.com.

Legal Nurse Consulting Handling cases with medically related aspects? Best Practice Legal Nurse Consulting can help you with superior case preparation. Best Practice can screen cases for merit, find expert witnesses, write summaries and chronologies of medical records, along with other services. Contact Lisa at 615-481-5047 or visit bplnc.com for more information.

Downtown Office Space to share with three established attorneys - Scan, Fax, Phone, Copy. Parkway Towers. For more information please contact nlemaster@wdtlaw.net.

Advertise your Office Space in the Nashville Bar Journal

NBJ Classifieds Online:

CC

www.nashvillebar.org

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550. HILLSBORO VILLAGE Established Nashville law association with four experienced lawyers has shared office space available for the right attorney in a large private building (with front lawn and large porch) and plenty of on site parking (and free client parking.) Package includes receptionist services, cable & wireless Internet, telephones and fax, state of the art copier and postage machine, DISH TV, kitchen, all utilities, janitorial service, plus tastefully decorated reception area & conference room, on and off-premise storage, professional liability insurance, website advertising, and all office equipment (including personal computer and all private office furniture.) All inclusive. Added bonus...walk to banks and some of the city’s finest restaurants. Contact adam@durhamanddread.com or call 615-252-9937. Metrocenter Area Law Firm Established Nashville law firm has three office spaces immediately available. Includes receptionist servicces, cable internet, telephones and fax, conference room, kitchen, copiers, some LexisNexis subscription services, website advertising and more. Professional work environment. Free and convenient parking. Call (615) 252-8866 for details.

Visit the NBA's Career Center & Get Started Today: http://jobs.nashvillebar.org/home

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Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word. Available Sections: Expert Witness, For Sale, Positions Wanted, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, and Accounting.

24 Nashville Bar Journal - June 2013

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Elder Law Practice of Timothy L. Takacs

When the going gets tough, the tough call Tim Takacs When long-term illness or disability of elderly family members threatens to disrupt your clients’ financial, legal and emotional well-being, you don’t call just anyone. You call Timothy L. Takacs. illness or disability of During the long-term

aging lovedElder ones, clients may discover n Certified Law your Attorney n Architect of the don’t Life Care Planning to Elder Law that the pieces always fallapproach into place. n Accredited by the Department of Veteran Affairs n Charter member and first chairperson of the Tennessee

Bar Association’s Elder Law Section n Member of the National Academy of Elder Law Attorneys (NAELA)

since 1991, and former Board member n Charter member of the Special Needs Alliance n Martindale-Hubbell AV Peer Review Rating n Founder of The Tennessee Pooled Trust n Listed in Mid-South Super Lawyers magazine since 2006, The Best

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For two decades, improving quality of life for elders and the families who love and care for them has been his primary focus. He can help your clients, too. Middle Tennessee: (615) 824-2571 Cumberland Plateau: (931) 268-5761 Toll-Free: (866) 222-3127 Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

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