Nashville Bar Journal
March 2013 - VOL 13, NO. 2
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ABC’S of the 2013 Tax Laws & Planning Thoughts to Address Them
Harlan Dodson, Tracy Kane and Jillian Mastroianni .................................................................................................................................
NASHVILLE IS ON THE MAP: Human Trafficking in Middle Tennessee
Lynda Jones .................................................................................................................................
Inked: First Amendment Protection for Tattoos
Kelly Frey .................................................................................................................................
Demystifying Online Reputation Defense
Jabez LeBret .................................................................................................................................
At the end of the day...
Who’s Really Watching Your Firm’s 401(k)?
And, what is it costing you?
YES
Does your firm’s 401(k) feature no out-of-pocket fees?
NO
Does your firm’s 401(k) include professional investment fiduciary services? Is your firm’s 401(k) subject to quarterly reviews by an independent board of directors?
ORDER YOUR 2013 DIRECTORY ONLINE TODAY @ WWW.NASHVILLEBAR.ORG
If you answered no to any of these questions, contact the ABA Retirement Funds Program by phone (866) 812-1510, on the web at www.abaretirement.com or by email joinus@abaretirement.com to learn how we keep a close watch over your 401(k).
Who’s Watching Your Firm’s 401(k)? The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (866) 812-1510, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nashville Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. C12-0201-010 (2/12)
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
A Monthly Publication of the Nashville Bar Association
Articles 6 ABC’S of the 2013 Tax Laws & Planning Thoughts to Address Them
Departments 2 4
Harlan Dodson, Tracy Kane and Jillian Mastroianni
8
NASHVILLE IS ON THE MAP: Human Trafficking in Middle Tennessee
15
Inked: First Amendment Protection for Tattoos
19
22
Demystifying Online Reputation Defense
Jabez LeBret
The Nashville Trial of Annie Rogers, Harvey Logan’s Girlfriend
Columns
Gadget of the Month: Our Favorite Windows 8 Devices
Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting
16
Mock Trial Review
CENTER SECTION
24
Donald F. Paine
12
• Upcoming Events
CONTINUING LEGAL EDUCATION
Kelly Frey
18
Communique • Liberty Bell Award Nominations • Norman Award Nominations • Tennessee Supreme Court to Recognize Attorneys Statewide for Pro Bono Work
Lynda Jones
10
From the President
Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings
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.
InProfile: Victoria Webb
Katie Mathews Zipper
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NBA Calendar of Events March 12 - 11:30 AM L.A.W. Meeting
March 21 - 12 PM NBF Trustees Meeting
March 12 - 11:30 AM Solo/Small Firm Committee Meeting
March 21 - 12 PM Government Lawyers Committee Meeting
March 18 - 11:30 AM Probate Committee Meeting
March 21 - 4:30 PM Executive Committee Meeting
March 19 - 12 PM Ethics Committee Meeting
March 21, 2013 - 5-7 PM NBA YLD Predators-themed Happy Hour @ Troubadors Karaoke Bar
March 27 - 12 PM Community Relations Committee Meeting March 29 NBA OFFICE CLOSED May 1 o Law Day Luncheon @ Renaissance Hotel Speaker: Congressman Cooper 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 The Times They Are A-Changin' by:
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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 - March 2013
It is probably inevitable that the person serving as president of any Bar Association would find merit in reflecting on the changes that have occurred in the legal profession in America over, say, the last 50 years and in speculating on the changes that are yet to come. Having been engaged in law practice for more than 40 years, I can bear witness to most of these changes. They include demographic shifts, significant movement in the deregulation of the practice of law, the explosive growth of technology for litigators and transactional lawyers alike, the creation of new areas of practice, a strong movement towards specialization, the growth of regional and national firms, the creation of mega firms, and the globalization of law practice. These topics are certainly far too large for a single President’s article, so it may be that I will address some of these elements of change over the course of several of these pages. Let’s begin with demographics.2 In 1961, there were 288,746 licensed attorneys in the United States. Fifty years later in 2011, that number had increased to 1,245,205, more than a four-fold increase. Believe it or not, there are currently three times as many lawyers practicing in the city of New York (nearly 75,000 in a city with a population of 8.1 million) than in the entire nation of Japan (approximately 23,000 serving a population of 127.3 million). From the standpoint of gender, in 1960 women comprised only 3.5% of the enrollees at ABA-approved law schools. But by 2005 women represented nearly half (48%) of all law students in the United States. I recall that in my first year of teaching at Vanderbilt Law School, the 1973 graduating class contained only four women. In contrast, women comprise 47% of Vanderbilt’s 2013 Law School class. I was astounded to learn that in 1960 there were only 2,180 licensed African American attorneys in the entire country, less than 1% of the total licensed attorney population in the United States. At the time, the African American population in America was approximately 19 million, meaning that there was one licensed black lawyer for every 8,700 African American citizens. By 2010, 4.8% of the licensed attorneys (about 60,000) were African American, still far short of the percentage of today’s total population who are African American. In 2010 Hispanic attorneys accounted for 3.7% of all lawyers in the United States, and in that same year Asian Pacific American attorneys accounted for 3.4% of the lawyer population. Data over the past 30 years shows that the percentage of lawyers in private practice has grown slightly from 68% to 75%. Attorneys in government over that same period of time have remained steady at 8%, and those in private industry have decreased slightly from 10% to 8%. Perhaps one of the most interesting statistics is that, among practicing lawyers, those in solo practice have remained fairly constant over the past 30 years at 49%. In 2005, lawyers practicing either alone or in firms or associations with 10 or fewer lawyers accounted for approximately 70% of all lawyers in private practice. While the growth and activities of mega firms often steal the limelight in the news, it is good to be reminded that the vast number of practicing lawyers work alone or in small associations. For several years the recent recession did not appear to dampen the enthusiasm of young men and women to attend law school. Enrollment in law schools for the 2009 academic year was 145,239, for the 2010 academic year it was 147,525, and for the 2011 academic year it was 146,288. In those years the gender of the law students was 53% male and 47% female. But it now looks like that enthusiasm for law school has come to an end. A recent New York Times article recorded that law school applications have reversed themselves, and have experienced a 38% decline since 2010. Reasons for this reversal include the concern over high tuitions, overwhelming student debt, and reduced opportunities for lucrative
employment after graduation. This apparent sea change will certainly lead to critical self‑examination of the value of a legal education. 3 Fifty years ago, many, if not most, lawyers perceived themselves as general practitioners, handling a broad array of legal problems that might include divorce, regulatory matters, all manner of litigation, and business transactions. The courses taught in law school at that time were consistent with that perception. Remedies was a popular course then, though I wonder if it’s taught in many schools today. Specialized courses were few and far between. The subjects of environmental law, healthcare law, energy law, or elder law did not exist. There was a course in patents, trademarks, and copyrights which was given scant attention, yet today intellectual property is one of the most significant upper class courses to be taken in law school. So how do all these changes impact the Nashville Bar Association? From a demographic standpoint, a large percentage of the practicing lawyers in Nashville, reflecting the national average, are in solo or small firm (less than 10 attorneys) practices. Many of these lawyers may still consider themselves generalists, though it is likely that many have developed an expertise in at least one subject matter area. The NBA must continue to be attentive to those in solo and small firm practices, and to be certain that our practice and service committees address the needs of those lawyers, while at the same time looking to create new committees to address the needs and interests of attorneys engaged in specialized practice areas. n (Endnotes) 1 Words and music by Bob Dylan. 2 Data taken from American Bar Association statistical studies. See generally American Bar Association, Legal Profession Statistics, http://www.americanbar.org/resources_for_lawyers/profession_statistics.html. 3 Ethan Bronner, Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut, N.Y. Times, Jan. 30, 2013, available at http://www.nytimes.com/2013/01/31/education/law-schools-applications-fall-as-costs-rise-and-jobs-arecut.html?_r=0.
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
Nashville Bar Journal - March 2013
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communiqué
NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION
Nominees for Liberty Bell Awards Sought Nominations are being sought for the Liberty Bell Award that will be presented during the NBA’s annual Law Day Luncheon during Law Week. This award is given to that person or group (not necessarily lawyers or law related groups) who has promoted better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations for the Liberty Bell Award should be directed to the Community Relations Committee via Ross Pepper. He may be reached at (615) 256-4838, or rpepper@ pepperbrotherslaw.com.
Past LIBERTY BELL AWARD WINNERS: 1996 Nashville Banner 1997 Bradley MacLean Sabin R. Thompson N. Sue Van Sant Palmer Marlinda R. Bruno 1998 Adinah Robertson 1999 Tennessee Justice Center L.A.W. Early Truancy Program 2000 Senator Douglas Henry NBA Young Lawyers Division
2001 Richard Dinkins Mary Walker
2006 Drake Holliday (posthumously)
2002 Wally Dietz
2007 Governor’s Books from Birth Foundation
2003 Andrea Conte 2004 John Seigenthaler Nashville Conflict Resolution Center 2005 Judge George Paine Renewal House
Mock Trial Competition Results
2008 Judge Walter Kurtz 2009 Ross Alderman (posthumously) 2010 Joe Johnston 2012 Victoria Webb
The 33nd Annual Davidson County Mock Trial Competition, sponsored by the NBA Young Lawyers Division, was held on February 22-23, 2013. Below is a complete list of all the team rankings. 2013 High School Mock Trial Competition Results – District 5 1. Montgomery Bell Academy – Red Team 2. Harpeth Hall School – Silver Team 3. Montgomery Bell Academy – Silver Team 4. University School of Nashville – Blue Team 5. Hume-Fogg Academic High School – Blue Team 6. Martin Luther King Jr. Magnet School 7. St. Cecilia Academy – Red Team 8. Lipscomb Academy 9. Harpeth Hall School – Green Team 10. Goodpasture Christian School – Gold Team 11. Hume-Fogg Academic High School – White Team 12. Whites Creek High School 13. St. Cecilia Academy – White Team 14. Father Ryan High School 15. McGavock High School 16. Stratford STEM Magnet School 17. University School of Nashville – Maroon Team 18. Davidson Academy 19. Goodpasture Christian School – Blue Team 4
Nashville Bar Journal - March 2013
Nominations Sought for Norman Award Nominations are now being sought for the Jack Norman Award that will be presented during the Nashville Bar Association’s Law Day Luncheon during Law Week. The Award is given to a criminal law practitioner, including defense attorneys and judges of courts with criminal jurisdiction, who practice before or serve as judges of courts exercising criminal jurisdiction located in the Metropolitan Nashville area. The award may be given posthumously. The Norman Award must be given to an attorney whose primary practice is in or service pertains to criminal law, demonstrates respect for the rights of all individuals in the criminal justice system, exhibits the trial advocacy skills or judicial skills necessary to the pursuit of justice, demonstrates an abiding respect for the law and legal profession, maintains highest standards of professional integrity and ethical conduct, contributes to the improvement of the legal profession and criminal justice system, including but not limited to the provision of uncompensated or undercompensated representation of the accused. Nominations for the Norman Award should be directed to Rachel Thomas at (615) 862-5500 or rachelthomas@jis.nashville. org or Stephen Young at (615) 726-0900 or syoung@rrylaw.com
Past NORMAN AWARD WINNERS: 1996 Jack Norman Sr., (posthumously) 1997 not presented 1998 Judge Tom Shriver 1999 Seth Walker John Hooker Sr.
2005 Judge Randall Wyatt 2006 Hal Hardin 2007 not presented 1996 Charlie Ray (posthumously)
2000 James F. Neal
2009 Ross Alderman (posthumously)
2001 Joe P. Binkley Sr.
2010 Ed Yarbrough
2002 not presented
2011 Richard McGee
2003 not presented 2004 William M. Leech, Jr.
2012 Peter Strianse
n
n
SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS
n
Tennessee Supreme Court To Recognize Attorneys Statewide For Pro Bono Work
COMMITTEE INFORMATION n NBA NEWS
-Golden Oldies
In an effort to increase the number of attorneys and law offices providing pro bono services to those who cannot afford legal costs, the Tennessee Supreme Court is launching an extensive recognition program. Chief Justice Gary R. Wade announced today that the Court will honor all attorneys providing at least 50 hours of service annually, with a goal of increasing statewide pro bono work to 50% participation. Presently, it is estimated that only 45% of the more than 17,000 Tennessee attorneys offer pro bono services. “Pro bono work is an important and valuable element of our service in the legal community,” Chief Justice Wade said. “Ensuring accessible legal services to those who could not otherwise afford them is most deserving of this recognition.“ In the program, attorneys meeting the Court’s minimum goal of 50 pro bono hours annually will be named “Attorneys for Justice” by the Tennessee Supreme Court. The program is entirely voluntary and based on self-reporting. Attorneys’ pro bono work must be primarily for persons of limited means and/or organizations serving such clients.
Frank Grace correctly identified the individuals in the February 2013 Golden Oldies photo. Pictured are: Graham Boyce, C.D. Rippy and Charles C. Trabue, Jr
Recipients will be honored in regional events throughout the state, where they will receive certificates signed by all five Justices. Each honoree’s name will be included in an Honor Roll published on the Court’s website, and recipients also will be able to download a seal indicating the honor, which may be used on firm websites or marketing materials. Attorneys are encouraged to begin tracking service work in 2013. To be considered for the program, all service must have been provided without a fee or expectation of a fee. Law offices located in Tennessee may also submit applications for the honor. Information on the how attorneys will report pro bono service and the law office application process will be made available on the Administrative Office of the Courts website, www.tncourts.gov. The program is the result of a recommendation by the Supreme Court’s Access to Justice Commission, which is tasked with making such recommendations to the Supreme Court of projects and programs necessary for enhancing access to justice.
Upcoming Events: March 21, 2013 NBA YLD Predators-themed Happy Hour Troubadors Karaoke Bar (423 B Broadway above the Full Moon Saloon) 5 – 7 p.m. before the puck drops at 7 p.m. at Bridgestone Arena
Law Day Luncheon May 1, 2013 Downtown Renaissance Hotel Speaker: Congressman Jim Cooper ..........................................................................
June 27 , 2013 The NBA YLD is headed to the Sounds game to enjoy food, drinks, and baseball on the Miller Lite Porch.
Free beer, pizza, and a prize for the bestdressed Predators fan! .........................................................................
Nashville Bar Journal - March 2013
5
Feature
ABC’S of the 2013 Tax Laws & Planning Thoughts to Address Them by:
Harlan Dodson, Tracy Kane and Jillian Mastroianni
The “American Taxpayer Relief Act” passed at the end of 2012, and is now law. The good news is that because it largely makes prior temporary provisions permanent (unless changed again later this year by Congress), for most taxpayers it does not require any immediate changes to documents or plans. This article provides a summary of some of the key provisions of the tax laws now in effect and a few planning points to address them. I. Key Federal Transfer Tax Provisions: A. The estate and gift tax exemption per person is combined at an amount indexed for inflation, which for 2013, is $5,250,000. This amount, as indexed for inflation, will remain in effect in the future. The use of the exemption for gifts during lifetime reduces the exemption for estate tax purposes at death. B. The generation skipping transfer tax exemption is likewise at the indexed amount of $5,250,000 for 2013. This amount, as indexed for inflation, will remain in effect in the future. C. The annual gift tax exclusion is $14,000 per donee for 2013, and is indexed in future years. The annual generation skipping transfer tax exclusion per donee is $14,000 for 2013, and is indexed for future years. D. The concept of “portability” is now permanently part of the law (again, unless changed by Congress). Portability is the the right of a surviving spouse to use any unused estate and gift tax exemption of the deceased spouse for later application to gifts or to apply toward federal estate tax in
the surviving spouse’s estate. Some technical requirements must be met in order to qualify, the most critical of which is that a timely federal estate tax return (Form 706) must be filed electing portability following the death of the first spouse. II. Key Tennessee Tax Provisions: A. Tennessee’s gift tax is repealed. B. Tennessee’s inheritance tax exemption is $1,250,000 for decedents dying in 2013, $2,000,000 for decedents dying in 2014, and $5,000,000 for decedents dying in 2015. The Tennessee inheritance tax is repealed effective January 1, 2016. C. Tennessee has an income tax of 6% on certain forms of investment income (commonly referred to as the “Hall Tax”). III. Key Federal Income Tax Provisions: A. The income of a High Income Taxpayer, defined as a married couple with $450,000 of taxable income, or a single filer with $400,000 of taxable income, will be subject to marginal income tax rates of 39.6% (up from 35%) on ordinary income and 20% (up from 15%) on capital gains income. Note, however, trusts and estates are taxed at a rate of 39.6% beginning at $11,950 of taxable income B. Separately, there is a phase out of certain itemized deductions for a married couple with
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Nashville Bar Journal - March 2013
$300,000 of taxable income, or a single filer with $250,000 of taxable income. This is known as the “Pease” limitation. C. Under the Affordable Care Act, there is a Medicare surtax of 3.8% on certain types of investment income for a married couple with $250,000 of taxable income and on a single filer at $200,000 of taxable income. This surtax applies to interest, capital gains, dividends, royalties and passive income from businesses in which the taxpayer does not participate. There are a number of exceptions, and the IRS has recently published detailed regulations as to what is subject to the tax and what is not. Note again, however, trusts and estates go to the 3.8% surtax at $11,950 of taxable income. D. In addition to any new taxes, there is still the 12.4% social security tax on the first $113,700 of earned income and the Medicare tax of 2.9% on all earned income. a. For married filers with $250,000 of earned income, and single filers with $200,000 of earned income, there is an additional 0.9% added to the Medicare tax. b. Yes, there are two possible 3.8% Medicare taxes. One is on earned income and the other is on net investment income. First, there is the 2.9% on earned income for all taxpayers, then the additional 0.9% on earned income for married filers with $250,000 of earned income, and single filers
with $200,000 of earned income, for a total Medicare tax of 3.8% on earned income. Separately, there is a 3.8% Medicare tax on certain net investment income for a married couple with $250,000 of taxable income and on a single filer at $200,000 of taxable income. E. Retirement accounts continue to contain significant negative income tax risks unless carefully handled in the planning process. IV. A Few Planning Points and Estate Administration Thoughts The larger exemption amounts make wills and other planning documents that leave the estate outright to the surviving spouse, with a contingent disclaimer if the spouse wishes to do so, the usual choice for most people, unless there are other non-tax considerations. Where there is a married couple with a possible concern about federal estate tax or Tennessee inheritance tax, a will that leaves all to the surviving spouse should also contain a provision for a contingent disclaimer that allows the surviving spouse to use a disclaimer to fund a trust, which would use the decedent’s federal estate tax exclusion and/or Tennessee inheritance tax exclusion. This allows for post-death planning based on the situation with assets and tax laws at that time. While Tennessee still has an inheritance tax (until 2016), practitioners should consider using a Tennessee gap marital trust, so any disclaimer above the current year’s exclusion would not create Tennessee inheritance tax liability. Given the larger federal estate tax exemptions, it is important to consider the
impact of formula clauses in wills tied to the federal estate tax exemption. A will that leaves the entire amount of the federal estate tax exemption in a bypass trust may considerably overfund that trust. For example, for a couple where the husband had an estate of $3,000,000 and the wife has an estate of $2,000,000, there may be no reason to fund a bypass trust at all. Regardless of what happens with the exemptions, the human reasons for using trusts, such as protection from divorce, creditors or health issues, providing professional management, and assuring that a share passes to children or other issue still remains a strong reason to consider them in planning. Portability could be especially useful for assets that are not suitable for the family or bypass trusts, such as retirement accounts or expensive family homes. Congress may change the law again, however, so planning documents need to be drafted to work if portability were repealed or significantly restricted. Because of the expense of preparing Form 706, which must be filed in order to elect portability, and the time required to do so, a decision whether to elect portability needs to be made early in the administration of a decedent’s estate. That said, anytime there is a surviving spouse, the executor should file Form 706 unless there is a conscious and documented decision not to do so. Portability issues also need to be considered in drafting pre- or post-nuptial agreements. For example, parties to such an agreement should agree to permit use of the deceased spousal unused exclusion (DSUE), and provide for which party pays for the filing of Form 706. Continued on Page 14
Nashville Bar Journal - March 2013
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Feature “Human trafficking and sex slavery in Tennessee is more common than previously believed possible.” --Mark Gwyn, Director, Tennessee Bureau of Investigation
NASHVILLE IS ON THE MAP: Human Trafficking in Middle Tennessee by:
Lynda Jones Hope’s Story End Slavery Tennessee is a nonprofit organization raising awareness of the little known but real issue of human trafficking in our State. To illustrate the devastating impact of sex slavery, End Slavery Tennessee has prepared several short films including one called “Hope’s Story.”1 This video is disturbing. Hope describes the living hell she endured at the hands of her captors. She was forced to wear a dog collar and pose for her possible buyers. The uninformed describe these victims as disposable people. They often have no family, poor relationships, and a newly acquired drug addiction. They are not disposable. They are your neighbors. Human Trafficking in Tennessee Over 100 cases of minor sex trafficking were reported in Davidson County in 2011. Over 100 cases of adult sex trafficking were reported in Davidson County in 2011 as well. I-75 has a growing pipeline of commerce from Atlanta to Nashville. Victims are regularly moved on a circuit to minimize detection. Atlanta is one of the major child sex trafficking hubs in the U.S. according to FBI statistics. Middle Tennessee traffickers find an attractive business climate among tourists, conventions, truck stops, a military base, and among residents of one of the region’s most affluent populations. After all we have the Country Music festival, Bonnaroo, and we are the “It” city according to several publications. Nashville is on the map now. Sadly the map includes ugly statistics too. Human trafficking is one of those statistics. Manipulated with promises of affection and gifts, young women are suddenly shocked when they find themselves being sold like cattle to 10 or more customers a day. They are enduring rape daily.
University based on research on sex trafficking of minors in our State.2 TBI Director Mark Gwynn called the results “shocking” and said, “Human trafficking and sex slavery in Tennessee is more common than previously believed possible.” In fact, Statistics show that human trafficking is a larger problem in our state than gangs and involve more counties. States Responding Florida recently enacted the Safe Harbor Act, effective this past January, which helps child victims of trafficking by providing sanctuary and services instead of treating them as criminals. In the past, victims – especially those from other countries – were placed in the juvenile justice system instead of receiving care for what they had endured. Florida has taken the lead in providing services and can serve as a model. Our local law enforcement and district attorneys are paying more attention to the cases coming through the courts. Thankfully Derri Smith and the staff at End Slavery TN are raising awareness in conjunction with the TBI and FBI. The Women's Community Fund also sponsored a forum last year where a former prostitute spoke of the pain she had endured at the hands of her "boyfriend." Please be aware of what is happening to your neighbors’ children. If you see something, say something. To learn more about this growing problem in Tennessee and how you can help stop human trafficking, visit the website for End Slavery Tennessee, at http://www. endslaverytn.org/. n Lynda Jones is a managing member of Jones Law Group PLLC. She attended the University of Tennessee and University of Memphis. She serves on the board of directors for Morningstar sanctuary for domestic violence and is a nominee for the 2013 Athena Award. (Endnotes) This informative documentary may be viewed online at www.vimeo.com/ endslaverytn.
1
In March 2011, The Tennessee Bureau of Investigation (TBI) released a report in collaboration with Vanderbilt 8
Nashville Bar Journal - March 2013
TBI & Vanderbilt Center for Community Studies, Tennessee Human Sex Trafficking and Its Impact on Youth (2011), available at http://www.tbi.state.tn.us/ documents/finaltnhumansextraffickingstudycolorrev2.pdf.
2
Not Just Good. The
BEST
AWARD WINNER FOR BEST LEGAL WEBSITE
W W W . S C O R P I O N D E S I G N . C O M Nashville Bar Journal - March 2013
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Feature
: by:
First Amendment Protection for Tattoos
Kelly Frey
“Congress shall make no law … abridging the freedom of speech ….” The United States Constitution, Amendment I One of the under-appreciated assets Nashville has to offer is the First Amendment Center (the “Center”).1 Associated with Vanderbilt University and adjacent to its campus, the Center provides education and information with respect to the First Amendment to the public, U.S. Constitutional scholars and experts, educators, government policy makers, legal experts, and students. One of the Center’s outreach programs is the National First Amendment Moot Court Competition (the “Competition”). Recognized as one of the nation's finest constitutional-law competitions, this annual event (in coordination with Vanderbilt Law School) invites up to 36 two-member teams from fully ABA-accredited law schools to argue a hypothetical based upon a current or trending First Amendment controversy before panels of jurists, legal scholars, and local attorneys.2 This year’s hypothetical dealt with one of the most fundamental First Amendment questions: “What is speech?” Specifically, the hypothetical addresses whether the process of tattooing is protected under the Free Speech Clause of the First Amendment and the level of judicial review that courts should use in cases related to tattooing. The Hypothetical3 The Free Speech Clause of the First Amendment explicitly covers “speech.” But it has been successfully argued that the Clause should be extended to provide protection not only to “pure speech” (the actual oral and/or written communication), but also to certain expressive conduct (such as burning a draft card or a flag).4 While the U.S. Supreme Court has created a test to determine when conduct is sufficiently communicative to warrant First Amendment protection, the Court has not created a test to determine when the “conduct” can be separated from the “message conveyed” such that the conduct, itself, is protected under the First Amendment.5 10 Nashville Bar Journal - March 2013
Facts The hypothetical for this year’s Competition revolves around the “conduct” of tattooing (the process of injecting dye into the human skin). Once the province of counter-culture rebels in the U.S., tattooing has significant anthropological importance and is becoming a more socially acceptable form of expression.6 That said, many local governments have attempted to regulate the conduct – resulting in tattooers and tattooees raising First Amendment arguments in an attempt to overturn the regulations. In this year’s moot court problem, Norman Malone, a tattoo professional with over 30 year’s experience and a novel way of creating free-hand tattoos (“Malone”), wanted to open a tattoo parlor in the City of Magnolia Hills (the “City”). However, citing public health issues, the City passed an ordinance classifying the act of tattooing a human being as the “practice of medicine” and allowing only individuals with a valid medical license (or a special permit from the local medical board) to engage in tattooing within the City (the “Ordinance”).7 Malone applied for a special permit under the Ordinance, but was denied. Procedural Status Malone filed a complaint in federal district court arguing that (1) the Ordinance created a de facto ban on tattoos, a form of pure speech or expressive conduct, and (2) any infringement on tattooing is a violation of the First Amendment, applicable to states through the Fourteenth Amendment.8 Upon motion for summary judgment, the district court held that tattooing is conduct, not speech. Citing to precedence, the district court held that for cases
Congratulations to all of the students participating in this year’s Competition and to winners of the Competition, the University of Georgia School of Law (represented by Mary Beth Martinez and Katie Croghan).
of conduct, judicial review should be based upon whether the City had a rational basis for the Ordinance; finding that there was a rational basis for the Ordinance, the district court dismissed Malone’s claims. The appeallate court, however, disagreed and held that tattooing was artistic expression, deserving First Amendment protection as pure speech such that the proper standard of judicial review should be “strict scrutiny” and finding that the Ordinance did not have a proper time, place, or manner restriction required under precedence.9 The minority opinion of the appeals court held, however, that the proper standard for judicial review was not strict scrutiny – rather the Ordinance should be evaluated based upon the four-part test articulated in United States v. O’Brien, 391 U.S. 367 (1969): (1) was the Ordinance within the constitutional power of the government; (2) did the Ordinance further an important government interest (a healthinterest); (3) was the Ordinance unrelated to suppression of free expression (i.e., “content neutral”); and (4) did the Ordinance only incidentally restrict alleged First Amendment rights.10 The Issues The U.S. Supreme Court has found that the Free Speech Clause protects not only the spoken and written word, but also certain forms of expressive conduct. In its review of such cases, the Court determines if the conduct in question is (1) purely expressive (“pure speech”), (2) conduct that contains an expressive component, or (3) purely conduct without expressive intent.11 Tattooing would seem to involve both conduct and expression. Certainly the act of injecting ink into the skin is “conduct”. But the result of the process may be art (one of the highest forms of human expression, clearly worthy of protection within the First Amendment). That said,
courts have separated the finished product of tattooing (the “art”) from the process of tattooing (the “conduct” of creating the finished product).12 In evaluating the process of tattooing some courts have held that we must evaluate the conduct based upon the “intent to convey a particularized message” and “likelihood that the message would be understood by those who viewed it”.13 Other courts have opined that there is no distinction “between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or artwork) in terms of the First Amendment protection afforded.”14 The Court will apply different First Amendment standards of review dependent upon whether tattooing involves merely conduct or is expression. If the conduct is pure speech, a strict scrutiny level of review is required – and any regulation restricting the act would be constitutional only if the regulation is reasonable with respect to time, place, and manner.15 If the conduct is expressive, but not pure speech, then an intermediate level of review is required – if tattooing is expression pursuant to Spence, then any regulation of tattooing would have to pass the four-prong O’Brien test and be narrowly tailored to further a substantial governmental interest. If the conduct is without expressive intent, then a rational basis level of review, as expressed in the Yurkew case, is required. In the Competition, the Petitioners (on behalf of the City) argued that tattooing is mere conduct and the Ordinance should be subjected to a rational basis standard of review. The Respondents (on behalf of Malone) argued that tattooing is either pure expression (“pure speech”) subject to strict scrutiny or, in the alternative, expressive conduct subject to an intermediate level of scrutiny.
Conclusion While tattooing may seem like a trivial or transitory cultural fascination, the protections offered by the First Amendment are neither. First Amendment protections exist to create an open exchange of ideas and expressions critical to participatory democracy. Outlets such as newspapers, TV, and online resources enrich us with the information, and creators in art and performance enrich us with the inspiration, we need as a culture. And thanks to such venues as the First Amendment Center and its annual Moot Court Competition, lawyers who are not typically faced with dilemmas with respect to what role government may play in limiting our public discourse get the chance to actively engage with both present and aspiring Constitutional experts in better understanding critical First Amendment issues that affect us all. n Kelly L. Frey, Sr. is a partner with the Nashville Tennessee office of Dickinson Wright and can be reached at 615-620-1730 or kfrey@dickinsonwright.com. (Endnotes) Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C. For more information about the Center, see http:// www.firstamendmentcenter.org.
1
The competition consists of four preliminary rounds, quarterfinals, semifinals and the championship round. The Center provides a Continuing Legal Education course to the panelist/judges prior to the event, allowing local attorneys to gain a better understanding of the First Amendment and the specific issues and jurisprudence related to the hypothetical that will be argued during the Competition. Additional information about the Competition is available at http://www. firstamendmentcenter.org/moot-court.
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Continued on Page 17
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Windows 8 Devices
Well, ready or not, it’s here. Microsoft has released Windows 8, and it will be hard to buy a new computer that is not pre-loaded with Windows 8. This month we review 3 different machines that fit into 3 different categories: (1) A “hybrid” – the Microsoft Surface Pro; (2) A “convertible” – the Samsung ATIV XE700T1C; and (3) a “touchscreen ultrabook” – the Asus VivoBook S400CA.
from the Microsoft Store as well as a real, bona fide laptop replacement device that we can use to work on documents, spreadsheets, presentations, or just about any other Windows-capable software. Unlike the iPad, which cannot run the same software titles that you can run on the MacBook laptop, the Surface pro is essentially an all-in-one device.
Microsoft Surface Pro Back in October 2012 when Microsoft released the first version of its new Windows 8 tablet/laptop “hybrid” we breathlessly pulled out the credit card to get our hands on this ground-breaking device. The device was labeled Surface RT. While we loved the concept, the form factor, the touch screen, and even some of the hype/marketing about the Surface, we found in actual use that the tablet was a bit sluggish. Maybe it was just Windows 8 we thought, or maybe we should have gotten the 64GB version, or maybe we’re expecting too much out of a tablet/laptop hybrid device. We held our criticism in abeyance until other Win 8 devices started popping up in the marketplace. Eventually it became obvious the Surface, at least the RT version, was not all that we hoped it would be. So when Microsoft announced the release of RT’s big brother, Surface Pro, in February; we approached the checkout counter with a bit more skepticism. Nonetheless, we quickly sold the RT on eBay and coughed up some more cash for the Surface Pro 128GB (which was very hard to find amid fast sell-outs at retail locations around town).
Now, the cons: the Microsoft Store has only a fraction of the apps that you can find in the Apple Store or even Google’s Play Store for Android devices. This is to be expected given the newness of the Windows 8 OS and its ability to run modern-style apps. We expect that the Microsoft Store will see a significant influx of new apps as Windows 8 devices grow in popularity. Another knock on the Surface is that, unlike some of its competitors in the Win 8 space, it is not a true hybrid device. Yes, you can detach the keyboard from the Surface and use it as a beautiful, if a little heavy, tablet. However, the detachable keyboard is not a true laptop keyboard. It is a little flimsy. It has no ports on the keyboard itself, and typing on it (even now as I type this article) leaves a little to be desired. Even with the more expensive Type keyboard that Microsoft sells for the Surface, we frequently find ourselves typing too fast for the keyboard to catch up (not really good, especially since we’re not superior typists).
So, now, what is the verdict on the new, bolder, more professional Surface Pro? It’s night and day. Like a true laptop, Surface Pro runs like it is powered by a workhorse processor, which it has, an Intel Core i5. No longer do we experience the slight hesitation when opening the flashy, modern apps. Boot time is fast and response time is even better. More importantly, with the Pro version, we can install any software on this tablet that we could install on a Windows desktop or traditional laptop. In other words, we have the best of both worlds: a touch-screen tablet capable of running the cool, inexpensive (or free) apps that we can download 12 Nashville Bar Journal - March 2013
The lackluster performance of the keyboard aside, however, the Surface Pro is tremendous in tight places (like an airplane seat). We feel that we don’t sacrifice anything in processing power and speed in this compact, functional design. And we gain so much more with this tablet other than just playing Solitaire or listening to Spotify. We can actually get real work done on a fun tablet. We can have our cake and eat it too. That’s the idea isn’t it? Continued on Page 13
Gadget: Windows 8 Devices Continued from page 12
Samsung ATIV XE700T1C We admit it – we like Samsung products. This “convertible” is no exception. This device can be used as a Windows 8 tablet, or you can attach a keyboard (included) and use it as a laptop. Like the Surface Pro, the XE 700 has a powerful i5 processor. It is fast and easy to use. Much of its speed is attributable to the fact that it has a 128 gigabyte solid state drive. When we tested it, it booted up in about 8 seconds. That’s not as fast as an iPad, but close, and it is oh so much more powerful. This is a real computer. It can do everything your desktop can do, and more. It has a touchscreen that can take advantage of all the features of Windows 8. In addition, there are several built-in Samsung apps, including SNote and other applications that take advantage of Samsung’s SPen technology. The SPen is a stylus (included) that allows you to use it as a “digital pen” to take handwritten notes (and convert them to text) draw pictures, etc. It is a handy add-on to your Windows 8 arsenal. The XE 700 has all the “bells and whistles” -- Multiple Ports; Micro HDMI; USB 3.0; MicroSD Multi-media Card Reader; Headphone out/Mic-in Combo; front and rear- facing cameras; stereo speakers; HD Graphics; support for WiDi displays; etc. etc. But there are drawbacks. It is pretty darn expensive. It costs about $1,200. It is “light” weighing about 2 pounds, but it seems heavy. Don’t ask us why, but check it out. In addition, the detachable keyboard is “clunky.” Sometimes it separates from the computer when you don’t want it to, and, at other times, it is hard to detach. All in all, the XE 700 is an amazing machine, but, unless you really need a Windows 8 tablet, the next selection, the Asus VivoBook S400CA, is probably a wiser choice.
Asus VivoBook S400CA This machine is a “touchscreen ultrabook,” and we think it gives you the best bang for the buck of any machine in this category. We can’t say enough good stuff about it. Every review we have read about the VivoBook S400CA has praised it effusively. Count us in that category. We have purchased this machine for family and friends, and they all have loved it. Most reviewers rate it a “best buy.” It is fast – i5 processor. It boots up in about 10 seconds – thanks to a 32 gigabyte solid state drive that contains the operating system. But it also has a lot of storage – thanks to a 500 gigabyte conventional hard drive. The VivoBook S400CA also has a touchscreen to take full advantage of the features of Windows 8. The keyboard does not detach, so it cannot be converted into a tablet, but you can do anything on it that you can do on a Windows 8 tablet because it has a touchscreen. And it looks great. It is sleek and shiny and light (4 pounds). It is relatively cheap. You can buy one for about $600. It has all the ports you need: a Combo Mic-in & Headphone-out; an Ethernet port; 2 USB 2.0 ports; one USB 3.0 port; an HDMI port; and even an “old-fashioned” VGA port. In Bill’s opinion at least, if you are in the market for a Windows 8 machine, this is the one to get, especially if you just want to “try out” Windows 8. Meanwhile, Phil is daily getting more and more attached to his Surface Pro. When all the testing is set aside, maybe we can get some real work done on our flashy new machines. See you next month, —Bill & Phil
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ABC’S of the 2013 Tax Laws & Planning Thoughts to Address Them Continued from page 7
Since an estate is at risk of additional income tax above $11,950 of taxable income in any year, planning as to the distribution of income out of the estate to beneficiaries, or otherwise managing assets, should occur as a specific decision at the beginning of the administration of an estate.
The absence of a Tennessee gift tax and the larger federal exemptions will avoid the need for many of the transactions commonly used for planning purposes in which assets were sold in exchange for a promissory note with forgiveness equal to the annual exclusion amount.
Because a trust is likewise at risk of additional income tax above $11,950 of taxable income in any year, planning as to the distribution of income out of the trust to beneficiaries, or otherwise managing assets, should occur at the drafting stage and as a specific decision at least annually thereafter.
Life insurance continues to provide taxfree build up in the policy and income tax free proceeds, so for now, it continues to furnish protection from the increasing income taxes.
With the higher transfer tax exemptions, families have far more flexibility in the use of gifting for inter-generational wealth planning. However, with the higher exemptions, it is easy to become careless with filing gift tax returns. Timely and complete filings of Form 709 for gifts above the annual exclusion remain important.
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The deficit remains in the trillions and the Administration and Congress will continue to discuss changes to the tax laws, so stayed tuned! n
Harlan Dodson is a partner with Dodson, Parker, Behm & Capparella, PC. He has taught wills and estate planning at the Nashville School of Law for over 30 years and is the editor to West Publishing Company’s Tennessee Practice Series volumes on business formation and estate planning as well as author of Introduction to Estate Planning and Administration in Tennessee. Tracy Kane is an attorney with Dodson, Parker, Behm & Capparella, PC, providing business law and estate planning advice to businesses and their owners. She is a graduate of Vanderbilt University Law School and former law clerk to the Honorable Richard Dinkins on the Tennessee Court of Appeals. Jillian Mastroianni is an attorney with Dodson, Parker, Behm & Capparella, PC and graduate of Vanderbilt University Law School.
Mock Trial Competition Results The 33nd Annual Davidson County Mock Trial Competition, sponsored by the NBA Young Lawyers Division, was held on February 22-23, 2013. Below is a complete list of all the team rankings. The YLD expresses their congratulations to all teams for very fine performances, and thank you as coaches and sponsors for your hours of training and support. 2013 High School Mock Trial Competition Results – District 5 1. Montgomery Bell Academy – Red Team 2. Harpeth Hall School – Silver Team 3. Montgomery Bell Academy – Silver Team 4. University School of Nashville – Blue Team 5. Hume-Fogg Academic High School – Blue Team 6. Martin Luther King Jr. Magnet School 7. St. Cecilia Academy – Red Team 8. Lipscomb Academy 9. Harpeth Hall School – Green Team 10. Goodpasture Christian School – Gold Team 11. Hume-Fogg Academic High School – White Team 12. Whites Creek High School 13. St. Cecilia Academy – White Team 14. Father Ryan High School 15. McGavock High School 16. Stratford STEM Magnet School 17. University School of Nashville – Maroon Team 18. Davidson Academy 19. Goodpasture Christian School – Blue Team
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In Profile
Victoria Webb served as a staff member of the Nashville Pro Bono Program for 26 years until her retirement in 2012. Just prior to her retirement, she was honored with the NBA’s prestigious Liberty Bell Award.
Profile: Victoria Webb by:
Katie Mathews Zipper
A career coordinating pro bono services in Nashville is perhaps an unlikely choice for a University of Georgia graduate with a degree in Journalism. Victoria Webb, a Nashville native who grew up in south Georgia, moved back to Nashville after college to write for several small publications. She began volunteering at local agencies, including the Southern Coalition on Jails & Prisons, where she helped provide outside coordination to an inmate organization at the Tennessee Prison for Women. She served as a VISTA worker and later program director for the Social Action Group on Aging, a consumer advocacy group for the frail elderly. There, she helped advocate for nursing home reform in Tennessee and was a registered lobbyist in the Tennessee General Assembly. Through both the prison and nursing home reform work, Webb says she became familiar with lawyers and what they could do to change people’s lives for the better. Webb truly found her niche when she began working for the Nashville Pro Bono Program, where she served as the paralegal coordinator, and later as legal clinic coordinator and intake worker, for 26 years. She started with the program in July 1986 as an assistant to the Nashville Pro Bono/Lawyer Referral Service Coordinator. In those days, the program was housed in the NBA office. The NBA soon hired its first executive director, Allan Ramsaur (now director of the TBA), who set about growing, developing, and branding the NBA and the Nashville Pro Bono Program. When the program’s coordinator position became available, Webb enthusiastically applied for the job and was hired. She soon found herself involved in the negotiations with the Legal Aid Society of Middle Tennessee on a joint venture/merger agreement.
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The staff assigned to the Nashville Pro Bono Program grew, and the number of attorneys signing up to volunteer skyrocketed. When Webb moved from the NBA office to the Legal Aid office, the program had about 350 active volunteer attorneys in Nashville. Today, the program has over 1,500 active volunteer attorneys in both Davidson and Williamson Counties. In 2011, Webb coordinated over 50 pro bono legal advice clinics in the Nashville area. Webb retired from the pro bono program at the end of May 2012. Upon her retirement, she received the prestigious Liberty Bell Award from the NBA. The Liberty Bell Award honors a person or group that has promoted better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Webb is certainly deserving of that honor. Although she is no longer employed by the Nashville Pro Bono Program and Legal Aid, Webb continues to be an advocate for pro bono services. She wants the members of the NBA to understand that they are the owners of the
Inked: First Amendment Protection for Tattoos Continued from page 11
Most of the information contained in this article is from the Bench Brief provided by Vanderbilt University Law School (the “Bench Brief”) and the exceptional CLE provided by David L. Hudson Jr. on this topic the night prior to this year’s Competition.
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Nashville Pro Bono Program. Webb says she will always stick up for attorneys, and not just the attorneys who work for pro bono programs, because attorneys are so generous to use their gifts for the benefit others. Webb is a long-time member of the National Association of Pro Bono Professionals and currently serves on its Board of Directors. She enjoys attending their national meetings and sharing her knowledge and real world experience with coordinating pro bono programs. She is also a member of the Nashville Bar Journal editorial staff. Webb has no biological children, but she does claim one “adopted” child – a young woman she met through the Nashville Pro Bono Program. The young woman was 19 years old when Webb first met her, and Webb has continued to help connect her with legal and social services over the past 11 years. She has seen her “adopted” daughter through having several of her own children and many life changes. Now, over 30 years old, Webb’s “adopted” daughter is living in another state and stable for the first time in her life. Webb feels like a proud mom. Her next challenge? Webb wants to either foster the work of another nonprofit organization or learn to be a “real” paralegal. She would like to perhaps find a small private civil law firm, preferably one that practices employment law, where she can learn the private practice side of the legal world. Webb’s other interests include running and listening to live music. She has been known to sing on stage at the Springwater Supper Club & Lounge (once dubbed “Nashville’s best dive bar”). She lives happily with her partner, Bill Flowerree, a songwriter and United Methodist Publishing Company employee, and their two tomcats, Nelson and Dylan. She meets monthly with a group of local women writers and dreams of someday authoring stories of the many people she has worked with throughout her career. n
For conduct to be “expressive” typically there must be communicative intent in the conduct and likelihood the message will be perceived by the public.
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See Bench Brief.
See Penn Museum, Tatooing, Bodies of Culture: a world tour of body modification, http://penn.museum/sites/body_modification/bodmodtattoo.shtml. According to a survey by the Pew Research Center, 36% those ages 18 to 25, and 40 %of those ages 26 to 40, in the U.S. have at least one tattoo. Pew Research Center,Tatooed Gen Nexters (Dec. 9, 2008), http://www.pewresearch.org/daily-number/ tattooed-gen-nexters/.
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The Ordinance was nominally passed in response to an increasing incidence of Hepatitis infections in order to prevent the spread of the blood-borne disease as a result of shared needles and contaminated ink; however the record for the Competition included statements by city officials that the intent might have been to prevent the opening of tattoo parlors.
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Bench Brief, at 12.
Citing to Ward v. Rock Against Racism, 491 U.S. 781 (1989). 9
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Bench Brief, at 18.
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Id. at 14.
12
Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).
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Spence v. Washington, 418 U.S. 405, 410-11 (1974).
Coleman v. City of Mesa, 284 P.3d 863 (Ariz. 2012)(citing Anderson v. City of Hermosa Beach, 612 F.3d 1051 (9th Cir. 2010)). 14
15
See Ward, 491 U.S. 781.
Katie Mathews Zipper is an attorney at the law firm of Rogers, Kamm & Shea. She practices primarily family and probate law in Davidson and Williamson Counties.
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Feature Demystifying Online Reputation Defense By Jabez LeBret, edited by Kelly Ament As an attorney, you must keep an eye on what people are saying online about you, your firm, and even people that share your name. Online reputation defense is now part and parcel of an attorney’s responsibilities. Often, we have clients that come to us completely unaware of what is being said about them online. In a few alarming cases, an online search for the attorney’s name included results for people of the same name who had been arrested for DUI, larceny, and, in two cases, sexual assault. Managing your online reputation does not have to keep you up at night. During our technology CLE presentations, we always instruct attorneys that the best reputation defense is a good offense. We are going to walk step-by-step through how you can easily manage your professional image online. This article will not hide anything: this is exactly what we do for our clients. If you follow these simple steps, you will quickly be in control of your online image without ever having to hire a reputation management company. The great news is that less than 1.8% of people searching on Google ever click on the second page. So, the first logical step in online reputation management is assessing what is being said about you on page one. When you or a potential client searches for your name or your firm name, this is called a “branded keyword search.” The proper way to conduct a branded search to check your online reputation is to log out of all your email accounts and social media profiles. Then, clear your search history and cache in the tools section of your browser 18 Nashville Bar Journal - March 2013
(e.g., Firefox, Safari, Internet Explorer). Now, you are searching on a clean browser that is not being influenced by your search history, social media connections, or email. Skipping this step may cause the search engine to show you skewed, personalized results that differ from what a potential client would see. To get the most accurate search results for your firm, type your firm name surrounded by quotation marks in a Google search. If I were to search for my company, the search term would be “Get Noticed Get Found.” You can also search for yourself and your fellow partners separately by name, each with quotation marks around the search term. Your goal is to control the information about your firm name and every attorney’s name in your office on page one of Google and page two, if possible. If you find something negative, do not get upset. Follow the exact steps below, and in a month or two, you will start to gain more control of page one. Clean up your citations: Anywhere your firm appears online with its name, address, and phone number is called a citation or directory listing. Make sure that every one of your firm’s citations has an identical firm name, address, website, and phone number. These citation websites include Google+ Local, Yelp, Merchant Circle, AVVO, etc. We start off by claiming about 30 for our new clients, so that is a great beginning point for you. When you Google your firm name in quotes, you will likely find that several citations have already been created. If this is the case, find the “claim this listing” or similar button on the page, and follow the instructions to manage and edit that listing.
Do not use a forwarding phone number: It was great advice about nine months ago to use a forwarding phone number on your citation listings and even your firm’s website; however, this is no longer a good practice. The search engines have indicated that you will fall in the search rankings if you are caught using forwarding numbers. Immediately take down a forwarding number that appears anywhere online. Set up a blog on your website: A blog is a great tool for controlling information on page one of search engines while also helping your website get a better ranking. You should be blogging once a week, at the minimum. The key to good blogging is consistency, so avoid posting four blogs in one week and none the rest of the month. Link your firm’s social media profiles to your blog: You do not need to post about the coffee you drank this morning on Twitter. You should, however, have profiles on Twitter, Facebook, Google+, and LinkedIn where you can post links to your firm’s blogs. Create one press release per month: These press releases do not have to be about breaking news. Topics like hiring a new employee or someone in your firm Continued on Page 20
Interest
The Nashville Trial of Annie Rogers, Harvey Logan’s Girlfriend by:
Donald F. Paine
American outlaw Harvey Logan, also known as Kid Curry, rode with Butch Cassidy and the Sundance Kid’s Wild Bunch gang through a host of bank robberies, train robberies, and incidental killings. After a pool brawl in Knoxville, Logan was eventually captured in Jefferson City and tried in federal court for stealing notes in a July train robbery near Wagner, Montana.1 Logan had spent these notes around Knoxville and had given some to Annie Rogers. She was arrested in Nashville on October 10, 1901, after exchanging stolen and forged banknotes at the Fourth National Bank. This article is about Logan’s consort, Annie Rogers. Annie was born Maud Delia Moore in August 1875, near Fort Worth, Texas. She entered the prostitution profession at age 18, selling her wares at Fort Worth and San Antonio and Mena, Arkansas. Most of her work was at Fannie Porter’s San Antonio bordello. In 1896, she had married a farmer named Lewis Walker. But marriage bored Annie, so she left after three years. Harvey Logan was one of her customers. The Wagner heist made him rich enough to take her on a trip to Tennessee. They spent time in Memphis, then went to Nashville. Once Annie was arrested, Harvey moved to Knoxville. There he wounded two policemen in a bar brawl. He was eventually tried and convicted for the Montana crime. As many of you know, he escaped from jail in 1903 and ended up in Colorado, where he committed suicide in 1904 rather than be recaptured. But back to Annie. Her trial covered Saturday, June 14 and Monday through Wednesday, June 16-18, 1902. Here is what I’ve gleaned from the Nashville American, the morning paper that reported proceedings in far more detail than the evening Banner.
The first day was occupied largely with testimony of witnesses who identified the banknotes. Those included C.H. Smith of the Great Northern Express Railroad and J.S. McHenry of the Fourth National Bank. The second morning the jurors (all male until 1951, remember) were treated to three demimonde from the Bluff City. Corinne Lewis and two employees of her “resort” told of the lavish spending by Harvey and Annie in Memphis. Also, “the couple drank a great deal of beer.” An afternoon witness was arresting officer J.R. Dwyer. Defense counsel Washington raked him over the coals. The cross-examiner accused the officer of telling Annie she couldn’t have a lawyer, of cursing her, and of forcing her to remove “the larger part of her raiment [clothes].” The defense presented its case on day three. Annie Rogers took the stand during the morning session. “She testified that she knew nothing in regard to the business of Harvey Logan, with whom she traveled, and had no knowledge of the fact
Presiding was Davidson Criminal Court Judge Hart. Robert Vaughn and J.B. Kirkpatrick prosecuted. W.H. Washington and Robert S. West defended.
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Demystifying Online Reputation Defense Continued from page 18
participating in a local 5K race all make for easy press releases. Note that you get what you pay for: submitting your press release to free online syndication sites gets you almost no credit in search results. We use several paid services to submit press releases for our clients, including PRNewsWire, OnlinePRNews, and PRWeb. Update your website: Your firm’s website is not a static object. You should be updating it often with new content, images, and blog posts. This helps your search ranking and really pushes that website to page one of Google. Create a video series: Forget a lengthy, $30,000 production. Just hire a film crew from Craigslist to shoot a simple series of question and answers. You and the other attorneys at your firm can answer common questions that clients ask you about your practice areas. Break the video into multiple video snippets, and then syndicate those videos on as many free video syndication websites as you can find, including YouTube, MetaCafe, and others. Following all of the above steps will allow you to easily command the first page of Google’s search results for your name and firm name. With numerous search results for your firm’s website, directory listings, blog, videos, social media accounts, and press releases showing up on the first page, any objectionable results relating to your name or your firm’s name will be pushed to the second or even third page—where nearly no one will see them. n Jabez LeBret is co-author of the Amazon #1 best-selling legal technology and marketing book, Online Law Practice Strategies: How to Turn Clicks into Clients. In 2012, he delivered over 40 CLE seminar presentations and has presented at several tech conferences. Jabez writes a weekly business and technology column for NBC Chicago and is a founding partner of his digital marketing agency that works solely in the legal industry. You can find information about Jabez at http://www. GetNoticedGetFound.com
Continuing Legal Education ALERT! Join Us On April 16, 2013 To Hear Jabez Lebret Present:
ONLINE LAW PRACTICE STRATEGIES: How To Manage Your Online Presence To Grow Your Practice Google and other search engines have changed the way you get ranked, and clients have changed the way they behave online. 3.0 CLE HOURS - DUAL 20 Nashville Bar Journal - March 2013
The Nashville Trial of Annie Rogers, Harvey Logan’s Girlfriend Continued from page 19
that the money given to her by him had been stolen in a train robbery.” A deposition taken from Harvey at the Knoxville jail on May 13 corroborated Annie’s innocence. Here are a few excerpts from that deposition: Q.
Do you know the woman, Annie Rogers?
A.
Yes, I know her and have known her for some time. I first met her in San Antonio, Texas.
Q.
Where did Annie Rogers get the money she had at Nashville?
A.
I gave her $300 at one time and frequently gave her money.
Q.
Did she know where the money came from that you gave her?
A.
She knew nothing about it and did not ask me.
A cigar dealer named Marvin Roop testified that he took pity on Annie and hired attorney West to represent her. That lawyer testified about officials who tried to prevent him from interviewing his client. The fourth and final day was filled with closing arguments, instructions, and jury deliberations. At 8 p.m. “Foreman Howington came forward with a smile on his face and stated that the jury had found the defendant not guilty.” The spectators cheered and Annie shook hands all around, including with the jury and judge. Whatever happened to Annie? I don’t know. Pinkerton Detective Agency records suggest she was prostituting again by 1906, in Hot Springs, Arkansas. Maybe so. Her boyfriend Harvey was dead by then. n Donald F. Paine is Of Counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. (Endnotes) 1 For more information about the trial of Logan, see Donald F. Paine, The Trial of Harvey Logan, 37 Tenn. B.J. 1-5 (June 2001), available at http://www.tba.org/sites/default/files/journal_archives/2001/TBJ0601. pdf.
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 - March 2013
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Disclosure Michelle Lynn Delgado has joined the firm of McCarter & Beauchamp, PLLC. She joins their family law practice as an associate attorney. Delgado is a 2012 graduate of Cumberland School of Law at Samford University. In 2008, she graduated from Auburn University, where she majored in Business Marketing, with a minor in Spanish. Prior to joining the firm, Michelle interned with the Davidson County District Attorney General's Office in the Summer of 2011. Kelly Frey, an attorney with Dickinson Wright PLLC, released an eBook titled Ethics & Compliance Issues as part of the Execsense Digital Thought Leadership series. Ethics & Compliance Issues focuses on the importance of integrity to a modern leader’s success and the success of the leader’s company. Robert V. Sartin has been named to Frost Brown Todd’s nineperson Executive Committee for a three-year term. Previously, he served on the Strategic Planning, Finance and Advancement Committees. Sartin, leader for the Automotive Industry Team, practices primarily out of the firm’s Nashville office and still maintains a Lexington office. With over 17 years experience, Sartin represents companies and chapter 11 debtors in business matters such as mergers and acquisitions, venture capital investments, strategic alliances, joint ventures, corporate restructurings, debt transactions, as well as bankruptcy and tax matters. He serves as Frost Brown Todd’s service team leader for Toyota Motor Engineering & Manufacturing North America, Inc. and leads the firm’s representation of Toyota. He also represents other OEMs and Tier suppliers in mergers and acquisitions, supply chain management and various other business matters.
22 Nashville Bar Journal - March 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 J. Cole Dowsley, Jr. has joined Thompson Burton, PLLC as a partner and will lead the firm’s business litigation practice. Cole received his J.D. from the University of Tennessee College of Law, where he served on the Editorial Board of the Tennessee Law Review. He obtained his B.S. (Business Administration - Accounting) from the University of Tennessee, graduating magna cum laude. David J. Callahan III of Callahan Witherington, PLLC, has joined the faculty of Nashville School of Law. He will be teaching thirdand fourth-year students on probate and estate planning in the Wills course. Callahan earned his law degree from Nashville School of Law, where he was honored with the Moot Court Award. He is also a member of NSL’s Cooper’s Inn Honor Society. Callahan holds a master’s degree in taxation from the University of Alabama, from which he earlier graduated cum laude upon completion of his bachelor’s degree in political science and economics. William H. Tate has been awarded the 2013 Lexology Client Choice Award for Construction for the State of Tennessee. Tate is the only construction attorney in Tennessee awarded this distinction and one of only eight nationwide. Established in 2005, the Client Choice awards recognize attorneys around the world that stand apart for the excellent client service they provide and are based on in-house counsel and client interviews and comments. The winners were announced at a dinner held in London on February 27, 2013. Tate is a founding partner of Howard Tate Sowell Wilson Leathers & Johnson, PLLC, former President of the Nashville Bar Foundation and First Vice-President of the Nashville Bar Association. He is also a Rule 31 Mediator.
Joycelyn A. Stevenson joins Littler Mendelson, P.C. as a shareholder. She will focus her practice in the areas of labor and employment and business immigration law. Stevenson received her J.D. in 2001 from Vanderbilt University Law School and earned her B.A., magna cum laude, in 1998 from Howard University. Riggs Davie PLC has joined the HELO Group. HELO, which an acronym for “High Experience and Low Overhead, is a network of experienced Nashville corporate and business lawyers who offer high quality, reasonably priced legal services. Comprised of 12 Nashville lawyers in 6 firms, HELO is not a law firm or a partnership, but rather a group of experienced lawyers who share the belief that lawyers can successfully offer their services not only on the basis of quality, but also on efficiency and price. The two founding members of Riggs Davie PLC, Casey W. Riggs and Alexander J. Davie, focus their legal representation on a broad range of corporate, finance/securities, real estate, and estate planning matters. They work extensively with entrepreneurs, startups, and established businesses in these capacities. Lynda Hill, a member in Frost Brown Todd’s Nashville office, has been named Chair of the firm’s Litigation Technology Advisory Committee. Hill will be responsible for overseeing the continued evaluation and improvement of the firm’s e-discovery capabilities and for identifying and recommending educational programs for firm staff and attorneys. She practices in the products liability and business litigation practice groups at Frost Brown Todd. She was also named to the firm’s Women’s Initiative Steering Committee earlier this year.
The Tennessee Human Rights Commission (THRC) honored 10 local human rights and civil rights advocates at the Tennessee State Museum on February 28, 2013. Among those honored were two NBA members. George Barrett - A dedicated civil rights attorney, Barrett began his career during the late 1950s and early 1960s when the Civil Rights Movement was at its height in Nashville. Waverly Crenshaw, a partner at Waller, who has made human rights education a priority for decades.
Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.
February Volunteers:
Christopher Boiano Stephanie Boiano Gina Crawley Victoria Ferraro Tom Lawless 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.
Welcome New NBA Members! James E. Bitter Colby Faith Block Wyatt, Tarrant & Combs, LLP Elwood H. Camp III E.H. Camp III, Attorney at Law Alicia Cottrell Butler, Snow, O'Mara, Stevens & Cannada, PLLC* Valerie Diden Moore Butler, Snow, O'Mara, Stevens & Cannada, PLLC* Kelly Donley Safford Motlry, PLC Craig P. Glenn Bill Easterly & Associates, PC
Davidson County Judges Daniel B. Eisenstein and Seth W. Norman hosted the Deputy Director for State and Local Affairs of the White House Office of National Drug Policy, Benjamin Tucker, at a graduation of the DC4 program. DC4, which stands for ‘Davidson County Drug Court – Developing Character During Confinement’, is a sentencing alternative for addicted non-violent felony offenders. The overall structure of DC4 includes a residential program for offenders from the Mental Health Court who suffer from severe and persistent co-occurring mental health and substance abuse disorders. Tucker toured the DC4 Residential Drug Court Facility, attended a meeting with top state officials, was present for the graduation ceremony, and heard testimony from program graduates. The program has become one of the most comprehensive problem-solving courts in the United States. Since it began in 1996, more than 600 people have successfully completed DC4; 100% of graduates go on to obtain employment, and many continue to meet weekly for support long after completing the program. DC4 helps offenders deal with their addiction, find support, and get back on their feet. Prior to the availability of DC4, many would have found themselves back in jail, homeless, and/or still addicted to drugs.
Jamie A. Gordon Seth M. Hyatt Barrett Johnston, LLC* John E. Joseph Feiwell & Hannoy Charles Hunter Kitchens King & Ballow Ashley Jew Markham Butler, Snow, O'Mara, Stevens & Cannada, PLLC* Robin L. Martin Gregory G. Monroe Pamela Onyekeba April D. Romeo Romero Law LLC James B. Sauter Morgan & Akins, PLLC* Nicholas W. Spangler Office of the Attorney General Susan B. Tatman Law Office of Matt Potempa, PLLC Zachary D. Wiley Gargiulo/Rudnick, LLP Robert Jayson Wilkinson McCurdy & Candler, LLC
Left to right: Judge Daniel B. Eisenstein, Judge Seth W. Norman, Corrections Commissioner Derek Schofield, Deputy Director Benjamin Tucker, Safety and Homeland Security Director Bill Gibbons, and Mental Health and Substance Abuse Services Commissioner Doug Varney.
Julie M. Wooten The Law Office of Julie M. Wooten, Esq. * Belongs to a 100% Club firm Nashville Bar Journal - March 2013
23
Classifieds
for sale
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.
Large Conference Table & Chairs Moving must sell beautiful 14ft x 4ft conference table with 10 leather chairs. It is like new condition. Paid more than $6,000 for all. Will take $4,000 (price negotiable). Call 615254-7770.
Nashville Bar Journal Classifieds Online | www.nashvillebar.org
DOWNTOWN Office space to share with three established attorneys - Scan, Fax, Phone, Copy. Parkway Towers. For more information please contact nlemaster@wdtlaw.net. 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.
Visit the NBA's Career Center and Get Started Today:
Metrocenter Area Law Firm Established Nashville law firm has three office spaces immediately available. Includes receptionist servicces, cable internet, telephones and fax, conference room, kitchen, copiers, some LexisNexis subscription services, website advertising and more. Professional work environment. Free and conveninet parking. Call (615) 252-8866 for details. 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.
Advertise your Office Space in the Nashville Bar Journal
CC 24 Nashville Bar Journal - March 2013
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SERVICE . . . QUALITY . . . COMMITMENT At IPSCO, SERVICE always comes first . . . you deserve it . . . and we will provide it. QUALITY is important to us. We represent many excellent insurance carriers, all with an emphasis on financial strength, longevity, credibility and value. We have provided innovative insurance products to Tennessee attorneys for over 60 years and have been the exclusive insurance plan administrator for the Nashville Bar Association since 2006. We have a proven track record of our ability to serve, the quality of our products and our commitment to NBA members. We know things are tough out there and we’re here to help. Give us a chance to show you our commitment — give us a call today.
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Elder Law Practice of Timothy L. Takacs
Diagnosis:
Elder Care Confusion Do your clients have the symptoms? Exhausted. Uncertain. Unprepared. Terrified. Exhausted: Frazzled by the competing demands of work, family and caregiving
Uncertain: No time to do the research needed to make good decisions about their loved ones’ future
Unprepared: No plan for the time when they can no longer manage their loved one’s care at home
Terrified: Worried that if long-term care outside the home is needed, the nursing home will take everything their loved one worked a lifetime to earn Elder Law Practice of Timothy L. Takacs has the antidote. It’s called a Life Care Plan. Loved ones get the care they need. Family assets are protected. Family caregivers enjoy compassionate support throughout the long-term care journey.
Don’t let your clients struggle alone. Refer them to Elder Law Practice of Timothy L. Takacs. For two decades, improving quality of life for elders and the families who love and care for them has been our primary focus. We can help your clients, too.
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