Nashville Bar Journal | May 2013 by Nashville Bar Association

Nashville Bar Journal

May 2013 - VOL 13, NO. 4

.................................................................................................................................

Law Day 2013 Realizing the Dream: EQUALITY for ALL

.................................................................................................................................

The 28th Amendment

Rep. Jim Cooper ................................................................................................................................

Balancing Profits against the Greater Good: Benefit Corporations, B-Certified Corporations, and Low-Profit LLCs

Kelly Frey, Sr. & Kelly Frey, Jr. .................................................................................................................................

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

A Monthly Publication of the Nashville Bar Association

Articles 6 Balancing Profits against the Greater ........... Good: Benefit Corporations, B-Certified .....

Departments

2 4

Corporations, and Low-Profit LLCs Kelly Frey, Sr. & Kelly Frey, Jr.

Law Day 2013

10 17

Local Stonewall Bar Association Anxiously Awaits Decisions On Marriage Equality

CENTER SECTION

Law Day Registration Form

CONTINUING LEGAL EDUCATION

Columns

Communique • Memorial Service • Ode to Otha • Golf Tournament • Legal Aid Society Campaign • Upcoming Events

The 28th Amendment

Rep. Jim Cooper

Sam Felker

From the President

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

InProfile: Sandy Garrett

......................................................

Bart Pickett

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 May 9 - 3:30 PM NBA Board Meeting

May 14 - 11:30 AM L.A.W. Meeting

May 23 - 3:30 PM Finance Committee Meeting

May 9 - 4:30 PM o NBA Happy Hour

May 16 - 11 AM CLE Committee Meeting

May 23 - 4:30 PM Executive Committee Meeting

May 13 - 11:30 AM Probate Committee Meeting

May 21 - 12 PM Ethics Committee Meeting

May 27 NBA Office Closed - Memorial Day

May 14 - 7:30 AM Solo/Small Firm Committee Meeting

May 23 - 11 AM o NBA Memorial Service

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 Coarsening of the Profession 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

Nashville Bar Journal - May 2013

It grieves me to observe that the practice of law in the United States has experienced a contagion of incivility. By comparison, 50 years ago the practice of law included an unwritten code of courteous behavior and good manners that was almost universally accepted by that earlier generation of lawyers. It is undoubtedly the case that incivility in the practice of law echoes what we see as a general decline in decorum and manners and an increase in coarseness and bullying across our nation. While rude and boorish behavior has become more acceptable generally, one would hope that the profession of law would be exempt from such a decline. But it is not. I suspect all of us at one time or another have experienced rudeness, sharp practices, attempts at intimidation, invective, mockery, and profanity from other lawyers. And it is not simply a plague that is relegated to the large cities in our country. Lawyers in Nashville have seen their fair share of this type of churlish behavior. What do lawyers who engage in “Rambo” lawyering seek to achieve other than to make life as miserable as possible for that lawyer’s opponent? Is it likely to intimidate the opposing lawyer into making bad decisions? Is it the type of behavior that will impress the judge hearing the case? Does it advance in any meaningful way the interests of the Rambo lawyer’s client? Does it, as Abraham Lincoln observed, bring peace? I am convinced that it does none of these things except to raise the misery index associated with the practice of law. So why do lawyers engage in these questionably successful tactics? For newly minted lawyers, the law school experience can be seen as fostering a decline in civil behavior. The pressures of competition lead to antagonistic and even destructive behavior. And, of course, law students are reminded again and again that the practice of law is innately adversarial. After law school, the legal profession, supported by the Code of Professional Conduct, expects lawyers to represent their clients zealously. Unfortunately, this expectation provides a superficial justification to hostile and obstructionist conduct by a lawyer. Admittedly, the line between zealous lawyering and obstreperous behavior is not easily drawn, and the truth is that a reasonable interpretation of zealousness includes behavior that may be viewed as aggressive, combative, and antagonistic. Of course, I believe that most lawyers refuse to descend into uncivil conduct. However, it is important to appreciate that even lawyers who seek to be civil and courteous are often pushed by their clients to assert unsupportable claims, to be hostile and rude to opposing counsel, and to be excessively aggressive. When a client takes such a position, the lawyer must educate the client as to the fact that such behaviors will probably do a disservice to the client and will not advance the client’s interests in any meaningful way. This often requires courageous behavior and a deft touch in convincing the client that an overly aggressive, or Rambo type behavior, will often alienate the opposing counsel as well as the judge hearing the case, make settlement more difficult, and probably ramp up the rancor on both sides. So how do we deal with the incivility existing within the Nashville legal community? For starters, we must admit that some lawyers, hopefully very few, because of the way they are hardwired, will continue to be rude and discourteous. But I believe the rest of us can discipline ourselves to interact with decency, politeness and courtesy. A number of commentators have stated that lawyers must be encouraged to report instances of inappropriate conduct by other counsel. However, I surmise that most lawyers who are subject to a host of bad behaviors would be reluctant to report such except in the most egregious cases. And in the area of transactional law practice, to whom does someone report improper behavior? When the inappropriate conduct is in fact reported, it would be hoped that the court hearing the matter would uphold a high standard of conduct. Unfortunately, this may not always or even frequently be the case. In a notable decision the U.S. District Court

for the Southern District of New York ordered a New York litigator to pay $50,000 in sanctions for behavior that included a pre-suit letter threatening the prospective defendant with the “legal equivalent of a proctology exam.” The attorney also promised to tarnish the reputation of the defendant (who was a lawyer) if the claims were not settled before a complaint was filed. On appeal, however, the Second Circuit reversed the District Court’s holding, stating that the attorney’s behavior was not subject to sanctions. The most disappointing aspect of this Second Circuit decision was the Court’s conclusion that while much of the attorney’s behavior was “repugnant,” it is “reflective of a general decline in the decorum level of even polite public discourse.”1 To the contrary, one would hope that a court would conclude that the professionalism expected of a lawyer required a standard of behavior that was above the perceived indecorous behavior of the general population. My suggestion for dealing with this epidemic of incivility is to be sure that law schools teach and encourage the highest level of polite and respectful behavior among lawyers. State and local bar associations across the country, including the Nashville Bar Association, have passed civility codes. These codes are aspirational and seek the highest level of courtesy and professionalism in the practice of law. The NBA’s Lawyer’s Creed of Professionalism does this with eloquence, and I encourage all of you to read it again. We should never abandon the high ground. Indeed we, as professionals, should be the last bastion of defense against incivility among our ranks. 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? (Endnotes) 1 Revson v. Cinque & Cinque, 221 F.3d 71, 79 (2nd Cir. 2000).

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 - May 2013

communiqué

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

NBA Memorial Service

May 23, 2013 - Downtown Presbyterian Church The Nashville Bar Association's annual spring Memorial Service will be conducting its 105th service on Thursday, May 23, 2013, at the Downtown Presbyterian Church. The service begins at 11 a.m. There will be a reception immediately following the service in the church's Fellowship Hall. A project of the NBA's Historical Committee, the Memorial Service honors the memory of those Nashville lawyers and judges who passed away during the preceding 6-month period. Memorial resolutions, recounting the lives and legal careers of the deceased individuals, are prepared and then read at the service by friends and colleagues of the bench and bar. Family members and friends of the deceased are invited to attend. Attorneys to be HONORED:

Judge Shelton Hatcher, Jr. Richard Dance Tom Harris, Jr. Tom Ware

Houston Hagar Mary Schaffner Timothy Phillips Martin Simmons

Bill Ramsey’s Annual Ode to Otha Birthday Celebration

Bill Steltmeier, Jr. Charles Galbreath William Wommack

-Golden Oldies

Saturday June 1, 2013 @ 1711 Sweetbriar Avenue 2PM - 9PM - Bands begin at 3PM. Beer, Margaritas, Food & Live Music Clowns and Piñatas for the Kids Bands include: Bashful Mountain Broadcasters Sharde Thomas and the Rising Star Fife and Drum Band Chip Green The Reprimands Kenny Brown Blue Mother Tupelo Stacy Mitchhart Special Guests $30 donations @ door (Kids under 14 free) Proceeds benefit Second Harvest Food Bank ADA accommodations 4

Nashville Bar Journal - May 2013

Doug Berry correctly identified the individuals in the April 2013 Golden Oldies photo. Pictured are: Cissy Daughtry, Andy Shookhoff and Ben Cantrell

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

COMMITTEE INFORMATION n NBA NEWS

2013 NBA/NBF Golf Tournament

Presented By: Nashville Bar Association & Nashville Bar Foundation IS YOUR TEAM REGISTERED YET? The 2013 NBA/NBF Golf Tournament is set for Thursday, May 16, 2013, at the Vanderbilt Legends Club in Franklin, TN. Range balls will be available at Noon with a Shotgun start at 1 PM We will have a Cookout and Prizes at the conclusion of Play. There will be team prizes and individual contests (longest drive, longest putt, closest to pin, etc.) If you have any questions, you can contact Traci Hollandsworth at the NBA (242-9272 or traci. hollandsworth@nashvillebar.org Register online at www.nashvillebar.org

LEGAL AID SOCIETY & NASHVILLE PRO BONO LEADERSHIP CABINET The following firms each give $400 per attorney to the Campaign for Equal Justice benefitting the Legal Aid Society and Nashville Pro Bono Program Adams and Reese LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Barrett Johnston, LLC Bass, Berry & Sims PLC Bone McAllester Norton PLLC Bradley Arant Boult Cummings LLP Burr & Forman LLP Butler, Snow, O’Mara, Stevens & Cannada, PLLC Corley Henard Lyle Levy & Langford PLC Cornelius & Collins, LLP Dickinson Wright PLLC Dodson Parker Behm & Capparella, PC Frost Brown Todd, LLC Garfinkle, McLemore & Young, PLLC Gullett, Sanford, Robinson & Martin, PLLC Harwell Howard Hyne Gabbert & Manner, P.C. Holton Blackstone & Mayberry The Jones Law Group, PLLC Kinnard, Clayton & Beveridge Leader, Bulso & Nolan PLC

Upcoming Events: NBA/NBF Golf Tournament Thursday, May 16, 2013 Vanderbilt Legends Club - Franklin, TN.

Those in BOLD are new Manier & Herod *denotes a Williamson County firm Phillip Miller & Associates Italics means member in the past but not Norris & Norris PLC in 2012 Law Office of Rachel Odom, LLC Rothschild & Ausbrooks, PLLC Salas Law Group PLLC Sherrard & Roe, PLC Stites & Harbison PLLC The Swafford Law Firm* Taylor, Pigue, Marchetti & Blair, PLLC Terry & Gore Thrailkill Harris Wood & Boswell, PLC* Trauger & Tuke Tune, Entrekin & White, P.C. Walker, Tipps & Malone PLC Waller Lansden Dortch & Davis, LLP Weatherly, McNally & Dixon, PLC Wiseman Ashworth Law Group PLC Wyatt, Tarrant & Combs, LLP

NBA Memorial Service May 23 - 11 AM Downtown Presbyterian Church

Reception immediately following the service in the church's Fellowship Hall

Bill Ramsey’s Annual Ode to Otha Birthday Celebration June 1, 2013 @ 1711 Sweetbriar Avenue 2PM - 9PM - Bands begin at 3PM. June 27, 2013 The NBA YLD is headed to the Sounds game to enjoy food, drinks, and baseball on the Miller Lite Porch.

Nashville Bar Journal - May 2013

Feature

Balancing Profits against the Greater Good: Benefit Corporations, B-Certified Corporations, and Low-Profit LLCs by:

Kelly Frey, Sr. & Kelly Frey, Jr.

In the past, business entities were traditionally limited to two principle types: for-profit and not-for-profit companies. For-profit entities (through their directors) owe a fiduciary duty to owners to generate profits and maximize the asset value of the entity. In contract, not-for-profit entities must forego profits, but instead focus on specific altruistic goals. Recently, however, this binary choice has been augmented with more flexible legal forms that provide opportunities for new mission-driven companies and socially conscious entrepreneurs. Beginning in 2008, states began adopting legislation to recognize Benefit Corporations (B Corps) and Low-Profit Limited Liability Companies (L3Cs) as legal forms that allow for-profit enterprises to consider “triple bottom line” accountability in decision-making. Using triple bottom line accountability means that B-Corps and L3Cs can focus on benefits to society and/or the environment, as well as economic return to owners in decision-making. While the concept of triple bottom line accountability has been discussed since the mid-1990s,1 there is a trend to recognize, by statute and certification, the fundamental shift in fiduciary duties such accountability creates. As of publication, twelve states have passed B-Corp legislation and nine states have passed L3C legislation.2 Additionally, a new process exists to certify any for-profit entity motivated by returns other than just economics (B-Certification). Benefit Corporations (B Corps) States that have adopted B Corp legislation have largely based their B Corp statutes on model legislation (the “Model B Corp Act” or the “Model Act”) – but to varying degrees.3 Under the statutes enacted to date, a corporation becomes a B Corp by adopting charter provisions that compel the corporation to create a “material positive impact on society and the environment” (a “general public

Nashville Bar Journal - May 2013

benefit”)4 and consider the interests of non-shareholder “corporate constituencies” 5 in addition to the interests of shareholders. The intent expressed in the Model Act (and state B Corp enactments to date) is for B Corps to assume specific responsibilities to society not shared by ordinary forprofit business corporations.6 The assumption of such responsibilities redefines the fiduciary duty of directors, in that it requires directors to consider nonfinancial interests and non-shareholder constituencies when making decisions.7 But the Model B Corp Act and state statutes generally provide little guidance as to the scope of this expanded fiduciary duties imposed upon corporate directors and management. Also, some of the statutes decline to address the issue of party standing to enforce this expanded duty. And perhaps most surprisingly, the statutes currently in effect provide little guidance to directors when the interests of shareholders are most likely to conflict with those of other benefit constituencies. States generally enact the Model B Corp Act by amendment to their current business corporation act, adding four new subchapters. These new subchapters cover the process of becoming a B Corp (by statement in or amendment to the articles of incorporation), the meaning of benefit purposes, the standard of accountability for officers and directors (adding parties/constituencies to whom directors owe, or permissively may owe, a duty of care beyond the owners of the entity), and the added reporting requirements to assure transparency.8 Perhaps most importantly from a legal perspective, the Model B Corp Act explicitly states that the consideration of nonshareholder interests does not violate a director’s duty of care to shareholders.9

B Certification In addition to new state statutes providing legal recognition to B Corps, there is a certification process for any corporation that chooses to consider non-shareholder interests (B-Certified Corporations or B-Certification). This certification process does not change the legal status of the corporation or the legal duties of the directors of the corporation, but rather rates the corporation on its inclusion of non-shareholder/non-financial elements in operations and decision-making. The certification program is administered by B Lab.10 The stated mission of B Lab is to (1) certify and support corporations who achieve a minimum score on the B Ratings System and expand the responsibilities of their corporation to include consideration of the interests of employees, community, and environment; and (2) build mission-aligned capital markets and tax, procurement, and investment incentives for B-Certified corporations.11 Acceptance into and continued participation in the B-Certification program are at the sole discretion of B Lab and its Board of Directors.12 The crux of the B-Certification designation is an entity’s commitment that a B-Certified company’s management must consider the interests of employees, the community, and the environment in all corporate decision-making. Benefit Corporations and B-Certified corporations are often confused. Both are sometimes called B Corps. B-Certified corporations have gone through the B Lab certification process. A Benefit Corporation is a legal entity administered by the state of the entity’s incorporation – such corporations do not need to be certified by B Lab. Recognizing that entities domiciled in states that have not passed B Corp legislation could face challenges in reconciling adherence to the goal of B-Certification, B Lab states that “[d]ecisions by the board

of directors, managing members or general partners of [B-Certified] Corporations will be evaluated pursuant to standards of reasonableness, good faith and fair dealing within the relevant jurisdictions of organization.”13 In Tennessee, while corporations can add limiting language to their articles of incorporation consistent with B Lab principles, such language is merely an indication of intent to (and public notice to potential investors that the company will) consider non-economic matters in corporate decision-making and operations, the effect of which on the fiduciary duties of directors still being in question. Low-Profit Limited Liability Companies (L3Cs) Limited Liability Companies (LLCs) are statutory entities that allow owners to limit their personal liability while still providing for taxation as a partnership (i.e., favorable “pass-through” income tax treatment to the owner/member of the LLC). As of April, 2013 nine states have also adopted variations on their classic LLC statutes that allow for Low-Profit Limited Liability Companies (L3Cs).14 L3Cs have the same legal and tax characteristics as LLCs, but are specifically organized for one or more charitable or educational purposes (within the meaning of the Internal Revenue Code “IRC”).15 Most of the statutes require that the L3C must (i) significantly further a charitable or educational purpose and would not be formed except for that purpose, (ii) operate so that income production or asset appreciation is not a significant factor, and (iii) not participate in political or legislative activities. The charitable or educational purpose is usually defined in terms of “mission-driven” objectives of the L3C. L3Cs can provide a modest return to investors and accumulate reasonable asset value. And, like B Corps, L3Cs have missions/constituencies beyond just the economic incentives of their shareholders/ members. But perhaps the most useful

distinction of an L3C is that it can utilize an operating agreement executed by its members to essentially create a contractual agreement between the members as to the non-economic purposes of the L3C (which contractual commitment is missing in a B Corp). This should, conceptually, reduce the exposure of directors/managers for any decision-making that is not primarily motivated by financial returns. L3Cs are specifically structured so that they can receive Program Related Investments (PRIs) from foundations while minimizing the risk of jeopardizing the foundations’ tax-exempt status.16 Foundations are typically required to distribute 5% of their average net assets in support of their tax-exempt purposes. Outright distribution of monies by foundations in the form of charitable contributions reduces the net assets of the foundation (which can only then survive by making other investments to replenish the contributions). However through PRIs (in the form of loans, loan guaranties, lines of credit, or equity investments) a foundation can provide funds in support of taxexempt purposes while still preserving net assets (providing a “multiplier effect” for those net assets through recycling monies granted through PRIs that are subsequently returned to the foundation via a PRI). PRIs must (i) have a primary purpose to accomplish a foundation charitable purpose, (ii) not have as a significant purpose the production of income or appreciation of asset value, and (iii) not support political or legislative – all of which are consistent with the statutory requirements of L3Cs. Unfortunately, most foundations seek further assurances from a L3C with respect to use of the funds granted and require legal authority that any specific grant will not jeopardize the tax status of the foundation (in the form of legal opinions, letter rulings from the Internal Continued on Page 14 

Nashville Bar Journal - May 2013

= Realizing EQUALITY

the Dream: for ALL Approximately 400 attorneys gathered at the Downtown Renaissance Hotel on May 1st to celebrate Law Day. Judge Frank Clement, who served as the Master of Ceremonies, welcomed the attendees and provided introductory remarks about this year’s Law Day theme, “Realizing the Dream: Equality For All.” Judge Clement thanked the firm sponsors who supported the program and SunTrust Bank who sponsored this special event designed to recognize and celebrate the positive actions and contributions of many good people in the Nashville legal community. Such recognition began with Lucinda Smith, Director of the Nashville Pro Bono Program, and continued with Gary Housepian, Legal Aid Society Executive Director, who thanked all those who participated so far in the Campaign for Equal Justice, including the contributions of the Leadership Cabinet firms (those giving $400 per attorney). Housepian shared some inspiring stories of how clients have been helped because of the generosity of donors and pro bono lawyers. Andrew Ross and Gil Schuette, Co-Chairs of the Young Lawyers Division Law Week Committee, then turned the focus to our youth, presenting awards to this year’s YLD Art & Essay winners. The elementary art awards were presented to: Giovanni Ghattas, 3rd Grade, St. Clement Christian Academy (First Place), Jermiah Saad, 4th Grade, St. Clement Christian Academy (Second Place), and Kailey Nicholson, 1st Grade, Christ the King (Third Place). The middle school art awards were presented to: Amari Meddling, 6th Grade, Meigs Magnet School (First Place), Filo Ghattas, 8th Grade, MLK, Jr. Magnet High School (Second Place), and Mina Wahib, 6th Grade, St. Clement Christian Academy (Third Place). This year’s high school essay awards were presented to: Dezire Bagada, 11th Grade, Stratford STEM Magnet School (First Place), Bushra Rahman, 10th Grade, MLK, Jr. Magnet High School (Second Place), and Layne Bleadingheiser, 11th Grade, Stratford STEM Magnet School (Third Place). Rita Roberts-Turner and John Park, Co-Chairs of the Minorities Opportunity Committee, then presented the Minority Opportunities Awards. These awards are part of the Nashville Bar Association’s Minority Opportunities Program and were created

NASHVILLE BAR ASSOCIATION LAW DAY LUNCHEON Wednesday, May 1, 2013 Downtown Renaissance Hotel Registration: 11:30 a.m. Lunch: 12 - 1 p.m. Speaker: Congressman Jim Cooper

in 1994 to honor law firms and organizations that have demonstrated a continued commitment to enhancing diversity and access to professional success. Elements of the program include hiring minority summer clerks and high school interns through the NBA programs, hiring minority lawyers, and developing joint ventures or making referrals to minority lawyers. The program includes three levels of recognition, depending on the level of participation: Leadership Award, Sponsorship Award, and Participant Award. Roberts-Turner and Park presented the following awards on behalf of the Minority Opportunities Committee: Leadership Awards—Baker Donelson Bearman Caldwell & Berkowitz, PC; Barrett Johnston, LLC; Bass Berry & Sims, PLC; Bone McAllester Norton, PLLC; Bradley Arant Boult Cummings, LLP; Metro Public Defender’s Office; Nashville Electric Service; Tennessee Attorney General’s Office; and Waller; Sponsorship Awards— Harwell Howard Hyne Gabbert & Manner, PC; Ogletree Deakins Nash Smoak & Stewart, PC; and Stites & Harbison, PLLC; Participant Awards— Asurion; Butler Snow O’Mara Stevens & Cannada, PLLC; Burr & Forman, LLP; Cornelius & Collins, LLP; Leitner Williams Dooley & Napolitan, PLLC; Littler Mendelson, PC; Neal & Harwell, PLC and Sherrard & Roe, PLC. NBA President, Tom Sherrard then introduced the keynote speaker, Congressman Jim Cooper, who delivered a powerful, and personal, speech on this year’s topic of “Realizing the Dream: Equality for All” The full transcript appears in this issue. Ed Yarbrough and Rachel Thomas presented the Norman Award to David Raybin. Initiated in 1996, the Jack Norman Award is named for the legendary Nashville defense lawyer, and is presented upon the recommendation of the Criminal Law and Criminal Justice Committee, at the discretion of the NBA Board, Continued on Page 20 

Nashville Bar Journal - May 2013

go ahead...

GO TOPLESS LIBERATE YOURSELF TODAY AT LEXUS OF NASHVILLE AND WWW.NASHVILLELEXUS.COM

Nashville Bar Journal - May 2013

Feature

2013 LAW DAY SPEECH

The 28th Amendment by:

Rep. Jim Cooper

Aretha Franklin was right: it’s all about R-E-S-P-E-C-T. Everyone deserves respect, even people we hate… especially people we hate. Disrespecting people is the quickest way to end a friendship or start a fight. Of course, we are not identical and not equally deserving of respect—even children sense that—but sensible adults choose to overlook some of our differences in order to get along. Lawyers call this non-discrimination; ministers call us God’s children. This is why statues of Justice are blindfolded—not to the facts of our case but to our social standing.1 We call this equality under the law. Today’s laws do not overlook all of our differences, of course, just those that are most likely to be used against us such as race, gender, ethnicity, national origin, religion, age, disability, and sexual orientation. We know the list.2 These are accidents of birth or aspects of ourselves that we cannot, or should not be forced to, change. As civilization advances, the list of protections grows. We need protection against blood libels like nigger, bitch, bastard, half-breed, wetback, geezer, cripple, faggot. Equality under the law is the slow triumph of hope over history.

the law doesn’t do any of these things; it means equal opportunity, not outcomes, but it can be painted to look like a Cadillac-driving welfare queen or a drug dealer with an Obamaphone.5 These are cruel distortions. When government programs are abused, blame elected officials and bureaucrats; don’t blame the poor. Many government programs are out of control, so let’s fix them, not trash our fellow citizens. Being respectful of others does not hurt you, or the U.S.6 Paying respect is not a tax. Tolerance and diversity make us stronger, not weaker. My proof? Two hundred and twenty-six years of American history. But before we get to that, let me tell you my family’s story. Personal My father was racist. Of course, he did not think of himself that way—no respectable person does. In his day, the Ku Klux Klan was racist. My father was an attorney who never considered wearing a white hood.

It is too early to declare victory. Many people have trouble letting go of their hatred long enough to be polite. Fortunately, overt racism, sexism, anti-Semitism, xenophobia, and homophobia are diminishing but, nevertheless, you and I both may be “accidental racists,” as Brad Paisley sings.3 Politicians are quick to exploit our fears by using code words, like starting a fire by dropping a match. Don’t act shocked; the purpose of politics is, after all, “the systematic organization of hatreds.”4

My dad could not be racist because, just like Atticus Finch in To Kill a Mockingbird, he had defended a black man accused of raping a white woman. During the 1934 trial in Shelbyville, a lynch mob formed, defeated the Tennessee National Guard, killed two bystanders and burned the courthouse to the ground.7 My father barely escaped with his life.

One political trick is to make equality look like the enemy. You do this by defining protection of the weak as either raising your taxes, ruining your neighborhood school, preventing your promotion, or coddling criminals. Of course, equality under

Nevertheless, my father remained a son of the South. He supported segregation and poll taxes. He opposed busing and intermarriage. In short, he was just like most of your parents and grandpar-

10 Nashville Bar Journal - May 2013

ents. That’s why they elected him governor of Tennessee three times. I sometimes wonder what my children will say about me because the definition of racism expands over time, covering more and more behavior and creating more thought crimes. They probably won’t be satisfied that I was state campaign chairman for Barack Obama if I fail a flip-chart test for subconscious racial bias. They will wonder why Nashville, a health care capital, allowed black and brown babies in our state to die at third-world rates. This isn’t just my problem. How do you feel when Middle Tennesseans question whether Islam is a religion, stop mosque construction, and try to fire a governor’s aide because she is Muslim?8 And what about the Sixth Circuit naming a local country club “invidiously discriminatory”?9 But we also have good qualities, of course. Remember the superhuman effort of Rev. Ed Sanders, a local AfricanAmerican minister? His church hosted the funeral for James Earl Ray, the assassin of Dr. Martin Luther King, Jr. His church turned respect into action when no other church, black or white, volunteered.10 There’s more to worry about than lingering racism; you and I are guilty of other prejudices, now or in the future. Future generations will ask tough questions, but St. Peter will be tougher. Did I really love my neighbor as myself? How about loving people outside my comfort zone like the people Jesus loved: beggars, prostitutes, lepers, tax collectors? The New Testament is very demanding. Gandhi once said that he might have converted to Christianity if he had ever met a practicing Christian.11 Historical The acid test of your support for equality under the law involves voting rights because voting offers power over the law. Should every adult citizen be allowed to vote for our lawmakers? For most of American history, the answer has been a resounding “No” due to fear that the wrong kind of citizen would vote. It’s one

thing to protect vulnerable populations; it’s another to share power with them. You might end up giving your country away. As a result of these fears, Americans still have no U.S. Constitutional right to vote.12 The United States was not founded on the idea of equality, either under or over the law. True, the Declaration of Independence had some high-flown rhetoric about “all men are created equal” but those words were aspirational, at best.13 Remember: the operative legal document, the Constitution, condoned slavery. Our earliest elections restricted voting to the landed gentry, offering slave owners a three-vote bonus for every five slaves. In fits and starts during the next 226 years, America has gradually allowed white men without property to vote, white men in new states, former male slaves, men of color, women, women of color, native Americans, poor people, Asian-Americans, non-English speakers, short-term residents, young adults, disabled people, and now even selected felons.14 Each advance has been a battle; once a war.15 Abraham Lincoln led the centuries-long process of redeeming America by giving meaning to the fine words of the Declaration. Lincoln first redeemed himself by overcoming his own racial doubts16 and by discarding notions of forced resettlement in Africa. Granting voting rights to African Americans was even more controversial than ending slavery but the South was too exhausted after the Civil War to mount armed resistance, so it resorted to Jim Crow laws.17 How many of you realize that, after the first ten amendments to the Constitution, the Bill of Rights, seven of the seventeen remaining amendments were necessary to expand voting rights?18 No other part of the original Constitution was so broken or so hard to fix. And more repairs are needed.

Here in Nashville, TSU student Wilma Rudolph could win gold medals at the 1960 Rome Olympics but she could not eat at a Nashville lunch counter, ride a Greyhound bus, go to the hospital, sleep in a motel, or use a women’s restroom.19 She lived under American apartheid. Until the Voting Rights Act of 1965, she had no assurance that she could vote, despite what the Constitution said. My father, a Harvard-trained lawyer, did nothing to help, just like many members of the Bar. John Lewis, who attended American Baptist College and Fisk University during the same years, learned civil disobedience so well that he became a civil rights hero and, later, a member of Congress.20 John still knows how to face down harassment. I was standing near him this year at President Obama’s Second Inaugural when two Republican colleagues amused themselves with “birther” jokes. John did not dignify their insults with a response. Politics Although today almost every American can vote, tens of millions of us don’t show up for elections. An additional 51 million Americans are not even counted as missing because they are not registered to vote.21 Many of you think that you are regular voters but you are probably forgetting all the elections you’ve missed. Your absence is public record.22 Voting has increased from roughly 6% of the population during the American Revolution to roughly 60% today—the lowest of any advanced democracy—and that’s during high-turnout presidential elections.23 Did the Freedom Riders risk their lives to empower a maximum of 60% of voters? That fraction is hauntingly close to the 3/5 treatment of slaves in the original Constitution. Do we even have majority rule in America when no U.S. candidate has ever received majority support of all the adults whom he or she represented?24 Continued on Page 13 

Nashville Bar Journal - May 2013

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

B il l R a

eal msey, N

& Ha

ll, rwe

MONTH

a PLC

lip hil

n pto

o icF

ti ul

Cool Apps from Bill & Phil

While Phil is gloating over his new Samsung Galaxy S4 smartphone (review to come) and Bill continues to sing the praises of his Samsung Galaxy Note tablet; we both are daily discovering cool new apps that make our mobile digital life so much fun, productive, and intriguing. Here are some apps that either (a) we can’t live without; (b) we think are just fun to play with; or (c) we found so odd that we just couldn’t resist.

This free app provides useful travel information for an entire day of travel in a very intuitive interface. Real-time flight status info, destination weather conditions, airport layouts including restaurant info, and even last-minute rental car reservations are conveniently available in this handy app (available on Android, iOS, and Windows platforms)

•

Evernote(Free Version)—Not new, this app (available on just about any platform) is killer. With Evernote you can basically create a very useful, cloud-based filing system for everything from individual notes, web clippings, important e-mail and documents, travel itineraries, and the list goes on. With Evernote’s acquisition of Penultimate last year, the integration between these two popular apps has been turbo-charged. We really like the idea of taking hand-written notes on our tablet, having sync automatically with our Evernote account, and then (here’s the kicker) having the app basically transform our handwriting into searchable text. No wonder Evernote/ Penultimate is at the top of our app list.

•

E-Transcript(Free)-This excellent app from West (Thomson Reuters) is a portable e-transcript viewer for the iPhone or iPad. You can use it to review transcripts that are in the popular E-Transcript format (PTX file extension). You can open the e-transcript from an e-mail attachment or via Dropbox. The app allows you to execute word searches, add notes and highlighting, and even share the transcript via e-mail. It also provides nice integration with West’s Case Notebook application as well. Even in its stand-alone free version, however, E-Transcript is an incredible way to review depo transcripts on your mobile iOS device.

•

Hipmunk(Free)- Planning a travel itinerary can be tedious and decidedly not fun using traditional webbased travel sites. We really enjoy the Hipmunk model of rating flights on a unique “agony” scale metric. Simply put in your departure/arrival cities and your flight dates. Hipmunk goes to work analyzing the voluminous options and then presents them in a very user-friendly manner where the least “agonizing” flights (based on departure/ arrival times, layovers, flight duration, and cost) appear at the top of the list.

•

Dark Sky ($3.99)-Bill really likes this up-to-theminute, unique weather prediction app. Using your device’s GPS, the app gives a customized weather outlook for your precise location, even predicting weather changes within the hour. Phil contends that sticking one’s head out the window is a better way to determine current weather conditions; however, Bill digs the very cool interface of Dark Sky and really gets a kick of being the first one to warn passersby of approaching rain in the next 5 minutes.

•

GateGuru(Free)-You might can tell that we are partial to travel-related apps as the Bill & Phil Show has taken us from the West Coast to New England over the past few months. GateGuru is certainly a frequent flyer’s friend.

12 Nashville Bar Journal - May 2013

See you next month, —Bill & Phil

The 28th Amendment Continued from page 11

One explanation for America’s low voter turnout is apathy, which may imply consent. That’s certainly what incumbents like me want to believe, that a majority of Americans think the U.S. is on the right track so there’s no need to vote. Of course, opinion polls indicate the opposite.25 So why don’t people vote to throw the bums out? One answer is that voting is a nuisance. There are 13,000 voting districts in America, each with its own rules, and 110,000 precincts.26 Instead of being as quick and easy as shopping on Amazon. com, voting requires registration months in advance27 and then waiting in line on exactly the right day at exactly the right location, a makeshift, pop-up DMV. Error rates in elections are high—and there are no receipts. You have to trust a system run by the most partisan people in America, local election commissions. A great deal of underground legal thought involves ways of lowering voter turnout, not raising it. You might think I am exaggerating but election abuses have occurred here in Nashville as recently as last year. Read the new report of the State Election Commission.28 For example, our local election commission paid almost $800,000 for voting software that “pre-selected” every primary voter for the Republican Party, automatically turning Democrats into Republicans.29 People are shocked that this could happen anywhere in America, much less in Nashville. As a political strategy, voter suppression laws like overly strict voter ID probably backfired. Evidence from the 2012 election indicates that minorities and students voted at higher rates because they were offended by the new rules,30 while surprisingly large numbers of seniors, likely Republican voters, were discouraged from voting. Nevertheless, Republicans still like strict voter ID laws because they anger Democrats, not because they work.

Political Theory The idea of easier voting scares many of today’s conservatives.31 For example, columnist George Will believes that federalizing voter registration or, even worse, mandating voting, would help too many citizens vote.32 The father of modern American conservatism, William F. Buckley, Jr., had a different view. He famously said that he’d rather be governed by the first 2,000 names in the Boston telephone book than by the faculty at Harvard University.33 Unfortunately, Buckley’s brand of conservatism is out of fashion today. His successors think that empowering average citizens is dangerous. As the poem on the Statue of Liberty says, “Give us your tired, your poor, your huddled masses... your wretched refuse….”34 Does this sound like the recruitment policy of the greatest nation on earth or a plan to recycle garbage? We are a nation of immigrants and descendants of immigrants, people who had reason to leave their old country, people who are diamonds in the rough. Here in America we have created a melting pot that is the envy of the world. To say we are a mongrel, middle-class nation is a compliment, not a criticism. Why not encourage every one of us to vote? If you’ve seen the movie “42,” today’s elites can get as angry as the old Brooklyn Dodgers when Jackie Robinson joined the team. If, like even PeeWee Reece, you are feeling disadvantaged as a white male, realize, for example, that you have six years longer to complain, six more years of life expectancy,35 perhaps because you were spared a life of discrimination and self-doubt. If you think that minorities get better treatment, trade places for a day. You will quickly ask for your old life back and start counting your blessings. Did you know, for example—since today is college decision day, that white males get preferential treatment in college and law school admissions over women and over Asian- and Jewish-Americans?36 How do you feel about affirmative action when

you are receiving it? From this angle, life in America turns out to be, not a zero-sum game, but a pretty darn good deal. Conclusion: The 28th Amendment The federal government has done everything possible to help states improve elections and voter turnout during the last several decades.37 We have spent billions of dollars to encourage states to streamline voter registration, buy better voting machines, shorten lines at the polls, and produce more accurate, timely results. Despite all this effort, we have failed. It’s as if states have a deliberate policy to keep most Americans from voting and the feds are powerless to help.38 If you believe that more citizens should vote, we need major legal changes. One idea is mandating voting,39 but I believe that coercion would backfire. America has a genius for volunteerism; Tennessee in particular. We could also nudge people toward voting by penalizing people who fail to show up at the polls (as in Australia) or rewarding those who do.40 That would be intrusive and probably very expensive. Or, we could simply clear out the obstacles to voting. My preference is to clear out the obstacles. Under my proposal, for the first time in our history, Americans would have an explicit Constitutional right to vote.41 My text for the 28th Amendment could not be simpler. The right of adult citizens of the United States to vote shall not be denied or abridged by the United States or any State. This proposed amendment bans voter suppression, leaving it up to Congress and to federal judges to define abridgement.42 Any future restriction on voting would have to survive “strict scrutiny” by the judiciary.43 Continued on Page 18 

Nashville Bar Journal - May 2013

Balancing Profits against the Greater Good: Benefit Corporations, B-Certified Corporations, and Low-Profit LLCs Continued from page 7

Revenue Service, etc.). Recent federal legislation has been proposed to reduce these complexities.17

(Endnotes) SustainAbility & UNEP, Trust Us: The Global Reporters 2002 Survey of Corporate Sustainability Reporting, at 4 (2002); John Elkington, Cannibals With Forks: The Triple Bottom Line of 21st Century Business ( New Society Publishers 1998). 1

For current status of B-Corp legislation, see generally http://www.bcorporation.net/whatare-b-corps/legislation. For current status of L3C legislation, see generally http://www. americansforcommunitydevelopment.org/laws.html .

Summary Socially conscious entrepreneurs and current companies desiring to attract socially conscious investors, customers, and partners now have a variety of choices with respect to form of entity and manner of operation. Traditional corporations and LLCs can amend their organizational documents to expressly provide for considerations of non-financial elements in decision-making. Corporations can also go through the B-Certification process as evidence of actual compliance with, rather than mere aspiration to, such altruism. In states that have adopted B Corp or L3C legislation, there is now statutory authority to assure directors/managers that they will not be held accountable with respect to their fiduciary duties only for return on investment to, or asset valuation for, owners and can consider a broad spectrum of constituencies in their decision-making. The end result appears to be a growing trend among the states to adopt more flexible approaches that permit, but are not constrained, by profit motivation—a trend that provides a freer market economy within which the desire to profit is balanced with the desire to serve the common good. 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. Kelly L. Frey, II is an associate at the Boston office of Mintz Levin Cohn Ferris Glovsky and Popeo PC. He can be reached at KLFrey@ mintz.com or 617-348-1827. The authors acknowledge the assistance of Michael L. Powell, Of Counsel in the Washington, DC office of Dickinson Wright PLLC in preparation of this article.

14 Nashville Bar Journal - May 2013

For example, the state statutes enacted to date take a variety of approaches to the fiduciary duties of directors in a takeover context, which duty is typically to assure the best return on investment to shareholders.

4 See, e.g., Haw. Rev. Stat. § 420D-5(a); Md. Code Ann., Corps. & Ass’ns §§ 5-6C-01, 5-6C06; N.J. Stat. Ann. §§ 14A:18-1, 14A:18-5; Vt. Stat. Ann. tit. 11A,§§ 21.03, 21.08; Va. Code Ann. § 13.1-787(A); N.Y. S.B. 79-A § 1706(a).

Corporate constituencies are listed in a separate section of the statutes that addresses the duties of directors. In addition to shareholders, these groups may include employees of the B Corp and its suppliers, customers of the B Corp, communities in which its facilities are located, and “the local and global environment.” Md. Code Ann., Corps. & Ass’ns § 5-6C-07(a)(1). See also Haw. Rev. Stat. § 420D-5(b) (setting forth the same list of examples).); Vt. Stat. Ann. tit. 11A, § 21.09(a)(1) (same); Va. Code Ann. § 13.1-788(A) (same); N.Y. S.B. 79-A § 1707(a) (same). 5

See, e.g., Model B Corp Act § 3301 cmt. 1 (such additional responsibilities being enforceable as a result of amendments to the corporate charter).

There are currently over thirty states that have corporate constituency statutes, which allow directors to consider the interests of non-shareholders. However, in the other states which lack such statutes, directors are still faced with their so-called Revlon duty to obtain the maximize economic return (specifically with respect to change of ownership, but generally with respect to maximizing asset and return on investment to shareholders) regardless of the impact on nonfinancial interests.

See Model B Corp Act § 3321(a)(1)(listing employees of the B Corp and its suppliers, customers of the B Corp, the community in which the B Corps operations are located, and the environment, together with the corporation itself and its shareholders as groups whose interests shall be considered by the directors); § 3321(a)(3)(stating that directors “shall not be required to give priority to the interests of any particular person or group” – including shareholders – over those of any other person or group unless otherwise provided in the corporate charter (emphasis added)).

Id. § 3321(b)(1) (noting that the consideration of non-shareholder interests “shall not constitute a violation” of the ordinary standard of care). See also 15 Pa. Cons. Stat. Ann. § 1712 (describing the duty of care).

B Lab, http://www.bcorporation.net/.

B Lab, Make it Official, http://www.bcorporation.net/become-a-b-corp/how-to-become-ab-corp/make-it-official (provides links to Term Sheets). 11

Id.

Id. (emphasis added).

See http://www.intersectorl3c.com/l3c_tally.html for current states and number of L3Cs in existence. 14

Specifically, 26 U.S.C. § 170(c)(2)(B), defining charitable contributions.

See I.R.C. § 4944(c), defining the structure of a tax-exempt foundation, and I.R.C. § 170(c) (2)(B), defining the types of activities the foundation can support to sustain that tax-exempt status. 16

Philanthropic Facilitation Act of 2011. See generally Council on Foundations, Public Policy, Legislative Update, http://www.cof.org/templates/311.cfm?ItemNumber=18426&navItemNu mber=16117.

Nashville Bar Journal - May 2013

In Profile

Hail to the Chief: Introducing Sandy Garrett by:

Bart Pickett

The Board of Professional Responsibility (BPR) has a way of causing trepidation in even the most ethical lawyer. I could not help feeling a little nervous as I waited to the meet the BPR’s newest chief disciplinary counsel in the waiting room of a nondescript glass building in Brentwood’s Maryland Farms. My hesitation turned out to be completely misplaced. Sandy Garrett, an East Tennessee native, is as friendly and down-to-Earth as you could ask for. The congenial mother of two has earned her stripes at the BPR, having served there since 1992, under Lance Bracey. Garrett, a LaFollette native, graduated from the University of Tennessee in 1986. She moved to Nashville that same year to attend Vanderbilt University Law School and has not left Middle Tennessee since. Immediately out of law school Garrett began working for a nonprofit representing disabled children in IDEA litigation. She did this for a few years but ultimately found it to be an emotionally challenging job which led her to the BPR in October 1992. The Tennessee Supreme Court appointed Garrett to Chief Disciplinary Counsel in December 2012, to serve the roughly 21,000 lawyers licensed in Tennessee. She has found it to be a fascinating job during her short tenure thus far. This was a position that Garrett has always been interested in since she began at the BPR. She has loved working at the BPR and has continually found opportunities to keep doing what she loves while doing something different at the same time.

16 Nashville Bar Journal - May 2013

When Garrett began at the BPR, cases were generally assigned based on the geographic area and were handled from “cradle to grave.” When Nancy Jones became Chief Disciplinary Counsel in 2007, the case handling was divided into an investigation section and a litigation section. Garrett served as Deputy of the Litigation Section under Jones. Garrett has chosen to keep the two divisions. As Chief Disciplinary Counsel, Garrett does not keep an active case load. Her case load is small if at all. The largest part of her job is administration. She reviews every complaint that the BPR receives. The average monthly complaints in 2012 totaled 149. After reviewing the complaints, Garrett determines if a complaint should be opened. If a complaint is opened then an investigative counsel is assigned. Since taking starting her new position, Garrett has made it her goal to live up to the mission statement of the BPR: “To make lasting contributions to society – by assisting the legal profession to maintain high standards of skill and conduct, a commitment to the rules of professional conduct, and a desire to render useful and efficient legal services at affordable costs, in a manner which is accepted as decent behavior.” Garrett has chosen to emphasize the assistance to the legal profession.

One of her first actions in furtherance of that goal was to hire a receptionist. No longer does one have to suffer through an automated system. Garrett also has plans to create a new website to provide easier access and information to lawyers and the public. The Board also will be busy educating lawyers. The average number of CLE seminars/ workshops put on by the Board is 45 annually and Garrett wants to that trend continue. She also notes that they have actively worked with the Supreme Court as it prepares an overhaul of Supreme Court Rule 9. Once those changes happen, Garrett and her team will spend time educating the public. As for advice for lawyers to avoid problems, Garrett emphasizes the importance of communicating with your clients. When started at the Board over 20 years ago, the most common complaint was that a lawyer was not communicating with the client. That complaint still remains the number one problem today. A second trending problem has been trust account issues. Garrett encourages all lawyers to seek help from the Board if needed. Garrett says that her Deputy of the Investigative Section, Tom Vick, fields all ethics inquiries with her assistance when needed. They fielded over 4,000 such inquiries last year. Informal ethics inquiries are typically answered the same or next day. In addition to the Investigative and Litigation sections, the BPR is also made up of the Registration and Consumer Assistance Section. Garrett manages 30 staff members for the BPR. The Board of Professional Responsibility is located at 10 Cadillac Drive, Suite 220 Brentwood, Tennessee 37027. You can also reach them by calling (615) 361-7500 or online at www.tbpr. org. 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.

Local Stonewall Bar Association Anxiously Awaits Decisions On Marriage Equality by:

Sam Felker

When the U.S. Supreme Court recently heard oral arguments in two historic marriage equality cases, local Nashville attorneys in the Stonewall Bar Association, which advocates for gay and lesbian acceptance in the legal profession, were glued to their computer screens. “We followed the arguments in real time on websites that streamed tweets from the courtroom and then we switched to audio recordings that the Court immediately posted on its website following the hearings,” said Sam Felker, local attorney and president of the Stonewall group, “For two days we were totally immersed in the arguments and then the non-stop commentary on CNN, NPR and scholarly blogs.” On March 26 and 27, the Court heard arguments in Hollingsworth v. Perry and United States v. Windsor, the first Supreme Court cases ever to raise issues involving the constitutionality of same-sex marriage. The decisions will be announced at the end of June. “There is no way to predict from the arguments what the court will do with these cases,” Felker noted, “but we are cautiously optimistic for a good outcome in both cases.” Felker and his colleagues were frustrated that the Court spent so much of the time discussing legal standing, a central issue that could derail both cases. In the Perry case challenging the constitutionality of California’s Prop 8, the attorney general and the governor of California declined to appeal a lower court decision that struck down the voter initiative that revoked the right of same-sex couples to marry. The supporters of the initiative then sought to appeal, raising the question of whether those supporters have standing to appeal in federal court to defend the initiative. During the arguments, a majority of the justices seemed to seriously question their right to sue, and Justice Kennedy—considered a key swing vote in both cases—even interjected that maybe the court should not have taken the case and should dismiss it. If the Court does that, the lower court ruling will stand and same-sex marriage will be legal in California—something Felker says many LGBT legal scholars and activists would certainly hail as a victory. “A partial victory along those lines would mean that same-sex marriage is legal in the largest and most populous state in the Union and the right to marry right would be restored to millions of citizens. Such a decision would also and continue the momentum that has built up in the country in favor of marriage equality,” said Felker The issue of standing also dominated much of the argument and discussion in Windsor, involving a challenge to Section 3 of the federal Defense of Marriage Act, which provides that, for purposes of federal law and benefits, marriage is defined as a marriage between a man and a woman. “The standing question in that case is whether the House of Representative group has standing to defend the federal law which the Obama administration believes to be unconstitutional and refused to defend,” said Felker. Again, several of the justices expressed doubt that the case was properly before the court. “It is just frustrating that the case got this far and there is a fundamental unsettled question that could keep the court from reaching the important merits of the case,” Felker stated. “If the Windsor case is dismissed on standing, clearly Edith Windsor would win her estate tax battle with the IRS, but it is not clear what else would be settled since the Obama administration’s policy has been to enforce, but not defend, Section 3 of DOMA.” Apart from the standing issues, Felker and his fellow Stonewall members found several encouraging statements by the justices. “The court seemed to reject the major premise offered for denying same-sex marriage—that Continued on Page 20 

Nashville Bar Journal - May 2013

The 28th Amendment Continued from page 13

Lincoln told us that government was supposed to be “of the people, by the people and for the people.”44 Recognizing that everyone has something valuable to contribute to society will help us improve elections and society as a whole. Voting rights can turn equality-under-the-law into reality. One day, perhaps, our statues of Justice will not need a blindfold because everyone is respected. After the Tucson shooting of my dear colleague Gabby Giffords, PBS commentator Mark Shields said, “We saw a white, Catholic, Republican federal judge murdered on his way to greet a Democratic, woman member of Congress, who was his friend and was Jewish. Her life was saved initially by a twenty-year-old Mexican American gay college student… and eventually by a Korean American combat surgeon… And then it was all eulogized… by our African American president.”45

(Endnotes) “Lady Justice herself is often represented as blindfolded when she balances her scales. She cannot factor in people’s money, status, or power, and she cannot play favorites.” Stephen T. Asma, Against Fairness 15 (Univ. Chicago Press 2013). 1

See, e.g., Mack A. Player, Federal Law of Employment Discrimination in a Nutshell (West Publishing 2

6th ed. 2004).

Brad Paisley feat. L.L. Cool Jay, Accidental Racist, on Wheelhouse (Sony Nashville/Arista 2013). For the lyrics of the song, see http://www.azlyrics.com/lyrics/ bradpaisley/accidentalracist.html.

Henry Adams, The Education of Henry Adams (1907)(“Politics, as a practice, whatever its professions, had always been the systematic organization of hatreds, and Massachusetts politics had been as harsh as the climate.”)

President Ronald Reagan is often credited with creating the welfare queen story, and, more recently Tea Party activists have spread the Obamaphone story. Snopes, Phone Home (Oct. 1, 2012), http://www. snopes.com/politics/taxes/cellphone.asp.

See, e.g., Richard V. Reeves, Shame Is Not a FourLetter Word: Why liberals should embrace non-coercive moral regulation, N.Y. Times, Mar. 16, 2013.

The defendant’s name was E.K. Harris. For information regarding the 1934 riot, see “Watch Old Justice Burn,” an oral history project of Cascade High School, Bedford County, Tennessee, 1973, available in the Shelbyville, Tennessee, Public Library.

8 Chas Sisk, Anti-Muslim activists take aim at Haslam hire, The Tennessean, June 13, 2012.

Brandon Gee, Judges question Belle Meade Country Club membership after colleague’s reprimand, The Tennessean, Dec. 21, 2011. 9

Only in America. Only in America. n

Congressman Cooper thanks Ashley Shelton, J.D., Counsel in his congressional office, for her research assistance and helpful discussion of the issues involved in this speech. Useful general books on the topic of this speech are: J.R. Pole, The Pursuit of Equality in American History (U.C. Press, 1993, 2nd Ed. Revised and Extended); Robert William Fogel, The Fourth Great Awakening and the Future of Egalitarianism, (Univ. Chicago Press, 2000); Michael J. Sandel, Justice: What’s the Right Thing to Do? (Oxford, 2007); Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books, rev. ed. 2009); and George Rutherglen, Employment Discrimination, Law and Theory, 2011 Supplement (with John J. Donohue III) (Foundation Press, 2011).

18 Nashville Bar Journal - May 2013

10 For a marvelous commentary on this May 1998 funeral, see Bo Roberts, White People Too: No Exceptions, The Tennessean, Feb. 21, 2013. 11 Gandhi was not alone. Philosopher Bertrand Russell “generally thought that Christian virtue was too extreme—demanding charity for everyone, including one’s enemies. Confucian ethics, on the other hand, is more moderate and therefore more attainable. Instead of loving one’s enemies and treating everyone as equals, the Chinese person, according to Russell, is expected ‘to be respectful to his parents, kind to his children, generous to his poor relations, and courteous to all. These are not very difficult duties,’ Russell observes, ‘but most men actually fulfill them, and the result is perhaps better than that of our higher standard, from which most people fall short.” Asma, supra note 1, at 15. 12 There may be a right to vote under state constitutions, but there is no clear federal right to vote. George W. Bush et al. v. Albert Gore, 531 U.S. 98 (2000). The context of the quotation involves voting for presidential electors, a power which is held by state legislatures and may be delegated to the voters or reclaimed by the legislature. “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., art. II, §1. This is the source for the statement in McPherson v. Blacker,146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Blacker, 146 U.S. at 28-33. has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests

the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. Id. at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”)(quoting S. Rep. No. 395, 43d Cong., 1st Sess.). “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)(“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). 13 “’We hold these truths to be self-evident, that all men are endowed by their creator with inalienable rights.’ That’s a beautiful creed. America has never lived up to it.” Dr. Martin Luther King, Jr. as quoted in Jonathan Rieder, Dr. King’s Righteous Fury, N.Y Times, Apr.16, 2013. 14 The most comprehensive overview of expansion of the franchise in America is by Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books, rev. ed. 2009). Concerning the voting rights of felons, the NAACP is currently engaged in a public-relations campaign to allow the estimated 4.4 million convicted felons who have served their time the right to vote. 15 “In the time that has passed since our founding document was adopted, nothing has been more sharply disputed than our voting rights.” Victoria Bassetti, Electoral Dysfunction 6 (The New Press 2012).

See Eric Foner, The Emancipation of Abe Lincoln, N.Y. Times, Jan. 1, 2013. To see how far he had come, compare Lincoln’s own words in one of the famous Lincoln-Douglas debates, “I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races, that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And in as much as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position the negro should be denied everything. I do not understand that because I do not want a negro woman for a slave I must necessarily want her for a wife. My understanding is that I can just let her alone.” Abraham Lincoln, The Lincoln-Douglas Debates of 1858, Debate at Charleston, Ill.(Sept. 18, 1858), available at http://www.nps.gov/liho/historyculture/debates.htm. 16

“Between 1863 and 1870, fifteen northern states and territories rejected granting blacks the right to vote.” Bassetti, supra note 15, at 28 (emphasis added). 17

18 The seven Constitutional amendments expanding suffrage are: 15th Amendment – allowing former slaves to vote; the 17th Amendment – the right to vote for U.S. Senators directly instead of by state legislatures; 19th Amendment – the right for women to vote; the 23rd Amendment– right of D.C. residents to vote for president; the 24th Amendment – bans poll taxes; and the 26th Amendment – right of 18-year-olds to vote. Finally, the 14th Amendment anticipated the need to punish states that would prevent former slaves from voting. Section 2 reads, in part: “But when the right to vote at any election… is denied to any of the male inhabitants of such State… or in any way abridged… the basis of representation therein shall be reduced in the proportion of which the number of male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” U.S. Const. amend XIV, § 2.

David Maraniss, Rome 1960: The Summer Olympics that Stirred the World (Simon & Schuster 2008). 19

See John Lewis with Michael D’Orso, Walking with the Wind: A Memoir of the Movement (Simon & Schuster 1998). 20

See Bassetti, supra note 15, at xi.

Memo by Robin Alberts-Marigza on selected Nashville zipcodes (on file with author). 22

Bassetti, supra note 15, at 53-55.

Id. at 16.

Liz Marlantes, Congress less popular than Donald Trump, head lice…, Christian Sci. Monitor, Jan. 13, 2013, available at www.csmonitor.com/USA/ DC-Decoder/Decoder-Wire/2013/0109/Congressmore-unpopular-than-Donald-Trump-head-lice. 25

Bassetti, supra note 15, at 101; Tennessee Election Laws, 2011 Ed. (LexisNexis / Matthew Bender 26

2011)(reprinting T.C.A. Title 2, chapters 1-20).

27 “Today’s system of individualized, self-initiated voter registration was first created a century ago in an explicit effort to keep former slaves and new European immigrants from voting.” Michael Waldman, Playing Offense: An Aggressive Voting Rights Agenda, Democracy 13 (Spring 2013), available at http:// www.democracyjournal.org/28/playing-offense-anaggressive-voting-rights-agenda.php.

Michael Cass, Davidson election “marred”, The Tennessean, Apr. 26, 2013.

29 Brian Wilson, Election Commission reconsiders use of electronic poll books, The Tennessean, Sept. 13, 2012. Tennessee is one of several states known for not testing the election software it buys. Bassetti, supra note 15, at 137. 30 Assoc. Press, White apathy, energized black voters doomed GOP’s Romney in 2012 as black turnout hit highs, Apr. 12, 2013, updated Apr. 29, 2013, available at http://www.washingtonpost. com/politics/white-apathy-energized-black-votersdoomed-gops-romney-in-2012-as-black-turnouthit-highs/2013/04/26/93e63ac8-ae72-11e2-b2409ef3a72c67cc_story.html?tid=pm_politics_pop.

New classes of voters have rarely been welcomed. Existing voters often feel they are ceding power when other Americans come to the polls. These former elites believe that their votes will be diluted and diminished, resulting in their own decline as well as the downfall of America. Even groups that fought to win the right to vote have often resisted adding newer voters, preferring to pull up the ladder behind them.

George F. Will, Mountain Out of a Molehill, Wash. Post, Dec. 19, 2012.

See Wikiquote, William F. Buckley, Jr., http:// en.wikiquote.org/wiki/William_F._Buckley,_ Jr. (last modified Apr. 3, 2013)(“I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”)

34 Emma Lazarus, The New Colossus (1883). This poem is engraved on a plaque installed at the base of the Statue of Liberty in 1903. Wikipedia, The New Collosus, en.wikipedia.org/wiki/The_New_Colossus (last modified Apr. 9, 2013). 35 The life expectancy of a white male at birth was 76.1 years in 2008, versus 70.6 years for black males. National Center for Health Statistics, National Vital Statistics Report (Sept. 24, 2012), http://www.cdc. gov/nchs/data/nvsr/nvsr61/nvsr61_03.pdf.

Female undergraduates are now such a large share of the student population at colleges (around 60%) that colleges accept male students with lower grades and test scores than female applicants. The same is true for white students, male and female, over Asian and Jewish applicants with better credentials. 36

37 See, e.g., The National Voter Registration Act (“Motor Voter or NVRA”) of 1993, 42 U.S.C. §§ 1973gg et seq.; The Help America Vote Act (“HAVA”) of 2002, 42 U.S.C. §§ 15301 - 15545. The constitutionality of NVRA is currently challenged by the Supreme Court case of Arizona v. ITCA. The Court heard the oral arguments on March 18, 2013.

Political scientist Robert Dahl noted that “the shadow theory of democracy is that only some people are competent to rule [by voting].” Bassetti, supra note 15, at 57 (quoting Robert Dahl).

42 Congressional legislation on equality has not always followed a sensible course. For example, gender equity was included in the Civil Rights Act by opponents of black voting as a way to kill the legislation. The CRA passed Congress, despite the inclusion of women. The ban on age discrimination was originally only to protect people under 65 years of age, not over. And the Americans with Disabilities Act was crafted so poorly that it has been hollowed out by repeated Supreme Court decisions. See Rutherglen, supra note 1. Judge-made standards can evolve as lifestyles and technologies change. For example, Internet voting may come sooner than we think; Oregon already has mail-in ballots and very high voter participation; North Dakota has done away with voter registration entirely. States will still have an important role to play, just not an abusive role. My proposal will not produce national elections, or even uniform elections, but elections with fewer glitches and embarrassments, as well as the potential for increased voter participation. 43 For example, a state could still prevent felons from voting if that state’s requirement was supported by a compelling state interest and narrowly tailored to meet that interest. The same is true of other restrictions on voting such as mental incompetence. Federal judges would be the decision makers, a group more experienced with criminal sentencing and conservatorship than are partisan election commissions. 44 Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), available at http://www.abrahamlincolnonline. org/lincoln/speeches/gettysburg.htm. 45 The Bilerco Project, Great American Melting Pot (Jan. 18, 2011), http://www.bilerico.com/2011/01/ great_american_melting_pot.php (quoting Mark Shields).

39 For the first English-language book on the subject in 50 years, see Sarah Birch, Full Participation: A comparative study of compulsory voting (United Nations University Press 2009). See also Note, The Case for Compulsory Voting in the United States, 121 Harv. L. Rev. 591(2007) Peter Orszag, Make Voting Mandatory, June 19, 2012, http://www.bloomberg.com/ news/2012-06-19/voting-should-be-mandatory.html. 40 For various ways of encouraging citizens to change their behavior, see Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (Yale 2008). 41 See Keyssar, supra note 14, at 291-93, for former Rep. Jesse Jackson Jr.’s efforts to pass a Constitutional amendment creating a right to vote, beginning in 2001, after the 2000 presidential election and the Supreme Court’s controversial Bush v. Gore ruling. Jackson’s wording was as follows: “All citizens of the United States who are eighteen years of age or older shall have the right to vote in any public election held in the jurisdiction in which the citizen resides. The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.” See also Jamin B. Rasking, What’s Wrong with Bush v. Gore and Why We Need to Amend the Constitution to Ensure It Never Happens Again, 61 Md. L. Rev. (Oct. 22, 2012).

Nashville Bar Journal - May 2013

Local Stonewall Bar Association Anxiously Awaits Decisions On Marriage Equality

Continued from page 8

Continued from page 17

to criminal law practitioners who, like Jack Norman himself, demonstrate respect for the rights of all individuals in the criminal justice system, exhibit trial advocacy skills and judicial skills necessary to the pursuit of justice, demonstrate an abiding respect for the law and legal profession, maintain the highest standards of professional integrity and ethical conduct, and contribute to the improvement of the legal profession and the criminal justice system, including uncompensated or undercompensated representation of the accused.

marriage is intended for procreation,” observed Felker, “and Justice Kagan in particular took on this issue with a touch of humor that was refreshing—pointing out that it would clearly be unconstitutional to deny a 55-year old heterosexual the right to marry just because they can not procreate.” Also, in one particularly poignant moment, Justice Kennedy observed that there are 40,000 children in California being raised by same-sex couples and he asked why these children should not have the benefits of married parents. “My real heroes were the three women on the court—Justices Ginsberg, Sotomayor, and Kagan—because they relentlessly questioned appellants about the supposed rationale for denying same sex couples the right to marry and all the benefits that institution bestows upon them,” said Felker.

David Kozlowski presented the Liberty Bell Award to Andy Shookhoff. The Liberty Bell Award is given to an individual 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. Look for profile articles on our award winners in upcoming issues of the NBJ. n

Felker noted that many Supreme Court scholars are predicting narrow decisions in both cases. “But, at the same time at least four justices—Ginsburg, Breyer, Sotomayor, and Kagan—seemed ready to extend the right to marry to gay and lesbian couples. Everyone seems to agree the decisions hinge on Justice Kennedy,” said Felker, “and despite some of his rather negative comments during the arguments, we draw some comfort from the fact that he authored the only two Supreme Court decisions that extended rights for gays and lesbians—Romer v. Evans and Lawrence v. Texas.” No doubt, the Stonewall lawyers will be again gathered around their computer screens again in June when the decisions are announced. “We plan to either have a Champagne celebration or a beer bust to mend our wounds,” said Felker, “but I have a feeling we will be popping corks.” Sam Felker is a partner in the Nashville office of Bass, Berry & Sims.

20 Nashville Bar Journal - May 2013

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 - May 2013

Disclosure Thomas V. White has become a Fellow of the American College of Trial Lawyers. White is a Founding Partner in the firm of Tune, Entrekin & White and has been practicing law in the Nashville area for over 40 years. The newly inducted Fellow is an alumnus of the Vanderbilt University School of Law, 1972, and he is a Past President of the Nashville Bar Association. White is also a graduate of the inaugural class of Leadership Nashville, 1977. Phylanice Nashe has joined The Jones Law Group. Nashe has over 13 years of experience resolving complex claim issues for State Farm Insurance and will be specializing in personal injury and wrongful death cases in addition to other insurance litigation. Nashe is a graduate of Cleveland-Marshall College of Law and was admitted to the State Bar of Tennessee in 2008 after her relocation to Nashville in 2007. She is also a member of the Nashville Bar Association and Napier- Looby Bar Association. Nashe is an adjunct professor at Strayer University and a graduate of The Institute of Conflict Management at Lipscomb University with a special emphasis in mediation. Waller has added 16 new attorneys in their Nashville office. Mark Folk joins Waller as a partner with more than 25 years of experience. Folk focuses primarily on assisting healthcare providers as they establish new strategic partnerships, restructure lines of service and solidify capital for operations in response to the Affordable Care Act. Prior to joining Waller, Folk was partner and co-chair of the healthcare department for Partner Shutts & Bowen, LLP, in Fort Lauderdale, Fla. Folk earned his J.D. from Stanford Law School and his B.A., magna cum laude, from Harvard College. G. Tyson Bickley joins Waller as an associate. Bickely assists clients in a wide range of industries, including healthcare, practicing in the areas of mergers and acquisitions, joint ventures, venture capital financing and securities. Bickley earned his J.D. from the University of Georgia School of Law and his B.S., with honors, from University of Alabama. Brent Moreland joins Waller as an associate practicing in corporate matters, including 22 Nashville Bar Journal - May 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 mergers and acquisitions and securities. Moreland earned his J.D., with honors, from the University of Tennessee College of Law where he worked as the publications editor of Tennessee Journal of Law and Policy. Moreland also earned his B.S., magna cum laude, from University of Tennessee. Trevor Sava joined Waller as an associate in 2012 and has practiced in the areas of mergers and acquisitions, strategic business transactions and governance issues. Sava represents clients, ranging from public companies to startups, in the healthcare industry as well as manufacturing and technology industries. Prior to joining Waller, Sava was an associate at McDonald Hopkins, LLC, in Cleveland, Ohio. Sava earned his J.D. from Tulane University Law School/Harvard University Law, his M.B.A. from Case Western Reserve University, and his B.S., magna cum laude, from Auburn University. Lin Ye joins Waller as an associate, advising healthcare clients in mergers and acquisitions and joint ventures. Prior to joining Waller, Ye was an associate at Butler Snow/Miller & Martin, LLC, in Nashville, Tenn. Ye earned her J.D. from the University of Tennessee College of Law and her Bachelor of Law and Masters of Law from China University of Political Science and Law. Blake Roth joins Waller as an associate, practicing in the areas of commercial litigation, bankruptcy litigation and distressed debt for a variety of financial institutions. Previously, Roth was an associate at Duane Morris, LLP, in Philadelphia, Pa. Roth earned his J.D., cum laude, from the Earle Mack School of Law at Drexel University, and his B.A., magna cum laude, from University of Tennessee. Dustin Timblin joins Waller as an associate, assisting clients primarily in the healthcare industry in financing and bankruptcy matters. Prior to joining Waller, Timblin was an associate at Allen & Overy, LLP, in New York, N.Y. Timblin earned his J.D., with honors, from Vanderbilt University Law School, where he was associate editor of the Vanderbilt Law Review. Timblin earned his B.S., summa cum laude and as a member of the honors program, from Tennessee Technological University. Cory Brown joins Waller as an associate, assisting healthcare clients in regulatory compliance, including Federal

and State physician self-referral laws, Stark and anti-kickback laws and HIPAA. Prior to joining Waller, Brown was an associate at Rainey, Kizer, Reviere & Bell, PLC, in Memphis, Tenn. Brown earned his J.D., cum laude, from the Cecil C. Humphreys School of Law at University of Memphis, where he was a member of the Memphis Law Review editorial board and a recipient of Cecil C. Humphreys Law Fellowship. Brown earned his M.A. in linguistics from University of Memphis and his B.S. from University of Tennessee. Caitlyn W. Davie joins Waller as an associate, assisting healthcare clients with Medicare and Medicaid participation requirements, facility licensure requirements and federal and state anti-kickback and self referral laws. Davie also assists clients with regulatory aspects of healthcare mergers, syndications, joint ventures, divestitures and restructuring, Davie earned her J.D. from Vanderbilt University Law School, and her B.A., cum laude, from California State University, Fullerton. Mike Dreyfuss joins Waller as an associate and a member of the healthcare regulatory team. Dreyfuss’ practice focuses on healthcare transactions, state licensure, certification issues, Certificate of Need (CON) applications, as well as Medicare enrollment and reimbursement matters. Prior to joining Waller, Dreyfuss worked as an EMT and was a member of the U.S. Peace Corps. in Ghana, West Africa where he become a tribal sub-chief. Dreyfuss earned his J.D. from Vanderbilt University Law School, and his B.A. from James Madison University.Kevin Page joins Waller as an associate, focusing on Medicare and Medicaid billing and reimbursement, HIPAA privacy and security issues, and Stark and anti-kickback compliance. Page also assists healthcare clients in transactional matters, including mergers and acquisitions and joint ventures. Previously, Page was an associate at Wagner, Myers & Sanger, PC, in Knoxville, Tenn. Page earned his J.D., magna cum laude, from the University of Tennessee College of Law, and his B.S., summa cum laude, from Louisiana State University. David P. Wright joins Waller as an Of Counsel with the firm. With over a decade of experience in the real estate field, David assists clients in a variety of complex transactions, including leasing, acquisition, disposition, financing

and development. Previously, Wright was an associate at Wagner, Myers & Sanger, PC, in Knoxville, Tenn. Wright earned his J.D., cum laude, from the University of Tennessee College of Law, and his B.B.A. in banking and managerial finance, magna cum laude, from University of Mississippi. Lida Greist joins Waller as an associate in the real estate practice group. Prior to joining Waller, Greist was an associate at Lewis, King, Krieg & Waldrop, PC, in Knoxville, Tenn., as well as an assistant property manager at Carter and Associates in Atlanta, Ga. Greist earned her J.D. from the University of Tennessee College of Law and B.A., magna cum laude, from Kenyon College. Erin Hughes joins Waller as an associate, focusing on assisting healthcare companies in leasing and transactional matters. Prior to joining Waller, Hughes was an associate at Farris, Bobango, Branan, PLC, in Memphis, Tenn., and also worked real estate development. Hughes earned her J.D., magna cum laude, from the Cecil C. Humphreys School of Law at University of Memphis and B.S., magna cum laude, from University of Tennessee. Alexandra Lee joins Waller as an associate, representing clients at both the trial and appellate levels of state and federal courts in general litigation, labor and employment, government investigations and white collar matters. Prior to joining Waller, Lee represented clients in appeals to the Supreme Court of the United States and arbitrations, and managed lobbying efforts. Lee earned her J.D. from Harvard Law School, where she worked at the Harvard Negotiation Law and Review and BlackLetter Law Journal. She earned her B.A., magna cum laude, from Spelman College. Todd Hambidge joins Waller as an associate in the firm's litigation and dispute resolution practice. While working as a senior associate at Fulbright & Jaworski, LLP, in New York, N.Y., Hambidge was recognized by SuperLawyers as one of New York Metro's Rising Stars in 2011 and 2012. Hambidge earned his J.D., with honors, from Vanderbilt University Law School and his B.A., magna cum laude, from DePauw University.

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

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.

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

April 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.

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

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.

Andrew Caple-Shaw Law Office of Andrew Caple-Shaw Christina R. Davis Victoria E. Dutschmann Charles B. Griffith Law Offices of Charles B. Griffith Erin Hostetler Direct General Corporation Jonathan Wallace Irvin Lewis, King, Krieg & Waldrop , P.C.* Megan K. Jordan Courtney C. Karnes Phylanice A. Nashe The Jones Law Group, PLLC* Zachery D. Oswald Daniel C. Patten Miranda E. Todd Claire G. White * Belongs to a 100% Club firm Nashville Bar Journal - May 2013

Classifieds

Office Space Brentwood Office share with two established attorneys Wireless, Fax, Phone, Copy, Cable, Storage, Free Parking, Space for your administrative assistant. Chapple Building 5115 Maryland Way - $ 1000 per month, plus incidentals and expenses negotiable. Fore more information contact:: grant@gglassford.com or todd@roberttoddjacksonlaw.com. Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550. 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. 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. Parkway Towers Office Space to share with three established attorneys - Scan, Fax, Phone, Copy. Parkway Towers. For more information please contact nlemaster@wdtlaw.net.

Private Investigators and Process Servers King & King investigators can perform: Asset Investigations Background Checks Cheating Spouse Child Support Criminal Defense Domestic investigations

Certified, Licensed, and Insured Investigators www.kingandkingdetectiveagency.com Corey E. King, LPD | Mandy L. King, LPD 106 Columbia Ave Centerville, TN 37033 | 931-729-9709

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

www.nashvillebar.org Advertise your Office Space in the Nashville Bar Journal

CC 24 Nashville Bar Journal - May 2013

Employers:

Job Seekers:

Advertising: Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org

Locate and interview witnesses Missing Persons Process Serving Surveillance Witness interviews Workers Compensation Fraud Surveillance

•

Search for and quickly apply to great, relevant jobs

•

Place your job in front of our highly qualified members

•

Set up Job Alerts so you are immediately notified any time a job is posted that matches your skills or interests

•

Search our resume database of qualified candidates

•

Manage jobs and applicant activity right on our site

•

Limit applicants only to those who are qualified

•

Fill your jobs more quickly with great talent

•

Create an anonymous job seeker profile or upload your anonymous resume so employers can find you

•

Access job searching tools and tips

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.

IPSCO INSURANCE PLANNING & S E R V I C E C O M P A N Y, L L C Exclusive Insurance Plan Administrator for the Nashville Bar Association

INDIVIDUAL INSURANCE PLANS l EMPLOYEE BENEFITS l PROPERTY & CASUALTY COVERAGE 2301 21st Ave South l Nashville, TN 37212 l 615.460.1654 l 866.625.0630 l Lawyers@assoc-admin.com l IPSCOLawyers.com

Elder Law Practice of Timothy L. Takacs

Aging is inevitable The nursing home crisis is optional. All it takes is a Life Care Plan.

A Life Care Plan helps protect family assets, get the best possible care and create a plan of action for the future. Our skilled, experienced and compassionate professionals will empower your clients to protect elderly loved ones’ financial rights, legal rights, eligibility for public benefits, quality of life and more —now and in the future.

Help your clients avoid the crisis. 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.

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