Nashville Bar Journal | February 2016 by Nashville Bar Association

Nashville Bar Journal FEBRUARY 2016 • VOL 16 • NO. 1

Is Your Potential Client a Nigerian King? David Anthony

Workplace Investigations by Outside Counsel Mark Travis

Hiring a Key Employee Barbara Moss

The Stahlman Building Roundtable, Part II Paul White and Emily Shouse

YOU CHOOSE THE CHECKING WE’LL PAY YOUR NBA DUES Open a First Tennessee checking account with direct deposit, and we’ll pay your Nashville Bar Association membership dues (currently a $245 value) for one year. We have several great checking options you can choose ± each available with the convenience of free Banking Online and Mobile Banking. Learn more at FTB.com/checking or present this ad at any financial center in Middle Tennessee. See terms and conditions below for offer details.*

Terms and Conditions: Offer valid beginning with the enrollment of Nashville Bar Association membership year beginning November 1, 2015. Offer expires March 31, 2016. You must present this printed offer at a financial center in Middle Tennessee when you open your checking account. Minimum opening deposit is $100, and cannot be transferred from an existing First Tennessee account. Cannot be combined with other checking offers or promotions. Accounts opened online are not eligible. You must be a new checking household, which means that no member of your immediate household has had an open First Tennessee consumer checking account in the previous 12 months. A direct deposit must post to this account within 60 days. You agree to maintain the account in good standing for at least 6 months. If you meet the conditions of this offer, you will receive a voucher in the mail within 6 weeks of your first direct deposit. You will be able to present this voucher to the Nashville Bar Association. The Association will then return it to us, and we will pay to them your dues for your one year of NBA membership. Upon delivery of the voucher to you, First Tennessee is required to report the $245 value as interest income on Form 1099-INT. This voucher is non-transferable, cannot be redeemed for cash or any alternative bonus, and must be presented by you to the Association by June 30, 2016. FSR: Use promo code NBADUE. ©2015 First Tennessee Bank National Association. Member FDIC.

Articles

Departments

From the President

Communique

Is Your Potential Client a Nigerian King?: New Versions of Old Scams are Targeting Lawyers

David Anthony

Joycelyn Stevenson

Workplace Investigations by Outside Counsel: What Do You Have to Lose?

John Jay Hooker, Jr.• Diversity Summit • Liberty Bell Award Nominations • Attorney Directory Cover Contest • Race Judicata • NBA Calendar of Events

Law Practice Tips: Hiring a Key Employee

Center Insert

Non-Profit Spotlight: The Contributor

Stahlman Building Roundtable, Part II

Mark Travis

Barbara Moss

Marjorie Kaup Haines, Esq.

Paul White Emily Shouse

Columns 11

Capitol Notes

Gadget of the Month

Continuing Legal Education (CLE)

18 20 22 23 24

Nathan H. Ridley

Welcome New NBA Members Dial-A-Lawyer 100% Club Members Disclosure

Announcements • People on the Move • Firm News

2016 Premier Members Classifieds

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

Golden Oldies

Who can name these guys?! Be the first person to email the correct answer to jill.presley@nashvillebar.org and your name (along with the correct entry) will appear in next month's issue. Additionally, if you have any photos to submit for the Golden Oldies, please send to the email above. Dec '15/Jan '16 Golden Oldie: Mitch Grissim correctly identified the individuals in the December 2015/January 2016 Golden Oldies photo. Pictured (left to right) were Hon. Adolpho A. Birch, Jr., Hon. Harry Lester, and Hon. Donald Washburn.

' A Monthly Publication of the Nashville Bar Association

Joycelyn A. Stevenson, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

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

Nashville Bar Association Staff Monica Mackie Executive Director ----------Susan Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy Cozby Lawyer Referral Service Coordinator Traci Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Jill Presley Marketing & Communications 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 4th Ave N, Suite 1050 Nashville, TN 37219 615.242.9272 • Fax 615.255.3026 NashvilleBar.org

Nashville Bar Journal • February 2016

From the President New Year, New Promise By Joycelyn A. Stevenson With each New Year comes new promise for our individual lives, our families, our law practices, and our community service work. I stopped making resolutions a long time ago, in part, because I could never remember most of them. Instead I resolve each year to make the New Year better than the last. I think the same can be said for the Nashville Bar Association. Last year the board met for two days to discuss the future of the NBA, our progress, any shortfalls, and how to get on track for the next generation of lawyers. We hired a new Executive Director and have seen some additional staffing changes designed to bring our bar where it needs to be. So now the work begins. I would like to focus on a few areas of our strategic plan in order to highlight some of our specific goals, so that you as members can hold us accountable—but more importantly— get involved. I hope that after reading this article you have a better idea of how you can serve the NBA and how to encourage others to do the same. Membership One of the biggest areas of focus this year will be our membership. We are looking to grow our membership so that we can have a bar association that represents the community that we serve—whether that includes criminal defense attorneys, solo practitioners, corporate attorneys, in-house legal departments, as well as law students. The Nashville Bar Association has something to offer all lawyers in this city, regardless of practice. We have a very active and energetic Membership Committee led by 2nd Vice-President, Andrea Perry. We have noticed a slight decline in the number of renewals and our goal is to not only curb that decline, but to grow our membership through outreach, an increased presence in our local law schools, and initiatives that target not only recent law school graduates, but also attorneys who are new to the city looking to network and get involved in our legal community. One of the ways that you can help us in our efforts is to keep the Nashville Bar Association apprised of any friends, or other colleagues that are new to the city so that we can have sustained outreach to them. We are working on creative dues structures, partnerships with other bar associations, and through technology, making membership renewal easier. Continuing Legal Education The Nashville Bar Association has offered high-quality, reasonably-priced CLE for a number of years. We are very aware that many other associations and trade organizations offer CLE, such that many NBA members have options. You may be surprised to know that less than half of our members utilize NBA-sponsored CLE, which is equal to the number of non-members who utilize it. The NBA has commissioned a CLE Task Force to determine creative ways to offer CLE to our members, especially those who find CLE cost-prohibitive. We are investigating hosting CLE programs in other parts of town including Brentwood, planning a destination CLE, and will again this year offer our members three free hours through a fantastic program in the fall from our Historical Society. You may recall three free hours offered in 2015 with our program on Hoffa, which was one of the most well-received and well-attended programs of the year. Community Relations For years, the Nashville Bar Association’s Young Lawyers’ Division has taken the lead with community service projects for the Association. Those programs will continue this year; however, the NBA would like to create more long-term, large-scale service projects that we can sustain for many years to come. The goal this year is to tackle one to two major

2016 NBA BOARD OF DIRECTORS

projects that will energize our 2,800 members and that will promote NBA’s sustained commitment to our local community. We have some big ideas and welcome any input from members and non-members on where we can lend our talents. Please contact our chairs—Billye Sanders, Darkenya Waller, and Peter Robison—if you would like to get involved or have ideas on service projects. Communications We have a major initiative currently underway that will drastically change our website and our communications system at the bar office. We are very excited and will be having a major re-launch of many of our communications and marketing initiatives this spring. You may have already noticed an increase in our presence on LinkedIn, Facebook, and Twitter. If you haven’t already done so, please friend or follow us, share NBA posts, and keep the public educated on all things NBA. We recently welcomed a new staff member who is devoted to increasing our footprint in both print and digital media. 2016 Events Please check out our website, weekly e-blasts, and social media for information on upcoming events. If you haven’t joined a practice or service committee, please consider doing so. One of the first major events that we will have this year is a Diversity Summit on March 3, 2016. It has been 10 years since our last summit and we have some very talented leaders from the local and national stage coming together to talk about how far we have come in our profession and how far we still have to go in order to achieve equality in advancement opportunities and adequate representation for all people in Continued on page 15

Joycelyn A. Stevenson, President Nathan H. Ridley, President-Elect Matt Potempa, First Vice President Andrea P. Perry, Second Vice President April Knox, Secretary Eric W. Smith, Treasurer Edward D. Lanquist, Jr., Immediate Past President Justin McNaughton, YLD President Lela Hollabaugh, General Counsel Irwin J. Kuhn, First Vice President-Elect Claudia Levy, Second Vice President-Elect Mark S. Beveridge Robert C. Bigelow Hon. Joe P. Binkley, Jr. Hon. Sheila D. Calloway Kay Caudle Jacqueline B. Dixon Samuel P. Funk Margaret M. Huff Hon. William C. Koch, Jr. Ryan D. Levy Wendy Longmire Hon. Randal S. Mashburn Erin Palmer Polly David L. Raybin Sara F. Reynolds Saul A. Solomon Laura Smith Tidwell M. Bernadette Welch

MEETING SPACE @ THE NBA CENTER NASHVILLE BAR ASSOCIATION Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed, and keep connected with fellow attorneys. From sole

The NBA Center is available for you to host meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. Wi-Fi is also available. For more information, contact vicki.shoulders@nashvillebar.org and indicate the date, time, and meeting room preference. Meeting space is subject to availability.

practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system. Our Bar Association is much more than just a collection of services. The power of our membership lies in the power of the people. WE are the Bar. And together, we shape the future of the legal profession.

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LinkedIn.com/Company/Nashville-Bar-Association Nashville Bar Journal • February 2016

communiqué Modern Day Diversity The Nashville Bar Association is hosting a second Diversity Summit on March 3, 2016. The theme for the event is Modern Day Diversity. The Diversity Summit will include afternoon sessions on the importance of Diversity in both public and private sectors and a panel discussion addressing the progress of Diversity, branding, marketing, promotion, retention, and much more. We are pleased to have Werten F. W. Bellamy, Jr., President of Stakeholders, Inc. as our keynote speaker. In addition to Bellamy, there will be a variety of diverse speakers and panel members such as Cynthia Nance, Dean Emeritus and Nathan G. Gordon, Professor of Law at the University of Arkansas School of Law. We will also host an evening cocktail reception to provide an opportunity for networking and further discussion of topics presented at the summit.

Nashville Legend John Jay Hooker, Jr. John Jay Hooker, Jr., attorney and activist, passed on January 24, 2016, approximately one year after his metastatic melanoma diagnosis—but before the resolution of his right-to-die litigation— which he considered his most important civil rights work. Championed and loathed, Hooker was a perennial figure in state politics. This past December, The Tennessean named 85-year-old Hooker “Tennessean of the Year” for his "resilience and tenacity in fighting for the constitutional rights of Tennesseans." Hooker was engaged in the local bar and served as a key presenter at two of the NBA’s most well attended CLEs, Baker v. Carr and last year’s Hoffa!, both of which addressed the impact of local bar members on legal issues of national importance. The March issue of the Nashville Bar Journal will feature a tribute to John Jay Hooker, Jr. If you have memories you wish to share for potential inclusion, please send them to eleanorwetzel@ jis.nashville.org. n

Nashville Bar Journal • February 2016

Nearly 100 attorneys attended the Diversity Summit held in 2006, with 18 law firms as contributing sponsors. With your help, we are confident this year’s Diversity Summit will be even more successful. A big THANK YOU to the law offices that have already agreed to Sponsor this unique and “diverse” event. Platinum Sponsors: Asurion Bone McAllester Norton, PLLC Constangy Brooks, Smith & Prophete, LLP Reno & Cavanaugh, PLLC Gold Sponsors: Bass Berry & Sims, PLC Lewis Thomason Littler Mendelson, P.C. Sherrard & Roe, PLC Bronze Sponsor: Gullett, Sanford, Robinson & Martin, PLLC If you would like to partner with the NBA Diversity Committee to help sponsor this important event, please contact traci.hollandsworth@nashvillebar.org or you may simply send your Sponsorship check to the Nashville Bar Association at 150 4th Ave N, Suite 1050, Nashville, TN 37219. Sponsorship levels are as follows: $1,500 – Platinum Sponsor $1,000 – Gold Sponsor $500 – Bronze Sponsor All Sponsorships include your company logo on promotional materials and signage at the event site, recognition in the Nashville Bar Journal and across all NBA social media sites. Exclusive Sponsorships are also available. n

Liberty Bell Award Nominations

2016 Attorney Directory Cover Contest

Nominations are being sought for the Liberty Bell Award that will be presented during the NBA's

Are you an attorney with an artistic side? The NBA is now accepting submissions of Nashville themed artwork or photography for the cover of the 2016 Attorney Directory. Deadline for submission is Friday, February 19th, 2016. The winner will receive a complimentary directory, their name on the cover of the directory, and the ability to display their art at the annual Law Day Luncheon in April. Send all submissions in high-resolution JPEG or PDF format to jill.presley@nashvillebar.org with the subject line "2016 Attorney Directory Cover Contest Submission". n

annual Law Day Luncheon during Law Week. The deadline for nominations is March 14, 2016. This award is given to that person or group—not necessarily lawyers or law related groups—who has promoted a better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations for the Liberty Bell Award should be addressed to the NBA Community Relations Committee and submitted to traci.hollandsworth@nashvillebar.org. n

13th Annual Race Judicata The NBA’s Young Lawyers Division 13th Annual Race Judicata will be held on April 9, 2016 beginning at 8:00am. Both the 5K/10K are ﬂat, fast, and certified courses that run along the Harpeth River Greenway at Edwin Warner Park. Awards will be presented in each race, three deep, in the following categories: 1) overall; 2) masters; and 3) age group.

In addition, Nashville’s barristers will also be able to zealously represent their respective law firms by competing for the coveted titles of Fastest Male and Female Lawyer and Fastest Firm (the combined time of three lawyers). Firm team names and rosters must be provided via email to Wally Irvin at wirvin@lewisthomason.com no later than noon Thursday,

April 7, 2016. Proceeds from the race will benefit two local charities—ABLE Youth and Achilles International Nashville. Follow us on Twitter @racejudicata for more information or visit our Facebook event page. To register for the race, go to Active.com or scan the QR code to the left with your cell phone or tablet. n

NBA Calendar of Events February 10 Historical Committee Meeting 11:30am (Hal Hardin's Office) NALS Meeting - 12:00pm February 11 Membership Committee Meeting - 12:00pm February 16 Ethics Committee Meeting

(Speaker: Sandy Garrett, BPR) 12:00pm February 17 Memorial Service Committee Meeting - 12:00pm February 18 Finance Committee Meeting 4:00pm

February 23 CLE Brainstorm Session - 4:00pm

(Patterson Intellectual Property Law)

February 26-27 Mock Trial Competition

(Davidson County Courthouse)

March 1 Board Meeting - 4:00pm

Executive Committee Meeting 4:45pm

Committee Meetings are held at the NBA Offices unless otherwise noted l

= Special Event l Full Calendar online at NashvilleBar.org Nashville Bar Journal • February 2016

FEATURE Is Your Potential Client a Nigerian King? New Versions of Old Scams Are Targeting Lawyers By David Anthony

A few summers ago, I was the lawyer of choice for Nigerian email scammers. At the time, I didn’t realize they were scammers. On first blush, these were emails from presidents and CEOs of actual foreign companies, with real websites and LinkedIn pages. This wasn’t your grandparents’ Nigerian King scam. Lawyers are skeptical by nature, but these types of scams test that nature by presenting an engagement that is fast, easy, and too lucrative to pass up. These emails are specifically crafted to exploit that line where a lawyer’s healthy skepticism ends and where his greed begins. Different versions of these scams have been around for centuries, with an early variation in the 16th century, involving a falsely imprisoned member of the Spanish royal family who implores the victim to send money to assist in his release. In the modern age, we have the travails of the deposed “Nigerian King,” who seeks the help (and money) of strangers to obtain the release of his former riches, with the promise of a reward. If these scams sound preposterous, it is, in part, because they are designed that way. In a 2012 study titled “Why Do Nigerian Scammers Say They are From Nigeria?”, Microsoft researchers concluded that by including bizarre claims and other well-known red flags, the scammers are able to weed out all but the “most gullible” targets. In short, in order to identify their ideal targets, these email scams are purposefully created to be “recognized and ignored” by anyone who may critically evaluate the claims. “By sending an email that repels all but the most gullible, the scammer gets the most promising marks to self-select,” the study found. Anyone who is foolish enough to actually respond in any form to the outlandish request is, the study concluded, a perfect candidate to fall victim to the scheme. 6

Nashville Bar Journal • February 2016

How on earth, then, would a lawyer fall for one of these tricks? In the past, lawyers haven’t been likely victims, because the efforts were so easy to identify. Generally, the solicitations contained hardly any details and were from an anonymous sender using an untraceable email address. Assuming these messages made it past the lawyer’s spam filter, they’d be identified as fake and deleted in seconds. These scams, however, have advanced in sophistication. The scammers are no longer content to solicit victims using an outlandish request. Instead, the modern version is likely to contain credible details, from email accounts associated with real foreign businesses. A click on any of the links in the message might take you to an actual company’s website and, ostensibly, the sender’s actual LinkedIn page. If earlier scams lacked any details, the new trend is to provide specific and credible information related to the dispute. For instance, in one of the messages I received, the sender detailed IP licensing claims against a small Nashville software company, whose existence I was able to confirm with the Secretary of State. In another, my assistance was sought, ostensibly, by a Norwegian music retailer to assert UCC claims against Guitar Center, a large national music chain. These very concrete details were surely provided to assuage any suspicions I had about the legitimacy of the request. Ultimately, the scam’s second layer of deceit did it in. When asked for copies of relevant documents, the “companies” responded quickly, but with materials that were clearly fraudulent. In one, the settlement agreement for a $3 million dispute was only one page long, with formatting and other internal inconsistencies. Despite bearing the logo of a large London law firm, the lawyer who purportedly drafted the agreement was not listed on the firm’s website, and the

phone number listed for him was inactive. The scammers’ goal is to distract the lawyer before he vets the documents. Indeed, no matter how the engagement is described initially, the task quickly changes. Whether it’s a software licensing dispute or debt collection matter, before any substantive work starts, the client reports that the matter has been resolved, and, as a result, the client only needs the lawyer to assist in receipt and transmission of the settlement payment. This is where the real crime takes place. Specifically, the other party will make a substantial payment to the lawyer by certified check, and the lawyer will deposit the check into his IOLTA account and urgently wire payment to the client. The client will have the lawyer retain a portion of the settlement payment for her fee. At this point, the scam leads to the same end result as all other such scams. The “opposing party” is the scammer or an accomplice, and the certified check is invariably forged. Although the depository bank may make those funds available to the lawyer for a wire disbursement, such funds do not officially clear until the payor bank pays the instrument. In the four to five days that a typical certified check takes to clear, the lawyer remains liable for any funds drawn from his account. By the time the payor bank provides notice of the forgery, the wire transfer is irreversible and the funds and the fictitious client have disappeared. One reaction to these risks is to ignore all email queries, which could cost potential revenue and be an overreaction to the problem. Indeed, in a recent large Chapter 11 Bankruptcy case involving a home goods retailer, I helped an exporter based out of Hong Kong recover on a $1 million claim. One of his frustrations with American lawyers was that none would respond to his emails asking for help. Instead, he was forced to travel to Nashville, where he could meet in person. You may be wondering what you can do in response to a similar request. While no plan

is certain to protect you, here are the most common red flags and the best practices in response. The initial communication lacks specifics related to the potential client. If the email is from a corporate representative, is the email sent from an address associated with that company? Many fraudulent requests are sent using a web-based email service, such as Gmail, Yahoo, or Hotmail, which can be created anonymously and are difficult to trace. If the company has a website, the corporate representative would likely be using an email associated with that domain name. The initial communication may lack sufficient details to explain why the client needs a lawyer in Nashville. Rather than specify details connecting the client’s needs to Nashville, the initial email may simply seek assistance in “your jurisdiction.” This is indicative of a “mass” email being sent to a large number of potential victims. These engagements are often limited to certain practice areas. The majority of the initial communications will involve one of three legal requests: judgment collection; breach of contract; or aid in the enforcement of a “divorce settlement agreement.” No matter how the engagement starts, the end of the scam is the same: The dispute settles or the sale closes immediately after the initial contact, and the lawyer will be asked to only process a payment or the sale proceeds, generally on an expedited basis. The client is unable or willing to communicate in person or by telephone. The Internet allows a great deal of anonymity in communications, which the scammers exploit. In most cases, they avoid live contact, even if you request it. Always ask for telephone contact, and, if those requests are denied, call the numbers provided in the documents.

independently verified. This can be as simple as a phone call to any of the other parties involved. Be aware that some sophisticated scams anticipate this, and the information in the documents may lead back to the original scammer or an accomplice. If other red flags exist, conduct your own online search to confirm addresses, business names, and corporate officer capacity. When in doubt, don’t disburse funds until final confirmation is provided by the payor bank. The only way to be certain that a certified check is valid is to ask your bank that it be presented “for collection” at the payor bank. This means that, until the bank that the certified check is drawn on confirms the validity of the original payment, the funds are not deposited into your account and not available for distribution.This may result in delay in the transmission to the client, but will provide assurance of the legitimacy of the check. Beware of requests for urgent disbursements by the client, which are designed to manipulate the lawyer into disbursing the funds before forgery can be discovered. A few years ago, I was lucky that the scammers were relying on obviously fraudulent documents in support of their requests. After my review, I emailed both clients back to question their documents and to request a phone call. Despite almost daily emails asking for my help, they never responded after that. If I had to guess, they didn’t disappear. They simply moved on to another target. n David Anthony is a member of Bone McAllester Norton PLLC, practicing in creditor’s rights and commercial litigation. He actively seeks clients online through his blog, CreditorsRights101.com, and the corresponding Twitter feed, @creditorlaw.

The client’s documents do not appear legitimate. In order to maximize their profits, these scams generally involve large amounts of money. The documents underlying the dispute should be vetted to confirm their legitimacy, and, if other suspicious factors exist, the information should be Nashville Bar Journal • February 2016

FEATURE Workplace Investigations by Outside Counsel What Do You Have to Lose? By Mark Travis

Whether in cases of workplace harassment or whistleblowing, courts have placed increasing responsibility on employers to conduct investigations of alleged violations of employment laws, and an employer’s defense in seeking to minimize both liability and damages in these situations often depends on its prompt corrective action. Whether or not an employer chooses to use its own legal counsel for such an investigation will directly impact the application of the attorney-client privilege and the attorney work product doctrine. As a neutral working in this area, I have seen these issues arise in the context of both mediation and arbitration when employer’s counsel seeks to raise the results of its investigation as a defense and plaintiff’s counsel seeks disclosure of that information. The Attorney-Client Privilege Employers (and counsel) often expect that by including attorneys in an investigation, the results will be shielded from production in any subsequent litigation. Inclusion of lawyers in an internal investigation, however, does not automatically insulate an investigation from disclosure—despite assertions of attorney-client privilege. In determining whether the privilege applies, the key issue is whether the attorney is acting in the capacity of a legal advisor. In the context of investigations of sexual harassment, various courts have held that investigation by an attorney is protected by the privilege.1 However, courts have sometimes struggled with determining whether an attorney is acting in his or her “legal capacity” in the course of conducting a workplace investigation. In Koumoulis v. Independent Financial Marketing Group,2 the court held that communications between outside counsel and human resources personnel during the pendency of EEOC charges and 8

Nashville Bar Journal • February 2016

litigation were not protected by the attorney-client privilege because their predominant purpose was to provide “business”, and not “legal” advice. The magistrate judge found that the communications generally concerned counsel's advice as to what actions human resources personnel should take regarding the investigation, who should perform those actions, and what should be documented. The magistrate judge also noted that the communications by outside counsel to human resources representatives included draft emails to the plaintiffs and scripts for conversations that human resources staff would have with the plaintiffs. The employer’s emails to outside counsel reported on the outcome of their actions and asked about next steps in the investigation. As a result, the court ordered production of documents the employer had withheld as privileged, as well as the deposition of the employer's outside counsel regarding those communications. Thus, utilizing an attorney to conduct the investigation is not necessarily sufficient to bring the investigative materials under the ambit of the attorney-client privilege. Instead, outside counsel must act in his or her “legal capacity” when conducting the investigation, such as preparing the employer for litigation or actually providing legal advice. However, assuming the privilege applies, it should be noted that the privilege may otherwise be waived such as when the employer asserts that it properly investigated a complaint and responded appropriately to the findings of its investigation. In that case, the employer places the details of the investigation directly at issue, and it may be difficult to claim attorney - client privilege to preclude any scrutiny of the investigation.3 The case of Brownwell v. Roadway Package Sys., Inc.4 is illustrative.

This case involved an internal investigation of an allegation of sexual harassment. After filing suit the plaintiff requested discovery of statements made to the employer’s counsel in connection with the investigation. The employer denied the charges against it and argued that the plaintiff’s claims were barred because it fully and fairly investigated her allegations and took prompt and appropriate action consistent with the results of the investigation. Although it found the statements to counsel were privileged, the court held that the employer waived its right to invoke the privilege by asserting the adequacy of its investigation as a defense to the plaintiff’s claims. First, by arguing that it fully and fairly investigated the plaintiff’s allegations while objecting to the production of statements obtained in the course thereof, the court found that the employer was attempting to use the privilege as both a sword and shield, which it could not do. Rather, the court believed that equity required that the plaintiff be permitted to explore the parameters of the investigation in order to rebut this affirmative defense. Second, by asserting the adequacy of its investigation as a defense to the plaintiff’s allegations, the court held that the employer had implicitly waived the attorney-client privilege by placing the adequacy of the investigation at issue in the case, which was critical to the issue of liability. Accordingly, the court concluded that the statements were discoverable and had to be produced. A somewhat different spin on this issue arose in the case of Koss v. Palmer Water Dept.,5 where a sexual harassment investigation was contracted out from the defendant’s regular law firm to an employment law firm. While the latter firm conducted all of the interviews, the town’s regular law firm had significant involvement in advising and directing the investigating firm. After the plaintiff filed suit, the town’s regular law firm represented the town in that litigation. The town’s defense was based, in part, on the investigation performed by the investigating firm. The plaintiff eventually moved to compel production of documents related to the town’s investigation. The town, meanwhile, maintained that the documents reflecting

its regular law firm’s involvement in the investigation were protected from disclosure under the attorney-client privilege. After reviewing the documents at issue, the judge ordered the town to produce investigation-related documents involving the town’s regular firm. The judge found that the law firm had been intimately connected to and perhaps controlling of the investigation that formed the basis of the town’s affirmative defense. Thus, the judge concluded that the town had waived the attorney-client privilege for not only the investigative report itself, but for all documents, witness interviews, notes and memoranda created as part of and in furtherance of the investigation. The Attorney Work Product Doctrine The essence of the attorney work product doctrine prohibits disclosure of attorney work product which is prepared in anticipation of litigation, absent a showing of substantial need and undue hardship in obtaining equivalent materials by other means. Generally, a pre-complaint investigation by outside counsel is protected from disclosure, even if litigation is not yet imminent, so long as the purpose behind creation of the document is to aid in possible future litigation.6 On the other hand, just as with the attorneyclient privilege, a claim of work product may be defeated when the investigation is used as a defense to the underlying claim. In Walker v. County of Contra Costa,7 the county hired an outside attorney to investigate a charge of race discrimination and report to the county’s board of supervisors on the merits of the employee’s claim. In the litigation, when the county resisted providing this report to the plaintiff, the plaintiff moved to compel production of the documents. Although the court carved out and did not permit disclosure of the sections of the attorney’s report dealing with findings and conclusions, the court ultimately held that where a party puts the adequacy of its pre-litigation investigation at issue by asserting the investigation as a defense, the party must turn over documents related to that investigation, even if they would ordinarily be privileged. On a final note, counsel should be aware that sanctions can be imposed for failure to

turn over the investigation notes prepared by an in-house counsel or regular counsel who conducts an internal investigation. In EEOC et al. v. Spitzer,8 the court ordered a mistrial after it was discovered the employer failed to produce the investigative notes of the attorney who conducted the internal workplace investigation into the plaintiffemployees’ complaints of discrimination, harassment and retaliation. The plaintiffs filed a motion for sanctions seeking attorneys’ fees and costs. Referencing what the court termed a conflict of interest when an employer uses regular counsel to conduct an investigation, the trial judge ordered the employer to pay more than $300,000 in fees to the plaintiffs. n Endnotes Koumoulis v. Indep. Fin. Mktg. Group, 295 F.R.D. 28 (E.D.N.Y. 2013).

Wellpoint Health Networks, Inc. v. The Superior Court of Los Angeles County, 68 Cal. Rptr 2d 844 (2d Dist. 1997); Peterson v. Wallace Computer Servs., Inc., 984 F.Supp. 821 (D. Vt. 1997); EEOC v. Outback Steakhouse of Fla., 251 F.R.D. 603 (D. Colo. 2008); Payton v. New Jersey Turnpike Auth., 691 A.2d 321 (N.J. 1997).

Brownwell, 185 F.R.D. 19 (N.D.N.Y. 1999).

Koss v. Palmer Water Dept., 977 F.Supp. 28 (D. Mass. 2013).

6 EEOC v. Lutheran Social Servs., 186 F.3d 959 (D.C. Cir. 1999); Kayata v. Foote, Cone & Belding Worldwide, LLC, No. 99 CIV. 9022 VM KNF, 2000 WL 502859 (S.D.N.Y. April 26, 2000); Janicker v. George Washington Univ., 94 F.R.D. 648 (D.D.C. 1982); Ryall v. Appleton Elec. Co., 153 F.R.D. 660 (D. Colo. 1994). 7

227 F.R.D. 529 (N.D. Cal. 2005).

EEOC et al. v. Spitzer, Nos. 1:06CV2337, 1:08CV1326, 1:08CV1542, 1:09CV255, 2013 WL 2250757 (N.D. Ohio May 22, 2013). 8

Mark Travis is a full-time mediator and arbitrator, practicing exclusively in the area of labor and employment cases. He graduated from the Brandeis School of Law at the University of Louisville and holds a Master of Laws in Dispute Resolution from the Straus Institute at Pepperdine School of Law, where he also teaches employment dispute resolution. He may be reached at 931.252.9123 or at mtravis@travisadr.com.

Nashville Bar Journal • February 2016

FEATURE Law Practice Tips

Hiring a Key Employee By Barbara Moss

Perhaps you are a solo attorney and now have a burgeoning practice, with enough consistent work and confidence to hire your first employee. This is an exciting moment in the life of any entrepreneur. It can be a liberating moment also, as you realize that your firm can produce work and generate income without you personally doing all of the work. Perhaps you are in a larger firm and have just lost an office manager or the paralegal that you’ve worked with for 20 years. Your need for the right employee for this key role is just as great as the solo practitioner. Of course, recruiting is a big challenge, even if you have a solidly defined role in mind and a great pool of talent at your disposal. This is a primer on how to recruit, vet, hire, train, and keep a great person. Establish Your Expectations What exactly do you want this person to do and not to do? What characteristics do you have in mind for the role? Create a written description to both guide your decision-making as well as communicate expectations to the applicants. Include goals for character, values, education, and skill qualifications. One way to do this is to imagine what a bad hire might look like. Then just define the ideal employee in terms of the converse of such attributes. For instance: I definitely do not want my employee to… • Steal from the company or lie to me or my clients; • Slack oﬀ and do the least amount of work possible; • Be “too green” for the work; Therefore, I want my employee to… • Engage with me and my clients in an ethical and upright manner; • Be self-motivated and excited about the mission of the firm; • Demonstrate mastery over the critical skills that the firm needs.

Nashville Bar Journal • February 2016

Cast a Wide Net Don’t constrain your recruiting. Look everywhere, including your own network, Craigslist, local colleges, law schools, and beyond. Experience matters, but you should value capability, character, and work ethic even more. Interview and Vet Vigorously Try to learn as much as possible in the first round of interviews. The first round could be conducted by telephone, and if telephone tasks are included in your expectations, you probably want to do it this way. Ask consistent, structured questions, so you can compare apples to apples. If you already have reliable employees, perhaps one of them could conduct the first round. In either the first or second round, test for important attributes using behavioral profiles, skills tests and reasoning tests. StrengthsFinder1 is popular and free. Another alternative is Kolbe A,2 which costs $50. You may also need to test for skills, such as proofreading or knowledge of grammar. There are many tests on the internet and—if you give the same tests to each candidate—you will have a good basis for comparison. Make sure to stay within legal boundaries when interviewing. You should try to avoid, of course, asking about age or asking female recruits about family planning, etc. Topgrading and the Threat of the Reference Check Brad Smart’s book, Topgrading,3 has helped businesses find and recruit “A players” for decades. Smart’s methodology requires putting prospects through an extensive vetting process, including something he calls: “the threat of the reference check.” When you interview candidates, bring up early and often that you will be calling and checking references. Then be sure to make good on this “threat.” Doing this will prevent candidates from lying to you, puffing up their

records, or leaving out critical information that you’d want to know before making a hiring decision. Bringing on, Training and Managing Once you’ve found and hired your A Player, you need to bring him or her onto your team the right way and maintain a productive relationship. Keep the employee happy and productive. Spend time training the person and get to know his or her goals, concerns, and dreams for the future. By the same token, if someone is not working out, don’t string the employee along. Observe the old adage, “hire slowly, fire quickly”. Keeping the wrong person on your team will harm your business and your clients and also prevent that person from finding a better fit somewhere else. My Experience I was not careful with my first hire and did not find the key employee I needed. The next time around, I spent the time following the suggestions in this article: I drafted questions, asked each candidate the same questions, had basic psychological testing on myself and two candidates, checked skills and checked references. I found a great employee who wants to grow with the business. I was lucky, of course, but sometimes you have to do the groundwork to get “lucky.”n Endnotes The original Strengthsfinder publication, available at Strengths.Gallup.com/110440/About-StrengthsFinder-20.aspx, is fee based; however, a similar free version is available through WorKuno.com at FreeStrengthsTest. Workuno.com/Free-Strengths-Test.html. 1

Kolbe A Index, Kolbe Corp, Kolbe.com/Assessments/ Kolbe-A-Index.

3 Topgrading, Inc., Topgrading.com/Product/Topgrading3rd-Edition.

Barbara Moss is the founder of Elder Law of Nashville, where she handles elder law, conservatorships, probate,estate planning, and cases involving Medicare and Medicaid (TennCare). She can be reached at 615.852.5602 or barbara@elderlawofnashville.com.

Capitol Notes By Nathan H. Ridley Just because you do not take an interest in politics, doesn’t mean that politics won’t take an interest in you. —Pericles, 440 B.C. Bills, Bills, Bills As advertised, the 109th General Assembly reconvened at noon on Tuesday, January 12, 2016. Both houses also filed 1,215 bills by Thursday, January 25, to meet the 2016 filing deadline for general bills. Many of these filings affect the practice of law. Note well the words of Pericles. Most notably to date, consensus seems to be coming together on SB 1/HB 142, which would implement a process for the Legislature to confirm the governor’s appointment of appellate court judges. The saving grace of our new constitutional language reads: Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The two houses are on the verge of adopting a conference committee report that requires the houses to meet jointly but vote separately to consider appellate judicial appointments. The sticky wicket had been a process where one house votes to confirm and another votes to reject. Both houses had concern over a simple majority of one house subverting the will of the other house. Compromise came from the pen of Representative Jon Lundberg of Bristol, who suggested that a two-thirds vote of a single house would be required for rejection. Waiting quietly in the wings is Roger Page of Madison County, who Governor Haslam has named to be Tennessee’s next Supreme Court Justice. Confirmation is expected. Checklist for February 1. Call your elected state legislative officials and wish them well during the 2016 session. 2. Make sure you and all your employees are registered to vote. (Tennessee has three statewide elections in 2016: March 1, August 4, and November 8.) 3. Ask a Nashville lawyer you are working with on a transaction or a case if they are members of the Nashville Bar Association. (The ensuing conversation has interesting possibilities.) Calendar Notes Governor Bill Haslam will deliver his State of the State address on Monday, February 1, 2016. Early voting starts on February 10th for the March 1st Presidential Primary. State offices will be closed on Monday, February 15th for the Presidents’ Day holiday. Nathan H. Ridley is an attorney with the Nashville firm of Bradley Arant Boult Cummings LLP. You may contact him by email at nridley@babc.com. n

Nashville Bar Journal • February 2016

BI L L GA & PHI DG ET O L'S F THE

MONTH

2016 Consumer Electronics Show Review

By Bill Ramsey, Neal & Harwell, PLC & Phillip Hampton, LogicForce Consulting Once again we have just returned from the annual Vegas geek fest known as CES (Consumer Electronics Show). The Las Vegas Convention Center and surrounding hotels were packed to the gills with 170,000+ tech enthusiasts from all over the world. It’s at CES where you see the technology that you can’t exactly purchase… yet. Indeed, some of the tech gadgets, software and hardware that we see on display at the glitzy show never make it to retail shelves. But many of the concepts on display are snapped up by buyers and become hits in the tech world and in our homes and offices. Although we haven’t perfected a system for guessing what the winners and losers will be, we can discern tell-tale trends in the tech industry at large by surveying the vast CES exhibit floor. So, again this year, we donned our comfortable shoes, downloaded the CES exhibit map on our smart phones, and proceeded to log record step counts on our new Fitbit devices as we traversed much of the 2 million+ square feet of exhibit space at CES 2016. From our observations, here are the current tech trends that are most apparent to us: • Wearables proliferate: It’s been a few years since we debuted first generation smartwatches on the Bill & Phil Show. We observed eye rolls and smirks from our audiences as many thought these computers on your wrist were just too geeky and futuristic to be practical. Well, we were right about the trend. Everywhere you turned at CES, there were wearables (roughly defined as smart devices that you wear somewhere on your person). We liked the FitBit Blaze, which is blurring the line between activity tracker and smart watch (and some say, could be a great cheaper alternative to the Apple Watch). Over at the Samsung booth we watched the spokesman model a new smart suit, a line of clothing being introduced by Samsung that has certain smart sensors embedded that can communicate with other devices. For example, you can give someone a virtual business card on their smart phone by simply touching the smart phone to a button on the suit. There were also smart socks, smart shirts, smart pants, smart shoes….you get the idea. If your clothes are not connected to the internet, well that is just not smart.

• Virtual Reality is here: You get the feeling that VR is on the cusp of becoming mainstream (being led by the gaming industry). The virtual reality section of CES was very gaming-centric as this seems to be the first and easiest application for VR. Oculus Rift is a leader in the industry and judging by the line wrapped around their giant booth to try out their VR headset (we passed on the opportunity), Oculus will have no problem selling their new and improved headset that comes out later this year. Besides the gaming applications, we did see some other interesting VR and augmented reality use cases that look promising. For example, we tried on some augmented reality glasses that could be worn in a manufacturing environment that provide contextual overlays displaying pertinent data as you look around the plant. • Connected Home portends the rise of IoT: We have been talking about the Internet of Things for a few years now. Now we are seeing very practical applications of IoT in the connected home concept. We passed by booth after booth hawking home connectivity devices and apps. In the connected home of the future (actually happening now), you can control lights, HVAC systems, appliances, garage doors, media devices, etc. via an app on your mobile device. There is also a move to consolidate control of these various and disparate home systems within a single application. It is not clear to us if a dominant app is going to emerge as the standard interface for controlling connected home devices, but we were very excited to see many connected systems introducing integration with Amazon Echo’s Alexa at CES this year. • Automotive tech is advancing quickly: You would have thought we were attending the Detroit car show when we walked into the CES North Hall. Car tech was big this year at CES…no, it was huge. Mammoth exhibits from Ford, Chevrolet, Mercedes, Audi, Toyota, and Hyundai showcased tech that is already here in the way of digital instrumentation panels, side-view and rearview cameras replacing mirrors, collision avoidance systems, and internet-connected entertainment systems. Also on display were the latest concepts for autonomous driving vehicles which appear to be much closer to reality on the street that we realized. Could Continued on page 13

Nashville Bar Journal • February 2016

EARN YOUR CLE WITH QUALITY NBA DISTANCE LEARNING SEMINARS NBA TELEPHONE SEMINARS NATIONAL FACULTY & CURRENT TOPICS AT OUR FINGERTIPS Noon – 1:00pm (Central Standard Time) DISTANCE LEARNING CREDIT

TABLE OF CONTENTS PAGE 2

LIVE CLE SEMINARS PAGE 3

CLE EASY PASS INFORMATION Feb 10

BYOD and Social Media: Employment Law Issues in the World

Feb 11

Management and Voting Agreements in Businesses

Feb 12

Ethics and Pre-Trial Investigations - Live Replay (Dual)

Feb 15

Rights of First Refusal / Rights of First Offer in Transactions - Live Replay

Feb 16

Incentive Compensation in Business Entities, Part 1

Feb 17

Incentive Compensation in Business Entities, Part 2

Feb 18

Special Issues in Small Trusts

Feb 19

Civil Rights and Diversity: Ethics Issues

Feb 22

Drafting Promissory Notes to Enhance Enforceability

Feb 23

Decanting and Otherwise Fixing Broken Trusts

Feb 24

Business Divorce: When Business Partners Part Ways, Part 1 - Live Replay

Feb 25

Business Divorce: When Business Partners Part Ways, Part 2 - Live Replay

Feb 26

Ethics, Remote Networks, the Cloud, Smartphones and Working from

PAGE 4

CLE EASY PASS REGISTRATION PAGE 5

PLI LIVE WEBINARS PAGE 6

LIVE WEBINARS PAGE 7

MOVIE WEBCASTS PAGE 8

CLE REGISTRATION FORM

Anywhere - Live Replay (Dual) Feb 29

Ethics and the Attorney Client Privilege - Live Replay (Dual)

Mar 2

Overtime, Exempt, and Non-Exempt: 2016 Wage and Hour Update, Part 1

Mar 3

Overtime, Exempt, and Non-Exempt: 2016 Wage and Hour Update, Part 2

Mar 4

How Ethics Rules Still Apply when Lawyers Act as Non-Lawyers (Dual)

Mar 8

Americans with Disabilities Act Update - Live Replay

Mar 9

Ethical Issues when Changing Law Firms (Dual)

Mar 10

Estate and Gift Tax Audits

Mar 11

Ethics in Claims and Settlements (Dual)

Mar 15

Estate and Trust Planning for Short Life Expectancies

Mar 16

Planning to Obtain Tax Free Treatment in Business Combinations

Mar 17

Easements in Real Estate - Live Replay

Mar 18

Ethics and Keeping your Paralegal and Yourself Out of Trouble (Dual)

Mar 22

Modifying Fiduciary Duties in LLCs

Mar 23

Avoiding Family Feuds in Trusts

Mar 24

Construction Agreements, Part 1 - Live Replay

Mar 25

Construction Agreements, Part 2 - Live Replay

Mar 28

Outsourcing Agreements - Live Replay

Mar 29

Drafting Demand Letters

Mar 30

Tax Planning for Real Estate, Part 1 - Live Replay

Mar 31

Tax Planning for Real Estate, Part 2 - Live Replay

SUPPORT YOUR LOCAL BAR ASSOCIATION! NBA CLE STAFF Susan Blair Director, CLE Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator

SEE ADDITIONAL COURSES AT NASHVILLEBAR.ORG/CLE

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

CL 1 E

FEBRUARY 11, 2016

FROM THE BENCH: HON. MELISSA BLACKBURN

DAVIDSON COUNTY MENTAL HEALTH AND VETERANS TREATMENT COURTS: UNDERSTANDING THE BENEFITS AND THE ROLE OF COUNSEL IN TREATMENT COURTS WHO SHOULD ATTEND: You will benefit if your practice includes—but is not limited to—arbitration and mediation, civil rights, criminal law, disability law, DUI, education, family law, health and hospital law, landlord/tenant, litigation matters, probate matters, social security, Medicare, or disability. OVERVIEW: Problem-solving courts use an individualized approach to address the underlying problems of clients who have committed a variety of oﬀenses. These programs have a proven track record of reducing the rate of recidivism amongst the specific demographics in which they assist, while protecting public safety. Because of the intense supervision of these innovative programs—specifically, Mental Health Court and Veterans Court—defendants are successfully reintegrated into the community and given an opportunity to regain control over their own lives. YOU WILL BENEFIT BY LEARNING HOW TO: • “Think outside the box” to assist your client • Help your client avoid new charges • Help your client access alcohol and/or drug treatment services • Navigate the social service system, including services for veterans, the mentally ill, the developmentally disabled, or those with co-occurring disorders • Assist your client in finding other services, including housing, counseling services, alcohol/drug treatment, and job training FACULTY:

Hon. Melissa Blackburn, Judge, General Sessions Court, Division II, Davidson County

REGISTRATION 11:30am SEMINAR 12:00pm – 1:30pm 1.0 CLE Hours – General COST

NBA Members: $55 Non-NBA Members: $99

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LOCATION

Nashville Bar Association Conference Center 150 4th Ave N, Suite 1050 Nashville, TN 37219

PARKING

• 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before February 9 to guarantee written materials at the program. Refund or credit will not be issued after February 9; however, a substitute may attend for a registered participant.

VISIT NASHVILLEBAR.ORG/CLE FOR MORE INFORMATION!

MARCH 8, 2016

THOUGHTFUL EVALUATION AND SELECTION OF CONTINGENT FEE CLIENTS

REGISTRATION 11:30am SEMINAR 12:00pm – 1:00pm 1.0 CLE Hours – General

WHO SHOULD ATTEND: Any lawyer who is asked to accept litigation work where pay services is contingent on the outcome of the case will benefit from this seminar.

COST

OVERVIEW: Deliberate, structured cases analysis must be taken before accepting cases on a contingent fee. The failure to do so threatens financial security, increases stress, and results in poor outcomes—all of which impacts your future. Attend this seminar and learn key elements that should be part of your analysis. YOU WILL BENEFIT BY LEARNING HOW TO: • The case acceptance analysis undertaken by a lawyer with over 30 years of work on contingent fee cases • The factors that impact case selection in every type of case • Warning flags that impact case analysis • How to analyze the economic cost of providing legal services FACULTY:

John A. Day, NBTA Certified, Civil Trial/ABPLA Certified, Medical Malpractice, Law Oﬃces of John Day, P.C. Leigh Griffith, Waller Lansden Dortch & Davis, LLP

CLE

CL 2 E

Registration must be received by March 4 to guarantee seating and written material at the program. Cancellation must be received by 5:00pm on March 4 to retain CLE Easy Pass Hours.

PASS

CLE EASY PASS HOLDER

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(Fees include NBA membership through 2016 and seminar at NBA member rate)

LOCATION

Nashville Bar Association Conference Center 150 4th Ave N, Suite 1050 Nashville, TN 37219

PARKING

• 4th Ave across from One Nashville Place • Commerce Street • Main Library (between 6th & 7th Avenues) Registration must be received on or before March 4 to guarantee written materials at the program. Refund or credit will not be issued after March 4; however, a substitute may attend for a registered participant.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

CL 3 E

CL 4 E

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

PLI & THE NASHVILLE BAR ASSOCIATION BRING YOU LIVE WEBCASTS The Practicing Law Institute and the Nashville Bar Association are working together to bring PLI’s sophisticated and cutting-edge programs to Tennessee attorneys through live webcasts held in the NBA Conference Center.

Attorneys attending the live webcasts at the NBA office will earn “live” CLE credit!

Visit NashvilleBar.org/CLE for course details and to register. All start times listed below are Central Standard Time.

February 17, 2016

Ethics for Corporate Lawyers

2:00 – 4:10pm

February 19, 2016

Ethics for Financial Industry Lawyers 2016

11:00am – 1:10pm

March 2, 2016

Psychological Issues in Employment Law 2016

12:00 – 4:00pm

March 16, 2016

How to Read Financial Statements 2016

12:15 – 4:00pm

April 20, 2016

Financial Services Conflicts of Interest & Fiduciary Duties 2016

12:00 – 4:00pm

June 2, 2016

Appellate Advocacy 2016

1:00 – 5:00pm

June 30, 2016

Writing for Litigators 2016

1:00 – 4:15pm

Questions? Contact Christine Seisler at PLI at cseisler@pli.edu or 212.824.5798 or Susan Blair at the Nashville Bar Association at susan.blair@nashvillebar.org or 615.242.9272.

MARK YOUR CALENDAR! APRIL 12, 2016 Succession Planning for Lawyers: Transitioning, Selling, or Closing Your Law Practice 1:30pm – 4:50pm 3.0 CLE Hours Produced by Susan Blair, NBA APRIL 21, 2016 Sports Law Hot Topic: Concussion 1:30pm – 4:50pm 3.0 CLE Hours Produced by Sara Reynolds, Anderson & Reynolds, PLC and John P. Williams, Tune, Entrekin & White, P.C.

NBA ONLINE CLE PERSONALIZED LEARNING ON YOUR SCHEDULE Check back at NashvilleBar.org/CLE for upcoming class offerings and schedules. Course topics will include: Ethics and Professionalism Court Practice and Views from the Bench Mediation Family Law Estate Planning Probate Practice Employment Law Federal Court Practice AND MORE!

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

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LIVE CLE ETHICS WEBINARS FEATURING SEAN CARTER, ESQ.

The Nashville Bar Association partners with Sean Carter, Stuart Teicher, and MCLE Plus to bring you CLE Netshows—entertaining and content-filled ethics and professionalism live webinars. Sean and Stuart are not only nationally recognized education experts, but also excellent communicators who actually make learning fun. Both received rave reviews from area lawyers for their in-person NBA CLE seminars. Watch your inbox for program details and registration links! You can also register at NashvilleBar.org/CLE.

FEBRUARY WEBINAR LINE-UP

CL 6 E

Feb 9

Sue Unto Others as You Would Have Them Sue Onto You Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Feb 17

It’s Not the Fruit, It’s the Root: Getting to the Bottom of our Ethical Ills 11:00am –m 12:00p 1.0 CLE Hour – Dual – Distance Learning Credit

Feb 27

The 2016 Ethys Awards 10:00am – 12:00pm CST (note extended time) 2.0 CLE Hour – Dual – Distance Learning Credit

Mar 7

Yelp, I’ve Fallen for Social Media and I Can’t LinkedOut: The Ethical Pitfalls of Social Media Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 14

Lies, Damn Lies & Legal Marketing Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 21

Show Me the Ethics! The Ethical Way to Bill for Legal Services Noon – 1:00 p.m. Central Time 1.0 CLE Hour – Dual – Distance Learning Credit

Mar 28

The Truth, The Whole Truth & Nothing but the Truth: The Ethical Imperative for Honesty in Law Practice

Noon – 1:00pm CST 1.0 CLE Hour – Dual – Distance Learning Credit

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

Put some DRAMA into your CLE with these engaging movie webcasts! ALL WEBCASTS ARE ON MONDAYS OR WEDNESDAYS. REGISTRATION MUST OCCUR AT LEAST ONE HOUR PRIOR TO THE PROGRAM. Distance Learning Credit

The Art of Advocacy

What Can Lawyers Learn from Actors? PRODUCER:

Ben Franklin on Ethics

Facilitated by Katherine James

Featuring Christopher Lowell

February 10 • June 1 11:00am – 2:30pm CST 3.25 CLE Hours

March 16 • April 27 • June 15 11:00am – 12:00pm CST 1.0 CLE Hour

General - Distance Learning

Clarence Darrow:

Crimes, Causes, and the Courtroom

Dual - Distance Learning

Impeach Justice Douglas!

Featuring Graham Thatcher as Clarence

Featuring Graham Thatcher

March 30 • May 11 • June 29 11:00am – 2:15pm CST 3.0 CLE Hours

February 17 • June 8 11:00am – 2:15pm CST 3.0 CLE Hours

Dual - Distance Learning

Lincoln on Professionalism

Dual - Distance Learning

Thurgood Marshall’s Coming Featuring T. Mychael Rambo

March 16 • April 27 • June 15 12:15pm – 1:30pm CST 1.25 CLE Hours Dual - Distance Learning

Make Your Witness a STAR!

February 24 • May 25 11:00am – 1:40pm CST 2.5 CLE Hours Dual - Distance Learning

Maxims, Monarchy and Sir Thomas More

Facilitated by Katherine James

Featuring Graham Thatcher

April 13 11:00am – 1:30pm CST 2.25 CLE Hours

June 22 11:00am – 12:15pm CST 2.25 CLE Hours

General - Distance Learning

Dual - Distance Learning

For movie webcast details and to register, go to Periaktos.Bizvision.com. Brought to you by the Nashville Bar Association CLE and Periaktos Productions, LLC. . . . The dramatic difference in CLE.

Nashville Bar Association • Continuing Legal Education • NashvilleBar.org/CLE • 615.242.9272

CL 7 E

MAR 8

MAR 4

FEB 9

(NBA use only)

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*Non-member - Join NBA Now and Select the Discounted Member Rate for this CLE $289 NBA Membership through 2016

Thoughtful Evaluation and Selection of Contingent Fee Clients

From the Bench: Hon. Melissa Blackburn

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BI L L GA & PHI DG ET O L'S F THE

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we see fleets of self-driving car hitting our city streets within the next five years? We think so. Exciting stuff. • Drones are pervasive: Drones are not new, but the proliferation and evolution of these unmanned aircraft is amazing to see. Drones have become so ubiquitous in the skies that the FAA has begun requiring registration of drone aircraft. There are drones that will follow you everywhere you go; there are drones that will follow others everywhere they go. There are drones that will automatically come home when their batteries are low. There are drones that will avoid collisions. Amazing! Amazon is said to be experimenting with drone deliveries within cities. There is even

talk of drones being able to transport a passenger. Since we were kids, we have dreamed of “flying cars”. Could the next generation of drones bring this dream to reality? The sky is the limit, literally. The week at CES was exhilarating and exhausting at the same time. We could not wait to get home to start testing some of the new gadgets that we saw (as soon as they are available). Look for further updates on some of the cool new tech. 2016 is going to be a great year! n

Nashville Bar Journal • February 2016

NON-PROFIT SPOTLGIHT The Contributor

Genuine Opportunities for Advancement. Diverse Perspectives on Homelessness. By Marjorie Kaup Haines, Esq.

A local non-profit that is dear to my own heart is The Contributor, Inc. This 501(c) (3) organization was established in 2007, by a core group of volunteers. It is a non-profit, social enterprise that prints and publishes a weekly newspaper. It also does the recruiting, interviewing, and training homeless and formerly homeless vendors to distribute its paper, The Contributor, then sells the paper to vendors at $0.75 per issue and the vendors, in turn, sell the paper to their customers for retail at $2, plus tips, earning at least $1.25 per paper sold. The vendor keeps all profits from the sale of the paper to their customers. The first monthly issue was published in November 2007, and had a circulation of about 800 copies. Beginning in April 2014, the publication frequency increased to weekly and has greatly expanded its circulation and vendor network to become one of the highest-circulating street newspaper of its kind in North America—circulating more than 60,000 papers per month. The paper's content focuses on issues surrounding homelessness and poverty and is written by local journalists as well as people experiencing homelessness or working within the homeless community. Currently, they have more than 400 active vendors. While there are other street vendors selling publications, all vendors of The Con14

Nashville Bar Journal • February 2016

tributor must wear an official vendor badge. There are two main styles of official vendor badges. Both are large yellow badges with “The Contributor” across the top. You can find vendors on busy street corners in all areas of Nashville—including the surrounding areas like Franklin and Brentwood. If you are like me, you tend to travel the same routes daily and these vendors become familiar faces. Every Monday morning I look for “my vendor” at the corner of Union & Third —the one with the Rudolph nose in the winter and funny signs. He’s always there—with a smile and a wave—regardless of whether anyone buys or not. Vendors of The Contributor have a 30% rate of finding housing using income from their paper sales. Selling The Contributor is meant to be empowering. Each vendor basically owns their own micro-businesses and is completely in charge of their success. Each new vendor is offered training and 15 free papers to start, but how well a vendor does is entirely up to them. Make no mistake, selling The Contributor is a real job. Beyond the actual hours of standing on sidewalks and interacting with the public day in and day out, each vendor also has have to constantly invest in their businesses to keep it running. The Contributor is tough work and isn’t for everyone. Though the brand has

been built up to the point where it almost sells itself, that has not always been the case. Even with most of Nashville knowing who The Contributor vendors are now, bearing the elements alone can be a beast. There is a sense of pride that comes with a hard day’s work and that sense of pride is one each The Contributor vendor is familiar with. Winter is hard on these vendors; recently The Contributor issued a wish list on Amazon: Amazon.com/Registry/ Wishlist/32ZR797EAWDG. I try to keep bottles of water and hand-warmers in my car, as well as blankets and gloves to hand out. Other ideas include fruit, gift cards to local places such as McDonalds, and small bags of soft snacks (pudding cups, raisins, etc.), as some vendors may have untreated dental issues. How You Can Help To volunteer with The Contributor, contact Tom at tom@thecontributor.org. To advertise in The Contributor, contact Ben at advertising@thecontributor.org. To donate to The Contributor, mail to The Contributor, P.O. Box 332023, Nashville, TN 37203. For more information and to find out how

you can be a part of this AWESOME organization, check out their website at TheContributor.org or follow them on Facebook and Twitter. NOTE: The "Where to Turn in Nashville" resource guide is a publication of The Contributor in coordination with Middle Tennessee nonprofits. This is a great website (wttin.org) for all of the local resources available to not only the homeless, but others in need. If you prefer, you can get this resource guide in print by calling 615.212.TURN (8876) or emailing wttin@thecontributor.org. n This spotlight on Non-Profit Organizations was submitted by Marjorie Kaup Haines, Esq., 615.818.6988, margehaines@aol.com.

2016 Davidson County High School Mock Trial Competition The Nashville Bar Association Young Lawyers Division will once again host the Davidson County High School Mock Trial Competition on Friday, February 26 and Saturday, February 27 at the Historic Metro Courthouse. More than a dozen schools from Davidson County will compete in five rounds over two days, playing the part of lawyers and witnesses in a fictional trial. The top two placing teams will continue on to the state competition. Volunteers are needed to help judge and score the teams in each of the five rounds, which are scheduled for the following dates and times: Round 1 - Fri. Feb. 26 at 4 pm Round 2 - Fri. Feb. 26 at 6 pm Round 3 - Sat. Feb. 27 at 8:30am Round 4 - Sat. Feb. 27 at 11am Final Round - Sat. Feb. 27 at 2:30pm

New Year, New Promise Continued from page 3

need of legal services. Other important events include our Law Day Luncheon—which will take place this year on April 29, 2016—and our NBA Annual Picnic, scheduled for September 22, 2016. Two events that may not get as much attention—but that certainly deserve it—are our two memorial services—one on May 26, 2016 and the other on November 17, 2016. If you have not attended one of these services in the past, please make a point to attend at least one this year. We often get caught up in our daily lives without thinking about why we are even in this profession. I am amazed at the stories of tenacity and resilience of our fellow bar members who have passed away and am strengthened by their resolve to fight for the rights of others no matter the cost or consequence. We have lost some true legal giants in the past few years, including two in January 2016. As we reflect on the lives of these legends, we should also reflect on our journeys and ask ourselves what do we stand for, who do we stand for, and what are we willing to risk to take that stand. I am certain, without hesitation, that we could answer those questions for many of our friends who are no longer with us but who served our bar with grace and humility. It is astonishing to know the role that the NBA played in shaping the legal landscape of our community and to know that it was in part due to the courage and tenacity of lawyers who were not afraid of taking a stand, even if unpopular at the time. The next generation of lawyers deserves the same robust and communitydriven organization that existed in 1831—when the NBA was founded—paying special attention to intentional diversity and inclusion of all attorneys from a variety of practice areas in the public and private sector. In order to have the strongest organization possible, we need your help in meeting our strategic initiatives and in getting our bar ready for the future. Let’s get to work! n

If you are available to volunteer as either a juror/scorer or presiding judge or if you would like more information about the competition, please contact Casey Miller (cmiller@babc.com) and include: (i) the round(s) for which you are available; and (ii) whether you would prefer to serve as a juror/scorer or presiding judge. Volunteers are what make this competition possible every year, and the students greatly appreciate your time and support. We look forward to seeing as many of you as possible for this event!

Nashville Bar Journal • February 2016

FEATURE The Stahlman Building Roundtable, Part II By Paul White and Emily Shouse

In May of 2015, Paul White authored an article on the Stahlman Building Roundtable, published in these pages. At that time, it was thought the large Bible—maintained for resolution of religious and textual disputes and containing the names of those who had officially joined The Roundtable—had been lost in the move of the Nashville Bar Association to its new quarters several years ago. David Rutherford had told his associates that he had deposited it in the NBA Office for safekeeping after the Stahlman Building Restaurant had closed, but an initial search had failed to locate it. The Nashville Bar Association Historical Committee asked for one or more of its members to volunteer to catalogue the current book holdings of the NBA Library. The Committee has launched an ongoing program to collect books by or about Nashville lawyers. Emily Shouse of the Patterson Intellectual Property Law firm volunteered to create this inventory. To date, the library holds 95 volumes and is seeking additional specific works. While working on this project at the NBA Office, Vicki Shoulders pointed out a large Bible that had been moved from the old NBA Office but whose significance was unknown. It was The Roundtable Bible. The book is—as Paul White remembered it—a large, coffee tablesized printing copyrighted in 1966 by the Southwestern Company and bound in a leather-like material of a yellowish-beige color. Inscribed on the front inside cover are the words, “Property of the Round Table, Coffee Shop, Stahlman Bldg., Xmas 1973, Compliments of Koinonia Bookshop, 1004 16th Ave. S., City 255-6808.” Paul White always understood from the members that Rollie Woodall had provided the Bible to settle the many disputes over its contents that arose at the meetings of The Roundtable, but perhaps—in view of this inscription—he only obtained its donation by the Koinonia Bookshop. There then appears, on the first page after the inside cover, a list of names under the date of January 3, 1974: Kirby Foster, H. Wayne Hammontree, James A. Carney, John Harris, W. B. Hogan, Roger H. Baskette, Sr., Walter Clark, Jn., M. Thrower, 16

Nashville Bar Journal • February 2016

Jesse C. Jackson, David P. Wrenne, James W. Rutherford, C. Allen High, Gary Gober, W. B. Hogan , Bill Davis, Rollie L. Woodall, Spiller Campbell, Jr., Charles Galbraith (Judge, Ret.), Graham Boyce, Robert N. Skinner, Lucien Dale, Bill Higgins, Robert F. Doyle, Gerald Burkett, Herb Rich, John Jay Hooker, Sam Wallace, Jr., and Hal Hardin. In the back cover of the book, under the date of December 7, 1994, appear the following names: Bob Jennings, David Vincent, Edward L. Kindall, David C. Rutherford, John Cobb, Jr., Paul R. White —1991, Robert E. Hoehn—1998, William A. (Bill) Lane, Robin McKinney, Jr., John H. Lowe, Robert F. Spann, and John Ingleson 2/14/02 . There then follows the date “1-99”, but no names appear thereafter. It is hoped that this brief article will have brought a smile to your face with the remembrance of these, our colleagues, many of whom have now “crossed over the river.” If it did, it has accomplished one of its purposes. The other purpose is to ask you to check the list of titles still sought (see page 18) for the collection of works by or about Nashville lawyers and see if you have any that you would be willing to donate to this ongoing and worthy endeavor. If so, please contact Paul White or Emily Shouse who will make arrangements to accept your donation on behalf of the project. If you do not have any of the titles, donations of cash will also be gratefully accepted for the purchase of the missing titles. Lastly, if you are aware of any titles omitted from the Committee’s wish list, please bring that oversight to the authors as well. n Endnotes 1

Hogan signed twice.

Ingleson is a Murfreesboro attorney, who was, nonetheless, a regular attendee.

Continued on page 18

TENNESSEE CHAPTER Nashville Area Members recognized for Excellence in the field of Mediation or Arbitration

Gail ASHWORTH (615) 254-1877

John BLANKENSHIP (615) 893-4160

Stephen COX, Sr. (615) 665-1230

Paul DeHOFF (615) 893-8896

Hon. Robert ECHOLS (615) 259-6478

Barry L. HOWARD (615) 256-1125

Mark LeVAN (615) 843-0300

James KAY (615) 742-4800

Gayle MALONE, Jr. (615) 651-6775

David NOBLIT (423) 265-0214

Dan NOLAN (931) 647-1501

Leigh Ann ROBERTS (615) 767-5900

Tracy SHAW (615) 244-3370

Matt SWEENEY (615) 726-5774

John TARPLEY (615) 259-1366

Mark TRAVIS (931) 252-9123

Jack WADDEY, Jr. (615) 850-8752

Check preferred available dates or schedule appointments online directly with the state’s top neutrals www.TennesseeMediators.org is free, funded by members

Nashville Bar Journal • February 2016

The Stahlman Building Roundtable, Part II

Welcome New NBA Members!

Continued from page 16

Editors Note: If you would like a list of the current books in the NBA Library, please contact jill.presley@nashvillebar.org. TITLES SOUGHT From a Standing Start: My Tennessee Political Odyssey by Winfield Dunn History of Tennessee (Four Volumes) by Stanley Folmsbee John M. Bass, 1804-1878, Mayor of Nashville, 1833-1834 by Hamilton (Kip) Gayden To Circle the Cross by Hamilton (Kip) Gayden The Suspect: A Memoir by John Hollins, Sr. Briefs of Carrol Kilgore by Carrol Kilgore Judicial Tyranny by Carrol Kilgore Restoring the Constitution by Carrol Kilgore Tennessee’s Blanton Years by Bill Rawlins The McWherter Years by Bill Rawlins Nashville in the 1890s by William Waller Tennessee Encyclopedia of History and Culture by Carroll Van West

Paige Margaret Ayres Keane Addison Berger Lisa Brooks Lida Burke Jacob Clabo Elizabeth Ann Clippard Stefanie Colletier Sharon Connor David Crenshaw Carol Davis Crow Chase Ryan Cunningham Ryan Davis Brian Stephen Duffy Timothy Dunn Jennifer Erdmann Kimberly Faye Chelsea Fitzgerald William S. Forgety Ernie Gilkes Bruce Daniel Gill Ashley Nicole Goins Laura Goodall

Michelle Grantham Tony Duane Greer Jonevan Hannah William James Harbison Priya Hari Renard Hirsch Garrett Knisley Kiel Kovalcik Jessica Krebs Hank Adam Locklin Brian Love Rick Marshall Katie McKee Dolapo Chrizoba Olushola Margaret Sue O'Sullivan Katherine Redding James Redwine Arrin Kendall Richards Brittany Rummells Kimiya Sarayloo David Scott

Dial-A-Lawyer

West End by Crockett White Photographs of the actual Bible...................

Paul White is a Nashville native, a member of numerous historical and genealogical societies, licensed since 1977, and in private practice since 1991. Emily Shouse is a shareholder and Registered Patent Attorney with Patterson Intellectual Property Law.

Nashville Bar Journal • February 2016

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions. Thank you to our January volunteers! Gena Crawley Tom Lawless Joe Rusnak To volunteer your time, please contact our LRIS Coordinator at wendy.cozby@nashvillebar.org. Pro Bono credit does apply and dinner will be provided.

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The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that have 100% of their Nashville attorneys as members of the NBA. Members will be listed monthly in the Nashville Bar Journal and will appear in our annual Attorney Directory. Contact vicki.shoulders@nashvillebar.org if you have any questions. Thank you for supporting your local bar association!

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (104) Bone McAllester Norton, PLLC (38) Brewer, Krause, Brooks & Chastain, PLLC (12) Buffaloe & Associates, PLC (4) Burrow Lee, PLLC (3) Butler Snow LLP (58) Cameron Worley, P.C. (3) Cornelius & Collins, LLP (17) Corrections Corporation of America (9) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Dodson Parker Behm & Capparella, P.C. (10) Farris Bobango, PLC (5) FordHarrison LLP (3) Frost Brown Todd LLC (27) Grissim & Hodges (3) Hall Booth Smith, P.C. (13) Haynes, Freeman & Bracey, PLC (4) Hollins, Raybin & Weissman, P.C. (6) Holton & Mayberry, P.C. (4) Howard Mobley Hayes & Gontarek, PLLC (8) Klein Bussell, PLLC (3) Law Offices of John Day, P.C. (6) Leader, Bulso & Nolan, PLC (5) Legal Aid Society of Middle Tennessee and the Cumberlands (10) Levine, Orr & Geracioti, PLLC (6) Lewis Thomason (28) Lieff, Cabraser, Heimann & Bernstein (4)

Nashville Bar Journal â&#x20AC;˘ February 2016

Littler Mendelson, P.C. (8) Loeb & Loeb, LLP (5) Martin Heller Potempa & Sheppard, PLLC (6) May, Hagan & Todd, PLLC (3) Mink & Duke, PLLC (3) MTR Family Law, PLLC (3) Nashville Electric Service (3) Neal & Harwell, PLC (31) Nelson Mullins Riley & Scarborough (14) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (15) Ortale, Kelley, Herbert & Crawford (23) Patterson Intellectual Property Law, PC (20) Prochaska Quinn & Ferraro, P.C. (3) Reno & Cavanaugh PLLC (5) Riley Warnock & Jacobson, PLC (20) Robinson, Reagan & Young, PLLC (4) Sarah Cannon Research Institute (3) Sherrard & Roe, PLC (33) SIMS|FUNK, PLC (3) Spicer Rudstrom, PLLC (13) Stites & Harbison, PLLC (29) Taylor, Pigue, Marchetti & Blair PLLC (6) Tennessee Justice Center (4) Trauger & Tuke (5) Watkins & McNeilly, PLLC (10) Weatherly, McNally & Dixon, PLC (3) White & Reasor, PLC (6) Wiseman Ashworth Law Group, PLC (6)

NASHVILLE BAR ASSOCIATION Benefits of Membership

The Nashville Bar Association helps build a sense of community and camaraderie among our members and comes with tangible and intangible benefits for your career, profession, and community. Our members come from the public and private sectors, from large multi-state firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

HERE ARE A FEW OF THE MANY REASONS TO BELONG TO THE NBA... • Connect with Your Local Legal Community The NBA provides numerous opportunities to meet and connect with other Nashville-area attorneys. Through networking, social events, continuing education, committee work, and other career and personal development opportunities, we help bring our profession together.

• Learn from the Experts Attend NBA CLEs to hear from law practice leaders who will share their expertise and practical experience. Be educated, enlightened, and even entertained by keynote speakers and other special guests from the legal community—local, regional, and national.

• Expand Your Business and Client Base Build relationships, network, and gain referrals through activities and programs, CLEs, committee work, volunteer projects, or by joining the NBA Lawyer Referral and Information Service at the member rate.

• Be a Leader Set the pace in the legal community by serving on committees, publishing Nashville Bar Journal articles, helping produce or present CLE seminars, joining the Young Lawyers Division, participating on the NBA Board, or working with the Nashville Bar Foundation.

• Be a Better Lawyer Learn from fellow lawyers and judges at NBA events. Enhance your professional development through high-quality CLE programs and committee in-service meetings, and stay informed with insightful and timely articles in the Nashville Bar Journal. • Sharpen Your Practice Skills with CLE Attend our innovative, and engaging CLE courses featuring local, regional, and national presenters. Our skilled faculty will keep you current on the nuts and bolts of the law, local rules and customs, ethics and professionalism, winning practice strategies, and key practice procedures—all at special NBA member rates. • Give Back to the Community Serve the public and help improve the image of lawyers by participating in community service projects offered by the Young Lawyers Division and the NBA throughout the year, volunteer for Dial-A-Lawyer—a free call-in service where members provide general legal information to the public, or help with one of the many projects offered through the Minority Opportunities Program. • Meet New People Don’t just hang out with familiar faces. Use social gatherings, NBA CLE’s, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

• Refresh and Renew Yourself Take time out from your daily routine to attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic or one of our many Happy Hour gatherings—and catch up with old friends or unwind with new ones.

AND MORE... • Use the NBA Center—to hosts meetings, arbitrations, depositions, and other events. Members may also use the NBA’s Guest Attorney Office when they need an “office away from the office” with internet and phone access. • Visit our Online Career Center—where you can post your resume, search job postings, and access the career resources library. • Receive Announcement Emails—covering timely events, membership news, spotlighted events, and CLE announcements. • Participate in our Lawyer2Lawyer Mentoring program—a web-based resource designed to connect experienced attorneys with newer attorneys who desire assistance with substantive legal issues or the personal and professional demands of practicing law. • Use the NBA Attorney Directory—to find names, photos, and contact information for Davidson County lawyers and judges, firm listings, court information, and areas of practice of local attorneys. Nashville Bar Journal • February 2016

Disclosure Adam Barber has been selected by Judge Randy Kennedy to serve as Probate Master for the Seventh Circuit Court in Metro Nashville. Prior to his selection, Barber served as Auditor for the Office of Conservatorship Management where he conducted audits of conservatorships and guardianships for the Davidson County Courts. Formerly, an associate with Clark & Washington, Adam handled the firm’s bankruptcy litigation in the Middle District of Tennessee. A graduate of the Vermont Law School where he obtained both his J.D. and Masters Degrees, Barber is also a magna cum laude graduate with a B.B.A. in both Finance and Business Economics from Grand Valley State University. Christen C. Blackburn has been named a Member of Leitner, Williams, Dooley & Napolitan, PLLC. Blackburn is an experienced litigator in the Nashville office where she represents Fortune 500 companies, small businesses, and governmental entities in a variety of litigated matters. Blackburn regularly handles tort litigation involving transportation, commercial premises, and products liability. She also dedicates a significant portion of her practice to employment litigation and workers' compensation, defending employers against allegations of discrimination harassment and retaliation, including lawsuits brought under Title VII of the Civil Rights Act of 1964, Tennessee Human Rights Act, Age Discrimination in Employment Act (ADEA), Family and Medical Leave Act (FMLA), and American with Disabilities Act. Blackburn has handled litigation in all stages, from responding to initial complaints through trials before judges, juries, and administrative bodies including the EEOC, the THRC, and the American Arbitration Association. Blackburn graduated from the University of Memphis, Cecil C. Humphreys School of Law in 2008. Bradley Arant Boult Cummings elevated the following three attorneys to partner, effective January 1: Joshua J. Phillips, R. Calloway Renegar, and D. Bryan Thomas.

Nashville Bar Journal • February 2016

\Dis*clo”sure\ (n) The act of revealing, releasing, or bringing to light relevant information concerning NBA Members and Staff. Announcements n People on the Move n Firm News Joshua Phillips is a member of Bradley’s Litigation and Financial Services practice groups. His practice concentrates on complex business and commercial disputes, enforcement of non-competes, healthcare litigation, products liability defense, and representing financial institutions and mortgage companies in civil litigation matters. With regard to the financial services work, Phillips has defended claims asserting violations of the Truth in Lending Act, Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, Home Ownership and Equity Protection Act, and state law claims arising from foreclosures and modifications. He earned his J.D., summa cum laude, from the University of Tennessee College of Law and his B.S. from Duke University. R. Calloway Renegar is a member of Bradley’s Banking and Financial Services and Real Estate practice groups. His practice includes the representation of national, regional and local banks, life insurance companies, and corporate clients in a variety of commercial and real estate lending matters, including construction loans, permanent financing, working capital loans, and general corporate loans secured by real estate and personal property. He also assists clients in documenting loan modifications, loan assumptions and workouts, and in conducting foreclosure sales. Renegar earned his J.D. from Vanderbilt University Law School and his B.S., summa cum laude, from Middle Tennessee State University. D. Bryan Thomas has a background in engineering, making him well suited to serve the full spectrum of construction industry clients. He focuses his litigation practice on construction- and property-related litigation where he represents owners, EPC contractors, general contractors, subcontractors, and suppliers in issues and projects ranging from stateof-the-art power plants to residential homes. He has also handled a variety of constructionrelated product liability cases and represented clients with property-related

matters, from lien and title issues to eminent domain proceedings and natural resources issues involving oil, gas, and coal. In addition to litigation, Thomas advises clients regarding construction-related contracts, risk management, and project administration. He earned his J.D. and his B.S., summa cum laude, from the University of Kentucky. Barbara Boone McGinnis was named partner at Elder Law Practice of Timothy L. Takacs on January 4, 2016. She joins founder Timothy L. Takacs at the helm of the Hendersonville-based elder law firm. Since joining the firm as associate attorney in 2011, McGinnis has provided legal expertise on a wide range of client issues with a focus on Medicaid appeals, Veterans benefits, and probate matters. She is a VA-accredited attorney. Barbara holds a Bachelor of Science degree in nursing from Austin Peay State University, a Master’s degree as a Gerontological Nurse Practitioner from Vanderbilt University, and a Juris Doctor degree from Nashville School of Law. Before receiving her license to practice law in Tennessee, Barbara spent more than 20 years as a Registered Nurse and Gerontological Nurse Practitioner working in a variety of settings. McKenzie Laird, PLLC announces two additions to the firm: Justin Leach and Whitney Haley. Justin Leach's practice will focus on commerical real estate transactions, including development, acquisitions, dispositions, and leasing. Prior to joining McKenzie Laird, Leach was a partner in the Real Estate practice group at Waller Lansden Dortch & Davis, LLP. Whitney Haley's practice will focus on business and commericial transactions including corporate, securities, real estate, and secured transactions. Prior to McKenzie Laird, Haley was an associate of Lewis, Thomason, King, Krieg & Waldrop, P.C. where she represeneted clients in construction litigation matters.

Neal & Harwell, P.L.C. names two Partners: Chandra N. T. Flint and Stephen M. Montgomery. Chandra Flint has been an associate at the firm since 2004. Her practice focuses on family law and criminal and civil litigation. She received her J.D. degree from Vanderbilt University Law School in 2004, and her B.A. with distinction from the University of Wisconsin – Madison. Flint is a member of the American Bar Association, Tennessee Bar Association, Nashville Bar Association, and the Nashville Lawyer’s Association for Women. She is admitted to practice in Tennessee and the United States District Courts for the Middle, Western, and Eastern Districts of Tennessee. Flint serves on the board of directors of CASA (Court Appointed Special Advocates). She and her family live in East Nashville. Stephen Montgomery has been with Neal & Harwell since 2008. His practice focuses primarily in the areas of commercial law, bankruptcy, and corporate transactions. He received his J.D. in 2007 from Vanderbilt University Law School. Prior to attending law school, Montgomery received his B.A., summa cum laude, also at Vanderbilt University. While at Vanderbilt, he was a member of the Pi Sigma Alpha honor society. Montgomery is licensed to practice in Tennessee and the United States District Court for the Middle, Western, and Eastern Districts of Tennessee. He is a member of the Tennessee Bar Association and the Nashville Bar Association. A native of Elizabethtown, KY, he and his family live in Old Hickory, where they are active in St. Stephen Catholic Community. He also volunteers with the Alzheimer’s Association, Mid-South Chapter. Gregg S. Treadway joined the firm of Haynes, Freeman & Bracey, PLC as a new associate. Treadway earned his J.D. from Nashville School of Law in 2012. He received his MBA from the University of Tennessee, where he received the 2008 Outstanding Executive Leader of the Year Award by the College of Business Administration. Treadway is a Rule 31 Listed Mediator and Certified Divorce Financial Analyst.

He is a member of the Elder Law College and National Academy of Elder Law Attorneys. Prior to entering the field of law, Treadway served as a senior level executive with several Fortune 500 retail companies, a professional speaker, and an adjunct faculty lecturer. He also has served as a volunteer pilot for Angel Flight and other charitable organizations. n Nashville Bar Association members may send Disclosure announcements to jill.presley@nashvillebar.org. Submissions are subject to editing.

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 and Services. Contact vicki.shoulders@nashvillebar.org for details.

2016 NBA PREMIER MEMBERS Frank Abernathy Gail Vaughn Ashworth Mark Beveridge Joe P. Binkley, Jr. C. Dewey Branstetter Jr. Kenneth Sherman Byrd Christopher Cardwell Kathryn Caudle Mark P. Chalos John Ray Clemmons Lewis Conner Patricia Cottrell John Day Joy Day David Downard Blair Durham John Floyd Keith Frazier Grant Glassford Charles Grant Jay Harbison William Harbison Marian Harrison Trey Harwell Aubrey Harwell Lisa Helton Paul Housch R. Jan Jennings Jordan Keller John Kitch William Koch Irwin Kuhn Ed Lanquist Andrew Laufman Thomas Lawless Claudia Levy

Randal Mashburn Amanda McClendon Rocky McElhaney Robert Mendes Jeffrey Mobley Marlene Moses Patricia Moskal Michael Mossman Mattison Painter David Parsons Gregory Pease Tracy Powell David Raybin Sara Reynolds Maria Salas Kathryn Sasser Carolyn Schott Kimberly Silvus Elizabeth Sitgreaves Eric Smith Saul Solomon John Spragens Michael Stewart James Stranch III James Stranch IV Claire Thomas Hon. Aleta Trauger Howard Vogel Michael Wall Elizabeth Washko James Weatherly Peter Weiss Thomas White Thomas Wiseman Stephen Young

Nashville Bar Journal • February 2016

Classifieds

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The Nashville Real Estate Market is Exploding. Make sure YOUR listing gets SEEN. ADVERTISE IN THE NBJ CLASSIFIEDS! Available Categories

Positions Available, Expert Witness, For Sale, Positions Wanted, Technical Support Services, Office Space, Litigation Services, Office Sharing, Accounting, Forensic Document Examiner, etc.

Classified Advertising Rates

Line Ads: $85 for the first 50 words and $1.25 for each additional word. Must be received no later than the 15th of the month prior to publication. Display Ads: $400 for 1/3 page • $325 for 1/4 page • $275 for 1/8 page Visit NashvilleBar.org/NashvilleBarJournal for more information.

ADVERTISER INDEX First Tennessee .......................... Cover 2 NADN ........................................ Page 17 Forensic Pursuit......................... Page 19

ADVERTISE YOUR PRODUCTS OR SERVICES HERE! Contact jill.presley@nashvillebar.org for more information!

IPSCO ........................................ Cover 3 Elder Law Practice...................... Cover 4

VISIT THE NBA CAREER CENTER AND GET STARTED! Employers

• Place your job in front of our highly qualified members. • Search our resume database of qualified candidates. • Manage jobs and applicant activity right from our website. • Limit applicants only to those who are qualified. • Fill your jobs quickly with great talent.

Job Seekers • Search for and easily apply to great, relevant jobs. • Set up Job Alerts so you are immediately notified any time a job is posted that matches your skills or interests. • Create an anonymous job seeker profile or upload your anonymous resume so employers can quickly find you. • Access job searching tools and tips.

Visit CareerWebsite.com today! 24

Nashville Bar Journal • February 2016

Join the NBA LRIS! LRIS MARKETS & ADVERTISES YOUR SERVICES!

Join the NBA LRIS—the exclusive referral service for the Nashville Bar Association—and your practice will benefit from our unique marketing and advertising programs. In addition to our online presence—which attracts clients nationwide—LRIS receives client referrals through a variety of sources including the courts, Office of the Attorney General, employee assitance programs, other Bar Associations, and the Social Security Administration. In 2015, member attorneys collected nearly $400,000 in fees generated by referrals from LRIS. For information on joining the NBA LRIS, contact wendy.cozby@nashvillebar.org or visit NashvilleLawyerReferral.org. The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

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Elder Law Practice of Timothy L. Takacs

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

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

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

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

Lawyers of America magazine since 2007 and US News Best Lawyers in 2012 n One of the founders and the first president

of the Life Care Planning Law Firms Association n Author of Elder Law Practice in Tennessee and A Guide to

Elder Law Practice, both published by LEXIS Law Publishing

For two decades, improving quality of life for elders and the families who love and care for them has been his primary focus. He can help your clients, too.

Middle Tennessee: (615) 824-2571 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