Background Check

BACKGROUND CHECK Judge Jennifer Smith | Bart Pickett

On March 3, the voters of Davidson County cemented Jennifer Smith’s role as a criminal court judge. Governor Haslam appointed her to fill the vacancy left by the retirement of Judge Seth Norman in November 2018. Voters selected Judge Smith as the Democratic candidate for this Fall’s general election—an election where she will face no opposition.

Jennifer grew up on the Mississippi coast in Pascagoula where her mother and extended family still live, including her mother who works as a court administrator and her father who previously worked in the oil business. Jennifer excelled in the high school band where she played the trumpet. The talent led to a full scholarship at Ole Miss where she continued to play all four years. She then realized being an English major without any teaching credits meant she needed to stay in school. She debated between getting a graduate degree in English or going to law school. Seeming to be the more profitable choice, Jennifer chose law school, though she had never even thought of being a lawyer before then. Jennifer applied to and was accepted to the law school at Ole Miss. Given that she loved Oxford, she did

not mind spending another three years there. She spent her first two summers working at civil litigation firms, one in New Orleans, Louisiana and one in Youngstown, Ohio. Ultimately, the Gulf Coast called her home. She took a job with a local firm where she began her career around lawyers she grew up knowing while also being near her family. Jennifer spent three years practicing insurance defense before deciding that she not only wanted a difference area of practice but also a change of scenery. Following in the footsteps of some friends, she decided to move to Nashville.

In 1994, Jennifer arrived in Nashville without a job. Fortunately for her, she secured an interview at the Attorney General’s office and, before she knew it, her criminal law career began. While she had a couple brief stints away from the Attorney General’s office, including becoming Metro’s first guardian ad litem for juvenile court, she always returned. During her tenure at the Attorney General’s office, she focused on criminal appeals, federal habeas work, and capital punishment cases. She worked under five different Attorneys General.

Jennifer had not spent much time considering a change until she learned of Judge Norman’s announced retirement. While she had enjoyed her 30,000-foot view from the appellate world, she wanted to be back in the heart of our criminal justice system. Realizing these positions do not open up frequently, she gave it a shot—and the governor chose her out of the nine who applied.

So far, Jennifer loves her new role, but it is different than what she expected. She is surprised and agonized by the amount of discretionary issues that appear before a criminal court judge. She tries to make the best decision and not just the easiest.

In Division IV, Jennifer handles criminal dockets, probation violations, and jury trials. She has had 13 jury trials during her relatively short tenure. In addition to the normal criminal docket, Jennifer also presides over Davidson County’s residential drug court. She goes at least weekly to the court in Bordeaux where she oversees an average of 70 residents plus aftercare participants.

Always willing to try something new and follow her heart, Jennifer joined the Navy Reserves in 1999. Over 20 years later, she continues to serve as an intelligence officer and has reached the rank of commander. In addition to the two weekends a month and a minimum of two weeks a year of training, she has been deployed twice to Afghanistan and Bahrain.

Jennifer’s time is further occupied by her role as a single mom of two teenage sons—ages 17 and 15—and two golden retrievers. They live in the Sylvan Park neighborhood of Nashville. n

BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups in litigation throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

Update your website and check in with your online presence. According to a 2017 Clio Legal Trends Report, 37% of consumers look for legal referrals by an online search, with 62% of consumers seeking referrals from friends and family before hiring an attorney, and 31% seeking referrals from other attorneys. 4 For personal referrals, check in with your colleagues and local associations to let them know about your practice and cases you are available to accept in your practice area.

New Client v. Former Client

Congratulations, you have a prospective new client that wants you to represent them in a case. However, while reviewing the prospective client’s issues you find out that your representation of the new client may be adverse to a former client. Now what? Under the Rules, a lawyer has continuing ethical responsibilities to his or her former client; those responsibilities are continued confidentiality and to abstain from attacking any legal matter accomplished on behalf of the former client or representing the opposition closely related to the previous legal matter. 5 The TBPR leaves it up to the independent professional judgment of the lawyer to decide whether undertaking representation would be inappropriate if a Rule is unclear under certain scenarios. However, things such as the vesting of a previous client’s rights or whether confidential communications by the former client would be now used adversely in the interest of the former client should be taken into consideration. 6 Rule of Professional Conduct 1.9 further explains a lawyer’s duties to his or her former clients. If there is a question as to whether you can proceed, obtaining written, informed consent from the former client as required is the best way to go. However, there may be some cases that you cannot take and that is okay, too.

A Clear Head and Room for More

When one door closes, another one opens. This is true for cases. Call it the universe, but when you are open to accept more, you will receive. While this list is not exhaustive, I hope it gives you space to imagine all the things you can do with a spring in your step and a little more room in your practice. n

Endnotes

1 Joe G. Riley, Michael U. King & Odell Horton, Jr., Client Files, Board of Professional Responsibility of The Supreme Court of Tennessee, Formal Ethics Opinion 2015-F-160, Ethics Committee, Tennessee Board of Professional Responsibility (Dec. 11, 2015).

2 Wade Davies, H. Scott Reams, and Michael Callaway, Board of Professional Responsibility of The Supreme Court of Tennessee, Formal Ethics Opinion 2015-F-159, Ethics Committee, Tennessee Board of Professional Responsibility (Sept. 11, 2015).

3 Board of Professional Responsibility, En Banc., False or Misleading Advertising, Board of Professional Responsibility of The Supreme Court of Tennessee, Formal Ethics Opinion 2004-F-149, Ethics Committee, Tennessee Board of Professional Responsibility, (Sept. 17, 2004).

4 Casetext, The Lawyer’s Guide to Effective Referral Marketing, JDSUPRA, (Aug. 28, 2019) (citing Kevin O’Keefe, Referrals Remain Leading Way Lawyers Get Clients, Per Legal Trends Report, Above the L w, (Oct. 13, 2017)).

5 C.T. Herndon III, Michael E. Callaway & G. Wilson Horde, Representation Adverse to Former Client, Board of Professional Responsibility of The Supreme Court of Tennessee, Formal Ethics Opinion 86-F-104, Ethics Committee, Tennessee Board of Professional Responsibility (Aug. 4, 1986).

6 Id.

LAUREN M. POOLE is an Associate Attorney at Taylor, Pigue, Marchetti & Blair where she practices civil litigation, including bankruptcy and creditors’ rights. She earned a BA in Political Science and Studio Art from the University of Tennessee, Knoxville, and a JD from Belmont University College of Law. Lauren serves as co-chair of the NBJ Editorial Committee, and is passionate about supporting the arts.

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The Presidential Pardon: America’s “Trump Card” or An Act Full of Grace

It’s a power belonging uniquely to the president—the power to pardon. This presidential prerogative is one of the least limited powers granted to the president by the US Constitution. It authorizes the president as chief executive to commute sentences for federal crimes. The presidential pardon power was recently exercised by President Donald Trump drawing criticism and controversy by some.

President Trump’s most recent round of pardons included pardons for former lllinois governor Rod Blagojevich, who was imprisoned for attempting to sell the senate seat President Barack Obama vacated when he became the nation’s 44th president; “Junk-bond king” Michael Milken; former NYPD Commissioner Bernard Kerik; and Eddie DeBartolo, the former owner of the San Francisco 49ers, among others.

The president’s pardon power is derived from the Constitution. Article ll, Section 2, Clause I of the US Constitution. “The President . . . shall have Power to grant Reprieves and pardons for Offences against the US, except in Case of lmpeachment.” So, no, President Trump cannot pardon himself from his own impeachment proceedings.

Historically, presidents have exercised this power sparingly.

The first use was to pardon two men charged with treason for their actions during the 1795 Whiskey Rebellion. ln his annual address to Congress in the same year, President George Washington said he had been motivated to show both mercy and serve the public good in pardoning the two men. These rationales established the clemency standard each subsequent president has purported to follow in their exercise of the power, and each of President Washington’s rationales has been featured in Supreme Court decisions—United States v. Wilson (describing pardons as an “act of grace”) and Biddle v. Perovich (describing pardon and clemency decisions as ones guided by “public welfare”).

Presidents Abraham Lincoln and Andrew Johnson used pardons to heal the nation following the Civil War. President Truman pardoned World War ll draft-dodgers, as did Presidents Jimmy Carter and Gerald Ford for Vietnam War draft offenders. Presidents Barack Obama and George W. Bush used the power to show mercy, pardoning individuals convicted of, for example, stealing money from the mail, bootlegging, and using food stamps illegally. All told, there have been roughly 30,000 pardons in our nation’s history, and all 45 of our presidents have exercised (continued on page 14)

the prerogative.

Most recently, President Trump’s pardons have been controversial to many because, at first blush, each person appeared to have some connection to Mr. Trump. However, this reaction is only one part of the story and oversimplifies the pardon process.

The procedure for securing a presidential pardon is often arduous and involves a massive effort. See 28 CFR § 5 1.1 et seq. Petitioners must wait a minimum of five years following conviction before submitting an application, and then the real journey begins. They must also assemble a host of materials and work to get their petition in front of decisionmakers, who, by and large, are former prosecutors not eager to undo the work of their colleagues. Success rates are also extremely low. For example, President George W. Bush granted only approximately 2% of the petitions made during his terms, and President Obama granted only 5.3%. lt remains to be seen what President Trump’s final figures are, but while these most recent pardons

have been high profile and controversial, the overall success rate for petitioners is extremely low.

Critical to the pardon petition is the acceptance of responsibility for a crime, as well as cooperation with law enforcement officials from the outset of the case. Petitioners often obtain commendations from exemplary role models and highlight their good works accomplished before and since conviction. Also, paramount are character reference letters written on the client’s behalf by friends, family, and other individuals who have been positively affected by the person seeking the pardon.

Like many legal issues and circumstances, receiving the pardon is not the end. The next phase of the pardon process journey is to restore lost constitutional rights, specifically the right to vote and the right to obtain a permit to carry a concealed weapon. This phase and its tasks are happily undertaken by the pardoned one and counsel. Because, as understood, the lynchpin of pardon determinations is accepting responsibility,

something done, and something often forgotten, when pardon announcements are made.

Starting in 2001, Neal & Harwell attorneys began working to secure a presidential pardon for DeBartolo, who pleaded guilty for failing to report he had been extorted by former-four-term Louisiana Governor Edward Edwards. This was certainly a challenging endeavor following DeBartolo’s plea. lt took a colossal task, and after four petitions to three separate presidents and two decades of advocacy, DeBartolo received his pardon. n

TREY HARWELL is a partner at Neal & Harwell. His principal areas of practice are complex civil litigation, white-collar criminal defense, internal investigations and crisis management. Trey provides strategic and innovative legal solutions for a diverse range of individual and corporate clients.

JAY HARBISON is an attorney at Neal & Harwell, who represents both plaintiffs and defendants in the areas of business and civil litigation. He graduated magna cum laude from the University of Tennessee College of Law. Prior to joining Neal & Harwell, Jay served as a law clerk for the Honorable Gilbert S. Merritt, Jr. of the US Court of Appeals for the Sixth Circuit.

TREY RELIFORD is a trial attorney at Neal & Harwell. His practice focuses on complex litigation, specifically in the areas of white-collar and regulatory defense, entertainment litigation, general commercial litigation, securities, antitrust, employment and intellectual property law. Before joining the firm, Trey clerked for Chief Justice Jeffrey S. Bivins of the TN Supreme Court and worked as an associate at Paul, Weiss, Rifkind, Warton & Garrison, LLP in New York. Trey earned his JD from Stanford Law School.