Issuu

JOURNAL Journal Journal

APRIL/MAY 2022 | VOLUME 22 | NO. 2

FEATURE

Thinking About Mary Northern ALSO

Tennessee Health Care Documents Business Courts from Tennessee to Delaware

A Safer, Stronger Nashville A vibrant legal community strengthens the fabric of a city. That’s the work of the Nashville Bar Association and why we’re proud to invest in its community building mission. We’re also excited to support bar association members like you with business credit and cash management solutions that help you build the bottom line at your practice.

Herman Hicks Private Client Relationship Manager First Horizon Bank 511 Union St. • Nashville, TN 37219 (615) 734-6186 • hahicks@firsthorizon.com

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FE ATU R E

Thinking About Mary Northern

APRIL/MAY 2022 | VOLUME 22 | NO. 2

by Barbara Moss

DEPA R TM E N TS

From the President Martesha L. Johnson

Calendar of Events

Hear Ye, Hear Ye

Law Day 2022 Tennis Tournament Golf Tournament Spring Memorial Service Family Zoo Day

Tennessee Health Care Documents David E. Heller

22 Business Courts from Tennessee to Delaware Will Pugh

CO L UMNS

CLE Schedule

barBITES

Hearsay

100% Club

Background Check 11 Bart Pickett

Gadget of the Month

13 Bill Ramsey & Phillip Hampton Capitol Notes 21 Peggy Sue, the Beagle Hound

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

FROM THE PRESIDENT

The Original MLJ | Martesha L. Johnson MARTESHA L. JOHNSON, Publisher WILLIAM T. RAMSEY, Editor-in-Chief CAROLINE SAPP, Managing Editor LAUREN POOLE, Managing Editor ADRIENNE BENNETT CLUFF, Layout/Design/ Production

EDITORIAL COMMITTEE RAMONA DESALVO TIM ISHII KELLY FREY SUMMER MELTON ROB MARTIN BART PICKETT KATLIN RYAN KRISTIN THOMAS JONATHAN WARDLE NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1350, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1350, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Adrienne.BennettCluff@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1350 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship. The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

The feature article in this Bar Journal is on issues facing elders and the case of Mary Northern. I can’t think of elder Americans without thinking of my grandmother. On March 13, 2022, my grandmother Minnie turned 95 years old. This beautiful milestone allowed my family to celebrate our matriarch and all that she has been to our family, recall how her wisdom and influence has shaped our values, and renew our dedication to making sure her legacy lives on in the Johnson family for generations to come. “The original MLJ,” as I call her, has been a force in my life. My grandmother has always showered me with kind words, the right amount of spoiling, and her chicken noodle soup will go down in history as the best meal I’ve ever eaten. Amid reading tributes and birthday wishes to my grandmother, I realized that I have always been drawn to the elders of my community. From the days I spent as a child with my great aunt (I got my love for the news and solving mysteries from her) to spending time with seniors at care facilities at various stages in my life, I truly enjoy the opportunities to learn and hear stories from the generations from those who paved the way. I often imagine what life was like for my grandmother when she was my age. She faced many hardships and made sacrifices that laid the groundwork for my ability to enjoy the successes I have experienced so far. I am forever grateful for my grandmother. An African proverb says, “the youth can walk faster, but the elder knows the road.” Anyone with the ability to learn from elder members of our community should embrace the opportunity to absorb the knowledge. There are many ways for lawyers to provide legal services for elders and the need for practitioners in this area will increase in the years to come. The US Census Bureau projects that by 2035, for the first time in American history, there will be more adults aged 65 and older than children. The Centers for Disease Control has estimated that more that 500,000 elder Americans suffer from financial elder abuse annually. The National Council on Aging reports that over 15 million (roughly 1 in 3) older adults aged 65 and up are economically insecure, living below 200% of the poverty level. I encourage us all to find ways to honor the elders among us this season by volunteering our time and talents to this important generation. It takes a village to raise a child—and to care for our elders. Happy Birthday, Nana!

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

In Solidarity,

NashvilleBar.org Calendar of Events | Full calendar online at NashvilleBar.org

APRIL 2022 M O N D AY

T U E S D AY

W E D N E S D AY

T H U R S D AY

F R I D AY

1 NBA Board Mtg 4:00pm Dial-A-Lawyer 6:00-8:00pm

Diversity Committee 12:00pm

6 Historical Committee 11:30am YLD Board Mtg 12:00pm

12 Memorial Service Committee 12:00pm

Ethics Committee 12:00pm

7 NBF Trustees Mtg 12:00pm NBJ Editorial Committee Mtg 12:00pm

8 GOOD FRIDAY PASSOVER

Holiday | NBA Office Closed

LRIS Committee 3:00pm

MAY 2022 M O N D AY

T U E S D AY

W E D N E S D AY

Dial-A-Lawyer 6:00-8:00pm

T H U R S D AY

CLE Committee Mtg 12:00pm

F R I D AY Law Day Lunch 12:00pm-1:00pm | Downtown Renaissance Hotel

Diversity Committee 12:00pm

NBA Historical Committee 11:30am YLD Board Mtg 12:00pm

Ethics Committee 12:00pm

NBA + NBF Golf Tournament 1:00pm-6:00pm | Hermitage Golf Course

Spring Memorial Service 11:00am | Downtown Presbyterian Church NBA Finance & Executive Committees 4:00pm

MEMORIAL DAY Holiday | NBA Office Closed

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

Hear Ye, Hear Ye | Events of Interest

2022 NBA BOARD OF DIRECTORS MARTESHA L. JOHNSON, President GULAM ZADE, President-Elect

HON. MELISSA BLACKBURN, First Vice President LIZ SITGREAVES, Second Vice President CHARITY WILLIAMS, Secretary FLYNNE DOWDY, Treasurer GIL SCHUETTE, Assistant Treasurer LELA M. HOLLABAUGH, General Counsel JEREMY OLIVER, YLD President MIKE ABELOW, Immediate Past President LORA FOX, First Vice President-Elect MARLENE MOSES, Second Vice President-Elect

In celebration of the American Bar Association’s Law Day, the Nashville Bar Association invites you to join us on Friday, May 6, at the Downtown Renaissance Hotel for our Law Day lunch. For the latest information, stay tuned to NashvilleBar.org/LawDay. n

BAHAR AZHDARI CHRISTEN BLACKBURN JAZ BOON ERIN COLEMAN RAQUEL EVE OLUYEMO SAM FELKER MANDY FLOYD ELIZABETH FOY MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES JOSEPH HUBBARD KIM LOONEY

NBA “Grand Slam” Tennis Tournament Join the NBA at Seven Hills Swim and Tennis Club on Saturday, May 14, at 10:00am for a “Grand Slam” Tennis Tournament. We will be playing doubles in a Round Robin tournament. Registrants will be paired up randomly. Entry fee is $30 per person and includes lunch, drinks, and a can of balls. There will be 1st and 2nd place prizes! Register now at NashvilleBar.org/Tennis! n

JUNAID ODUBEKO KAYA GRACE PORTER MARIE SCOTT TIM WARNOCK LUTHER WRIGHT

NBA TEAM MONICA MACKIE, Executive Director CAMERON ADKINS, CLE Director ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator SHIRLEY ROBERTS, Finance Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Adrienne.BennettCluff@nashvillebar.org.

NBA + NBF Golf Tournament

Get ready for a day on the green with your friends and colleagues on Thursday, May 19, and spend a day putting around in the sunshine at our annual golf tournament. Presented by the NBA and NBF, the tournament will be held at the Hermitage Golf Course in Old Hickory. Range balls will be available beginning at 12:00pm with a shotgun start at 1:00pm. The entry is $160 for NBA members, $180 for non-members, and includes range balls, greens fee, cart, beverages, snacks, and dinner. All registrations must be submitted by Thursday, May 12. We will have dinner and prizes at the conclusion of play. Prizes for teams and individual contests include longest drive, longest putt, closest to pin, etc. To register your foursome, email Traci with your team member names, or each member may register individually at Nashvillebar.org/Golf. n

NASHVILLE BAR JOURNAL | APRIL/MAY

Welcome to the NBA! Congratulations on your membership—thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org with questions or to learn more.

NEW MEMBERS (JANUARY 1 - FEBRUARY 28) Anthony Adewumi

Karin Dwight

Trent Norris

Josh Bolian

Pete Harris

Jody O’Brien

Jack Bond

Elizabeth Huertas

Nattaly Perryman

Micah Bradley

Mari Jasa

Toni Rutgerson

Ashley Cannon

Cady Kaiman

Kim Spann

Alex Carver

Lindsay Lundeen

Kyle Stack

Mitzi Dorris

Katie Miller

Melissa Tribue

Grace Dunn

Matthew Mullins

Dan Whitaker

Spring Memorial Service

Our Spring Memorial Service will be on Thursday, May 26, 2022, at the Downtown Presbyterian Church. The service begins at 11:00am. We hope you can join in and remember those who have gone before us. Memorial resolutions are presented in honor of those in the Nashville legal community who have recently passed away. The memorial resolutions are prepared and read on the minutes of the Chancery Court at the service by friends and colleagues of the bench and bar and are added to the NBA’s collection of more than 100 years of resolutions. Family members and friends of the deceased are invited to attend. Visit NashvilleBar.org/Memorial to view a list of those being honored and save your spot today. n

NBA Family Zoo Day

Gather with your lawyer friends and their families on Saturday, June 11, for our Family Zoo Day at the Nashville Zoo. Upon arrival, visit the NBA table between 10:00am and 12:00pm to pick up your tickets and complimentary treats, sponsored by K&L Gates and Nashville Electric Service. Need Tickets? Email Traci.Hollandsworth@Nashvillebar.org, and let her know how many FREE tickets you need and they will be ready and waiting for you at the NBA table when you arrive. Limit four tickets per NBA member. Already have tickets or passes? Come by the NBA table to say hello and pick up fun snacks and goodies on your way into the zoo! Visit NashvilleBar.org/Zoo for more information. n

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

Feature Story | Barbara Moss

THINKING ABOUT MARY NORTHERN: REPRESENTING CLIENTS WITH DEMENTIA IN CONSERVATORSHIP CASES Those of us who were adults and reading the newspapers in 1978, and especially those of us who were or are lawyers, are still haunted by the case of Mary Northern.1 Mary Northern was a 77-year-old resident of Nashville who was living in a dilapidated home on Gallatin Road. She had no help from relatives and was living in deplorable conditions with her cats and without heat or other utilities. Eventually, she was taken to General Hospital where she was diagnosed with gangrene of both feet resulting from frostbite.2 Ms. Northern refused to agree to have her feet amputated. Physicians determined, and the Chancery Court and Court of Appeals agreed, that Ms. Northern’s life was critically endangered; that she was mentally incapable of comprehending the facts which constituted that danger; and that she was, to that extent, incompetent.3 Affirming the decision of the Chancery Court, the Court of Appeals found Ms. Northern could have exercised her rights to die by stating that she preferred to die rather than have her feet amputated.4 Instead, she strongly wanted to live and to keep her feet, the conjunction of which was statistically improbable. Appeals ensued.5 While the appeals were pending, the flesh around the bones of Ms. Northern’s feet sloughed off. Ultimately, Ms. Northern did not have the surgery and died on May 1, 1978. Sadly, Mary Northern may or may not have experienced the best possible result in her case. If her feet had been amputated, what type of life would she have had? We will, of course, never know. There have been many developments since the Northern case 44 years ago, and those developments can inform our representation of clients with dementia in conservatorship cases. What Do We Know About the Incidence and Cause of Dementia? The most common type of dementia is Alzheimer’s disease, but other types include vascular dementia, Lewy body dementia, and frontotemporal dementia.6 Dementia is not a part of normal aging.7 The risk factors for dementia are age,

family history, race/ethnicity, poor heart health, and traumatic brain injury.8 Age is the biggest risk factor. Age Percentage of Americans with Alzheimer’s 64-74 3% 75-84 17% 85 and older 32% People younger than 65 can develop Alzheimer’s, but it is much less common, and the prevalence is uncertain.9 An estimated 5.8 million Americans have Alzheimer’s today and that number is projected to grow to 13.8 million by 2050.10 How Was the Legal Framework Changed Since the Northern Case? The Northern case was brought under then-existing statutes providing for furnishing protective services to elderly persons who lacked capacity to consent.11 The provisions of the Tennessee Code for Conservatorships were not enacted until 1992. Under current law, an action to appoint a conservator may be brought by “any person having knowledge of the circumstances necessitating the appointment of a conservator.”12 At a hearing no less than seven days or more than 60 days after service on the respondent, the court must find by clear and convincing evidence that the respondent is fully or partially disabled and that he or she is in need of assistance from the court before a conservator can be appointed.13 Rights are then removed from the respondent and vested in the conservator by the order of the court.14 The court is under a duty to impose the least restrictive alternatives consistent with the protection of the person and property of the respondent.15 A guardian-ad-litem is appointed in each conservatorship action.16 The appointment of an attorney ad litem is not uniform but only happens upon the recommendation of the (continuedononpage page00) 8) (continued

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

Feature Story | Thinking About Mary Northern

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(continued from page 7)

guardian-ad-litem or upon the court’s determination that such an appointment is necessary to protect the rights of the respondent.17 Usually, that occurs when the respondent disputes the necessity of a conservatorship. The respondent’s right to have an attorney ad litem appointed is specifically preserved by statute.18 There is no discussion in the Tennessee Code as to the parameters of the attorney ad litem’s representation of a client with dementia.19 The framework for the appointment of a conservator on an emergency basis was not added to the Tennessee Code until 2013.20 Where following the normal time periods for a conservatorship will “likely result in substantial harm to the respondent’s health, safety, or welfare” and no other person is acting in the best interests of the respondent, a conservator can be appointed on an emergency basis.21 The court appoints an attorney ad litem to represent the respondent “immediately upon receipt of the petition.”22 Again, there is no discussion in the statute as to how the attorney carries out that representation, and, therefore, no guidance as to representation where the respondent lacks capacity.23 The Tennessee statute envisions that a physician, or, “where appropriate, a psychologist or senior psychological examiner” will be involved in the process of determining whether a conservator is needed.24 If an examination has been conducted by such a physician or psychological professional within 90 days of the filing of the petition, a sworn report of that examination is submitted to the court with the petition.25 If the respondent hasn’t been examined in that time period or refuses to be examined, the court orders an examination by the respondent’s regular physician or psy-

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

chological professional or one selected by the court.26 The sworn report of the examination by the physician or psychological professional is required to state the respondent’s medical history, a description of the nature and type of the respondent’s disability, an opinion as to whether a conservator is needed, the “type and scope of the conservator with specific statement of the reasons for the recommendation of conservatorship,” and any other matters the court deems necessary or advisable.27 How Do We Evaluate Persons Subject to a Convervatorship Proceeding? As the Tennessee statute makes clear, the court has to identify the disabling illness, injury or condition of the person over whom a conservatorship is sought.28 The pivotal issue, however, is whether the “respondent is in need of assistance from the court.”29 The question, then, is the effect the disabling condition has on the capacity of the person for whom a conservatorship is being sought.30 Capacity is not a diagnosis, but rather reflects a person’s ability to perform a specific task.31 In a conservatorship case, the question of capacity is often dual: (1) functional capacity or the ability to take care of oneself and (2) decision making capacity or the ability to make and communicate decisions about caring for oneself and one’s property.32 Obviously, these two types of capacity are interrelated. The sworn Physician’s Report required by the Tennessee Code requires the physician or psychologist to provide an opinion as to whether a conservator is needed and acts essentially as a re(continued on page 14)

Editorial | David E. Heller

Tennessee Health Care Documents: Advanced Care Directives and Appointment of Health Care Agent With most estate planning documents, the primary purpose of the document is to speak for the person when they can no longer speak for themselves. Power of Attorney documents identify who can make decisions for someone who is alive, but unable to communicate for themselves, and also provide instructions on what actions can and cannot be taken on the person’s behalf. A Last Will and Testament provides direction after a person dies, appointing the person with authority to wind up the estate and directing how the person’s assets are to be distributed. Health care documents are some of the most important estate planning documents a person can execute. There are two main health care documents.1 One is an Advanced Care Directive, and the other is the Appointment of a Health Care Agent. Prior to the enactment of Tennessee Health Care Decisions Act in 2004, both health care documents were known by other names. The Advanced Care Plan was previously referred to as the “Living Will,” possibly one of the most confusingly named documents because many people think that when they have a Living Will, they also have a Last Will and Testament. They do not understand that a Living Will and a Last Will and Testament are not the same document. The Appointment of Health Care Agent was previously known as the “Medical Power of Attorney”. The Advanced Care Directive allows a person (the “Principal”) to direct what type of medical treatment the person wants if they are incapacitated and therefore unable to make health care decisions. An Advanced Care Directive is defined as an “individual instruction or a written statement relating to the subsequent provision of health care for the individual.”2 The Tennessee Department of Health has a specific form for Advanced Care Directives.3 On this form, the Prin-

cipal can identify certain situations as either an acceptable or unacceptable quality of life. Additionally, the Principal can then identify certain types of treatment to receive or not receive in the event they experience one of these identified unacceptable quality of life situations. Further, the Advanced Care Directive can also provide end of life instructions and choices for organ donation. The Appointment of Health Care Agent answers the question, “Who does the person want to speak for them regarding health care decisions when they cannot communicate?” The Appointment of Health Care Agent often identifies a primary agent and an alternate agent. Once the Appointment of Health Care Agent is effective, the Agent has the authority to make medical decisions on the Principal’s behalf. Such decisions include the authorization of medical procedures, the placement of the Principal in a treatment facility and the use or removal of life sustaining treatment. Additional details about these documents include: • Any adult, age 18 or over, can execute these health care documents. An emancipated minor can also execute these documents.4 The Principal must sign the documents in the presence of a notary public or two witnesses who are not related to the Principal by “blood, marriage, or adoption” and are neither beneficiaries under Principal’s Last Will and Testament nor intestate heirs.5 • The Health Care Agent is directed to follow the Principal’s instructions and choices from the Advanced Care Directive. The Advanced Care Directives are not merely suggestions for the Health Care Agent to consider.6 (continued on page 12)

FEBRUARY/MARCH 2022 | NASHVILLE BAR JOURNAL

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Adrienne.BennettCluff@ nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

FEB/MAR GOLDEN OLDIES

Congratulations to Gil Schuette of Sims|Funk for correctly identifying the individuals in last issue’s photo! From left to right: David Raybin, Charles Grant, Kay Caudle, Joycelyn Stevenson, Rob Bigelow, Claudia Levy. n

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

BACKGROUND CHECK

Amy Willoughby Bryant | Bart Pickett

Thanks to a certain pop star and her national publicity, the country now knows about conservatorships. Davidson County fortunately finds itself with the much-needed oversight provided by the Office of Conservatorship Management under the helm of its Director Amy Willoughby Bryant. State Trial Courts appointed her in December 2018. The path to this role was not a clear one. Bryant laughingly recalls when she applied, she had never heard of the office and was not familiar with its work. Thankfully for her, after researching the job and meeting with Judge Kennedy, she walked away knowing she was meant for the role. Bryant grew up in Memphis, the oldest of 4 siblings. Her mother worked for the IRS, and her father owned a real estate company. She attended Overton School for the Performing Arts where she played violin in the orchestra. When TSU offered her a full scholarship including one semester at the University of Hawaii, Bryant moved to Nashville in 2000. At the time, her intention was to take over her father’s real estate business. After studying for her real estate license following her freshman year, her in-

terest in real estate law began and convinced her to seek out law school. After not finding a pre-law group at TSU, she founded the Phi Alpha Delta Pre-Law Fraternity at TSU, for which she still serves as their advisor. When she visited colleges in high school, Bryant remembers being in love with St. Louis University’s campus which led to her applying to its law school. Without knowing anyone, she packed up and moved to St. Louis in the fall of 2004 to begin law school with the intention of becoming a real estate lawyer. She also had no intention of moving back to Tennessee but she ended up right back in Nashville following graduation. Bryant studied for the bar in Nashville in the summer of 2007. She had moved back for her husband at the time. She did not have a job but found herself applying at every title company and real estate job she could find. Ultimately, Realty Title hired her in August 2007, but due to the real estate crash, the company fired several of their attorneys that December. Bryant found herself suddenly having to pivot. She took on some Counsel on Call assignments for a time. She also went to Juvenile Court to explore appointments. She remembers going one day and observing Judge Shelia Calloway, who appointed Bryant to a case. Bryant, with zero litigation experience, expressed her concern and to her relief was appointed a co-counsel. Calloway also offered to allow Bryant to come observe her trial advocacy class at Vanderbilt Law which Bryant jumped on. By October 2009, Bryant had started her own practice and had her

own real estate business. While she loved being an entrepreneur, Bryant had remarried and was raising their children and found herself looking for more stable hours. She found that balance when she started as an attorney for TennCare in 2015. At TennCare, she found herself enjoying the management aspect of her job but felt that she had peaked for the foreseeable future in that department. As a result, she started searching other governmental jobs, particularly director roles. In her current role, Bryant found what she looked for in a job. She is able to educate the public, manage employees, and help develop policies, programming and initiatives. The office regularly oversees approximately 2,400 conservatorships in Davidson County. When not at work, Bryant has volunteered her service on numerous boards. She currently serves as an NBF Trustee, the co-chair of the NBA Diversity Committee, and on the National Guardianship Board. She also teaches at Belmont Law as an adjunct professor. Bryant and her husband, Julian, live in Mt. Juliet with three of their children (6, 8, and 10) and their cat Skeeter. Her oldest is a freshman at Morehouse College. In her free-time, Bryant can be found doing anything outdoors, traveling, or Latin dancing. 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.

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

Editorial | Tennessee Health Care Documents • Similarly, a health care institution is directed to comply with the Principal’s directions and those of the Health Care Agent. Regardless, the institution may refuse to comply due to reasons of conscience or if the instruction “requires medically inappropriate health care or health care contrary to generally accepted health care standards applicable to the health care institution.”7 • A Living Will and Durable Power of Attorney for Health Care are still valid and coexist with the Advanced Care Directive and the Appointment of Health Care Agent. Prior documents executed as a Living Will and Medical Power of Attorney are still valid. A person does not have to execute a new Advanced Care Directive and Appointment of Health Care Agent.8 • If a person does not have an Appointment of Health Care Agent, a health care surrogate can be identified to make decisions. Tennessee statute sets an order of preference of who is authorized to become a surrogate.

(continued from page 9)

First, is the person’s spouse, so long as they are not legally separated. Next, is an adult child of the person. Next, a parent of the person, and then an adult sibling of the person. Next, an adult relative of the person. 9 • The Health Care Agent’s authority becomes active when the person is deemed to lack capacity.10 Capacity is defined as having “the ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision.”11 • The Advanced Care Directives and the Appointment of Health Care Agent can be combined into one document. These two health care documents work together. An Advanced Care Directive provides instruction for a person’s health care and the Appointment of Health Care Agent identifies the person responsible for implementing these and other health care instructions. Health care decisions are some of the most important decisions a person can

make for themselves. With an Advanced Care Directive and the Appointment of Health Care Agent in place, a person can better ensure that they will experience endof-life care that matches their wishes. n DAVID HELLER is a partner at Martin Heller Potempa & Shepard. Heller’s practice focuses on family wealth preservation, which includes estate planning, estate tax planning, and asset protection planning.

Endnotes

T.C.A. Section 68-11-1801, the Tennessee Health Care Decisions Act 2 T.C.A. Section 68-11-1802(a)(1) 3 T.C.A. Section 68-11-1805 4 T.C.A. Section 68-11-1803(a) 5 T.C.A. Section 68-11-1803(b) 6 T.C.A. Section 68-11-1803(e) 7 T.C.A. Section 68-11-1808(b) 8 T.C.A. Section 68-11-1803(j) 9 T.C.A. Section 68-11-1806(3) 10 T.C.A. Section 68-11-1803(c) 11 T.C.A. Section 68-11-1802(a)(3) 1

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NASHVILLE BAR JOURNAL | APRIL/MAY 2022

BILL & PHIL’S GADGET OF THE MONTH

Bose Frames | Bill Ramsey & Phillip Hampton

If you have heard us speak this year, you know that we are all about immersive technology these days. The key to immersive technology is the removal of barriers to utilize technology in our daily lives. The less devices we have to physically hold in our hands and the less buttons we have to push, the better, in our view. So, it was no surprise that we were attracted to our latest gadget, the Bose® Frames audio sunglasses. These specially equipped sunglasses allow us to listen to audio content from our phone, take calls, and even dictate commands completely hands free and without any headphones or ear buds. Talk about freedom! First of all, the Bose Frames look like regular sunglasses to the casual observer. They remind us of the traditional Ray Ban look with the classic black styling. If you look more closely at them, you will notice that the arms of the sunglasses that rest on your ears are a little thicker than normal sunglasses because they house the electronics that make the frames work. Each arm contains small speakers along with a microphone that allows the wearer to both hear and speak handsfree. While these electronics add a little bit of

heft to the sunglass frame, they do not feel excessively heavy on your face. We have worn our pair casually while driving and also while walking or running outside and have not felt that the frames were too heavy. The Bose Frames connect to your smartphone via Bluetooth; and then you can listen to any content from your phone via the speakers located in the frame arms. The music or other audio content from your phone is delivered to your ears using something that Bose calls their Bose Open Ear AudioTM. The sound is surprisingly good for not being a device that fits over your ear like a headphone or in your ear canal like an ear bud. We especially like using our Bose Frames when taking a walk to our favorite restaurant at lunch so we can listen to a podcast or catch up on our voicemails all hands free while still being able to hear sounds from the physical environment around us. Complete ambient noise cancellation is great if you are sitting on a noisy plane but is not optimal if you are navigating downtown traffic on foot. So, we joyfully wear our smart sunglasses while walking to court or to the office; and no one on the street really knows that we are listening to music, voicemails, podcast, or whatever. Even if we pass somebody in a close encounter on the street, the person next to us cannot hear the audio from the Bose Frames. The only clue they might have that we are either using a smart device or we’re crazy is when they see us talking to no one in particular, or dancing like nobody is watching. Yes, the mic on the Bose Frames is good enough to carry on a phone conversation much like you would with your phone on speakerphone mode. We did notice on one occasion when we were taking a call while walking outside on a

particularly windy day, that the other party could hear a lot of wind noise over the mic. Of course, this happens also when using either Bill’s Air Pods or Phil’s Galaxy Buds. The Bose Frames come in several different styles from classic looks to more stylish and sporty looks. The lenses on the frames can be interchanged for different colors and gradients. On its website, Bose also indicates that it can provide frames with prescription lenses via special order. Bose touts the battery life on the Frames to be up to 5.5 hours. We have not challenged that limit yet as we typically don’t wear them more than an hour at a time. The sunglasses come with a proprietary charging cable. We wish that the charging cable was something more standard like a USB-C cable, but that is a minor irritation. All in all, we are very pleased with our new “immersive” tech gadget. Contrasted with the garish Bluetooth earpieces that executives used to wear conspicuously around the office ostensibly to indicate how busy they were; we love the incognito nature of the Bose Frames that lets us use our tech while appearing to be completely unencumbered to those around us. - Bill & Phil n

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

Feature Story | Thinking About Mary Northern port on capacity.33 Although the report is prima facie evidence of lack of capacity, it is also hearsay. Typically, however, no objection to the report is filed. It has been the author’s experience that some people are so obviously incapacitated or are so well known to their regular doctors that an internist is fine for performing the evaluation. If it is a closer question, one can turn to neurologists or psychiatrists. A “forensic” doctor is a doctor who will come to court. Many physicians would agree that a neuropsychological examination can be extremely helpful. A neuropsychologist administers a battery of tests to determine intellect, reading comprehension, language usage and understanding, attention/concentration, processing speed, learning, memory, executive functioning, mood, and personality. How Do the Model Rules of Conduct Affect Our Understanding of Our Duty as Attorneys? The American Bar Association (ABA) Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. Tennessee adopted (with some modifications) the Model Rules in 2002.34 Rule 1.14: Client with Diminished Capacity, states as follows: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial 14

(continued from page 8)

physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.35 As part (b) of the rule sets out, therefore, a lawyer can have a duty to take protective action. Comment (5) under the topic Taking Protective Action is especially enlightening in the situation where an attorney-ad-litem is appointed to represent the respondent in a conservatorship action and the client has been diagnosed with dementia. The duty to take protective action comes into play when the “the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation.”36 The comment concludes with the following sentence: In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests and the goals of intruding into the client’s decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections.37 Accordingly, the wishes and autonomous decision-making of a client with dementia are important, but so are the client’s best interests.

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

How Should We Advocate Then as Retained or Appointed Counsel in a Conservatorship Action? The first question for the attorney ad litem in a conservatorship case will always be: Is the client incapacitated? The answer to that question will determine whether we must abide by the client’s decisions about the objectives of the representation or whether we are also called upon to consider the client’s best interests under Rule 1.14 of the Rules of Professional Conduct. It is quite common that the client has said: “I don’t need a conservatorship!”38 There is even a medical term for our inability as humans to understand and perceive our illness and the deficits that our condition may be causing: Anosognosia. The client’s persistent belief that he or she does not need help may be the very reason for the conservatorship action. Under the guidance of the ABA and American Psychological Association, we must exercise our judgment from the outset, even in determining whether it is a close case and the client needs an evaluation by a professional.39 In the author’s opinion, if it is obvious that our client is demented, then Rule 1.14 applies, and we need to consider our client’s best interests in going forward. What if an attorney ad litem is not certain about whether the client is incapacitated; i.e., needs the assistance of the court? Depending on your client’s resources, you will need to have your client evaluated by another “physician . . . psychologist or senior psychological examiner.”40 If there are conflicting evaluations about whether the client lacks capacity, one can ethically advance the client’s expressed wish not to have a (continued on page 25)

NBA is your source for cutting edge, quality continuing legal education. We provide more than 600 hours of live and distance learning programming while offering our members discounted rates. For a complete calendar, full seminar agendas, and registration, visit NashvilleBar.org/CLE. MONDAY, A PRIL 11 | VIRTUAL SEMIN A R

TH U R S D AY, A P R I L 14 | LI V E SEM IN A R

GOING GREEN...BURIALS

DAVIDSON COUNTY BEHAVIORAL CARE CENTER

OVERVIEW

DIVERTING MENTAL ILLNESS OUT OF THE CRIMINAL JUSTICE SYSTEM OVERVIEW Co-Produced by the General Sessions Committee & Criminal Law and Criminal Justice Committee Produced by the Estate Planning & Probate Committee Tennessee law allows for a variety of funeral and burial practices beyond the traditional routes. This CLE course will explore the regulations surrounding non-traditional options such as green burials, home funerals, and more. PRESENTERS April Harris Jackson Graceful Aging Legal Services Ivy Grizzle Belmont School of Law, Student D E TA I L S

Learn more about the new Davidson County Behavioral Care Center and its impact on the criminal justice system. Presenters will provide a look into the center’s goals, the process of how cases are referred and reviewed, as well as the discharge process. Other topics will include competency of clients, jail classification barriers, waiver of prelim timing pursuant to the rule, expungement of records and more! Following the seminar, attendees will be invited to tour the Behavioral Care Ctr. PRESENTERS Eric Bauder, Exective Director, Behavioral Care Center Lacey Monday, Program Manager, Behavioral Care Center Kyle Morris, Assistant Public Defender, Nashville Defenders Jordan Shannon, Assistant District Attorney General

Seminar ��12:00 – 1:00pm

D E TA I L S

Credit ��1.0 General

Seminar ��2:00 – 3:00pm

Location �� Virtual - Zoom

Credit ��1.0 General

COST

Location �� Live - BCC

Attendance Only (No CLE Credit) ��$0

COST

NBA Members ��$35

Attendance Only (No CLE Credit) ��$0

Non-Members ��$89

NBA Members ��$35 Non-Members ��$89 APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

TUESDAY, MAY 3 | VIRTUAL SEMINAR

THE ETHICS & LOGISTICS OF WORKING REMOTE

CREATING A CULTURE OF RESPECT WITH NTRINSX

OVERVIEW

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES As an attorney, you interact with a wide range of personalities – clients, opposing parties, other attorneys, courts, and your own staff. Ntrinsx is designed to help you understand the intrinsic values that truly motivates the way people behave in a given situation.

Even before the current pandemic forced us to work from home, most all of us were working from home periodically (some more than others). With the majority of the workforce now working remotely, the initial concerns were connectivity to resources and collaboration. However, working remotely in a secure and ethical manner quickly came to light. This session will discuss some technology hacks to be more productive and will provide an emphasis and methods to do so securely and ethically to protect your clients and yourself while working remotely.

Based on data derived from tens of thousands of validated assessments, Ntrinsx helps you interpret a person’s behavior when they are in esteem and how their behavior manifests differently when they are stressed out. Since we all have different values, we tend to view the behavior of people we interact with through our own lenses. That biases our judgement.

PRESENTER

Bill Dean LBMC Information Security

Roberta Scott Pettis FocusWorks Consulting Group

D E TA I L S

Seminar �� 12:00 – 1:00pm

Credit ��1.0 General Location ��Virtual - Zoom

The Ntrinsx Getting Started workshop teaches the theory using four colors to provide an intuitive, easy to apply tool that can be used in both your professional and personal life situations.

Credit �� 1.0 Dual Location ��Virtual - Zoom

COST

NBA Members �� $45

Single Seminar Only �� $40

Non-Members �� $89

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Series Package �� $99

TUESDAY, MAY 10 | VIRTUAL SEMINAR

[THE] POINT [OF] BREAK[ING]

PERSUASION THROUGH STORYTELLING

WHEN TO APPOINT A SUCCESSOR, WHEN TO TRANSFER, & WHEN TO TERMINATE OVERVIEW

FINDING YOUR UNIQUE VOICE OVERVIEW PROFESSIONAL DEVELOPMENT SERIES

Produced by the Estate Planning & Probate Committee This seminar will provide a brief overview of the statutory requirements to transfer a conservatorship from county to county or state to state; plus, practical advice about resigning, appointing a successor conservator, and terminating a conservatorship that is no longer necessary. PRESENTER Jennifer Sheppard Martin Heller Potempa & Sheppard, PLLC D E TA I L S Seminar �� 12:00 – 1:00pm Credit ��1.0 General Location �� Hybrid (NBA Office & Virtual - Zoom) COST Attendance Only (No CLE Credit) �� $0 NBA Members �� $35

As attorneys, we are entrusted with the privilege of telling our clients’ stories. Persuasive storytelling isn’t a slick defense lawyer trick; it is a critical tool for effective attorneys in all types of practices. Join Martesha Johnson, Chief Public Defender, and Georgia Sims, Assistant Public Defender and Training Director, as they review the neuroscience of effective stories, discuss ethical considerations for learning and sharing the stories of others, and reflect on our personal experiences in finding our unique storytelling voices. PRESENTERS Martesha Johnson Nashville Defenders Georgia Sims Nashville Defenders D E TA I L S Seminar �� 12:00 – 1:00pm Credit ��1.0 Dual Location ��Virtual - Zoom COST Single Seminar Only �� $40 Series Package �� $99

Non-Members �� $89 APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

TUESDAY, MAY 24 | VIRTUAL SEMINAR

WHO’S IN CHARGE? OUR BRAINS OR OUR BODIES?

BREAKING DOWN THE WALL OF BUSYNESS

UNDERSTANDING THE BIOLOGY OF OUR BODIES, SLEEP, & PERFORMANCE

LIFE HACKS TO BUY YOUR TIME BACK

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES From stress to sleep and personal to professional performance, understanding the importance of sleep on our brains and bodies will change the way you value sleep, naps, and long-term ramifications. Why do we sleep? What happens in our brains when we sleep? Is there a difference between being tired or fatigued? What defines a good sleep? This workshop will take a deep dive into the consequences of inadequate sleep, how stress and performance are interconnected, and how our brains and bodies react. This is a real eye opener! PRESENTER Dr. Donna Van Natten Body Language Dr D E TA I L S Seminar �� 12:00 – 1:00pm Credit �� 1.0 Dual Location ��Virtual - Zoom COST Single Seminar Only �� $40 Series Package �� $99

OVERVIEW PROFESSIONAL DEVELOPMENT SERIES What if there were a sustainable way to work differently, enhance your professional capital and improve your health daily? What if you could achieve more and work less? Or does this seem like a fantasy? If you’re intrigued, come join us for an engaging discussion where we explore why “busyness” does not equal success and fulfillment. Instead, you will leave with an alternative way of working where you are in the driver’s seat of creating a system that works for you. We will focus on the inner game (how to identify what’s important to you) and the outer game (tactical tools that really work for lawyers). In this seminar, learn how to achieve more space, joy and well-being in your life, without compromising your career. PRESENTER Julie Bonasso Wayfinders LLC D E TA I L S Seminar �� 12:00 – 1:00pm Credit ��1.0 Dual Location ��Virtual - Zoom COST Single Seminar Only �� $40 Series Package �� $99

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Thank You for Your Membership! The NBA Premier Membership recognizes those members who desire to demonstrate the utmost in commitment and support to NBA programs and services. Contact Vicki.Shoulders@nashvillebar.org for information on how to become a Premier Member.

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APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

TENNESSEE CHAPTER

Nashville Area Members recognized in 2021 for Excellence in the field of Dispute Resolution

Gail ASHWORTH (615) 254-1877

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

For more information about NADN, please watch the short video at www.NADN.org/about

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

“Lie down with dogs, and you will get up fleas.” Sausage Grinding. Modern German founder and Chancellor Otto von Bismarck noted that one should never see sausage or legislation being made. Our legislative friends are grinding a large volume of sausage now as they begin to wind down this year’s regular session. For example, the Senate Commerce and Labor Committee had 81 items on its calendar for its final meeting, but they were slow dogs compared the State and Local Government Committee which had 143! Former State Representative Robin Smith. Late on Friday afternoon, March 4, the federal government filed its Criminal Information against State Representative Robin Smith (R) of Hamilton County. The nine page document became public on Monday morning as did her letter of resignation from the House of Representatives. Late on Tuesday afternoon she pleaded guilty to one count of Honest Services Wire Fraud in violation of 18 United States Code Sections 1843 and 1846. Ms. Smith was first elected to the State House in 2018 when she ran for the opening created in the District 26 seat

when Gerald McCormick decided not to seek reelection. Her sentencing hearing is scheduled for October 17, 2022. She stated that she is cooperating fully with the federal government with respect to other individuals involved in the fraud investigation. Ms. Smith will remain free on bond until the sentencing hearing. The offense is a felony punishable by up to 20 years confinement and a fine of up to $250,000. It is unclear whether she will serve time, but she will probably be compelled to make restitution for any fraudulent payments received and to forfeit any other ill-gotten gains. Beware, not the Dog, but those Subversive Librarians. House Bill 1944, by Representative Scott Cepicky (R) of Maury County, a mortgage banker and cattle farmer, removes the present wiggle room in the statutory exception in the obscenity law for anyone having scientific, educational, governmental, or similar justification in the material. In making the change to the statute, a librarian would become at risk of criminal prosecution for housing Ulysses, The Catcher in the Rye, or even Nineteen Eighty-Four with its mention of an absolute prohibition of alternative thinking which is viewed by the ruling party as “thoughtcrime.” Each of the noted books has been found by a court to be obscene or banned by a local authority. Crystal Ball. The 2022 regular legislative session is expected to run through late April or early May. The K-12 education funding formula with the new title of Tennessee Investment in Student Achievement (TISA) still has the attention and focus of Governor Bill Lee. Work on criminal sentencing reform with a possible aboli-

tion of our parole system is also ongoing. While the state’s economy is still roaring along, the oil price shocks give some budget writers cause for concern. Local Elections. Candidates for local offices including state trial court positions and general sessions court positions as well as district attorney general are set for the May 3, 2022, primary. The early voting period is April 13 through 28. We will have some spicy contested races. Vote! Calendar Notes. March 7 saw the State Senate swear in former State Representative London Lamar after the Shelby County Commission named her as the interim replacement for the expelled Senator Katrina Robinson. Senator Lamar will seek a full four year term in the upcoming election cycle. Noon on Thursday, April 7, is the qualifying deadline for those seeking election to the 113th General Assembly. The current legislative session is expected to adjourn in early May, but unreasonable optimists are hoping for a late April adjournment. State and NBA offices will observe the Good Friday holiday on Friday, April 15, and the Memorial Day holiday on Monday, May 30. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

Editorial | Will Pugh

Business Courts from Tennessee to Delaware Vanderbilt Law School and the Nashville Bar Association recently hosted a CLE seminar conducted by Vice Chancellor Joseph R. Slights III of the Delaware Court of Chancery and Chancellor Anne C. Martin of the Chancery Court of Davidson County. Chancellor Martin also serves as the Business Court Docket judge by virtue of her appointment by the Tennessee Supreme Court. The seminar, titled Business Courts from Tennessee to Delaware focused on the business court movement. Both judges emphasized that the “business court model” works and that, where appropriate, litigators should advise their clients to utilize business courts. When asked to define business courts, both judges agreed. Business courts prioritize flexibility, speed, and well-written opinions that can be made available to reduce legal uncertainty in the future. Drawing on the first two of these themes, and to quote Vice Chancellor Slights, business cases frequently have time constraints such that if the parties cannot receive guidance from the court before a specific date, any re-

lief granted thereafter “is just not going to matter.” Chancellor Martin’s Hines v. Good Horse Business Court case (No. 210737-BC) serves as a prime example. There, a complaint and motion for preliminary injunction (filed on August 2, 2021) sought guidance that, if not granted before August 31, would potentially scuttle an $80 million transaction. Chancellor Martin was able to issue her Memorandum and Order on August 20 in which she made preliminary factual findings and construed multiple, complex, provisions of the Purchase and Sale Agreement. With this guidance, the parties were able to resolve their dispute1—meaning that the real estate development project could proceed. Both the Tennessee Business Court and the Delaware Court of Chancery have procedural mechanisms for litigants to inform the court of key deadlines in their disputes soon after the commencement of proceedings. In Delaware, parties may file a Motion to Expedite—which requires a showing of: (i) a colorable claim (a non-frivolous claim)

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

and (ii) a possibility of irreparable harm if relief is not granted before a specific date. If this standard is met, the entire Delaware court system is prepared to go to extreme lengths to meet the parties’ deadlines. For example, in the 1993 Paramount v. QVC litigation, a complaint was filed on October 21, 1993, seeking an injunction to stop a transaction. Following 31 depositions, the production of 1 million pages of documents, 400 pages of briefing, and an evidentiary hearing, the Court of Chancery issued a 60-page opinion granting a preliminary injunction on November 23. Following an expedited appeal and hearing, the Delaware Supreme Court affirmed on December 9. This extraordinary pace is intended to ensure that the Delaware courts can “move (continued on page 23)

Editorial | Business Courts from Tennessee to Delaware Opinions, and Orders are published on Westlaw and LexisNexis. One caveat to this general rule is that oral Bench Rulings issued by the Delaware Court of Chancery are not published but must be individually collected and curated—a practice common to many Delaware law firms. n at the speed of business”—which is a common goal shared by all business courts. The Tennessee Business Court Docket has similar procedures for expedition.2 Within 30 days of service of a complaint, a party may file a Request for Designation, provided the case meets certain eligibility requirements. Upon designation, the Court “promptly” issues an order setting a conference to enter a Case Litigation Plan pursuant to T.R.C.P. 16. Through this Plan, the parties can request—and the Court can order—that the litigation proceeds with sufficient speed to give guidance before it becomes moot. According to both judges, business courts will frequently be amenable to case-specific scheduling orders. An example provided by Vice Chancellor Slights is that parties may request the option of conducting targeted, expedited discovery to allow for an early Motion for Summary Judgment on a discreet issue—without resolving other significant aspects of the dispute. This could be an efficient option for litigants where the resolution of a single, hard-fought issue might permit more productive mediation opportunities for the larger case. Finally, both judges stated that one of the important roles of business courts is to make their decisions available so that they can offer guidance to non-parties and reduce legal uncertainty over time. The Tennessee Business Court publishes many of its decisions online,3 and most Delaware Court of Chancery Opinions, Memorandum

WILL PUGH is an associate at Sherrard Roe Voigt Harbison, where he represents clients in a wide range of practice areas including both litigation and transactional matters involving corporate, mergers and acquisitions, commercial real-estate, and bankruptcy law. He also specializes in complex business disputes and fiduciary duty litigation.

Endnotes Drew Hutchinson, “Hines, Martin Management, Jim Reed Automotive lawsuit over Midtown land deal dismissed,” Nashville Business Journal, January 18, 2022, https://www.bizjournals.com/ nashville/news/2022/01/18/reed-lawsuit-resolved.html 2 “Guide To The Business Court Docket—Phase 2,” https://www.tncourts.gov/node/4761374 1

Tennessee State Courts, Business Court Decisions, https://www.tncourts.gov/node/3938267 3

(continued from page 22)

DO YOU HAVE AN IDEA FOR A CLE?

The NBA is asking for your help! We are inviting members to join the CLE Committee for 2022. We ask that committee members attend four to six meetings per year, and contribute to the planning and production of our seminars.

If you cannot serve on the committee but have ideas for a seminar, let us know! Our goal is to help further legal education in areas our members want to learn more about. If you are interested in joining the committee or have a potential CLE topic, please email Cameron, our CLE Director at Cameron.Adkins@nashvillebar.org

APRIL/MAY 2022 | NASHVILLE BAR JOURNAL

barBITES | Joseph Hubbard, Kay Griffin COD PUTTANESCA Ingredients One (1) loaf ciabatta or French breach 4 cod filets, about 6 oz. each Extra virgin olive oil 2 Tbsp chopped fresh oregano 2 Tbsp chopped fresh basil 3 (or more) cloves garlic, smashed 4 to 6 (or more) anchovy filets 28-ounce can San Marzano tomatoes, diced or crushed 1 tablespoon tomato paste ½ cup pitted kalamata olives 2 Tbsp capers Pinch red pepper flakes (optional)

Directions Preheat oven to 400 degrees. Slice ciabatta into four (4) 1-inch thick slices (or, slice French bread lengthwise and cut into 4-inches wide pieces). Drizzle lightly with olive oil and sprinkle with oregano and basil. Bake for 15 minutes or until golden brown. While bread is baking, heat two (2) tablespoons extra virgin olive oil in ovenproof skillet (12-inches or bigger) over medium heat. Add garlic, anchovies, and red pepper and cook about two minutes, until anchovies break down. Don’t let garlic or red pepper burn. Then, add one (1) tablespoon tomato paste and stir until dissolved, one to two minutes. Add can of tomatoes (undrained) along with olives, capers, and ½ cup water. Cook until simmering, 3 to 4 minutes. Remove bread from oven. Season cod with kosher salt and fresh cracked pepper and arrange on top of sauce in skillet. Transfer skillet to oven and bake until fish is cooked, 8 to 10 minutes. After fish is cooked, place slices of bread into four (4) shallow pasta bowls. Top with fish and sauce. Enjoy!

NASHVILLE BAR JOURNAL | APRIL/MAY 2022

Feature Story | Thinking About Mary Northern conservator appointed. What interests of the client must we consider if we are required under Rule 1.14 to consider “best interests”? At the least, we should consider financial, social, medical, and spiritual interests. Objecting to the Physician’s Report as hearsay without a good reason compromises the client’s financial interests, simply costing money for the hours spent by the doctor, the lawyers, and the court reporter in taking a deposition. There are other ways to over-litigate cases, of course. We may also need to advocate as to the choice of a conservator. The priority of persons to be appointed is governed by Tennessee Code Annotated Section 34-3-103, which sets out persons chosen in writing by the respondent, the spouse, any child, the closest living relative or relatives, a district public guardian, and other person or persons. Appointment in that order, however, is “[s]ubject to the court’s determination of what is in the best interests of the person with a disability.”41 The statute and our own common sense, then, indicate that our client’s best interests may be affected by the selection of the conservator. A client with dementia, might, for example, want a child who has a history of stealing money to serve as conservator. Other interests besides financial may also be compromised in the selection of a conservator. As examples, I would not advocate for a child with religious objections to medical treatment or the child who opposes the client’s religious choices to be the conservator of the person. I would not advocate for the child who opposes his parent’s same sex marriage to have the right to determine visitation.42 Finally, we might be called to advocate in connection with which rights should be taken away from our clients and

(continued from page 14)

vested in a conservator. Again, although we should take into account our client’s wishes and his or her decision-making autonomy, we also have a duty to use our own judgment as to the best interests of our client. In all of these situations, where our determination of the best interests of our demented client differs from what he or she wants, we have a duty to explain everything. In the words of Rule 1.14, we have a duty “as far as reasonably possible, to maintain a normal client-lawyer relationship with the client.” In conclusion, the appointment or retention of a lawyer to represent a client in a conservatorship action is a difficult balancing act. But our job is more than simply advocating for whatever a demented person says that he or she wants. We have a duty to advise and inform and, in appropriate cases, to resist requests by our clients that will impair their own best interests. n BARBARA MOSS is a the founder of Elder Law of Nashville, has been practicing law in Nashville for more than 30 years. She started out as a trial lawyer and now focuses her practice on elder law, conservatorships, probate, estate planning, Medicare and Medicaid.

Endnotes The Nashville Bar Association, as a part of the wonderful continuing education series produced its Historical Committee, presented The Case of Mary Northern on October 16, 2019. (Hereinafter, Mary Northern CLE) All who read this article are encouraged to watch! 2 Mary Northern CLE; State Dep’t of Human Services v. Northern, 563 S.W.2d 197 (Tenn. App. 1978) cert. denied. 3 State Dep’t of Human Services, 563 S.W.2d at 207. 4 Id. 5 Id. at 215; State Dep’t of Human Services, 575 S.W.2d 946 6 Centers for Disease Control and Prevention (“CDC”), available at https://www.cdc.gov/aging/ 1

dementia/index.html 7 Id. 8 Id. 9 Alzheimer’s Association, 2020 Alzheimer’s disease facts and figures 10 Id. 11 State Dep’t of Human Services v. Northern, 563 S.W.2d 197. 12 Tenn. Code Ann. § 34-3-102. 13 Id. §34-1-108, 34-1-126. 14 Id. §34-3-107. 15 Id. §34-1-128. 16 Id. §34-1-107. 17 Id. §34-1-125(a). 18 Id. §34-3-106(5). 19 Id. 20 Id. . §34-1-132. 21 Id. 22 Id. 23 Id. 24 Id. §34-3-105(a). 25 Id. 26 Id. 27 Id. §34-3-105(c). 28 Id.§34-1-126. 29 Id. 30 In re Conservatorship of Groves, 109 S.W.3d 317, 331 (Tenn. App. 2003). 31 In re Conservatorship of Groves, at 333. With regard to legal standards of capacity for specific tasks, the author recommends: American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities (2d Ed. 2021) 32 In re Conservatorship of Groves, at 334. 33 Id. §34-3-105(c). 34 In re: Tennessee Rules of Professional Conduct, filed September 17, 2002, No. M200002416-SC-RL-RL 35 Tenn. Sup. Ct. R. 8, RPC 1.14. 36 Id. Comment (5) 37 Id. 38 On a personal note, I plan to be onery and demented someday. 39 American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities, p 1 (2d Ed. 2021) 40 Tenn. Code Ann. § 34-3-105(a). 41 Id. §34-3-103. 42 Although the Campbell Falk Act should limit a conservator’s ability to restrict visitation in such a case. Tenn. Code Ann. § § 34-3-107(c).

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Hearsay | Honors & Awards, On the Move, Firm News HONORS & A WARDS Bradley Arant Boult Cummings LLP is pleased to announce that the firm’s Government Contracts Practice Group was named among Law360’s 2021 Practice Groups of the Year. Bradley is one of only six firms in the nation to receive this honor. Dickinson Wright PLLC is pleased to announce that it has received a score of 100 on the Human Rights Campaign Foundation’s 2022 Corporate Equality Index, the nation’s foremost benchmarking survey and report measuring corporate policies and practices related to LGBTQ+ workplace equality. Dickinson Wright’s efforts in satisfying all of the CEI’s criteria also earn the Firm the designation as one of the Best Places to Work for LGBTQ+ Equality. The ratings criteria is rigorous and specific, providing businesses with a transparent set of metrics and best practices that improve the experiences of LGBTQ+ employees across industries. Only 13 companies achieved a 100 score on the first CEI in 2002. Mary Beth White, shareholder and chair of the Transportation Practice Group in Lewis Thomason’s Nashville office, has been inducted into the Federation of Defense & Corporate Counsel (“FDCC”). The FDCC is an invitation-only trade association composed of recognized leaders in the legal community who have achieved professional distinction and is dedicated to promoting knowledge, fellowship,

and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits.

General Assembly on March 2nd, Holt will serve a five-year term.

The YWCA of Nashville & Middle Tennessee hosted its 30th Anniversary of the Academy for Women of Achievement (AWA) this week. Among those honored was DarKenya Waller, executive director, Legal Aid Society of Middle Tennessee & the Cumberlands and former NBA Board Member.

Starnes Davis Florie LLP welcomes new associate, Nicole Poole to the firm’s Nashville office. Poole’s practice will include professional liability, medical malpractice, and longterm care & nursing home litigation.

Charles W. (Chuck) Cagle, shareholder and chair of Education Law and Government Relations Practice Group in Lewis Thomason’s Nashville office, has been appointed a member of the Tennessee Baptist Convention (TBC) Sexual Abuse Task Force. Cagle oversees the firm’s representation of over 70 public boards of education, two private schools, two private universities, and a private medical school in a variety of legal matters. Sherrard Roe Voigt & Harbison is proud to announce that member Ryan Holt has been appointed the Fifth Congressional District representative on the Tennessee State Board of Education, Tennessee’s K-12 education policymaking body. Selected by Governor Lee in February 2022 and confirmed by the

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ON TH E M O V E

Rainey, Kizer, Reviere & Bell, PLC is pleased to announce new Partner Brandon J. Stout. Stout is a member of the firm’s Malpractice Practice Group, where he represents physicians, dentists, nurses, hospitals, and clinics in medical malpractice litigation. Brandon also has experience representing health care providers before the Tennessee Board of Medical Examiners during investigations conducted by the Tennessee Department of Health Office of Investigations. The Galaher Law Firm is proud to announce that Jessica Prater has been named as an Associate Attorney to their law offices in Franklin, Tennessee. Prater joins the firm’s Litigation section where she will practice civil and commercial litigation in the areas of business torts, breach of contract claims and real estate.

Hearsay | Honors & Awards, On the Move, Firm News The law firm of Gullett Sanford Robinson & Martin PLLC is pleased to announce the addition of attorney M. Clark Spoden to the firm. Spoden joins the firm as a Partner and will practice in the firm’s Litigation section focusing on the representation of companies in contract, employment, environmental, administrative law, construction, business tort, non-competition, intellectual property, wrongful death, and personal injury cases. Respected Nashville attorney and founding partner of Trauger & Tuke, Byron Trauger, announces the joining of his practice with Wiseman Ashworth Law Group. The firm will rebrand as Wiseman Ashworth Trauger, effective March 1. Gullett Sandford Robinson & Martin PLLC is pleased to announce that Diamond Stewart is joining the firm as an Associate and will practice in the firm’s Litigation and Labor and Employment sections. Her practice will focus in the areas of employment litigation, business litigation, and complex civil litigation. F I RM NEWS Bradley Arant Boult Cummings LLP is pleased to announce that the firm scored a 90 out of 100 on the Human

Rights Campaign Foundation’s 2022 Corporate Equality Index (CEI), the nation’s foremost benchmarking survey and report measuring corporate policies and practices related to LGBTQ+ workplace equality. Ogletree Deakins has elected Nashville shareholder Liz Washko as the firm’s new Managing Director. Washko’s practice features a depth of experience representing employers in a broad array of industries in single plaintiff and class/collective action litigation and in matters before state and federal agencies. Waller Lansden Dortch & Davis, LLP announced today that attorneys Doug Sloan, Jon Cooper, and Quan Poole have joined the law firm’s Nashville office. The three attorneys join Waller with nearly 45 years of combined experience in legal and leadership roles in the Metropolitan Government of Nashville and Davidson County. Sloan, Cooper, and Poole will boost Waller’s Government Relations and Real Estate practices in the key areas of Land Use and Zoning; Corporate Relocation and Expansion; and Public-Private Partnerships. As part of its ongoing commitment to

diversity, Tennessee law firm Lewis Thomason, P.C., has established the Lewis Thomason Diversity Scholarship at the University of Memphis Cecil C. Humphreys School of Law. This is the second such scholarship the firm has established in recent years. The scholarship will be awarded to a student who meets at least one of the following criteria: a first-generation college graduate, a graduate of a historically minority undergraduate institution, a socio-economically disadvantaged student, or a member of a historically under-represented group. K&L Gates LLP has expanded its real estate group with the addition of partners Matt Harris and Rick Pensinger and of counsel Christian Schütz in the firm’s Nashville office. They join K&L Gates from Baker Donelson and are among the nearly 110 partners and of counsel the firm has welcomed across its platform since the beginning of 2020. K&L Gates is pleased to announce the appointment of Lauren Patten as the new managing partner for its growing Nashville office. Patten, a Nashville native, joined K&L Gates upon the establishment of the Nashville office in early 2021 as a

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Hearsay | Honors & Awards, On the Move, Firm News member of the firm’s Complex Commercial Litigation and Disputes group.

Mark Your Calendar

Bradley Arant Boult Cummings LLP is pleased to announce that nine attorneys have joined the firm’s office in Nashville. Myles W. Chaney, Matthew C. Copeland, Aaron M. Johnson, Benjamin A. Johnson, Josh Kleppin, Sophie Lange, Mary-Kathryn (“MK”) McKinney, Caroline C. Waters, and Luke R. Yordy. n

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