Nashville Bar Journal | October/November 2016

JOURNAL JOURNAL Journal Journal

OCTOBER/NOVEMBER 2016 | VOLUME 16 | NO. 7

FEATURE

Music City Legal Hackers

ALSO

Will You Lose Your Job to Automation?

Best Practices for Conducting Voir Dire in the Information Age Is Your Firm’s Data Safe?

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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 August 1, 2016 - April 30, 2017. 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 April 30, 2017. FSR: Use promo code NBADUE. ©2016 First Tennessee Bank National Association. Member FDIC. www.firsttennessee.com

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JOURNAL JOURNAL 6 Journal Journal OCTOBER/NOVEMBER 2016 | VOLUME 16 | NO. 7

FE ATU R E

Music City Legal Hackers

Larry W. Bridgesmith, J.D.

D E PA R TM E N TS

From the President

Joycelyn Stevenson

Calendar of Events Hear Ye, Hear Ye

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Will You Lose Your Job to Automation?

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Bill Ramsey, Phillip Hampton & Erik Lybeck

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Best Practices for Conducting Voir Dire in the 35 Information Age

2017 Board Election Annual Banquet Membership Dues Memorial Service

CLE Schedule

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Welcome

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New NBA Members Premier Members

Noel Bagwell & Kristin Thomas

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Hearsay

Classifieds

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Protection of the Attorney-Client Privilege in the 43 Contemporary Communications Age

Timothy Ishii

CO L UMNS

Picnic Photos

Is Your Firm’s Data Safe?

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Mike Sandler

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The Road to Wellness 15

Heather Hubbard

17 2017 Board Nominees Gadget of the Month 21

Bill Ramsey & Phillip Hampton OCT/NOV 2016 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL JOURNAL FROM THE PRESIDENT Final Countdown | Joycelyn A. Stevenson Journal Do you remember the song “The Final Countdown” by Journal Europe? It has been on my mind lately because it is fi-

JOYCELYN A. STEVENSON, Publisher WILLIAM T. RAMSEY, Editor-in-Chief

ramseywt@nealharwell.com

ELEANOR WETZEL, Managing Editor

eleanorwetzel@jis.nashville.org

EDITORIAL COMMITTEE NOEL BAGWELL KIMBERLY FAYE CAROLINE HUDSON TIM ISHII TRACY KANE EVERETTE PARRISH BART PICKETT MATTHEW PIERCE BILL RAMSEY MIKE SANDLER KRISTEN THOMAS JONATHAN WARDLE VICTORIA WEBB ELEANOR WETZEL DAVID WINTERS

NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, 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.

NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 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. The NBA—with over 2,500 members—is the largest metropolitan bar association in Tennessee.

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nally sinking in I am in the final months of my presidency, and this is my last official “President’s Message.”

“The Final Countdown” is relevant to many aspects of our lives. Many of you have children in their final school year or are in your own final stages of working, health treatments, completing projects, etc. We are all in the home stretch of the year 2016, which poses its own stresses and opportunities. I would be remiss if I did not mention and highlight one of the most important final countdowns that affects each one of us—the upcoming Presidential Election.

Some of my best childhood memories revolved around elections, including watching my parents debate issues, talk about the history of voting rights in this country for African-Americans and for women, and instilling in me an obligation to get involved. My parents were more excited about my getting a voter registration card than my driver’s license. They remembered what is was like to not have that right, so they were clear that I couldn’t be a passive participant in America’s promise. They considered voting not only a right but also a responsibility. My definition of “getting involved” included staying informed, being able to debate issues of the day, and going to the polls to vote.

Now that I am a little older, I understand that being involved can mean different things to different people. As a practicing attorney, not only do I have a role and responsibility to stay informed and educate myself on issues, I also have an obligation to educate others, and when necessary, advocate to protect the rights of those without a voice. I served as an NBA board member when we debated how the NBA could play an effective role in the 2014 retention election of our Supreme Court Justices.

Several bar associations worked together to educate the community on critical issues which greatly increased turnout. Regardless how a person voted, they at least knew what they were voting for, why they were voting for it, and its ultimate impact on the community. Even now, my non-attorney friends ask me about proposed amendments and the legal implications of policy proposals prior to Election Day to help them make informed decisions. Some have even signed up to volunteer with non-partisan groups like Election Protection to assist with questions and potential civil rights issues on Election Day. Sadly, I have met many people who are disillusioned with our local, state, and federal government who do not think that voting makes a difference. I explain to them the history of voting, how meaningful it is to those that were denied the right to do so for so many years, and the responsibility that we all have to at least participate in the process as an educator, volunteer, or frankly even a candidate.

While NBA is a non-partisan organization, our members are involved politically and have made strides in this city, state, and country on critical issues of our time. As a member of the bar, I challenge you to engage in the political process. Educate those not familiar with the electoral process, proposed legislation, and positions of candidates so that we have an informed and engaged electorate.

Thank you for the opportunity to serve as your president this year. I am eternally grateful for your support and look forward to celebrating with you at our annual meeting, December 8.

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

OCTOBER 2016 S U N D AY

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

S AT U R D AY

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2

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Gov’t Atty Committee 12:00pm

Cuba Info Luncheon 12:00pm

Board Meeting | 4:00pm Neal & Harwell, 19th Floor

Diversity Panel & Mixer 4:00pm

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9

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Historical Committee 11:30am Hal Hardin’s Office

NBF Leadership Forum Mentor Trivia | 5:30pm Bar Louie

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17

12 Memorial Service Committee | 12:00pm

Entertainment, Sports & Media Law Committee Happy Hour | 5:30pm Double Dogs

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Diversity Committee 12:00pm

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Membership Committee 12:00pm

NALS Meeting | 12:00pm

Ethics Committee 12:00pm

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Craft Beer for Costumes CLE Committeee 11:30am

John Tune Award Meeting 10:00am

Immigration Committee Happy Hour | 5:00pm Little Donkey Finance Committee 4:00pm

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Executive Committee 5:00pm

Friday Fundamentals Mtg 3:00pm

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NOVEMBER 2016 S U N D AY

M O N D AY

25

T U E S D AY

26

W E D N E S D AY

T H U R S D AY

Board Meeting | 4:00pm HAPPY HALLOWEEN!

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Solo & Small Firm Committeee Happy Hour 5:30pm Bar Taco

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7

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2 Historical Committee 11:30am Hal Hardin’s Office

ELECTION DAY

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F R I D AY

Diversity Committee 12:00pm

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NBF Trustees Mtg 12:00pm

NBA Swearing-In Ceremony | 3:30pm Justice A. A. Birch Building

Friday Fundamentals Mtg 3:00pm

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Executive Committee 5:00pm

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11

12

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25

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NBA Offices Closed

HAPPY THANKSGIVING!

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Memorial Service | 10:00am Presbyterian Church Finance Committee 4:00pm

NBA Offices Closed

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FREE for NBA Members!

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Ethics Committee 12:00pm

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Solo & Small Firm Committee | 12:00pm The Skillery Blanton! (3.0 Dual CLE) Nashville Public Library

NALS Meeting | 12:00pm

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S AT U R D AY

CLE Committee | 11:30am

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Board Nominating Committee | 5:00pm

HAPPY THANKSGIVING!

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Committee meetings are held at the NBA offices unless otherwise noted.

FOLLOW US:

Facebook.com/NashvilleBarAssociation LinkedIn.com/Company/Nashville-Bar-Association

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@NashvilleBar

OCT/NOV 2016 | NASHVILLE BAR JOURNAL

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JOURNAL JOURNAL JOURNAL Journal Journal

2016 NBA BOARD OF DIRECTORS JOYCELYN A. STEVENSON, President

Hear Ye, Hear Ye |

Swearing-In Ceremony & Judges Reception WHEN | Tuesday, November 15, 2016

NATHAN H. RIDLEY, President-Elect

MATT POTEMPA, First Vice President

ANDREA P. PERRY, Second Vice President

TIME | 3:30pm Swearing-In Ceremony | 4:30pm Judges Reception WHERE | AA Birch Building | Jury Assembly Room

APRIL KNOX, Secretary ERIC W. SMITH, Treasurer STEPHEN G. YOUNG, Assistant Treasurer EDWARD D. LANQUIST, JR., Immediate Past President JUSTIN MCNAUGHTON, YLD President LELA HOLLABAUGH, General Counsel

Events of Interest

If you are a new lawyer being sworn-in and would like to participate in the NBA Swearing-In Ceremony, contact Traci.Hollandsworth@nashvillebar.org.

For NBA members who would like to attend the Judges Reception following the ceremony, register at NashvilleBar.org/JudgesReception. n

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.

NBA Annual Meeting & Banquet

Save the date! Please join us on December 8 for our Annual Meeting & Banquet. A reception for our members will begin at 5:30pm followed by dinner and the program at 7:00pm. Stay tuned to the Thursday NBA member eblasts for details! n

RYAN D. LEVY WENDY LONGMIRE HON. RANDAL S. MASHBURN ERIN PALMER POLLY DAVID L. RAYBIN SARA F. REYNOLDS SAUL A. SOLOMON LAURA SMITH TIDWELL

2015 Annual Banquet Highlights

M. BERNADETTE WELCH

NBA STAFF MONICA MACKIE, Executive Director 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 Director JAN MARGARET ROGERS, CLE Director VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues readers think should be covered in the magazine. Send ideas to Jill.Presley@nashvillebar.org.

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Nashville Bar Foundation Grant

The Nashville Bar Foundation is now accepting grant applications. If you know of any 501(c)(3) organizations that may be eligible for a Foundation Grant, please spread the word. View grant eligibility and application guidelines at NashvilleBar.org/NBFGrantGuidelines.

The Foundation will allocate funding each budget year on the basis of written applications in a format prescribed by the Foundation. Grant applications can be found at NashvilleBar.org/NBFGrantApplication and are due no later than January 15, 2017. n

NASHVILLE BAR JOURNAL | OCT/NOV 2016

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2017 Membership Dues Notice

The NBA membership dues year ends on October 31, 2016. This year, you will be able to renew your membership on NashvilleBar.org/JoinRenew. Once logged in, simply click on the Renew button and follow the prompts. Be sure to complete your submission before October 31 so that you may participate in the NBA board elections in November. Review your information closely to ensure that your listing is correct, as this data will be imported into our database for use in the Attorney Directory and all other NBA communications. If you have any questions regarding your dues form or member benefits, please contact Vicki.Shoulders@nashvillebar.org or call 615-242-9272. n

2017 Board Elections

Members of the Nashville Bar Association will be electing six new Directors to serve on the NBA Board for a four-year term commencing January 1, 2017. For information on the nominees, see pages 17-20.

The Board elections will take place in November, and all members whose 2017 membership dues are received no later than October 31 will be eligible to vote. n

Is Your Firm in the 100% Club?

Do you want to be ALL IN? If your firm has three or more attorneys based in the Nashville market, you can indicate your commitment by having 100% of your attorneys as members of the Nashville Bar Association.

The 100% Club is our special category of membership for law firms who have demonstrated an outstanding commitment to the legal profession and our community, and by the work done through the NBA programs and services.

For more information and to view the benefits the NBA 100% Club offers, visit NashvilleBar.org/100Club. n

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Fall Memorial Service

The Nashville Bar Association’s Fall memorial service will be held on Thursday, November 17, at the Downtown Presbyterian Church. The service begins at 11:00am with a reception immediately following in the Fellowship Hall.

A project of the NBA’s Historical Committee, the memorial service honors the memory of those Nashville lawyers and judges who passed away during the preceding six-month period. Among those being honored are:

John Jay Hooker, Jr. Elizabeth Smith Jeff Carr Gerry Nennan Joel Moseley, Sr. Robert Warner, Jr. Mary Frances Lyle Dale Quillen

Memorial resolutions recounting the lives and legal careers of the deceased are prepared and read at the service by friends and colleagues of the bench and bar. Family members and friends of the deceased are invited to attend. n

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Feature Story | Larry W. Bridgesmith, J.D.

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NASHVILLE BAR JOURNAL | OCT/NOV 2016

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Music City Legal Hackers: Futureproofing the Law “The future is not going to wait on us. We have to go with it.”

Those were the words of the American Bar Association Immediate Past President Paulette Brown this August in San Francisco. Brown was responding to the two years of work by the ABA Commission of the Future of Legal Services. The Futures Commission1 was established in 2014, by then ABA President William Hubbard to explore how the future of law should be expected to develop and why lawyers might need to prepare for it.

Its Report on the Future of Legal Services in the United States2 is a 100-page tour d’ force review and set of recommendations for the legal profession. It offers a noholds-barred assessment of the challenges, failures, and opportunities faced by lawyers to narrow the access to justice gap in the United States.

In addition, incoming ABA President-Elect Linda Klien congratulated the Futures Commission as a “silo-busting” force and observed: It’s neither easy nor comfortable to embrace change. But we’ve got to do it and we’ve got to do it now. It’s clear that lawyers have so much to offer to those who need help, but millions can’t access our services. This has to change, and we must be the drivers of innovations so others don’t do it for us.

The report and its key recommendations were approved by the ABA Board of Governors.

We are no longer just hearing from wild-eyed radicals

about The Death of BigLaw and the need for radical change.

These are the voices of the establishment. The long predicted disruption of the legal industry has the public endorsement of the world’s largest association of lawyers serving the largest legal market on the planet. Not known for its disdain of the status quo, the ABA has gone on record with a call to action, and “we’ve got to do it now.”

The call for change is not for the benefit of the impoverished alone, but for an underserved community of individuals, businesses, and organizations unable to access legal services because of cost, inconvenience, and barriers to entry.

As much as we would like to hide from this disruptive reality, the barrier to entry and the costs of legal services for consumers are being lowered by technology, artificial intelligence, new service models, and alternative providers. According to the ABA, these are not forces to be resisted, but embraced . . . for the benefit of clients.

A close reading of the Futures Commission’s report is warranted by anyone in the business of law. No segment of the legal services industry escapes scrutiny. Courts, bar associations, law schools, BigLaw, solo practitioners, legal tech, and clients alike are admonished to abandon their silo mentality and embrace innovation, change, and collaboration.

Project management, process improvement, and lean operational methodologies apply as much to the delivery of legal services as they do to manufacturing and software development. The annoyingly familiar phrase “better, faster, and cheaper” has as much to do with law as it does with consumer products. After all, the legal services industry exists to (continued on page 8) 00) (continued on page

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Feature Story |

Music City Legal Hackers (continued from page 7)

provide service to its consumers.

The Report painfully observes that the legal profession has lost the public trust by its elite, discriminatory, and exclusive approach to its business and services. Only by placing client interests first will our profession regain that trust.

Only by working with other disciplines and experts can the fleet be turned in a new direction. The silos must fall.

one, my anticipated career in engineering came to a screeching halt when I encountered calculus and differentials in college. I began looking for other career paths that did not required statistics, data analysis and intimate familiarity with algorithms―law suited that need perfectly . . . then.

However, today’s lawyers are confronted with exponential growth of BigData, the Internet of Things, the infinitely variable capacity of algorithms to parse data and predict outcomes, cybersecurity threats, and an ever increasing demand by sophisticated clients demanding fixed fees, efficiency initiatives, and “more service at less cost.” Corporate legal departments are growing, legal services are being disaggregated, and law firms of all sizes are experiencing a shrinking legal market demand as traditional and new law entrants are increasing competition, undercutting pricing, and offering legal services in non-traditional ways.

The Thomson Reuters Peer Monitor Index for the Second Quarter of

For exactly these reasons, the Music City Legal Hackers3 was founded.

An activity sponsored by the Program on Law & Innovation4 at Vanderbilt Law School, the Nashville legal hackers group brings together lawyers, technologists, project managers, and system engineers for the purpose of improving legal service delivery in our community.

Many of us who went to law school proudly proclaim, “I don’t do math”. For

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Investigate confidently with CLEAR. To learn more, visit clear.thomsonreuters.com or call 1-800-262-0602.

The data provided to you by CLEAR may not be used as a factor in establishing a consumer’s eligibility for credit, insurance, employment purposes or for any other purpose authorized under the FCRA.

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© 2014 Thomson Reuters L-391153/4-14 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

20165 reflected the first fall in legal services demand below that in 2013. The three-year trend of declining demand caught law firms by surprise. The same report reflects increased law firm costs, increased personnel overhead, and increased competition for the same shrinking slice of pie.

The Futures Commission recognized these realities and the limits of any single silo to meet the complex legal demands of today’s client community.

Collaboration across disciplines is essential. Lawyers do not have to become engineers and programmers; they need to know how to work with them.

The Music City Legal Hackers is a local chapter of a global exercise in bringing back into common parlance the original meaning of hacking. At the outset of computer programming, hackers were constantly working to improve the functionality, security, and user value of software applications. Initially, hackers were problem solvers for the good.

Working at the intersection of law, technology, and public policy, the International Legal Hackers6 organization was founded in New York City and is associated with more than 40 chapters around the world today.

Legal Hackers spot issues and opportunities where technology can improve and inform the practice of law and where law, legal practice, and policy can adapt to rapidly changing technology. (continued on page 9)

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Feature Story | Similarly, among other related objectives, “The Music City Legal Hackers intend to sponsor annual ‘hackathons’ at which legal service providers, technologists, policy makers, and the client community gather to create solutions to pressing legal needs in the Nashville community.”

In 2016, the Music City Legal Hackers joined forces with Code for Nashville7, a local group of technologists, project managers, system engineers, and civic-minded activists dedicated to help improve our community access to government and other resources through technology applications.

Recommendation #3 of the Futures Commission states, “All members of the legal progression should keep abreast of relevant technologies.”8 Of course, this recommendation follows the amendment to ABA Model Rules of Professional Conduct Rule 1.1 Comment 8 in 2011 (not yet adopted by the Tennessee Supreme Court), which makes it an ethical mandate that lawyers be able to achieve technological competence sufficient to adequately represent their clients. Lawyers have been sanctioned by courts for failing to “do math” and maintain tech competence on behalf of their clients. It is no longer a defense to claim, “I don’t do tech.”

However, neither the Futures Commission recommendation nor the Model Rule exists in a vacuum. Lawyers are not expected to be all things to all people, but they are expected to associate others with skills necessary to protect their client’s interests where needed.

Just like a litigator associates a computer forensic specialist to examine an adversary’s hard drive upon evidence of

Music City Legal Hackers (continued from page 8)

tampering, lawyers need to know how to work with data analysts, project managers, and system engineers to accomplish the legal objectives of their clients.

The Futures Commission recognized that as the silos are dismantled, lawyers and other disciplines will need to learn how to play well with each other.

Recommendation #7 states, “The legal professional should partner with other disciplines and the public for insights about innovating the delivery of legal services.”9 This is what the Music City Legal Hackers provides: partnership with other disciplines and the public related to the prospect of improving legal services.

A legal hackathon uses this partnership model to hear from public and civic interests regarding local legal needs that are unmet and provides collaboration between legal professionals, technologists, and others to solve those problems with technology. Typically, a hackathon takes place over a few days of intense work by multidisciplinary teams focused on solving the legal problem by developing an app or recommending a technology based or systemic approach to address the need.

In the process, lawyers and other disciplines learn how to work with each other and how existing technologies and methodologies can address legal problems. Machine learning, artificial intelligence, and project management methodologies are no more black magic than legal analysis. When combined, these advanced disciplines can achieve better legal service delivery than when operating in their silos. n Endnotes

ABA, Commission on the Future of Legal Services, AmericanBar.org/groups/centers_commissions/commissionon-the-future-of-legal-services.html.

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(continued on page 10)

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LAWYER REFERRAL & INFORMATION SERVICE

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 assistance 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 NashvilleBar.org/LRISAttorneyRegistration.

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA

OCT/NOV 2016 | NASHVILLE BAR JOURNAL

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CAN YOU NAME THESE PEOPLE?

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

AUG/SEPT GOLDEN OLDIES

Gareth Aden of Gullett Sanford Robinson & Martin, PLLC correctly identified the individuals in the August/September 2016 Golden Oldies photo. Pictured (left to right) Billy Crawford, John Baird, Ray Prince, Bill O’Bryan, and John Wade, Jr.

(continued from page 9) ABA Commission on the Future of Legal Services, Report on the Future of Legal Services in the US (2016), available at AmericanBar.org/content/dam/aba/images/ abanews/2016FLSReport_FNL_WEB.pdf.

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RESERVE OUR FACILITIES

Music City Legal Hackers, MCLegalHackers.strikingly.com.

Vanderbilt Law School, Program on Law & Innovation, Vanderbilt.edu/academics/academic-programs/law-andinnovation/index.php.

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Thomson Reuters, Peer Monitor Index (Q2 2016), available at PeerMonitor.ThomsonReuters.com/wp-content/ uploads/2016/07/PMI_Q2_2016_FINAL.pdf.

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6

Legal Hackers, LegalHackers.org.

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Code for Nashville, CodeForNashville.org.

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Report, supra note 2, at 43.

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Id. at 49.

Larry Bridgesmith J.D., is CEO of LegalAlignment and Coordinator of the Program on Law and Innovation at Vanderbilt Law School. He is a member of the International Academy of Mediators and the Dispute Resolution Section Council of the American Bar Association and also founded Lipscomb University’s Institute for Conflict Management. He can be found on Twitter @lbridgesmith or at Larry.Bridgesmith@law. vanderbilt.com.

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The Nashville Bar Association offers its conference rooms to be used for arbitrations, mediations, meetings, depositions, and other events for attorneys who need a convenient place to meet in downtown Nashville. We have a spacious Conference Center and a smaller Board Room—both of which have free Wi-Fi access, phone, and video-conferencing— available for your use. For more information, contact Vicki.Shoulders@nashvillebar.org or visit NashvilleBar.org/ReserveOurFacilities.

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Editorial |

Bill Ramsey, Phillip Hampton & Erik Lybeck

Will You Lose Your Job to Automation?

Will Robots Replace Lawyers?

I grew up on a farm. When I was young (eons ago), work on our farm required from six to ten laborers pretty much all year long. These days, our farm can produce more with two to three full-time workers. Automated combines, automated planters, and dramatic developments in the science and technology of farming have replaced all of those workers. And farmers are not alone. Workers have been losing their jobs to technology at least since the invention of the wheel.1 Technological improvements have replaced jobs for centuries—from the loss of jobs from weavers to mechanized looms, to the loss of steel mill jobs, to the loss of jobs in automobile industry—to robots. There is a “technical” term for this phenomenon. It is called “Technological Unemployment”.2 There is a raging debate in law-related tech-geek circles over whether Technological Unemployment will strike the practice of law.

The Technological Unemployment debate in the legal services industry has two components. First, there is the debate regarding job loss as as result of technological innovation generally. The second component of the debate relates to job losses from technical innovation in the legal industry specifically.

Technological Unemployment in Society Generally Everyone on both sides of this debate agrees that technical innovation will create temporary job losses. The question is what the long-term effect of that technological innovation will have on employment. On the optimistic side, scholars argue that “Compensation Effects” will ultimately create as many jobs as were lost as a result of technological innovation. On the other side of the debate is the so-called “Luddite Fallacy,” which may not be a fallacy at all. The argument is that machines will first replace the “easy” jobs, but as machines become more and more sophisticated, they will be able to replace jobs that require higher and higher skill levels until they exceed the abilities of most humans. As a result, in the long run, there will actually be no jobs for most human beings. For a comparison of these two positions, see “A World without Work” in The Atlantic3 and “Humans are Underrated” in Fortune4.

The So-Called Compensation Effects vs. the Luddite Fallacy in the Legal Industry One of my co-authors, Phillip Hampton, and I have been speaking on this topic for several years now. There is no doubt that technology has changed the legal profession and will (continued on page 12)

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Editorial |

Will You Lose Your Job to Automation? (continued from page 11)

change it in the future. The question for all of us is whether the changes will be so dramatic that technology will actually begin replacing lawyers themselves.

As has been the case in many industries, technology has replaced lower-level jobs in the legal industry.

Computers and word processing have reduced the number of support staff required per lawyer in a law firm. Email has reduced the need for runners and courier services, as well as persons who man our copy machines. Technological advancement has clearly changed the legal research experience for lawyers.

It certainly takes less time to research a legal issue, find applicable cases and Shepardize them than it did 25 years ago. Predictive coding and technology assisted review and other similar tools have reduced the need to have armies of young lawyers review large volumes of documents. Presently, the explosion in Artificial Intelligence has not resulted in very many job losses for lawyer, but that time could come. The Luddite proponents believe that the legal industry will experience significant job losses in the near future as a direct result of improvements in Artificial Intelligence.

The Luddite’s Argument For example, in a March 2015, article in the Wall Street Journal, the author states, “The legal profession has been one of the least aggressive adaptors of technology in the past, and in many ways the field resembles the law as practiced 100-years ago.”5 Phillip and I totally disagree with that statement. One hundred years ago, almost all documents were drafted in pen and there were certainly many fewer lawyers than there are today. Davenport does acknowledge that the practice of law “is on the verge of a 12

major transformation involving automation and use of technology to make intelligent legal decisions.”6 Davenport goes on to argue that the practice of law could be “decimated” if lawyers don’t embrace technology.7 Davenport is right to a certain extent. For example, “Ross” (built on IBM’s Watson) is now marketed as “Your Brand New Artificially Intelligent Lawyer.”8 Megafirm Baker & Hostetler has now “hired” Ross in the law firm’s bankruptcy practice.9 Using artificial intelligence, Ross supposedly improves on legal research by providing only the most relevant answers, thereby reducing the need to sift through large numbers of cases. It can also monitor litigation and provide notification on cases that affect your case, cases about your judge’s individual tendency, and so on.

Daniel Katz, a professor at Chicago-Kent College of Law has developed “FantasySCOTUS”.10 The purpose of FantasySCOTUS is to ultimately create a computer algorithm which will accurately predict decisions of the United States Supreme Court. FantasySCOTUS is taking advantage of the knowledge of “several experts” at predicting Supreme Court opinions and developing an algorithm based on past precedent and the tendency of the present members of the Supreme Court and is rapidly becoming very accurate. FantasySCOTUS calls its algorithm “{Marshall}+” after Chief Justice John Marshall. {Marshall}+ can already predict every case decided since 1953 at 70% accuracy.11 Its founders strongly believe it will continue to improve its accuracy, a goal they are hoping to achieve in part by pitting the algorithm against humans in a fantasy Supreme Court league.12 Benjamin Liu, a law professor at

University of Auckland, Australia, believes that artificial intelligence will replace lawyers in the near future in several areas. IBM Watson is going to take the Australian Bar Exam this year, and Watson will probably pass it.13 Professor Liu predicts that artificial intelligence can conduct the vast majority of transactional work, due diligence and takeover deals, and the drafting of routine legal documents.14 Robert Weber, IBM’s outgoing general counsel, predicts that Watson’s cognitive computing system will take over a large portion of the work done for IBM by external lawyers in the very near future.15 Almost everyone agrees that artificial intelligence will bring access to justice for persons with limited means.

There will, of course, be a large initial investment in artificial intelligence for those that want to get in this market; but the results could be lucrative as there will likely be a large number of consumers who would be interested in receiving legal advice (at a lower cost) from IBM Watson or another AI engine.

Consequently, legal advice will become increasingly available to persons with limited means.

For example, 19-year old Joshua Browder, a freshman at Stanford University, launched what he calls the world’s first robot lawyer, DONOTPAY, in England.16 He was able to have thousands of tickets dismissed, saving drivers an estimated $4M-$5M.17 Billionaire Mark Cuban is interested in investing in DONOTPAY.18 Clearly, the view of tech entreprenuers and investors is that Artificial Intelligence could have a transformational impact on the delivery of legal services, as transformational perhaps as digital media on the music, movie and publishing industries. The question (continued on next page)

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Editorial |

Will You Lose Your Job to Automation? (continued from page 12)

is will this transformation bring about the near extinction of traditional jobs in the legal sector. Will traditional law firms go the way of Blockbuster and Tower Records storefronts?

The “Compensation Effects” Argument Now that you are sufficiently depressed, let’s look at the other side of the coin, the “compensation effects” side of the argument. There are several pundits who do not believe that robots will replace lawyers.19 Even these pundits generally agree that legal technologies have clearly cut into the attorney market and will continue to change it. However, these pundits believe that the compensation effects will save attorneys from massive job losses. They assert that this “automation anxiety” is misplaced.20 In a study prepared by McKinsey & Company in November 2015, the authors contend that adding technology to a legal workplace will transform rather than eliminate jobs.21 Yes, there will be “task automation,” but not “job automation.”

In a new study, “Can Robots be

Lawyers?”, Dana Remus, a law professor at the University of North Carolina and Frank Levy, an MIT economist, studied the automation of lawyer work.22 Remus and Levy opined that even the most advanced artificial intelligence technology would only make a small dent in the number of actual hours that lawyers can bill.23 That is because, according to the study, the activity of practicing as a lawyer is very complicated.

It involves a wide variety of functions from research and writing, to reading and analyzing documents, to meeting with clients and counseling with them to appearing in court, to persuading judges and juries.24 Reading documents, which computers can generally perform better than people, is only a small part of what lawyers do. Consequently, Remus and Levy concluded that only about 13% of all legal work would be lost due to automation.25 And that amount of work would be lost over a large number of years.

In essence, those that believe that the compensation effects will save attorneys contend that smart lawyers will merely learn how to use existing tech-

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nology to make them better lawyers and to expand and augment the amount of work they can get done.

Geoff Colvin, in a well-written and well-researched article in Fortune magazine, “Humans are Underrated,” points out why “humans will remain in charge.”26 Colvin argues that “humans rather than computers will have to solve some problems for purely practical reasons.”27 He argues that it is the nature of humans to change our conception of what problems are and what our goals are. People have to work out problems together and in groups. And since groups can solve problems far better than any individual can, we will always require that humans work together to set selective goals and solve problems.

In addition, “deeply human abilities such as empathy, social sensitivity, storytelling, collaborating, and building relationships can never be resolved by machines.”28 He argues that we will always want to follow human leaders and not a computer. We want our doctor or our lawyer to explain their opinions to us, even if those opinions have been augmented or even prepared by computers. That is why Oracle vice-president, Meg Bear, has stated, “Empathy is the critical 21st Century skill.”29 Our Opinion We feel like telling the Luddite’s and Compensation Effect proponents, “Stop, you are both right.” We certainly believe that technology will change legal profession; and, yes, there will be some functions that lawyers perform today that will become completely automated. We do not believe, however, that it will completely do away with attorneys, and we do not believe that technology can alone solve all of our problems as is suggest(continued on page 42)

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The Road to Wellness | Heather Hubbard

Three Quick & Easy Tips for Workplace Mindfulness Have you noticed that mindfulness is all the craze in the corporate and legal world? Although mindfulness has been around for thousands of years, it wasn’t until recently that neuroscientists at Harvard started publishing their findings about how mindfulness can increase attention, concentration, and memory and can decrease stress and anxiety. In light of this evidence, even the most skeptical of professionals (ahem, lawyers) have started taking notice.

What exactly is mindfulness? Stated most simply, mindfulness is the art of paying attention, without judgment, in the present moment. In other words, mindfulness is the art of not multitasking, thinking about your response while someone else is talking, ruminating on the past, or projecting into the future.

This concept can be difficult for lawyers. Not only are lawyers trained to be judgmental, they spend most of their time looking for hidden pitfalls that may happen in the future or cleaning up mistakes that have happened in the past. Although the practice of law doesn’t naturally lend itself to mindfulness, that’s the very reason why most lawyers can greatly benefit from such a practice.

The following are three quick and easy tips you can try to see if mindfulness might benefit you.

1. Focus on one task at a time.

Choose just one task that you need to work on. Turn off your email and phone notifications (your assistant can monitor for emergencies), close any browsers, documents or tabs on your computer not

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relevant to the task at hand, and set an alarm for the amount of time you think it will take to complete the task, up to two hours. (Studies show that you begin to lose cognitive ability after two hours so make this the maximum). If you really struggle with staying focused, start with just 10 minutes and build up to longer intervals. Like exercise, attention is about building your muscles, your mental muscles.

2. Take breaks. Set timers and take breaks at least every two hours. When you’re “in the zone” and work for hours on end because of a looming deadline or a heavy caseload, you’re not really focused in a way that supports health and cognitive function. It’s more like a bear is chasing you… which means you’re not doing your best work and your stress levels are spiked. It’s important to get out of your chair and walk away from your desk.

Whether you take deep breaths, stretch, look out the window, or take a walk, the key is to be in the moment without judgment. For 5-15 minutes, throw out your

to-do list and give your mind, body, and spirit a quick breather.

3. Practice gratitude. Between deadlines, the adversarial nature of law, and client demands, it can be difficult to stay in a good mood. When you’re mindful of the things going well in your life, however, it can improve your overall well-being. The next time you find yourself stressed, upset, or anxious, take a moment to focus on the positive things in your life. Write down three to five things that you’re grateful for in that moment.

Be as specific and personal as possible.

It could be anything from your health, someone you love, the weather, a Titans win, or a new pair of shoes. As long as the thought brings you a feeling of peace or joy, it has the power to shift your perspective.

One of the biggest advantages of mindfulness over other wellness routines is you don’t have to join a program, hire a teacher, or find more time in the day to start a practice. You can slowly begin to incorporate mindfulness principles into your daily work life and find what works best for you. These three quick and easy tips are a great place to start. n HEATHER HUBBARD is an attorney, speaker, and coach. In 2014, she founded The Language of Joy (TheLanguageOfJoy.com) to help professionals find more success and satisfaction in their careers. Previously, she was a partner and deputy practice group leader at Waller.

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2017 Board Nominees | Ballots Coming in November!

Kyonzté Hughes-Toombs serves as Deputy General Counsel with the Tennessee Department of Health. Kyonzté obtained both her undergraduate and law degree from Vanderbilt University in 2001 and 2004, respectively.

Hughes-Toombs has served as the co-chair of the NBA’s Health Law Committee for the past two years. Prior to her service as co-chair of the Health Law Committee, she served as co-chair of the State Attorney’s Committee. She is a fellow of the Nashville Bar Foundation and is a mentor for the Foundation’s Leadership Forum. She is also the current President of the Napier-Looby Bar Association, serves on the board of the Napier-Looby Foundation, and is also co-chair of the Lawyer’s Association for Women’s Diversity Committee. Hughes-Toombs is a member of the 2015 Class of Nashville Emerging Leaders and Class 50 of the Nashville Young Leaders Council.

Particular areas of interest include finding ways to increase and promote diversity within the Nashville legal community, fostering greater collaboration between the NBA and other bar associations, increasing access to legal services within underserved communities, and equipping new lawyers with the tools and mentorship needed for career success. n Yanika “Nikki” Smith-Bartley is Assistant General Counsel at Asurion overseeing litigation, risk and global employment matters for the company. She received her Bachelor’s degree from Fisk University and her J.D. from Vanderbilt University Law School.

Prior to Asurion, she practiced law at Baker Donelson.

Smith-Bartley served as secretary for the Nashville and Napier Looby Bar Associations, is an alumnus of TBA Leadership Law, Young Leaders Council, Harry Phillips American Inn of Court, and is a past board member of Bethlehem Centers of Nashville and Nashville Electric Service, where she served as vice-chairman of the Board.

She is currently on the board of Nashville Public Television, is president for the Marion Griffin Chapter of the Lawyers’ Association for Women and is an active member of Alpha Kappa Alpha Sorority, Inc. She also served as mock trial coach for the Harpeth Hall High School Mock Trial team for nine years and regularly mentors young lawyers. She was a 2013 honoree for Nashville Business Journal’s Top Forty under 40 and a 2014 Nashville Bar Foundation Fellow.

Particular areas of interest include improving the representation of women and minorities in leadership positions within

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the legal profession, attorney well-being, and equal justice matters. n Justin McNaughton is an attorney with Stites & Harbison, PLLC. He received his J.D. from Washington University in St. Louis in 2004. He clerked for the Honorable William Ray Price, Jr. of the Supreme Court of Missouri before moving to Nashville in 2006.

McNaughton is currently president of the Young Lawyers Division of the Nashville Bar Association. He has served on the Young Lawyers Division board for nearly 10 years. He is also a current board member of Help One Future, a charity that provides school supplies to children in third world countries, and he is the youth minister for the local Hispanic congregation of his church.

McNaughton dedicates his time to the NBA because it provides the bridge between local lawyers and the Nashville community. As president of the Young Lawyers Division, he has focused on raising money for local charities and encouraging the addition of service opportunities into its social activities. n Judge Kelvin Jones received his B.A. from Howard University and his J.D. from the University of Alabama School of Law. Judge Jones began his practice as a corporate/ securities litigation attorney in Denver where he also taught college courses in Ethics and Pre-Law. In 1997, he joined Bass, Berry & Sims, and in 1999, he joined former Mayor Bill Purcell as his in-house legal advisor. Judge Jones previously served as the executive director of the Metro Human Relations Commission until founding The Kelvin Jones Law Group in 2010. In August 2014, he was elected to the Eighth Circuit Court.

Judge Jones, an NBA Fellow and alumnus of both Leadership Nashville and the Tennessee Bar Association’s Leadership Law program, is a Master of the Bench of the Belmont Inn of Court. He has served on numerous non-profit boards including Alive Hospice, the Nashville Area Red Cross, Tennessee Coalition to End Domestic and Sexual Violence, United Way of Middle Tennessee, the Nashville Bar Association, Boy Scouts of Middle Tennessee, Girl Scouts of Cumberland Valley, Lawyers Association for Women, the Napier-Looby Bar Association, the Housing Fund, the Music City Bowl, the Tennessee Alcohol and Drug Council, the Northwest and Downtown YMCA Board of Directors, the Historic Edgefield Neighborhood Association, and the Hull Jackson Montessori Magnet School PTO. n

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2017 Board Nominees Eric Smith is a lawyer with Nissan North America, Inc., where he manages business litigation and advises internal business units.

He graduated from William & Mary Law School in 2001, and received his undergraduate degree from Virginia Military Institute. He was formerly a partner with Bradley Arant Boult Cummings LLP in Nashville. He is currently serving as the treasurer of the Nashville Bar Association, and is a Fellow of the Nashville Bar Foundation.

Smith is particularly interested in further developing the Nashville Bar Association as an organization for in-house lawyers and other members of the Nashville legal community to interact. n DarKenya W. Waller received her undergraduate degree from Jackson State University, her juris doctorate from the University of Mississippi, and her Master’s Degree in Business Administration from Belhaven University. She is licensed in Mississippi and Tennessee and is the Managing Attorney at the Legal Aid Society in Nashville with a practice focus on domestic violence.

Waller is a member of the Napier-Looby, Williamson County, and Tennessee Bar Associations and serves on the Board of Directors of the YWCA and as Board chair of the Nashville Coalition Against Domestic Violence where she was voted Advocate of the Year in 2015. She was appointed by the Tennessee Supreme Court to the historic Indigent Representation Taskforce and was selected for the Tennessee Bar Association Leadership Law Class of 2011. She was selected as a Women of Influence by the Nashville Business Journal in 2016 and was a 2016 nominee for the Cable Network Athena Award. She co-chairs the Nashville Bar Association Community Relations Committee and the Domestic Violence Committee for the Tennessee Lawyers Association of Women. She has served as the Family Law Taskforce chair for the Tennessee Alliance of Legal Services and on the Tennessee Domestic Violence State Coordinating Council. n Michael Abelow is a partner with Sherrard Roe Voigt & Harbison. He graduated from James Madison University in 1996, and from Washington and Lee University School of Law in 2000. After graduation he was a law clerk for the Honorable E. A. Van Graafeiland of the United States Court of Appeals for the Second Circuit.

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Abelow is the current chair of the Tennessee Justice Center, immediate past chair of the Tennessee Bar Association Bankruptcy section, immediate past CLE coordinator for the NBA Bankruptcy committee, and a Fellow of the Nashville Bar Foundation. He served as large firm co-chair of the Legal Aid Society’s 2015 campaign, and in 2009, he received the TBA’s Harris Gilbert pro bono volunteer of the year award.

Abelow has been heavily involved with a hidden gem of the Nashville Bar—its Sister Cities exchange with Caen, France — and wants to get the word out and expand access to the program, as well as investigate other sister cities relationships.

Having practiced law in D.C. prior to coming to Nashville, he also wants to serve on the Bar Board in order to help maintain and strengthen the civility and relationships that are a hallmark of practicing law in Nashville. n Isaiah “Skip” Gant is a 1969 graduate of Loyola University and a 1974 graduate of its law school. He is currently an Assistant Federal Public Defender for the Middle District of Tennessee. Gant previously worked as a staff attorney with the New York State Defenders Association and as the director of the office’s Innocence Project. He spent over 15 years in private practice on the south side of Chicago, did a stint as the Chief of the Chicago Bureau of the Cook County Public Defender’s Office, and served as an adjunct Professor at DePaul University College of Law. Coming to Nashville, Gant practiced as a staff attorney with the Capital Case Resource Center of Tennessee, specializing in capital litigation. He spent four years in Cambodia working for the International Human Rights Law Group’s Cambodian Defender Project and as a United Nations consultant/mentor to the judges and prosecutors at the Phnom Penh Municipal Court in Cambodia. He is a past president of the Napier-Looby Bar Association and is a Fellow of both the Napier-Looby and Nashville Bar Foundations. n Laura Baker is a Shareholder with the Law Offices of John Day, PC, where she practices personal injury, wrongful death, and tort litigation. Baker is a Fellow of the Nashville Bar Foundation and currently serves as cochair of the NBA Chancery & Circuit Courts Committee. She also serves as chair of Friday Fundamentals, a new 13-week program the NBA is launching in January 2017, to provide practical training to new lawyers. Baker is a graduate of the inaugural class of the Nashville Bar Foundation Leader-

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2017 Board Nominees ship Forum, and now serves on the steering committee for the program.

Baker served as the President of the Lawyers’ Association for Women from 2014 to 2015. She is a Barrister of the Harry Phillips American Inn of Court and serves on the Executive Committee. Baker was a recipient of the Nashville Business Journal’s “40 Under 40” award in 2015. She also received the “Rising Star” award from the Lawyers’ Association for Women in 2016. Baker earned her undergraduate degree from Rhodes College and her J.D. from the University of Tennessee.

As a prospective Board member, Laura is interested in enhancing member benefits, providing mentorship to new lawyers, encouraging community involvement, and fostering collegiality among members of the Bar. n Tracy Kane is a partner with Dodson Parker Behm & Capparella, PC, where she provides common sense guidance and solves complex problems for individuals, businesses, and non-profits.

A long-serving member of the Nashville Bar Journal Editorial Committee, she was recognized as 2010’s “Contributor of the Year.” Kane is chair of the NBA Attorney Health & Wellness Committee, where she implemented the annual 10,000 Step Challenge. She has also served as a speaker for the Nashville Bar Foundation Leadership Forum. A past president of Sister Cities of Nashville, she currently serves on the Board and chairs the Belfast Committee, as well as secretary for the Nashville Conflict Resolution Center and the Tennessee Performing Arts Center.

Kane is particularly interested in helping attorneys and the NBA plan for and navigate economic, technological, and cultural shifts in the practice of law as well as helping new lawyers achieve a sustainable and fulfilling practice. She is a sought-after speaker and writer on attorney wellness, business law, non-profit concerns, and urban growth.

Kane received her B.A. from American University and J.D. from Vanderbilt, where she was named a Fellow of the Cal Turner Moral Leadership Program. n Tonya Mitchem Grindon is a shareholder at Baker Donelson Bearman Caldwell & Berkowitz. She serves on her firm’s Board of Directors, is chair of the Corporate Finance & Securities group and will assume the role of chairperson of the Business Department in January 2017. She concentrates her practice in securities

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and corporate finance, corporate governance, and business transactions. Tonya graduated from Vanderbilt University, cum laude; George Washington University Law School, with honors; and George Washington University Graduate School with an M.A. in International Affairs. She is admitted to practice law in Tennessee, Washington, D.C., and Maryland.

Grindon’s Nashville Bar Association work includes the following: she previously served as secretary to the Nashville Bar Association (2008), and is past president (2006), secretary (2005) and board member of the Young Lawyers Division. She was also a board member and past president (2009) of the NBA Pro Bono Program. She is a Fellow of the Nashville Bar Foundation and in 2005, she participated in the Tennessee Bar Association Leadership Law Program.

Particular areas of interest include promoting and advancing women in the legal profession and increasing participation in bar activities by transactional attorneys. n Jonathan Harris is a shareholder in Ogletree Deakins’ Nashville office and represents management in all areas of employment-related legal matters. An experienced litigator, Harris has defended single-plaintiff lawsuits and represented employers in class and collective actions. Harris is a Fellow of the Nashville Bar Foundation, has been recognized by The Best Lawyers in America© and Super Lawyers, and holds an AV Preeminent® rating from Martindale-Hubbell.

Harris is the co-chair of the Labor and Employment Section of the Nashville Bar Association, a member of the Tennessee Bar Association’s Labor & Employment Law Section Executive Council, and a board member of Middle Tennessee Society for Human Resources Managers. Harris earned his J.D. from Washington University School of Law and received a B.A. from Vanderbilt University. n Stephen Zralek is a Member at Bone McAllester Norton, PLLC where he focuses on IP litigation, business litigation, and entertainment litigation. He obtained his J.D. from the University of Tennessee College of Law in 1997 and his Bachelor’s degree from Xavier University in 1994. He has been a member of the NBA for 18 years and belongs to the Federal Court Committee and the Intellectual Property Committee. He has presented CLEs for the NBA, TBA, and ABA, and written articles for/been quoted in the Nashville Bar Journal, Tennessee Bar Journal, and American

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2017 Board Nominees Bar Journal, Managing IP, Young Entrepreneur and USA Today, on topics focused on copyrights, trademarks, the right of publicity, social media, campaign finance, and federal court practice.

Zralek is a graduate of Leadership Nashville (2015), the TBA Leadership Law Program (2007), and Young Leaders Council (1999). Among other community involvement, he has chaired the boards of Conexión Américas (2014-16), Family & Children’s Service (2007-08), and Nashville for All of Us (200911). He has also served on the board of Children’s House Montessori (2013-16) and currently serves on the board of Percy Priest Elementary Extended Day Program.

Particular areas of interest include maintaining civility as Nashville grows and mentoring young lawyers. n Brant Phillips is chair of Bass, Berry & Sims’ 85-attorney Litigation & Dispute Resolution Practice Group. He also serves as a member of the firm’s Executive Committee.

For nearly 20 years, Phillips has represented clients in complex business litigation and healthcare matters, and he routinely serves as lead counsel to public and private companies and their directors in high-stakes arbitrations, securities and shareholder class actions, derivative actions and business fraud cases throughout the country.

Drawing on his background in public policy, he also leads clients through administrative and enforcement proceedings before government boards and commissions.

Phillips’ work has been recognized by Mid-South Super Lawyers, Benchmark Litigation, and, most recently, he was named by Best Lawyers in America® as the 2016 Administrative/Regulatory Law “Lawyer of the Year” in Nashville. He is a Fellow of the Nashville Bar Foundation and a member of the 2016 class of Leadership Tennessee. Phillips graduated with honors from Washington & Lee University School of Law, where he was a senior editor of the Law Review, and earned master’s and undergraduate degrees from Duke University and Birmingham-Southern College, respectively. He also serves on the board of the Nashville Symphony Orchestra, where he chairs that organization’s Governance Committee. n Sal Hernandez is a member of Riley Warnock & Jacobson, PLC, where he has practiced commercial litigation since 2000. He received his undergraduate degree from Princeton University in 1996 and his J.D. 20

from Vanderbilt in 1999. He clerked for the Honorable Gilbert S. Merritt on the U.S. Court of Appeals for the Sixth Circuit following law school.

In addition to his law practice, since 2011, Hernandez has served on Nashville Metropolitan Government’s Transportation Licensing Commission. Presently he serves as the Commission’s chairperson and has seen recent changes in the passenger transportation industry with the rise of transportation network companies like Uber and Lyft. In 2016, Hernandez is serving as co-chair of the Nashville Bar Association’s Federal Courts Committee, which is aimed at encouraging interaction between the federal judiciary and the bar and also presenting timely topics to its members.

Hernandez volunteers periodically as a pro bono attorney for TN Justice for Our Neighbors to review immigrant applications to the federal government’s Deferred Action for Childhood Arrivals program. For several years now, he has served on the planning and selection committee for the Princeton Prize in Race Relations, which recognizes high school students who have made demonstrable efforts to improve racial harmony. n Lynne T. Ingram has been an Assistant U.S. Attorney for nine years and has worked in the U.S. Attorney’s Office for the Middle District of Tennessee for the last seven years in the Criminal Division. She received her undergraduate degree from the University of South Carolina in 2000 and her J.D. from Thomas M. Cooley Law School in 2003.

Ingram is active on the NBA Social Committee and also serves on the Executive Board of the Lawyers’ Association for Women as the first year director. She became a TN CLE Certified Mentor in 2014, and has been mentoring recent law school graduates. Ingram is a graduate of the TBA Leadership Law Program and remains active as the TBALL alumni chair. She was awarded the Larry Dean Wilks Leadership Award by her TBALL classmates. She is an adjunct professor at Vanderbilt Law School in trial advocacy, and has coached high school mock trial teams annually since graduating from law school.

She was an active member of the Harry Phillips American Inn of Court from 2012 through 2016.

Particular areas of interest include improving the perception of lawyers, mentoring new lawyers, and promoting health and wellness for lawyers. n

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Bill & Phil’s Gadget of the Month | Bill Ramsey & Phillip Hampton

Wi-Fi Home Stereo Grudge Match Chromecast Audio vs. Airplay vs. Sonos Our love of music is legendary—from Robben Ford to Amos Lee to Lake Street Dive to BØRNS. We’ve even been known to listen to a little Tim McGraw, Wiz Khalifa, and Ziggy Marley from time to time.

Unfortunately, we both have spent so much money buying gadgets that we cannot afford to wire our homes or offices for expensive whole-house audio systems like Russound, Niles, or Nuvo.

Thus, the perfect solution: wireless audio systems.

There are several wireless audio solutions on the market now, but we have narrowed our favorites down to three: Sonos (the most expensive solution), AirPlay (an Apple-centric product), and Chromecast (Google’s solution). All three systems have their pros and cons, so we put them to the test in a wireless audio grudge match.

Sonos

Sonos has long been the leader in multi-room wireless speaker systems.

The Sonos system (like the Chromecast Audio and the AirPlay systems) connects

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to a home Wi-Fi system and the Internet.

The Sonos plays music from almost any available audio service—iTunes, Groove Music, Amazon Music, etc. For the creative person, he or she can even use the turntable as an audio source for the Sonos system, which also requires a device called “Sonos CONNECT.” You can play different music in different rooms or play the same music in all rooms together and still maintain individualized volume controls in each room. You control the music, the sources, and the volumes independently from an app on your smartphone, iPad or other tablet. The Sonos solution is truly elegant.

The drawback? It is expensive. The Sonos CONNECT (the wireless receiver component) costs $350. The Sonos CONNECT with a built-in amplifier costs $500. If you use the CONNECT alone, you will have to buy an amplifier or use speakers with built-in amplifiers. It just so happens that Sonos has its own line of amplified speakers. There are three such speakers: the PLAY:1 at $199, the PLAY:3 at $299, and the PLAY:5 at $499. For larger rooms, you will need the PLAY:5. By the way, those prices are for one speaker. If you want a stereo, you will have to buy two of each. A subwoofer costs $699. Another option is the PLAYBAR, which can be installed underneath an HD television, providing audio output for the TV, as well as being controllable from the Sonos system. At these prices, placing speakers in every room of your house can become very expensive. The Sonos system is rock solid, though, and you rarely will hear skips or “hiccups” in

your audio streams because of its proprietary networking software system.

Apple AirPlay

AirPlay is a proprietary Apple software protocol. The technology is supported on all Apple devices—computers, iPhones, iPads, and Apple TV. In order to use the AirPlay system, you will need either an Apple TV or an AirPort Express device. You will need one such device for each room. You can buy either of these devices for approximately $100, or you may be able to buy refurbished ones for approximately $60. There are also a limited number of AirPlay enabled speakers; however, those speakers cost the same as Sonos speakers or even more. The best use of an AirPlay system is with your existing stereo equipment. You can connect the Apple TV device or the AirPort Express device to your stereo and stream music from any Apple device.

There are drawbacks, however.

For example, the AirPlay system is only useable with Apple products unless you buy a third-party software “hack” that al(continued on page 22)

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Bill & Phil’s Gadget of the Month lows you to use AirPlay with Windows or Android devices. If you are using a Windows computer, you can download the Airtunes/AirPlay software and play music only from iTunes. If you use AirPlay with an iPad or an iPhone, you can only stream music to one room at a time. The multi-room capability is only available if you are using iTunes or a third-party hack, such as Airfoil from Rogue Amoeba (cost is approximately $30). Thus, the AirPlay solution is certainly less expensive than the Sonos solution, but it is not nearly as versatile. In addition, in certain homes or offices, you can experience “skips” while streaming music using AirPlay, but the system does support Lossless Audio.

Google Chromecast

If you are like us, and you’ve spent all of your money on gadgets, you may want to look at the Chromecast Audio system.

The Chromecast Audio is the cheapest solution by far. The device costs $35.

You can connect one of these devices to your existing system or to powered speakers in each room and stream music from almost any iOS Android or Windows device. You can group rooms together, or you can play music in each room separately, although not with as many options as are available on Sonos.

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Google Chromecast offers high-resolution audio, as well. The drawback is that, unlike Sonos, it does not rely on a single app that simplifies the process. Also, it is not as easy to choose speakers using Chromecast as it is using AirPlay. Instead, Chromecast system is integrated into individual applications and browsers on your devices. Some services (like iTunes) are still unavailable using the Chromecast Audio system.

The bottom line is that it is very inexpensive, but it is not a unified hardware and software solution. On the other hand, Chromecast Audio is very simple to use and works very well with little or no “skipping” because the device itself connects directly to the Internet once you have chosen the source for it to use. At $35 per room (plus the cost of a nice but inexpensive set of powered speakers or an existing stereo system), the Chromecast system is the system of choice for the poor and the cheapskates among us.

The Winner(s) Now that the grudge match is over, we have to award the heavyweight championship to Sonos. It is by far the best and most elegant of the systems— if you can afford it. But, we will give the featherweight award to Chromecast. AirPlay is really only a solution for those that are still addicted to, or restricted to, Apple products.

So, pick one of these systems and jam around your house to a little Electric Love by BØRNS.

See you next month.

― Bill and Phil

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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. T UE SDAY, OCTOBER 1 8 | LIVE S E M I N A R

TH U R S D AY, OC TOB E R 27 | L IVE SEM IN A R

ANNUAL FAMILY LAW INSTITUTE

ANNUAL EMPLOYMENT LAW INSTITUTE

OVERVIEW This annual seminar is co-sponsored by the NBA Domestic Relations Committee. Join the domestic bar for a case law update, find out how a vocational expert can help you with child support and alimony issues, and learn to smartly evaluate assets in a potential property settlement. This seminar will close with perspectives from the bench from Judge Binkley and Judge Smith. Lunch will be provided!

PRESENTERS Hon. Mike Binkley Circuit and Chancery Court Judge, 21st Judicial District Melissa Cothran, CPA, Senior Manager, Tax, LBMC Gregory D. Smith, Stites & Harbison, PLLC Hon. Philip Smith, Circuit Court Judge, 20th Judicial District David R. Strauser Professor, Department of Kinesiology and Community Health, University of Illinois at Urbana-Champaign Scott Womack ASA, MAFF, Partner, Business Valuation/Litigation Support, LBMC D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST

OVERVIEW This annual seminar is co-sponsored by the NBA Employment Law and Civil Rights Committee. Come explore significant topics in employment law, including the EEOC’s Select Task Force on the Study of Harassment in the Workplace, in-house perspectives on employment law, and gender identity discrimination, including employers’ obligations related to bathrooms.

Lunch is included with this seminar!

PRESENTERS Allison Bussell, Klein Bussell, PLLC Ashley Gillard, Permobil, Inc. Kevin Klein, Klein Bussell, PLLC Anne Martin, Bone McAllester Norton, PLLC Mark Stamelos, Ford & Harrison, LLP D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 25, add a $10 late fee.

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after October 14, add a $10 late fee.

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T UE S DAY, NOVEMBER 1 | LIVE SE M I N A R

TH U R S D AY, N OV E M B E R 3 | LI V E SEMIN A R

SOCIAL MEDIA ETHICS WITH JUDGE MONTE WATKINS

ADVANCED FEDERAL COURT PRACTICE

OVERVIEW

OVERVIEW

Join us in the Birch Building Jury Assembly Room for an ethics presentation from Judge Monte Watkins. Highlights include:

Advanced Federal Court Practice, produced by the NBA Federal Court Committee, will present information directly relevant to federal practice in this district, including new Sixth Circuit guidance on protective orders and sealed documents, a review of how courts have applied the 2015 amendments to the Federal Rules of Civil Procedure (including Rule 26(b) proportionality and Rule 37(e) sanctions), and the latest guidance and pitfalls related to ethics and competence in e-discovery. (3.0 General)

• Attorney-client privilege • What constitutes waiver of the privilege • Client confidentiality • Social media posts • Work product • Legal challenges of digital communication including texting and sending emails Don’t miss these insights from the bench!

PRESENTER Hon. Monte Watkins Division V Judge, Criminal Court of Davidson County D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11:30am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . Justice A.A. Birch Building Jury Assembly Room (Ground Floor) 408 2nd Ave N, Ste 1120, Nashville, TN 37201 COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after October 28, add a $10 late fee.

P R E S E N T E R S & D E TA I L S For a list of presenters and further information, visit NashvilleBar.org/CLE. COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after November 1, add a $10 late fee.

M O N D AY, N OV E M B E R 7 | LI V E SEM IN A R

DIRECTED TRUSTS 101 OVERVIEW Directed Trusts are becoming more prevalent in this country, but there are many misunderstandings related to the roles, responsibilities, and liabilities. The goal of this seminar is to establish the base rules and understandings of directed trusts and directed trust statutes. (1.0 General) PRESENTER George Pappas, FTB Advisors For further information, visit NashvilleBar.org/CLE. COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after November 3, add a $10 late fee.

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T HURSDAY, NOVEMBER 1 0 | LIV E S E M I N A R F R E E WITH YOUR NBA MEM B E R S H I P !

BLANTON! OVERVIEW Reserve your seat today at NashvilleBar.org/Blanton—space is limited. Registration will open to non-members on October 20.

Forty years ago, Tennessee Governor Ray Blanton and scandals in our state government were a national news sideshow.

This program will focus on those legal issues and those lawyers relating to this important part of Tennessee history. The issues range from an investigation over the sale of surplus property to the granting of pardons and paroles for profit and the sale of liquor licenses. These issues and others led to an early swearing in of a governor and a crisis in Tennessee government.

PLANNING COMMITTEE Hon. Joe Brown, Magistrate Judge, U.S. District Court Hon. Ben Cantrell, Retired William M. Cohen, Retired Assistant U.S. Attorney Frank Grace, Jr., Retired Hal Hardin, Hal Hardin Law Office Hon. William C. Koch, Jr., Dean, Nashville School of Law Edward D. Lanquist, Jr., Patterson Intellectual Property Law Bob Lynch, Jr., Bob Lynch Law John C. McLemore, Law Office of John C. McLemore, PLLC Monica Mackie, Nashville Bar Association E. Scott Neely, State of Tennessee David Raybin, Raybin & Weissman, PC Jan Margaret Rogers, Nashville Bar Association Emily A. Shouse, Patterson Intellectual Property Law Hon. Aleta A. Trauger, Judge, U.S. District Court Ed Yarbrough, Bone McAllester Norton, PLLC

M O N D AY, N OV E M B E R 14 | L IVE SEMIN A R

BUSINESS LAW INSTITUTE OVERVIEW This seminar is co-sponsored by the NBA Business Law Committee. Enjoy a networking lunch, followed by a CLE seminar that covers a variety of timely and relevant topics, including: • Demystifying Regulation A+: Procedures and Opportunities • Frequently overlooked issues in choice of entity selection • Series LLCs in Tennessee: Practical Uses • Best practices in contract drafting PRESENTERS Justin Adams, Bone McAllester Norton PLLC Marc J. Adesso, Baker Donelson, PC Alexander Davie, Riggs Davie, PLC Whitney Haley, McKenzie Laird, PLLC John Hughes, Marcum, LLP Robert Laird, McKenzie Laird, PLLC Casey Riggs, Riggs Davie, PLC Michael Yopp, Waller D E TA I L S Registration & Lunch. . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $195 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $389 For registration after November 10, add a $10 late fee.

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:30pm Credit. . . . . . . . . . . . . . . . . . . 3.0 CLE (1.5 Dual | 1.5 General) Location. . . . . . . . . . . . . . . . . . . . . . . . Nashville Public Library COST =

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FREE!

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F RI DAY, NOVEMBER 1 8 | LIVE SEM I N A R

TU E S D AY, N OV E M B E R 22 | LI V E SEM IN A R

ANNUAL ETHICS, LIES, AND VIDEOTAPE, PART XIV

ELDER LAW BASICS

OVERVIEW Don’t miss the NBA’s most popular ethics and professionalism program! Past seminar participants have rated this seminar a “10.” Join your colleagues in viewing scenes from movies to explore, analyze, and compare “reel” life with common ethical issues and the Rules of Professional Conduct.

How many gavels will the movie receive? How many ethical violations can Hollywood exploit? How much popcorn can you eat?

How to Help Clients who are Seniors or Have a Family Member with Special Needs OVERVIEW The senior population is extremely vulnerable and vastly underserved. This seminar is targeted at lawyers who deal with seniors or with families who have children with special needs so that the lawyers will recognize the issues and be able to refer their clients to get appropriate help. It also is geared toward lawyers who are contemplating making a transition to this field or who have already decided and want to begin this very rewarding practice. Highlights include: • Helping clients who may need Medicaid (TennCare) • New developments in Veteran’s benefits • Helping families who have children with special needs • The complicated ethics of working with seniors PRESENTERS

PRESENTERS Donald Capparella, Dodson Parker Behm and Capparella, PC Hon. Barbara D. Holmes, Magistrate Judge, U.S. District Court for the Middle District of Tennessee Edward D. Lanquist, Jr., Patterson Intellectual Property Law D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:15pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AT&T Building 333 Commerce St, 1st Fl Auditorium, Nashville, TN 37201 COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139

Bryson Eubanks, Elder Law of Nashville, PLC Miller Hunt, Elder Law of Nashville, PLC Barbara Moss, Elder Law of Nashville, PLC D E TA I L S Registration & Sponsored* Lunch. . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 2:00pm Credit. . . . . . . . . . . . . . . . . . . 2.0 CLE (0.5 Dual | 1.5 General) Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189 For registration after November 18, add a $10 late fee.

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after November 16, add a $10 late fee.

*Complimentary lunch sponsored by Mike and Candie Worsham of Nashville Area Homes.

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W E DNESDAY, NOVEMBER 3 0 | L I V E S E M I N A R

TH U R S D AY, D E C E M B E R 1 | L IVE SEM IN A R

HEAR IT FROM THE JUDGE, THE SPECIAL MASTERS, THE DA, FAMILY LAW PRACTITIONERS, AND DEFENSE PRACTITIONERS

THE DOL’S NEW OVERTIME RULES GO INTO EFFECT TODAY!

Domestic Violence and Orders of Protection in Civil and Criminal Cases OVERVIEW Domestic violence cases cannot be viewed in isolation. A person facing a domestic violence charge can be sued by the alleged victim. The charge can impact employment, an ability to rent an apartment, and limit educational opportunities. A conviction can impact one’s firearm rights forever. Each collateral issue must be weighed against the other to afford the best possible representation. A special welcome will be provided by District Attorney Glenn Funk.

PRESENTERS Hon. Dana Ballinger, Special Master, Circuit Court Trudy Bloodworth, Trudy L. Bloodworth, Attorney at Law Ana Escobar, Asst. District Attorney, Domestic Violence Unit Team Leader Glenn Funk, District Attorney Ben Raybin, Raybin & Weissman, PC David Raybin, Raybin & Weissman, PC Hon. Phillip Robinson, Circuit Court Judge Hon. Stephanie Williams, Special Master, Circuit Court D E TA I L S

OVERVIEW Earlier this summer, the U.S. Department of Labor Wage and Hour Division announced the final changes to the regulations that govern the “white collar” overtime exemptions, which go into effect on December 1, 2016. The final rule: • Sets the minimum salary level for exemption at $47,476 ($913/week) and the salary level for the highly compensated at $134,004.

• Provides for automatic increases in the salary levels after three years (beginning Jan. 1, 2020), indexed to the 40th percentile of full time salary workers in the lowest wage Census region (currently the South region).

• Allows employers to count any bonuses paid on at least a quarterly basis toward 10% of the minimum salary level.

• Did not revise the duties test.

This presentation will provide detailed guidance on the new regulations, and practical steps on how employers and their attorneys can respond to these changes.

PRESENTERS Rachel Rosenblatt, Littler Mendelson, PC Roger D. Scruggs, Littler Mendelson, PC D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . 11:30am – 12:00pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:00 – 1:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30pm

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.0 General

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00 – 4:30pm

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 General Location. . . . . . . . . Historic Courthouse, Jury Assembly Room Nashville, TN 37201 COST

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $89 For registration after November 29, add a $10 late fee.

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $279 For registration after November 28, add a $10 late fee.

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F RI DAY, DECEMBER 2 | LIVE SE M I N A R

M ON D AY, D E C E M B E R 5 | LI V E SEM IN A R

ANNUAL ENTERTAINMENT, SPORTS, & MEDIA LAW SEMINAR

PRINCIPLED NEGOTIATIONS INSIDE & OUTSIDE THE LAW FIRM

OVERVIEW

OVERVIEW

This annual seminar is produced by the NBA Entertainment, Sports, and Media Law Committee. Register now and join your colleagues for an information-packed end-of-the year entertainment, sports, and media law seminar.

After an overview of the principled negotiation framework, Professor Haskell Murray of Belmont University will illustrate how to use the framework in disputes inside and outside of the law firm. Pillars of the principled negotiation framework include uncovering interests, identifying and strengthening alternatives, and using appropriate objective standards. Both litigators and transaction attorneys will benefit from learning and applying these negotiation methods. Case studies and an interactive presentation method will be utilized.

This seminar features legislative and music law updates, a discussion on right of publicity law, an hour of sports law ethics, and a presentation by Professor Stan Soocher on the year’s most important and interesting entertainment law litigation. If you practice entertainment, sports, or media law, you don’t want to miss this opportunity to learn about and network in your field.

Attorneys from other areas of law are also welcomed. Lunch and a happy hour reception* are included with registration.

PRESENTERS For a list of presenters and the full agenda, visit NashvilleBar.org/CLE.

PRESENTER Dr. Haskell Murray Assistant Professor of Management and Business Law Jack C. Massey College of Business D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2:30pm

D E TA I L S

Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3:00 – 5:00pm

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00am

Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 General

Seminar w/ lunch*. . . . . . . . . . . . . . . . . . . . . 9:30am – 4:20pm

Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association

Reception*. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4:20pm Credit. . . . . . . . . . . . . . . . . . . 5.5 CLE (1.0 Dual | 4.5 General)

COST

Location. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AT&T Building

NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95

333 Commerce St, 1st Fl Auditorium, Nashville, TN 37201

Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189 For registration after December 1, add a $10 late fee.

COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $229 Non-Members. . . . . . . . . . . $475 (includes NBA membership!)

For registration after November 30, add a $10 late fee.

*Complimentary lunch and happy hour reception sponsored by First Tennessee Bank.

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MONDAYS, DECEMBER 5 & 1 2 | L I V E S E M I N A R

TH U R S D AY, D E C E M B E R 8 | L IVE SEM IN A R

THE OBLIGATION TO SERVE

WHY LAWYERS GET SUED

OVERVIEW

Sponsored by IPSCO, the Exclusive

The Nashville Bar Association—under a grant and support from the Nashville Bar Foundation—presents a program to encourage and assist attorneys in running for political office.

PRESENTERS Hon. Joe Binkley, Jr., Circuit Court Judge Charles R. Bone, President, Bone McAllester Norton, PLLC David Briley, Member, Bone McAllester Norton, PLLC Hon. Sheila Calloway, Juvenile Court Judge Justice Cornelia A. Clark, TN Supreme Court Justice Bob Cooper, Member, Bass, Berry & Sims, PLC Hon. Angie Dalton, General Sessions Court Judge Karl Dean, Former Mayor of Nashville Hon. Richard Dinkins, TN Court of Appeals Judge Hon. William Koch, Dean, Nashville School of Law Edward D Lanquist, Jr. Patterson Intellectual Property Law, PC Hon. Ellen Lyle, Chancellor William Purcell, Farmer Purcell White & Lassiter, PLLC Former Mayor of Nashville Nathan Ridley, Bradley Alan Secrest, President, Secrest Strategies; pollster Hon. Philip E. Smith, Circuit Court Judge Mike Stewart, Representative, TN General Assembly AC Wharton, Former Mayor of Memphis Former Mayor of Shelby County Jeff Yarbro, Senator, Tennessee General Assembly

Insurance Provider for the NBA OVERVIEW Learn practical advice to help improve your practice, including: • The top five reasons lawyers get sued.

• How to avoid being a malpractice statistic.

• Practice tips to improve your client relations.

PRESENTER Sally Field Legal Professional Liability Leader Attorney Protective; Insurance Partner of IPSCO D E TA I L S Registration w/ breakfast*. . . . . . . . . . . . . . . . . . . . . . . 8:30am Seminar*. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9:00 – 11:00am Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.0 General Location. . . . . . . . . . . . . . . . . . . . . . . . Nashville School of Law 4013 Armory Oaks Dr, Nashville, TN 37204 COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $95 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $189 For registration after December 6, add a $10 late fee.

D E TA I L S Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:00am Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8:30am – 12:00pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.0 General Location. . . . . . . . . . . . . . . . . . . . . . . Nashville Bar Association COST

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For registration after December 1, add a $10 late fee.

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F RI DAY, DECEMBER 9 | LIVE SE M I N A R

A COMEDY OF ETHICS OVERVIEW Come see the Ethics CLE 400 years in the making! Professional actors from the Internationally celebrated Nashville Shakespeare Festival present the Bard’s scenes illustrating ethical dilemmas just like the ones faced by lawyers today, and our panel of speakers address the cutting edge ethical issues you need for your practice.

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Ethics & Professionalism in Government Practice Thursday, December 15

Chancery & Circuit Court Practice Monday, December 19

PRESENTERS Hon. Joe P. Binkley, Jr. Judge, Circuit Court Donald Capparella Dodson Parker Behm and Capparella, PC Hon. Frank G. Clement, Jr. Judge, Tennessee Court of Appeals Elizabeth N. Sitgreaves Dodson Parker Behm and Caparella, PC D E TA I L S

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N B A ON LI N E S E M I N A R S P ersonal i z ed Learni ng on You r Sc h e d u le

Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12:30pm Seminar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:00pm – 4:15pm Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.0 Dual Location:. . . . . . . . . . . . . . . . . . . . . . . Nashville Public Library COST NBA Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $119 Non-Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $139 To register, visit DodsonParker.com/Shakespeare or call Donald Capparella at 615-254-2291.

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Drones: What the FAA’s New Drone Rule Means for Your Clients 1.0 General

30

NASHVILLE BAR JOURNAL | OCT/NOV 2016

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9/29/2016 10:38:55 AM

PLI LIVE WEBCAST S L i ve CLE Cr e dit f r om Innov a t ive Webcast s

M O R E P LI LI V E WE B C A ST S

Annual Immigration and Naturalization Institute December 7, 8:00am – 5:00pm December 8, 8:00am – 4:30pm 1.0 Dual | 11.25 General Complimentary breakfast included.

PLI and the NBA provide sophisticated programs to Tennessee attorneys through live webcasts held at the NBA Conference Center. Attendees will earn live CLE credit. Registration is free for PLI’s Privileged members. Visit NashvilleBar.org/CLE for course details and to register.

Tracking and Targeting Customers and Prospects Online, on Mobile Devices, and in Social Media October 20, 8:00am – 4:15pm 6.5 General

Health Care Law Institute December 13, 8:00am – 4:00pm

6.0 General

Complimentary breakfast included.

Nonprofit Organizations: Governance, Form 990 Reporting, and Compensation Issues December 14, 8:00 – 11:45am 3.2 General Complimentary breakfast included.

Complimentary breakfast included.

Fundamentals of Swaps & Other Derivatives October 24, 8:00am – 4:00pm

6.0 General

Building Better Construction Contracts December 16, 7:45am – 4:00pm 1.0 Dual | 5.5 General Complimentary breakfast included.

Complimentary breakfast included.

Life Sciences: Navigating Legal Challenges in the Drug and Device Industries November 2, 8:00am – 4:00pm 6.0 General Complimentary breakfast included.

Ethics for Corporate Lawyers December 22, 1:00 – 3:30pm

2.08 Dual

Drafting and Negotiating Corporate Agreements January 6, 8:00am – 4:00pm 1.0 Dual | 5.5 General Complimentary breakfast included.

Developments in Pharmaceutical and Biotech Patent Law November 9, 8:00am – 4:00pm 1.0 Dual | 5.0 General Complimentary breakfast included.

Financial Services Industry Regulatory Compliance and Ethics Forum November 14, 8:00am – 4:15pm 2.0 Dual | 4.50 General Complimentary breakfast included.

Trial by Jury November 21, 8:00am – 4:00pm

Complimentary breakfast included.

Intellectual Property Rights Enforcement January 20, 8:00am – 4:00pm 1.0 Dual | 5.2 General Complimentary breakfast included.

1.0 Dual | 5.0 General

Complimentary breakfast included.

Hotels: Law and Practice November 28, 8:00am – 4:00pm

Mergers & Acquisitions: Advanced Trends and Developments January 12, 8:00am – 3:45pm January 13, 8:00am – 3:45pm 1.0 Dual | 11.2 General

6.0 General

Understanding Financial Products January 25, 8:00am – 4:00pm January 26, 8:00am – 4:00pm 1.0 Dual | 11.2 General Complimentary breakfast included.

Complimentary breakfast included.

Banking Law Institute December 2, 8:00am – 4:45pm Complimentary breakfast included.

NBJ_1011_2016_FINAL_.indd 31

7.0 General

Recent Developments in Distressed Debt, Restructurings, and Workouts February 1, 8:00am – 4:00pm 1.0 Dual | 5.2 General Complimentary breakfast included.

OCT/NOV 2016 | NASHVILLE BAR JOURNAL

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W E BI NARS | FEATURING SEAN CAR TE R , E S Q. La ugh While You Le a r n

N B A TE LE S E M I N A R S E asy M obi l e A ccess When You’ r e o n th e G o !

The Nashville Bar Association partners with Mesa CLE to bring you CLE Netshows—entertaining and content-filled ethics and professionalism webinars. Register at NashvilleBar.org/CLE.

12:00 – 1:00pm For registration, visit NashvilleBar.WebCredenza.com.

OCTOBER Oct 11 | Buying and Selling Distressed Businesses, Part 1 Oct 12 | Buying and Selling Distressed Businesses, Part 2 Oct 13 | Joint Ventures between For-Profits and Non-Profits Oct 14 | Ethics in Claims and Settlements (Dual) Oct 17 | Treatment of Trusts in Divorce Oct 18 | Understanding & Reviewing Franchise Agreements, Part 1 Oct 19 | Understanding & Reviewing Franchise Agreements, Part 2 Oct 20 | Drafting Material Adverse Change (MAC) Clauses Oct 21 | Ethics and Cloud Computing (Dual) Oct 24 | Director and Officer Fiduciary Duties & Liability

Loose Lips Sink Partnerships (and Clients Too): The Ethical Way to Honor Client Confidentiality Oct 17, 12:00 – 1:00pm 1.0 Dual Show Me The Ethics!

The Ethycal Way to Bill for Legal Services Oct 24, 12:00 – 1:00pm A Nightmare on Ethics Street: Don’t Fall Asleep on Your Ethical Obligations Oct 31, 12:00 – 1:00pm

Deposition Do’s and Don’ts Nov 16, 12:00 – 1:00pm

NOVEMBER 1.0 Dual

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Nov 1 | Drafting Stock Purchase Agreements Nov 2 | Estate Planning for Religious and Philosophical Beliefs of Clients | Nov 3 2016 Ethics in Litigation Update, Part 1 (Dual)

1.0 Dual

2.0 Dual

1.0 General

The Truth, The Whole Truth and Nothing But the Truth: The Ethycal Imperative for Honesty in Law Practice Nov 21, 12:00 – 1:00pm 1.0 Dual An Ethics Biography of F. Lee Bailey Nov 30, 11:00am – 12:00pm

Oct 27 | 2016 Americans with Disabilities Act Update Oct 28 | Ethics for Real Estate Lawyers (Dual) Oct 31 | Lawyer Ethics & Disputes with Clients (Dual)

What Starbucks Teaches About Ethically Inspired Marketing Nov 7, 11:00am – 12:00pm 1.0 Dual The 2016 Ethy Awards Nov 12, 8:00 – 10:00am | 11:00am – 1:00pm

Oct 25 | Fiduciary Standards in Business Transactions: Good Faith and Fair Dealing |

Oct 26 Business Succession Planning for Estate Planners

1.0 Dual

Nov 4 | 2016 Ethics in Litigation Update, Part 2 (Dual) Nov 7 | Employees vs. Independent Contractors: Tax Law Issues Nov 8 | Post-Mortem Estate Planning Nov 9 | Ethics and Social Media: Current Developments (Dual) Nov 10 | Acquisitions of Subsidiaries and Divisions Nov 11 | Ethics & Identifying Your Client: Not Always 20/20 (Dual) Nov 14 | Workout of Defaulted Real Estate Project Nov 15 | Secured Transactions Practice: Security Agreements to Foreclosures, Part 1 Nov 16 | Secured Transactions Practice: Security Agreements to Foreclosures, Part 2 | Nov 17 2016 Attorney-Client Privilege Update (Dual) Nov 18 | Ethics and Dishonest Clients (Dual) Nov 22 | Choosing the Right Trust for Client Goals Nov 23 | Ethics & Drafting Effective Conflict of Interest Waivers (Dual) Nov 28 | Ethics and Virtual Law Practices (Dual) Nov 29 | Joint Ventures in Real Estate, Part 1 Nov 30 | Joint Ventures in Real Estate, Part 2

NASHVILLE BAR JOURNAL | OCT/NOV 2016

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9/29/2016 10:38:57 AM

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TENNESSEE CHAPTER

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9/29/2016 10:38:58 AM

Editorial |

Noel Bagwell & Kristin Thomas

Best Practices for Conducting Voir Dire in the Information Age When picking a jury, attorneys must consider many details about jurors. Everything is scrutinized—employment, prior experiences, responses to voir dire, appearance, and body language. Our internet-saturated world and the widespread use of social media provides an additional layer of complexity not present a decade ago.

While 76% of U.S. adults use the internet and 65% of U.S. adults use at least one social media platform1, the legal industry is taking a delicate approach to using social media as a juror research tool. Many state courts, including the Tennessee Supreme Court, have weighed in on issues relating use of social media, but as one might suspect, the decisions from each states’ highest courts differ from one another.

This article examines the ABA formal opinion, cases from Tennessee and Kentucky, and the frequently cited New York City Bar Ethics Opinion. Then it provides best practices relating to the use of social media for voir dire.

ABA Standing Committee on Ethics and Professional Responsibility Opinion 466: Formal Lawyer Reviewing Jurors’ Internet Presence The ABA’s ethics opinion is one of the more widely cited

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bar opinions on this topic, stating, in part: Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media.

An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his [i]nternet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).2 (continued on page 36)

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Editorial |

Best Practices for Conducting Voir Dire... (continued from page 35)

Tennessee During one of the better-known cases in our state, State v. William Darelle Smith, the accused appealed his murder conviction alleging he did not receive a fair trial because a juror communicated with the testifying medical examiner through Facebook. The Tennessee Supreme Court affirmed the lower court and made a factual based finding regarding the social media communication: Despite all the evidence that the [the juror and the medical examiner, Dr. Lewis] were casual acquaintances at best, the substance of the message itself raises some doubts as to the impartiality of the juror. It was highly improper for the juror to disregard the instructions which the trial court had given regarding contact with witnesses. In addition, the tone of the message, which is in substance a compliment on Dr. Lewis’s testimony, suggests partiality. Finally, we note that the discussion of the impropriety of the message appears itself improper. While Dr. Lewis testified that she intended to convey, in her response to [the juror], that she found his communication inappropriate and that it could be the basis for a mistrial, her response as written implies that she believes that their acquaintanceship itself could be the basis of a mistrial, and it suggests doubt regarding whether the relationship will remain undisclosed.

[The juror’s] reply demonstrates that he is aware of the risk of mistrial and has concealed the relationship thus far. Ultimately, [the juror] did not reveal either the relationship or the communication, although Dr. 36

Lewis did so at once. The Tennessee Supreme Court, in remanding the case, observed the importance of avoiding contact on social media that could “spawn public doubt about the capacity of the modern jury system to achieve justice.”

Nevertheless, we conclude that the State has sufficiently rebutted the presumption of prejudice through the testimony of [the juror] and Dr. Lewis. As the trial court found, the relationship of the parties was very distant. Facebook “friendships” frequently exist between those who are indifferent to one another. While the tone of the exchange raises the specter of prejudice, [the juror’s] unwarranted exuberance on discovering an old acquaintance does not demonstrate actual partiality, and all testimony presented at the hearing served to show that the juror did not harbor bias. Furthermore,[the juror’s]comment to Dr. Lewis was not based on his acquaintance with her but was rather his evaluation of the testimony presented at trial. A juror is, of course, free to evaluate the testimony of a witness, although communicating such an appraisal to the witness herself during trial is improper.3 The Court ultimately concluded that the accused failed to establish any juror bias violated the right to a fair trial since 1) the proof against the accused was strong and 2) the testimony of the medical examiner went towards uncontested issues.

Kentucky The Commonwealth of Kentucky is our closest neighbor to weigh in on this

issue. In Kentucky v. Sluss, one juror denied having a Facebook page and another failed to disclose their friend status with a family member of the deceased.

The defendant’s appeal was based, in part, on the juror’s failure to disclose.

The court ruled the claim did not provide grounds for a new trial under the circumstances: [A] juror who is a “Facebook friend” with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial.

As with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.

In regard to jurors who admitted to being on Facebook, the trial court attempted to make this inquiry by asking whether they had read anything about the case on the website. That the court actually made this inquiry strongly suggests that a juror’s status on Facebook was not sufficient standing alone to decide whether the juror was disqualified.

This is correct, because it is the closeness of the relationship and the information that a juror knows that frames whether that juror could reasonably be viewed as biased.

The fact that jurors were ”friends” of [victim’s mother], absent other evidence of a close relationship or knowledge, is not sufficient grounds for a new trial.4 (continued on next page)

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Editorial |

Best Practices for Conducting Voir Dire... (continued from page 36)

New York City Bar Ethics Opinion 2012-2: Jury Research and Social Media One of the more controversial opinions comes from the NYC Bar Ethics Committee, which warns lawyers while potential jurors’ digital footprints should be researched and monitored, if a juror merely becomes aware that one of the lawyers is viewing their social media accounts, it could be considered prohibited communication resulting in a possible reprimand for violating local rules: We conclude that if a juror were to (i) receive a “friend” request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification.

do what she cannot). Finally, if a lawyer learns of juror misconduct through a juror’s social media activities, the lawyer must promptly reveal the improper conduct to the court.5 Best Practices: Social Media & Jurors The regulation of communication in the legal industry still lags behind the technological advancements that have been, and continue to be, both benefit and bane to lawyers since the internet became ubiquitous. Even though lawyers are, now more than ever, required to exercise keen discernment regarding what constitutes ethical communication—both in form and in substance— one of the most frustrating facets of the task of exercising such discernment is trying to divine the goals of the various regulators.

The incentives of regulators drive the rules they create, but these incentives are as varied as the backgrounds, political opinions, and ethical postures of the regulators themselves. What’s a

good-intentioned lawyer to do? Many prefer to let their conscience be their guide and presume they will have an opportunity to ask forgiveness should stray across some invisible ethical boundary.

Others prefer to play it safe and forego even the appearance of what might be construed as a potential infraction.

To assist fellow attorneys struggle through the obscure ethical chaparral of the digital frontier still slowly being colonized by regulators, we submit for your consideration the following suggested best practices.

1. Know and understand the local rules. When it comes to jurors and social media, the most important thing to remember is that the local rules governing lawyers’ use of social media substantially vary from jurisdiction to jurisdiction. A lawyer should briefly review the local rules respecting use of social media, especially in connection with voir dire. What a lawyer can and cannot do ultimately is governed by the local rules of the jurisdiction; ignore them at your peril. (continued on page 38)

We further conclude that the same attempts to research the juror might constitute a prohibited communication even if inadvertent or unintended. In addition, the attorney must not use deception—such as pretending to be someone else—to gain access to information about a juror that would otherwise be unavailable. Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions (as it is always unethical pursuant to Rule 8.4 for an attorney to attempt to avoid the Rule by having a non-lawyer

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Editorial |

Best Practices for Conducting Voir Dire... (continued from page 37)

2. Don’t try to circumvent the rules using a proxy. Follow the rules.

Trying to be clever and get around the rules by using a proxy will not work, because, as noted in the NYC Bar Ethics Committee Opinion 2012-2, “it is always unethical … for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot.” Honesty involves adhering to both the letter and the spirit of the law.

3. Restrict your activity to passive observation. Generally, according to the ABA, unless limited by law or court order, a lawyer may review a potential juror’s internet presence, which may include postings by the juror in advance of and during a trial. Passive review, not direct communication with a juror, is permitted. Avoid is any interactivity with the juror, aside from passively browsing their internet presence data.

4. Don’t send access requests to (potential) jurors. According to the ABA, generally a lawyer may not communicate directly or through another with a juror or potential juror. This includes sending access requests to a juror’s social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and is the type of ex parte communication prohibited by ABA Model Rule 3.5(b). Accordingly, lawyers should avoid adding jurors or potential jurors as LinkedIn connections, Facebook “friends”, etc. during the course of voir dire or any other part of an ongoing trial.

5. Be careful about triggering notifications resulting from settings!

Except in New York, and possibly a few other jurisdictions, according to the ABA, the fact that a juror or a potential 38

juror may become aware that a lawyer is reviewing his internet presence through network notifications does not constitute a communication from the lawyer in violation of ABA Model Rule 3.5(b). But, when the Model Rules conflict with local rules, it adds to confusion about what is or is not permitted in a given jurisdiction.

Always rely on the local rules first. While it might be permissible for potential juror to become aware that a lawyer is reviewing his internet presence in Tennessee, a lawyer in New York might be reprimanded under the same or similar circumstances.

6. Report crimes. Generally, according to the ABA, in the course of reviewing a juror’s or potential juror’s internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal. Lawyers have a duty to report suspected or apparent criminal activity to law enforcement and to the court when the person responsible for the activity is a (potential) juror.

The foregoing are all rules derived from one simple, if inelegantly stated, principle: “Lawyers should avoid contact on social media that could ‘spawn public doubt about the capacity of the modern jury system to achieve justice.’”

At least that’s the Tennessee Supreme Court’s guiding principle as stated in State v. Smith. That principle, as stated, seems more concerned with managing appearances than with promoting actual integrity in the legal profession. But as long as following the principle has the effect of promoting actual integrity in the legal profession, that distinction may be practically unimport-

ant.

When it comes to social media and jurors, be forthright, pay close attention to the local rules, and try to avoid doing anything that a reasonable third-party observer might use to accuse you of improperly influencing a potential juror or the outcome of a trial. n Endnotes

Andrew Perrin, Pew Research Center, Social Media Usage: 2005-2015 (Oct. 5, 2015), pewinternet.org/2015/10/08/socialnetworking-usage-2005-2015.

2 ABA, Op. 466, Lawyer Reviewing Jurors’ Internet Presence, at 1 (Apr. 24, 2014), available at AmericanBar.org/content/ dam/aba/administrative/professional_responsibility/formal_ opinion_466_final_04_23_14.authcheckdam.pdf.

1

State v. William Darelle Smith, No. M2014-00059-CCAR3-CD (Crim. Ct. App., at Nashville, Jan. 7, 2015)(internal citations omitted).

3

Ross Brandon Sluss v. Kentucky, No. 2011-SC-000318-MR (Ky. Sept. 20, 2012).

4

NYC Bar Ethics Committee, Op. 2012-2, Jury Research and Social Media (May 30, 2012).

5

Attorney NOEL BAGWELL is President and Chief Legal Counsel of Executive Legal Professionals, an innovative business law firm that provides business legal services and strategic legal counsel to business leadership. A graduate of Cumberland School of Law at Samford University in Birmingham, AL, Noel also serves as the Start-ups & Small Business Aspect of Practice Leader for the National Center for Preventive Law. He enjoys giving back to the community by speaking to veteran’s groups, such as the SBA’s Boots to Business workshop at Ft. Campbell, KY, about business formation legal issues.

KRISTIN THOMAS is the owner of KT Designs, LLC, where she consults with litigation teams nationwide on argument strategy, demonstratives development, jury consulting and presentation technology in a wide range of practice areas.

NASHVILLE BAR JOURNAL | OCT/NOV 2016

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Editorial |

Mike Sandler

Is Your Firm’s Data Safe?

What We Can Learn from the Panama Papers Breach The news is filled with stories of major data breaches. It’s so commonplace now that it doesn’t raise alarm bells, but it should.

Media focus is generally on whose account has been breached and what they’re hiding rather than why the breach occurred.

While scandals may be entertaining, there are valuable lessons we as lawyers can learn from these incidents.

Lesson One: Law firms are not immune to security breaches. All that use to be needed to keep client and employee information safe was a strong door and lock. Unfortunately, those days are gone―or are they? We will address that in a moment.

Lesson Two: It can happen to your firm. In 2015, 80% of the top 100 law firms were breached.1 Small firms and solo practitioners are equally at risk. Unless you are still using a Raven or two cans and a string as your primary methods of communication, fuggettaboutit! Since 2009, major law firms have been warned their computer files are targets for cyber spies and thieves in countries worldwide looking for information about corporate mergers, patent and trade secrets, and litigation plans.2 Most firms aren’t even aware a breach has occurred until the FBI shows up at their door.3 Cyber spies and criminals look for the easiest target to steal from, big and small.

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Sometimes its money and information, other times it’s access.

The latest menace is ransomware. The hacker introduces malicious malware on your system through an email attachment, web link, or downloaded file. The malware then “locks you out” of your computers until you pay a ransom to unlock your data.4 It’s not James Bond, but effective.

The Panama Papers In April 2016, the Panamanian law firm Mossack Fonseca announced that its computers were hacked in 2014. The Firm remained clueless until the stolen data was leaked to the press this year. Mossack Fonseca is a large firm with capable technology, so how could this happen? It must have been a sophisticated attack by the world’s top hackers, right? Wrong! Top hackers may have been involved, but the intrusion was made possible because the software on the Firm’s system was outdated and riddled with security flaws. An eight-year old could have accomplished this hack. One expert stated that the total disregard for data security was “astonishing.”5 It was determined the Firm’s mail server software, Microsoft Outlook Web Access, had not been updated since 2009.6 Further, the WordPress software (continued on page 40)

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Editorial |

Is Your Firm’s Data Safe? (continued from page 39)

the Firm used for its front-facing website was three months out of date, and the software the firm used to run its secured information sharing customer portal, Drupal, had not been updated since August 2013.7 This breach might have been avoided had Mossack Fonseca downloaded the software updates.

Instead, the “farmer left the hen house door open and the fox walked right in” resulting in the largest data breach to journalists in history, some 2.6 terabytes of data and 11.5 million documents.8 The hackers copied and distributed 4,804,618 emails; 33,047,306 database formats or strings of code; 2,154,264 PDFs; 320,166 text documents; and 2,242 other types of information.9 Lesson Three: Attorneys and law firms can do something to mitigate the chances of a breach: First, update your software. It is without a doubt one of the most important tasks you can perform to prevent an intrusion. Also, you may have heard these tips before, but they bear repeating:10 1. Encrypt, Encrypt, Encrypt. All forms of encryption, including file encryption, e-mail encryption and full-disk encryption, are the security features used least often by law firms. Lost and stolen laptops and devices are a top cause of law firm data breaches. The use of whole disk encryption (WDE) on all devices can help mitigate this risk.

WDE encrypts the entire disk, rendering all the files unreadable to an unauthorized user and is a free feature of major operating systems such as Windows 7 Pro and older and Mac OS.11 If your computer or device is encrypted, even if it is lost or stolen, the information will not be accessible.

2. Use Caution in the Cloud. The 40

cloud offers many advantages for law firms. However, cloud technology is not the panacea the providers would like you to believe. When a lawyer stores firm and client information in the cloud that data could be stored anywhere, including a foreign country, where it may be subject to international search and seizure laws. Before selecting a cloud provider ask the right questions. Does the cloud provider employ adequate security to protect the data? Will the data be stored internationally? If so, will it be subject to search and seizure? Lawyers also should know what data goes to the cloud and whether that data is subject to state or federal privacy laws. Have the clients provided their written consent to place information in the cloud? Will the information in the cloud be encrypted?

What happens if the cloud provider goes out of business or the firm decides to change providers? If this happens and the firm does not regularly export all of its data in a format that can easily be imported into another system, then the data may be lost forever. Just imagine trying to recreate the files from reports, copies, and source documents.12 Law firms should use only providers that provide reasonable assurance that the data will be protected.

3. Beware of BYOD (Bring Your Own Device). Allowing employees to use their own devices is risky if appropriate security measures are not taken.

Firms should have specific BYOD policies in place regulating how devices are used and giving the firm ultimate control over the devices. Company data on devices should be encrypted and password protected. Firms should install software that can remotely “wipe” the device if the employee leaves. Law firms

should consider installing remote location-tracking apps on the device if such software is not already installed. When creating a policy, keep in mind that there is no expectation of privacy on corporate owned assets (e.g., phone, tablet, etc.) versus personally owned devices unless the right is created contractually. If your firm is considering instituting or eliminating a BYOD policy, investigations into wrongdoing may be more difficult and expensive when a personally owned device is involved.

4. Vet your Vendors. Many firms outsource e-discovery, legal research, copying, IT, and other non-legal services to third-party vendors. Remember, criminals/hackers strike at the weakest link and third-party vendors are a favored attack point. You should know if your vendor is storing, transporting, or analyzing confidential data. If so, your contract should address the various relevant security issues, including ensuring that information is properly stored and secured to prevent unauthorized access. Does your vendor employ password protection, encryption, and antivirus software? They should. Written confidentiality agreements are also advisable. Finally, law firms should review the contract for indemnification clauses, limitations on liability, and guidance as who will be expected to pay in the event of a breach.

5. Staff Training Is Key. The importance of employee training cannot be overemphasized. Educating staff on data security and how to avoid a data breach can reduce risk. Employees must understand their critical role in protecting data. Instruction on policies and practices, including Internet usage (continued on next page)

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Editorial |

Is Your Firm’s Data Safe? (continued from page 40)

policies and social media policies, is paramount. Malware and viruses can be transmitted to the firm’s network with just a click of a mouse. Also, don’t forget “physical security.” Doors and locks are an important part of data security.

6. Be Wireless Savvy. Wireless technology allows lawyers to work remotely from anywhere. However, without proper precautions, working remotely is a risky practice. Strong wireless protocols should be observed to prevent unauthorized guests from accessing firm data. Second, lawyers must exercise caution when working on laptops, smart phones, and tablets over unsecured networks. Free networks are frequently unsecured. Avoid reviewing or sending any confidential data over an open wireless network. If available, use your firm’s virtual private network (VPN), which will encrypt any data sent or received and make it more difficult to intercept. Another alternative involves purchasing a mobile Wi-Fi hotspot―a small, transportable Wi-Fi router that provides a personal and private Wi-Fi cloud that allows for a secure connection.

7. Consider Using Multi-Factor Authentication. Enforcing a uniform password policy is still important in protecting sensitive data. However, usernames and passwords have outlived their usefulness in a lot of cases.

Consider multi-factor authentication whenever possible. Unlike single layer authentication (e.g., password and username), multi-factor authentication uses independent categories of information known only to the user, such as something you know (knowledge factor), something you have (possession factor), and something you are (inher

NBJ_1011_2016_FINAL_.indd 41

ence factor).13 Even if your password is compromised, access can be denied.

8. If All Else Fails, Be Prepared.

Even firms with the best security protection remain at risk. Be prepared by having a business recovery plan in place.

Should an event occur, the firm can quickly resume normal or near-normal operations. Your plan should include routinely backing up data and maintaining a copy at an off-site location.

9. Consider Cyber Liability Insurance Coverage. Given the financial impact of a data breach, cyber liability insurance coverage can mean the difference between surviving relatively unscathed or not at all. Coverage can help cover the costs of privacy breach notification expenses, litigation, loss of income, regulatory fines and penalties, and other expenses.

10. Develop a Comprehensive Cyber-Security Risk Management Plan. An effective cyber-security risk management program cures a lot of evils, but it requires continuous monitoring, updating, and enforcement. Consider retaining a security expert to assist you in developing and managing your cyber-security program.

Data security represents a real and growing concern for law firms. At the present, no security system is completely hacker proof and most likely never will be. However, to do nothing is to invite disaster. The stakes are huge. A firm’s reputation and brand integrity can be destroyed by a single breach, not to mention the various legal and financial repercussions associated with such an event. As our reliance on technology in the practice of law increases and evolves, so too will the challenges we face. If your firm does not have data se-

curity measures in place, do it now! The Panama Papers breach reminds us that we must remain vigilant. It’s not only good business, it’s the smart thing to do. n Author’s Note: Many thanks to Kristen Thomas of KT Designs, LLC for her help in bringing this information to you.

Endnotes

Susan Hansen, Cyber Attacks Upend Attorney-Client Privilege, Bloomberg Bus.Wk. (Mar. 19, 2015), Bloomberg. com/news/articles/2015-03-19/cyber-attacks-force-law-firmsto-improve-data-security.

1

2

Id.

Scott Augenbaum, Special Agent, Cyber Crime Supervisor, FBI Memphis Division, Presentation on Cyber-security at Lipscomb University (2012).

3

Chris Strong, What Is Ransomware And Should You Be Worried About It, Digital Trends (June 6, 2015), DigitalTrends. com/computing/what-is-ransomware-and-should-you-beworried-about-it.

4

5 Matt Burgess & James Temperton, The Security Flaws At The Heart Of The Panama Papers, Wired (Apr. 6, 2016),.

Wired.co.uk/article/panama-papers-mossack-fonseca-websitesecurity-problems.

6

Id.

7

Id.

Mossack Fonseca Breach–WordPress Revolution Slider Plugin Possible Cause (updated Apr. 7, 2016), WordFence.com/blog/2016/04/mossack-fonseca-breachvulnerable-slider-revolution.

8

Panama Papers: Email Hackable via WordPress, Docs Hackable via Drupal (Apr. 6, 2016),WordFence.com/ blog/2016/04/panama-papers-wordpress-email-connection.

9

Safe and Secure: Cyber Security Practices for Law Firms, CNA.com (Mar. 2015), CNA.com/web/wcm/connect/61aec549ac28-457b-8626-aa791c782459/Safe_Secure_Cyber_ Security_Practices.pdf?MOD=AJPERES. 10

Sysmantec, Sysmantec Endpoint Encryption, symantec. com/products/information-protection/encryption/endpointencryption.

11

Stephen Withers, What Happens When Your Cloud Provider… Goes Bust?, Business It (Jan. 22, 2016), BIt.com. au/News/413967,what-happens-when-your-cloud-providergoes-bust.aspx.

12

SearchSecurity.techtarget.com/definition/two-factorauthentication 13

MIKE SANDLER is a solo practitioner. His firm, Mike Sandler Law, PLC, specializes in cyber and information security issues, automotive and franchise law, civil litigation and family law. He is a Rule 31 civil and family mediator. Mike is a graduate of the Nashville School of Law and holds a Masters in Information Security from Lipscomb University. You can reach Mike at 615-881-4499 or mike@mikesandlerlaw.com.

OCT/NOV 2016 | NASHVILLE BAR JOURNAL

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Editorial |

Will You Lose Your Job to Automation? (continued from page 13)

ed by Donald Fagen (of Steely Dan) in “What a Beautiful World”: A just machine to make big decisions / Programmed by fellows with compassion and vision / We’ll be clean when their work is done / We’ll be eternally free, yes, and eternally young.30 That is just not going to happen. In fact, perhaps technology will make attorneys even better at doing what humans do best—relating to other humans. With the robotic, tedious, and boring functions of the legal profession being taken over by computers, attorneys can concentrate on honing the skills that make them better able to negotiate, persuade, and mediate.

Having machines to do everything for us is not our idea of Nirvana. As pointed out in The Atlantic, “the prospect of a no-work future seems hopeless.”31 We would be lost without work, and we would be lost without human interaction.

It is our belief that this innate desire for human social interaction is an underlying cause for the recent move by major internet-based retailers such as Amazon to begin opening traditional brick and mortar locations.32 While online shopping is quick, easy, and convenient, for many it is a poor substitute for a trip to the mall with friends, a movie at the theater, and a cup of coffee in a crowded Starbucks. Until your computer can cry with you over a lost love, share your joy over a job promotion, or even help you sort through the pros and cons of a critical decision, humanity will remain distinct and superior to machines. And to the extent that consumers still seek a touch of humanity in their search for a legal advocate, the job of being an attor42

ney will be a uniquely human one.

The future of the practice of law will be, in our opinion, for those attorneys who can embrace and accept technology. The successful lawyers of the future (and those who have clients and work) will be attorneys who can use technology to their advantage. They will use technology to free them from tedious review tasks etc., and free them up to think, to meet with clients, to be empathetic—to be human. Smart and successful lawyers will learn what technology can do for them, and they will use it to make them better lawyers and to augment their work and make it better. n

Dismissed, CBS News (July 21, 2016), CBSNews.com/news/ donotpay-bot-lawyer-helps-dismiss-parking-tickets-joshuabrowder.

17

Id.

18

Id.

See Steve Ankenbrandt, No, Robots Won’t Replace Lawyers, Make It Like You Like It (Mar. 25, 2016), milyli.com/ automation-lawyers-redaction-process; John Markoff, The End of Lawyers? Not So Fast., N.Y. Times (Jan. 4, 2016), Bits.

Blogs.NYTimes.com/2016/01/04/the-end-of-work-not-so-fast.

19

Michael Chui, James Manyika, & Mehdi Miremadi, Four Fundamentals of Workplace Automation, McKinsey Q. (Nov. 2015), McKinsey.com/business-functions/businesstechnology/our-insights/four-fundamentals-of-workplaceautomation.

21

Dana Remus & Frank Levy, Can Robots Be Lawyers?: Computers, Lawyers, and the Practice of Law, (Dec. 30, 2015), available at Papers.SSRN.com/sol3/papers. cfm?abstract_id=2701092.

22

Id. at 68 (noting that the tasks capable of automation “represent a relatively modest percentage of lawyers’ billable hours”).

23

24

Id. at 13-33 (summarizing six different lawyering tasks).

25

Id. at 46.

Geoff Colvin, Humans are Underrated, Fortune (July 23, 2015), Fortune.com/2015/07/23/humans-are-underrated.

26

Endnotes

Gregory R. Woirol, The Technological Unemployment and Structural Unemployment Debate 77-90 (1996).

1

Technological Unemployment, Wikipedia (last modified Sept. 19, 2016), En.Wikipedia.org/wiki/Technological_ unemployment.

2

Derek Thompson, A World Without Work, The Atlantic (July/ Aug. 2015), TheAtlantic.com/magazine/archive/2015/07/worldwithout-work/395294.

3

Geoff Colvin, Humans are Underrated, Fortune (July 23, 2015), Fortune.com/2015/07/23/humans-are-underrated.

4

Thomas H. Davenport, Let’s Automate All the Lawyers?, Wall St. J. (Mar. 25, 2015), Blogs.WSJ.com/cio/2015/03/25/ lets-automate-all-the-lawyers.

5

6

Id.

7

Id.

8

See Ross, RossIntelligence.com.

Michael Addady, Meet Ross, the World’s First Robot Lawyer, Fortune (May 12, 2016), Fortune.com/2016/05/12/robotlawyer.

9

About FantasySCOTUS, FantasySCOTUS, fantasyscotus. lexpredict.com/about.

27

Id.

28

Id.

29

Id.

Donald Fagen, I.G.Y. (What a Beautiful World) (Warner 1982).

30

Derek Thompson, A World Without Work, The Atlantic (July/ Aug. 2015), TheAtlantic.com/magazine/archive/2015/07/worldwithout-work/395294.

31

Greg Bensinger, Amazon Plans Hundred of Brick-andMortar Bookstores, Mall CEO says, Wall St. J. (Feb. 2, 2016), WSJ.com/articles/amazon-plans-hundreds-of-brick-andmortar-bookstores-mall-ceo-says-1454449475.

32

BILL RAMSEY is an attorney at Neal & Harwell, PLC. His practice focuses primarily on complex civil and criminal litigation.

10

Daniel Martin Katz, Michael James Bommarito II, & Josh Blackman, Predicting the Behavior of the Supreme Court of the United States: A General Approach, at 2 (rev. July 27, 2014) available at SSRN.com/abstract=2463244.

11

Dylan Matthews, This Computer Program Can Predict 7 out of 10 Supreme Court Decisions, Vox (Aug. 4, 2014), Vox. com/2014/8/4/5967147/how-a-computer-model-got-to-predict70-of-supreme-court-decisions#story.

12

Miklos Bolza, Robots Replacing Lawyers a “Near Certainty”, Australian Law. (Feb. 22, 2016), AustralianLawyer.com.au/ news/robots-replacing-lawyers-a-near-certainty-212164.aspx.

13

University of Auckland: Robots as Judge, Jury, and Lawyer, New Zealand Herald (Nov. 12, 2015), NZHerald. co.nz/university-of-auckland/news/article.cfm?c_ id=1503679&objectid=11543582.

14

15

Davenport, supra note 5.

16

This Robot Lawyer Could Help You Get Your Parking Ticket

PHILLIP HAMPTON is the CEO at LOGICFORCE, where he specializes in strategic vision casting.

ERIK LYBECK is an associate at Neal & Harwell.

He assists clients with commercial and criminal litigation.

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Editorial |

Timothy Ishii

Protection of the Attorney-Client Privilege in the Contemporary Communications Age Contemporary attorneys conduct much of their communication with their clients via some sort of electronic means. Most significantly, attorneys use electronic means to communicate the intimate facts and strategies of their client’s case, to include attaching relevant work product documents for their clients to review electronically.

These electronic communication practices may expose the attorney-client privilege to waiver. The reason for this possible waiver is of both political and business origin.

The Legal Precedent and Statutory Background

In 1979, the U.S. Supreme Court held that a warrantless installation of a “pen register” on a public telephone to register telephone numbers dialed from that phone was not a prohibited Fourth Amendment search because:

All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, . . .”

Smith v. Maryland, 442 U.S. 735, 742 (1979). The commonsensical legal reasoning of the U.S. Supreme Court would come to have vast

consequences.

Governmental Electronic Surveillance

In the aftermath of Watergate and allegations of misuse of governmental agencies, Senator Frank Church sponsored, and the Congress passed, the Foreign Intelligence Surveillance Act (FISA).

50 U.S.C.A. §§ 1801 to 1885, specifies the limits of governmental surveillance outside and inside the U.S. and also provides criminal and civil financial penalties for violation of the Act. The FISA Act also created a court unique to American jurisprudence, one that was entirely ex parte. The FISA court has one function: to approve or deny federal law-enforcement electronic surveillance warrants.

Additionally, in 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA), which mandated all equipment manufacturers and users modify their equipment and software to facilitate wiretapping and surveillance of first telephone conversations and then later broadband and VoIP communications. In the Matter of Communications Assistance for Law Enforcement Act and Broadband Access and Services, ET Docket # 04-295, RM-10865, May 3, 2006.

After September 11, 2001, these surveillance statutes, combined with the passage of the “Patriot act” (115 Stat. 272 in October 2001, and the President’s wartime authority under Art. II of the Constitution, were interpreted along with the precedent set by Smith v. Maryland, (continued on page 44)

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Editorial |

Protection of the Attorney-Client Privilege... (continued from page 43)

to allow warrantless collection by the NSA of metadata of people outside and inside the United States. (Frontline: United States of Secrets (Part 1): The Program (PBS television broadcast May 13, 2014), at 0:39:44).

Even more troubling, Title 18 United States Code § 2709 allows the FBI to merely submit to communications providers a “National Security Letter” (NSL) mandating that the communication provider disclose names, addresses, length of service, and electronic communication transactional records, including existing transactions/activity logs and all email header information, but not to include message content and/ or subject fields. In 2014, the FBI issued 56,000 NSLs to various companies. All nine of the major email providers have cooperated with the FBI and the federal government.

(Barton Gellman, US, British intelligence mining data from nine US Internet companies in broad secret program, Washington Post, June 7, 2013.) Most disturbing, Title 18 U.S.C. § 2709 originally included a “gag order provision” forbidding a company to even tell their attorneys of the existence of the NSL. It was not until 2013 that the “gag order provision” was challenged and found unconstitutional. In re National Sec. Letter, 930 F.Supp.2d 1064, 1071 (N.D.Cal. 2013).

The Internet Service Business Aspect

Beyond government scrutiny, it is common knowledge that major Internet service providers (ISPs)―e.g., Google, Yahoo, Verizon, and Apple―scan emails looking for keywords to provide marketing information, which is now a major source of their revenue.

(Frontline: United States of Secrets (Part 2): Privacy Lost (PBS television broadcast May 13, 2014), at 0:40:53). Routine email scanning by ISPs coupled with their frequent compliance with warrantless requests by law enforcement agencies, means one must assume all emails are public. The transparency of e-communications has led to what more than one author has called “the death of privacy.”

Application of the Statutes

As attorneys, we are familiar with the privileges extended us relating to the protection of communications between attorneys and their clients. It is important to note, however, that the “attorney-client privilege” can be waived by a client who communicates with his attorney in the presence of others or communicates privileged information to third parties. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App., 2002). As with every legal doctrine there is an excep-

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tion to waiver of the privilege, denominated as “common interest privilege” which allows for communication among associated attorneys regarding a common defense of co-defendants. Id. The person asserting the common interest privilege has the burden of establishing all the requisite elements: 1) the privilege information was disclosed due to litigation, 2) the disclosure was made in the interests of a common interest in th litigation, 3) the disclosure was made in a manner not inconsistent with maintaining its confidentiality against adverse parties, 4) reporting disclosed information is not otherwise waived attorney-client privilege for the information in question. Boyd at 214.

Using email to communicate with an attorney’s client is problematical because it may open those communications to discovery by virtue of the fact that those communications are public; therefore, there may be no “expectation of privacy” sufficient enough to avoid waiver of the attorney-client privilege. Boyd, 88 S.W.3d at 214.

While these issues may seem relevant for a large, multistate law firm involved exclusively in complex litigation, the increasing transparency of our communications is quickly becoming a consideration for all members of the bar.

Solutions The quickest and most obvious solution is to encrypt one’s email communications. A more extreme remedy might be to obtain one’s email from outside the U.S.; thus, presumably out of the reach of American law enforcement subpoenas, but clearly within the jurisdiction of the NSA.

Unfortunately, the most failsafe solution for not breaching attorney-client privilege is to mail or courier hard copies of, at least, the most essential documents. n With more than 20 years of practice experience, TIMOTHY T. ISHII serves as a consulting appellate and trial attorney. He also is a member of the NBJ editorial committee.

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9/29/2016 10:39:05 AM

Affinity Program NEW! Exclusive member savings on local products and services!

The Affinity Program is a partnership between the NBA that fosters a mutually beneficial relationship between the NBA, its members, and local businesses. In order to take advantage of these new member benefits, log in to NashvilleBar.org/AffinityProgram to show the business you are an NBA member. Check out our new Affinity Partners below!

For a full list of our Affinity Partners and to see discount information, visit NashvilleBar.org/Affinity Program.

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Membership Benifits A FEW OF THE MANY REASONS TO BELONG TO THE NBA

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 multistate firms to solo practices; they are judges, in-house counsel, law students, paralegals, educators, and everything in between.

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.

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.

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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.

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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.

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Participate 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.

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Don’t just hang out with familiar faces.

Use social gatherings, NBA CLEs, committee work, and Young Lawyer Division events and community projects to build your network of contacts throughout Nashville and surrounding counties.

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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.

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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.

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Attend a Bar event or activity—such as the annual Golf Tournament, Free Member Picnic, or one of our many Happy Hour gatherings.

And More...

Use the NBA Center 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.

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.

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Thank you for supporting your local bar association!

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 on NashvilleBar. org/100%Club, in the Nashville Bar Journal, and in our annual Attorney Directory. To become part of NBA’s 100% Club, contact Vicki.Shoulders@nashvillebar.org and support your local bar association today!

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Premier Members The NBA Premier Membership is a special category that recognizes our 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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Ashley N. Gillard Melanie Gober Grand Courtney Bumpers Grande Melissa Grimes Nikki N. Hashemian Courtney H. Hess Sye T. Hickey Britni N. Holland James W. Hollis Houston W. Howell

Carletta Hylick Wayne Irvin Bartholomew J. Kempf Bob Lynch Michelle Marshall Miles Martindale LaChina K. McKinney Dennis P. McNamee Michael McNulty Jessica L. Morgan

Michael R. O’Neill Rachelle Rountree Lexie Smith Matthew Smith Alexis Soler Holly M. Strawn James C. Summers Avery T. VanPelt David H. Veile Ginna Winfree

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2016 Member Picnic Photos | More at NashvilleBar.org/PhotoGallery!

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Hearsay | Announcements, People on the Move, Firm News HONOR S & AWARDS George Anderson, co-founder of Nashville-based insurance agency Anderson Benson, has been named Legal Aid Society of Middle Tennessee and the Cumberlands’s 2016 Community Campaign Chair. Anderson’s goal is to raise $827,000 from non-legal donors across Middle Tennessee through the Campaign for Equal Justice. Anderson also is a member of The Cultural Landscape Foundation Stewardship Committee and serves on the Frist Center for the Visual Arts Development Council, Metropolitan Nashville Parks and Recreation Board of Commissioners, and Nashville Convention & Visitors Corp. Corporate Council.

Jonthan Cole has been elected president of the National Conference of Bar Presidents (NCBP).

He is the first Nashville lawyer to be elected to this position. The NCBP’s goal is to provide high-quality programming and a forum for current bar leaders from across the country and abroad to exchange best practices. Cole is a shareholder at Baker Donelson and a member of the firm’s Financial Services Litigation Group.

Jay Hardcastle, a partner at Bradley, has been appointed to a one-year term on the Nashville Health Care Council’s (NHCC) board of directors. NHCC

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is an association of healthcare leaders working to further establish Nashville’s position as the nation’s health care industry capital. Hardcastle leads Bradley’s Healthcare Practice Group where he advises hospitals, surgery centers, physicians, long-term care providers, imaging centers, cancer centers, and other participants in the healthcare industry.

Claire Cowart Haltom, shareholder at Baker Donelson, has been named board vice chairman of the Leadership Health Care (LHC) 2016-2017 board of directors. LHC is a Nashville Health Care Council initiative that develops the talent of Nashville’s next generation of healthcare industry leaders by creating educational, networking, and mentoring opportunities for the group’s nearly 900 members. LHC has more than 900 members representing 330 companies.

Samuel D. Lipshie, partner at Bradley’s Nashville office leading the Media and Entertainment practice, was selected for inclusion in the 2016 edition of Who’s Who Legal: Sports & Entertainment, published this October. Lipshie also will also be named in Who’s Who Legal 2017–Compendium Edition, which publishes in April 2017. Lipshie practices in the areas of entertainment, music, intellectual property, sports, commercial litigation, and dispute resolution. He also has extensive experience in connection with the acquisition and disposition of media, broadcast, and other intellectual property.

James M. McCarten has been named the 2017 “Lawyer of the Year” in the area of Litigation and Controversy – Tax for metropolitan Atlanta by Best Lawyers in America. McCarten also has been named to the “Best Lawyers” 2017 listings in four areas of his practice: Litigation and Controversy – Tax, Non-Profit/ Charities Law, Tax Law, and Trust and Estates. McCarten works in Burr & Forman’s Corporate and Tax Practice Group where he focuses his practice on tax planning, including mergers and acquisitions, structuring and forming startup businesses, business succession planning, family business planning and estates, trusts and wealth preservation.

Stephanie Taylor was appointed to the Chancellor’s Alumni Advisory Council of the University of Nebraska for a threeyear term. Taylor earned her J.D. and B.A. in Music from the University of Nebraska-Lincoln and spent nearly two decades performing as a professional violinist and fiddle player. As an attorney with Stites & Harbison, Taylor provides legal services to clients involved in the creation, production, and management of creative works.

Mark Westlake has been named as Best Lawyers 2017 “Lawyer of the Year” for Nashville Litigation and Controversy-Tax. Westlake is a partner at GSRM Law and works with entrepreneurs, individuals, and businesses to minimize their state and federal tax liabilities and advises clients to effectively organize

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and establish entities where tax burdens are a principal concern.

O N THE MOVE Paul Ney joins the Attorney General’s Office as Chief Deputy. Ney will coordinate and supervise the substantive legal work of all five sections of the Attorney General’s Office. He has been a shareholder at Patterson Intellectual Property Law, PC, in Nashville. Ney is a registered patent attorney, and has served as Director of the Nashville Davidson County Mayor’s Office of Economic and Community Development, Deputy General Counsel for the U.S. Department of Defense, Acting General Counsel and Principal Deputy General Counsel for the Department of the Navy, and a partner in the law firm of Trauger, Ney & Tuke. Ney is a graduate of Cornell University and a graduate of Vanderbilt University with both a J.D. and M.B.A. degree. Ney was president of the Nashville Bar Association in 1998.

Trisha Culp joined Bradley’s Nashville office as a senior attorney on the Healthcare Team. Culp focuses her practice on assisting clients in the healthcare industry in transactional, operational, and regulatory matters. She advises clients on mergers and acquisitions, practice formation, joint venture arrangements, and state and federal regulatory matters.

Michael O’Neill is Of Counsel with boutique litigation firm SIMS|FUNK, PLC. O’Neill, will represent the firm’s clients in a broad range of complex business disputes. O’Neill graduated with honors from Rutgers University and magna cum laude from Pepperdine University

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School of Law. Judge Joyce Grimes Safley has joined the Law Office of Melinda Jacobs, a Knoxville firm that opened a second office in Franklin Cool Springs. The boutique law firm exclusively represents school districts in special education, general education, and related matters in state and federal court, administrative forums, and as advisory attorneys.

Judge Safley’s resignation from her appointment was effective August 2, 2016, and she joined the firm in September.

FI R M N E WS Almon & McPike, PLLC is pleased to announce that Mid-South Super Lawyers selected attorney Noah McPike as a 2017 “Rising Star” and attorney Orville Almon as a 2017 “Mid-South Super Lawyer”. Almon also was selected for inclusion in the 2017 edition of The Best Lawyers in America, recognized by his peers as Nashville’s Entertainment Law–Music and Media Law “Lawyer of the Year.”

Baker Donelson is pleased to announce that 261 of its attorneys were selected by their peers for inclusion in the 2017 edition of The Best Lawyers in America, including 51 Nashville attorneys, 10 of which were named “Lawyers of the Year.” The 2017 Nashville “Lawyers of the Year” are: Martha L. Boyd (Litigation – ERISA); Joel R. Buckberg (Franchise Law); Scott D. Carey (Personal Injury Litigation–Defendants); Christopher M. Caputo (Memphis Construction Law); Kenneth P. “Pete” Ezell, (Commercial Finance Law); John A. Gupton (Land Use and Zoning Law); Clarence Risin (Transportation Law), John H. Rowland, III (Litigation–Bankruptcy); Matthew J. Sweeney, III (Arbi-

tration); and Steve F. Wood, Jr. (Business Organizations–including LLCs and Partnerships). The complete list is available online.

Bradley is pleased to announce that 231 of the firm’s attorneys have been listed in the 2017 edition of The Best Lawyers in America with six of these attorneys being selected as Nashville’s “Lawyers of the Year”: Stephen T. Braun (Corporate Law); William F. Goodman, III (Product Liability Litigation–Defendants); Lela M. Hollabaugh (Energy Law); Amy S. Leopard (Health Care Law); Patricia Head Moskal (Appellate Practice); and Nathan H. Ridley (Government Relations Practice). Additionally, 56 attorneys at Bradley’s Nashville office were named “Best Lawyers” in their area of practice. The complete list is available on the Firm’s website.

Dickinson Wright is pleased to announce that seven of its firm’s Nashville attorneys were named The Best Lawyers in America 2017: Austen A. Adams (Litigation–Intellectual Property); Jeffrey M. Beemer (Litigation–Labor and Employment); Derek C. Crownover (Entertainment Law–Music); M. Reid Estes, Jr. (Litigation–Labor and Employment); N. Courtney Hollins (Real Estate Law); Darlene T. Marsh (Environmental Law, Litigation–Real Estate, Real Estate Law); and Darrell L. West (Commercial Litigation).

FordHarrison, LLP is pleased to announce that six attorneys from the firm’s Tennessee offices were selected by their peers for inclusion in the 2017 Best Lawyers in America, including Nashville attorneys J. Gregory Grisham and Mark E. Stamelos. FordHarrison attorneys were recognized in the following specialties: Employment Law–Management, Labor Law–Management, and Litigation–Labor and Employment.

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DIAL-A-LAWYER Dial-A-Lawyer is held the first Tuesday of each month and the public is invited to call in with basic legal questions. If you would like to volunteer and help the NBA support this program, please contact our LRIS Coordinator at Wendy.Cozby@ nashvillebar.org. Pro Bono credit applies and a complimentary dinner will be provided.

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Thank you to our August and September volunteers!

HELEN CORNELL GINA CROWLEY SHEA FORGETY TOM LAWLESS JOE RUSNAK

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