NBJ Online | Column of the Month
By Callie Jennings
The transition from law school to practice can be immensely challenging for new attorneys. After spending years learning to spot issues, perform legal research, and draft memoranda, law students might know how to think like a lawyer, but are often unprepared when it comes to the practical skills required to work like a lawyer.
In recognition of this steep (and often stressful) learning curve, the Nashville Bar Association offered a new course this year called
Friday FUNdamentals. Spearheaded by the graduates of the
Nashville Bar Foundation’s Leadership Forum, the 13-week program was designed to provide practical training and networking opportunities to new practitioners. The program ran from January through March and was FREE for first- and second-year lawyers with an NBA membership.
Participants met every Friday for 90-minute CLE-style training sessions led by experienced attorneys practicing in Middle Tennessee. These experts provided advice on a wide variety of topics including drafting pleadings, discovery strategies, preparing for depositions, and managing relationships with clients. Other sessions focused on common legal problems in areas such as corporate law, family law, basic estate planning, and appellate procedure. Participants also gained “hands-on” experience from field trips including a tour of the Davidson County Historic Courthouse and the Davidson County Criminal Court.
The NBA’s Friday FUNdamentals Program not only introduced me to the skills and tactics necessary to be a strong civil litigator, but put many of my fears to rest regarding not knowing how to complete a particular task or where to look for vital information. Each speaker provided examples of various types of pleadings and discovery that were beneficial to all of the participants because many of us had not engaged in this type of legal writing after working as lawyers for less than six months. I love being able to not only reference the work of more experienced attorneys, but also to contact them for advice and feedback as well.
Apart from technical skill development, Friday FUNdamentals helped new attorneys learn about the legal community in Nashville and develop connections with local attorneys and judges. In March, the program held a cocktail hour session called,
“Meet the Judges”, where participants had a rare opportunity to meet many local judges, discuss their practice, and ask advice. In the regular sessions, presenting attorneys encouraged candid questions from participants and often provided helpful resources, such as references, guides, or outlines of materials covered in the session
Kaya Porter, an associate at Lewis Thomason, said she particularly valued that aspect:
In addition to learning new information with respect to the practice of law, each of the presenters was more than willing to mentor the participants in the event that they needed help in the future. The Friday FUNdamentals course provided a support system of local attorneys who care about the success and professional well-being of new lawyers in the Nashville bar. This was something that I did not expect, but it was a welcome and appreciated surprise!
Finally, FridayFrid FUNdamentals allowed participants to connect with each other as new colleagues in the Nashville area.
John Baxter, an associate at Nelson Mullins, explained that the program served as an important reminder that we, as new attorneys, are not struggling alone:
It provided a comfortable forum for new attorneys to meet once a week and exchange early-practice war stories and generally bond over our shared, but unique, experiences. It also served as a sort of pressure-release valve for me, allowing me to take a break from the daily grind and have lunch with friends who could empathize.
Overall, Friday FUNdamentals helped many new attorneys as they begin to develop the skills and professional relationships necessary to practice law. Along with my fellow participants, I highly encourage new lawyers to take advantage of this program in the coming years.
The Trial of Judge Jim Everett in the Tennessee Court of the Judiciary
By James R. Tomkins
After completing the bar exam, I went to work for Judge James R. “Jim” Everett, Jr. as his first law clerk on September 1, 1984.1 Judge Everett, Jr. presided over the Probate Court for Davidson County, and at the time, had a very diverse jurisdiction. In addition to probate matters, he heard divorce cases, criminal matters such as DUIs and vehicular homicide cases, and even some odd Chancery matters. I had never worked in the legal system before and had no idea what to expect. I wound up going through an experience that very few lawyers ever see up close.
On November 9, 1984, two months after I started with Judge Everett, he issued an order in a custody case where it was alleged that three children had been abducted, one of which was in danger of illness or death if not administered certain medication. Thus, the Davidson County Sheriff’s Department had authority to enter and search any premises where they had reasonable cause to believe the children were held and to bring before the court any person who knew anything regarding the whereabouts of the children.
That evening around 5:30pm, Deputies Young and Gregory of the Davidson County Sheriff’s Office went to the home of Ms. Elree Conard, an aunt of the children’s mother and sister of Hank Hillin, the local agent in charge of the Nashville FBI office (and later Davidson County Sheriff). Suspecting she knew the children’s whereabouts, the deputies carried Ms. Conard to Judge Everett’s condominium—where he was having a dinner party—and placed her in the living room. Judge Everett, counsel for the children’s father, and the deputies all questioned Ms. Conard about the children’s whereabouts and even threatened her with incarceration. Ultimately, they allowed her to leave and she returned to her home around 9:00pm.
As a result of the issuance and execution of the clearly illegal search and seizure order, a media firestorm erupted. Ms. Conard sued Judge Everett and others in the federal court and a complaint was filed against Judge Everett in the Tennessee Court of the Judiciary. The media coverage lasted for months, and with each article, the complete story was agonizingly re-told. Questions were also raised about certain friends of Judge Everett who were alleged to be professional gamblers.
Ultimately, the civil case settled without a trial. The complaint lodged in the Court of the Judiciary, however, resulted in a trial before a “jury” of eleven judges and one non-judge on January 21, 1986. This trial occurred on the sixth floor of the Historic Metro Courthouse in the courtroom then occupied by Criminal Court Judge A.A. Birch, Jr. (now occupied by Fourth Circuit Judge Philip E. Smith). The jury consisted of Ben Cantrell, A.A. Birch, Jr., Gwen Fleming, Ronald Lee Gilman, Phil B. Harris, William C. Keaton, Buford Wells, William C. Wilson, and Dr. C.C. Bond. Ben Cantrell, who was a sitting judge on the Middle Section of the Tennessee Court of Appeals, presided over the panel.2
The case was prosecuted by retired Court of Criminal Appeals Judge William Russell from Shelbyville (father of former Criminal Court Judge Ann Lacy Johns and Circuit Judge Lee Russell). Judge Russell previously had served an assistant district attorney, and he participated in drafting the Tennessee Rules of Criminal Procedure.
Judge Everett was defended by attorneys Hal Hardin and William “Bill” M. Leach, Jr. Among his many accomplishments, Hal Hardin had served as a member of the Peace Corps, a Davidson County Circuit Court judge, and United States Attorney for the Middle District of Tennessee.3 As a young lawyer and assistant district attorney, Hardin was involved in the Haynie Gourley murder trial, which was known as the trial of the century—both Nashville newspapers, the morning The Tennessean and the afternoon Banner, ran daily transcripts of the trial testimony.4
Bill Leech was an equally impressive and accomplished lawyer in Tennessee. He practiced law in Columbia, Tennessee, for many years, and had served as district attorney for the 11th Judicial District for Tennessee, a delegate to multiple State Constitutional Conventions, and Attorney General for the State of Tennessee from 1978 to 1984. In 1979, while State Attorney General, he argued a case before the United States Supreme Court, had a son (William “Will” Leech, III) born, and participated in the ouster of then Governor Ray Blanton—all in one day.5
Observing the process in the Court of the Judiciary was an unparalleled opportunity as a young lawyer to see something that may never happen again, and more importantly, to see the skill, hard work, and professionalism of the lawyers involved. Judge Russell, Hal Hardin, and Bill Leech were not only excellent lawyers, they were even greater gentlemen. I was amazed at how courteous, amicable, and reasonable they acted with one another during the trial preparation phase and—at the same time—how aggressively and zealously they represented their respective clients during trial. It was a real education for a young lawyer to see how a real lawyer should conduct himself or herself. I have tried to remember and act accordingly in the 30 years since.
During Judge Everett’s trial before the Court of the Judiciary, evidence was introduced by affidavits; no live testimony was offered. However, after both sides had closed their proof, the Court asked to hear from Judge Everett, and he became the only live witness in the proceeding.
Ultimately, the panel found Judge Everett should be reprimanded, and he was ordered to cease and desist from any similar conduct in the future. The members of the panel, however, did not agree on this outcome. For example, Judge Wells was of the opinion Judge Everett should have been removed from office. Judge Birch felt that Judge Everett should be suspended for 30 days with pay. Dr. Bond felt that Judge Everett should not have been reprimanded and the only sanction should have been the cease and desist order. Judge Sanders dissented because he felt that the proceeding relied too much on statements taken before trial and a proper decision could not be made without hearing and seeing the witnesses live.
To my knowledge, no other such trials have been conducted by the Court of the Judiciary during its term of existence. It was quite impressive to see all of the judges sitting together in the jury box, and I am sure I will never again see such a sight.
Judge Everett continued on the bench for another nine years until October 1995, when he died from a self-inflicted gunshot wound.
ENDNOTES
1 I worked as a law clerk most of the time but when needed was pressed into service as a court officer. For example, on the days Judge Everett heard DUI cases, I typically had to sit with the jail defendants in the old jury assembly room ostensibly to guard them. That job mostly involved not letting their family members come in the and not letting them run off—although looking back on it I do not think most of them had enough ambition to do that.
2 Interestingly, it was the same courtroom where the famous Haynie Gourley murder trial was conducted in July 1968.
3 In June 2017, the National Association of Former United States Attorney Association (NAFUSA) unanimously elected Hal Hardin as president-elect of the NAFSU.
4 Bill Powell was charged with killing Haynie Gourley, Powell’s business partner at Capitol Chevrolet. Powell claimed that while he and Gourley were driving along and talking business, an unidentified assailant suddenly jumped into the back seat of the car, and in an effort to rob them, shot and killed Gourley and then shot and wounded Powell. The jury trial pitted special prosecutor John Hooker, Sr. against defense attorneys Jack Norman, Sr. and Cecil Branstetter—all titans of the Nashville Bar—and Powell was ultimately acquitted.
5 For the well-told inside story of the ouster of former Governor Blanton, see Coup: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal, written by Keel Hunt.
By Jonathan Wardle
On September 29, 2007, four men tried to rob Taylor Bradford, a 21-year-old University of Memphis football player and student. Bradford refused to cooperate with the robbers, so they shot and killed him. Nearly 10 years later, beneath appropriately shrouded skies, Marva Bradford spoke to a gathering of officials and dignitaries in memory of her son, the strength required to face the last 10 years without him, and the resilience required of all crime victims.
Mrs. Bradford presented her remarks as the guest speaker at the April 3, 2017 National Crime Victims’ Rights Week annual Tree-Planting Ceremony at Bicentennial Mall State Park. News Anchor Cherish Lombard of Channel 2 News acted as Mistress of Ceremonies for the tree-planting, which is hosted by the Tennessee Board of Parole, the Tennessee Bureau of Investigation, the Tennessee Department of Corrections, and the Tennessee Rehabilitative Initiative in Correction (TRICOR). Attendees and participants honored Valerie Wynn as the 2017 Nashville Voice for Victims, and Kate Ritchie as the 2017 Tennessee Voice for Victims. Ms. Wynn is the executive director of the Mary Parrish Center for Victims of Domestic & Sexual violence; Ms. Ritchie is the MADD State Program Director. And Aline Skelley, who lost two family members to homicide, read a poem in honor of the occasion.
Other participants and attendees included State Representative Harold M. Love, Jr., Chief Deputy Attorney General Paul Ney, TBI Director Mark Gwyn, Tennessee Department of Correction Commissioner Tony Parker, Tennessee Board of Parole Chairman Richard Montgomery, TRICOR CEO David Hart, District Attorney General Glenn Funk, an Honor Guard from the Tennessee Highway Patrol, and Metro Nashville Police Department Bagpiper Nathan Dungan.
To further honor crime victims, a Homicide Board was presented at the Nashville Public Library throughout the entire Victims’ Rights Week. The Metro Police Department and the Davidson County District Attorney’s Office prepared the Homicide Board as a way to remember and honor homicide victims and their surviving family and friends. This year, the Homicide Board contained over 10 large panels displaying photographs of hundreds of Nashville homicide victims since 1975; additional panels displayed information and statistics relating to violent crime and resources available to crime victims. Photos from this event can be found at NashvilleBar.org/PhotoGallery.
Disclaimer: This article represents the opinions of the author and not necessarily those of the Office of the Tennessee Attorney General and Reporter.
By Kelly L. Frey
New guidance from the Department of Health and Human Services determines Cloud Service Providers (CSPs) that create, receive, maintain, or transmit electronic protected health information (ePHI) [on behalf of covered entities] … are Business Associates under HIPAA. That conclusion has far-reaching effects and will require immediate remediation by many covered entities (and business associates acting on their behalf, since the new guidance includes subcontractors of business associates). The most important step any covered entity or business associate involved in cloud computing activities need to take is to immediately supplement their cloud agreements with formal Business Associate Agreements (BAAs) and assure that their cloud provider is in compliance with HIPAA privacy, security, and breach notification rules. The guidance provides:
When a covered entity engages the services of a CSP to create, receive, maintain, or transmit ePHI (such as to process and/or store ePHI), on its behalf, the CSP is a business associate under HIPAA. Further, when a business associate subcontracts with a CSP to create, receive, maintain, or transmit ePHI on its behalf, the CSP subcontractor itself is a business associate. This is true even if the CSP processes or stores only encrypted ePHI and lacks an encryption key for the data. Lacking an encryption key does not exempt a CSP from business associate status and obligations under the HIPAA Rules. As a result, the covered entity (or business associate) and the CSP must enter into a HIPAA-compliant business associate agreement (BAA), and the CSP is both contractually liable for meeting the terms of the BAA and directly liable for compliance with the applicable requirements of the HIPAA Rules.
The guidance specifically addresses the chain of contracts and relationships that may exist across a number of contractors and subcontractors involved in ePHI information flow in the cloud environment: “[I]f a HIPAA Business Associate subcontracts with a CSP to create, receive, maintain, or transmit ePHI on the BA's behalf, then the CSP subcontractor is itself a BA.”
Previously CSPs have sought exemption from HIPAA BA requirements as being merely a “conduit” of the electronic data flow—contending that a CSP is a “transmission-only” service. The guidance disagrees with this analysis and concludes that CSPs are BAs even if the CSP does not actually view the ePHI (i.e., the iPHI is encrypted and the CSP does not have the key). As a result, a CSP must ensure that it only uses and discloses the encrypted information as permitted by its BAA and HIPAA's Privacy Rule. Further, the HIPAA Privacy Rule also imposes standards regarding BAAs, which HHS's guidance addresses in the cloud computing context. (For example, a BA must make ePHI available as necessary for any covered entity to meet its obligations to provide individuals with their rights to access, amend, and receive an accounting of certain disclosures of ePHI and must satisfy HIPAA's breach notification requirements.)
Covered Entities and Business Associates using cloud services should immediately audit their agreements to confirm that appropriate Service Level Agreements (SLAs) are in place that are compliant with the guidance and assure that they have Business Agreements in place with each CSP (and confirm that their agreements push the BAA requirements to the CSP subcontractors). CSPs should immediately audit their service standards to assure that they are HIPAA compliant and that they have control processes in place to address the remediation and notice provisions with respect to ePHI. For additional information from the Department of Health and Human Services, click here.
by Noel Bagwell
My column is new to the NBJ, so, please indulge me in a brief orientation to the purpose of this column, in general, and this article, in particular. Herein, I aim to discuss timely issues from a preventive legal perspective. The goal is to help my readers (and their clients) foresee legal risks, and guide them toward legal solutions that will address those risks before they become expensive legal problems.
From time to time, I consult with individuals who are interested in entering or otherwise operating in the market for legally growing or selling cannabis. At the state level, several states recently have decriminalized recreational marijuana use, among these California and Massachusetts. Senator Jeff Sessions, President-Elect Donald J. Trump’s choice for Attorney General, is known to be an ardent opponent of making marijuana legal.
Everyone would do well to remember that marijuana is still illegal, nationwide, under federal law. Activists opposed to the continued prohibition of illegal drugs, including marijuana, are concerned that Sessions’s appointment may lead to more federal law enforcement raids of marijuana operations in states where marijuana has been decriminalized at the state level.
During his campaign, President-elect Trump promised to respect state laws on the issue of marijuana. During his confirmation hearing on January 10, however, Sen. Sessions affirmed his understanding of the role of the Attorney General in the executive branch of the federal government—specifically stating that it was his job to carry out the laws created and passed by Congress. This leaves Sen. Sessions ensconced firmly between a rock and a hard place, between doing what he knows is his duty, under the law, and doing what is politically popular, not to mention what may please the President at whose pleasure he would serve as Attorney General.
When advising prospective clients who have approached me with an interest in operating in the market for legally growing or selling cannabis, I have advised extreme caution, citing the federal illegality of such endeavors. Patiently and with a gentle spirit, I remind such entrepreneurs that the very foundations of their enterprise are still quite illegal, and could expose them not only to great pecuniary losses and civil legal penalties, but to criminal penalties as well.
Unlike Senator Sessions, the Obama administration’s Attorneys General have exhibited a shockingly deficient understanding of its role in the federal government, preferring to facilitate administrative and executive rule over the nation, rather than simply, fairly enforcing the laws passed by Congress and interpreted by the Supreme Court. Let me say this as charitably as I can. Under the Obama regime, laws with which the president and those who serve at his pleasure disagree, at best, have been unevenly enforced. This has led to great criticism and confusion of the Obama administration’s approach to the issue of the decriminalization of marijuana.
Tom Dickinson’s 2012 article in Rolling Stone, Obama’s War on Pot, echoed activists’ claims that “There's no question that Obama's the worst president on medical marijuana,” according to Rob Kampia, executive director of the Marijuana Policy Project, who added, “He's gone from first to worst.” Hopeful cannabis industry entrepreneurs would do well to remember that, in 2008, when Obama was running for President, he said, “I'm not going to be using Justice Department resources to try to circumvent state laws on this issue.” Sound familiar?
When starting a business—or growing one—a savvy businessperson will take precautions to ensure their business activities are legal at every level of government: local, state, and federal. To engage in what some might believe to be a legal “gray area” between state and federal law is to court disaster.
