THE ANNUAL ETHICS ROADSHOW:
Just Sign Here . . . Conflict Waivers and Engagement Letters Under
Tennessee's New Rules

Dec. 8 - Memphis
Dec. 9 - Nashville
Dec. 16 - Knoxville
Dec. 17 - Chattanooga

With the advent of the new Tennessee Rules of Professional Conduct,
Tennessee lawyers now are required to follow their own advice when it
comes to having clients waive conflicts of interest. But who really
understands how to do this in a way that effectively communicates
what's important to the client, protects the lawyer from exposure down
the road, and complies with the ethics rule itself in the here and
now?

This three-hour seminar will be taught by either Lucian T. Pera
or Brian S. Faughnan, each of Armstrong Allen in Memphis. Lucian is
chair of the TBA Standing Committee on Ethics and Professional
Responsibility, and Brian practices law with Lucian in the area of
ethics and professional responsibility and is a frequent CLE speaker.

Today's Opinions: November 15, 2004
Volume 10 — Number 220
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
03 New Opinion(s) from the Tennessee Court of Appeals
02 New Opinion(s) from the Tennessee Court of Criminal Appeals
02 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi .

Here's how you can obtain full-text version. • Click the URL at end of each Opinion paragraph below. This option will allow you to download the original document. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.
Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

SUPREME COURT OF TENNESSEE
SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_111504.wpd

THOMAS W. GILLAND v. JANET FAYE GILLAND

Court:TCA

Attorneys:                          

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for
the appellant, Janet Faye Gilland.

Andrew M. Cate, Nashville, Tennessee, for the appellee, Thomas W.
Gilland.

Judge: CLEMENT

First Paragraph:

The parents in this child support proceeding have three children -
twins conceived during their marriage and one child conceived after
their divorce.  Because of pre-2003 jurisdictional restraints,
proceedings to set child support were simultaneously pending in both
the Circuit Court for Davidson County and the Juvenile Court for
Davidson County.  The juvenile court awarded the mother a $23,273.50
judgment for retroactive child support for the youngest child and
based the father's prospective child support obligation on his ability
to earn $40,000 per year.  The circuit court, without considering the
juvenile court's order, calculated the father's child support for the
twins based on $25,761, the imputed annual income in the Child Support
Guidelines, and then increased the amount because of extraordinary
medical expenses of one of the twins.  The mother has appealed the
circuit court's decision to base the father's child support for their
two older children on $25,761 per year rather than on $40,000 per
year.  The father has appealed both judgments.  He asserts that the
juvenile court erred by basing his child support for the parties'
youngest child on a $40,000 annual income and by failing to grant him
requested credits against his retroactive child support. He also
complains that the circuit court erred by increasing his child support
because of the medical expenses of one of the twins and the combined
effect of the two judgments which require him to pay 53% of his net
income in child support, rather than 41% as provided in the Child
Support Guidelines.  We have determined that the juvenile court's
judgment for retroactive child support should be vacated because the
father is entitled to credit for his voluntary child support payments.
 We have also determined that the father's child support obligation
for all three children should be based on $40,000 per year and that
the combined amount of child support obligation should be 41% of his
net income, with an upward adjustment for the extraordinary medical
expenses of one of the twins.  Finally, based on the 2003 statutes
affecting the jurisdiction of the juvenile and circuit courts, we have
determined that the proceeding in the juvenile court should be
transferred to the circuit court and that all future matters regarding
these children should be adjudicated in the circuit court.

http://www.tba.org/tba_files/TCA/gillandthomasw.wpd

PAUL MOSS v. TENNESSEE BOARD OF PROBATION AND PAROLE

Court:TCA

Attorneys:                          

Paul C. Moss, Jr., pro se, Nashville, TN

Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Pamela S. Lorch, Senior Counsel, Nashville, TN, for
Appellee

Judge: HIGHERS

First Paragraph:

This action arises out of Appellant's parole hearing proceedings. 
Subsequent to his original parole hearing, Appellant filed a petition
for writ of certiorari with the Davidson County Chancery Court.  Upon
Appellant's motion for summary judgment and Appellee's motion to
dismiss, the trial court granted Appellee's motion to dismiss and
denied Appellant's motion for summary judgment.  For the following
reasons, we affirm.

http://www.tba.org/tba_files/TCA/mosspaul.wpd

KENNETH STINNETT, ET AL v. DUDLEY D. JOHNSTON, ET AL.

Court:TCA

Attorneys:                          

Lynne Denell Swafford, Pikeville, Tennessee, for the Appellants,
Dudley D. Johnston and Robert E. Johnston.

J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellee, Kenneth
Stinnett and wife, Rebecca S. Stinnett.

Judge: LEE

First Paragraph:

This appeal involves an acreage deficiency in the conveyance of a
subdivision lot. Both parties to the transaction believed that the lot
contained 2.4 acres.  However, a survey after the sale determined that
the lot contained only .93 acres. The parties did not learn of the
acreage discrepancy until after the buyer had constructed a house
foundation which extended approximately 15 feet across the boundary
line onto a neighbor's property. The trial court determined that there
had been a mutual mistake as to the quantity of land conveyed and
ordered a  rescission of the transaction. The trial court awarded the
buyer damages in the amount of $17,275.60 representing a refund of the
purchase price, reimbursement for grading, labor, construction
materials, and closing costs for the house construction loan. The
seller appealed.  We affirm the trial court's decision to rescind  the
transaction based upon mutual mistake, but modify the award of
damages.

http://www.tba.org/tba_files/TCA/stinnekenneth.wpd

STATE OF TENNESSEE v. JEREMY TUCKER DAVIS, ALIAS JERRY TUCKER DAVIS

Court:TCCA

Attorneys:                          

William M. Speek, Chattanooga, Tennessee, for the appellant, Jeremy
Tucker Davis, alias Jerry Tucker Davis.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner,
Assistant Attorney General; William H. Cox, III, District Attorney
General; and Barry A. Steelman, Assistant District Attorney General,
for the appellee, State of Tennessee.

Judge: TIPTON

First Paragraph:

A Hamilton County Criminal Court jury convicted the defendant of the
attempted first degree murder of a police officer, and the defendant
pled guilty to twenty-nine charges, including multiple counts of car
burglary, felony theft, and misdemeanor theft.  The trial court
sentenced him as a Range I, standard offender to twenty-five years for
the attempted murder conviction and as a Range II, multiple offender
to an effective sentence of six years for the remaining convictions. 
The trial court ordered that the twenty-five-year and six-year
sentences be served consecutively to each other and consecutively to a
six-year revoked probation sentence.  The defendant appeals, claiming
that the trial court erred (1) by refusing to dismiss a juror for
cause; (2) by refusing to compel the state to provide the defense with
the police department's written use-of-force policy; (3) by refusing
to allow the defense to cross-examine police officers about the
use-of-force policy; (4) by refusing to allow an expert to testify
about the victim's excessive use of force against the defendant; (5)
by refusing to instruct the jury on deadly force; and (6) by ordering
consecutive sentencing.  We affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/davisjeremytucker.wpd

STATE OF TENNESSEE v. MICHAEL LEE McCORMICK

Court:TCCA

Attorneys:                          

Mike Richardson and Mary Ann Green, Chattanooga, Tennessee, for the
appellant, Michael Lee McCormick.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Joseph F. Whalen, Associate Solicitor General; Bill
Cox, District Attorney General; and J. Michael Taylor, District
Attorney General Pro-Tem, for the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Michael Lee McCormick, was convicted in 1987 of the
first degree murder of Donna Jean Nichols.  The Defendant was
sentenced to death for the murder.  The Defendant's conviction and
sentence were affirmed on direct appeal.  See State v. McCormick, 778
S.W.2d 48 (Tenn. 1989).  Subsequently, the Defendant filed for
post-conviction relief on the grounds of ineffective assistance of
counsel and a new trial was awarded.  See Michael Lee McCormick v.
State, No. 03C01-9802- CR-00052, 1999 WL 394935 (Tenn. Crim. App.,
Knoxville, June 17, 1999).  In conjunction with the new trial, defense
counsel filed a motion to suppress statements the Defendant made to
police officers prior to his 1987 arrest.  The trial court granted the
Defendant's motion.  The State now appeals by permission.  See Tenn.
R. App. P. 9.  We affirm in part and reverse in part.

http://www.tba.org/tba_files/TCCA/mccormickmichaell.wpd

Nonlawyer Corporate Representation Before Department of State
Contested Case Hearings
 
Date: November 10, 2004

Opinion Number: 04-160

http://www.tba.org/tba_files/AG/2004/op160.pdf

Tenn. Code Ann. S 66-5-106

Date: November 10, 2004

Opinion Number: 04-161

http://www.tba.org/tba_files/AG/2004/op161.pdf

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