News

BPR Opinion Looks at Disclosure of Client Wills

A formal ethics opinion issued by the Board of Professional Responsibility on June 13 looks at whether a lawyer who represented a testator can refuse to disclose the will prior to the client’s death based on attorney-client privilege or confidentiality. The opinion was requested by an attorney who says it is becoming more common for courts to order wills and other testamentary documents drafted for competent clients be made available to guardians or conservators handling the affairs of the individual after he or she is no longer competent.

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Memphis Lawyer Dies

Memphis lawyer William Clary Lunsford died Sunday (June 8). Born in 1939, Lunsford received his law degree from Vanderbilt University and worked at Pete Marrick in Little Rock, Arkansas, before practicing Tax and Estate Law in Memphis at the old Montidonico Firm. Later he was a partner at Laughlin Halle Law Firm. Funeral services were held Monday. In lieu of flowers, memorials may be sent to Grace-St. Luke's Church in Memphis, Grace Episcopal Church, P.O. Box 1791 in Anniston, Alabama, or to the charity of one's choice.

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Divorce, End-of-Life Care and Cybercriminals

In this issue, Helen Rogers and George Spanos outline strategies for the timing of filing for divorce in Tennessee and Eddy R. Smith discusses the painful topic of pregnancy and end-of-life care. If you weren't scared of people stealing your money electronically before, Kathryn Reed Edge's column on cybercriminals will send you running to change all your passwords and tighten your firm security.

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A Time to Be Born and a Time to Die: Pregnancy and End-of-Life Care

“To every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die …”

— Ecclesiastes 3:1-2

Two recent heart-wrenching news stories highlight the struggle between a woman’s constitutional right to refuse medical treatment and the state’s legitimate interest in protecting the life of her baby. The stories also serve as reminders of the importance of advance directives.

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Next 2 Weeks Critical for Legislators

The next two weeks could be crucial for the General Assembly, the Tennessean suggests, as big issues such as meth abuse, school vouchers, free tuition for community college students and in-state tuition for undocumented immigrants still face decisions in the House and Senate before they shut down. The TBA's package of bills continues to progress towards passage. The five-year statute of repose for legal malpractice passed the House Monday and is now headed to the Governor, as is the TBA's family law bill. However, the TBA has concerns about bills regarding patent litigation, employment discrimination, and confidentiality for victims of sexual offenses and has communicated these concerns to the legislature. These measures continue to move forward without changes. A bill on the issue of bad faith patent infringement (SB1967/HB2117) is ineffective, since any litigation would likely not survive a preemption challenge and existing case law effectively addresses these issues. Another bill (SB2126/HB1954) would gut protections for whistleblowers in employment discrimination cases, and only protects against retaliation if a report was in writing or email. Under the guise of keeping crime victim information confidential, SB2254/HB2361 would make it more difficult for defense attorneys to discuss identifying information about the victim with their client. TBAImpact has more.

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Nashville Probate Candidate Withdraws from Race

Just days after filing papers to run for a judicial post, Nashville attorney Rachel Odom has decided to withdraw her challenge to longtime incumbent Probate Judge David “Randy” Kennedy. Odom’s withdrawal virtually ensures that Kennedy, first named to the court in 2004, will serve another term, the Tennessean reports. Odom announced her decision in an email, saying, “after much consideration, I have decided not to run for judge at this time.” She filed an official letter of withdrawal late Monday.

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Alternative Spring Break Volunteers Needed

This year’s Alternative Spring Break for law school students in Tennessee is shaping up to be the biggest yet with more than 75 students participating. In Memphis, lawyers are needed to supervise students March 11-13 as they prepare basic wills and advanced directives. Notaries also are needed. Morning and afternoon shifts are available. Contact Linda Warren Seely at Memphis Area Legal Services to volunteer.

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If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.

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TBJ Covers Jobs, Money Laundering, Estate Planning for Same-Sex Couples

About 25 percent of the students in The Law Launch Project have jobs lined up after graduation -- the Tennessee Bar Journal checks in on them and how the job searches of the other three-quarters of the group are going. Also in this issue, columnists Kathryn Reed Edge covers money laundering, Eddy R. Smith discusses estate planning for same-sex couples, and Bill Haltom has discovered a new toy -- a coloring book for lawyers.

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Memphis Groups Host Workshop for Seniors

The Shelby County Trustee’s office is partnering with Memphis Area Legal Services and the Shelby County Probate Court Clerk to host a workshop series for seniors titled “Home Sweet Home.” The sessions will focus on the tax benefits available to seniors, veterans and the disabled; paying property taxes and the importance of properly transferring real estate to heirs. Following today's program at Orange Mound Senior Center, there will be a session Thursday from 10 a.m. to noon at Frayser/Raleigh Senior Center, and Friday from 10 a.m. to noon at the JK Lewis Senior Center.

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Read Top 10 Changes to Tennessee's Uniform Trust Code

Tennessee's trust law underwent sweeping changes earlier this year, with the explicit goal of making Tennessee a leading contender in the national race for trust business. Tennessee practitioners can learn the top 10 changes by reading the feature article in the new December Journal by the lawyers of Knoxville's Holbrook Peterson Smith PLLC. Note that the printed version of this article contains minor formatting issues, but the online version is correct. Read the text version here or download a pdf. To kick off this holiday month, Tennessee Bar Association President Cindy Wyrick imagines in her column, "It's a Wonderful Association, Thanks to You!" what the state's legal landscape would look like if the TBA had never been "born."

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Nashville Lawyer Charged with Theft, Fraud in Conservatorship Cases

Nashville attorney John E. Clemmons was jailed on charges of aggravated perjury, theft and TennCare fraud after turning himself in Friday. The charges stem from his handling of three conservatorships, The Tennessean reports. Court records and interviews show that more than $1 million in assets is unaccounted for and much of it has been tracked back to Clemmons, who also faces a number of civil suits from the families of his former wards. In another case from Rutherford County, Clemmons already has pleaded guilty to stealing more than $60,000 from a retired teacher he was charged with protecting. Sentencing in that case is set for Nov. 18.

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KBA Holds 17th Annual LawTalk Next Week

The Knoxville Bar Association (KBA) will hold its annual LawTalk Program next week. This year, the free educational program will focus on issues of concern to the elderly, including having a will and an estate plan, and understanding legal protections that are available for seniors and their caregivers. Sessions will be held Nov. 15 at the O'Connor Senior Center and Nov. 16 at Fellowship Church. Free parking is available at both locations and materials will be provided. At each location, local lawyers will present information and answer questions from the audience. Pre-registration is not required but appreciated. Register by calling (865) 522-6522 or visiting the KBA online. Download a flyer about the sessions or get answers to frequently asked questions here.

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New Oversight of Conservatorships Proposed

A task force assigned to examine the growing number of conservatorships in Davidson County has concluded there aren’t enough resources to provide adequate oversight and has proposed the creation of a publicly funded Office of the Public Guardian, which would replace the existing, vacant, single public guardian. In a 55-page report made public Friday, the panel cited an increasing caseload of conservatorships in the local court, with the number jumping from 636 in fiscal year 2009 to 1,782 in 2012. The task force was appointed by Probate Judge David “Randy” Kennedy in the wake of the abrupt resignation of the public guardian Jeanan Mills Stuart after a series of Tennessean reports on the fees Stuart charged for a variety of tasks.

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Expedited Probate Docket Called a ‘Success’

In August, the Davidson County Trial Court established an expedited probate docket to handle uncontested matters such as name change petitions, small estate administrative proceedings, petitions to administer intestate estates, and petitions to probate wills, codicils and other testamentary instruments. To date, more than 100 cases have been tried by Special Probate Master Jennifer Surber and Special Master John Manson, who alternately preside over and conduct hearings on these cases. The experience thus far has been a success according to Court Administrator Tim Townsend. “We have received very positive feedback from everyone. As a result, this program will continue for the foreseeable future,” Townsend said yesterday. Chattanoogan.com has the court's news release.

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Expedited Probate Docket Announced

The Davidson County Trial Courts have approved the establishment of an expedited probate docket. Judge Randy Kennedy and Presiding Judge Joe P. Binkley, Jr. jointly announced the signing of an order that authorizes Special Probate Masters to preside over expedited dockets effective Aug. 16. “The adoption of an expedited probate docket, as distinguished from regular probate dockets, is just another step by the Davidson County Trial Courts to ensure the effective and efficient administration of the Courts.” Judge Binkley said. Download the press release for more information.

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Lawyer’s Suspension Overturned by Judge

Tennessee Senior Judge Paul A. Summers last week dismissed a decision by the Board of Professional Responsibility to impose a 60-day suspension on Memphis lawyer Sadler Bailey, The Commercial Appeal reports. The suspension had been imposed for "disrespect and sarcasm" before Circuit Court Judge Karen Williams during a medical malpractice trial in 2008. Calling the suspension “arbitrary or capricious and characterized by abuse of discretion,” Summers instead ordered Bailey to be publicly reprimanded. Summers based his decision in part on the fact that the comments in question were not witnessed by a jury or members of the public thus not harming the judicial system.

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Know Your Bank Fraud History; Punch Up POA Forms

Nashville lawyer Katie Edge writes in the recent Tennessee Bar Journal about Tennessee's famous bank robbers -- with the spotlight on the Butcher brothers and other fraudsters. In her column, Knoxville lawyer Monica Franklin says to avoid the "plain Jane" durable financial power of attorney and gives tips to punch up the forms you use for DPOAs.

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Reception Planned for Judge Gomes

The Memphis Bar Association’s Probate & Estate Planning Section will hold a reception April 22 from 4 to 6 p.m. in honor of new Shelby County Probate Court Judge Kathy Gomes. The event will take place at the office of Burch Porter & Johnson, located at 130 N. Court Ave., Memphis 38103. Please RSVP to Mary Lynes at mlynes@memphisbar.org or (901) 271-0660.

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Paper Profiles Probate Judge Gomes

An article in today’s Memphis Daily News looks at the career of Shelby County’s new probate judge Kathleen Gomes, who was appointed April 1 to replace retiring Probate Court Judge Robert Benham. Gomes says the recent appointment was the fulfillment of a lifelong dream. Though she worked for a number of elected officials and explored a career in entertainment law, Gomes finally settled into a probate practice at Peppel, Gomes & MacIntosh. She says probate law goes back to the root of why she became a lawyer. “In Probate Court you really do get to help people. It’s one of the few areas of the law … that you can sit back and finish the day and know that you helped someone.” Gomes says she will run next year when the position, an eight-year term, comes up again for a vote.

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Taxpayer Relief Act Affects Estate Planning

In his Tennessee Bar Journal column this month, Knoxville lawyer Eddy R. Smith explains how estate planning is affected by the American Taxpayer Relief Act of 2012. Read his column and review the related chart showing the combined federal estate tax and Tennessee inheritance tax exposure for estates through 2016.

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Retirement Reception Set for Judge Benham

A reception honoring the service of Shelby County Probate Court Judge Robert S. Benham is planned for April 8 from 4-6 p.m. on the fourth floor of the University of Memphis School of Law. Benham is retiring this week after 16 years on the bench and 50 years of service to the legal profession. The event is being hosted by the Memphis estate planning and probate bar. Please RSVP to Steve McDaniel, Marjorie Baker or Rob Malin. Donations to offset the costs of the reception are welcome, with any excess funds going toward Judge Benham’s official portrait or to Memphis Area Legal Services.

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Judge Replaces Public Guardian as Woman’s Conservator

Probate Judge David Randy Kennedy this week replaced a Davidson County public guardian who had been charging her full hourly fee for legal work regardless of the service she was performing, the Tennessean reports. Court records show that while Jeanan Mills Stuart was serving as conservator of Marlee Spalding she billed $986 to accompany her to a Christmas concert at the Schermerhorn and $1,282 for a shopping trip, the newspaper reported.  Spalding’s sister Myra S. Whitaker will take over as conservator, and Judge Kennedy has said he will not assign any additional cases to Stuart pending a review of the fees she has charged.

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Senate Committee OKs Conservatorship Rewrite

The state Senate Judiciary Committee unanimously approved changes to state law governing conservatorships on Tuesday after hearing a report from the Tennessee Bar Association. The Tennessean reports that TBA legislative counsel Steve Cobb told the panel that a statewide series of hearings showed the ways emergency cases are being handled varies widely and that some cases are disturbing. The Tennessean says the bill will include new provisions under which people can be placed under a conservator’s control without notice and clarify the role of people appointed to serve as a “guardian ad litem” or fact-finder in the cases.

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Justices Say Court Erred in Allowing Evidence

The Tennessee Supreme Court sent a Hamblen County case back to Chancery Court for retrial after ruling that the trial court allowed evidence to be presented that was irrelevant and prejudicial, and saying that allowing the jury to hear it probably affected the verdict. The trial court had invalidated the marriage of Raymond Smallman and Linda Caraway, which had been conducted shortly before Smallman's death, and refused to allow Caraway to have Smallman’s will admitted to probate as his widow. The Chattanoogan has this story. Read Justice Sharon Lee's opinion and Justice William Koch's concurring and dissenting opinion.

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