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TBA Law Blog          

Stay up to date with legal news in Tennessee by following the TBA Law Blog, featuring stories produced by the Tennessee Bar Association or collected from news sources.

The federal Department of Health and Human Services today issued a new rule that will prohibit long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. Nursing homes and patients can still enter into arbitration if they choose, but contracts may not be written to automatically compel both parties into arbitration. The rule is part of a major revamp of consumer protections at long-term care facilities, Consumerist reports. The rule will go into effect Nov. 28 and have no effect on the “enforceability of existing pre-dispute arbitration agreements” according to the Centers for Medicare & Medicaid Services.

The Legal Aid Society of Middle Tennessee and the Cumberlands and the Nashville Coalition Against Domestic Violence will hold the annual “Meet Us at the Bridge” event Saturday at 1 p.m. in Nashville to kick-off Domestic Violence Awareness Month. The event, held on the John Seigenthaler Pedestrian Bridge, honors those who have lost their lives to domestic violence in the last year. Awards also will be presented to those who have done outstanding work in the fight to end domestic violence. The Waller law firm will be recognized for its work with the Civil-Legal Advocate Program (CLAP), a partnership between Legal Aid and the Metro Office of Family Safety that provides free legal representation to domestic violence victims.

Sumner County lawyer Jon David Rogers was censured by the Tennessee Supreme Court today. In exchange for the censure, Rogers agreed to engage a practice monitor for 12 months and pay restitution to his former client. The court took the action after finding the Rogers failed to respond to discovery, resulting in his client being held in contempt of court and being ordered to pay the attorney fees of opposing counsel. The court also found that he failed to promptly return his client’s file after he was terminated by the client. Read the BPR notice.

Photo credit: Office of Governor Bill Haslam

Tennessee Department of Mental Health and Substance Abuse Services Commissioner Doug Varney will retire Oct. 21, Gov. Bill Haslam announced today. Varney has served as commissioner since 2011. Also today, Haslam announced the appointments of 176 Tennesseans to 75 boards and commissions.

The Women's Fund of Greater Chattanooga is hosting the Fourth Annual Voices Luncheon Wednesday from 11:30 a.m. to 1 p.m. at Stratton Hall to mark the beginning of Domestic Violence Awareness Month. Cindy Dyer, a former domestic and sexual violence prosecutor internationally known for her work on gender-based violence, will give the keynote address. Dyer served as director of the U.S. Department of Justice’s Office on Violence Against Women under President George W. Bush. Purchase tickets online or contact Katie Jackson at 423-752-4820. Chattanoogan.com has more.

Lawrence McKinney’s legal team is getting help from State Rep. Mark Pody, R-Lebanon, who has offered to meet with Gov. Bill Haslam about McKinney’s application of exoneration, the Tennessean reports. Pody also said he will consider asking Haslam to hold off on a decision about McKinney while he drafts legislation that addresses the exoneration process. Pody says he felt Tuesday’s Parole Board hearing was “looking to retry the case” rather than considering the exoneration request. McKinney’s 1978 rape and burglary conviction was overturned and his record was judicially expunged, but he needs an executive exoneration to be able to seek compensation for his wrongful imprisonment.

Roy L. Austin Jr., deputy assistant to President Obama and director of the White House Office of Urban Affairs, Justice and Opportunity, was in Memphis yesterday to discuss community policing, body cameras and more during the 2016 Law School for Journalists, the Commercial Appeal reports. Austin expressed support for body cameras but raised questions about when video should be made public and where it should be stored. He urged Memphis residents to reach out to police and city leaders to start a dialog about race, called on police to examine implicit bias and challenged reporters to put crime stories in context to avoid erroneous perceptions.

Wendell Moore and Jeremy Nagoshiner are leaving their positions as policy analysts with Baker Donelson to join Tasha Alexander in forming the new consulting and lobbying firm MNA Government Relations, the Nashville Business Journal reports. Moore previously founded and ran the Capitol Group. Nagoshiner also was a member of the Capitol Group and had previously served as a legislative liaison for the governor’s office. Alexander will fold her consulting group into the new firm. She previously was vice president and deputy general counsel for the Tennessee Bankers Association. Baker Donelson’s legislative analyst M. Adam Jaynes also will join the new firm.

The ABA is urging the Senate to pass the Family First Prevention Services Act (S. 3065) by the end of the month. The bill, which passed unanimously in the House of Representatives this summer, reforms the federal child welfare financing structure and extends the Court Improvement Program (CIP), which provides resources for child welfare courts in all 50 states. Since its creation more than 20 years ago, the CIP has supported courts’ ability to play an essential role in ensuring the safety and permanency for abused and neglected children, the ABA says.

Applications are now being accepted for the Tennessee Bar Association’s Leadership Law (TBALL) Class of 2017. Please e-mail your application to Kate Prince or submit your application online by the end of day on Oct. 7. Going into its 14th year, Leadership Law is designed to equip Tennessee lawyers with the vision, knowledge and skills necessary to serve as leaders in their profession and local communities. Over the course of six months, class members learn about leadership in the legal profession, issues in the courts, policymaking in state government and the importance of community service.

The Tennessee Supreme Court’s Indigent Representation Task Force will meet at 10:30 a.m. tomorrow in Room LP12 of Legislative Plaza in Nashville. The panel will hear presentations from Vince Dean, Hamilton County criminal court clerk and president of the Tennessee Clerks of Court Conference; Jerry N. Estes, executive director of the Tennessee District Attorneys General Conference; Charme Allen, Knox County district attorney general; Davidson County Criminal Court Judge Mark Fishburn; and Justyna Garbaczewska Scalpone with the Tennessee Office of the Post-Conviction Defender. Get details about the meeting.

Celebrate Pro Bono Month 2016 kicks off this weekend with more than 50 events planned across the state during the month of October. Tennessee lawyers help thousands of clients throughout the year by providing free legal advice, but this assistance is especially celebrated and emphasized during the month of October as part of a nationwide celebration. Now in its eighth year, the Tennessee initiative brings together bar associations, law schools, law firms, legal services providers and individual lawyers to offer free services to those unable to afford a lawyer, and to celebrate the good works of Tennessee lawyers. This year's celebration is expected to involve more than 300 volunteers -- including lawyers, law students, paralegals and language interpreters. A summary of events is posted online and will be updated throughout the month.

The ABA Retirement Funds Program, a TBA member benefit, is hosting a live educational webinar entitled “What is happening in Washington, D.C., can impact your retirement plan” on Oct. 13 at noon Central time. Registration is free and a copy of the presentation can be emailed to you for future reference. Register online now.

The law license of Knoxville lawyer John Alfred McReynolds Jr. was transferred to disability inactive status today. He may not practice law while on inactive status but may petition the Tennessee Supreme Court for reinstatement by showing by clear and convincing evidence that the disability has been removed and he is fit to resume the practice of law. Read the BPR notice.

Tennessee House Majority Leader Gerald McCormick, R-Chattanooga, says running for Chattanooga mayor was not part of his calculation when he decided not to seek reappointment to the leadership post. And though he is running unopposed for his House seat, he says he has been surprised by the number of people who have suggested he consider challenging the sitting Democratic mayor. His initial response to questions from the Times Free Press was no, but then he said, “I don’t want to close out the door completely.”

The attorney and student chapters of the Federalist Society in Memphis will host a debate on the relevance of the Electoral College next week. The event will take place Oct. 4 from 11:30 a.m. to 1 p.m. at the University of Memphis School of Law. The debate will feature Memphis lawyer John L. Ryder with Harris Shelton and former Attorney General Robert E. Cooper Jr., now with Bass, Berry & Sims in Nashville. Ryder is general counsel to the Republican National Committee and litigation counsel to the Shelby County Election Commission. Cooper served as counsel to former Democratic Governor Phil Bredesen. Both teach campaign finance and elections at Vanderbilt Law School. RSVP to Melanie Busch.

The Davidson County Chancery Court is implementing electronic case filing and is soliciting input from members of the public and attorneys concerning local rules. The proposed e-filing rules are posted on the Davidson County Clerk and Master website. Comments may be submitted electronically (note “e-filing rules” in the subject line) or mailed to the Davidson County Clerk and Master, 1 Public Square, Ste. 308, Nashville, TN 37201. The deadline for comments is Oct. 31.

Washington and Sullivan counties are each owed roughly $40 million in fees, fines, restitution and judgments for the last three fiscal years, News Channel 11 reports. Despite these unpaid obligations, the local courts says they collect enough money to operate and work very closely with the district attorney general’s office to collect funds that are owed.

Photo credit: Tennessee Administrative Office of the Courts

The Washington County Mental Health Court will soon mark 10 years of service and 57 graduates, WCYB reports. General Sessions Judge James Nidiffer, who oversees the court, said, “We’ve had some success, great success I think, in helping these individuals not be criminalized just because of their mental illness …” He noted that the court has saved dozens of people from going to jail, and that he still fields calls from other judges in the state interested in starting their own mental health court.

The Friday sentencing of Brandon Vandenburg, a former Vanderbilt University football player found guilty in the rape of an unconscious woman more than three years ago, has been delayed until Nov. 4. The Nashville District Attorney’s Office requested the delay after Vandenburg’s legal team filed a large number of letters in support of their client, the Tennessean reports. Vandenburg is facing 15 to 25 years in prison.

Photo credit: Tennessee General Assembly

State Rep. Billy Spivey, R-Lewisburg, is calling for an investigation into allegations that House Clerk Joe McCord mentally and emotionally abused a Legislative Plaza employee. In a letter sent to the Tennessean yesterday, Spivey said McCord raised his middle finger at the staff member’s two-year-old granddaughter and called the employee vulgar names. Harwell responded by blasting Spivey and suggesting the move may be motivated by his displeasure with how Jeremy Durham’s case was handled. “It is disrespectful for him to attempt to play political football with our state employees and their jobs, all because he personally disagreed with Jeremy Durham's expulsion,” she said.

A Wilson County man who served 31 years in prison on a rape and burglary conviction before DNA evidence cleared him of the crime was not recommended for exoneration by the Tennessee Board of Parole. The board voted 7-0 yesterday not to recommend formal exoneration for Lawrence McKinney, whose legal team said they now will request an exoneration directly from Gov. Bill Haslam. McKinney was released from prison in 2009 after his 1978 conviction was overturned. His record was expunged but his attempts to get an executive exoneration have so far failed, the Tennessean reports. If granted, the exoneration enables a person to file for compensation with the Tennessee Board of Claims.

The Tennessee Supreme Court recently granted review of four cases, which raise issues related to administrative employment appeals, marital property and two wrongful death claims. The Raybin Supreme Court Hotlist reviews each case and offers a prediction as to how each may be decided.

A federal review of the fatal shooting of Darrius Stewart has concluded there is insufficient evidence to support charges against former Memphis police officer Connor Schilling, U.S. Attorney Edward L. Stanton III announced today. The Commercial Appeal reports that the review, which began last year, examined witness statements, video footage of the incident and medical and forensic evidence. To prosecute the case, the government would have had to prove that Schilling used an unreasonable amount of force and acted willfully to deprive Stewart of his constitutional rights, Stanton said.

Campbell County lawyer Timothy Paul Webb was suspended yesterday (Sept. 26) for five years, retroactive to Dec. 15, 2015. Webb is to serve two of the years on active suspension and the remainder on probation. As conditions of probation, he must engage a practice monitor, undergo an evaluation by Tennessee Lawyers Assistance Program (TLAP), enter into a monitoring agreement if deemed appropriate by TLAP, and incur no new complaints resulting in disciplinary action. The petition for discipline filed against Webb included 12 complaints including lack of diligence in handling client matters, failure to communicate with clients, failure to properly terminate relationships with clients, misrepresentations to clients and failure to maintain client funds in his trust account. Read the BPR notice.