Petition to clarify disciplinary rules brought by TBA

The TBA this week petitioned the Tennessee Supreme Court to issue new rules clarifying what lawyers who have been disbarred, suspended or placed on disability inactive status with pending disciplinary complaints can do with respect to law practice, and clarifying the relationship of licensed lawyers with lawyers in this disciplinary status.

The petition proposes a new Rules of Professional Conduct 5.8 which bans disbarred lawyers from almost any involvement with lawyers or in law practice; and puts suspended lawyers and lawyers placed on disability inactive status with pending disciplinary complaints under severe restrictions in dealing with lawyers and clients.

The proposal was developed by a working group chaired by Sue Van Sant Palmer, and included TBA members involved in disciplinary matters and lawyer assistance programs. The court has yet to set a comment period for the proposal.

Read or download the petition and exhibits

TODAY'S OPINIONS
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WILLIAM J. PARKER v. HAPS HEATING, AIR CONDITIONING, PLUMBING AND ELECTRICAL SERVICES, LLC

Court: TWCA

Attorneys:

Stephen F. Libby, Memphis, Tennessee, for the appellant, William J. Parker.

Thomas D. Yeaglin, Memphis, Tennessee, for the appellee, HAPS Heating, Air Conditioning, Plumbing and Electrical Services, LLC.

Judge: HAYES

Employee sought workers' compensation benefits and medical expenses for a shoulder injury he allegedly suffered while working for Employer. The trial court bifurcated the trial with regard to (1) whether the injury was compensable, and (2) if so, the extent of compensation benefits to which Employee is entitled. At the close of Employee's proof as to compensability, the trial court dismissed Employee's claim, finding that the issue of causation was not established. Employee has appealed this judgment. Employee contends that the evidence does not support the trial court's ruling that he had failed to sustain his burden of proof as to compensability. We reverse the judgment dismissing the claim and remand the case to the trial court for proceedings consistent with this opinion.

http://www.tba2.org/tba_files/TSC_WCP/2009/parkerw_011609.pdf


DEBORAH GAIL DAVIS MORGAN EVERETT v. CHARLES SCOTTY MORGAN

Court: TCA

Attorneys:

Kevin W. Shepherd, Maryville, Tennessee, for the Appellant, Charles Scotty Morgan.

Peter Alliman, Madisonville, Tennessee, for the Appellee, Deborah Gail Davis Morgan Everett.

Judge: SWINEY

Deborah Gail Davis Morgan Everett ("Mother") filed a petition seeking to have Charles Scotty Morgan ("Father") held in contempt of court for failure to pay child support. Shortly thereafter, Mother was contacted by George Raudenbush ("Raudenbush") who told Mother that he was connected with the court system and that he had been contacted by Father to mediate Mother's claim for back child support. However, Raudenbush, who was Father's friend, neither was connected to the court system nor was a certified mediator. After Raudenbush convinced Mother to discharge her attorney, Mother, Father, and Raudenbush "mediated" Mother's claim. Raudenbush represented to Mother that the most a court would award her in back child support was $8,750.00. Mother eventually agreed to this amount, even though she was convinced much more was owed. An Agreed Decree was entered by the Trial Court incorporating the terms of the "mediation." Soon thereafter, Mother filed a Tenn. R. Civ. P. 60.02 motion to set aside the Agreed Decree on the basis of fraudulent misrepresentations made by Raudenbush and/or Father. Following a hearing, the Trial Court granted the motion and thereafter determined that Father owed a total of $17,375.00 in arrears. In determining the amount of Father's arrears, the Trial Court credited him with time that the children were living with him even though no petition to modify his child support payment had been filed. Father appeals, claiming the Trial Court erred when it granted Mother's motion to set aside the Agreed Decree. Mother appeals, claiming Father was not entitled to a credit for the time the children were living with him because no petition to modify had been filed. We affirm the Trial Court's judgment setting aside the Agreed Decree pursuant to Tenn. R. Civ. P. 60.02. We further hold that the credit the Trial Court gave to Father was an improper retroactive modification of his child support payment. Mother's judgment against Father is modified to be $26,125.00, plus statutory interest. We remand for further proceedings to award Mother's attorney fees incurred on appeal and the calculation of the statutory interest.

http://www.tba2.org/tba_files/TCA/2009/everettd_011609.pdf


FOSTER BUSINESS PARK, LLC., ET AL. v. MARK WINFREE, ET AL.

Court: TCA

Attorneys:

Barry L. Gardner and Charles G. Blackard, III, Brentwood, Tennessee, for the appellant, Foster Business Park, Arte' Corp., Tarun Surti and Lata Surti.

Sam J. McAllester, III and William J. Haynes, III, Nashville, Tennessee, for the appellee, Billy Lowe and J&B Investments, LLC.

Daniel W. Small and Paul Allen England, Nashville, Tennessee, for the appellee, Mark Winfree and American Holdings Investments, Inc.

Judge: DINKINS

Maker and guarantors of promissory note brought action against various parties including the maker's former loan officer, the former holder of the note, and the current holder of the note, alleging that defendants breached their fiduciary duty to the maker, tortiously interfered with the maker's negotiations to pay off the note at a discount and violated the Tennessee Consumer Protection Act. The Chancery Court for Davidson County granted defendants' summary judgment. Maker and guarantors appealed. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/winfreem_011609.pdf


KEITH COLLINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Eran Julian, Memphis, Tennessee, for the appellant, Keith Collins; Matthew Eggleston at trial.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy Carnesale, Karen Cook and David Michael Zak, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The petitioner, Keith Collins, appeals from the post-conviction court's denial of post-conviction relief. On appeal, he argues that he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. Following our review of the record and the parties' briefs, we affirm the judgment of the post-conviction court denying post-conviction relief.

http://www.tba2.org/tba_files/TCCA/2009/collinsk_011609.pdf


STATE OF TENNESSEE v. ANTONIO KENDRICK

Court: TCCA

Attorneys:

Antonio Kendrick, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Leslie E. Price, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The Petitioner, Antonio Kendrick, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

http://www.tba2.org/tba_files/TCCA/2009/kendricka_011609.pdf


MARCUS WARD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ryan B. Feeney, Selmer, Tennessee, for the appellant, Marcus Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; William L. Gibbons, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

In 2005, the petitioner, Marcus Ward, pled guilty to three counts of aggravated assault and one count each of especially aggravated kidnapping, intentionally evading arrest in a motor vehicle, and aggravated sexual battery and received an effective sentence of thirteen and one-half years. No direct appeal was taken. Subsequently, he filed a petition for post-conviction relief, alleging that his guilty pleas were not knowingly, intelligently, and voluntarily made and that he received the ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied the petition. This appeal is only as to his conviction for aggravated sexual battery, with the petitioner asserting that trial counsel rendered ineffective assistance by not informing him that registration as a sexual offender was a consequence of his guilty pleas, the trial court committed plain error by not informing him of this registration requirement, and the post-conviction court erred in finding that the registration requirement was a "collateral," rather than direct, consequence of his pleas. Following our review, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/wardm_011609.pdf

TIPTON dissenting
http://www.tba2.org/tba_files/TCCA/2009/wardm_DIS_011609.pdf


TODAY'S NEWS

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Legal News
Hibbett is next candidate for Criminal Court vacancy
Robert Neland Hibbett, assistant district attorney general, 15th Judicial District, Mt. Juliet, has applied for the vacancy on the 15th Judicial District Criminal Court created by the death of Judge James O. Bond. The deadline to submit applications for the position is Jan. 21. David Earl Durham, deputy district attorney general of the 15th Judicial District in Lebanon, is the other candidate who has applied.
For more information , check the AOC web site
Obama's right to free speech allows 'God' in oath
A federal judge has refused atheists' request for an injunction barring inauguration prayers and the words "so help me God" in the presidential oath. U.S. District Judge Reggie Walton of Washington, D.C., said Barack Obama had a right to free speech and could cite God in his oath, the Associated Press reports.
ABAJournal.com connects you to the story
Learn more about your new Constitutional officers
Find out more about Tennessee's new Constitutional officers, who were elected during a joint session of the House and Senate. Read their bios
in the News Sentinel
TBA offices closed Monday
The Tennessee Bar Association will be closed Monday for the Martin Luther King holiday.

Knox County Clerk's office looks into theft
About $1,200 in cash and checks are missing from the Knoxville Center office of the Knox County Clerk. While the probe that was launched Nov. 18, 2008, hasn't resulted in a criminal charge, Knox County Clerk Foster Arnett said he already has demoted and transferred a supervisor because of the incident, and police plan to interview three employees next week.
The News Sentinel has the story
Men cleared by DNA seek more damages
A group of exonerated men freed by DNA evidence after decades in Texas prisons have dropped a series of lawsuits while they seek a new law to increase compensation from the state that wrongly imprisoned them. Advocacy groups are pushing the Legislature for a bill that would increase payments to $250,000 per year of imprisonment, with half paid in a lump sum and the other half paid in annuities. The state currently pays a lump sum of $50,000 per year of imprisonment.
The Jackson Sun carried this AP story
Abandoned building get new lease on life, as law office
Athens lawyer Jerry Estes -- who also served for 24 years as District Attorney General for the 10th Judicial District -- is committed to historic preservation. His new law office will be in the renovated Shields medical building,which had turned into a vacant eyesore with broken-out windows before Estes took it on as a project.
The Daily Post-Athenian has the story
Is the bailout contitutional?
Some conservative and libertarian groups maintain the $700 billion bailout law is an unconstitutional delegation of authority to the executive branch, The New York Times reports. A group known as the FreedomWorks Foundation said it plans to file a lawsuit challenging the law.
The New York Times reports
Oops, two inmates released by accident
Two inmates in Carter County were released accidentally and the sheriff admitted it was his fault. Sheriff Chris Mathes was called before Chancellor Richard Johnson Wednesday to explain how it happened.
The Elizabethton Star reports
Child advocacy center receives grant
The Community Foundation for Dickson County has distributed more than $35,000 in grants to 10 Dickson County nonprofit organizations, including the Child Advocacy Center for the 23rd Judicial District has received a grant to provide advanced forensic interview training for staff.
Read the list in the Tennessean
Politics
Morgan is new deputy governor
Outgoing comptroller John Morgan will join Gov. Phil Bredesen as his deputy governor, Bredesen announced today. Bredesen cited Morgan's 31 years in state government and 10 years as comptroller. He replaces former deputy governor Stuart Brunson, who announced his departure early last week. Morgan was without a job for less than 24 hours, after the Republican-controlled General Assembly voted to replace him on Thursday with a GOP nominee, tax attorney Justin Wilson.
The Tennessean has the story
TennBarU CLE
CLE Ski at Snowmass: Great skiing, great programs
Get great skiing and great CLE all in one package. The TBA's CLE Ski program returns for its 24th year with a week-long program in beautiful Snowmass, Colo., central to four remarkable ski areas: Snowmass, Aspen Highlands, Aspen Mountain and Buttermilk. Sign up now. CLE Ski will run from Jan. 31 through Feb. 7, with a total of 15 hours of CLE programming in the morning and afternoon and plenty of time during the day to conquer the slopes.
Register today or find out more
Upcoming
The Healthy Bar Party
The Tennessee Lawyers Assistance Program (TLAP) will host the "Healthy Bar Party: How to Incorporate Health & Wellness in Your Life and Law Practice" Feb. 27 in Nashville. The event is part of TLAP's mission to serve those in the legal community who face issues of stress, depression, substance abuse and similar challenges. In serving the legal community, TLAP also protects the public from attorneys and judges who are not able to function at their best. The event will include classes in yoga, organization, mindfulness and nutrition. Tennessee Commission on CLE and Specialization Executive Director Dave Shearon will speak on the science behind the program as well. There is a suggested donation of $15 to support TLAP. For more information, contact Laura Gatrell or Ted Rice.

TBA Member Services
Save at FedEx Kinkos
Through your membership in the TBA, your business can enjoy FedEx reliability and special savings on a variety of FedEx services, including savings on FedEx Kinkos services. All you have to do is sign up. Opening an account is free and there is no minimum shipping requirement.
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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