TBA files comprehensive set of ethics amendments

The Tennessee Bar Association today filed with the Tennessee Supreme Court a comprehensive set of amendments to the Tennessee Rules of Professional Conduct. The project, which represents the first major amendment to the rules since they were adopted in 2002, was approved by the TBA House of Delegates and Board of Governors at their respective April meetings. If the Tennessee Supreme Court follows its prior procedures, a lengthy comment period will precede the court's final consideration and adoption of changes.

Review the petition -- which highlights the important changes, a 187-page "clean version" showing how the new rules would look, a 207-page redline comparing the proposal to the current rules and a comparison to the ABA model rule on TBALink.

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01 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
05 - TN Court of Appeals
03 - TN Court of Criminal Appeals
06 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Court: TSC


Brock Mehler (at trial and on appeal) and Peter D. Heil (on appeal), Nashville, Tennessee; and Ardena J. Garth, District Public Defender; Karla G. Gothard, Executive Assistant Public Defender; Mary Ann Green, Assistant Public Defender; and Hugh J. Moore, Jr., Howell G. Clements, and Cynthia A. LeCroy-Schemel (all at trial), Chattanooga, Tennessee, for the appellant, Marlon Duane Kiser.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Senior Counsel; William H. Cox, District Attorney General; and Barry A. Steelman, Assistant District Attorney, for the appellee, State of Tennessee.

Judge: CLARK

A jury convicted Defendant, Marlon Duane Kiser, of first degree premeditated murder and two counts of first degree felony murder, all involving the same victim, Hamilton County Deputy Sheriff Donald Bond. The jury subsequently sentenced Defendant to death on each count after finding that the murder was committed against a law enforcement officer engaged in the performance of official duties and Defendant knew or reasonably should have known that the victim was a law enforcement officer engaged in the performance of official duties, Tenn. Code Ann. section 39-13-204(i)(9) (Supp. 2001), and after finding that the evidence of this aggravating circumstance outweighed the evidence of mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed the convictions and sentence but remanded the matter for the trial court to merge the convictions and enter a single judgment of conviction for first degree murder. After the case was docketed in this Court on automatic direct appeal, we entered an order identifying several issues for oral argument. We now hold as follows: (1) Defendant's constitutional rights were not violated by his waiver of his right to present mitigating evidence at sentencing; (2) the State did not exercise its peremptory challenges in an impermissibly discriminatory manner; (3) the trial court did not commit reversible error by refusing to instruct the jury on residual doubt; (4) the trial court did not err by limiting Defendant's proof; (5) the trial court did not err by excluding (a) a telephone call from an unidentified caller claiming that Defendant did not commit the murder or (b) a written note whose author was unidentified; (6) the evidence is sufficient to support the verdicts; (7) the death sentence is valid under this Court's mandatory review pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2006); and (8) Tennessee's lethal injection protocol is constitutional. We agree with the Court of Criminal Appeals' conclusions with respect to the remaining issues and incorporate the relevant portions of its opinion included in the attached appendix.We affirm the Defendant's convictions and sentence and remand this matter to the trial court for entry of a single judgment of conviction for first degree murder.



Court: TWCA


Steven W. Maroney and Matthew R. West, Jackson, Tennessee for the appellant, Dean Lockridge.

W. Lewis Jenkins and Dean P. Dedmon, Dyersburg, Tennessee, for the appellees, Goodyear Tire & Rubber Company and Liberty Mutual Insurance.


This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel fo the Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee alleged that he sustained injuries to both knees as a result of an accident at work. The trial court found that he had sustained an injury, but did not have permanent impairment or disability as a result of the injury. Employee appeals, contending that the evidence demonstrates that he sustained permanent disability. He also contends that the trial court erred by ordering that he was not entitled to future medical treatment for he knees. Employer contends that the trial court erred by finding that Employee sustained a compensable injury. We affirm the trial court's finding that Employee did not sustain a permanent disability, but conclude that the portion of the judgment concerning future medical treatment was premature, and modify the judgment accordingly.



Court: TWCA


C. Mark Warren, Chattanooga, Tennessee, for the appellant, Charles M. Morrison.

C. Douglas Dooley and James F. Exum, III, Chattanooga, Tennessee, for the appellee, Logan-Moore, LLC.

Judge: NEAL

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sought permanent disability benefits for separate injuries, one to his neck and left shoulder and the other to his right knee. His authorized treating physician initially opined that he had sustained permanent impairment as a result of his work injuries. However, on cross-examination, the doctor stated that he was unaware that Employee had been receiving treatment for neck and shoulder symptoms for more than ten years prior to the work injury. He testified that, if true, such information would change his opinion. He also testified that a comparison of pre- and post-injury MRI's of the right knee left him unable to opine with reasonable medical certainty concerning that injury. A second doctor, who later performed surgery on the knee, opined that Employee had a work-related injury. The trial court found that Employee had failed to sustain his burden of proof. Employee has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment as to the alleged neck and shoulder injury and reverse as to the knee injury.



Court: TCA


John M. Farris, Jamie R. Hollin, W. Travis Parham and Mike Stewart, Nashville, Tennessee, for the Appellant, Comcast of the South.

Joe A. Conner, Misty Smith Kelley, John M. Phillips, Frederick L. Hitchcock, T. Maxfield Bahner, and William R. Hannah, Chattanooga, Tennessee, for the Appellee, Electric Power Board of Chattanooga.


The Tennessee Cable Telecommunications Association ("TCTA") is a trade association whose members primarily are owners of franchised cable televisions systems. One of its members is Comcast of the South ("Comcast"). In September 2007, TCTA filed a lawsuit against the Electric Power Board of Chattanooga ("EPB"). This lawsuit was filed in the Davidson County Chancery Court and sought a declaratory judgment that EPB was violating Tenn. Code Ann. section 7-52-603 by improperly using municipal electric utility funds to subsidize its recent cable/internet venture. In April 2008, Comcast filed the present lawsuit against EPB in the Hamilton County Chancery Court, also claiming that EPB was violating Tenn. Code Ann. section 7-52-603 by improperly using municipal electric utility funds to subsidize its recent cable/internet venture. EPB filed a motion to dismiss the present lawsuit claiming the complaint should be dismissed based on the doctrine of prior suit pending, because the claims were not ripe for review, and because the claims were preempted by federal law. The Trial Court determined that the doctrine of prior suit pending did not apply. However, the Trial Court further found that the claims were not ripe and, even if they were, they were preempted by federal law. The complaint was, therefore, dismissed. Both parties appeal. We conclude that the Trial Court erred when it determined that EPB had not proven the defense of prior suit pending. This lawsuit should have been dismissed on that basis. Thus, while we agree with the Trial Court that this case should be dismissed, we do so on a different basis. The judgment of the Trial Court is vacated to the extent the Trial Court dismissed the action because it was not ripe and because it was preempted as these issues are pretermitted. The judgment of the Trial Court is affirmed as modified.



Court: TCA


David B. Hamilton and Christopher Rowe, Knoxville, Tennessee, for appellant, Joshua David Kimsey.

Angela Bolton Rauber and Ronald E. Mills, Knoxville, Tennessee, for appellee, the City of Knoxville.


Defendant has appealed from a traffic court violation conviction based on documentary evidence created by a camera at a street intersection. The Trial Court affirmed the City Court conviction and defendant has appealed to this Court raising several issues. Upon review of the record and consideration of the evidence, we affirm the Judgment of the Trial Court.



Court: TCA


Aubrey L. Brown, Jr., Memphis, TN, for Appellant.

James O. Parker, Memphis, TN, for Appellee.


In this appeal, we are asked to determine whether the trial court erred in finding that the phrase "taking up residence," as used in the parties' marital dissolution agreement, equated to cohabitation, and in finding that Wife did not cohabitate with an unrelated male in violation of such agreement. We are also asked to determine whether the trial court erred in finding no material change of circumstances warranting a modification of Husband's alimony obligation, and in denying Husband's motions to re-open and supplement proof and for a new trial, based on newly-discovered evidence. We affirm.


IN RE Valerie T.

Court: TCA


Cynthia J.B., Columbus, Georgia, the Appellant, pro se.

Theodore Kern, Knoxville, Tennessee, for the Appellee, Michael T.


This appeal arises out of a change of custody petition filed by the father. In the petition, the father asserted that a change of the primary residential custodian was warranted because his daughter was dependent or neglected and a material change of circumstances had occurred since the Juvenile Court's most recent order. The material change in circumstances cited by the father was the mother's failure to provide a stable home environment and consistent school enrollment for the child. After a hearing, the Referee for the Juvenile Court dismissed the dependant or neglected child claim for lack of proof; she found, however, that a material change of circumstances had occurred, established the father as the primary residential parent, and gave the mother alternate parenting time. When the mother appealed the Referee's findings, the Juvenile Court Judge conducted a hearing in this matter, after which the findings of the Referee were affirmed. The mother appealed. We affirm.



Court: TCA


Donald Capparella, Nashville, Tennessee, for the appellant, R. Sadler Bailey.

Robert E. Cooper, Jr., Attorney General and Reporter and Douglas Earl Dimond, Senior Counsel, for the appellee, State of Tennessee.


Plaintiff's attorney appeals the trial court's order summarily finding him in direct contempt of court. We vacate the trial court's order, remand, and order the matter transferred to another judge for further proceedings.



Court: TCCA


Charles Edgar Waldman, Memphis, Tennessee, for the appellant, Aaron Duchesne.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;James G. Woodall, District Attorney General; and Alfred Earls, Assistant District Attorney General,for the appellee, State of Tennessee.


Following a jury trial, Defendant, Aaron Duchesne, was found guilty of theft of property valued between $10,000 and $60,000, a Class C felony. At the conclusion of Defendant's sentencing hearing, the trial court sentenced Defendant as a Range II, multiple offender, to ten years, and ordered Defendant to serve his sentence consecutively to any sentences that might be imposed in case numbers 06-05119 and 06-04963 which were pending in Shelby County at the time of the sentencing hearing. On appeal, Defendant argues that (1) the evidence was insufficient to support his conviction; (2) the trial court failed to perform its function as thirteenth juror; and (3) the trial court erred in its sentencing determinations concerning the length of his sentence and in imposing consecutive sentencing. After a thorough review, we affirm Defendant's theft conviction and the length of his sentence. We reverse the trial court's imposition of consecutive sentencing and remand for entry of a judgment consistent with this opinion.



Court: TCCA


John E. Herbison, Nashville, Tennessee (on appeal); and Jerry Hoffer, Cleveland, Tennessee (at trial), for the appellant, Michael E. Stewart.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney General; Robert Steve Bebb, District Attorney General; and Matthew Dunn and Shari Tayloe Young, Assistant District Attorneys General, for the appellee, State of Tennessee.


The defendant, Michael E. Stewart, appeals as of right from his convictions by a Polk County jury of first degree premeditated murder, first degree felony murder in the perpetration of kidnapping, kidnapping, a Class C felony, and tampering with evidence, a Class C felony. The murder convictions were merged, and the defendant was sentenced to life and to eight years for the two Class C felonies, which are to be served concurrently to each other but consecutively to the life sentence, for an effective sentence of life plus eight years. The defendant contends that the evidence is insufficient to support the felony murder and kidnapping convictions and that the trial court erred in admitting evidence that the defendant was taken into custody on outstanding warrants from other charges. We affirm the judgments of the trial court.



Court: TCCA


Paul E. Meyers, Assistant Public Defender, Jackson, Tennessee, for the appellant, Christopher Tyus.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; James G. Woodall, District Attorney General; and Angela Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Christopher Tyus, was convicted by a Madison County jury of one count of theft over $1000. He was subsequently sentenced to three years and six months as a Range I standard offender. On appeal, the defendant challenges the sufficiency of the convicting evidence. After a thorough review of the record, we affirm the judgment of the trial court.


Secondary Employment of Commissioned Members of the Department of Safety

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-75


Legality of Senate Bill 631 and Antidegradation Water Quality Standards

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-76


Constitutionality of Legislation Permitting a County to Create a Unified Family Court

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-77


Constitutionality of Tenn. Code Ann. section 36-6-101(a)(2)(A)(i)

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-78


Distribution of Local Option Sales Tax

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-79


Termination of Nonconforming Motor Vehicle Business Establishment

TN Attorney General Opinions

Date: 2009-05-13

Opinion Number: 09-80



Judicial Selection, Retention
Legal News
TBA Member Services

Judicial Selection, Retention
Committee OKs Ramsey-backed plan
The Senate Judiciary Committee today approved a plan backed by Lt. Gov. Ron Ramsey and sponsored by Sen. Mark Norris, R-Collierville, that would create a new Judicial Nominating Commission to recommend potential jurists to the governor. Norris said he will also introduce an amendment calling for a constitutional convention that would specifically address the issue of how judges are selected in Tennessee.
Read more in the Nashville Post (subscription required)
Legal News
Professional tax due June 1
The state's professional privilege tax, which must be paid by a range of occupations, including attorneys, is due June 1. The $400 payment may be made online or by mail to the Tennessee Department of Revenue, Andrew Jackson Building, 500 Deaderick Street, Nashville, TN 37242. For more information visit http://tn.gov/revenue, e-mail the department or find phone numbers at the department's web site.

Court taps Larry Wilks for CLE commission
Springfield attorney and former TBA president Larry D. Wilks has been appointed to the Tennessee Commission on Continuing Legal Education and Specialization. The commission is an agency of the Tennessee Supreme Court. It awards continuing legal education credit to CLE providers, monitors attorney compliance with CLE requirements and certifies lawyers as specialists in 14 areas of law.
Read more from the Tennessean
DOJ ramps up antitrust efforts
The Obama administration warned corporate America this week that the government would more aggressively investigate big firms that hurt smaller competitors. In abandoning legal guidelines set by the Bush administration, the Justice Department argued that lax enforcement over the last 10 years contributed to the nation's current economic troubles.
Nashville Public Radio has more
9th Circuit backs courtroom cameras
The San Francisco-based 9th U.S. Circuit Court of Appeals has asked the U.S. Judicial Conference to allow cameras to record and broadcast federal nonjury trials at the discretion of the trial judge, the Daily Journal reports. In submitting the request, the chief judge noted that legislation requiring cameras in court is pending in the U.S. Congress and that the court would be better served to set its own rules on the issue than have procedures imposed legislatively.
Read more from the ABA Journal
High schoolers flock to criminal justice
Chattanooga area high schools that offer criminal justice or public safety courses begin with the basics of law, the U.S. Constitution and police procedure, but soon let students get hands-on experience through field trips to courtrooms and prisons and reenactments of crime scenes. The classes are proving extremely popular.
The Times Free Press reports
Shelby Co. DA pursuing special investigative grand jury
Shelby County District Attorney General Bill Gibbons is moving forward with plans to use a state investigative grand jury to explore allegations that auto-title workers in the county clerk's office accepted bribes to issue titles without proper documentation. The investigative grand jury acts much like a federal grand jury, with the power to call witnesses, secretly subpoena records and grant immunity, but must be approved by the state attorney general and district attorneys in two of the state's three grand divisions.
The Commercial Appeal has more
Project Salute coming to Nashville
Project Salute, a unique service project pioneered by the University of Detroit Mercy School of Law, provides free legal assistance to low-income veterans. The project will be in Nashville at the end of May and volunteer lawyers are needed. A training session will be held May 28 at the Legal Aid Society of Middle Tennessee and the Cumberlands. The course, which will run from 8:30 a.m. to 5 p.m., will teach attorneys how to assist veterans with legal issues regarding disability and pension benefits. In exchange for the free training and materials, attorneys agree to accept one or more veterans' cases on a pro bono basis. The law school also will conduct a legal clinic for veterans on May 15 and 16 in Nashville.
Learn more about Project Salute
TBA Member Services
Secure, compliant data backup service now available
The TBA's official data protection, backup and recovery vendor of choice, i365, offers secure online backup solutions. i365 minimizes downtime by backing up files quickly and easily, and helps lawyers remain compliant by maintaining file integrity. Get i365 and be confident your data is securely stored and protected. TBA members enjoy a 10 percent savings on all services. For more information on this member benefit Denise Lucas at (407) 523-9774.
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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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