New CLE tackles challenges of trust account management

If you manage a trust account, you know the challenge of meeting ethics requirements as well as following the rules used in trust accounting. To help you in this difficult task, the TBA's TennBarU now has a pair of interactive text programs from management consultant Suzanne Rose. Her "Avoiding Ethics Violations in Trust Account Management" has been updated with new information on the basics of trust account management. A new advanced program is also now available, offering the latest developments, such as what it means today for an account to be FDIC insured and how a recent Supreme Court decision relative to fee disputes affects attorneys.

Learn more about this TennBarU course or register now

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) 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.

BOARD OF PROFESSIONAL RESPONSIBILITY v. JAMES T. ALLISON

Court: TSC

Attorneys:

Randall J. Spivey, Nashville, Tennessee, for the appellant, Board of Professional Responsibility.

Robert L. Green, Memphis, Tennessee, for the appellee, James T. Allison.

Judge: LEE

This is a direct appeal of a trial court judgment that modified a hearing panel's order suspending an attorney from the practice of law for sixty days. The trial court did not disagree with the hearing panel's findings regarding the attorney's misconduct but determined that the punishment was too harsh and, instead, ordered a public censure. After an independent review of the record, we conclude that the hearing panel's findings that the attorney commingled his personal funds with client funds, paid personal bills out of his trust account, failed to maintain proper trust account records, and failed to timely respond to Board inquiries were supported by substantial and material evidence and that this conduct violated the Rules of Professional Conduct. These violations, coupled with the aggravating factor that in 1998, the attorney was publicly reprimanded for commingling his personal funds with trust account funds and for paying personal expenses from his trust account, warrant the sanctions imposed by the hearing panel which require that the attorney be suspended from the practice of law for sixty days, that his trust account be monitored for a period of one year following reinstatement of his law license, that he submit trust account bank statements and ledger sheets every thirty days during this one-year period, and that he pay all costs of the proceeding. Accordingly, we reverse the trial court's judgment to the extent that it modifies the sanctions imposed by the hearing panel.

http://www.tba2.org/tba_files/TSC/2009/allisonj_051409.pdf


ROSE JOHNSEY, Widow of Frederick Johnsey v. NORTHBROOKE

Court: TCA

Attorneys:

T. J. Emison, Jr., Alamo, TN, for Appellant.

Howard B. Hayden, Memphis, TN, for Appellees.

Judge: HIGHERS

The plaintiff filed suit against a nursing home after her husband allegedly suffered a broken hip while he was a resident there. The nursing home filed a motion for summary judgment, asserting that the plaintiff could not prove the elements of her claim. The trial court concluded that the plaintiff''s claims were for medical malpractice rather than ordinary negligence, but the court found that under either theory summary judgment was appropriate. We agree with the court's conclusion that the plaintiff's claims sound in medical malpractice, but we find that the trial court erred in granting summary judgment. Therefore, we reverse and remand this case for further proceedings.

http://www.tba2.org/tba_files/TCA/2009/johnseyr_051409.pdf


HOWARD JOHNSON, INC. v. MABRA HOLYFIELD, ET AL.

Court: TCA

Attorneys:

Scottie O. Wilkes, Memphis, Tennessee, for the appellants, Mabra Holyfield and Frank Banks.

Ben J. Scott, Memphis, Tennessee, for the appellee, Howard Johnson, Inc.

Judge: FARMER

This appeal arises out of the enrollment of a foreign judgment issued by the New Jersey District Court against defendants residing in Tennessee. Appellants contend that the New Jersey District Court lacked personal jurisdiction over them and that the trial court, therefore, erred by enrolling the judgment against them. Finding that Appellants consented to jurisdiction in the New Jersey District Court, we affirm.

http://www.tba2.org/tba_files/TCA/2009/johnsonh_051409.pdf


STATE OF TENNESSEE v. MARK ROBERT CARTER

Court: TCCA

Attorneys:

Timothy S. Priest, Winchester, Tennessee, for the appellant, Mark Robert Carter.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Michael Randles, Ann L. Filer, and Hollyn Hewgley, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: THOMAS

In August 2007 the defendant, Mark Robert Carter, pled guilty to one count of theft of property valued $10,000 or more, a Class C felony; nine counts of theft of property valued $1000 or more, a Class D felony; one count of burglary, a Class D felony, and one count of possession of a Schedule II controlled substance, a Class A misdemeanor. The offenses to which the defendant pled guilty occurred in three different counties over a five-month period. After a sentencing hearing, the trial court ordered some of the defendant's sentences to be served concurrently and some consecutively, resulting in an effective sentence of twenty-six years as a Range II, multiple offender. In this consolidated appeal, the defendant argues that the trial court: (1) improperly sentenced him as a Range II offender for most of his offenses; (2) failed to consider and apply the defendant's proposed mitigating factors; (3) improperly imposed consecutive sentences; and (4) failed to award the defendant pretrial jail credits. After reviewing the record, we conclude that the defendant should have been sentenced as a Range I, standard offender for all of his convictions except for four of his Class D felony theft convictions. However, we conclude that the trial court properly sentenced the defendant to consecutive terms and was within its discretion to consider, but not apply, his proposed mitigating factors. We also conclude that there is not enough information in the record for this court to consider the defendant's jail credit issue on appeal. As such, we remand the defendant's case to the trial court for entry of revised judgments consistent with this opinion; after reducing the defendant's sentencing range to Range I for the appropriate offenses and imposing the midpoint sentences, as did the trial court, the defendant's revised effective sentence is 19.5 years. On remand, the trial court shall also determine the amount of pretrial jail credit to which the defendant is entitled.

http://www.tba2.org/tba_files/TCCA/2009/carterm_051409.pdf


STATE OF TENNESSEE v. BENJAMIN S. HUFFMAN, JR.

Court: TCCA

Attorneys:

Paul J. Walwyn, Madison, Tennessee, for the appellant, Benjamin S. Huffman, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Lawrence Ray Whitley, District Attorney General; and William J. Lamberth, II, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Benjamin S. Huffman, Jr., entered nolo contendere pleas to two counts of vehicular homicide based upon driver intoxication, a Class B felony, and pled guilty to one count of reckless aggravated assault, a Class D felony, one count of reckless endangerment, a Class E felony, and one count of driving on a revoked license, first offense, a Class B misdemeanor. The parties agreed to an eight-year sentence on one of the vehicular homicide convictions but left the defendant's sentence on the other vehicular homicide count to the discretion of the trial court. Following a sentencing hearing, the trial court imposed the maximum sentence of twelve years as a Range I, standard offender for that offense. The trial court ordered this sentence to be served consecutively to his sentence on the other vehicular homicide count. The sentences on the other convictions were ordered to be served concurrently, resulting in an effective sentence of twenty years. On appeal, the defendant argues that the trial court (1) improperly applied the "victim vulnerability due to age or physical or mental disability" and "no hesitation to commit the offense when the risk to human life was high" inhancement factors to his sentence; (2) improperly imposed consecutive sentences; (3) erred in allowing "double hearsay" testimony to be admitted at the sentencing hearing; and (4) erred by taking judicial notice of an exhibit from one of the defendant's previous criminal cases. After reviewing the record, we conclude that the trial court erred by applying the "particular vulnerability" enhancement factor to the defendant's sentence. However, given that the two other enhancement factors were supported by the record, we conclude that the defendant's sentence on Count 2 of the indictment was still appropriate. We also discern no reversible error as to the defendant's other stated issues. Accordingly, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/huffmanb_051409.pdf


STATE OF TENNESSEE v. WALTER ROBY

Court: TCCA

Attorneys:

Garland Erguden (on appeal) and Rusty White (at trial), Assistant Public Defenders, Memphis, Tennessee, for the appellant, Walter Roby.

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

Judge: MCLIN

The defendant, Walter Roby, was convicted by a Shelby County jury of reckless endangerment with a deadly weapon, a Class E felony. For his conviction, the defendant was sentenced as a Range II offender to three years incarceration. On appeal, the defendant asserts that the evidence was insufficient to sustain the conviction. Upon review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/robyw_051409.pdf


JASON WAYNE ROGERS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Jason Wayne Rogers, Pro Se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The petitioner, Jason Wayne Rogers, appeals from the Cumberland County Criminal Courtís denial of his petition for post-conviction relief in which he challenged his 2006 conviction of attempted aggravated child neglect of a child less than six years old. Upon review of the record, we conclude that the post-conviction court properly dismissed his petition as untimely, and we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2009/rogersj_051409.pdf


STATE OF TENNESSEE v. JUSTIN VAULX

Court: TCCA

Attorneys:

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Justin Vaulx.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Justin Vaulx, appeals from the judgment of the Madison County Circuit Court removing him from community corrections and ordering him to serve his sentence in confinement. Following our review of the record, the parties' briefs, and the applicable law, we determine no error exists in the court's revocation of the defendant's community corrections sentence, and thus affirm the court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/vaulxj_051409.pdf


Authority to Employ and Terminate a Judicial Commissioner

TN Attorney General Opinions

Date: 2009-05-14

Opinion Number: 09-81

http://www.tba2.org/tba_files/AG/2009/ag_09_81.pdf

Establishment of New Specialty Earmarked License Plate Recognizing Religious Entity

TN Attorney General Opinions

Date: 2009-05-14

Opinion Number: 09-82

http://www.tba2.org/tba_files/AG/2009/ag_09_82.pdf

Preemption of House Bill 1762 and Senate Bill 2089

TN Attorney General Opinions

Date: 2009-05-14

Opinion Number: 09-83

http://www.tba2.org/tba_files/AG/2009/ag_09_83.pdf

Report to US Dept. Homeland Security of Jail Arrestee's Citizenship Status

TN Attorney General Opinions

Date: 2009-05-14

Opinion Number: 09-84

http://www.tba2.org/tba_files/AG/2009/ag_09_84.pdf

TODAY'S NEWS

Legal News
Disciplinary Actions
TBA Member Services

Legal News
AP: Obama considering at least 6 for court
The Associated Press yesterday released the names of six lawyers the Obama administration reportedly is considering nominating for the high court. They are: Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano, U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood, and California Supreme Court Justice Carlos Moreno. However, those familiar with the deliberations say others are also being discussed.
Read the AP story in the New York Times
Shelby Co. criminal justice entities seek funding
Even as Shelby County considers cutting 100 workers, District Attorney General Bill Gibbons is asking for $709,000 to hire eight more prosecutors to handle a sharp increase in criminal cases. Dottie Jones, director of the county division of community services, also has asked for additional funding for programs for nonviolent drug addicts and the mentally ill. Finally, chief public defender Robert Wilson Jones has protested the proposed cut of three workers from his office, saying prosecutors have unfairly received the lion's share of funding.
The Commercial Appeal has more
Lawyers speak out against bankruptcy law
As bankruptcy filings soar, many bankruptcy lawyers are criticizing the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and lawsuits are popping up around the country attacking the law's attorney-related provisions. Two issues at stake are whether bankruptcy lawyers should be considered "debt relief agencies" when they provide advice to clients and whether the law's restrictions on an attorney's ability to provide advice to clients is constitutional.
Learn more in the Memphis Daily News
Tate honored for work with children and Internet
Tennessee attorney and Federal Communications Commissioner Debi Tate will be honored Monday for her work with children and Internet safety by the International Telecommunication Union. Tate will be presented the World Telecommunication and Information Society Award in Geneva as part of the organization's annual gathering, which this year is focused on ensuring that children can safely access the Internet and its resources without fear of falling prey to predators.
Learn more about the event
Disciplinary Actions
Davidson County lawyer censured
On May 14, Davidson County lawyer Nathaniel Koenig was publicly censured by the Board of Professional Responsibility for failing to respond to a client and failing to re-file a Qualified Domestic Relations Orders (QDRO) after the first was rejected by the plan administrator. The board determined that his actions violated Rules of Professional Conduct 1.3, 1.4(a) and 3.2.
Download the BPR release
TBA Member Services
Free online legal research is hot TBA benefit
Online legal research is available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The new TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
Log in now to try it out

 
 
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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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