Unfinished Business - Articles

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Posted by: Lucian Pera on Jun 1, 2018

Journal Issue Date: Jun 2018

Journal Name: June 2018 - Vol. 54, No. 6

On my desk at home is a (relatively) neat pile of articles, notes and web clippings, all related to ideas for Tennessee Bar Association initiatives I never got a chance to foist on the TBA this year. Well, “my” year’s pretty much over now.*  More about that pile later.

But first, let me report to you on your association’s year.

The most important news is that, eleven months into her tenure, our new Executive Director Joycelyn Stevenson is well-ensconced in her position and doing a fabulous job. She has energized our staff, brought on great new talent and reorganized our team.

She has built new and stronger bridges to the Tennessee Supreme Court, local bars, and parts of our Tennessee legal community too long neglected. The single greatest privilege of being your president this year has been working with Joycelyn and seeing her find her footing and become a tremendous leader of our association.

But, as Ron Popeil used to tell us, Wait, there’s more!

The State of the Bar

Our membership rolls have grown, our finances are solid, and sections and committees have become more active. We’ve had success on several efforts in the legislature, both in stopping bad bills and advocating for good legislation. As readers of this column know, we’re launching the TBA Public Service Academy, to encourage and enable lawyers — Republicans, Democrats, independents and others – to enter public service by running for office.

The TBA certainly cannot claim credit for the Tennessee Supreme Court’s great victory in having the General Assembly appropriate more funding — $9.7 million more — for appointed indigent representation, but we did help, and happily. We deployed our lobbyists and activated our members, using TBAImpact and other tools. But the Court’s — and our — work on indigent representation reform has only begun.

Unfinished Indigent Representation Reform

Assisting the Court on indigent representation reform — enacting the recommendations of the Court’s Indigent Representation Task Force — was our Number One priority this year. We’re thankful for the Task Force’s fine work, and for the Court’s commitment to real reform.

Come the beginning of the state’s new fiscal year this summer on July 1, 2018, individual Tennessee lawyers doing appointed indigent representation will also be very grateful for an increase in the abysmal rates they’ve been paid for 20 years. We have also heard from the Court that interim billing for all matters — not just capital cases — should come with the new infusion of funds, too.

But neither the Court nor the TBA is done. The much-needed statewide commission proposed by the Task Force to oversee indigent representation was not passed this year. My successors plan to push hard, arm-in-arm with the Court, for its passage next session. It is the only chance for continued real reform, and we cannot let it slip away.

As importantly, the battle for adequate funding has only begun. For those keeping score, remember: while $9.7 million for indigent defense is real money, it’s less than half of what the Court actually asked for this year. In turn, that request by the Court was significantly less than what own the Court’s task force recommended. This work is not done.

The Road Ahead

Back to that pile on my desk.

“My” year may be done, but the TBA’s work is surely not.

Much of my pile includes stuff about the changes coming in our profession and business. No one will be surprised that I believe that, as an association, we continue to have a moral and fiduciary obligation, as custodians of a self-regulated market for legal services, to fix a broken market.

We could, as a very few Tennessee lawyers have suggested by their comments, do nothing. Or we could man the ramparts against the evil “non-lawyers” (I just hate that patronizing and condescending term) who are deploying huge amounts of capital to enter “our” market. I won’t be a part of that; I’ll vigorously oppose that view; and I hope the TBA will continue, as it has in recent history, to avoid the path of massive resistance. Instead, I hope the TBA will continue to cautiously explore, and guide our members into, the future — the undiscovered country that awaits both NewLaw’s proponents and opponents.

My pile also includes ideas about court reform, both civil and criminal. It’s on the horizon, and we must embrace reform to shape and protect our judicial system.

Our courts are starved for resources, especially for technology to help judges and clerks move cases better, faster and cheaper and to ease the burden of going to court on parties. To some extent, that’s because courts and clerks are even more resistant to change than lawyers. (Who knew that was possible?) But it also doesn’t help the cause of judicial system improvement that the courts have not had the benefit of politically powerful advocacy in the General Assembly. TBA members need to fill that gap.

Our judges and clerks daily use 1980s technology. For example, is there any excuse for all of our courts not having electronic filing, or any excuse that the only electronic filing in our state courts is the result of local initiative? Who thinks that is a good idea?

Virtually no courts treat parties as customers more entitled to good customer service in a court — courts they actually own — than in the neighborhood fast-food restaurant. (I would give one court in Tennessee — the eastern district federal court — a pass on this. I received not too long ago a version of a customer-satisfaction survey their clerk sent at least to lawyers. But why should that be remarkable?) We’ll talk about some of this at the Convention in a few weeks.

There is also much in my pile about criminal justice reform. Expungement remains too difficult and too expensive, though some little progress has been made. The wide range of collateral consequences of convictions are an indefensible burden on our fellow citizens, our economy, and any notions of rehabilitation or forgiveness to which we occasionally pay lip service.

Fines, fees and forfeitures have become another unconscionable jungle of regulatory and financial weights on citizens who have even minor brushes with the law. Our state-court cash bail system has created a lucrative private industry and encouraged short-term incarceration for those so poor they cannot financially feed that industry, even if they pose no meaningful risk of flight.

(Of course, the opinions expressed in the last series of paragraphs are the author’s own and do not reflect the official policy of the Tennessee Bar Association, its management or Major League Baseball … just mine, in case there was any doubt.)

As you can see, and surely already knew, while my year is just about finished, the work of the TBA most certainly is not.

Thanks.

To all my fellow members of the Association, for the honor and privilege of serving this year, thank you.


Lucian T. Pera LUCIAN T. PERA is a partner in the Memphis office of Adams and Reese LLP. A Memphis native, he is a graduate of Princeton University and Vanderbilt University School of Law. He is a former TBA YLD president and a past ABA treasurer. His wife Jane tells us she has an altogether different list of unfinished business items for Lucian to tend to, starting very soon. You can reach him at Lucian.Pera@arlaw.com.