News From the Tennessee Bar Association

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TN Legal News Now

This legal news update is provided to you weekly by the Tennessee Bar Association as a service to Tennessee lawyers. TBA members receive these breaking legal news and court opinions daily. When you join the Tennessee Bar Association you will also receive this service each day. You can unsubscribe to this newsletter using the link at the bottom of this edition.

Today's Opinions

TN Workers Comp Appeals Board (1)
TN Court of Criminal Appeals (1)
6th Circuit Court (Published Opinions) (3)

Today's News

Justice Mary Wagner, Gov. Bill Lee, Justice Jeff Bivins

Investiture Ceremony Held for New Supreme Court Justice Wagner

Tennessee Supreme Court Justice Mary L. Wagner received a warm welcome to the bench as family, friends, colleagues, elected officials and the judiciary joined her in Germantown for a ceremonial investiture by Gov. Bill Lee. “Justice Wagner is highly qualified and brings significant experience to the Tennessee Supreme Court,” Lee said. “Her understanding and respect for the rule of law and commitment to the conservative principles of judicial restraint make her well-suited for the state’s highest court, and I am proud to celebrate her investiture.” Wagner was confirmed by the Tennessee legislature in March and her term began Sept. 1. She earned her bachelor’s degree at the University of Colorado at Boulder and her law degree at the University of Memphis Cecil C. Humphreys School of Law. Wagner fills a vacancy created by the retirement of Justice Roger A. Page. Read more in a press release from the Administrative Office of the Courts and see photos from the event.

Legal News

Apply Now to Serve as TBA Delegate to ABA House of Delegates

There is now a vacancy for a TBA delegate to the ABA House of Delegates (Position 1) due to Jonathan Cole’s selection to serve as chair of the ABA House of Delegates. In accordance with Articles 47 and 49 of the TBA Bylaws, the TBA Board of Governors will fill this vacancy at its Sept. 28 board meeting. The selected candidate will fill this vacancy for the remainder of the current term. To be considered for this position, email TBA Executive Director Sheree Wright with your interest by Sept. 19. Please include a resume as well as any other information you would like the Board of Governors to consider.

Judge Philyaw Elected TCFCJ President

Hamilton County Juvenile Court Judge Rob Philyaw has been elected president of the Tennessee Council of Juvenile and Family Court Judges (TCFCJ) by its members from across the state. He will serve a term of two years. He previously served in the roles of treasurer and vice-president, as well as a member of TCFCJ's Executive and Legislative committees. Reflecting on his selection Philyaw said, “This kind of service was engrained in me in my first year of practicing law and has never left me. I look forward to the opportunities that the next two years will bring to further our work locally and across Tennessee. We have the best professional staff in Hamilton County and the broader work helps me do a better job for our families here every day.” Chattanoogan.com has the story.

Texas-Based Law Firm Opens Nashville Office

Dallas-based law firm Winstead has opened a Nashville office with five Tennessee attorneys. Commercial litigator Jeremy Oliver will be the office’s managing shareholder. Christopher Dunn, Emily Lamb and Keith Randall will join as shareholders. Dunn also will co-chair the real estate industry group. Dunn and Randall previously were with Epstein Becker & Green and Waller. Lamb previously was with Thompson Burton and Metro Nashville government. Will Stout will join as an associate. He previously was with Spencer Fane and Lewis Thomason. The office is located at the ONE 22 ONE building, 1221 Broadway, Ste. 2030, Nashville 37203 in the Gulch. It can be reached at 615-949-2350. Winstead CEO Jeff Matthews said the move is “just the beginning” of the firm’s strategic growth in Nashville. Read more in a release from the firm.

ABA Survey Reveals Student Debt's Impact on Young Lawyers

The American Bar Association (ABA) Young Lawyers Division has released a student debt survey that reveals the significant impact of student debt on the lives — including career plans, financial stability and mental health — of young lawyers. According to a press release, the study found that many young attorneys delayed major life events due to debt, and many felt stressed and anxious about their finances. While the COVID-19 loan repayment pause provided some relief, the survey also highlighted the need for more comprehensive solutions to address the student debt crisis.

Data Shows 100+ Employees Departed DA Mulroy's Office Since 2022

Internal data from the Shelby County District Attorney's Office shows that more than 100 employees have left since Steve Mulroy's election in 2022. The Daily Memphian reports that between Aug. 31, 2022, the day Mulroy was officially sworn into office, and Dec. 30, 2022, 42 people left the office, according to a spreadsheet that was inadvertently distributed by email last month to current employees of the office. Erica Williams, spokesperson for the office, said the amount of transition is common, especially during leadership changes. Mulroy replaced Amy Weirich, who held the position since 2011. “In comparison, the previous administration experienced the transition of about 80 employees within a similar time period,” Williams said.

Womble Bond Dickinson to Combine with Lewis Roca

Womble Bond Dickinson and Lewis Roca have announced that the two large, multi-practice law firms will merge, creating a firm of more than 1,300 attorneys in 37 offices in the United States and United Kingdom. The merger, which will give Womble Bond Dickinson additional locations in the southwest and mountain west, will be effective on Jan. 1, 2025. The resulting firm will continue to operate as Womble Bond Dickinson under the leadership of CEO Merrick Benn and Vice Chair Kenneth Van Winkle. Womble Bond Dickinson opened an office in Nashville in 2022. It is run by managing partner Joshua A. Mullen.

TBA Young Lawyers Division Visits Memphis Law

Members of the TBA Young Lawyers Division visited University of Memphis Cecil C. Humphreys School of Law last week to speak with over 35 students about their entry into the profession and to share information about TBA member benefits. Membership, which is free to law students, provides access to continuing legal education that can increase students' professional knowledge, opportunities to network and savings on school supplies and insurance. Students also were also encouraged to apply for the 2025 Diversity Leadership Institute (DLI), a six-month leadership and mentoring program designed to help develop the skills needed to succeed as a law student and attorney. Thanks to YLD presenters Constance Brown, Julie Chapman and Faith Watson for their contributions to the event. See a photo from the visit.

Survey Finds Race Gap in Length of Lawyers' 1st Jobs

Minority attorneys stay in their first jobs out of law school about half as long as their white peers, though the gap may be narrowing, according to a new Bloomberg Law survey. The race-based imbalance among all attorneys surveyed was almost four years — 3.98 years for minority lawyers versus 7.8 years for white attorneys. But the gulf was only about a month or two on average among lawyers who have practiced for 15 years or less — a sign that investments by law firms and legal departments may be helping close the gap.

KBA Hosts Annual Bench & Bar Celebration

The Knoxville Bar Association (KBA) on Thursday hosted its annual Bench & Bar Celebration. The KBA’s Diversity in the Profession Committee presented the 2024 Diversity, Equity & Inclusion Award to Legal Aid of East Tennessee, and attendees heard about the organization's innovative efforts to be accessible to clients and provide a meaningful and welcoming workplace for all employees. See photos from the event.

NBA Announces Foundation's 2025 Leadership Class

The Nashville Bar Association (NBA) has announced the members of the 2025 Nashville Bar Foundation (NBF) Leadership Forum class. Of the new class, NBA President Erin Palmer Polly said, "This very select and diverse class will have the opportunity to develop exceptional leadership skills and foster strong professional relationships. We look forward to the positive impact that they will have in our profession and our community." The NBF established the Leadership Forum — a nine-month leadership program for lawyers with three to eight years of experience — in 2014 to bring together emerging leaders who participate in monthly workshops designed to help them realize their potential to benefit the legal profession and the local community.

Former ME Recants Testimony in Shaken Baby Case

Former Davidson County Medical Examiner (ME) Dr. Bruce Levy has recanted his testimony in the 2000 death of Bryan Alexander Maze. Russell Maze, father of "Baby Alex," was convicted of shaking his son and causing the injuries that led to his death. Levy now says that after reviewing medical records that were not previously made available to him, as well as recent reports from medical experts who have studied the case, "If called to testify now, I would assert Bryan Maze’s brain, at the time of his death, showed no indication, to a reasonable degree of medical certainty, of prior trauma or abuse. Instead, the residual brain lesions viewed at autopsy more likely than not resulted from a natural disease process." The Nashville Banner interviewed multiple attorneys who said that they had never seen a medical examiner change a conclusion in a homicide case.

Dr. Bruce Levy

Methadone Clinic Approved in Putnam County Despite Community Pushback

State health officials recently approved a project by Cedar Recovery to build a $2.5 million methadone clinic in Putnam County outside Cookeville. The project has met with sharp criticism from community members who testified before the Health Services Commission, which determines whether to grant a certificate of need to a health services provider. The commission's attorney reminded members when deciding how to vote that the body does not oversee zoning, and federal law protects substance use treatment centers from discrimination. “You can’t treat this any differently than you would treat [another medical provider] applicant. Otherwise, we would end up in violation of the Americans with Disabilities Act.” Nashville Public Radio has more on the story.

Pro Bono Opportunities

TBA Health Law Section Plans Advance Health Care Directive Clinics

The TBA Health Law Section has partnered with organizations across the state to provide free advance health care directive clinics in each of Tennessee’s grand divisions. The section is seeking volunteer lawyers to assist with the effort. No previous experience is necessary and there will be experts on hand to answer questions. The first clinic will take place in Knoxville on Sept. 21 from 9 a.m. to noon EDT. A Nashville clinic will follow on Oct. 5 from 10 a.m. to 2 p.m. CDT. The Memphis clinic will take place Nov. 9, 10 a.m. to 1 p.m. CDT. Please contact TBA Health Law Section Chair Ian Hennessey with questions and/or volunteer interest at ian.hennessey@amrllc.com.

National Hispanic Heritage Month

Knoxville Latino Bar Association Hosts 2nd Annual Gala

The Knoxville Latino Bar Association (KLBA) will host its second annual gala on Sept. 27 from 6-9 p.m. EDT at the Foundry on the Fair Site, 747 Worlds Fair Park Dr., Knoxville 37902. The event, themed "Forjando Tu Futuro: Overcoming Challenges," will honor Carlos Yunsan, the Knoxville Bar Association's first Latino president. Learn more and purchase tickets here.

Upcoming

LMU Law to Celebrate 15th Anniversary

The Lincoln Memorial University Duncan School of Law will hold a historic celebration for its 15th anniversary on Sept. 21 at 7 p.m. EDT. The event will take place at The Mill & Mine, 227 W. Depot Ave., Knoxville 37917. Get more information and register here.

Correction

Location of Funeral Mass for Judge Andy Jackson Updated

In a TBA Today news item last week, the funeral information for Former Judge Anthony Andrew "Andy" Jackson was incorrect. A visitation with the family will be held on Sept. 13 from noon to 2 p.m. CDT at the Clement Railroad Museum, 100 Frank Clement Pl., Dickson 37055, with a Memorial Mass to follow at 2 p.m. at St. Christopher Catholic Church, 713 W. College St.

BPR Actions

Mississippi Lawyer Reinstated

Mississippi lawyer Louis Collins Walker was reinstated to the practice of law in Tennessee on Sept. 5, retroactive to Aug. 28. Walker had been placed on inactive status on Jan. 16, 2019. The Board of Professional Responsibility determined that the reinstatement petition was satisfactory and recommended that the court approve it.

Lawyers’ Fund for Client Protection

Tennessee Attorney Ordered to Reimburse Lawyers' Fund

The Tennessee Lawyers’ Fund for Client Protection on Sept. 5 paid a $39,585 claim filed against Anderson County attorney Kevin Carmack Angel. It also directed Angel to reimburse the fund for the expense. The Fund for Client Protection was established by the Tennessee Supreme Court to reimburse individuals for losses caused by dishonest conduct by attorneys. The fund is operated by a board, which meets quarterly to consider claims. In September 2022, the Tennessee Supreme Court amended Rule 25 to require the fund to notify the Tennessee Bar Association of claims paid. News releases also are posted online.

TBA CLE

2024 Estate Planning Tee-off Set for Nov. 7

Attorneys interested in estate planning will have the chance to gain valuable knowledge and enjoy a round of Topgolf at a special event on Nov. 7. The program, which will feature three hours of CLE programming, is designed for new attorneys and those looking to add estate planning to their practice. The event will include breakfast, lunch and two hours of golfing after the presentations. The program will run from 9 a.m. to 3 p.m. CDT. Learn more or register here.

TBA Member Advantages

Use TBA Benefits to Save Money and Access Insurance

Practicing law can be expensive. Being a lawyer is more than just the law — it’s a business. Use TBA membership benefits to help you save money and get access insurance options you need. Immediate savings include unlimited legal research in all 50 states, 3 three free hours of CLE, and members discounts, student loan refinancing, and access to group health insurance, life insurance and preferred providers for malpractice insurance. These benefits can will help your bottom line and keep costs low to help you focus on the practice of law. Learn more about the savings available.

Court Opinions

You can obtain full-text versions of these opinions by selecting the link below each opinion’s summary paragraph. Your email software should give you the option of reading the opinion online or downloading it to your computer or mobile device. Decisions from the 6th Circuit Court that are not designated for publication are not included in this report.

TN Workers Comp Appeals Board

ASAD ALMALHI v. INDMAR PRODUCTS CO., INC., ET AL.

Court: TN Workers Comp Appeals Board

Attorneys:

Gregory H. Fuller and Houston M. Gunn, Brentwood, Tennessee, for the employer-appellant, Indmar Products Co., Inc.

Asad Almalhi, Memphis, Tennessee, employee-appellee, pro se.

Timothy P. Kellum, Nashville, Tennessee, for the appellee, Subsequent Injury and Vocational Recovery Fund.

Judge(s): CONNER

This interlocutory appeal presents an issue of first impression. The employer asserts the trial court erred in ordering it to hire a certified or state-registered translator to translate certain written discovery requests into the employee’s first language. The employee asserts that although he has certain proficiency in the English language, he remains concerned that he may have misunderstood the discovery requests and therefore could have erred in responding to them. The employer asserts that there is no rule or statute that mandates they pay to have written documents used in the scope of litigation translated into another language. Upon careful consideration of the record, we reverse the trial court’s order and remand the case.

almalhia_091024.pdf

TN Court of Criminal Appeals

STATE OF TENNESSEE v. JONATHAN HAMILTON

Court: TN Court of Criminal Appeals

Attorneys:

Gerald S. Green (on appeal) and Blake D. Ballin (at trial), Memphis, Tennessee, for the appellant, Jonathan Hamilton.

Jonathan Skrmetti, Attorney General and Reporter; G. Kirby May, Assistant Attorney General; Steven J. Mulroy, District Attorney General; and Paul Hagerman and Kevin McAlpin, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): GREENHOLTZ

A Shelby County jury convicted the Defendant, Jonathan Hamilton, of first degree felony murder, attempted first degree murder, and employment of a firearm during the commission of a dangerous felony. The trial court sentenced the Defendant to serve an effective life sentence plus twenty-six years. On appeal, the Defendant argues that the trial court erred by (1) denying his motions to suppress evidence seized pursuant to a warrant, as well as an out-of-court identification; (2) admitting autopsy photographs; (3) failing to instruct the jury on aggravated assault, facilitation, and accessory after the fact; (4) allowing improper closing arguments; and (5) imposing consecutive sentencing. Upon our review, we respectfully affirm the judgments of the trial court.

hamiltonj_091024.pdf

6th Circuit Court (Published Opinions)

CHAMBER OF COMMERCE OF THE UNITED STATES; BUSINESS ROUNDTABLE; TENNESSEE CHAMBER OF COMMERCE AND INDUSTRY, v. SECURITIES AND EXCHANGE COMMISSION; GARY GENSLER, in his official capacity as Chairman of the Securities and Exchange Commission

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Jeffrey B. Wall, SULLIVAN & CROMWELL LLP, Washington, D.C., for Appellants.

ARGUED: Daniel E. Matro, SECURITIES AND EXCHANGE COMMISSION, Washington, D.C., for Appellees.

ON BRIEF: Jeffrey B. Wall, Elizabeth A. Rose, Leslie B. Arffa, Stephanie M. Kelly, SULLIVAN & CROMWELL LLP, Washington, D.C., Matthew A. Schwartz, SULLIVAN & CROMWELL LLP, New York, New York, for Appellants.

ON BRIEF: Daniel E. Matro, SECURITIES AND EXCHANGE COMMISSION, Washington, D.C., for Appellees.

ON BRIEF: Donald B. Verrilli, Jr., Elaine J. Goldenberg, MUNGER, TOLLES & OLSON LLP, Washington, D.C., Virginia Grace Davis, MUNGER, TOLLES & OLSON LLP, San Francisco, California, Christopher A. Bates, OFFICE OF THE UTAH ATTORNEY GENERAL, Salt Lake City, Utah, Paul W. Hughes, MCDERMOTT WILL & EMERY LLP, Washington, D.C., Jonathan F. Cohn, LEHOTSKY KELLER COHN LLP, Washington, D.C., for Amici Curiae.

Judge(s): GIBBONS, BUSH, and DAVIS, Circuit Judges

Court Appealed: United States District Court for the Middle District of Tennessee at Nashville

JULIA SMITH GIBBONS, Circuit Judge. The United States Chamber of Commerce, Business Roundtable, and the Tennessee Chamber of Commerce and Industry sued the Securities and Exchange Commission and its Chairman, alleging that the Commission’s partial rescission of a prior regulation failed to meet the procedural and substantive demands of the Administrative Procedure Act. The district court granted summary judgment to the Commission, and we affirm.

chamberofcommerce_091024.pdf

ALLAN M. JOSEPHSON v. TONI M. GANZEL, Interim Executive Dean of Health Affairs and Dean of the School of Medicine at the University of Louisville, in her official and individual capacities; KIMBERLY A. BOLAND, Interim Chair of the Department of Pediatrics at the University of Louisville, in her official and individual capacities; CHARLES R. WOODS, former Chair of the Department of Pediatrics at the University of Louisville, in his individual capacity; JENNIFER F. LE, former Interim Division Co-Chief of the Division of Child and Adolescent Psychiatry and Psychology and current Chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville, in her official and individual capacities; BRYAN D. CARTER, former Interim Division Co-Chief of the Division of Child and Adolescent Psychiatry and Psychology and Chief of the Division of Psychology at the University of Louisville, in his official and individual capacities;

Head Comment: Title continued: WILLIAM D. LOHR, former Interim Division Co-Chief of the Division of Child and Adolescent Psychiatry and Psychology at the University of Louisville, in his official and individual capacities

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Jeremy S. Rogers, DINSMORE & SHOHL LLP, Louisville, Kentucky, for Appellants. Travis C. Barham, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, for Appellee.

ON BRIEF: Jeremy S. Rogers, Donna King Perry, Matthew Barszcz, DINSMORE & SHOHL LLP, Louisville, Kentucky, for Appellants.

ON BRIEF: Travis C. Barham, ALLIANCE DEFENDING FREEDOM, Lawrenceville, Georgia, Tyson C. Langhofer, P. Logan Spena, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, for Appellee.

ON BRIEF: William E. Trachman, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, Edward M. Wenger, Shawn Toomey Sheehy, HOLTZMAN VOGEL BARAN TORCHINSKY & JOSEFIAK PLLC, Washington, D.C., for Amici Curiae.

Judge(s): GILMAN, GRIFFIN, and MATHIS, Circuit Judges

Court Appealed: United States District Court for the Western District of Kentucky at Louisville

MATHIS, Circuit Judge. The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university’s medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment. So he sued the individuals that he says violated the First Amendment by retaliating against him. For these reasons, we AFFIRM the district court’s denial of Defendants’ motions for summary judgment. We DENY as moot Josephson’s motion to dismiss for lack of jurisdiction.

josephsona_091024.pdf

NAYANABEN PATEL v. MERRICK B. GARLAND, Attorney General

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Ainuddin Ahmed, AINE AHMED LAW, Carmel, Indiana, for Petitioner. Jaclyn G. Hagner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF: Ainuddin Ahmed, AINE AHMED LAW, Carmel, Indiana, for Petitioner. Jaclyn G. Hagner, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Judge(s): SILER, MATHIS, and BLOOMEKATZ, Circuit Judges

Court Appealed: On Petition for Review from the Board of Immigration Appeals

SILER, Circuit Judge. Petitioner Nayanaben Patel1 entered the United States in March 2000. But exactly when, where, how, and with whom was never conclusively established. She applied for adjustment of status based on her husband’s legal status in the United States but lied about her manner of entry in doing so. She admitted to lying in a statement to U.S. Citizenship and Immigration Services (“USCIS”), but then testified in 2019 in a manner that called into question elements of that statement as well. Citing this factual confusion, the Immigration Judge (“IJ”) denied her application for adjustment of status and ordered her removed to India. The Board of Immigration Appeals (“BIA”) affirmed. Because the IJ’s determination was discretionary and protected by statute from judicial review, and because Petitioner has not raised colorable constitutional claims reviewable by this court, we deny the petition for review.

pateln_091024.pdf

Questions, Comments? Email us at TBAToday@tnbar.org

About this publication: TN Legal News Now is a compilation of news digests compiled by TBA staff and stories about the TBA and other activities written by 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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