News

Tennessee, DOJ Battle Over Federal Prosecutors Ethical Obligation in Discovery

An opinion published earlier this year by the Tennessee Board of Professional Responsibility has caused a stir in the U.S. Justice Department, setting the stage for a battle over ethics in the discovery process, The Marshall Project reports. The DOJ believes that district attorneys are duty-bound to disclose evidence that could prove a defendant’s innocence only when it’s material to the case. However, lawyer ethics panels in states, including Tennessee, have seen that standard as vague and open to interpretation by the prosecutors themselves. The new rule in Tennessee says prosecutors must hand over all evidence that is in some way favorable to a defendant, no matter if they believe it would affect the outcome or not.
read more »

Memphis Violated Federal Decree in Surveilling Protestors, Judge Says

U.S. District Judge Jon McCalla ruled Friday that the Memphis Police Department engaged in political intelligence of protesters both at their protests and online, violating a federal court decree from 1978, WMC Action News 5 reports. The police department issued a statement following the ruling, saying in part that its "monitoring of social media for protests and counter protests is non-partisan. The City has an obligation to provide public safety and to anticipate threats to public safety."
read more »

Law Office Management Tips on Shipping

If your law office uses shipping services, your TBA membership team can help you compare those costs to TBA’s UPS member benefit. Your firm office manager can work directly with TBA staff and UPS services to enroll or transfer shipping accounts. Members can save up to 34 percent on UPS’s broad portfolio of shipping services, including next day air, international, ground and express.
read more »

Study Suggests More Innocent People are Pleading Guilty

A new paper published by the National Association of Criminal Defense Lawyers examines evidence suggesting that an increasing number of defendants are pleading guilty to avoid the risk of trial, rather than trying to prove their innocence, Forbes reports. The study, called “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” concludes that "there is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk." 
read more »

Federal Judge: Trump Must Fully Restore DACA

A federal judge today ruled that the Trump administration must fully restore the Deferred Action for Childhood Arrivals (DACA) program, The Hill reports. In his opinion, Judge John Bates of the D.C. Circuit Court of Appeals said the Trump White House had failed to provide justification for its proposal to end the program. The judge agreed to delay the ruling by 20 days to allow the administration to to determine whether it will appeal the court's decision.
read more »

National Archive to Provide Kavanaugh Documents to Judiciary Committee

The National Archives on Thursday responded to a GOP request for documents on Supreme Court nominee Brett Kavanaugh, indicating that the over 900,000 pages could not be delivered by the Aug. 15 deadline set by the Judiciary Committee. The requested files will likely be provided in phases, starting later this month, and completed by October. The Hill reports that sources say the delayed document timeline will not change a planned September start for Kavanaugh’s nomination hearings.

read more »

Tennessee Appeals Driver’s License Reinstatement Ruling

The Tennessee Department of Safety and Homeland Security Commissioner David Purkey announced this week that the state would file a notice of appeal of Judge Aleta Trauger’s ruling that it is unconstitutional for Tennessee to revoke someone's driver's license if they could not pay court costs.
The Knox News Sentinel reports that the appeal does not have an impact on Trauger’s ruling and the state must continue to reinstate drivers’ licenses. The ruling was a first of its kind in the country. 
read more »

Destination CLE Survey

Let's take a trip! The TBA CLE Committee would like your feedback on destination CLE events. Taking a moment to complete this brief survey will greatly assist us in developing the best CLE experience for you. Please complete this survey by Aug. 10. We greatly appreciate your help with this endeavor.
read more »

Tax Law Forum 2018

The annual Tax Law Forum will be held at the Tennessee Bar Center in Nashville on Sept. 17. Sessions will focus on the new Tax Cuts and Jobs Act. Topics include the new pass-through entity tax law, an overview of the changes to international tax law, corporate and other business tax changes as well as non-profit law changes.

read more »

Federal Practice Seminar 2018

The annual Federal Practice Seminar will be held at the Tennessee Bar Center in Nashville this Thursday. Highlights of this year’s CLE include best practices for presenting a case in federal court, analysis of key local rules for the three federal districts in Tennessee, best practices for e-discovery, and an update on Federal Probation Office policies and procedures. 
read more »

U.S. Indicts 12 Russian Agents in Election Probe

Twelve Russian intelligence officers were indicted on Friday for their part in the hacking of the Democratic National Committee and the Clinton presidential campaign, The New York Times reports. The accusations made in the inditement are to date the most detailed account of the Russian government’s interference in the 2016 election. According to the indictment the intelligence officer used phishing attacks to gain access to Democratic operatives, along with money laundering, and attempts to break into state elections boards. The indictment did not include any accusations that the Russian efforts succeeded in influencing the election results, nor evidence that any of President Trump’s advisers knowingly coordinated with the Russian campaign.

read more »

Federal Judge Temporarily Halts Deportation of Recently Reunited Families

A federal judge today temporarily halted the deportations of families that have been recently reunited, The Hill reports. Attorneys for the American Civil Liberties Union, which filed the request to halt the deportations, said the delay was necessary because of “persistent and increasing rumors that mass deportations may be carried out imminently and immediately upon reunification.” Judge Dana Sabraw gave the government one week to file a brief in opposition.
read more »

ABA President Asks for Congressional, Public Input on Administrative Judge Executive Order

Hilarie Bass, president of the American Bar Association, sent a letter to the U.S. House Committee on Rules today, saying a recent executive order that changes how administrative law judges are hired could “politicize the appointment process and interfere with the decisional independence of ALJs.” President Trump’s July 10 order eliminates the nationwide, uniform, competitive selection exam process for federal administrative law judges, and weakens existing qualification standards. Bass said that no changes should be made until “there has been an opportunity for Congress and the public to engage in an open and deliberative process.”
read more »

U.S. Senate Confirms Nashville Attorney Ney as DOD General Counsel

Nashville attorney Paul Ney has been confirmed by the U.S. Senate as the new general counsel for the Department of Defense, The Tennessean reports. President Donald Trump nominated him for the job in January. His new position will give him a key role in the Defense Department, where he will weigh in on issues involving personnel, conduct and other matters.
read more »

Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

read more »

Trump Chooses Kavanaugh for Supreme Court

President Donald Trump announced the selection of federal appellate Judge Brett Kavanaugh to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy, CBS News reports. Trump touted Kavanaugh’s “impeccable credentials” and called him a “judge’s judge.” Kavanaugh previously clerked for Kennedy and has served on the D.C. Appeals Court since 2006.
read more »

Trump Narrows Short List for SCOTUS Nominees to 3

President Trump has completed interviews with candidates for the upcoming nomination for the U.S. Supreme Court, and three have risen to the top of the list, Fox News reports. Brett Kavanaugh, Raymond Kethledge and Amy Coney Barrett, all federal appeals court judges, have been identified as frontrunners. Trump is expected to make an announcement about his selection on Monday.
read more »

Potential Trump SCOTUS Pick a Rhodes College Graduate

Amy Coney Barrett, one of the potential replacements for retiring U.S. Supreme Court Justice Anthony Kennedy, has a Tennessee connection – she’s a Rhodes College graduate, The Commercial Appeal reports. Barrett is currently a judge on the U.S. Court of Appeals for the 7th Circuit, a seat she assumed after an appointment by Trump last October.
read more »

Justice Kennedy to Retire from U.S. Supreme Court

U.S. Supreme Court Justice Anthony Kennedy announced today that he is retiring, The Hill reports. His retirement on July 31 will end a career of more than 30 years on the court. Kennedy is the court’s longest-serving member and its second-oldest justice after Ruth Bader Ginsburg. Nominated by President Ronald Reagan in 1988, he has served as a pivotal swing vote on some of the court’s most impactful decisions of the past 30 years, including LGBT marriage equality and Citizens United.
read more »

Tennessee May Receive Increased Funding for Parks

U.S. Senator Lamar Alexander, R-Tenn., recently gained Senate committee approval for a bill he sponsored — the National Park Restoration Act — that intends to allocate increased funding for the maintenance backlog at national parks, The Herald-News reports. The project will be funded using excess money from energy leases for onshore and offshore federal land to pay for the repairs. The bill is expected to have a great impact on Tennessee, providing money to restore campgrounds, trails and roads in the Smokies, Cherokee National Forest, and the Skinner Mountain Forest among others. The legislation is now ready for consideration by the full Senate.

read more »

Schedule Time to Read Email

A tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.
read more »

Legal Battle Over North Carolina 'Bathroom Bill' Returns to Federal Court

The U.S. District Court in Winston-Salem on June 25 will hear pending motions in Carcaño, et al. v. Cooper, et al., regarding North Carolina’s controversial House Bill 2, which has been criticized as being discriminatory against gay and transgender people, reports The Winston-Salem Journal. The bill —repealed last year — was replaced with North Carolina House Bill 142, which omitted restroom, locker room and shower use requirements and prohibited local governments from putting forth any anti-discrimination ordinances through Dec. 1, 2020. You can view the complaint here.

read more »

Nursing Home Chain Settles in Columbia Medicare Fraud Case

Two former occupational therapists at a Columbia nursing home were whistleblowers in a Medicare fraud case that was settled this month for $30 million, The Columbia Daily Herald reports. Kristi Emerson and LeeAnn Holt tipped-off the U.S. Health and Human Services Department, providing documentation that showed the company pressured employees to perform unneeded therapy and manipulated therapist schedules to maximize profit. You can view the complaint here.

read more »

SCOTUS Overturns Process for SEC Administrative Judicial Appointments

The U.S. Supreme Court has ruled that administrative law judges must be appointed by the president, courts or heads of federal agencies, overturning the process currently used by the Securities and Exchange Commission, the ABA Journal reports. The SEC contended that the judges were employees, and therefore were subject to appointment by staff members. SEC judges were being selected by the chief judge and approved by the SEC personnel office.
read more »

Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

read more »